UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF … · 2020-06-03 · 3 PHIL1 8943004v.1 (the “ABL DIP Facility”), and (b) $50 million senior secured superpriority term credit

PHIL1 8943004v.1

UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

) In re: ) Chapter 11 ) APC AUTOMOTIVE TECHNOLOGIES ) Case No. 20-11466 (CSS) INTERMEDIATE HOLDINGS, LLC, et al.,1

) )

) Debtors. ) (Joint Administration Requested) )

DEBTORS’ MOTION FOR ENTRY

OF INTERIM AND FINAL ORDERS (A) AUTHORIZING THE DEBTORS TO (I) OBTAIN POSTPETITION FINANCING

AND (II) UTILIZE CASH COLLATERAL, (B) GRANTING LIENS AND SUPERPRIORITY ADMINISTRATIVE EXPENSE CLAIMS, (C) GRANTING

ADEQUATE PROTECTION, (D) MODIFYING THE AUTOMATIC STAY, (E) SCHEDULING A FINAL HEARING, AND (F) GRANTING RELATED RELIEF

The above-captioned debtors and debtors in possession (collectively, the “Debtors”)

respectfully submit this motion for the relief set forth herein.2 In support of this motion

(the “Motion”), the Debtors respectfully submit: (a) the First Day Declaration and (b) the

Declaration of Jeffrey Finger in Support of the Debtors’ Motion for Entry of Interim and Final

Orders (A) Authorizing the Debtors to (I) Obtain Postpetition Financing and (II) Utilize Cash

Collateral, (B) Granting Liens and Superpriority Administrative Expense Claims, (C) Granting

Adequate Protection, (D) Modifying the Automatic Stay, (E) Scheduling a Final Hearing, and (F)

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification

number, are: APC Automotive Technologies Intermediate Holdings, LLC (0991); Airtek, LLC (1239); AP Emissions Technologies, LLC (8219); AP Exhaust Products Disc, Inc. (0288); APC Automotive Technologies, LLC (6651); Aristo, LLC (4541); CWD Acquisition, LLC (4286); CWD Holding Corp. (7381); CWD Intermediate Corp. (7285); CWD, LLC (5832); Eastern Manufacturing, LLC (2410); Qualis Automotive, L.L.C. (7291); and Qualis Enterprises, Inc. (6610). The Debtors’ service address is: 10822 West Toller Drive, Suite 370, Littleton, Colorado 80127.

2 The facts and circumstances supporting this Motion are set forth in the Declaration of Marc Weinsweig, Interim Chief Financial Officer of the Debtors, in Support of Debtors’ Chapter 11 Petitions and First Day Motions (the “First Day Declaration”), filed contemporaneously with this Motion and incorporated by reference herein.

Case 20-11466-CSS Doc 17 Filed 06/03/20 Page 1 of 49

2 PHIL1 8943004v.1

Granting Related Relief (the “Finger Declaration”), filed contemporaneously herewith.3 In further

support of this Motion, the Debtors respectfully state the following:

Introduction

1. The Debtors’ already tight liquidity has been further exacerbated by the broader

economic impact of the COVID-19 pandemic and increased raw materials costs. As a result, the

Debtors are in urgent need of liquidity to continue operating during their Chapter 11 Cases in the

ordinary course. To fund the Debtors’ operations during these Chapter 11 Cases and execute the

restructuring contemplated by the Debtors’ restructuring support agreement (“RSA”), the Debtors

urgently require debtor-in-possession (“DIP”) financing in the form of continued access to cash

collateral and additional new money financing in the form of both an ABL and term DIP facilities.

Moreover, access to the proposed DIP Facilities (as defined below) will send a clear signal to the

Debtors’ customers, vendors, and employees that their operations can and will continue on a

business-as-usual basis. Further, the coupling of the DIP Facilities with the Debtors’ RSA

provides assurance that the Debtors will have the liquidity necessary to emerge as a stronger,

appropriately-capitalized company.

2. The Debtors seek approval of the proposed $140 million DIP Facilities. The

proposed DIP Facilities consist of a (a) $90 million senior secured superpriority revolving credit

facility and a full roll up of the Prepetition ABL Obligations upon entry of the Interim Order

3 Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the First

Day Declaration, the Finger Declaration, this Motion, the DIP Credit Agreement, or in the Interim Order (as defined below), as applicable.


3 PHIL1 8943004v.1

(the “ABL DIP Facility”), and (b) $50 million senior secured superpriority term credit facility of

new-money financing4 (the “Term DIP Facility” and together, the “DIP Facilities”).

3. No third-party has come forward with any proposal for a facility on a junior or

unsecured basis to meet the Debtors’ liquidity needs and support consummation of a consensual

prepackaged plan. Although there was initial interest by third parties to provide financing,

ultimately no potential lender was willing to provide financing absent the explicit consent to prime

existing lenders’ liens or provide financing junior to the existing liens. No parties were willing to

provide postpetition financing solely on an unsecured basis and no material unencumbered assets

were available as collateral on a senior basis. In fact, as set forth in the Finger Declaration, no

third party provided an executable postpetition financing facility that would both facilitate the

expeditious recapitalization outlined in the Debtors’ RSA and simultaneously obtain the

stakeholder support required to execute the proposed chapter 11 plan of reorganization. Further,

the Debtors do not believe they can adequately protect, preserve, and maximize the value of their

estates without access to postpetition financing. Given the Debtors’ circumstances, the Debtors

believe that the terms of the DIP Facilities are fair, reasonable, and adequate. As a result, the DIP

Facilities, together with the RSA and the Debtors’ proposed chapter 11 plan of reorganization,

provide the Debtors with a path to an expeditious and adequately-capitalized exit from chapter 11,

which will best preserve the value of the Debtors’ business and operation.

4. It is important to also note that the RSA and the Term DIP Facility were negotiated

together and, subject to a third party agreeing to provide the necessary DIP, were part and parcel

of a comprehensive deal. The fees associated with the Term DIP Facility are a 5% commitment

4 Note that $43.5 million of the $50 million has been committed as of the Petition Date, but the Debtors expect

commitments for the remaining $6.5 million on or before the date by which the Plan Supplement (as defined in the Plan) must be filed.


4 PHIL1 8943004v.1

fee and a fee equal to 35% of the equity in the reorganized Debtors. Although this equity fee may

appear unusual and expensive, as discussed in the Finger Declaration and in paragraph 32 herein,

it is fair and reasonable as structured under the circumstances.

5. The DIP Facilities will provide the Debtors with liquidity to fund the Debtors’

business operations and administrative expenses during the contemplated time period of these

Chapter 11 Cases. If approved, the Debtors will use the proceeds of the DIP Facilities to, among

other things, honor employee wages and benefits, procure goods and services, fund general and

corporate operating needs and the administration of these Chapter 11 Cases, in each case in

accordance with a budget agreed to by the Debtors and the DIP Lenders (the “Budget”) attached

hereto as Schedule 1 to Exhibit A.

6. As set forth in the First Day Declaration, the Finger Declaration, the Debtors and

their estates would suffer immediate and irreparable harm if the Debtors were denied the financing

needed to sustain on-going business operations during the critical first weeks of these cases. The

DIP Facilities ensure that the Debtors (a) have sufficient funding to consummate the chapter 11

plan contemplated by the RSA, and (b) can continue to operate uninterrupted in these Chapter 11

Cases.

7. Thus, for the reasons set forth herein, in the Finger Declaration and in the First Day

Declaration, the Debtors believe that approval of the DIP Facilities will maximize the value of the

Debtors’ estates for the benefit of all of the Debtors’ stakeholders and is an exercise of the Debtors’

sound business judgment. Accordingly, the Debtors respectfully request that the Bankruptcy Court

approve the relief requested herein, and enter an interim order substantially in the form attached

hereto as Exhibit A (the “Interim Order”) and a final order (the “Final Order,” and together with

the Interim Order, the “DIP Orders”).


5 PHIL1 8943004v.1

Jurisdiction and Venue

8. The United States Bankruptcy Court for the District of Delaware (the “Bankruptcy

Court”) has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Amended

Standing Order of Reference from the United States District Court for the District of Delaware,

dated February 29, 2012. The Debtors confirm their consent, pursuant to rule 7008 of the Federal

Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) and rule 9013-1(f) of the Local Rules of

the United States Bankruptcy Court for the District of Delaware (the “Local Rules”), to the entry

of a final order by the Bankruptcy Court in connection with this motion to the extent that it is later

determined that the Bankruptcy Court, absent consent of the parties, cannot enter final orders or

judgments in connection herewith consistent with Article III of the United States Constitution.

9. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409.

10. The bases for the relief requested herein are sections 105, 361, 362, 363, 364, 503,

and 507 of title 11 of the United States Code, 11 U.S.C. §§ 101–1532 (the “Bankruptcy Code”),

Bankruptcy Rules 2002, 4001, 6003, 6004, and 9014, and Local Rules 2002-1(b), 4001-2, and

9013-1(m).

Background

11. Since their beginnings in 1927 as a family-run, automotive exhaust system

business, the Debtors have grown into one of the largest North American automotive aftermarket

parts suppliers of underbody products for passenger vehicles and light to heavy-duty and

commercial vehicles. They have become the only true full-line underbody supplier in today’s

market for brake, chassis, and exhaust replacement parts. In May 2017, AP Exhaust entered into

a transformative merger with Centric, whereby the Debtors acquired a dominant market share as a

supplier of automotive aftermarket brake and chassis parts. The Debtors are headquartered in


6 PHIL1 8943004v.1

Littleton, Colorado and have approximately 1,200 employees and other workers. For fiscal year

2019, the Debtors reported gross revenue of approximately $650 million.

12. On the date hereof (the “Petition Date”), each Debtor filed a voluntary petition for

relief under chapter 11 of the Bankruptcy Code. The Debtors are operating their business and

managing their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the

Bankruptcy Code. Concurrently with the filing of this Motion, the Debtors filed a motion

requesting procedural consolidation and joint administration of these Chapter 11 Cases pursuant

to Bankruptcy Rule 1015(b).

Relief Requested

13. The Debtors request that the Bankruptcy Court:

a. authorize the Debtors to obtain senior secured postpetition financing on a superpriority basis in the form of the ABL DIP Facility, consisting of an asset-based revolving credit facility and roll-up of the Prepetition ABL Obligations, in the aggregate principal amount of up to $90 million, pursuant to the ABL DIP Credit Agreement substantially in the form attached hereto as Exhibit B;

b. authorize the Debtors to obtain superpriority postpetition financing in the form of a new money term loan credit facility in an aggregate principal amount of up to $50 million, plus amounts paid-in-kind and capitalized to the principal balance in accordance with the terms of the Term DIP Credit Agreement, substantially in the form of Exhibit C, attached hereto;

c. authorize the Debtors to execute and deliver the DIP Credit Agreements and any other agreements and documents related thereto, including that certain Fee Letter, dated as of May 31, 2020, by and among the Debtors and the Term DIP Lenders that have committed to $43.5 million funding under the Term DIP Credit Agreement (the “Fee Letter” and together with all other documents, the “DIP Documents”), and to perform such other acts as may be necessary or desirable in connection with the DIP Documents;

d. authorize the Debtors to enter into the DIP Facilities and to incur all obligations owing thereunder and under the DIP Documents to the DIP Agents and DIP Lenders (collectively, and including all “Obligations” as defined in the DIP Credit Agreements, the “DIP Obligations”), and granting the DIP Agents and DIP Lenders allowed superpriority administrative expense claim status in each of the Chapter 11 Cases and in any Successor


7 PHIL1 8943004v.1

Case, subject to the U.S. Trustee Carve Out and the Carve Out (as applicable);

e. grant to the DIP Agents, for the benefit of themselves and the DIP Lenders, automatically perfected security interests in and liens on all of the DIP Collateral, including, without limitation, all property constituting “cash collateral” as defined in section 363(a) of the Bankruptcy Code (the “Cash Collateral”), which liens shall have the priorities set forth in the Interim Order and Final Order (as applicable) and DIP Documents and shall be subject to the U.S. Trustee Carve Out and the Carve Out (as applicable);

f. authorize the Debtors to use any Cash Collateral in which the Prepetition Secured Parties (as defined herein) have an interest, and proceeds of the DIP Facilities, in each case in accordance with the Interim Order and the DIP Documents, including in accordance with the Budget (subject to Permitted Variances, unless otherwise expressly specified in the DIP Credit Agreements);

g. authorize the Debtors to pay the principal, interest, fees, expenses, and other amounts payable under the DIP Documents as such become earned, due and payable, including commitment fees, closing fees, and the reasonable fees and disbursements of the DIP Agents’ and the DIP Lenders’ respective attorneys, advisors, accountants, and other consultants, in each case, as and to the extent provided in, and in accordance with, the applicable DIP Documents;

h. authorize the Debtors to use the Prepetition Collateral, including the Cash Collateral of the Prepetition Secured Parties under the Prepetition Documents, and provide adequate protection to the Prepetition Secured Parties to the extent of any Diminution in Value of their respective interests in the Prepetition Collateral, including the Cash Collateral;

i. approve certain stipulations by the Debtors with respect to the Prepetition Documents, the Prepetition Secured Parties, the Prepetition Obligations, and the Prepetition Collateral;

j. modify the automatic stay imposed by section 362 of the Bankruptcy Code to the extent necessary to implement and effectuate the terms and provisions of the DIP Documents, and waiving any applicable stay (including under Bankruptcy Rule 6004) to provide for the immediate effectiveness of the Interim Order;

k. schedule a final hearing (the “Final Hearing”) to consider the relief requested in the DIP Motion and approving the form of notice with respect to the Final Hearing; and

l. grant related relief.


8 PHIL1 8943004v.1

Concise Statement Pursuant to Bankruptcy Rule 4001(b) and Local Rule 4001-2

I. Concise Statement of the Term DIP Facility.

14. The below chart contains a summary of the material terms of the proposed Term

DIP Loan, together with references to the applicable sections of the relevant source documents, as

required by Bankruptcy Rules 4001(b)(1)(B) and 4001(c)(1)(B) and Local Rule 4001-2.5

Bankruptcy Code Summary of Material Terms

Borrower Bankruptcy Rule 4001(c)(1)(B)

APC Automotive Technologies, LLC (f/k/a AP Exhaust Acquisition, LLC), a Delaware limited liability company, CWD Acquisition, LLC, a Delaware limited liability company, and CWD Holding Corp., a Delaware corporation.

See Term DIP Credit Agreement, Intro

Guarantors Bankruptcy Rule 4001(c)(1)(B)

Each of the Loan Parties identified as guarantors under the DIP Credit Agreement. See Term DIP Credit Agreement, §5.11

Term DIP Lenders Bankruptcy Rule 4001(c)(1)(B)

All Holders of Allowed Term A Claims (either directly or through one or more affiliated funds of financing vehicles) shall have an opportunity to fund their pro rata share of the Term DIP Commitments on a pro rata basis based on the outstanding principal amount of Term A Debt, excluding any accrued interest and fees, under the Prepetition First Lien Credit Agreement held by such Holders of Allowed Term A Claims as of the RSA Effective Date; provided that such Holders of Allowed Term A Claims (or their Affiliates, as applicable) shall have become a party to (i) the RSA on or before the RSA Effective Date and (ii) the DIP Commitment Letter (as defined in the RSA) within one (1) day of the RSA Effective Date. See DIP Term Sheet

Term Bankruptcy Rule 4001(b)(l)(B)(iii), 4001(c)(1)(B)

Local Rule 4001-2(a)(ii)

Termination Date. The earliest of (i) one hundred and twenty (120) days after the commencement of the Petition Date, (ii) the consummation of any sale of all or substantially all of the assets of the Debtors pursuant to section 363 of the Bankruptcy Code, (iii) the acceleration of the Term DIP Loans and the termination of the Term DIP Commitments upon the occurrence of an Event of Default (iv) the date that is thirty-seven (37) calendar days after the Petition Date, if the Final Order has not been entered on or before that date, and (v) the Plan Effective Date.

Closing Date. The date following satisfaction or waiver by the Term DIP Agent and the Required Lenders of the relevant conditions precedent to the closing of the Term DIP Facility,” which shall include entry by the Bankruptcy Court of the Interim Order authorizing and approving the Term DIP Facility and the transactions contemplated thereby

See Term DIP Credit Agreement, § 2.09; 4.01

5 Capitalized terms used in the following summary chart but not otherwise defined have the meanings ascribed to

them in the DIP Documents or the Interim Order, as applicable.


9 PHIL1 8943004v.1


Commitment Bankruptcy Rule 4001(c)(1)(B)


Commitment. A secured superpriority priming debtor-in-possession non-amortizing facility comprised of a (a) new money credit facility in an aggregate principal amount not to exceed $43.5 million the (“Term DIP Commitments”) and (b) an incremental $6.5 million of financing under the Term DIP Facility (such incremental commitments under the Term DIP Facility, the “Incremental Term DIP Commitments”). Incremental Term DIP Commitments may be provided by one or more Term DIP Lenders or such other third parties approved by the Requisite Term DIP Lenders. The commitment to fund the Incremental Term DIP Commitments must be executed (any such commitment, an “Incremental Commitment Letter”) by no later than the date that the Plan Supplement (as defined in the Chapter 11 Plan) is required to be filed in the Chapter 11 Cases (such date, the “Commitment Deadline”). To the extent necessary, the lenders providing the Incremental Term DIP Commitments shall purchase from the existing Term DIP Lenders an amount of Term DIP Commitments and, to the extent a Term DIP Commitment has already been funded, Term DIP Loans in order to provide that all Term DIP Commitments and Incremental Term DIP Commitments are made on a pro rata basis as if all such commitments were fully committed as of the Closing Date (as defined below). The Term DIP Commitments may be incurred as follows: (x) up to $30 million to be drawn in one drawing following entry of the Interim Order (provided that the initial draw shall occur not later than two business days following entry of the Interim Order) and (y) a draw equal to (i) the remaining undrawn Term DIP Commitments upon entry of the Final Order plus (ii) the Incremental Term DIP Commitments, in each case, subject to the terms and conditions described herein and the Loan Documents and in accordance with the Budget and the Orders. See Term DIP Credit Agreement § 2.01; 2.05

Conditions of Borrowing Bankruptcy Rule 4001(c)(1)(B)


Conditions Precedent to the Closing of the Term DIP Facility and Funding of Interim DIP Loans. The Term DIP Credit Agreement includes conditions to closing that are customary and appropriate for similar debtor-in-possession financings of this type.

Conditions Precedent to Borrowing of Final DIP Loans. The DIP Documents include conditions to the borrowings that are customary and appropriate for similar debtor-in-possession financings of this type, including no DOJ Adverse Action6 shall have occurred.

See Term DIP Credit Agreement § 4.01; 4.02

Interest Rates Bankruptcy Rule 4001(c)(1)(B)


The Term DIP Loans will bear interest at a rate per annum equal to 10.00 %, which amount shall be paid in cash in arrears on a monthly basis.

Default Interest: 2.00% per annum above then-applicable interest rate on overdue amounts.

See Term DIP Credit Agreement, § 2.13

Use of DIP Financing Facility and Cash Collateral

The Term DIP Loans shall be used to provide working capital, for general corporate purposes and to fund the Chapter 11 Cases, subject to the Budget (including Permitted Variances) and the terms and conditions of the Term DIP Credit Agreement and the DIP Orders, including, without limitation, to (i) provide working capital and for other general

6 “DOJ Adverse Action” means any action (including, without limitation, any changes, amendments, or other

modifications to the DOJ Action Settlement Term Sheet made by the Department of Justice) by the Department of Justice that materially deviates and is adverse to the Loan Parties or the Consenting Term Lenders (as defined in the RSA) (it being understood that any increase to the settlement amount or to the settlement payment structure shall constitute a material deviation) from the DOJ Action Settlement Term Sheet.


10 PHIL1 8943004v.1


Bankruptcy Rule 4001(b)(l)(B)(ii)


corporate purposes of the Debtors, (ii) fund the costs of the administration of the Chapter 11 Cases (including professional fees and expenses) and the consummation of the Debtors’ Chapter 11 Plan; and (iii) fund interest, fees, and other payments contemplated in respect of the Term DIP Facility.

See Term DIP Credit Agreement § 5.10

Adequate Protection Bankruptcy Rules 4001(b)(l)(B)(iv), 4001(c)(1)(B)(ii)

As adequate protection for the use of the collateral securing the Prepetition First Lien Obligations (the “Prepetition First Lien Collateral”), the Prepetition First Lien Agent, on behalf of and for the benefit of the Prepetition First Lien Lenders, and the Prepetition First Lien Lenders, shall receive, in each case subject to the Carve Out:

(i) current payment of all reasonable and documented (in summary form) out-of-pocket fees, costs and expenses of the Prepetition First Lien Agent (limited, in the case of counsel, to all reasonable and documented out-of-pocket fees, costs, disbursements and expenses of its outside counsel, A&P, and one local counsel shared with the Term DIP Agent and any successor counsel);

(ii) current payment of all reasonable and documented (in summary form) out-of-pocket fees, costs and expenses of the First Lien Steering Committee (limited, in the case of counsel, financial advisors and other outside professionals, to all reasonable and documented out-of-pocket fees, costs, disbursements and expenses of its outside counsel, K&S, and, to the extent necessary, one firm of local counsel engaged by the First Lien Steering Committee in connection with the Debtors’ Chapter 11 Cases, and FTI);

(iii) replacement liens to the extent of any postpetition diminution in value of the Prepetition First Lien Lenders’ interest in the Prepetition First Lien Collateral resulting from the use, sale or lease by the Debtors of such Prepetition First Lien Collateral and/or the imposition of the automatic stay, including replacement liens on all Unencumbered Property of the Debtors, which liens shall otherwise be junior only to, with respect to the DIP Term Priority Collateral; (1) Permitted Prior Liens; (2) the Term DIP Liens; and (3) the Prepetition Term Liens (the “Prepetition First Lien Lender Adequate Protection Liens”);

(iv) superpriority administrative expense claims to the extent of any postpetition diminution in value of the Prepetition First Lien Lenders’ interest in the Collateral resulting from the use, sale or lease by the Debtors of such Prepetition First Lien Collateral and/or the imposition of the automatic stay (the “Prepetition First Lien Lender Superpriority Claims”), which claims shall have priority over all administrative expense claims and unsecured claims against the Debtors or their estates, now existing or hereafter arising, of any kind or nature whatsoever, as and to the extent without limitation, of the kinds specified in or order pursuant to Sections 105, 326, 328, 330, 331, 503(a), 503(b), 507(a), 506(c) (subject to the entry of the Final Order), 507(b), 546(c), 546(d), 726, 1113 and 1114 of the Bankruptcy Code; provided, however, that the Prepetition First Lien Lender Superpriority Claims shall be (a) pari passu with Prepetition ABL Superpriority Claims, without otherwise impairing the lien priorities as set forth in this Interim Order subject to the Intercreditor Agreement, and (b) junior to the DIP Superpriority Claims; and


11 PHIL1 8943004v.1


(v) reasonable access to the Debtors’ books and records and such financial reports as are provided to the Term DIP Agent pursuant to provisions (i) through (iii) above of the Financial Reporting Requirements section.

(the foregoing clauses (i)-(iv), the “Adequate Protection Package”). See Interim Order ¶¶ 11-15

Repayment Features Local Rule 4001-2(a)(i)(E)

Voluntary Prepayments. Voluntary prepayments of the Term DIP Loans shall be permitted at any time, without premium or penalty.

Mandatory Repayments. The Term DIP Credit Agreement will contain customary mandatory prepayment events for financings of this type consistent with the Documentation Principles and on terms and conditions no worse to the Borrower than the Prepetition First Lien Credit Agreement (“Mandatory Prepayments”), subject to customary exceptions to be agreed. Mandatory Prepayments will result in a permanent reduction of the Term DIP Facility.


Budget Bankruptcy Rule 4001 (c)(1)(B)


Variance Covenant Bankruptcy Rule 4001(c)(l)(B)


Approved Budget. The Initial Budget is attached as Schedule 1 to Exhibit A. The Budget shall be updated every two weeks.

Variance Covenant. Actual aggregate disbursements shall not exceed the aggregate amount of disbursements in the Budget for the applicable period by more than the Permitted Variance, actual aggregate cash receipts (excluding Term DIP Proceeds that may be deemed a receipt) during the applicable period shall not be less than the aggregate amount of such cash receipts in the Budget for such period by more than the Permitted Variances, and actual net cash flows ) during the applicable period shall not deviate more than the aggregate amount of such net cash flows in the Budget for such period by more than the Permitted Variances, in each case, determined on a cumulative basis.

For purposes hereof, the term “Permitted Variances” will mean, for the applicable “Testing Periods” set forth in the table below, after giving effect to any Permitted Carryforward (as defined below): (i) all favorable variances and (ii) an unfavorable variance of no more than the Applicable Percentage (set forth in the table below) for each of actual receipts, disbursements and net cash flow as compared to the budgeted receipts, disbursements and net cash flow, respectively, set forth in the Budget with respect to the applicable Testing Period; provided, that any disbursements in such Testing Period made from proceeds of favorable variances with respect to receipts in such Testing Period shall not be counted as disbursements for purposes of calculating unfavorable variances; and provided further that (x) receipts shall not be tested prior to the first three full weeks following the Petition Date, (y) the calculation of net cash flow for any Testing Period shall be with respect to operating net cash flow and net cash flow shall not be tested prior to the first three full weeks following the Petition Date and shall exclude restructuring-related costs, and (y) the calculation of disbursements shall not include disbursements on account of the Debtors’ payment of professional fees in accordance with the Budget. The Permitted Variance with respect to each Testing Period shall be determined and reported to the Term DIP Agent and the Term DIP Lenders not later than Friday immediately following each such Testing Period weekly in accordance with clause (v) of “Financial Reporting Requirements”. Additional variances, if any, from the Budget, and any proposed changes to the Budget, shall be subject to the approval of the Term DIP Agent at the direction of the Requisite Term DIP Lenders. “Permitted Carryforward” is the amount of any projected disbursements, receipts or net cash flow set forth in the Budget for a Testing Period not


12 PHIL1 8943004v.1


expended in such Testing Period, which amounts shall carry forward into the next succeeding Testing Period and applied to increase the applicable amount thereof.

Testing Period (from Petition Date)

Percentage (for disbursements)

Percentage (for receipts)

Percentage (for cash flow)

Week 1 N/A N/A N/A Through Week 2 (cumulative)

20% N/A N/A

Through Week 3 (cumulative)

15% 32.5% 35%

Through Week 4 (cumulative) Through Week 5 (cumulative)

15% 15%

32.5% 25%

35% 30%


15% 20% 30%


15% 15% 30%

Thereafter 15% 15% 25%


Events of Default Bankruptcy Rule 4001(c)(l)(B)


Events of Default. Usual and customary for financings of this type.

See Term DIP Credit Agreement, 7.01

Indemnification Bankruptcy Rule 4001(c)(1)(B)(ix)

Indemnification. The DIP Documents and Interim Order contain indemnification provisions ordinary and customary for DIP financings of this type by the Borrower and each Guarantor in favor of the Term DIP Agent, each of the DIP Lenders, and each of their respective affiliates and the respective officers, directors, employees, agents, advisors, attorneys and representatives of each of them subject to customary carve-outs.

See Term DIP Credit Agreement §9.03

Entities with Interests in Cash Collateral Bankruptcy Rule 4001(b)(l)(B)(i)

The following secured parties have an interest in Cash Collateral:

DIP Secured Parties

Prepetition ABL Parties

Prepetition Term Parties

See Interim Order ¶¶ G, M

Carve Out Bankruptcy Rule 4001(c)(1)(B)

The Interim Order provides a “Carve Out” of certain statutory fees, allowed professional fees of the Debtors, and say official committee of unsecured creditors appointed under section 1102 of the Bankruptcy Code appointed in the Chapter 11 Cases pursuant to


13 PHIL1 8943004v.1


Local Rule 4001-2(a)(i)(f)

section 1103 of the Bankruptcy Code, including a Post-Carve Out Trigger Notice Cap, all as detailed in the Interim Order

See Interim Order ¶ 33

Fees Bankruptcy Rule 4001(c)(1)(B)


Fees. The Borrower agrees to pay to the following fees:

Term DIP Closing Fee: A combined Term DIP Facility and Exit Term Loan Facility closing fee equal to 5.00% of the aggregate principal amount of all Term DIP Commitments (including, for the avoidance of doubt, any Incremental Term DIP Commitments) for the ratable benefit of the Term DIP Lenders. Subject to the entry of the Interim DIP Order, the closing fee shall be earned, paid-in-kind and capitalized and applied to the aggregate principal amount of the Term DIP Facility with respect to the amount of any DIP Term Commitments that are funded on the date of any such funding;

Term DIP Commitment Fee: A combined Term DIP Facility and Exit Term Loan Facility commitment fee equal to (i) thirty-five percent (35%) of the equity interests in the reorganized Debtors or (ii) in the event the Term DIP Facility is terminated for any reason other than the occurrence of the Plan Effective Date, $5,000,000 paid in cash. Subject to the entry of the Interim DIP Order, the commitment fee shall be earned upon the entry of the Interim DIP Order and paid on the Term DIP Termination Date

See Term DIP Fee Letter

506(c) Waiver Bankruptcy Rule 4001(c)(l)(B)(x)

Local Rule 4001-2(a)(i)(C)

Section 552(b) Bankruptcy Rule 4001(c)(l)(B)

Local Rule 4001-2(a)(i)(h)

Subject to the entry of the Final Order, no costs or expenses of administration which have been or may be incurred in the Chapter 11 Cases or the preservation, protection, or enhancement of realization by the DIP Secured Parties upon the DIP Collateral or Prepetition Lenders upon the Prepetition Collateral, as applicable, at any time shall be charged against the DIP Agent, DIP Lenders, or the Prepetition Secured Parties, or any of their respective claims, the DIP Collateral, or the Prepetition Collateral pursuant to sections 105 or 506(c) of the Bankruptcy Code, or otherwise, without the prior written consent, as applicable, of the DIP Agents (acting at the direction of the applicable Required DIP Lenders) or the Prepetition Term Agent (acting at the direction of the Required Lenders) or the Prepetition ABL Agent (acting at the direction of the Required Lenders), as applicable, and no such consent shall be implied from any other action, inaction, or acquiescence by any such agents or lenders. Subject to the entry of a Final Order, the DIP Agents, DIP Lenders, and Prepetition Secured Parties shall not be subject to the equitable doctrine of “marshaling” or any other similar doctrine with respect to any of the DIP Collateral or the Prepetition Collateral, as the case may be, and proceeds shall be received and applied pursuant to this Interim Order and the DIP Documents notwithstanding any other agreement or provision to the contrary. Subject to the entry of a Final Order, the Prepetition Secured Parties shall each be entitled to all of the rights and benefits of section 552(b) of the Bankruptcy Code, and the “equities of the case” exception under section 552(b) of the Bankruptcy Code shall not apply to the Prepetition Secured Parties, with respect to proceeds, product, offspring or profits of any of the Prepetition Collateral

See Interim Order ¶38-40


14 PHIL1 8943004v.1


Liens on Avoidance Actions Local Rule 4001-2(a)(i)(D)

Avoidance Actions and proceeds thereof shall be subject to liens upon entry of the Final Order


Stipulations to Prepetition Liens and Claims Bankruptcy Rule 4001(c)(1)(B)(iii)

Local Rule 4001-2(a)(i)(B)

After consultation with their attorneys and financial advisors, and without prejudice to the rights of parties-in-interest, the Debtors, on their behalf and on behalf of their estates, admit, stipulate, acknowledge, and agree immediately upon entry of the Interim Order, to certain stipulations regarding the validity and extent of the Prepetition ABL Lenders and Prepetition Loan Lenders’ claims and liens. See Interim Order ¶ F

Liens and Priorities Bankruptcy Rule 4001(c)(1)(B)(i)

Local Rule 4001-2(a)(i)(D) and (G), 4001-2(a)(4)

As security for the Term DIP Obligations, effective and perfected upon the date of the Interim Order and without the necessity of the execution, recordation or filing by the Term DIP Loan Parties of mortgages, security agreements, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Term DIP Agent of, or over, any DIP Collateral, security interests and liens are granted by the Interim Order. See Interim Order ¶¶ 5,6

Milestones Bankruptcy Rule 4001(c)(1)(B) Local Rule 4001-2(a)(ii)

The Term DIP Credit Agreement will include certain milestones (the “Milestones”) related to the Chapter 11 Cases, including the following:

The Debtors shall have commenced solicitation on the Chapter 11 Plan by 11:59 pm (ET) on May 31, 2020 (commencing solicitation by email being sufficient; provided that solicitation materials are sent by mail on June 1, 2020).

Promptly following the RSA Effective Date and, in any event, no later than 11:59 pm (ET) on June 3, 2020, the Company Parties shall file the Chapter 11 Cases (for the avoidance of doubt, commencement of the Chapter 11 Cases remains subject to approval of the board of directors or other governing bodies of the Company Parties).

The Debtors’ filing with the Bankruptcy Court, on or within twenty-four (24) hours of the Petition Date, the Chapter 11 Plan, which shall be in form and substance reasonably acceptable to the Requisite Term DIP Lenders and, solely with respect to terms and provisions affecting the rights, protections, duties or obligations of the Term DIP Agent or the Prepetition First Lien Agent, the Term DIP Agent or the Prepetition First Lien Agent, as applicable, and for which the Debtors shall have solicited and obtained the requisite consent to the Chapter 11 Plan by the Requisite Consenting Term A Lenders or requested and obtained authority from the Bankruptcy Court to complete solicitation within twenty (20) days from the Petition Date.

The Debtors’ filing with the Bankruptcy Court, on or within twenty-four (24) hours of the Petition Date, of a disclosure statement relating to the Chapter 11 Plan, and all related schedules, supplements, exhibits and orders (as applicable), in form and substance reasonably satisfactory to the Term DIP Agent at the direction of the Requisite Term DIP Lenders (the “Disclosure Statement”).

The Bankruptcy Court’s entry of an interim order (the “Interim DIP Order”)


15 PHIL1 8943004v.1


approving (i) the ABL DIP and (ii) the Term DIP Facility (including the Term DIP Commitments, all documents and lender fees related thereto, and the payment of the fees and expenses of the First Lien Steering Committee’s and Prepetition First Lien Agent’s advisors), in form and substance acceptable to the Requisite Term DIP Lenders on or before three (3) Business Days following the Petition Date.

The Debtors shall have received an Incremental Commitment Letter by the Commitment Deadline.

The Bankruptcy Court shall hold the combined hearing on the Chapter 11 Plan and Disclosure Statement on or before thirty-seven (37) calendar days following the Petition Date.

The Bankruptcy Court’s entry of the Final DIP Order, in form and substance reasonably acceptable to the Requisite Term DIP Lenders on or before thirty-seven (37) calendar days following the Petition Date.

The Bankruptcy Court’s entry of an order, in form and substance reasonably satisfactory to the Term DIP Agent at the direction of the Requisite Term DIP Lenders, approving the Disclosure Statement (the “Disclosure Statement Order”), on or before forty (40) calendar days following the Petition Date.

The Bankruptcy Court’s entry of an order, in form and substance reasonably satisfactory to the Term DIP Agent at the direction of the Requisite Term DIP Lenders and, solely with respect to terms and provisions affecting the rights, protections, duties or obligations of the Term DIP Agent or the Prepetition First Lien Agent, the Term DIP Agent or the Prepetition First Lien Agent, as applicable, confirming the Chapter 11 Plan (the “Confirmation Order”) on or before forty (40) calendar days following the Petition Date.

The effective date (the “Plan Effective Date”) of the Chapter 11 Plan having occurred not later than fifty-four (54) calendar days following the Petition Date.


Challenge Period

Bankruptcy Rule 4001(c)(l)(B)


Challenge Period. no later than (i) 60 calendar days after the appointment of any Committee, (ii) 75 calendar days after entry of the Interim Order, or (iii) any such later date as has been agreed to, in writing, by the Prepetition Agents.


Waiver/Modification of the Automatic Stay

Bankruptcy Rule 4001(c)(1)(B)(iv)

The automatic stay imposed under section 362(a)(2) of the Bankruptcy Code is hereby modified as necessary to effectuate all of the terms and provisions of this Interim Order and the DIP Documents, including, without limitation, to: (a) permit the Debtors to grant the DIP Liens, Adequate Protection Liens, DIP Superpriority Claims, and Adequate Protection Superpriority Claims; (b) permit the Debtors to perform such acts as the DIP Agents, DIP Lenders, Prepetition ABL Agent, or the Prepetition Term Agent each may reasonably request to assure the perfection and priority of the liens granted therein; (c) permit the Debtors to incur all liabilities and obligations to the DIP Agents, DIP Lenders, and Prepetition Secured Parties under the DIP Documents, the DIP Facilities and this Interim Order; and (d) authorize the Debtors to make, and the DIP Agents, the DIP Lenders and the Prepetition Secured Parties to retain and apply, payments made in accordance with the terms of this Interim Order, the DIP Documents and the Prepetition Documents, as applicable.


16 PHIL1 8943004v.1



II. Concise Statement Regarding the ABL DIP Facility.

15. The below chart contains a summary of the material terms of the proposed DIP

Facility, together with references to the applicable sections of the relevant source documents, as

required by Bankruptcy Rules 4001(b)(1)(B) and 4001(c)(1)(B) and Local Rule 4001-2.7


Borrowers Bankruptcy Rule 4001(c)(1)(B)

APC Automotive Technologies, LLC, a Delaware limited liability company, CWD Acquisition, LLC, a Delaware limited liability company, and CWD Holding Corp., a Delaware corporation

See ABL DIP Credit Agreement, Recitals

Guarantors Bankruptcy Rule 4001(c)(1)(B)

APC Automotive Technologies Intermediate Holdings, LLC; APC Automotive Technologies, LLC; AP Emissions Technologies, LLC; Aristo, LLC; AirTek, LLC; AP Exhaust Products DISC, Inc.; Eastern Manufacturing, LLC; CWD Acquisition, LLC, CWD Holding Corp., CWD Intermediate Holding Corp.; CWD, LLC; Qualis Enterprises, Inc.; Qualis Automotive, LLC See ABL DIP Credit Agreement, §5.11; Debtor-In-Possession ABL Guaranty

DIP ABL Agent Bankruptcy Rule 4001(c)(1)(B)

Wells Fargo Bank, N.A.

See ABL DIP Credit Agreement, Recitals.

DIP ABL Lender Bankruptcy Rule 4001(c)(1)(B)

Wells Fargo Bank, N.A.

See ABL DIP Credit Agreement, Recitals.

Reporting Information Bankruptcy Rule 4001(c)(1)(B)

The ABL DIP Facility includes standard and customary conditions that require APC Automotive Technologies Intermediate Holdings, LLC, as Holdco, to provide periodic updates to the Budget and variance reports to the ABL DIP Agent and its respective professionals regarding the Approved Budget, the status of these Chapter 11 Cases, and notices and reports regarding certain other matters. The failure of Holdco to comply with certain reporting obligations may result in an Event of Default that may permit the DIP ABL Agent to exercise remedies against the Borrowers, including terminating the ABL DIP Facility.

7 The summaries contained in this motion are qualified in their entirety by the provisions of the documents

referenced. To the extent anything in this motion is inconsistent with such documents, the terms of the applicable documents shall control. Capitalized terms used in the following summary chart but not otherwise defined have the meanings ascribed to them in the DIP Documents or the Interim Order, as applicable.


17 PHIL1 8943004v.1


See ABL DIP Credit Agreement, Article 5

Term Bankruptcy Rule 4001(b)(l)(B)(iii), 4001(c)(1)(B)


The earliest to occur of (a) 120 days after the Petition Date, (b) the consummation of any sale of all or substantially all of the assets of the Debtors pursuant to section 363 of the Bankruptcy Code, (c) if the Final Order has not been entered, the date that is thirty-seven (37) calendar days after the Petition Date, (d) the acceleration of the loans under the ABL DIP Facility and the termination of the ABL DIP Commitments pursuant to an Event of Default, and (e) the Plan Effective Date.

See ABL DIP Credit Agreement, “DIP Termination Date” and §§ 2.09

Commitment Bankruptcy Rule 4001(c)(1)(B)


Upon entry of the Interim Order: $90,000,000.

See ABL DIP Credit Agreement, Schedule 2.01

Conditions of Borrowing Bankruptcy Rule 4001(c)(1)(B)


Conditions to Closing. The DIP Documents for the ABL DIP Facility include conditions to closing that are customary and appropriate for similar debtor-in-possession financings of this type. See ABL DIP Credit Agreement § 4.01

Interest Rates Bankruptcy Rule 4001(c)(1)(B)


Loans shall bear interest at the sum of the Alternate Base Rate plus 3.00% per annum.

See ABL DIP Credit Agreement § 2.13

Use of DIP Financing Facility and Cash Collateral Bankruptcy Rule 4001(b)(l)(B)(ii)


The proceeds of the ABL DIP Facility shall be used to provide working capital, for general corporate purposes and to fund the Cases, subject to the Budget (including Permitted Variances) and the terms and conditions of the ABL DIP Credit Agreement and the DIP Orders, including, without limitation, to (i) provide working capital and for other general corporate purposes of the Debtors; (ii) fund the costs of the administration of the Cases (including professional fees and expenses) and the consummation of the Plan; and (iii) fund interest, fees, and other payments contemplated in respect of the ABL DIP Facility.


Adequate Protection Bankruptcy Rules 4001(b)(l)(B)(iv), 4001(c)(1)(B)(ii)

As adequate protection for the use of the collateral securing the Prepetition ABL Obligations (the “Prepetition ABL Collateral”), the Prepetition ABL Agent, on behalf of and for the benefit of the Prepetition ABL Parties, shall receive, in each case subject to the U.S. Trustee Carve Out:

(i) replacement liens to the extent of any postpetition diminution in value of the Prepetition ABL Parties’ interest in the Prepetition Collateral resulting from the use, sale or lease by the Debtors of such Prepetition First Lien Collateral and/or the imposition of the automatic stay, including replacement liens on all Unencumbered Property of the Debtors, which liens shall otherwise be junior only to: (a) with respect to the DIP ABL Priority Collateral (1) Permitted Prior Liens; (2) the ABL DIP Liens; and (3) the Prepetition ABL Liens; and (b) with respect


18 PHIL1 8943004v.1


to the DIP Term Priority Collateral (1) Permitted Prior Liens; (2) the Term DIP Liens; (3) the Prepetition Term Liens; (4) the Prepetition Term Loan Adequate Protection Liens; (5) the ABL DIP Liens; and (6) the Prepetition ABL Liens (the “Prepetition ABL Adequate Protection Liens”);

(ii) superpriority administrative expense claims to the extent of any postpetition diminution in value of the Prepetition ABL Parties’ interest in the Prepetition Collateral (the “Prepetition ABL Superpriority Claims”), which claims shall have priority over all administrative expense claims and unsecured claims against the Debtors or their estates, now existing or hereafter arising, of any kind or nature whatsoever, as and to the extent without limitation, of the kinds specified in or ordered pursuant to Sections 105, 326, 328, 330, 331, 503(a), 503(b), 507(a), 506(c) (subject to the entry of the Final Order), 507(b), 546(c), 546(d), 726, 1113 and 1114 of the Bankruptcy Code; provided, however, that the Adequate Protection ABL Superpriority Claims shall be (a) pari passu with the Prepetition Term Loan Superpriority Claims, without otherwise impairing the lien priorities as set forth in the Interim Order subject to the Intercreditor Agreement, and (b) junior to the DIP Superpriority Claims.

(iii) current payment of all reasonable and documented (in summary form) accrued and unpaid out-of-pocket fees, costs, disbursements and expenses, of the Prepetition ABL Agent and the Prepetition ABL Lenders (the “Adequate Protection Payments”); and

(iv) reasonable access to the Debtors’ books and records and such financial reports as are provided to the ABL DIP Agent pursuant to provisions (i) through (iii) above of the Financial Reporting Requirements section.

See Interim Order ¶¶ 11-15

Roll-Up Local Rule 4001-2(a)(i)(E)

Upon entry of the Interim Order, the DIP Parties are authorized to (x) perform the transactions and undertakings contemplated thereby, which are thereby approved in all respects and (y) to remit the Debtors’ prepetition and postpetition accounts receivable and all other proceeds of the DIP ABL Priority Collateral for application to the outstanding principal balance of the Prepetition ABL Obligations , and use the proceeds of the DIP ABL Financing to roll-up and refinance the Prepetition ABL Obligations, including interest and fees through the date of repayment (the “ABL Roll-Up”, and the amounts so rolled-up and refinanced, the “ABL Roll-Up Loans”), which roll-up and refinancing shall be indefeasible upon the occurrence of discharge and shall be entitled to all the priorities, privileges, rights, and other benefits afforded to the other DIP Obligations under the Interim Order, the Final Order and the DIP Documents See Interim Order ¶ J

Budget Bankruptcy Rule 4001 (c)(1)(B)


Approved Budget. The Initial Budget is attached as Schedule 1 to Exhibit A.

See ABL DIP Credit Agreement “Initial Budget”

Events of Default Bankruptcy Rule 4001(c)(l)(B)

Usual and customary for financings of this type.



19 PHIL1 8943004v.1



Indemnification Bankruptcy Rule 4001(c)(1)(B)(ix)

The DIP Documents and Interim Order contain indemnification provisions ordinary and customary for DIP financings of this type by the Borrower and each Guarantor in favor of the ABL DIP Agent, each of the ABL DIP Lenders, and each of their respective affiliates and the respective officers, directors, employees, controlling persons, agents, advisors, attorneys and representatives of each of them subject to customary carve-outs.


Entities with Interests in Cash Collateral Bankruptcy Rule 4001(b)(l)(B)(i)

As of the Petition Date, the following secured parties have an interest in Cash Collateral (subject to the priorities set forth in the Intercreditor Agreements and the DIP Orders):

DIP Secured Parties

Prepetition ABL Parties

Prepetition Term Parties

See Interim Order ¶¶ G, M

Carve Out Bankruptcy Rule 4001(c)(1)(B)

Local Rule 4001-2(a)(i)(F)

The Interim Order provides a “U.S. Trustee Carve Out” for certain statutory fees as detailed in the Interim Order. See Interim Order ¶ 33

Fees Bankruptcy Rule 4001(c)(1)(B)


ABL DIP Closing Fee: Borrowers hereby agree to pay to ABL DIP Agent a closing fee in the amount of $225,000, which fee shall be for its sole and separate account and not the account of any ABL DIP Lender, and shall be fully earned and due and payable in full on the Closing Date; and

ABL DIP Termination Fee: On the DIP Termination Date, Borrowers shall pay to ABL DIP Agent a termination fee in the amount of $1,350,000 (the “Termination Fee”), which fee shall be for its sole and separate account and not the account of any DIP ABL Lender, and shall be fully earned and due and payable in full on the DIP Termination Date; provided, however, that if the ABL DIP Loan Parties enter into an exit credit facility contemporaneously with the DIP Termination Date with respect to which the ABL DIP Agent is the administrative agent and collateral agent and on terms and conditions acceptable to the ABL DIP Agent pursuant to which the ABL DIP Loan Parties pay the administrative agent an arrangement fee or similar fee in an amount equal to or greater than the Termination Fee, then the Termination Fee shall be waived.

See the Fee Letter (as defined in the ABL DIP Credit Agreement)

506(c) Waiver Bankruptcy Rule 4001(c)(l)(B)(x)

Local Rule 4001-2(a)(i)(C)

Subject to the entry of a Final Order, no costs or expenses of administration which have been or may be incurred in the Chapter 11 Cases or the preservation, protection, or enhancement of realization by the DIP Secured Parties upon the DIP Collateral or Prepetition Lenders upon the Prepetition Collateral, as applicable, at any time shall be charged against the DIP Agent, DIP Lenders, or the Prepetition Secured Parties, or any of their respective claims, the DIP Collateral, or the Prepetition Collateral pursuant to sections 105 or 506(c) of the Bankruptcy Code, or otherwise, without the prior written


20 PHIL1 8943004v.1


Section 552(b) Bankruptcy Rule 4001(c)(l)(B)

Local Rule 4001-2(a)(i)(H)

consent, as applicable, of the DIP Agents (acting at the direction of the applicable Required DIP Lenders) or the Prepetition Term Agent (acting at the direction of the Required Lenders) or the Prepetition ABL Agent (acting at the direction of the Required Lenders), as applicable, and no such consent shall be implied from any other action, inaction, or acquiescence by any such agents or lenders. Subject to the entry of a Final Order, the DIP Agents, DIP Lenders, and Prepetition Secured Parties shall not be subject to the equitable doctrine of “marshaling” or any other similar doctrine with respect to any of the DIP Collateral or the Prepetition Collateral, as the case may be, and proceeds shall be received and applied pursuant to this Interim Order and the DIP Documents notwithstanding any other agreement or provision to the contrary. Subject to the entry of a Final Order, the Prepetition Secured Parties shall each be entitled to all of the rights and benefits of section 552(b) of the Bankruptcy Code, and the “equities of the case” exception under section 552(b) of the Bankruptcy Code shall not apply to the Prepetition Secured Parties, with respect to proceeds, product, offspring or profits of any of the Prepetition Collateral.

See Interim Order ¶¶ 38-40

Liens on Avoidance Actions Local Rule 4001-2(a)(i)(D)

Avoidance Proceeds shall be subject to liens upon entry of the Final Order


Stipulations to Prepetition Liens and Claims Bankruptcy Rule 4001(c)(1)(B)(iii)


After consultation with their attorneys and financial advisors, and without prejudice to the rights of parties-in-interest, the Debtors, on their behalf and on behalf of their estates, admit, stipulate, acknowledge, and agree immediately upon entry of the Interim Order, to certain stipulations regarding the validity and extent of the Prepetition ABL Lenders and Prepetition Loan Lenders’ claims and liens. See Interim Order ¶ F

Liens and Priorities

Bankruptcy Rule 4001(c)(1)(B)(i)

Local Rule 4001-2(a)(i)(D) and (G), 4001-2(a)(4)

As security for the ABL DIP Obligations, effective and perfected upon the date of the Interim Order and without the necessity of the execution, recordation or filing by the ABL DIP Loan Parties of mortgages, security agreements, control agreements, pledge agreements, financing statements or other similar documents, any notation of certificates of title for a titled good or the possession or control by the DIP ABL Agent of, or over, any DIP Collateral (including for the avoidance of doubt any DIP ABL Collateral as defined in the ABL DIP Credit Agreement), security interests and liens are granted by the Interim Order. See Interim Order ¶¶ 5,6

Milestones Bankruptcy Rule 4001(c)(1)(B) Local Rule 4001-2(a)(ii)

The Borrowers shall comply with the following milestones in connection with the Chapter 11 Cases:

The Debtors shall have commenced solicitation on the Plan by 11:59 pm (ET) on May 31, 2020 (commencing solicitation by email being sufficient; provided, that solicitation materials are sent by mail on June 1, 2020).

Promptly following the date the RSA is effective and, in any event, no later than 11:59 pm (ET) on June 3, 2020, the Debtors shall file the Cases (for the avoidance


21 PHIL1 8943004v.1


of doubt, commencement of the Cases remains subject to approval of the board of directors or other governing bodies of the Debtors)

The Debtors’ filing with the Bankruptcy Court, on or within twenty-four (24) hours of the Petition Date, the Plan, which shall be in form and substance reasonably acceptable to the ABL DIP Lenders comprising Required Lenders (as defined under the ABL DIP Credit Agreement) (the “ABL Required Lenders”), and, solely with respect to terms and provisions affecting the rights, protections, duties or obligations of the ABL DIP Agent or the Prepetition Term Agent, as applicable, and for which the Debtors shall have solicited and obtained the requisite consent to the Plan or requested and obtained authority from the Bankruptcy Court to complete solicitation within twenty (20) days from the Petition Date.

The Debtors’ filing with the Bankruptcy Court, on or within twenty-four (24) hours of the Petition Date, of a disclosure statement relating to the Plan, and all related schedules, supplements, exhibits and orders (as applicable), in form and substance reasonably satisfactory to the ABL DIP Agent at the direction of the ABL Required Lenders (the “ABL Disclosure Statement”).

The Bankruptcy Court shall have entered the (i) Interim Order and (ii) an order approving and authorizing the Term DIP Facility, in each case, in form and substance reasonably acceptable to the Required Lenders, in each case on or before three (3) Business Days following the Petition Date.

The Debtors shall have received a Term DIP Final DIP Loan Commitment Letter from one or more lenders (or such other third parties after approval by the ABL Required Lenders) by the Term DIP Final DIP Loan Commitment Letter Deadline.

The Bankruptcy Court shall hold the combined hearing on the Plan and ABL Disclosure Statement on or before thirty-seven (37) calendar days following the Petition Date.

The Bankruptcy Court shall have entered the Final Order on or before thirty-seven (37) calendar days following the Petition Date.

The Bankruptcy Court’s entry of an order, in form and substance reasonably satisfactory to the ABL DIP Agent at the direction of the ABL Required Lenders, approving the ABL Disclosure Statement, on or before forty (40) calendar days following the Petition Date.

The Bankruptcy Court’s entry of an order, in form and substance reasonably satisfactory to the ABL DIP Agent at the direction of the ABL Required Lenders and, solely with respect to terms and provisions affecting the rights, protections, duties or obligations of the DIP Agents or the Prepetition Term Agents, as applicable, confirming the Bankruptcy Plan on or before forty (40) calendar days following the Petition Date.

The Plan Effective Date having occurred not later than fifty-four (54) calendar days following the Petition Date.



22 PHIL1 8943004v.1


Challenge Period

Bankruptcy Rule 4001(c)(l)(B)


Challenge Period. no later than (i) 60 calendar days after the appointment of any Committee, (ii) 75 calendar days after entry of the Interim Order, or (iii) any such later date as has been agreed to, in writing, by the Prepetition Agents.


Waiver/Modification of the Automatic Stay

Bankruptcy Rule 4001(c)(1)(B)(iv)

The automatic stay imposed under section 362(a)(2) of the Bankruptcy Code is hereby modified as necessary to effectuate all of the terms and provisions of this Interim Order and the DIP Documents, including, without limitation, to: (a) permit the Debtors to grant the DIP Liens, Adequate Protection Liens, DIP Superpriority Claims, and Adequate Protection Superpriority Claims; (b) permit the Debtors to perform such acts as the DIP Agents, DIP Lenders, Prepetition ABL Agent, or the Prepetition Term Agent each may reasonably request to assure the perfection and priority of the liens granted herein; (c) permit the Debtors to incur all liabilities and obligations to the DIP Agents, DIP Lenders, and Prepetition Secured Parties under the DIP Documents, the DIP Facilities and this Interim Order; and (d) authorize the Debtors to make, and the DIP Agents, the DIP Lenders and the Prepetition Secured Parties to retain and apply, payments made in accordance with the terms of this Interim Order, the DIP Documents and the Prepetition Documents, as applicable.



23 PHIL1 8943004v.1

The Debtors’ Prepetition Capital Structure

16. As of the Petition Date, the Debtors’ capital structure consists of outstanding

funded-debt obligations in the aggregate principal amount of approximately $430.7 million. The

following table summarizes the Debtors’ funded debt obligations as of the Petition Date:

A. The ABL Facility.

17. In connection with the 2017 Merger, on May 10, 2017, various Debtor entities

entered into that certain credit agreement (together with any security agreement each as amended,

restated, amended and restated, modified, replaced or otherwise supplemented from time to time,

the “ABL Credit Agreement”) governing the ABL credit facility, by and among APC, CWD

Acquisition, LLC, and CWD, as guarantor and borrowers thereunder, certain of its subsidiaries, as

guarantors (collectively, the “ABL Loan Parties”), the lenders thereof (the “ABL Lenders”),8 and

Wells, as administrative agent and collateral agent. Subsequently, in connection with the 2019

restructuring (the “2019 Out-of-Court Restructuring”), the ABL Credit Agreement was amended

on February 28, 2019 (the “First ABL Amendment”) to increase the facility from $75 million to

$90 million. The ABL Credit Agreement was further amended on April 29, 2020 (the “Second

8 Wells Fargo holds 100% percent of the outstanding commitments under the ABL Facility.

Funded Debt Maturity Interest Rates Principal Amount Outstanding

ABL Facility February 28, 2024 LIBOR + 1.5 - 2.0% based on Excess Availability

$82,764,123.28

First Lien Credit Facility

Term A: May 10, 2025 Term B: May 10, 2024

Term A-1: L + 5.0% Term A-2: L + 5.0% Term A-3: During PIK period (June 2021), L+ 6.0%; after PIK period, L + 5.0% Term B: L + 5.0%

Term A-1: $25,471,316.33 Term: A-2: $157,922,161.24 Term A-3: $25,975,256.51 Term B: $145,091,327.62 Total: $354,460,061

Total: $437,224,185.28


24 PHIL1 8943004v.1

ABL Amendment,” and together with the ABL Credit Agreement and the First ABL Amendment,

the “ABL Facility”) to extend the deadline to deliver the required annual audit.

18. As of the Petition Date, the Debtors were jointly and severally liable to the ABL

Agent and the ABL Lenders for all obligations under the ABL Facility, and other obligations

described therein and payable thereunder in the aggregate principal amount of approximately $82.8

million. Pursuant to the ABL Facility arrangement, the ABL Lenders extended credit in the form

of revolving loans, with a $90 million line cap. The ABL Facility matures on February 28, 2024

and requires quarterly interest payments. Pursuant to the Plan and Restructuring Support

Agreement, the ABL Facility will roll into, or be refinanced by, the ABL DIP Facility and upon

the Effective Date, the ABL Exit Facility.

19. In connection with the 2017 Merger, on May 10, 2017, the Debtors entered into

that certain first lien credit agreement (as amended, restated, amended and restated, modified,

replaced or otherwise supplemented, the “Term Credit Agreement”) by and among APC, CWD

Acquisition, LLC, and CWD, as borrowers thereunder, certain of its subsidiaries, as guarantors

(collectively, the “Term Loan Parties”), the lenders from time to time party thereto (collectively,

the “Term Loan Lenders”). Subsequently, in connection with the 2019 Out-of-Court

Restructuring, the Term Credit Agreement was amended on November 2, 2019 (the “First

Amendment,” and together with the Term Credit Agreement, the “Term Credit Facility”).

Wilmington Trust, National Association (the “Term Agent”) is the successor administrative agent

and collateral agent.

20. Under the First Amendment, the following term loans were extended to the

borrowers: (a) term A-1 new money loans in the amount of $25 million; (b) term A-2 loans in the

amount of $155 million; (c) term A-3 new money loans in the amount of $25 million (collectively,


25 PHIL1 8943004v.1

with the term A-1 loans and the term A-2 loans, the “Term A Loans,” and the holders of such, the

“Term A Lenders”); and (d) a term B loans in the approximate amount of $142.9 million

(the “Term B Loans,” and the holders of such, the “Term B Lenders”). Pursuant to the Term Credit

Agreement waterfall, the Term B Loans are subordinate to the Term A Loans. As of the Petition

Date, the Debtors were jointly and severally liable to the Term Agent and the Term Loan Lenders

for all obligations under the Term Credit Facility, and other obligations described therein and

payable thereunder in the aggregate principal amount of approximately $348 million. The Term

A Loans and Term B Loans were set to mature on May 10, 2025 and May 10, 2024, respectively.

21. The obligations incurred by the Debtors under the ABL Credit Agreement and the

Term Credit Agreement and the other related loan documents are secured by liens on substantially

all of the assets of the Debtors, with priority as set forth in the Intercreditor Agreement. Pursuant

to the Intercreditor Agreement, the obligations under the ABL Credit Agreement are secured by a

first priority lien on, among other things, the Debtors’ accounts (other than certain accounts that

are identifiable proceeds of first priority collateral of the Term Loan Lenders), inventory, deposit

accounts and security accounts, and a second priority lien on all other property of the Debtors that

constitutes Collateral. The obligations under the Term Credit Agreement are secured by a first

priority lien on all property constituting Collateral in which the ABL Lenders do not hold a first

priority lien on, and a second priority lien on all other property constituting Collateral.

The Proposed DIP Facilities

I. The Debtors’ Need for Access to Financing and Use of Cash Collateral.

22. The Debtors require immediate access to liquidity to ensure that they are able to

continue operating during these Chapter 11 Cases and preserve the value of their estates for the

benefit of all parties in interest. Without immediate postpetition financing and access to Cash

Collateral, the Debtors will lack the necessary funding to meet working capital and business


26 PHIL1 8943004v.1

operating needs to ensure a reorganization of the Debtors and to administer these Chapter 11 Cases,

causing immediate and irreparable harm to the value of the Debtors’ estates to the detriment of all

stakeholders. Moreover, sufficient post-petition financing is necessary to send a strong market

signal that these Chapter 11 Cases are well-funded.

23. The Debtors also believe that a seamless transition into chapter 11 and the ability

to continue operations uninterrupted is imperative for them to preserve their market share, the

reputation of their businesses, and the loyalty and goodwill of their customers, suppliers, and

employees. Specifically, commencing these Chapter 11 Cases with adequate financing, coupled

with the Debtors’ access to the DIP Facilities, should communicate to such stakeholders that the

Debtors will be able to continue meeting the needs of their customers and managing their

businesses in a manner as close to the ordinary course as possible.

24. Furthermore, absent an ability to demonstrate that the Debtors have the means

available to operate in the ordinary course and procure goods and services that are vital to ongoing

business operations, customers may seek alternatives, and vendors and suppliers may refuse to do

business with the Debtors.

25. The Debtors undertook an analysis of how much postpetition financing would be

required to operate the Debtors’ business and pay administrative costs during the chapter 11

process. Based on this analysis, the Debtors determined that they would require incremental new

money liquidity of approximately $50 million to operate smoothly postpetition, and satisfy costs


27 PHIL1 8943004v.1

and expenses.9 Therefore, the Debtors believe the DIP Facilities are essential to preserve and

maximize the value of their estates, and responsibly administer these Chapter 11 Cases.

II. Alternative Sources of Financing Are Not Executable.

26. In consultation with the Debtors and their advisors, Jefferies developed a list of

parties that could be interested in providing financing to create a competitive environment for

raising the necessary capital on the best terms available in the market. Because, substantially all

of the Debtors’ assets are encumbered and subject to validly perfected first priority liens, the

strategy to obtain the best source of financing from the market was reflective of the practical

realities of the Debtors’ existing capital structure. In May 2020, Jefferies LLC (“Jefferies”)

solicited interest from 17 financing parties, including (a) five traditional banks and asset-based

lenders and (b) 12 alternative financing sources, many of whom have particular experience with

providing debtor-in-possession or rescue financing. The purpose of reaching out to these 17

financial institutions was to determine the extent to which third-parties would be willing to provide

postpetition financing to the Debtors. See Finger Decl. ¶ 13. Of these financial institutions,

13 executed confidentiality agreements and received access to non-public information. Only one

party submitted a non-binding indication of interest in providing postpetition financing to the

Debtors, however, that one party was not willing to provide financing (a) absent the explicit

consent to prime existing lenders’ liens or (b) on a junior or unsecured basis to existing liens. See

Finger Decl. ¶ 13. Indeed, no party was willing to provide postpetition financing on anything other

than a “priming” basis with respect to substantially all of the Debtors’ assets, which “priming”

9 Note that the initial funding need was approximately $35 million but after some further analysis, the DIP need

was increased to $50 million.


28 PHIL1 8943004v.1

liens likely would not have been consented to by the ABL Lenders or the Term Lenders and would

have subjected the Debtors to a priming dispute. See Finger Decl. ¶ 13.

27. After extensive, arm’s-length negotiations with the Prepetition Secured Parties, the

Debtors were able to secure the proposed $140 million DIP Facilities. The DIP Facilities are

critical to the Debtors’ ability to pay the administrative costs of the Chapter 11 Cases and should

provide the Debtors with sufficient liquidity to operate their business without creating a “priming”

or valuation dispute at the outset of the Chapter 11 Cases. In tandem with the Debtors’ RSA,

moreover, the DIP Facilities provide a path to emergence that the Debtors believe is important to

reassure clients, protect operations, and maximize value for all stakeholders.

28. Based on the financing process described above, there are no alternative sources of

financing reasonably available to the Debtors and no alternative sources of financing available on

both better and executable terms than those being provided by the DIP Facilities. No party that

Jefferies communicated with as part of the marketing process, and no other party that Jefferies is

aware of, was interested in providing, or willing to provide, postpetition financing to the Debtors

on an unsecured basis. Indeed, no party was willing to provide postpetition financing on anything

other than a “priming” basis with respect to substantially all of the Debtors’ assets, which

“priming” liens would not have been consented to by the secured lenders and would have subject

the Debtors to a priming dispute. Accordingly, the DIP Facilities pending approval before the

Bankruptcy Court are reasonable and appropriate and are the Debtors’ best—and only—available

options.

A. The ABL DIP Facility Proposal.

29. The Debtors and their advisors negotiated over a number of weeks regarding the

structure and economic costs of a proposed ABL DIP Facility. See Finger Decl. ¶ 16. Ultimately,

the Debtors and Wells agreed to a set of terms that provided the Debtors with access to liquidity


29 PHIL1 8943004v.1

during the pendency of these Chapter 11 Cases. See Finger Decl. ¶ 16 . Additionally, by not

replacing the Debtors’ incumbent lender with a completely new facility, the Debtors are able to

continue to use their existing cash management system (to the extent approved by the Bankruptcy

Court), rather than having to transition to a completely different commercial banking platform.

30. Upon entry of the Interim Order, the Prepetition ABL Credit Facility will roll-up

into the ABL DIP Facility. The roll-up of the Prepetition ABL Facility is required by Wells as a

condition to provide postpetition financing and there was no alternative offer to replace Wells.

See Finger Decl. ¶ 17. In addition, and importantly, Wells would not agree to provide an exit

commitment unless its Prepetition ABL Facility was rolled-up pursuant to the Interim Order.

The Debtors believe that refinancing these obligations into the ABL DIP Facility will allow the

Debtors to continue to make ordinary course payments required to operate their business.

See Finger Decl. ¶ 17. Therefore, based on the ABL DIP Facility terms and related benefits, the

Debtors believe that entry into the ABL DIP Facility with Wells is in the best interests of the

Debtors and their estates.

B. The Term DIP Facility Proposal.

31. Simultaneously with the ABL DIP Facility negotiations, the Debtors and the Term

A Lenders engaged in arm’s-length negotiations regarding a chapter 11 plan of reorganization and

a DIP term loan to fund the chapter 11 cases. Following extensive negotiations, the Debtors and

the Term A Lenders agreed to comprehensive restructuring terms that provided access to new

money during the pendency of these Chapter 11 Cases. As of the Petition Date, certain of the

Term A Lenders have committed to $43.5 million in financing during the Chapter 11 Cases,

however, the Debtors expect the remaining $6.5 million to be committed on or before the filing of

the Plan Supplement (as defined in the Plan). Moreover, the Term Lenders agreed that upon

confirmation of the Debtors’ proposed prepackaged Plan, the Term DIP Loan will convert into


30 PHIL1 8943004v.1

exit term loans so that the Debtors should not need to solicit additional sources of capital to fund

the Debtors’ emergence. See Finger Decl. ¶ 18. Importantly, the Term DIP Loan is an integral

part of the Debtors’ RSA and all of the proposed Term DIP Lenders also signed the RSA

documenting their support for the Debtors’ Plan.

32. The RSA and the Term DIP Facility were negotiated together and were part and

parcel of a comprehensive deal. One of the key terms of the Term DIP Facility was a fee equal to

35% of the Debtors’ reorganized equity, an understanding of which is aided by the following

context. While this fee is unusual and appears expensive, it only impacts the Term A Lenders.

Notably, the Debtors are not paying an actual fee to the lenders funding the Term DIP Loan.

Rather, the Term A Lenders that were not willing to fund the Term DIP Loan are allocating 35%

of their reorganized equity to the Term A Lenders actually funding. In addition, the 35% equity

fee dilutes the reorganized equity of the Term A Lenders funding the Term DIP Loan. Moreover,

the Term DIP Loan is necessary to avoid the liquidation of the company, which would result in

the loss of 1,200 jobs. Thus, under the circumstances and in the context of the overall restructuring,

the Debtors agreed to the fee and believe entering into that fee is in the best interests of the

company and the estates against the alternative.

33. The Term DIP Loan is critical to the Debtors’ ability to pay the administrative costs

of these Chapter 11 Cases, and should provide the Debtors with sufficient liquidity to operate their

business without creating a “priming” or valuation dispute at the outset of these Chapter 11 Cases.

In tandem with the RSA and the ABL DIP Facility, the Debtors believe that the Term DIP Facility


31 PHIL1 8943004v.1

provides a path to emergence that is important to ensuring a reorganization, rather than the

alternative, which would be far worse for key stakeholders and creditors.

Basis for Relief

I. The Debtors Should Be Authorized to Obtain Postpetition Financing Through the DIP Documents.

A. Entry into the DIP Documents Is an Exercise of the Debtors’ Sound Business Judgment.

34. The Bankruptcy Court should authorize the Debtors, as an exercise of their sound

business judgment, to enter into the DIP Documents, obtain access to the DIP Facilities, and

continue using Cash Collateral. Section 364 of the Bankruptcy Code authorizes a debtor to obtain

secured or superpriority financing under certain circumstances discussed in detail below. Courts

grant a debtor-in-possession considerable deference in acting in accordance with its business

judgment in obtaining postpetition secured credit, so long as the agreement to obtain such credit

does not run afoul of the provisions of, and policies underlying, the Bankruptcy Code. See, e.g.,

In re Trans World Airlines, Inc., 163 B.R. 964, 974 (Bankr. D. Del. 1994) (approving a postpetition

loan and receivables facility because such facility “reflect[ed] sound and prudent business

judgment”); In re L.A. Dodgers LLC, 457 B.R. 308, 313 (Bankr. D. Del. 2011) (“[C]ourts will

almost always defer to the business judgment of a debtor in the selection of the lender.”); In re

Ames Dep’t Stores, Inc., 115 B.R. 34, 40 (Bankr. S.D.N.Y. 1990) (“[C]ases consistently reflect

that the court’s discretion under section 364 is to be utilized on grounds that permit reasonable

business judgment to be exercised so long as the financing agreement does not contain terms that

leverage the bankruptcy process and powers or its purpose is not so much to benefit the estate as

it is to benefit a party in interest.”).

35. Specifically, to determine whether the business judgment standard is met, a court

need only “examine whether a reasonable business person would make a similar decision under


32 PHIL1 8943004v.1

similar circumstances.” In re Exide Techs., 340 B.R. 222, 239 (Bankr. D. Del. 2006); see also

In re Curlew Valley Assocs., 14 B.R. 506, 513–14 (Bankr. D. Utah 1981) (noting that courts should

not second guess a debtor’s business decision when that decision involves “a business judgment

made in good faith, upon a reasonable basis, and within the scope of the debtor’s authority under

the [Bankruptcy] Code”).

36. Furthermore, in considering whether the terms of postpetition financing are fair and

reasonable, courts consider the terms in light of the relative circumstances of both the debtor and

the potential lender. See In re Farmland Indus., Inc., 294 B.R. 855, 886 (Bankr. W.D. Mo. 2003)

(while many of the terms favored the DIP lenders, “taken in context, and considering the relative

circumstances of the parties,” the court found them to be reasonable); see also Unsecured

Creditors’ Comm. Mobil Oil Corp. v. First Nat’l Bank & Trust Co. (In re Elingsen McLean Oil

Co., Inc.), 65 B.R. 358, 365 n.7 (W.D. Mich. 1986) (recognizing a debtor may have to enter into

“hard bargains” to acquire funds for its reorganization). The Bankruptcy Court may also

appropriately take into consideration non-economic benefits to the Debtors offered by a proposed

postpetition facility. For example, in In re ION Media Networks, Inc., the bankruptcy court for

the Southern District of New York held that:

Although all parties, including the Debtors and the Committee, are naturally motivated to obtain financing on the best possible terms, a business decision to obtain credit from a particular lender is almost never based purely on economic terms. Relevant features of the financing must be evaluated, including non economic elements such as the timing and certainty of closing, the impact on creditor constituencies and the likelihood of a successful reorganization. This is particularly true in a bankruptcy setting where cooperation and establishing alliances with creditor groups can be a vital part of building support for a restructuring that ultimately may lead to a confirmable reorganization plan. That which helps foster consensus may be preferable to a notionally better transaction that carries the risk of promoting unwanted conflict.

No. 09-13125, 2009 WL 2902568, at *4 (Bankr. S.D.N.Y. July 6, 2009) (emphasis added).


33 PHIL1 8943004v.1

37. The Debtors’ determination to move forward with the DIP Facilities is an exercise

of their sound business judgment following an arm’s length process and careful evaluation of

available alternatives. Specifically, the Debtors and their advisors determined that the Debtors

would require postpetition financing to support their operational and chapter 11 activities. The

DIP Facilities will allow the Debtors to: (a) serve their clients in the ordinary course and to

reassure other stakeholders; (b) fund payroll obligations; (c) fund the administrative cost of the

Cases; (d) provide a path to emergence by allowing the Debtors to implement the restructuring

contemplated by the RSA and the Plan; and (e) provide commitments for exit financing. The

Debtors negotiated the DIP Facilities and other DIP Documents with the DIP Lenders in good

faith, at arm’s length, and with the assistance of their respective advisors, and the Debtors believe

that they have obtained the best financing available under the circumstances. Accordingly, the

Bankruptcy Court should authorize the Debtors’ entry into the DIP Credit Agreements, as it is a

reasonable exercise of the Debtors’ business judgment.

B. The Debtors Should Be Authorized to Grant Liens and Superpriority Claims.

38. The Debtors propose to obtain financing under the DIP Facilities by providing

security interests and liens as set forth in the DIP Documents pursuant to section 364(c) of the

Bankruptcy Code. Specifically, the Debtors propose to provide to the DIP Agents, for the benefit

of itself and the other DIP Secured Parties, a postpetition security interest in and liens on the DIP

Collateral that are valid, perfected, allowed, enforceable, non-avoidable, and not subject to

challenge, dispute or subordination immediately upon entry of the Interim Order. The DIP Lenders

will have the same “criss cross” first and second priority liens on the DIP Collateral as they do on

the prepetition Collateral under the Intercreditor Agreement.

39. The above-described liens on encumbered and unencumbered assets are common

features of postpetition financing facilities, and as set forth in greater detail in the Finger


34 PHIL1 8943004v.1

Declaration, were a necessary feature here to provide security for the proposed financings. See

Finger Decl. ¶¶ 13-14. Indeed, postpetition financing facilities approved in this Circuit and

elsewhere routinely are secured by the proceeds of a debtor’s unencumbered assets such as

leaseholds that are subject to leases that prohibit the impositions of liens thereon. See, e.g., In re

PES Holdings, LLC, No. 19-11626 (KG) (Bankr. D. Del. July 23, 2019) (approving DIP liens on

collateral including any leasehold interests or the proceeds thereof as permitted by applicable law);

In re Blackhawk Mining LLC, No. 19-11595 (LSS) (Bankr. D. Del. July 22, 2019) (same); In re Z

Gallerie, LLC, No. 19-10488 (LSS) (Bankr. D. Del. Apr. 9, 2019) (same); In re ATD Corporation,

No. 18-12221 (KJC) (Bankr. D. Del. Oct. 26, 2018) (same); In re Am. Apparel, LLC, No. 16-12551

(Bankr. D. Del. Dec. 12, 2016) (same).

40. The statutory requirement for obtaining postpetition credit under section 364(c) is

a finding, made after notice and hearing, that a debtor is “unable to obtain unsecured credit

allowable under section 503(b)(1) of [the Bankruptcy Code].” 11 U.S.C. § 364(c). See In re

Crouse Grp., Inc., 71 B.R. 544, 549 (Bankr. E.D. Pa. 1987) (secured credit under section 364(c)

of the Bankruptcy Code is authorized, after notice and hearing, upon showing that unsecured credit

cannot be obtained). Courts have articulated a three-part test to determine whether a debtor is

entitled to financing under section 364(c) of the Bankruptcy Code. Specifically, courts look to

whether:

a. the debtor is unable to obtain unsecured credit under section 364(b) of the Bankruptcy Code, i.e., by allowing a lender only an administrative claim;

b. the credit transaction is necessary to preserve the assets of the estate; and

c. the terms of the transaction are fair, reasonable, and adequate, given the circumstances of the debtor-borrower and proposed lenders.


35 PHIL1 8943004v.1

See In re Los Angeles Dodgers LLC, 457 B.R. 308 (Bankr. D. Del. 2011); See In re Ames Dep’t

Stores, 115 B.R. 34, 37–40 (Bankr. S.D.N.Y. 1990); see also In re St. Mary Hosp., 86 B.R. 393,

401–02 (Bankr. E.D. Pa. 1988); Crouse Grp., 71 B.R. at 549.

41. As described above and as set forth in the Finger Declaration, each third-party

lender indicated it would be unwilling to provide postpetition debtor-in-possession financing on

an unsecured, pari passu, or junior-lien basis. See Finger Decl. ¶¶ 13-14. Therefore, the Debtors,

in consultation with their advisors, concluded that any workable financing likely would require the

support of, or be provided by, the Debtors’ existing lenders. The Debtors, however, also negotiated

with their creditors and surveyed certain potential lending sources for actionable alternative

proposals—but determined that the DIP Facilities provided the best collective opportunity

available to the Debtors under the circumstances to fund these Chapter 11 Cases. See Finger

Decl. ¶¶ 13-14.

42. Absent the DIP Facilities, which will provide assurances that the Debtors will have

sufficient liquidity to administer the Chapter 11 Cases, as well as the financing commitments to

exit the Chapter 11 Cases, the value of the Debtors’ estates would be significantly impaired to the

detriment of all stakeholders. See Finger Decl. ¶ 9. Without postpetition financing, the Debtors

may lack sufficient funds to operate their enterprise, continue paying their debts as they come due,

and cover the projected costs of the Chapter 11 Cases. See Finger Decl. ¶¶ 9-10. The DIP Facilities

provide the Debtors and their stakeholders with the financing necessary to consummate the

restructuring transactions contemplated by the RSA and the Plan. Given the Debtors’

circumstances, the Debtors believe that the terms of the DIP Facilities, as set forth in the DIP

Documents, are reasonable as more fully set forth above. For all these reasons, the Debtors submit

that they have met the standard for obtaining postpetition financing.


36 PHIL1 8943004v.1

43. In the event that a debtor is unable to obtain unsecured credit allowable as an

administrative expense under section 503(b)(1) of the Bankruptcy Code, section 364(c) of the

Bankruptcy Code provides that a court “may authorize the obtaining of credit or the incurring of

debt (a) with priority over any or all administrative expenses of the kind specified in section

503(b) or 507(b) of the [Bankruptcy Code]; (b) secured by a lien on property of the estate that is

not otherwise subject to a lien; or (c) secured by a junior lien on property of the estate that is subject

to a lien.” As described above, the Debtors are unable to obtain unsecured credit. Therefore,

approving a superpriority claim in favor of the DIP Lenders is reasonable and appropriate.

44. Further, section 364(d) of the Bankruptcy Code provides that a debtor may obtain

credit secured by a senior or equal lien on property of the estate already subject to a lien, after

notice and a hearing, where the debtor is “unable to obtain such credit otherwise” and “there is

adequate protection of the interest of the holder of the lien on the property of the estate on which

such senior or equal lien is proposed to be granted.” 11 U.S.C. § 364(d)(1). The Debtors may

incur “priming” liens under the DIP Facilities if either (a) the Prepetition Secured Parties have

consented or (b) Prepetition Secured Parties’ interest in collateral are adequately protected. See

Anchor Savs. Bank FSB v. Sky Valley, Inc., 99 B.R. 117, 122 (N.D. Ga. 1989) (“[B]y tacitly

consenting to the superpriority lien, those [undersecured] creditors relieved the debtor of having

to demonstrate that they were adequately protected.”).

45. Here, a substantial majority of the Prepetition Secured Parties have affirmatively

consented to the DIP Facilities and actively participated in facilitating the proposed DIP Facilities.

Moreover, as set forth more fully in the Interim Order, the Debtors propose to provide a variety of

adequate protection to protect the interests of the Prepetition Secured Parties. Therefore, the relief

requested pursuant to section 364(d)(1) of the Bankruptcy Code is appropriate.


37 PHIL1 8943004v.1

C. No Comparable Alternative to the DIP Facilities Are Reasonably Available on More Favorable Overall Terms.

46. A debtor need only demonstrate “by a good faith effort that credit was not available

without” the protections afforded to potential lenders by sections 364(c) of the Bankruptcy Code.

In re Snowshoe Co., Inc., 789 F.2d 1085, 1088 (4th Cir. 1986); see also In re Plabell Rubber

Prods., Inc., 137 B.R. 897, 900 (Bankr. N.D. Ohio 1992). Moreover, in circumstances where only

a few lenders likely can or will extend the necessary credit to a debtor, “it would be unrealistic and

unnecessary to require [the debtor] to conduct such an exhaustive search for financing.” In re Sky

Valley, Inc., 100 B.R. 107, 113 (Bankr. N.D. Ga. 1988), aff’d sub nom. Anchor Sav. Bank FSB v.

Sky Valley, Inc., 99 B.R. 117, 120 n.4 (N.D. Ga. 1989); see also In re Snowshoe Co., 789 F.2d

1085, 1088 (4th Cir. 1986) (demonstrating that credit was unavailable absent the senior lien by

establishment of unsuccessful contact with other financial institutions in the geographic area); In

re Stanley Hotel, Inc., 15 B.R. 660, 663 (D. Colo. 1981) (bankruptcy court’s finding that two

national banks refused to grant unsecured loans was sufficient to support conclusion that

section 364 requirement was met); In re Ames Dep’t Stores, 115 B.R. at 37–39 (debtor must show

that it made reasonable efforts to seek other sources of financing under section 364(a) and (b)).

47. As noted above, the Debtors do not believe that a more favorable alternative debtor-

in-possession financing is reasonably available given the realities imposed by the Debtors’ existing

capital structure and the Debtors’ solicitation of alternative financing proposals. Additionally, the

Debtors’ overall restructuring is closely tied to the successful transaction described in the RSA.

Thus, the Debtors have determined that the DIP Facilities provide the most favorable terms

whereby the ABL DIP Facility provided by Wells offers the most efficient transaction costs while

reducing execution risks, and the Term DIP Loan provided by the Term DIP Lenders is an integral

piece of the debt reduction included in the RSA and is provided on reasonable terms under the


38 PHIL1 8943004v.1

circumstances. Simply put, the DIP Facilities provide the Debtors with the liquidity they need at

the lowest cost available while simultaneously placing the Debtors on an optimal path for a

successful restructuring. Therefore, the Debtors submit that the requirement of section 364 of the

Bankruptcy Code that alternative credit on more favorable terms be unavailable to the Debtors is

satisfied.

D. The Repayment Features of the DIP Facilities Are Appropriate.

48. Section 363(b) of the Bankruptcy Code permits a debtor to use, sell, or lease

property, other than in the ordinary course of business, with court approval. It is well settled in

the Third Circuit that such transactions should be approved when they are supported by a sound

business purpose. See In re Abbots Dairies, Inc., 788 F.2d 143 (3d Cir. 1986) (holding that in the

Third Circuit, a debtor’s use of assets outside the ordinary course of business under section 363(b)

of the Bankruptcy Code should be approved if the debtor can demonstrate a sound business

justification for the proposed transaction). The business judgment rule shields a debtor’s

management from judicial second-guessing. In re Johns-Manville Corp., 60 B.R. 612, 615–16

(Bankr. S.D.N.Y. 1986) (“[T]he [Bankruptcy] Code favors the continued operation of a business

by a debtor and a presumption of reasonableness attaches to a debtor’s management decisions.”).

49. Repayment of prepetition debt (often referred to as a “roll-up”) is a common feature

in debtor in possession financing arrangements. Courts in this jurisdiction have approved similar

DIP features, including on the first day of the case. See, e.g., In re ATD Corporation, No. 18-12221

(KJC) (Bankr. D. Del. Oct. 26, 2018) (authorizing an approximately $1,230 million DIP, including

a full roll-up of the prepetition ABL outstanding principal of $639 million and an additional

$250 million in additional liquidity, pursuant to interim order); In re Remington Outdoor Co., Inc.,

No. 18-10684 (BLS) (Bankr. D. Del. Mar. 28, 2018) (authorizing approximately $338 million DIP

and a roll-up of approximately $150 million, including a full ABL roll-up of $114 million, pursuant


39 PHIL1 8943004v.1

to interim order); In re Bon-Ton Stores, Inc., No. 18-10248 (MFW) (Bankr. D. Del. Feb. 6, 2018)

(authorizing full roll-up of all $489 million outstanding prepetition revolving obligations pursuant

to interim order); In re Real Indus. Inc., No. 17-12464 (KJC) (Bankr. D. Del. Nov. 20, 2017)

(authorizing approximately $365 million DIP that included a creeping roll-up pursuant to interim

order and a full roll-up pursuant to final order of approximately $266 million prepetition debt); In

re Charming Charlie, LLC, No. 17-12906 (CSS) (Bankr. D. Del. Dec. 12, 2017) (authorizing

approximately $90 million DIP that included a full ABL roll-up of approximately $22 million

prepetition debt pursuant to interim order).10

50. The ABL DIP Facility will roll up the full amount outstanding under the Prepetition

ABL Agreement in addition to providing the Debtors with additional liquidity. The roll up of

funds is a sound exercise of the Debtors’ business judgment, is a material component of the DIP

Facilities, and is required by the ABL DIP Lenders as a condition to their commitments to provide

postpetition financing. The Debtors were unable to obtain DIP financing on similar terms that did

not provide for the repayment of prepetition amounts. See Finger Decl. ¶ 17.

II. The Debtors Should Be Authorized to Use the Cash Collateral.

51. Section 363 of the Bankruptcy Code generally governs the use of estate property.

Section 363(c)(2)(A) of the Bankruptcy Code permits a debtor in possession to use Cash Collateral

with the consent of the secured party. Here, the DIP Lenders and the Prepetition Secured Parties

consent or are deemed to consent to the Debtors’ use of the Cash Collateral, subject to the terms

and limitations set forth in the Interim Order.

10 Because of the voluminous nature of the orders cited herein, such orders have not been attached to this motion.

Copies of these orders are available upon request of the Debtors’ proposed counsel.


40 PHIL1 8943004v.1

52. Section 363(e) of the Bankruptcy Code provides for adequate protection of interests

in property when a debtor uses Cash Collateral. Further, section 362(d)(1) of the Bankruptcy Code

provides for adequate protection of interests in property due to the imposition of the automatic

stay. See In re Cont’l Airlines, 91 F.3d 553, 556 (3d Cir. 1996) (en banc). While section 361 of

the Bankruptcy Code provides examples of forms of adequate protection, such as granting

replacement liens and administrative claims, courts decide what constitutes sufficient adequate

protection on a case-by-case basis. See, e.g., In re Swedeland Dev. Grp., Inc., 16 F.3d 552, 564

(3d Cir. 1994) (explaining that the “determination of whether there is adequate protection is made

on a case by case basis”); In re Satcon Tech. Corp., No. 12-12869 (KG), 2012 WL 6091160, at *6

(Bankr. D. Del. Dec. 7, 2012) (same); In re N.J. Affordable Homes Corp., No. 05-60442 (DHS),

2006 WL 2128624, at *14 (Bankr. D.N.J. June 29, 2006) (“the circumstances of the case will

dictate the necessary relief to be given”); In re Columbia Gas Sys., Inc., Nos. 91-803, 91-804, 1992

WL 79323, at *2 (Bankr. D. Del. Feb. 18, 1992) (“what interest is entitled to adequate protection

and what constitutes adequate protection must be decided on a case-by-case basis”); see also In re

Dynaco Corp., 162 B.R. 389, 394 (Bankr. D.N.H. 1993) (citing 2 Collier on Bankruptcy

¶ 361.01[1] at 361–66 (15th ed. 1993) (explaining that adequate protection can take many forms

and “must be determined based upon equitable considerations arising from the particular facts of

each proceeding”)).

53. As set forth in the Interim Order, the Debtors propose to provide the Prepetition

Secured Parties with a variety of adequate protection to protect against the postpetition diminution

in value of their collateral, including as result of the use, sale, or lease of Cash Collateral by the


41 PHIL1 8943004v.1

Debtors and the imposition of the automatic stay (collectively, the “Adequate Protection

Obligations”), including:

a. the Prepetition ABL Adequate Protection Liens (subject to the U.S. Trustee Carve- Out and the priorities set out in the Interim Order);

b. the Prepetition Term Loan Adequate Protection Liens (subject to the Carve-Out and the priorities set out in the Interim Order);

c. allowed, superpriority administrative claims under sections 503(b) and 507(b) of the Bankruptcy Code (subject to the Carve-Out and the priorities set out in the Interim Order); and

d. current payment of all reasonable and documented (in summary form) accrued and unpaid out-of-pocket fees, costs, disbursements and expenses, of the Prepetition ABL Agent, Prepetition ABL Lenders, Prepetition Term Agent, and Term Loan Group (which payments may be made from proceeds of the Term DIP Facility))

54. The Debtors submit that the proposed Adequate Protection Obligations are

sufficient to protect the Prepetition Secured Parties from any potential diminution in value to the

Cash Collateral. In light of the foregoing, the Debtors further submit, and the Prepetition Secured

Parties agree, that the proposed Adequate Protection Obligations to be provided for the benefit of

the Prepetition Secured Parties are appropriate. Thus, the Debtors’ provision of the Adequate

Protection Obligations is not only necessary to protect against any diminution in value but is fair

and appropriate under the circumstances of the Cases to ensure the Debtors are able to continue

using the Cash Collateral, subject to the terms and limitations set forth in the Interim Order, for

the benefit of all parties in interest and their estates.

III. The Debtors Should Be Authorized to Pay the Fees Required by the DIP Lenders Under the DIP Loan Documents.

55. Under the DIP Documents, the Debtors have agreed, subject to Bankruptcy Court

approval, to pay certain fees to the DIP Agents and the DIP Lenders. In particular, as noted above,

the Debtors have agreed to pay the following fees:


42 PHIL1 8943004v.1

a. to the DIP ABL Agent for the benefit of the ABL DIP Lenders:

(i). ABL DIP Closing Fee: Borrowers hereby agree to pay to ABL DIP Agent a closing fee in the amount of $225,000, which fee shall be for its sole and separate account and not the account of any ABL DIP Lender, and shall be fully earned and due and payable in full on the Closing Date; and

ABL DIP Termination Fee: On the DIP Termination Date, Borrowers shall pay to ABL DIP Agent a termination fee in the amount of $1,350,000 (the “Termination Fee”), which fee shall be for its sole and separate account and not the account of any DIP ABL Lender, and shall be fully earned and due and payable in full on the DIP Termination Date; provided, however, that if the ABL DIP Loan Parties enter into an exit credit facility contemporaneously with the DIP Termination Date with respect to which the ABL DIP Agent is the administrative agent and collateral agent and on terms and conditions acceptable to the ABL DIP Agent pursuant to which the ABL DIP Loan Parties pay the administrative agent an arrangement fee or similar fee in an amount equal to or greater than the Termination Fee, then the Termination Fee shall be waived.

b. to the Term DIP Lenders:

(i). Term DIP Closing Fee: A combined Term DIP Facility and Exit Term Loan Facility closing fee equal to 5.00% of the aggregate principal amount of all Term DIP Commitments (including, for the avoidance of doubt, any Incremental Term DIP Commitment) for the ratable benefit of the Term DIP Lenders. Subject to the entry of the Interim DIP Order, the closing fee shall be earned, paid-in-kind and capitalized and applied to the aggregate principal amount of the Term DIP Facility with respect to the amount of any DIP Term Commitments that are funded on the date of any such funding; and

(ii). Term DIP Commitment Fee: A combined Term DIP Facility and Exit Term Loan Facility commitment fee equal to (i) thirty-five percent (35%) of the equity interests in the reorganized Debtors or (ii) in the event the Term DIP Facility is terminated for any reason other than the occurrence of the Plan Effective Date, $5,000,000 paid in cash. Subject to the entry of the Interim DIP Order, the commitment fee shall be earned upon the entry of the Interim DIP Order and paid on the Term DIP Termination Date

56. Courts in this district and others have approved similar aggregates in fees in large

chapter 11 cases. See, e.g, In re ATD Corporation, No. 18-12221 (KJC) (Bankr. D. Del. Oct. 26,


43 PHIL1 8943004v.1

2018) (approving a cash fee approximately 2.0 percent of the overall DIP facility); In re PES

Holdings LLC, No. 18-10122 (KG) (Bankr. D. Del. Jan. 22, 2018) (same); In re Toys “R” US,

Inc., No. 17-34665 (KLP) (Bankr. E.D.Va. Sept. 19, 2017) (approving aggregate fees that were

just less than 3.0 percent of the overall DIP facility); In re Exide Techs., No. 13-11482 (KJC)

(Bankr. D. Del. Jul. 25, 2013) (approving approximately 4.7% of aggregate fees to underwriters,

arrangers, and lenders); In re Cooper-Standard Holdings Inc., No. 09-12743 (Bankr. D. Del. Sept.

2, 2009) (approving 2.5 percent upfront fee and 2.5 percent exit fee); In re Hayes Lemmerz Int’l,

Inc., No. 09-11655 (Bankr. D. Del. June 15, 2009) (approving 3 percent exit fee); In re Aleris Int’l.

Inc., No. 09-10478 (Bankr. D. Del. Mar. 18, 2009) (approving 3.5-percent exit fee and 3.5% front-

end net adjustment against each lender’s initial commitment); In re Lear Corp., No. 09-14326

(Bankr. S.D.N.Y. Aug. 4, 2009) (approving 5.0-percent upfront fee and a 1.0-percent

exit/conversion fee).

57. It is understood and agreed by all parties that these fees are an integral component

of the overall terms of the DIP Facilities and were required by the DIP Lenders as consideration

for the extension of postpetition financing. See Finger Decl. ¶ 19. Accordingly, the Bankruptcy

Court should authorize the Debtors to pay the fees provided under the DIP Documents in

connection with entering into those agreements.

IV. The DIP Lenders Should Be Deemed Good-Faith Lenders Under Section 364(e).

58. Section 364(e) of the Bankruptcy Code protects a good-faith lender’s right to

collect on loans extended to a debtor, and its right in any lien securing those loans, even if the

authority of the debtor to obtain such loans or grant such liens is later reversed or modified on

appeal. Section 364(e) of the Bankruptcy Code provides that:

The reversal or modification on appeal of an authorization under this section [364 of the Bankruptcy Code] to obtain credit or incur debt, or of a grant under this section of a priority or a lien, does not affect


44 PHIL1 8943004v.1

the validity of any debt so incurred, or any priority or lien so granted, to an entity that extended such credit in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and the incurring of such debt, or the granting of such priority or lien, were stayed pending appeal.

59. As explained herein, the DIP Facilities are the result of: (a) the Debtors’ reasonable

and informed determination that the DIP Lenders provided the best postpetition financing

alternative available under the circumstances; and (b) extended arm’s length, good-faith

negotiations between the Debtors and the DIP Lenders. See Finger Decl. ¶¶ 15, 22. The Debtors

submit that the terms and conditions of the DIP Documents are reasonable under the

circumstances, and the proceeds of the DIP Facilities will be used only for purposes that are

permissible under the Bankruptcy Code. Further, no consideration is being provided to any party

to the DIP Documents other than as described herein. Accordingly, the Bankruptcy Court should

find that the DIP Lenders are “good faith” lenders within the meaning of section 364(e) of the

Bankruptcy Code and are entitled to all of the protections afforded by that section.

V. The Automatic Stay Should Be Modified on a Limited Basis.

60. The proposed Interim Order provides that the automatic stay provisions of section

362 of the Bankruptcy Code will be modified to allow the DIP Lenders to file any financing

statements, security agreements, notices of liens, and other similar instruments and documents in

order to validate and perfect the liens and security interests granted to them under the Interim

Order. The proposed Interim Order further provides that the automatic stay is modified as

necessary to permit the Debtors to grant liens to the DIP Lenders and to incur all liabilities and

obligations set forth in the Interim Order. Finally, the proposed Interim Order provides that,

following the occurrence of an Event of Default and an appropriate opportunity for the Debtors to

obtain appropriate relief from the Bankruptcy Court, the automatic stay shall be vacated and


45 PHIL1 8943004v.1

modified to the extent necessary to permit the DIP Agents to exercise all rights and remedies in

accordance with the DIP Documents, or applicable law.

61. Stay modifications of this kind are ordinary and standard features of debtor in

possession financing arrangements and, in the Debtors’ business judgment, are reasonable and fair

under the circumstances of the Cases. See, e.g., In re Blackhawk Mining LLC, No. 19-11595 (LSS)

(Bankr. D. Del. July 22, 2019) (modifying automatic stay as necessary to effectuate the terms of

the order); In re Z Gallerie, LLC, No. 19-10488 (LSS) (Bankr. D. Del. Apr. 9, 2019) (same); ATD

Corporation, No. 18-12221 (KJC) (Bankr. D. Del. Oct. 26, 2018) (same); In re In re Charming

Charlie, LLC, No. 17-12906 (CSS) (Bankr. D. Del. Dec. 12, 2017) (same); In re Magnum Hunter

Res. Corp., No. 15-12533 (KG) (Bankr. D. Del. Dec. 15, 2015) (terminating automatic stay after

event of default).

VI. Failure to Obtain Immediate Interim Access to the DIP Facilities and Cash Collateral Would Cause Immediate and Irreparable Harm.

62. Bankruptcy Rules 4001(b) and 4001(c) provide that a final hearing on a motion to

obtain credit pursuant to section 364 of the Bankruptcy Code or to use Cash Collateral pursuant to

section 363 of the Bankruptcy Code may not be commenced earlier than fourteen days after the

service of such motion. Upon request, however, the Bankruptcy Court may conduct a preliminary,

expedited hearing on the motion and authorize the obtaining of credit and use of cash collateral to

the extent necessary to avoid immediate and irreparable harm to a debtor’s estate.

63. For the reasons noted above, the Debtors have an immediate postpetition need to

use Cash Collateral, and access the liquidity provided by the DIP Facilities. The Debtors cannot

maintain the value of their estates during the pendency of the Chapter 11 Cases without access to

cash. The Debtors will use cash, among other things, to fund the operation of their business,

including to ensure that vendors continue to manufacture and ship inventory, and to fund the


46 PHIL1 8943004v.1

administration of the Chapter 11 Cases. Substantially all of the Debtors’ available cash constitutes

the Cash Collateral of the Prepetition Secured Parties. The Debtors will therefore be unable to

operate their business or otherwise fund the Cases without access to Cash Collateral and the DIP

Facilities, and will suffer immediate and irreparable harm to the detriment of all creditors and other

parties in interest. In short, the Debtors’ ability to administer the Chapter 11 Cases through the

use of Cash Collateral is vital to preserve and maximize the value of the Debtors’ estates.

64. The Debtors request that the Bankruptcy Court hold and conduct a hearing to

consider entry of the Interim Order authorizing the Debtors, from and after entry of the Interim

Order until the Final Hearing, to receive funding under the DIP Facilities. The Debtors require the

funding under the DIP Facilities prior to the Final Hearing and entry of the Final Order to continue

operating, pay their administrative expenses, and to implement the relief requested in the Debtors’

other “first day” motions. This relief will enable the Debtors to preserve and maximize value and,

therefore, avoid immediate and irreparable harm and prejudice to their estates and all parties in

interest, pending the Final Hearing.

Request for Final Hearing

65. Pursuant to Bankruptcy Rules 4001(b)(2) and 4001(c)(2), the Debtors request that

the Bankruptcy Court set a date for the Final Hearing that is as soon as practicable, and in no event

after twenty-five days after the Petition Date, and fix the time and date prior to the Final Hearing

for parties to file objections to this motion.

Waiver of Bankruptcy Rule 6004(a) and 6004(h)

66. To implement the foregoing successfully, the Debtors seek a waiver of the notice

requirements under Bankruptcy Rule 6004(a) and the 14-day stay of an order authorizing the use,

sale, or lease of property under Bankruptcy Rule 6004(h).


47 PHIL1 8943004v.1

Reservation of Rights

67. Nothing contained herein is intended or shall be construed as: (a) an admission as

to the amount of, basis for, or validity of any claim against the Debtors under the Bankruptcy Code

or other applicable nonbankruptcy law; (b) a waiver of the Debtors’ or any other party in interest’s

right to dispute any claim; (c) a promise or requirement to pay any particular claim; (d) an

implication or admission that any particular claim is of a type specified or defined in this Motion;

(e) a request or authorization to assume, adopt, or reject any agreement, contract, or lease pursuant

to section 365 of the Bankruptcy Code; (f) an admission as to the validity, priority, enforceability,

or perfection of any lien on, security interest in, or other encumbrance on property of the Debtors’

estates; or (g) a waiver of any claims or causes of action which may exist against any entity under

the Bankruptcy Code or any other applicable law.

Notice

68. The Debtors will provide notice of this Motion to the following parties or their

respective counsel, as applicable: (a) the United States Trustee for the District of Delaware; (b) the

holders of the fifty largest unsecured claims against the Debtors (on a consolidated basis); (c)

counsel to the Term Loan Lender Group; (d) counsel to the Term Agent; (e) counsel to each

Consenting Sponsor; (f) counsel to the ABL Lenders; (g) counsel to the ABL Agent; (h) the United

States Attorney’s Office for the District of Delaware; (i) the Internal Revenue Service; (j) the

attorneys general for the states in which the Debtors operate; and (k) any party that has requested

notice pursuant to Bankruptcy Rule 2002. As this Motion is seeking “first day” relief, within two

business days of the hearing on this Motion, the Debtors will serve copies of this Motion and any

order entered in respect to this Motion as required by Local Rule 9013-1(m). The Debtors submit

that, in light of the nature of the relief requested, no other or further notice need be given.


48 PHIL1 8943004v.1

No Prior Request

69. No prior request for the relief sought in this motion has been made to this or any

other court.

[Remainder of page intentionally blank]


PHIL1 8943004v.1

WHEREFORE, the Debtors respectfully request that the Bankruptcy Court enter interim

and final orders, substantially in the form attached hereto as Exhibit A, granting the relief

requested herein and such other relief as the Bankruptcy Court deems appropriate under the

circumstances.

Dated: June 3, 2020 /s/ Domenic E. Pacitti Wilmington, Delaware Domenic E. Pacitti (DE Bar No. 3989) Michael W. Yurkewicz (DE Bar No. 4165)

KLEHR HARRISON HARVEY BRANZBURG LLP 919 North Market Street, Suite 1000 Wilmington, Delaware 19801 Telephone: (302) 426-1189 Facsimile: (302) 426-9193 - and - Morton R. Branzburg (pro hac vice pending) KLEHR HARRISON HARVEY BRANZBURG LLP 1835 Market Street, 14th Floor Philadelphia, PA 19103 Telephone: (215) 569-2700 Facsimile: (215) 568-6603 - and - Jonathan S. Henes, P.C. (pro hac vice pending) KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 601 Lexington Ave New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900

Proposed Co-Counsel to the Debtors and Debtors in Possession


PHIL1 8943004v.1

Exhibit A

Interim Order

Case 20-11466-CSS Doc 17-1 Filed 06/03/20 Page 1 of 80

ACTIVE 50639327v3

UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE

In re: APC AUTOMOTIVE TECHNOLOGIES, INTERMEDIATE HOLDINGS, LLC, et al., Debtors.1

: : : : : : :

Chapter 11 Case No. 20-11466 (CSS) Jointly Administered

: Re: Docket No. __

INTERIM ORDER: (I) AUTHORIZING THE DEBTORS TO OBTAIN SENIOR SECURED POSTPETITION FINANCING; (II) GRANTING LIENS AND

SUPERPRIORITY ADMINISTRATIVE EXPENSE STATUS; (III) AUTHORIZING THE USE OF CASH COLLATERAL; (IV) GRANTING

ADEQUATE PROTECTION TO PREPETITION SECURED PARTIES; (V) SCHEDULING A FINAL HEARING AND (VI) GRANTING RELATED RELIEF

Upon consideration of the motion (the “DIP Motion”)2 of the above-captioned debtors and

debtors in possession (collectively, the “Debtors”) in the above-captioned chapter 11 cases

(collectively, the “Chapter 11 Cases”), seeking entry of an interim order (this “Interim Order”)

and a Final Order (as defined herein) pursuant to sections 105, 361, 362, 363, 364(c)(l), 364(c)(2),

364(c)(3), 364(d), 364(e), 506, 507 and 552 of title 11 of the United States Code (the “Bankruptcy

Code”), Rules 2002, 4001, 6003, 6004, and 9014 of the Federal Rules of Bankruptcy Procedure

(the “Bankruptcy Rules”), and Rule 4001-2 of the Local Rules for the United States Bankruptcy

Court, District of Delaware (the “Local Rules”), inter alia:

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax

identification number, are: APC Automotive Technologies Intermediate Holdings, LLC (0991); Airtek, LLC (1239); AP Emissions Technologies, LLC (8219); AP Exhaust Products Disc, Inc. (0288); APC Automotive Technologies, LLC (6651); Aristo, LLC (4541); CWD Acquisition, LLC (4286); CWD Holding Corp. (7381); CWD Intermediate Corp. (7285); CWD, LLC (5832); Eastern Manufacturing, LLC (2410); Qualis Automotive, L.L.C. (7291); and Qualis Enterprises, Inc. (6610). The Debtors’ service address is: 10822 West Toller Drive, Suite 370, Littleton, Colorado 80127..

2 Capitalized terms used but not defined herein have the meanings given to them in the DIP Motion or the DIP

Credit Agreement (as defined below), as applicable.


2

(i) authorizing the Debtors to obtain senior secured postpetition financing on a

superpriority basis consisting of a senior secured superpriority revolving credit facility (the “ABL

DIP Facility”; and the financial institutions party thereto from time to time as lenders, as provided

in the ABL DIP Credit Agreement, the “ABL DIP Lenders”), in an aggregate principal amount

of up to $90 million (the “ABL DIP Facility”; the loans made thereunder, the “ABL DIP Loans”),

funded pursuant to the terms and conditions of that certain Superpriority Secured Debtor-in-

Possession ABL Credit Agreement (as the same may be amended, restated, supplemented, or

otherwise modified from time to time in accordance with the terms thereof, the “ABL DIP Credit

Agreement,” together with the schedules and exhibits attached thereto, and all agreements,

documents, instruments and amendments executed and delivered in connection therewith, the

“ABL DIP Documents”), by and among APC Automotive Technologies Intermediate Holdings,

LLC (f/k/a AP Exhaust Intermediate Holdings, LLC), a Delaware limited liability company

(“Holdings”), APC Automotive Technologies, LLC (f/k/a AP Exhaust Acquisition, LLC), a

Delaware limited liability company (“AP Acquisition”), CWD Acquisition, LLC, a Delaware

limited liability company (“CWD Buyer”), CWD Holding Corp., a Delaware corporation, as a

Borrower (“CWD Corp.” and, together with AP Acquisition and CWD Buyer, in their capacities

as Borrowers, collectively the “Borrowers” and each individually a “Borrower”), the other Loan

Parties party thereto (Holdings, the Borrowers, and the other Loan Parties which are, in each case,

Debtors in the Chapter 11 Cases, collectively, the “DIP Parties”), the ABL DIP Lenders and Wells

Fargo, National Association (“Wells”), as administrative agent and collateral agent (in either such

capacity and together with any successor thereto, the “ABL DIP Agent”), for and on behalf of

itself and the ABL DIP Lenders, substantially in the form attached as Exhibit A;


3

(ii) authorizing the Debtors to obtain senior secured postpetition financing on a

superpriority basis consisting of a senior secured superpriority term credit facility (the “Term DIP

Facility,” and together with the ABL DIP Facility, the “DIP Facilities”; and the financial

institutions party thereto from time to time as lenders, as provided in the DIP Credit Agreement,

the “Term DIP Lenders,” and together with the ABL DIP Lenders, the “DIP Lenders”) in an

aggregate principal amount of up to $50 million (the loans made thereunder, the “Term DIP

Loans,” and together with the ABL DIP Loans, the “DIP Loans”), funded, pursuant to the terms

and conditions of that certain Superpriority Secured Debtor-in-Possession Credit Agreement (as

the same may be amended, restated, supplemented, or otherwise modified from time to time in

accordance with the terms thereof, the “Term DIP Credit Agreement,” (and together with the

ABL DIP Credit Agreement, the “DIP Credit Agreements”) together with the schedules and

exhibits attached thereto, and all agreements, documents, instruments and amendments executed

and delivered in connection therewith, the “Term DIP Documents,” and together with the ABL

DIP Documents, the “DIP Documents”), by and among the DIP Parties, the DIP Lenders and

Wilmington Trust, National Association (“Wilmington”), as administrative agent and collateral

agent (in either such capacity and together with any successor thereto, the “Term DIP Agent,”

and together with the ABL DIP Agent, the “DIP Agents,” and together with the DIP Lenders, the

“DIP Secured Parties”), for and on behalf of themselves and the Term DIP Lenders, substantially

in the form attached as Exhibit B;

(iii) authorizing the Debtors, during the period from the entry of this Interim Order

through and including the earliest to occur of (i) entry of the Final Order or (ii) the DIP

Termination Date (as defined herein) (such period, the “Interim Period”), and subject to the terms,

conditions, limitations on availability and reserves set forth in the DIP Documents and this Interim


4

Order, to request extensions of credit up to an aggregate outstanding principal amount of not

greater than (i) $30 million at any one time outstanding under the Term DIP Facility and (ii) $90

million at any one time outstanding under the ABL DIP Facility (collectively, the “Interim

Financing”);

(iv) authorizing the Debtors party thereto to execute and deliver the DIP Credit

Agreements and any other agreements and documents related thereto, and to perform such other

acts as may be necessary or desirable in connection with the DIP Documents;

(v) authorizing the Debtors to enter into the DIP Facilities and to incur all obligations

owing thereunder and under the DIP Documents to the DIP Agents and DIP Lenders (collectively,

and including all “Obligations” as defined in the DIP Credit Agreements, the “DIP Obligations”),

and granting the DIP Agents and DIP Lenders allowed superpriority administrative expense claim

status in each of the Chapter 11 Cases and in any Successor Case (as defined herein), subject to

(x) the Carve Out (as defined herein) as to the Term DIP Lenders and Term DIP Agent, and (y)

the US Trustee Carve Out (as defined herein) as to the ABL DIP Lenders and ABL DIP Agent;

(vi) granting to the DIP Agents, for the benefit of themselves and the DIP Lenders,

automatically perfected security interests in and liens on all of the DIP Collateral (as defined

herein), including, without limitation, all property constituting “cash collateral” as defined in

section 363(a) of the Bankruptcy Code (“Cash Collateral”), which liens shall have the priorities

set forth herein and shall be subject to (x) the Carve Out (as defined herein) as to the Term DIP

Lenders and Term DIP Agent, and (y) the US Trustee Carve Out (as defined herein) as to the ABL

DIP Lenders and ABL DIP Agent;

(vii) authorizing the Debtors to use any Cash Collateral in which the Prepetition Secured

Parties (as defined herein) have an interest, and proceeds of the DIP Facilities, in each case in


5

accordance with this Interim Order and the DIP Documents, including in accordance with the

Budget (subject to Permitted Variances, unless otherwise expressly specified in the DIP Credit

Agreements) as required herein;

(viii) authorizing and directing the Debtors to pay the principal, interest, fees, expenses

and other amounts payable and reimbursable under the DIP Documents or this Interim Order as

such become due, including, without limitation, commitment fees, closing fees, and the reasonable

fees and disbursements of the DIP Agents’ and the DIP Lenders’ respective attorneys, advisors,

accountants, and other consultants, in each case, as and to the extent provided in, and in accordance

with, the applicable DIP Documents and this Interim Order;

(ix) authorizing the Debtors to use the Prepetition Collateral (as defined herein),

including the Cash Collateral of the Prepetition Secured Parties under the Prepetition Documents

(as defined herein), and providing adequate protection to the Prepetition Secured Parties as set

forth in this Interim Order to the extent of any Diminution in Value (as defined herein) of their

respective interests in the Prepetition Collateral, including the Cash Collateral;

(x) approving certain stipulations by the Debtors with respect to the Prepetition

Documents, the Prepetition Secured Parties, the Prepetition Obligations, and the Prepetition

Collateral;

(xi) modifying the automatic stay imposed by section 362 of the Bankruptcy Code to

the extent necessary to implement and effectuate the terms and provisions of the DIP Documents

and this Interim Order, and waiving any applicable stay (including under Bankruptcy Rule 6004)

to provide for the immediate effectiveness of this Interim Order; and

(xii) scheduling a final hearing (the “Final Hearing”) to consider the relief requested in

the DIP Motion and approving the form of notice with respect to the Final Hearing.


6

The Court having considered the DIP Motion, the exhibits attached thereto, the First Day

Declaration, the Declaration of Jeffrey Finger in Support of the Debtors’ Motion for Entry of

Interim and Final Orders: (I) Authorizing the Debtors to Obtain Senior Secured Postpetition

Financing, (II) Granting Liens and Providing Superpriority Administrative Expense Status, (III)

Authorizing the Debtors to Use Cash Collateral, (IV) Granting Adequate Protection to the

Prepetition Secured Parties, (V) Modifying the Automatic Stay, (VI) Scheduling a Final Hearing,

and (VII) Granting Related Relief] (the “Finger Declaration”), the DIP Documents, and the

evidence submitted and arguments made at the interim hearing (the “Interim Hearing”); and

notice of the Interim Hearing having been given in accordance with Bankruptcy Rules 2002,

4001(b), (c) and (d), and 9014, and all applicable Local Rules; and the Interim Hearing having

been held and concluded; and all objections, if any, to the interim relief requested in the DIP

Motion having been withdrawn, resolved or overruled by the Court; and it appearing that approval

of the interim relief requested in the DIP Motion is necessary to avoid immediate and irreparable

harm to the Debtors and their estates pending the Final Hearing, and otherwise is fair and

reasonable and in the best interests of the Debtors, their estates and all parties-in-interest, and is

essential for the continued operation of the Debtors’ businesses and the preservation of the value

of the Debtors’ assets; and it appearing that the Debtors’ entry into the DIP Credit Agreements is

a sound and prudent exercise of the Debtors’ business judgment; and after due deliberation and

consideration, and good and sufficient cause appearing therefor;


7

BASED UPON THE RECORD ESTABLISHED AT THE INTERIM HEARING,

THE COURT MAKES THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS

OF LAW:3

A. Petition Date. On June 3, 2020 (the “Petition Date”), each of the Debtors filed a

voluntary petition for relief under chapter 11 of the Bankruptcy Code with the United States

Bankruptcy Court for the District of Delaware (the “Court”).

B. Debtors in Possession. The Debtors have continued in the management and

operation of their businesses and properties as debtors in possession pursuant to sections 1107 and

1108 of the Bankruptcy Code.

C. Jurisdiction and Venue. This Court has jurisdiction over the Chapter 11 Cases,

the DIP Motion and the parties and property affected hereby pursuant to 28 U.S.C. §§ 157 and

1334. Consideration of the Motion constitutes a core proceeding pursuant to 28 U.S.C. § 157(b)(2).

This Court may enter a final order consistent with Article III of the United States Constitution.

The statutory predicates for the relief set forth herein are sections 105, 361, 362, 363, 364, 503,

506 and 507 of the Bankruptcy Code and Rules 2002, 4001, 6003, 6004 and 9014 of the

Bankruptcy Rules. Venue for the Chapter 11 Cases and proceedings on the DIP Motion is proper

before this Court pursuant to 28 U.S.C. §§ 1408 and 1409.

D. Committee Formation. As of the date hereof, the United States Trustee for the

District of Delaware (the “U.S. Trustee”) has not yet appointed an official committee of unsecured

3 The findings and conclusions set forth herein constitute the Court’s findings of fact and conclusions of law

pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. To the extent that any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following conclusions of law constitute findings of fact, they are adopted as such.


8

creditors in these Chapter 11 Cases pursuant to section 1102 of the Bankruptcy Code (any such

committee subsequently appointed, a “Creditors’ Committee”).

E. Notice. Proper, timely, adequate and sufficient notice of the Motion has been

provided in accordance with the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules,

and no other or further notice of the Motion with respect to the relief requested at the Interim

Hearing or the entry of this Interim Order shall be required.

F. Debtors’ Stipulations. After consultation with their attorneys and financial

advisors, and subject and without prejudice to, the rights of parties-in-interest, including any

Creditors’ Committee or any other statutory committee that may be appointed in the Chapter 11

Cases, as set forth in paragraph 36 herein, the Debtors, on their own behalf and on behalf of their

estates, admit, stipulate, acknowledge, and agree as follows (paragraphs F(i)-(viii) and G below

are referred to herein, collectively, as the “Debtors’ Stipulations”):

(i) Prepetition Term Facility. Pursuant to that certain First Lien Credit

Agreement, dated as of May 10, 2017 (as amended, restated, supplemented, or otherwise modified

from time to time, the “Prepetition Term Credit Agreement,” and collectively with any other

agreements and documents executed or delivered in connection therewith, each as may be

amended, restated, supplemented, or otherwise modified from time to time, the “Prepetition Term

Documents”) among (a) Holdings, (b) the Borrowers, (c) the other persons party thereto from time

to time that are designated as “Loan Parties” (each a “Prepetition Term Guarantor”),

(d) Wilmington Trust, National Association, as administrative agent and collateral agent (in such

capacities, the “Prepetition Term Agent”), (e) the lenders from time to time party thereto (the

“Prepetition Term Lenders” and together with the Prepetition Term Agent, and the other Secured

Parties (as defined in the Prepetition Term Credit Agreement), the “Prepetition Term Parties”),


9

the Prepetition Term Parties provided term loans, and other financial accommodations to, the

Borrowers pursuant to the Prepetition Term Documents (the “Prepetition Term Facility”).

(ii) Prepetition ABL Facility. Pursuant to that certain ABL Credit Agreement,

dated as of May 10, 2017 (as amended, restated, supplemented, or otherwise modified from time

to time, the “Prepetition ABL Credit Agreement”; the Prepetition ABL Credit Agreement and

the Prepetition Term Credit Agreement shall collectively be referred to as the “Prepetition Credit

Agreements”, and each individually as a “Prepetition Credit Agreement”) and collectively with

any other agreements and documents executed or delivered in connection therewith, each as may

be amended, restated, supplemented, or otherwise modified from time to time, the “Prepetition

ABL Documents,” and collectively with the Prepetition Term Documents and the Intercreditor

Agreement (as defined herein), the “Prepetition Documents”) among (a) Holdings, (b) the

Borrowers, (c) the other persons party thereto from time to time that are designated as “Loan

Parties” (each, a “Prepetition ABL Guarantor”), (d) Wells Fargo Bank, National Association, as

administrative agent and collateral agent (in such capacities, the “Prepetition ABL Agent,”

together with the Prepetition Term Agent, the “Prepetition Agents”), and (e) the lenders from time

to time party thereto (the “Prepetition ABL Lenders,” and collectively with the Prepetition ABL

Agent, the “Prepetition ABL Parties”; and together with the Prepetition Term Lenders, the

“Prepetition Lenders”) (the Prepetition Term Parties and Prepetition ABL Parties, collectively

with the Prepetition Agents, the “Prepetition Secured Parties”), the Prepetition ABL Parties

provided revolving loans and other financial accommodations to the Borrowers pursuant to the

Prepetition ABL Documents (the “Prepetition ABL Facility,” and together with the Prepetition

Term Facility, the “Prepetition Secured Facilities”).


10

(iii) Prepetition Secured Obligations. Under the Prepetition Term Facility, the

Prepetition Term Lenders provided to the Debtors party thereto commitments in respect of term

loans in the aggregate principal amount of up to $347,912,000 (including (w) $25,000,000 of

“Term A-1 Loans,” (x) $155,000,000 of “Term A-2 Loans,” (y) $25,000,000 of “Term A-3 Loans,”

and (z) $142,912,000 of “Term B Loans”). Under the Prepetition ABL Facility, the Prepetition

ABL Lenders provided to the Debtors party thereto commitments in respect of revolving loans in

the aggregate principal amount of up to $90,000,000. Immediately prior to the Petition Date, the

aggregate principal amount outstanding under the Prepetition Term Facility on account of term

loans was not less than $348,406,042 (including (w) $25,471,316.33 of “Term A-1 Loans,” (x)

$157,922,161 of “Term A-2 Loans,” (y) $25,975,256 of “Term A-3 Loans,” and (z) $145,091,327

of “Term B Loans”) (the “Prepetition Term Loans”), together with any accrued and unpaid

interest, fees, expenses and disbursements (including, without limitation, any accrued and unpaid

attorneys’ fees, and financial advisors’ fees, and related expenses and disbursements),

indemnification obligations, and other charges, amounts and costs of whatever nature owing,

whether or not contingent, whenever arising, accrued, accruing, due, owing, or chargeable in

respect of any of the Debtors’ obligations under the Prepetition Term Documents, including all

“Obligations” as defined in the Prepetition Term Credit Agreement, the “Prepetition Term

Obligations”). Immediately prior to the Petition Date, the aggregate principal amount outstanding

under the Prepetition ABL on account of revolving loans was not less than $78,366,574.03 (such

amounts, together with any accrued and unpaid interest, fees, expenses and disbursements

(including, without limitation, any accrued and unpaid attorneys’ fees, and financial advisors’ fees,

and related expenses and disbursements), indemnification obligations, and other charges, amounts

and costs of whatever nature owing, whether or not contingent, whenever arising, accrued,


11

accruing, due, owing, or chargeable in respect of any of the Debtors’ obligations under the

Prepetition ABL Documents, including all “Obligations” as defined in the Prepetition ABL Credit

Agreement, the “Prepetition ABL Obligations,” and together with the Prepetition Term

Obligations, the “Prepetition Secured Obligations”).

(iv) Prepetition Liens and Prepetition Collateral. As more fully set forth in the

Prepetition Documents, prior to the Petition Date:

(a) pursuant to that certain Guaranty, dated as of May 10, 2017, as amended,

restated, supplemented or otherwise modified from time to time prior to the date hereof, each

Borrower and each Prepetition Term Guarantor (collectively, the “Prepetition Term Loan

Parties”) jointly and severally guaranteed all of the Prepetition Term Obligations (except, each

Borrower only guaranteed the obligations of each other Borrower), and pursuant to that certain

First Lien Security Agreement dated as of May 10, 2017, as amended, restated, supplemented or

otherwise modified from time to time prior to the date hereof, each Borrower and each Prepetition

Term Guarantor granted to the Prepetition Term Agent, for the benefit of itself and the other

Prepetition Term Parties, a lien on and security in all of its right, title and interest in (the

“Prepetition Term Liens”) substantially all of their respective assets (the “Prepetition Term

Collateral”), subject to the relative priorities among the Prepetition Secured Parties set forth in

the Prepetition Documents, including the Intercreditor Agreement; and

(b) pursuant to that certain ABL Guaranty, dated as of May 10, 2017, as

amended, restated, supplemented or otherwise modified from time to time prior to the date hereof,

each Borrower and each Prepetition ABL Guarantor (collectively, the “Prepetition ABL Loan

Parties”, and together with the Prepetition Term Loan Parties, the “Prepetition Loan Parties”)

jointly and severally guaranteed all of the Prepetition ABL Obligations (except, each Borrower


12

only guaranteed the obligations of each other Borrower), and pursuant to that certain ABL Security

Agreement dated as of May 10, 2017, as amended, restated, supplemented or otherwise modified

from time to time prior to the date hereof, each Borrower and each Prepetition ABL Guarantor

granted to the Prepetition ABL Agent, for the benefit of itself and the other Prepetition ABL Parties,

a lien on and security interest in all of its right, title and interest in (the “Prepetition ABL Liens,”

and together with the Prepetition Term Liens, the “Prepetition Liens”) substantially all of their

respective assets (the “Prepetition ABL Collateral,” and together with the Prepetition Term

Collateral, the “Prepetition Collateral”), subject to the relative priorities among the Prepetition

Secured Parties set forth in the Prepetition Documents, including the Intercreditor Agreement.

(v) Priority of Prepetition Liens; Intercreditor Agreements. The Prepetition

Term Agent, the Prepetition ABL Agent, and others entered into that certain Intercreditor

Agreement, dated as of May 10, 2017 (as amended, restated, supplemented, or otherwise modified

from time to time prior to the date hereof, the “Intercreditor Agreement”) to govern the respective

rights, interests, obligations, priority, and positions of the Prepetition Secured Obligations with

respect to the Prepetition Collateral. Each of the Debtors under the Prepetition Documents

acknowledged and agreed to the Intercreditor Agreement.

(vi) Validity, Perfection and Priority of Prepetition ABL Liens and Prepetition

ABL Obligations. The Debtors acknowledge and agree that as of the Petition Date: (a) the

Prepetition ABL Liens on the Prepetition Collateral were valid, binding, enforceable, non-

avoidable and properly perfected and were granted to, or for the benefit of, the Prepetition ABL

Parties for fair consideration and reasonably equivalent value; (b) the Prepetition ABL Liens were

senior in priority over any and all other liens on the Prepetition Collateral, subject only to (1) the

Prepetition Term Liens on the Term Priority Collateral (as defined in the Intercreditor Agreement),


13

and (2) certain liens otherwise permitted by the Prepetition ABL Documents (solely to the extent

any such permitted liens were valid, properly perfected, non-avoidable and senior in priority to the

Prepetition ABL Liens as of the Petition Date, the “Prepetition ABL Permitted Prior Liens”);

(c) the Prepetition ABL Obligations constitute legal, valid, binding, and non-avoidable obligations

of the Prepetition ABL Parties enforceable in accordance with the terms of the applicable

Prepetition ABL Documents; (d) no offsets, challenges, objections, defenses, claims or

counterclaims of any kind or nature to any of the Prepetition ABL Liens or Prepetition ABL

Obligations exist, and no portion of the Prepetition ABL Liens or Prepetition ABL Obligations is

subject to any challenge or defense including, without limitation, avoidance, disallowance,

disgorgement, recharacterization, or subordination (equitable or otherwise) pursuant to the

Bankruptcy Code or applicable non-bankruptcy law; (e) the Debtors and their estates have no (and

hereby waive, discharge and release any) claims, objections, challenges, causes of action, and/or

choses in action, including without limitation, avoidance claims under Chapter 5 of the Bankruptcy

Code or applicable state law equivalents or actions for recovery or disgorgement, against any of

the Prepetition ABL Parties or any of their respective affiliates, agents, attorneys, advisors,

professionals, officers, consultants, directors and employees arising out of, based upon or related

to the Prepetition ABL Facility; (f) the Debtors have waived, discharged, and released any right to

challenge any of the Prepetition ABL Obligations, the priority of the Prepetition ABL Parties

obligations thereunder, and the validity, extent, and priority of the liens securing the Prepetition

ABL Obligations; and (g) the Prepetition ABL Obligations constitute allowed, secured claims

within the meaning of sections 502 and 506 of the Bankruptcy Code.

(vii) Validity, Perfection and Priority of Prepetition Term Liens and Prepetition

Term Obligations. The Debtors further acknowledge and agree that, as of the Petition Date: (a) the


14

Prepetition Term Liens were senior in priority over any and all other liens on the Prepetition

Collateral, subject only to (1) the Prepetition ABL Liens on the ABL Priority Collateral (as defined

in the Intercreditor Agreement) and (2) certain liens otherwise permitted by the Prepetition Term

Loan Documents (solely to the extent any such permitted liens were valid, properly perfected, non-

avoidable and senior in priority to the Prepetition Term Liens as of the Petition Date, the

“Prepetition Term Loan Permitted Prior Liens,” and together with the Prepetition ABL

Permitted Prior Liens, the “Permitted Prior Liens”);4 (b) the Prepetition Term Liens on the

Prepetition Collateral were valid, binding, enforceable, non-avoidable and properly perfected and

were granted to, or for the benefit of, the Prepetition Term Parties for fair consideration and

reasonably equivalent value; (c) the Prepetition Term Loan Obligations constitute legal, valid,

binding, and non- avoidable obligations of the Prepetition Term Loan Parties enforceable in

accordance with the terms of the applicable Prepetition Term Loan Documents; (d) no offsets,

challenges, objections, defenses, claims or counterclaims of any kind or nature to any of the

Prepetition Term Liens or Prepetition Term Obligations exist, and no portion of the Prepetition

Term Liens or Prepetition Term Obligations is subject to any challenge or defense including,

without limitation, avoidance, disallowance, disgorgement, recharacterization, or subordination

(equitable or otherwise) pursuant to the Bankruptcy Code or applicable non-bankruptcy law;

(e) the Debtors and their estates have no (and hereby waive, discharge and release any) claims,

objections, challenges, causes of action, and/or choses in action, including without limitation,

4 Nothing herein shall constitute a finding or ruling by this Court that any such Permitted Prior Lien is valid, senior,

enforceable, prior, perfected or non-avoidable. Moreover, nothing shall prejudice the rights of any party-in-interest, including, but not limited to the Debtors, the DIP Agents, the Prepetition ABL Parties, the Prepetition Term Parties, or a Creditors’ Committee (if appointed), to challenge the validity, priority, enforceability, seniority, avoidability, perfection or extent of any alleged Permitted Prior Lien and/or security interests. The right of a seller of goods to reclaim such goods under section 546(c) of the Bankruptcy Code is not a Permitted Prior Lien and is expressly subject to the Prepetition Liens and DIP Liens.


15

avoidance claims under Chapter 5 of the Bankruptcy Code or applicable state law equivalents or

actions for recovery or disgorgement, against any of the Prepetition Term Parties, or any of their

respective affiliates, agents, attorneys, advisors, professionals, officers, consultants, directors and

employees arising out of, based upon or related to the Prepetition Term Facility; (f) the Debtors

have waived, discharged, and released any right to challenge any of the Prepetition Term

Obligations, the priority of the Debtors’ obligations thereunder, and the validity, extent, and

priority of the liens securing the Prepetition Term Obligations; and (g) the Prepetition Term

Obligations constitute allowed, secured claims within the meaning of sections 502 and 506 of the

Bankruptcy Code.

(viii) Release. Subject to paragraph 36, the Debtors, on behalf of themselves and

their estates (including any successor trustee or other estate representative in the Chapter 11 Cases

and any Successor Cases (as defined herein)) and any party acting by, through, or under the Debtors

or their estates, hereby stipulate and agree that they forever and irrevocably release, discharge, and

acquit the DIP Agents, the Prepetition Secured Parties, all former, current, and future DIP Lenders,

and each of their respective successors, assigns, affiliates, subsidiaries, parents, officers,

shareholders, professionals, directors, employees, advisors, consultants, attorneys, and agents,

past, present, and future, and their respective heirs, predecessors, successors, and assigns, each

solely in their capacities as such (collectively, the “Releasees”) of and from any and all claims,

controversies, disputes, liabilities, obligations, demands, damages, expenses (including reasonable

attorneys’ fees), debts, liens, actions and causes of action of any and every nature whatsoever

relating to, as applicable, the DIP Facilities, the DIP Documents, the Prepetition Documents and/or

the transactions contemplated hereunder or thereunder, including (x) any so-called “lender

liability” or equitable subordination or recharacterization claims or defenses, (y) any and all claims


16

and causes of action arising under the Bankruptcy Code, and (z) any and all claims and causes of

action with respect to the validity, priority, perfection, or avoidability of the liens or claims of the

Prepetition Agents, the Prepetition Secured Parties, the DIP Agents, and the DIP Lenders. The

Debtors further waive and release any defense, right of counterclaim, right of set-off, or deduction

to the payment of the Prepetition Secured Obligations and the DIP Obligations that the Debtors

may now have or may claim to have against the Releasees, arising out of, connected with, or

relating to any and all acts, omissions, or events occurring prior to this Court entering this Interim

Order relating to the Debtors’ secured lending relationship with the Prepetition Secured Parties

and the DIP Parties. For the avoidance of doubt, the releases contained herein in favor of the

Releasees relating to the DIP Facility and DIP Documents shall not release any prospective claims

and causes of action against the Releasees arising on or after entry of this Interim Order.

G. Cash Collateral. All of the Prepetition Loan Parties’ cash, including any cash in

deposit accounts, wherever located, constitutes Cash Collateral of the Prepetition Secured Parties.

H. Control. None of the Prepetition Secured Parties control the Debtors or their

properties or operations, have authority to determine the manner in which any Debtors’ operations

are conducted or are control persons or insiders of the Debtors or any of their affiliates by virtue


17

of the actions taken with respect to, in connection with, related to or arising from the Prepetition

Credit Agreements.

I. Default. The Prepetition Loan Parties were in default of certain terms and

provisions of the Prepetition Documents prior to the Petition Date, and remain in default as of the

Petition Date.

J. Findings Regarding Postpetition Financing

(i) Request for Postpetition Financing. The Debtors seek authority to (a) enter

into the DIP Facilities on the terms described herein and in the DIP Documents, and (b) use Cash

Collateral on the terms described herein, to administer their Chapter 11 Cases and fund their

operations in accordance with the Budget (as defined herein) (subject to Permitted Variances,

unless otherwise expressly specified in the DIP Credit Agreements and this Interim Order). At the

Final Hearing, the Debtors will seek final approval of the proposed postpetition financing and use

of Cash Collateral arrangements pursuant to a proposed final order (the “Final Order”), which

shall be in form and substance reasonably acceptable to each of the DIP Agents (acting at the

direction of the respective DIP Lenders holding in excess of fifty percent (50%) of the outstanding

loans and commitments under their respective DIP Facilities (with respect to the ABL DIP Facility,

the “Required ABL DIP Lenders;” with respect to the Term DIP Facility, the “Required Term

DIP Lenders;” and together, the “Required DIP Lenders”)). Notice of the Final Hearing and

Final Order will be provided in accordance with this Interim Order.

(ii) Priming of the Prepetition Liens. The priming of the Prepetition Liens of

the Prepetition Secured Parties on the Prepetition Collateral under section 364(d) of the

Bankruptcy Code, as contemplated by the DIP Facilities and as further described below, will enable

the Debtors to obtain the DIP Facilities and to continue to operate their businesses to the benefit


18

of their estates and creditors. The Prepetition Secured Parties are each entitled to receive adequate

protection as set forth in this Interim Order pursuant to sections 361, 363, and 364 of the

Bankruptcy Code, to the extent of any aggregate diminution in value resulting from, among other

things, the Debtors’ use, sale, or lease of Cash Collateral and other Prepetition Collateral, the

subordination to the Carve Out (as defined herein) and/or the US Trustee Carve Out, as applicable,

the priming (to the extent provided for herein) of the Prepetition Liens by the DIP Liens (as defined

herein), and the imposition of the automatic stay (“Diminution in Value”) of each of their

respective interests in the Prepetition Collateral (including Cash Collateral).

(iii) Need for Postpetition Financing and Use of Cash Collateral. The Debtors

have an immediate and critical need to use Cash Collateral on an interim basis and to obtain credit

on an interim basis pursuant to the DIP Facilities in order to, among other things, enable the orderly

continuation of their operations, to administer these Chapter 11 Cases, and to consummate the

restructuring transactions contemplated by the Restructuring Support Agreement (as defined in the

Term DIP Credit Agreement) that will maximize recoveries to stakeholders. The ability of the

Debtors to maintain business relationships with their vendors, suppliers and customers, to pay their

employees and otherwise finance their operations requires the availability of working capital from

the DIP Facilities and the use of Cash Collateral, the absence of either of which would immediately

and irreparably harm the Debtors, their estates, and parties-in-interest. The Debtors do not have

sufficient available sources of working capital and/or financing to operate their businesses or

maintain their properties in the ordinary course of business without the DIP Facilities and

authorized use of Cash Collateral. Good cause has been shown for the entry of this Interim Order.

(iv) No Credit Available on More Favorable Terms. The DIP Facilities are the

best sources of debtor in possession financing available to the Debtors. Given their current


19

financial condition, financing arrangements, and capital structure, the Debtors have been and

continue to be unable to obtain financing from sources other than the DIP Lenders on terms more

favorable than the DIP Facilities. The Debtors are unable to obtain unsecured credit allowable

under Bankruptcy Code section 503(b)(1) as an administrative expense. The Debtors have also

been unable to obtain (a) unsecured credit having priority over that of administrative expenses of

the kind specified in sections 503(b), 507(a) and 507(b) of the Bankruptcy Code, (b) credit secured

solely by a lien on property of the Debtors and their estates that is not otherwise subject to a lien,

or (c) credit secured solely by a junior lien on property of the Debtors and their estates that is

subject to a lien. Financing on a postpetition basis is not otherwise available without granting the

DIP Agents, for the benefit of themselves and the DIP Lenders (1) perfected security interests in

and liens on (each as provided herein) all of the Debtors’ existing and after-acquired assets with

the priorities set forth in paragraph 6 hereof, (2) superpriority claims and liens, and (3) the other

protections set forth in this Interim Order.

(v) Use of Cash Collateral and Proceeds of the DIP Facilities. As a condition

to the Debtors’ entry into the DIP Documents, the extensions of credit under the DIP Facilities and

the authorization to use Prepetition Collateral, including Cash Collateral, the DIP Agents, the DIP

Lenders, and the Prepetition Secured Parties require, and the Debtors have agreed, that Cash

Collateral and the proceeds of the DIP Facilities shall be used, in each case in a manner consistent

with the terms and conditions of this Interim Order and the DIP Documents and in accordance with

the budget (as the same may be modified from time to time consistent with the terms of the DIP

Documents) and subject to such variances as permitted in the DIP Credit Agreements (such

variances, “Permitted Variances,” and such budget acceptable to the Required ABL DIP Lenders


20

and the Required Term DIP Lenders, the “Budget”)5 and as otherwise provided in this Interim

Order and the DIP Documents, for: (a) working capital; (b) other general corporate purposes of

the Debtors; (c) permitted payments of the costs of administration of the Chapter 11 Cases

(including professional fees and expenses of the Debtors’ professionals and professionals retained

by a Creditors’ Committee (if appointed)) and the consummation of the Debtors’ Chapter 11 Plan;

(d) payment of such prepetition expenses as consented to by the DIP Agents (acting at the direction

of the applicable Required DIP Lenders), and as approved by the Court; (e) payment of interest,

fees and expenses (including without limitation, legal and other professionals’ fees and expenses

of the DIP Agents and the DIP Lenders owed under the DIP Documents); (f) payment of certain

adequate protection amounts to the Prepetition Secured Parties, as set forth in paragraph 15 hereof;

(g) payment of the Carve Out (which shall be in accordance with paragraph 33 of this Interim

Order); and (h) such other uses set forth in the Budget and permitted by the DIP Credit Agreements.

(vi) Application of Proceeds of Collateral. As a condition to entry into the DIP

Credit Agreements, the extensions of credit under the DIP Facilities and authorization to use Cash

Collateral, the Debtors, the DIP Agents, the DIP Lenders, and the Prepetition Secured Parties have

agreed that, as of and commencing on the date of the Interim Hearing, the Debtors shall apply the

proceeds of DIP Collateral in accordance with this Interim Order, the DIP Documents, and the

Intercreditor Agreement.

K. Adequate Protection. The Prepetition Agents, for the benefit of themselves and

the Prepetition Secured Parties, are each entitled to receive adequate protection to the extent of

any Diminution in Value of their respective interests in the Prepetition Collateral. Pursuant to

5 A copy of the initial Budget is attached hereto as Exhibit C.


21

sections 361, 363 and 507(b) of the Bankruptcy Code, as adequate protection, subject in all

respects (x) as to the Prepetition Term Parties, to the Carve Out (as defined herein), and (y) as to

the Prepetition ABL Parties, the US Trustee Carve Out: (i) the Prepetition Term Parties will

receive (a) to the extent of any Diminution in Value of their interests in the Prepetition Collateral,

adequate protection liens and superpriority claims, as more fully set forth in paragraphs 11-13

herein, and (b) current payment of fees and expenses of the Prepetition Term Agent, Arnold &

Porter Kaye Scholer LLP (“A&P”) and the Prepetition Term Loan Lender Group (as defined

herein) represented by King & Spalding LLP (“King & Spalding”), as legal counsel, and FTI

Consulting, Inc. (“FTI”), as financial advisor, and one local counsel, whether arising before or

after the Petition Date) in accordance with the procedures set forth in paragraph 15 herein; and

(ii) the Prepetition ABL Parties will receive, to the extent of any Diminution in Value of their

interests in the Prepetition Collateral and subject to the Intercreditor Agreement, adequate

protection liens and superpriority claims, as more fully set forth in paragraphs 11-13 herein, and

(b) current payment of fees and expenses of the Prepetition ABL Agent and Prepetition ABL

Lenders (including without limitation, legal and other professionals’ fees and expenses of

Greenberg Traurig, LLP (“GT”), and one local counsel, whether arising before or after the Petition

Date) in accordance with the procedures set forth in paragraph 15 herein.

L. Sections 506(c) and 552(b). In light of (i) the DIP Agents’ and DIP Lenders’

agreement that their liens and superpriority claims shall be subject to (x) the Carve Out (as defined

herein) as to the Term DIP Lenders and Term DIP Agent, and (y) the US Trustee Carve Out (as

defined herein) as to the ABL DIP Lenders and ABL DIP Agent; (ii) the Prepetition ABL Parties’

agreement that their liens shall be subject to the US Trustee Carve Out and subordinate to the ABL

DIP Liens and, in the case of the Prepetition Term Priority Collateral, subordinate to the Term DIP


22

Liens and the Prepetition Term Adequate Protection Liens; and (iii) the Prepetition Term Parties’

agreement that their liens shall be subject to the Carve Out and subordinate to the Term DIP Liens

and, in the case of the ABL Priority Collateral, subordinate to the ABL DIP Liens and the

Prepetition ABL Adequate Protection Liens, (a) subject to entry of a Final Order, the Prepetition

ABL Parties and Prepetition Term Parties are each entitled to a waiver of any “equities of the case”

exception under section 552(b) of the Bankruptcy Code, and (b) subject to entry of a Final Order,

the DIP Agents, DIP Lenders, Prepetition ABL Parties and Prepetition Term Parties are each

entitled to a waiver of the provisions of section 506(c) of the Bankruptcy Code.

M. Good Faith of the DIP Agents and DIP Lenders.

(i) Willingness to Provide Financing. The DIP Lenders have indicated a

willingness to provide the DIP Facilities to the Debtors subject to: (a) entry of this Interim Order

and, subsequently, the Final Order; (b) approval of the terms and conditions of the DIP Facilities

and the DIP Documents; (c) satisfaction of the closing conditions set forth in the DIP Documents;

and (d) findings by this Court that the DIP Financing is essential to the Debtors’ estates, that the

DIP Agents and DIP Lenders are extending credit to the Debtors pursuant to the DIP Documents

in good faith, and that the DIP Agents’ and DIP Lenders’ DIP Superpriority Claims and DIP Liens,

and other protections granted pursuant to this Interim Order and the DIP Documents will have the

protections provided by section 364(e) of the Bankruptcy Code.

(ii) Business Judgment and Good Faith Pursuant to Section 364(e). The terms

and conditions of the DIP Facilities and the DIP Documents, and the fees paid and to be paid

thereunder, are fair, reasonable, and the best available to the Debtors under the circumstances, are

appropriate for secured financing to debtors in possession, reflect the Debtors’ exercise of prudent

business judgment consistent with their fiduciary duties, and are supported by reasonably


23

equivalent value and consideration. The terms and conditions of the DIP Facilities and the use of

Cash Collateral were negotiated in good faith and at arms’ length among the Debtors, DIP Agents,

DIP Lenders, and the Prepetition Secured Parties, with the assistance and counsel of their

respective advisors. Use of Cash Collateral and credit to be extended under the DIP Facilities shall

be deemed to have been allowed, advanced, made, or extended in good faith by the DIP Agents,

DIP Lenders, the Prepetition Term Parties, and the Prepetition ABL Parties within the meaning of

section 364(e) of the Bankruptcy Code.

(iii) Consent to DIP Financing and Use of Cash Collateral. Absent an order of

this Court and the provision of adequate protection, consent of the Prepetition Secured Parties is

required for the Debtors’ use of Cash Collateral and the other Prepetition Collateral. The

Prepetition Secured Parties have consented, or are deemed pursuant to the Prepetition Documents

to have consented, or have not objected to the Debtors’ use of Cash Collateral and the other

Prepetition Collateral, and the Debtors’ entry into the DIP Documents in accordance with and

subject to the terms and conditions in this Interim Order, the DIP Documents, and the Budget.

N. Immediate Entry. Sufficient cause exists for immediate entry of this Interim

Order pursuant to Bankruptcy Rule 4001(c)(2).

O. Notice of Interim Hearing. Notice of the Interim Hearing and the relief requested

in the DIP Motion has been provided by the Debtors, whether by facsimile, electronic mail,

overnight courier or hand delivery, to certain parties-in-interest, including, among others: (i) the

U.S. Trustee; (ii) the holders of the thirty (30) largest unsecured claims against the Debtors on a

consolidated basis; (iii) King & Spalding, as counsel to the Prepetition Term Loan Lender Group;

(iv) A&P, as counsel to the Prepetition Term Agent and Term DIP Agent; (v) GT, as counsel to the

Prepetition ABL Agent and Prepetition ABL Lenders, (vi) all other holders of other debt


24

instruments issued by the Debtors; (vii) all parties asserting liens against the Debtors’ assets;

(viii) the state attorneys general for all states in which the Debtors operate; (ix) the U.S. Attorney’s

Office for the District of Delaware; (x) the Internal Revenue Service; (xi) any party that requests

service pursuant to Bankruptcy Rule 2002; and (xii) any such other party entitled to notice under

the Bankruptcy Rules and Local Rules.6

Based upon the foregoing findings and conclusions, the DIP Motion and the record before

the Court with respect to the DIP Motion, and after due consideration and good and sufficient

cause appearing therefor,

IT IS HEREBY ORDERED THAT:

1. Interim Financing Approved. The DIP Motion is granted on an interim basis

as set forth herein, and the DIP Facilities, in an amount up to the Interim Financing, is authorized

and approved, and the use of Cash Collateral on an interim basis is authorized, in each case, subject

to the terms and conditions set forth in the DIP Documents or this Interim Order, as applicable.

All objections to this Interim Order to the extent not withdrawn, waived, settled or resolved are

hereby denied and overruled. This Interim Order shall become effective immediately upon its

entry.

DIP Facilities Authorization

2. Authorization of the DIP Financing. The DIP Facilities, in an amount up to

the Interim Financing, is hereby approved on an interim basis. The Debtors are expressly and

immediately authorized and empowered to execute and deliver the DIP Documents, and to incur

and to perform the DIP Obligations in accordance with, and subject to, the terms of this Interim

6 NTD: K&E to conform notice provisions.


25

Order and the DIP Documents, and to deliver all instruments, certificates, agreements, and

documents which may be required or necessary for the performance by the Debtors under the DIP

Facilities and the creation and perfection of the DIP Liens described in and provided for by this

Interim Order and the DIP Documents. The Debtors are hereby authorized and directed to pay, in

accordance with this Interim Order, any principal, interest, fees, expenses, and other amounts

described in the DIP Documents and this Interim Order, as such amounts become due and owing,

without need to obtain further Court approval (except as otherwise provided herein or in the DIP

Documents (including any related fee letters)), subject to and in accordance with the term hereof

and thereof, including, without limitation, any closing fees and commitment fees, as well as any

reasonable and documented fees and disbursements of the DIP Agents’ and the DIP Lenders’

professionals, as set forth herein and in the DIP Credit Agreements, whether or not such

professional fees and disbursements arose before or after the Petition Date, and whether or not the

transactions contemplated hereby are consummated, to implement all applicable reserves and to

take any other actions that may be necessary or appropriate, all to the extent provided in this

Interim Order and the DIP Documents. All collections and proceeds, whether from ordinary course

collections, asset sales, debt or equity issuances, insurance recoveries, condemnations or

otherwise, will be deposited and applied as required by this Interim Order and the DIP Documents.

Upon execution and delivery, the DIP Documents shall represent valid and binding obligations of

the Debtors, enforceable against each of the Debtors and their estates in accordance with their

terms.

3. Authorization to Borrow. In order to prevent immediate and irreparable

harm to the Debtors’ estates, from the entry of this Interim Order through and including the earliest

to occur of (i) entry of the Final Order and (ii) the DIP Termination Date, and subject to the terms,


26

conditions, limitations on availability, and reserves set forth in the DIP Documents and this Interim

Order, including, without limitation, the Budget, the Debtors are hereby authorized to request

extensions of credit up to an aggregate outstanding principal amount of not greater than (x) $30

million at any one time outstanding under the ABL DIP Facility and (y) $90 under the Term DIP

Facility.

4. DIP Obligations. The DIP Documents and this Interim Order shall constitute

and evidence the validity and binding effect of the Debtors’ DIP Obligations, which DIP

Obligations shall be enforceable against the Debtors, their estates and any successors thereto,

including without limitation, any trustee appointed in the Chapter 11 Cases, or in any case under

Chapter 7 of the Bankruptcy Code upon the conversion of any of the Chapter 11 Cases, or in any

other proceedings superseding or related to any of the foregoing (collectively, the “Successor

Cases”). Upon entry of this Interim Order, the DIP Obligations will include all loans and any other

indebtedness or obligations, contingent or absolute, which may now or from time to time be owing

by any of the Debtors to either DIP Agent or any of the DIP Lenders, under the DIP Documents or

this Interim Order, including, without limitation, all principal, accrued and unpaid interest, costs,

fees, expenses, and other amounts under the DIP Documents. The DIP Parties shall be jointly and

severally liable for the ABL DIP Obligations. The DIP Parties shall be jointly and severally liable

for the Term DIP Obligations. The DIP Obligations shall be due and payable, without notice or

demand, and the use of Cash Collateral shall automatically cease on the DIP Termination Date,

except as provided in paragraphs 26 and 31 herein, and subject to the Carve Out requirements in

paragraph 33 herein. No obligation, payment, transfer, or grant of collateral security hereunder or

under the DIP Documents (including any DIP Obligation or DIP Liens, and including in connection

with any adequate protection provided to the Prepetition Secured Parties hereunder, subject to


27

paragraph 36 herein) shall be stayed, restrained, voidable, avoidable, or recoverable, under the

Bankruptcy Code or under any applicable law (including, without limitation, under

sections 502(d), 544, and 547 to 550 of the Bankruptcy Code or under any applicable state Uniform

Voidable Transactions Act, Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance

Act, or similar statute or common law), or subject to any avoidance, reduction, setoff, recoupment,

offset, recharacterization, subordination (whether equitable, contractual, or otherwise),

counterclaim, cross-claim, defense, or any other challenge under the Bankruptcy Code or any

applicable law or regulation by any person or entity.

5. DIP Liens.

(i) In order to secure the DIP Obligations, effective immediately upon

entry of this Interim Order, pursuant to sections 361, 362, 364(c)(2), 364(c)(3), and 364(d) of the

Bankruptcy Code, the applicable DIP Agents, for the benefit of themselves and the DIP Lenders,

are hereby granted, continuing, valid, binding, enforceable, non-avoidable, and automatically and

properly perfected postpetition security interests in and liens (collectively, the “DIP Liens”), with

the priorities set forth in paragraph 6 herein, on all real and personal property, whether now existing

or hereafter arising and wherever located, tangible and intangible (the “DIP Collateral”),

including without limitation: (a) all cash, cash equivalents, deposit accounts, securities accounts,

accounts, other receivables (including credit card receivables), chattel paper, contract rights,

inventory (wherever located), instruments, documents, securities (whether or not marketable) and

investment property (including, without limitation, all of the issued and outstanding capital stock

of each of its subsidiaries), furniture, fixtures, equipment (including documents of title), goods,

franchise rights, trade names, trademarks, servicemarks, copyrights, patents, license rights,

intellectual property, general intangibles (including, for the avoidance of doubt, payment


28

intangibles), rights to the payment of money (including, without limitation, tax refunds and any

other extraordinary payments), supporting obligations, guarantees, letter of credit rights,

commercial tort claims, causes of action, and all substitutions, indemnification rights, all present

and future intercompany debt, books and records related to the foregoing, and proceeds of the

foregoing, wherever located, including insurance or other proceeds, (b) all owned real property

interests and all leasehold real property interests and proceeds thereof, (c) subject to, and upon

entry of, the Final Order, any avoidance actions brought pursuant to Chapter 5 of the Bankruptcy

Code (“Avoidance Actions”) and the proceeds thereof, (d) all other property of the DIP Parties,

and (e) all proceeds and products of each of the foregoing and all accessions to, substitutions and

replacements for, and rents, profits and products of, each of the foregoing, including any and all

proceeds of any insurance, indemnity, warranty or guaranty payable to such Debtor from time to

time with respect to any of the foregoing. Notwithstanding the foregoing, the DIP Collateral shall

not include (and the DIP Liens shall not extend to) any Excluded Property (as defined in the DIP

Credit Agreements). DIP Collateral that is of a type that would be ABL Priority Collateral (as

defined the Intercreditor Agreement) and the proceeds and products thereof shall in each case,

constitute “DIP ABL Priority Collateral,” and DIP Collateral that is of a type that would be Term

Priority Collateral (as defined in the Intercreditor Agreement) and the proceeds and products

thereof and shall, in each case, constitute “DIP Term Priority Collateral.”

(ii) To the fullest extent permitted by the Bankruptcy Code or applicable

law, any provision of any lease, loan document, easement, use agreement, proffer, covenant,

license, contract, organizational document, or other instrument or agreement that requires the

consent or the payment of any fees or obligations to any governmental entity or non-governmental

entity in order for the Debtors to pledge, grant, mortgage, sell, assign, or otherwise transfer any


29

fee or leasehold interest or the proceeds thereof or other DIP Collateral, shall have no force or

effect with respect to the DIP Liens on such leasehold interests or other applicable DIP Collateral

or the proceeds of any assignment and/or sale thereof by any Debtor, in favor of the DIP Secured

Parties in accordance with the terms of the DIP Documents and this Interim Order or in favor of

the Prepetition Secured Parties in accordance with this Interim Order. For the avoidance of doubt,

nothing in this Interim Order is creating any tax exemption pursuant to section 1146(a) of the

Bankruptcy Code, and subject to entry of the Final Order, the rights of all parties to challenge

whether the relief granted in this subparagraph is permitted by the Bankruptcy Code or applicable

law is expressly preserved.

6. DIP Lien Priority. The DIP Liens securing the ABL DIP Obligations (the

“ABL DIP Liens”) are valid, automatically fully-perfected, non-avoidable, senior in priority and

superior to any security, mortgage, collateral interest, lien or claim to any of the DIP Collateral,

except that the ABL DIP Liens shall be subject to the US Trustee Carve Out and shall otherwise

be junior only to: (i) as to the DIP ABL Priority Collateral, Permitted Prior Liens and (ii) as to the

DIP Term Priority Collateral (A) Permitted Prior Liens; (B) the Term DIP Liens (as defined below);

(C) the Prepetition Term Liens; and (D) the Prepetition Term Loan Adequate Protection Liens. The

DIP Liens securing the Term DIP Obligations (the “Term DIP Liens”) are valid, automatically

perfected, non-avoidable, senior in priority and superior to any security, mortgage, collateral

interest, lien or claim to any of the DIP Collateral, except that the Term DIP Liens shall be subject

to the Carve Out and shall otherwise be junior only to: (i) as to the DIP Term Priority Collateral,

Permitted Prior Liens; and (ii) as to the DIP ABL Priority Collateral, (A) Permitted Prior Liens;

(B) the ABL DIP Liens; (C) the Prepetition ABL Liens; and (D) the Prepetition ABL Adequate

Protection Liens. Other than as set forth in this Interim Order or in the DIP Documents, the DIP


30

Liens shall not be made subject to or pari passu with any lien or security interest heretofore or

hereinafter granted in the Chapter 11 Cases or any Successor Cases, and shall be valid and

enforceable against any trustee appointed in the Chapter 11 Cases or any Successor Cases, upon

the conversion of any of the Chapter 11 Cases to a case under Chapter 7 of the Bankruptcy Code

(or in any other Successor Case), and/or upon the dismissal of any of the Chapter 11 Cases or

Successor Cases. The DIP Liens shall not be subject to section 510, 549 or 550 of the Bankruptcy

Code. No lien or interest avoided and preserved for the benefit of the estate pursuant to section 551

of the Bankruptcy Code shall be pari passu with or senior to the DIP Liens.

7. Superpriority Claims. Upon the entry of this Interim Order, the DIP Secured

Parties are hereby granted, pursuant to section 364(c)(1) of the Bankruptcy Code, allowed

superpriority administrative expense claims in each of the Chapter 11 Cases and any Successor

Cases (collectively, “DIP Superpriority Claims”) for all DIP Obligations: (a) except as set forth

herein, with priority over any and all administrative expense claims and unsecured claims against

the Debtors or their estates in any of the Chapter 11 Cases and any Successor Cases, at any time

existing or arising, of any kind or nature as and to the extent provided for by sections 503(b) and

507(b) of the Bankruptcy Code, including, without limitation, administrative expenses, unsecured

claims, or other claims of the kinds specified in or ordered pursuant to sections 105, 326, 328, 330,

331, 364(c)(1), 365, 503(a), 503(b), 506(c) (subject to the entry of the Final Order), 507(a), 507(b),

546(c), 546(d), 726, 1113 and 1114 of the Bankruptcy Code, and any other provision of the

Bankruptcy Code, whether or not such expenses or claims may become secured by a judgment lien

or other non-consensual lien, levy, or attachment; and (b) which shall at all times be senior to the

rights of the Debtors and their estates, and any successor trustee or other estate representative to

the extent permitted by law. Notwithstanding anything to the contrary in this Interim Order or the


31

DIP Documents, the DIP Superpriority Claims shall be pari passu with each other, without

otherwise impairing the lien priorities as set forth herein, and subject in all respects to (x) the Carve

Out (as defined herein) as to the Term DIP Lenders and Term DIP Agent, and (y) the US Trustee

Carve Out (as defined herein) as to the ABL DIP Lenders and ABL DIP Agent.

8. No Obligation to Extend Credit. Except as required to fund the Carve Out

as to the Term DIP Agent and Term DIP Lenders and the US Trustee Carve Out as to the ABL DIP

Agent and ABL DIP Lenders as set forth in paragraph 33, the DIP Agents and DIP Lenders shall

have no obligation to make any loan under the DIP Documents, unless all of the conditions

precedent to the making of such extensions of credit under the DIP Documents and this Interim

Order have been satisfied in full or waived by the applicable DIP Agents (acting at the direction of

the applicable Required DIP Lenders, as applicable, and in accordance with the terms of the DIP

Credit Agreements).

9. Use of Proceeds of DIP Facilities. From and after the Petition Date, the

Debtors shall use advances of credit under the DIP Facilities, in accordance with the Budget

(subject to Permitted Variances, unless otherwise expressly specified in the DIP Credit Agreements

and except as otherwise provided in this Interim Order and the DIP Documents with respect to the

Debtors’ Professionals’ fees), only for the purposes specifically set forth in this Interim Order and

the DIP Documents, and in compliance with the terms and conditions in this Interim Order and the

DIP Documents.

Authorization to Use Cash Collateral

10. Authorization to Use Cash Collateral. Subject to the terms and conditions

of this Interim Order (including, without limitation, paragraphs 31 and 37 hereof), the DIP

Facilities and the DIP Documents, and in accordance with the Budget (including Permitted


32

Variances, unless otherwise expressly specified in the DIP Credit Agreements[and except as

otherwise provided under this Interim Order and the DIP Documents with respect to professional

fees), the Debtors are authorized to use Cash Collateral until the DIP Termination Date for the

following purposes (a) the general corporate and working capital purposes of the Debtors; (b) the

payment of interest, fees, costs and expenses related to the DIP Facilities (including the fees and

expenses of legal and other professionals’ fees and expenses of the DIP Agents, the DIP Lenders,

and Prepetition Secured Parties; (c) to make all permitted payments of costs of administration of

the Chapter 11 Cases; (d) to satisfy any adequate protection obligations owing under this Interim

Order; (e) to make any other payments permitted by the Budget (including the payment of interest,

fees, costs and expenses of professionals retained by the Debtors); and (f) to cash collateralize

Indebtedness permitted to be incurred under letters of credit pursuant the DIP Credit Agreements.

Nothing in this Interim Order shall authorize the disposition of any assets of the Debtors or their

estates outside the ordinary course of business, or any Debtor’s use of any Cash Collateral or other

proceeds resulting therefrom, except as permitted in this Interim Order, the DIP Facilities, the DIP

Documents, and in accordance with the Budget (including Permitted Variances, unless otherwise

expressly specified in the DIP Credit Agreements and except as otherwise provided under this

Interim Order and the DIP Documents with respect to professional fees).

11. Adequate Protection Liens.

(i) Prepetition ABL Adequate Protection Liens. Pursuant to

Sections 361, 363(e) and 364(d) of the Bankruptcy Code, as adequate protection of the interests of

the Prepetition ABL Parties in the Prepetition Collateral against any Diminution in Value of such

interests in the Prepetition Collateral, the Prepetition Loan Parties hereby grant to the Prepetition

ABL Agent, for the benefit of itself and the Prepetition ABL Parties, continuing valid, binding,


33

enforceable and perfected postpetition security interests in and liens on the DIP ABL Priority

Collateral (the “Prepetition ABL Adequate Protection Liens”).

(ii) Prepetition Term Loan Adequate Protection Liens. Pursuant to

Sections 361, 363(e) and 364(d) of the Bankruptcy Code, as adequate protection of the interests of

the Prepetition Term Parties in the Prepetition Collateral against any Diminution in Value of such

interests in the Prepetition Collateral, the Prepetition Loan Parties hereby grant to the Prepetition

Term Agent, on behalf of itself and the Prepetition Term Parties, continuing valid, binding,

enforceable and perfected postpetition security interests in and liens on the DIP Term Primary

Collateral (the “Prepetition Term Loan Adequate Protection Liens,” and together with the

Prepetition ABL Adequate Protection Liens, the “Adequate Protection Liens”).

12. Priority of Adequate Protection Liens.

(i) The Prepetition ABL Adequate Protection Liens shall be subject to

the US Trustee Carve Out and shall otherwise be junior only to: (a) with respect to the DIP ABL

Priority Collateral (1) Permitted Prior Liens; (2) the ABL DIP Liens; and (3) the Prepetition ABL

Liens; and (b) with respect to the DIP Term Priority Collateral (1) Permitted Prior Liens; (2) the

Term DIP Liens; (3) the Prepetition Term Liens; (4) the Prepetition Term Loan Adequate

Protection Liens; (5) the ABL DIP Liens; and (6) the Prepetition ABL Liens.

(ii) The Prepetition Term Loan Adequate Protection Liens shall be

subject to the Carve Out and shall otherwise be junior only to: (a) with respect to the DIP ABL

Priority Collateral (1) Permitted Prior Liens; (2) the ABL DIP Liens; (3) the Prepetition ABL

Liens; (4) the Prepetition ABL Adequate Protection Liens; (5) the Term DIP Liens; and (6) the

Prepetition Term Liens; and (b) with respect to the DIP Term Priority Collateral (1) Permitted Prior

Liens; (2) the Term DIP Liens; and (3) the Prepetition Term Liens.


34

(iii) Except as provided herein, including, without limitation, with

respect to (x) the Carve Out (as defined herein) as to the Prepetition Term Parties, and (y) the US

Trustee Carve Out (as defined herein) as to the Prepetition ABL Parties, the Adequate Protection

Liens shall not be made subject to or pari passu with any lien or security interest heretofore or

hereinafter granted in the Chapter 11 Cases or any Successor Cases and shall be valid and

enforceable against any trustee appointed in any of the Chapter 11 Cases or any Successor Cases,

or upon the dismissal of any of the Chapter 11 Cases or Successor Cases. Subject to the Challenge

Deadline and related provisions of paragraph 36, the Adequate Protection Liens shall not be subject

to sections 510, 549, or 550 of the Bankruptcy Code. No lien or interest avoided and preserved

for the benefit of the estate pursuant to section 551 of the Bankruptcy Code shall be pari passu

with or senior to the Prepetition Liens or the Adequate Protection Liens.

13. Adequate Protection Superpriority Claims.

(i) Prepetition Superpriority Claims. As further adequate protection of

the interests of the Prepetition ABL Parties in the Prepetition Collateral against any Diminution in

Value of such interests in the Prepetition Collateral, the Prepetition ABL Agent, on behalf of itself

and the Prepetition ABL Parties, is hereby granted as and to the extent provided by section 507(b)

of the Bankruptcy Code an allowed superpriority administrative expense claim in each of the

Chapter 11 Cases and any Successor Cases (the “Prepetition ABL Superpriority Claim”). As

further adequate protection of the interests of the Prepetition Term Parties in the Prepetition

Collateral against any Diminution in Value of such interests in the Prepetition Collateral, the

Prepetition Term Agent, on behalf of itself and the Prepetition Term Parties, is hereby granted as

and to the extent provided by section 507(b) or the Bankruptcy Code allowed superpriority

administrative expense claims in each of the Chapter 11 Cases and any Successor Cases (the


35

“Prepetition Term Loan Superpriority Claim,” and together with the Prepetition ABL

Superpriority Claim, the “Adequate Protection Superpriority Claims”).

14. Priority of the Adequate Protection Superpriority Claims. Except as set

forth herein, the Adequate Protection Superpriority Claims shall have priority over all

administrative expense claims and unsecured claims against the Debtors or their estates, now

existing or hereafter arising, of any kind or nature whatsoever, as and to the extent without

limitation, of the kinds specified in or ordered pursuant to Sections 105, 326, 328, 330, 331, 503(a),

503(b), 507(a), 506(c) (subject to the entry of the Final Order), 507(b), 546(c), 546(d), 726, 1113

and 1114 of the Bankruptcy Code; provided, however, that the Adequate Protection Superpriority

Claims shall be (a) subject to (i) the Carve Out (as defined herein) as to the Prepetition Term

Parties, and (y) the US Trustee Carve Out (as defined herein) as to the Prepetition ABL Parties, (b)

pari passu with each other, without otherwise impairing the lien priorities as set forth in this

Interim Order subject to the Intercreditor Agreement, and (c) junior to the DIP Superpriority

Claims.

15. Adequate Protection Payments and Protections for Prepetition Secured

Parties. As further adequate protection (the “Adequate Protection Payments”), the Debtors are

authorized to pay in cash, without the need for the filing of formal fee applications: (i) immediately

upon entry of this Interim Order, all reasonable and documented (in summary form) accrued and

unpaid out-of-pocket fees, costs, disbursements and expenses, of the Prepetition Term Agent and

the Consenting Term Loan Lenders party to the Restructuring Support Agreement represented by

King & Spalding (the “Prepetition Term Loan Lender Group”) (limited, in the case of counsel,

to all reasonable and documented out-of-pocket fees, costs, disbursements and expenses of King

& Spalding, A&P, FTI, and any successor counsel, and, to the extent necessary, one firm of local


36

counsel (which payments may be made from proceeds of the Term DIP Facility), in each case to

the extent invoices for any such accrued and unpaid amounts are provided to the Debtors no later

than two (2) Business Days prior to the Closing Date, (ii) immediately upon entry of this Interim

Order, all reasonable and documented (in summary form) accrued and unpaid out-of-pocket fees,

costs, disbursements and expenses, of the Prepetition ABL Agent and the Prepetition ABL Lenders

(limited, in the case of counsel, to all reasonable and documented out-of-pocket fees, costs,

disbursements and expenses of GT, and any successor counsel, and, to the extent necessary, one

firm of local counsel (which payments may be made from proceeds of the ABL DIP Facility), in

each case to the extent invoices for any such accrued and unpaid amounts are provided to the

Debtors no later than two (2) Business Days prior to the Closing Date, and (iii) thereafter, all

reasonable and documented (in summary form) prepetition and postpetition accrued and unpaid

out-of-pocket fees, costs, disbursements and expenses of the (a) Prepetition Term Agent and the

Prepetition Term Loan Lender Group (limited, in the case of counsel, to all reasonable and

documented out-of-pocket fees, costs, disbursements and expenses of King & Spalding, A&P, and

FTI) and any successor counsel, and, to the extent necessary, one firm of local counsel) and (b)

Prepetition ABL Agent and the Prepetition ABL Lenders (limited, in the case of counsel, to all

reasonable and documented out-of-pocket fees, costs, disbursements and expenses of GT and any

successor counsel, and, to the extent necessary, one firm of local counsel, which payments shall

be made within ten (10) business days (which time period may be extended by the applicable

professional) following receipt by the Debtors, the Creditors’ Committee, if any, and the U.S.

Trustee (the “Review Period”) of an invoice therefor (the “Invoiced Fees”) and without the

necessity of filing formal fee applications, including as to any amounts arising before or after the

Petition Date. The invoices for such Invoiced Fees shall include the number of hours billed (except


37

for financial advisors compensated on other than an hourly basis) and a summary description of

services provided and the aggregate expenses incurred by the applicable professional firm;

provided, however, that any such invoice (i) may be limited and/or redacted to protect privileged,

confidential, or proprietary information and (ii) shall not be required to contain individual time

detail (provided that such invoice shall contain (except for financial advisors compensated on other

than an hourly basis) summary data regarding hours worked by each timekeeper for the applicable

professional and such timekeepers’ hourly rates). The Debtors, the Creditors’ Committee (if

appointed), and the U.S. Trustee may object to any portion of the Invoiced Fees (the “Disputed

Invoiced Fees”) within the Review Period by filing with the Court a motion or other pleading, on

at least ten (10) business days’ prior written notice (but no more than fifteen (15) business days’

notice) of any hearing on such motion or other pleading, setting forth the specific objections to the

Disputed Invoiced Fees in reasonable narrative detail and the basis for such objections; provided

that payment of any undisputed portion of Invoiced Fees shall not be delayed based on any

objections thereto. Pending such resolution, the undisputed portion of any Invoiced Fees shall be

paid promptly by the Debtors. If the objecting party with respect to any Disputed Invoiced Fees

and the invoicing party with respect thereto are able to resolve the objection, with respect to all or

any portion of any Disputed Invoiced Fees, before any hearing on the relevant motion or other

pleading, the objecting party may summarily withdraw or update the relevant pleading and the

Debtors shall promptly pay any resolved portion of any Disputed Invoiced Fees. Any and all fees,

costs, and expenses paid prior to the Petition Date by any of the Debtors to the Prepetition Secured

Parties in connection or with respect to these matters, are hereby approved in full.

16. Adequate Protection Reservation. Nothing herein shall impair or modify

the application of section 507(b) of the Bankruptcy Code in the event that the adequate protection


38

provided to the Prepetition Secured Parties hereunder is insufficient to compensate for any

Diminution in Value of their respective interests in the Prepetition Collateral during the Chapter

11 Cases or any Successor Cases. The receipt by the Prepetition Secured Parties of the adequate

protection provided herein shall not be deemed an admission that the interests of the Prepetition

Secured Parties are adequately protected. Further, this Interim Order shall not prejudice or limit

the rights of the Prepetition Secured Parties to seek additional relief with respect to the use of Cash

Collateral or for additional adequate protection, subject, in all respects, to the terms and conditions

of the Intercreditor Agreement.

Provisions Common to DIP Financing and Use of Cash Collateral

17. Amendment of the DIP Documents. The DIP Documents may from time to

time be amended, modified or supplemented by the parties thereto without further order of the

Court if: (a) the amendment, modification, or supplement (i) is in accordance with the DIP

Documents, and (ii) does not prejudice the rights of the Debtors or their estates in any material

respect; (b) a copy (which may be provided through electronic mail or facsimile) of the

amendment, modification or supplement is provided to counsel to the DIP Agents, the Creditors’

Committee (if appointed) or any other statutory committee appointed in the Chapter 11 Cases, and

the U.S. Trustee (collectively, the “Notice Parties”); and (c) notice of the amendment,

modification or supplement is filed with the Court; provided, that neither consent of the Notice

Parties nor approval of the Court will be necessary to effectuate any such amendment, modification

or supplement, and provided further that such amendment, modification or supplement shall be

without prejudice to the right of any party in interest to be heard regarding such proposed

amendment, modification, or supplement.


39

18. Budget Maintenance and Compliance. Commencing on the second

Wednesday following the Closing Date and on the Wednesday of each second week thereafter, the

Borrowers will deliver to the DIP Agents an updated Budget for the subsequent 13-week period

consistent with the form of the Budget delivered on the Closing Date, together with all customary

supporting documentation as reasonably requested by the DIP Agents. The use of borrowings

under the DIP Facilities shall be in accordance with the Budget (as updated from time to time,

subject to the Permitted Variances, unless otherwise expressly specified in the DIP Credit

Agreements, and except as otherwise provided under this Interim Order and the DIP Documents

with respect to Debtors’ Professionals’ fees) and the terms and conditions set forth in the DIP

Documents and this Interim Order; provided, that, in the case of fees, costs and expenses of the

DIP Agents, the Prepetition Agents and the Prepetition Term Loan Lender Group, the Debtors shall

pay such fees, costs and expenses in accordance with the DIP Documents and this Interim Order

without being limited by the Budget. The Budget, any updates thereto, and any expenditures in

excess of thereof (after giving effect to the Permitted Variances) shall be subject to the approval

of, and in form and substance (as applicable) acceptable to, the DIP Agents (acting at the direction

of the applicable Required DIP Lenders in each of their sole discretion).

19. Modification of Automatic Stay. The automatic stay imposed under

section 362(a)(2) of the Bankruptcy Code is hereby modified as necessary to effectuate all of the

terms and provisions of this Interim Order and the DIP Documents, including, without limitation,

to: (a) permit the Debtors to grant the DIP Liens, Adequate Protection Liens, DIP Superpriority

Claims, and Adequate Protection Superpriority Claims; (b) permit the Debtors to perform such

acts as the DIP Agents, DIP Lenders, Prepetition ABL Agent, or the Prepetition Term Agent each

may reasonably request to assure the perfection and priority of the liens granted herein; (c) permit


40

the Debtors to incur all liabilities and obligations to the DIP Agents, DIP Lenders, and Prepetition

Secured Parties under the DIP Documents, the DIP Facilities and this Interim Order; and

(d) authorize the Debtors to make, and the DIP Agents, the DIP Lenders and the Prepetition

Secured Parties to retain and apply, payments made in accordance with the terms of this Interim

Order, the DIP Documents and the Prepetition Documents, as applicable.

20. Perfection of DIP Liens and Adequate Protection Liens. This Interim Order

shall be sufficient and conclusive evidence of the creation, validity, perfection, and priority of all

liens granted herein, including the DIP Liens and the Adequate Protection Liens, without the

necessity of filing or recording any financing statement, mortgage, notice, or other instrument or

document which may otherwise be required under the law or regulation of any jurisdiction or the

taking of any other action (including, for the avoidance of doubt, entering into any deposit account

control agreement, securities account control agreement, or other similar agreement) to grant,

attach, validate or perfect (in accordance with applicable non-bankruptcy law) the DIP Liens and

the Adequate Protection Liens, or to entitle the DIP Agents, the DIP Lenders, the DIP Obligations,

the Prepetition Secured Parties, and the Prepetition Secured Obligations to the priorities granted

herein. Notwithstanding the foregoing, the DIP Agents and the Prepetition Agents each are

authorized, but not required, to file, subject to the terms and priorities of this Interim Order and

the Intercreditor Agreement, as they in their respective sole discretion deem necessary or advisable,

such financing statements, security agreements, mortgages, notices of liens, and other similar

documents to perfect in accordance with applicable non-bankruptcy law or to otherwise evidence

the DIP Liens and the Adequate Protection Liens and all such financing statements, mortgages,

notices, and other documents shall be deemed to have been filed or recorded as of the Petition

Date; provided, however, that no such filing or recordation shall be necessary or required in order


41

to create or perfect the DIP Liens or the Adequate Protection Liens. The Debtors, without further

consent of any party, are authorized to execute and deliver, upon request of the DIP Agents and/or

the Prepetition Agents, all such financing statements, mortgages, notices, and other documents as

the DIP Agents or the Prepetition Agents may reasonably request. The DIP Agents and the

Prepetition Agents, each in its discretion, may file a photocopy of this Interim Order as a financing

statement with any filing or recording office or with any registry of deeds or similar office, in

addition to or in lieu of such financing statements, notices of lien or similar instrument. To the

extent that any Prepetition Term Agent or Prepetition ABL Agent is the secured party under any

security agreement, mortgage, leasehold mortgage, landlord waiver, credit card processor notices

or agreements, bailee letters, custom broker agreements, financing statement, account control

agreements, or any other Prepetition Documents or is listed as loss payee or additional insured

under any of the Debtors’ insurance policies, each DIP Agent (as applicable) shall also be deemed

to be the secured party or mortgagee, as applicable, under such documents or to be the loss payee

or additional insured, as applicable. The Prepetition Agents shall serve as agents for the DIP

Agents, as applicable, for purposes of perfecting the DIP Agents’ liens on all DIP Collateral that,

without giving effect to the Bankruptcy Code and this Interim Order, is of a type such that

perfection of a lien therein may be accomplished only by possession or control by a secured party.

21. Application of Proceeds of Collateral. As a condition to the entry of the

DIP Documents, the extensions of credit under the DIP Facilities and the authorization to use Cash

Collateral, the Debtors have agreed that as of and commencing on the date of the Interim Hearing,

the Debtors shall apply all net proceeds of DIP Collateral in accordance with the DIP Credit

Agreements and the Intercreditor Agreement until the respective DIP Obligations have been


42

indefeasibly paid in full, in cash. The reduction of any Prepetition Secured Obligations is subject

to the preservation of rights provided in paragraph 36 herein.

22. Protections of Rights of DIP Agents, DIP Lenders and Prepetition Secured

Parties.

(i) The Debtors will, until the DIP Termination Date, (A) maintain

books, records, and accounts to the extent and as required by the DIP Documents, (B) reasonably

cooperate with, consult with, and provide to the DIP Agents and the DIP Lenders all such

information and documents that any or all of the Debtors are obligated (including upon the request

by any DIP Agent (acting at the direction of the applicable Required DIP Lenders)) to provide

under the DIP Documents or the provisions of this Interim Order, (C) upon reasonable advance

notice, permit consultants, advisors, and other representatives of each of the DIP Agents (acting at

the direction of the applicable Required DIP Lenders), the DIP Lenders, and the Prepetition Agents

(acting at the direction of the “Required Lenders” (as such term is defined in the applicable

Prepetition Credit Agreement, the “Required Lenders”) to visit and inspect any of the Debtors’

respective properties, to examine and make abstracts or copies from any of their respective books

and records, to tour the Debtors’ business premises and other properties, and to discuss, and

provide advice with respect to, their respective affairs, finances, properties, business operations,

and accounts with their respective officers, employees, independent public accountants, and other

professional advisors (other than legal counsel) as and to the extent required by the DIP Documents

and/or the Prepetition Documents, (D) permit the DIP Agents (acting at the direction of the

applicable Required DIP Lenders), the DIP Lenders, and the Prepetition Agents (acting at the

direction of the applicable Required Lenders), and their respective consultants, advisors and other

representatives to consult with the Debtors’ management and advisors on matters concerning the


43

Debtors’ businesses, financial condition, operations and assets, and (E) upon reasonable advance

notice, permit the DIP Agents (acting at the direction of the applicable Required DIP Lenders), the

DIP Lenders, and the Prepetition Agents (acting at the direction of the applicable Required

Lenders), to conduct, at their reasonable discretion and at the Debtors’ cost and expense, field

audits, collateral examinations, liquidation valuations and inventory appraisals at reasonable times

in respect of any or all of the DIP Collateral and Prepetition Collateral.

(ii) Each of the DIP Agents (acting at the direction of the applicable

Required DIP Lenders) shall have the right to credit bid up to the full amount of the respective

outstanding DIP Obligations, in each case, including any accrued interest and expenses, in any sale

of DIP Collateral, as provided for in section 363(k) of the Bankruptcy Code, whether such sale is

effectuated through section 363 or 1129 of the Bankruptcy Code, by a Chapter 7 trustee under

section 725 of the Bankruptcy Code, or otherwise. Subject to entry of the Final Order, the

Prepetition Term Agent (acting at the direction of the Required Lenders) shall have the right to

credit bid up to the full amount of any remaining Prepetition Term Obligations in any sale of

Prepetition Collateral, as provided for in section 363(k) of the Bankruptcy Code, whether such sale

is effectuated through section 363 or 1129 of the Bankruptcy Code, by a Chapter 7 trustee under

section 725 of the Bankruptcy Code, or otherwise, subject, in each case, to the rights and duties of

the parties under the Intercreditor Agreement and to the satisfaction of the DIP Obligations, or as

otherwise consented to by the DIP Agents (at the direction of the applicable Required DIP

Lenders). Subject to entry of the Final Order, the Prepetition ABL Agent (acting at the direction

of the Required Lenders) shall have the right to credit bid up to the full amount of any remaining

Prepetition ABL Obligations in any sale of Prepetition Collateral, as provided for in section 363(k)

of the Bankruptcy Code, whether such sale is effectuated through section 363 or 1129 of the


44

Bankruptcy Code, by a Chapter 7 trustee under section 725 of the Bankruptcy Code, or otherwise,

subject, in each case, to the rights and duties of the parties under the Intercreditor Agreement and

to the satisfaction of the DIP Obligations, or as otherwise consented to by the DIP Agents (at the

direction of the applicable Required DIP Lenders). The relief set forth in this paragraph 22(ii)

shall in all events be subject to a Challenge provided for in paragraph 36 herein.

23. Proceeds of Subsequent Financing. If the Debtors, any trustee, any

examiner with expanded powers, or any responsible officer subsequently appointed in these

Chapter 11 Cases or any Successor Cases, shall obtain credit or incur debt pursuant to Bankruptcy

Code sections 364(b), 364(c) or 364(d) in violation of the DIP Documents at any time prior to the

indefeasible repayment in full of all DIP Obligations, and the termination of the obligation to

extend credit under the DIP Facilities, and such facilities are secured by any DIP Collateral, then

all the cash proceeds derived from such credit or debt shall immediately be turned over to the DIP

Agents to be applied in accordance with this Interim Order, the DIP Documents and the

Intercreditor Agreement. For the avoidance of doubt, if the Debtors, any trustee, any examiner

with expanded powers, or any responsible officer subsequently appointed in the Chapter 11 Cases,

or any Successor Cases, shall obtain credit or incur debt pursuant to Bankruptcy Code 364(d) at

any time prior to the indefeasible repayment in full of the Prepetition Secured Obligations, the

Prepetition Secured Parties’ rights to object to the Debtors’ use of Cash Collateral and assert a lack

of adequate protection shall be fully preserved.

24. Cash Collection. From and after the date of the entry of this Interim Order,

the Debtors shall maintain cash management consistent with prepetition practices and in

accordance with the Prepetition ABL Documents and this Interim Order. Except as otherwise

permitted in the Cash Management Order or otherwise agreed to in writing by the DIP Agents


45

(acting at the direction of the applicable Required DIP Lenders) and the Prepetition Term Agent

(acting at the direction of Required Lenders), the Debtors shall maintain no accounts except those

identified, or open or closed in accordance with the procedures set forth in, the Cash Management

Order. The Debtors and the financial institutions where the Debtors maintain deposit accounts (as

identified in any Cash Management Order), are authorized and directed to remit, without offset or

deduction, funds in such deposit accounts upon receipt of any direction to that effect from the DIP

Agents (acting at the direction of the applicable Required DIP Lenders). Within three weeks of

the Closing Date, the Debtors shall enter into one or more deposit account control agreements with

respect to all accounts identified in the Cash Management Order (to the extent required under the

DIP Credit Agreements) in favor of the DIP Agents for the benefit of the DIP Lenders.

25. Maintenance of DIP Collateral. Until the (x) indefeasible payment in full

of all DIP Obligations and the termination of the obligation to extend credit under the DIP

Facilities; or (y) consummation of a Chapter 11 Plan contemplated under the Restructuring Support

Agreement, the Debtors shall: (a) insure the DIP Collateral as required under the DIP Facilities or

the Prepetition Documents, as applicable; and (b) maintain the cash management system in effect

as of the Petition Date in accordance with the Cash Management Order, as modified by any order

that may be entered by the Court which has first been agreed to by the DIP Agents (acting at the

direction of the applicable Required DIP Lenders) or as otherwise required by the DIP Documents.

For the avoidance of doubt, at any time prior to the indefeasible repayment in full of the Prepetition

Secured Obligations, Prepetition Secured Parties’ rights to object to the Debtors’ use of Cash

Collateral and to assert a lack of adequate protection as a result of the Debtors’ failure to (a) insure

the DIP Collateral as required under the Prepetition Documents or (b) maintain the cash

management system in effect as of the Petition Date shall be fully preserved.


46

26. DIP Termination Date. On the DIP Termination Date, except as provided in

paragraph 28 and subject to (x) the Carve Out (as defined herein) as to the Term DIP Lenders and

Term DIP Agent, and (y) the US Trustee Carve Out (as defined herein) as to the ABL DIP Lenders

and ABL DIP Agent, (a) all DIP Obligations shall be immediately due and payable, all

commitments to extend credit under the applicable DIP Facility will terminate, other than as

required in paragraph 33 with respect (i) the Carve Out (as defined herein) as to the Term DIP

Lenders and Term DIP Agent, and (ii) the US Trustee Carve Out (as defined herein) as to the ABL

DIP Lenders and ABL DIP Agent, and (b) all authority to use Cash Collateral shall cease. For the

purposes of this Interim Order, the “DIP Termination Date” shall have the meaning provided in

the DIP Credit Agreements, as applicable.

27. Events of Default. Until the DIP Obligations are indefeasibly paid in full

and all commitments thereunder are terminated (the “DIP Repayment”), the occurrence of any of

the following events, unless waived by the DIP Agents (acting at the direction of the applicable

Required DIP Lenders) in writing and in accordance with the terms of the DIP Credit Agreements,

shall constitute an event of default (collectively, the “Events of Default”) under this Interim Order:

(a) the failure of the Debtors to perform, in any respect, any of the terms, provisions, conditions,

covenants, or obligations under this Interim Order, or (b) the occurrence of any other “Event of

Default” under, and as defined in, the Term DIP Credit Agreement or the ABL DIP Credit

Agreement.

28. Rights and Remedies Upon Event of Default. (a) The automatic stay

provisions of section 362 of the Bankruptcy Code are hereby modified to the extent necessary to

permit each DIP Agent (acting at the direction of the applicable Required DIP Lenders), subject to

the Intercreditor Agreement, to enforce all of its rights under this Interim Order and the DIP


47

Documents upon the occurrence and during the continuation of an Event of Default and the giving

by such DIP Agent (acting at the direction of the applicable Required DIP Lenders) of three

(3) business days’ prior written notice (the “Termination Notice”; and such notice period, the

“Remedies Notice Period,” provided that such period may be extended by written agreement

between the Debtors and the DIP Agents (acting at the direction of the applicable Required DIP

Lenders), in their respective sole discretion)), delivered to counsel to the Debtors, with copies to

the U.S. Trustee and counsel to the Creditors’ Committee (if appointed), subject in all respects to

the terms of this Interim Order, including clause (b) below, (1) either DIP Agent (acting at the

direction of the applicable Required DIP Lenders) may declare (any such declaration shall be

referred to herein as a “Termination Declaration”) (w) all DIP Obligations owing under the

respective DIP Documents to be immediately due and payable, (x) the termination, reduction or

restriction of any further commitment to extend credit to the Debtors to the extent any such

commitment remains outstanding under the applicable DIP Facility, (y) termination of the

applicable DIP Credit Agreement and the DIP Documents as to any future liability or obligation

of such DIP Agent and the DIP Lenders, but without affecting any of the DIP Liens or the DIP

Obligations and (z) that the application of the Carve Out has occurred through the delivery of the

Carve Out Trigger Notice (as defined herein) to the Debtors; and (2) each DIP Agent (acting at the

direction of the applicable Required DIP Lenders) may declare a termination, reduction or

restriction on the ability of the Debtors to use Cash Collateral (the date which is the earliest to

occur of any such date a Termination Declaration is delivered and the DIP Termination Date shall

be referred to herein as the “Termination Date”). Following the DIP Repayment (as defined

herein), each Prepetition Agent (acting at the direction of the applicable Required Lenders) shall

be entitled to make a Termination Declaration with respect to the foregoing clause (1) subclause


48

(z) and clause (2) in accordance with the same procedures set forth herein. Any Termination

Declaration shall be given by electronic mail to counsel to the Debtors, any DIP Agent, counsel to

the Prepetition Agents, counsel to a Creditors’ Committee (if appointed), and the U.S. Trustee.

Upon termination of the Remedies Notice Period, unless the Court orders otherwise during such

period, and subject to clause (b) below: (A) each DIP Agent and the DIP Lenders shall be entitled

to exercise their rights and remedies in accordance with the respective DIP Documents and this

Interim Order and shall be permitted to satisfy the relevant DIP Obligations, DIP Superpriority

Claims and DIP Liens, subject to (1) the Carve Out (as defined herein) as to the Term DIP Lenders

and Term DIP Agent, and (2) the US Trustee Carve Out (as defined herein) as to the ABL DIP

Lenders and ABL DIP Agent, (B) the applicable Prepetition Secured Parties shall be entitled to

exercise their rights and remedies to satisfy the relevant Prepetition Secured Obligations, Adequate

Prepetition Superpriority Claims and Prepetition Adequate Protection Liens, subject to and

consistent with (i) (A) the Carve Out (as defined herein) as to the Term DIP Lenders and Term DIP

Agent, and (B) the US Trustee Carve Out (as defined herein) as to the ABL DIP Lenders and ABL

DIP Agent, (ii) this Interim Order, and (iii) the Intercreditor Agreement. During the Remedies

Notice Period, the only basis on which the Debtors and/or a Creditors’ Committee (if any) shall be

entitled to seek an emergency hearing within the Remedies Notice Period with the Court shall be

to contest whether an Event of Default has occurred and/or is continuing. Unless the Court orders

otherwise, the automatic stay, as to all of the DIP Agents, DIP Lenders, and Prepetition Secured

Parties, shall automatically be terminated at the end of the Remedies Notice Period without further

notice or order. Upon expiration of the Remedies Notice Period, subject to (x) the Carve Out (as

defined herein) as to the Prepetition Term Parties, Term DIP Lenders and Term DIP Agent, and (y)

the US Trustee Carve Out (as defined herein) as to the Prepetition ABL Parties, ABL DIP Lenders


49

and ABL DIP Agent in all respects, including the requirements of paragraph 33 hereof, the DIP

Agents, DIP Lenders, and the Prepetition Secured Parties shall be permitted to exercise all

remedies set forth herein, in the DIP Documents, the Prepetition Documents, and as otherwise

available at law without further order of or application or motion to the Court, consistent with the

Intercreditor Agreement.

(b) Notwithstanding anything to the contrary in this Interim Order or the DIP

Documents, during the Remedies Notice Period, the Debtors shall be permitted to use proceeds of

the DIP Facilities and cash on hand, including Cash Collateral, to (1) as to Cash Collateral

consisting of DIP Term Priority Collateral and amounts in the DIP Term Controlled Account (as

defined in the DIP Credit Agreements) to fund the Carve Out Reserves and pay any amounts in

accordance with the Carve Out, (2) as to Cash Collateral consisting of DIP ABL Priority Collateral

to fund the Pre-Carve Out Trigger Notice Reserve up to the amount necessary to fund the payment

of any then unpaid portion of the US Trustee Carve Out and to pay any amounts in accordance

with the US Trustee Carve Out, and (3) subject to the consent of the DIP Agents (at the direction

of the applicable Required DIP Lenders), pay (x) accrued wages and any other critical employee-

related expenses and (y) any other critical business-related expenses, necessary to operate the

Debtors’ business or preserve the DIP Collateral as determined by the Debtors in their reasonable

discretion and in good faith.

29. Good Faith Under Section 364(e) of the Bankruptcy Code; No Modification

or Stay of this Interim Order. The DIP Agents, DIP Lenders, and the Prepetition Secured Parties

have acted in good faith in connection with this Interim Order and are entitled to rely upon the

protections granted herein and by section 364(e) of the Bankruptcy Code. Based on the findings

set forth in this Interim Order and the record made during the Interim Hearing, and in accordance


50

with section 364(e) of the Bankruptcy Code, in the event any or all of the provisions of this Interim

Order are hereafter modified or amended by a subsequent order of this Court or any other court,

the DIP Agents, the DIP Lenders, and the Prepetition Secured Parties are entitled to the protections

provided in section 364(e) of the Bankruptcy Code. Any such modification or amendment shall

not affect the validity and enforceability of any advances previously made hereunder, or any lien,

claim or priority authorized or created hereby.

30. DIP and Other Expenses. The Debtors are authorized and directed to pay

all reasonable and documented prepetition and postpetition fees and expenses of (x) the DIP

Agents and DIP Lenders in connection with the DIP Facilities (including, for the avoidance of

doubt, the non-refundable payment to the DIP Agents and the DIP Lenders of the commitment and

exit fees set forth in the DIP Credit Agreements and/or the Fee Letters (as defined therein)), and

(y) the Prepetition Agents, Prepetition Lenders, and the Prepetition Term Loan Lender Group, as

set forth herein, whether or not the transactions contemplated hereby are consummated, including

attorneys’ fees, financial advisory fees, fees and expenses of other consultants, and indemnification

and reimbursement of fees and expenses, in each case to the extent provided for in this Interim

Order, the DIP Documents, or the Prepetition Documents. Payment of all such fees and expenses

shall not be subject to allowance by the Court. Professionals for the DIP Agents, the DIP Lenders,

the Prepetition Term Loan Lender Group, the Prepetition Agents, and the Prepetition Lenders shall

not be required to comply with the U.S. Trustee fee guidelines, however any time that such

professionals seek payment of fees and expenses from the Debtors, each professional shall provide

copies of its fee and expense statements or invoices in summary form (which may be redacted or

modified to the extent necessary to delete any information subject to the attorney-client privilege,

any information constituting attorney work product, or any other confidential information, and the


51

provision of such invoices shall not constitute any waiver of the attorney-client privilege or of any

benefits of the attorney work product doctrine) to the U.S. Trustee and counsel for a Creditors’

Committee (if appointed) contemporaneously with the delivery of such fee and expense statements

to the Debtors. No attorney or advisor to the DIP Agents, DIP Lenders, the Prepetition Term Loan

Lender Group, the Prepetition Agents, or Prepetition Lenders shall be required to file an

application seeking compensation for services or reimbursement of expenses with the Court. Any

and all fees, costs, and expenses paid prior to the Petition Date by any of the Debtors to (x) the

DIP Agents or DIP Lenders in connection with or with respect to the DIP Facilities, or (y) the

Prepetition Agents and the Prepetition Term Loan Lender Group in connection with or with respect

to the Prepetition Secured Facilities, are, in each case, hereby approved in full.

31. Indemnification. The Debtors shall indemnify and hold harmless the DIP

Agents and the DIP Lenders in accordance with the terms and conditions of the DIP Credit

Agreements.

32. Proofs of Claim. The DIP Agents, the DIP Lenders, and the Prepetition

Secured Parties will not be required to file proofs of claim in any of the Chapter 11 Cases or

Successor Cases for any claim allowed herein. Notwithstanding any order entered by the Court in

relation to the establishment of a bar date in any of the Chapter 11 Cases or any Successor Cases

to the contrary, the Prepetition Agents, in each case, on behalf of themselves and the applicable

Prepetition Secured Parties, are hereby authorized and entitled, in their respective sole discretion,

but not required, to file (and amend and/or supplement, as they see fit) a single, consolidated,

master proof of claim and/or aggregate proofs of claim on behalf of the applicable Prepetition

Secured Parties, and may file such master claims in the lead Chapter 11 Case, or any Successor

Cases, for any claim allowed herein, and such claim shall be deemed filed in every case jointly


52

administered with such case. Any proofs of claim filed by any Prepetition Agent or any Prepetition

Lender shall be deemed to be in addition to and not in lieu of any other proof of claim that may be

filed by such Prepetition Agent or any Prepetition Lender. Any order entered by the Court in

relation to the establishment of a bar date in any of the Chapter 11 Cases or Successor Cases shall

not apply to any claim of the DIP Agents, the DIP Lenders, and the Prepetition Secured Parties.

33. Carve Out.

(a) Carve Out. As used in this Interim Order, the “Carve Out” means the sum

of (i) all fees required to be paid to the Clerk of the Court and to the Office of the United States

Trustee under section 1930(a) of title 28 of the United States Code plus interest at the statutory

rate (without regard to the notice set forth in (iii) below) (the aggregate total of such fees, the “US

Trustee Carve Out”); (ii) all reasonable fees and expenses up to $25,000 incurred by a trustee

under section 726(b) of the Bankruptcy Code (without regard to the notice set forth in (iii) below);

(iii) to the extent allowed at any time, whether by interim order, procedural order, or otherwise, all

unpaid fees and expenses (including any restructuring, sale, success, or other transaction fee of

any investment bankers of the Debtors or any Creditors’ Committee) (the “Allowed Professional

Fees”) incurred by persons or firms retained by the Debtors pursuant to section 327, 328, or 363

of the Bankruptcy Code (the “Debtor Professionals”) and the Creditors’ Committee pursuant to

section 328 or 1103 of the Bankruptcy Code (the “Committee Professionals” and, together with

the Debtor Professionals, the “Professional Persons”) at any time before or on the first business

day following delivery by the DIP Agent of a Carve Out Trigger Notice (as defined below), whether

allowed by the Court prior to or after delivery of a Carve Out Trigger Notice; and (iv) Allowed

Professional Fees of Professional Persons in an aggregate amount not to exceed $750,000 incurred

after the first business day following delivery by the DIP Agent of the Carve Out Trigger Notice,


53

to the extent allowed at any time, whether by interim order, procedural order, or otherwise (the

amounts set forth in this clause (iv) being the “Post-Carve Out Trigger Notice Cap”). For purposes

of the foregoing, “Carve Out Trigger Notice” shall mean a written notice delivered by email (or

other electronic means) by the DIP Agent to the Debtors, their lead restructuring counsel, the U.S.

Trustee, and counsel to the Creditors’ Committee, which notice may be delivered following the

occurrence and during the continuation of an Event of Default and acceleration of the DIP

Obligations under the DIP Facility, stating that the Post-Carve Out Trigger Notice Cap has been

invoked.

(b) Funded Reserve Account.

(i) The Debtors shall establish and fund a segregated account (the “Funded

Reserve Account”) for purpose of holding funds in trust for the Professional Persons to the extent,

and for the further payment, of such Professional Persons’ Allowed Professional Fees and for the

purposes of funding the Carve-Out. The Funded Reserve Account will be funded solely from the

proceeds of Term DIP Loans transferred directly from the DIP Term Controlled Account (as

defined in the ABL DIP Credit Agreement) and, to the extent that the amount of funds in DIP Term

Controlled Account is insufficient to fund the Funded Reserve Account in accordance with this

paragraph 33, identifiable proceeds of any DIP Term Priority Collateral. Notwithstanding anything

to the contrary in this Interim Order, the DIP Documents, or the Prepetition Documents, (A) in no

circumstances (which, for the avoidance of doubt, includes, but is not limited to, an Event of

Default or a termination of the DIP Credit Agreements or DIP Documents) shall the Debtors be

prohibited in any way from accessing or drawing upon the DIP Term Controlled Account for the

purpose of funding the Funded Reserve Account in accordance with this paragraph 33, (B) the DIP

Term Controlled Account and the Funded Reserve Account are not DIP ABL Priority Collateral,


54

and (C) no proceeds of any DIP ABL Priority Collateral will be used to fund the Funded Reserve

Account.

(ii) Upon entry of this Interim Order, the Debtors will deposit into the Funded

Reserve Account an amount equal to the aggregate amount of Allowed Professional Fees projected

to accrue from the Petition Date through June 5, 2020 as set forth in the Budget (the “Initial Funded

Reserve Amount”), which, for the avoidance of doubt, shall not include the Post-Carve Out Trigger

Notice Cap. Commencing on June 5, 2020(or the first business day thereafter), and continuing on

the first business day of each month thereafter, the Debtors shall deposit in the Funded Reserve

Account an amount equal to the aggregate amount of Allowed Professional Fees projected to

accrue for the following month in the Approved Budget plus twenty percent (20%) of such

aggregate amount of Allowed Professional Fees Projected to accrue in the following month in the

Budget (the “Monthly Funded Reserve Amount”). Each Professional Person may deliver to the

Debtors a good-faith estimate of the cumulative total amount of unreimbursed fees and expenses

incurred in the preceding month (each such statement, a “Fee Statement”), and to the extent the

amount of Allowed Professional Fees accrued and claimed in a Fee Statement exceeds the Initial

Funded Reserve Amount or the Monthly Funded Reserve Amount for the applicable period or

month, respectively, and such fees and expenses have otherwise not been paid by the Debtors, the

Debtors shall, within one (1) business day after receipt of any such Fee Statement, fund additional

amounts into the Funded Reserve Account equal to the difference between, as applicable, the Initial

Funded Reserve Amount or the Monthly Funded Reserve Amount and the amount accrued and

claimed in the applicable Fee Statement (each, a “Top Off Amount”). At any time, if the Debtors

in good faith believe a restructuring, sale, financing, or other success fee has been earned by a

Professional Person, the Debtors shall deposit in the Funded Reserve Account an amount equal to


55

such fee to the extent that the payment of such fee is contemplated in the Budget. Upon entry of

the Final Order, the Debtors shall deposit into the Funded Reserve Account an amount equal to the

Post-Carve Out Trigger Notice Cap. The Funded Reserve Account shall be maintained, and the

funds therein (the “Funded Reserve Amount”) shall be held in trust, for the benefit of Professional

Persons. Any and all amounts in the Funded Reserve Account shall not be subject to any cash

sweep and/or foreclosure provisions in the Prepetition Documents or DIP Documents and neither

the Prepetition Secured Parties nor the DIP Parties shall be entitled to sweep or foreclose on such

amounts notwithstanding any provision to the contrary in the Prepetition Documents or DIP

Documents. Notwithstanding the foregoing, any and all payments to Professional Persons shall

be paid first from the Funded Reserve Account.

(c) Carve Out Reserves. On the day on which a Carve Out Trigger Notice is

given by the applicable DIP Agent (at the direction of the applicable Required DIP Lenders) to the

Debtors with a copy to counsel to the Creditors’ Committee (the “Termination Declaration Date”),

the Carve Out Trigger Notice shall (i) constitute a demand to the Debtors to utilize all funds in the

DIP Term Controlled Account to fund the Funded Reserve Account in an amount equal to the

amount by which then unpaid amounts of the Allowed Professional Fees plus an amount equal to

the Post Carve Out Trigger Notice Cap exceeds the Funded Reserve Amount as of the date thereof,

(ii) be deemed a draw request and notice of borrowing by the Debtors for Term DIP Loans under

the Term DIP Facility (each, as defined in the DIP Credit Agreement) (on a pro rata basis based on

the then outstanding DIP Obligations), in an amount equal to the then unpaid amounts of the

Allowed Professional Fees in excess of the Funded Reserve Amount (any such amounts actually

advanced shall constitute Term DIP Loans) and (ii) also constitute a demand to the Debtors to

utilize all cash on hand as of such date and any available cash thereafter held by any Debtor (other


56

than Cash Collateral that constitutes ABL Priority Collateral), including the DIP Proceeds Account,

to fund a reserve in an amount equal to the then unpaid amounts of the Allowed Professional Fees

in excess of the Funded Reserve Amount; provided that in the event that a Termination Declaration

Date occurs, Professional Persons shall have two (2) business days to deliver additional Fee

Statements to the Debtors, and the Debtors shall fund into the Funded Reserve Amount any Top

Off Amounts. The Debtors shall deposit and hold such amounts in the Funded Reserve Account

in trust to pay such then unpaid Allowed Professional Fees (the “Pre-Carve Out Trigger Notice

Reserve”) prior to any and all other claims. On the Termination Declaration Date, the Carve Out

Trigger Notice shall also (i) be deemed a request by the Debtors for Term DIP Loans under the

Term DIP Facility (on a pro rata basis based on the then outstanding Term DIP Obligations), in an

amount equal to the Post Carve Out Trigger Notice Cap (any such amounts actually advanced shall

constitute Term DIP Loans) and (ii) constitute a demand to the Debtors to utilize all cash on hand

as of such date and any available cash thereafter held by any Debtor (other than Cash Collateral

that constitutes ABL Priority Collateral), including the DIP Proceeds Account, after funding the

Pre-Carve Out Trigger Notice Reserve, to fund a reserve in an amount equal to the Post Carve Out

Trigger Notice Cap. The Debtors shall deposit and hold such amounts in a segregated account at

the Term DIP Agent in trust to pay such Allowed Professional Fees benefiting from the Post-Carve

Out Trigger Notice Cap (the “Post Carve Out Trigger Notice Reserve” and, together with the Pre-

Carve Out Trigger Notice Reserve, the “Carve Out Reserves”) prior to any and all other claims.

(d) All funds in the Pre-Carve Out Trigger Notice Reserve shall be used first to

pay the obligations set forth in clauses (i) through (iii) of the definition of Carve Out set forth

above (the “Pre-Carve Out Amounts”), but not, for the avoidance of doubt, the Post-Carve Out

Trigger Notice Cap, until paid in full, and then, to the extent the Pre Carve Out Trigger Notice


57

Reserve has not been reduced to zero, to pay the DIP Agents for the benefit of the DIP Lenders,

unless the DIP Obligations have been indefeasibly paid in full, in cash, and all DIP Commitments

have been terminated, in which case any such excess shall be paid to the Prepetition Secured

Parties in accordance with their rights and priorities as of the Petition Date.

(e) All funds in the Post-Carve Out Trigger Notice Reserve shall be used first

to pay the obligations set forth in clause (iv) of the definition of Carve Out set forth above (the

“Post-Carve Out Amounts”), and then, to the extent the Post Carve Out Trigger Notice Reserve

has not been reduced to zero, to pay the Term DIP Agent for the benefit of the Term DIP Lenders,

unless the Term DIP Obligations have been indefeasibly paid in full, in cash, and all Term DIP

Commitments have been terminated, in which case any such excess shall be paid to the Prepetition

Term Parties in accordance with their rights and priorities as of the Petition Date.

(f) Notwithstanding anything to the contrary in the DIP Documents, or this

Interim Order, if either of the Carve Out Reserves is not funded in full in the amounts set forth in

this paragraph 33, then, any excess funds in one of the Carve Out Reserves following the payment

of the Pre-Carve Out Amounts and Post-Carve Out Amounts, respectively, shall be used to fund

the other Carve Out Reserve, up to the applicable amount set forth in this paragraph, prior to

making any payments to the DIP Agents for the benefit of the DIP Lenders or the Prepetition

Secured Parties, as applicable.

(g) Notwithstanding anything to the contrary in the DIP Documents or this

Interim Order, following delivery of a Carve Out Trigger Notice, (i) the DIP Agent and the

Prepetition Agents shall not sweep or foreclose on cash (including cash received as a result of the

sale or other disposition of any assets) of the Debtors until the Carve Out Reserves have been fully


58

funded, but shall have a security interest in any residual interest in the Carve Out Reserves, with

any excess paid to the DIP Agent for application in accordance with the DIP Documents.

(h) Further, notwithstanding anything to the contrary in this Interim Order, (i)

disbursements by the Debtors from the Carve Out Reserves shall not constitute DIP Loans or

increase or reduce the DIP Obligations, (ii) the failure of the Carve Out Reserves to satisfy in full

the Allowed Professional Fees shall not affect the priority of the Carve Out, and (iii) in no way

shall the Initial Budget, Budget, Carve Out, Post-Carve Out Trigger Notice Cap, Carve Out

Reserves, or any of the foregoing be construed as a cap or limitation on the amount of the Allowed

Professional Fees due and payable by the Debtors. For the avoidance of doubt and notwithstanding

anything to the contrary in this Interim Order, the DIP Facility or in any Prepetition Facility, (A)

the Carve Out shall be senior to all liens and claims securing the Term DIP Facilities, the

Prepetition Term Adequate Protection Liens, and any 507(b) claim, and any and all other forms of

adequate protection, liens, or claims securing the Term DIP Obligations or the Prepetition Term

Obligations, and (B) the US Trustee Carve Out shall be senior to all liens and claims securing the

ABL DIP Facilities, the Prepetition ABL Adequate Protection Liens, and any 507(b) claim, and

any and all other forms of adequate protection, liens, or claims securing the ABL DIP Obligations

or the Prepetition ABL Obligations.

(i) Payment of Allowed Professional Fees Prior to the Termination Declaration

Date. Any payment or reimbursement made prior to the occurrence of the Termination Declaration

Date in respect of any Allowed Professional Fees shall not reduce the Carve Out and shall be

funded first from the Funded Reserve Account..

(j) No Direct Obligation To Pay Allowed Professional Fees. None of the DIP

Agent, DIP Lenders, or the Prepetition Secured Parties shall be responsible for the payment or


59

reimbursement of any fees or disbursements of any Professional Person incurred in connection

with the Chapter 11 Cases or any successor cases under any chapter of the Bankruptcy Code.

Nothing in this Interim Order or otherwise shall be construed to obligate the DIP Agent, the DIP

Lenders, or the Prepetition Secured Parties, in any way, to pay compensation to, or to reimburse

expenses of, any Professional Person or to guarantee that the Debtors have sufficient funds to pay

such compensation or reimbursement

(k) Notwithstanding anything to the contrary in the DIP Documents, or this

Interim Order, if either of the Carve Out Reserves is not funded in full in the amounts set forth in

this paragraph, then, any excess funds in one of the Carve Out Reserves following the payment of

the Pre-Carve Out Amounts and Post-Carve Out Amounts, respectively, shall be used to fund the

other Carve Out Reserve, up to the applicable amount set forth in this paragraph, prior to making

any payments to the DIP Agents for the benefit of the DIP Lenders or the Prepetition Secured

Parties, as applicable.

(l) Payment of Allowed Professional Fees Prior to the Termination Declaration

Date. Any payment or reimbursement made prior to the occurrence of the Termination Declaration

Date in respect of any Allowed Professional Fees shall not reduce the Carve Out.

(m) Payment of Carve Out On or After the Termination Declaration Date. Any

payment or reimbursement made on or after the occurrence of the Termination Declaration Date

in respect of any Allowed Professional Fees shall permanently reduce the Carve Out on a dollar-

for-dollar basis. Any funding of the Carve Out by any of the DIP Lenders shall be added to, and

made a part of, the DIP Obligations owed to such DIP Lender secured by the DIP Collateral and

shall be otherwise entitled to the protections granted under this Interim Order, the DIP Documents,

the Bankruptcy Code, and applicable law.


60

34. Limitations on Use of DIP Proceeds, Cash Collateral and Carve Out. The

DIP Facilities, the DIP Collateral, the Prepetition Collateral, the Cash Collateral and the Carve Out

may not be used in connection with: (a) preventing, restricting, hindering, delaying, objecting to,

contesting, modifying or interfering with any of the DIP Agents’, the DIP Lenders’, or the

Prepetition Secured Parties’ enforcement or realization upon any of the DIP Collateral or

Prepetition Collateral in accordance with the Interim Order and the DIP Documents, subject to the

Intercreditor Agreement; (b) using or seeking to use Cash Collateral or selling or otherwise

disposing of DIP Collateral without the consent of the applicable DIP Agents (acting at the

direction of the applicable Required DIP Lenders) other than as permitted in the DIP Documents

and this Interim Order; (c) outside the ordinary course of business, using or seeking to use any

insurance proceeds constituting DIP Collateral without the consent of the applicable DIP Agents

(acting at the direction of the applicable Required DIP Lenders); (d) incurring Indebtedness (as

defined in the applicable Prepetition Credit Agreement) without the prior consent of the DIP

Agents (acting at the direction of the applicable Required DIP Lenders), except to the extent

permitted under the DIP Credit Agreements; (e) seeking to amend or modify any of the rights

granted to the DIP Agents, the DIP Lenders, or the Prepetition Secured Parties under this Interim

Order, the DIP Documents, or the Prepetition Documents; (f) objecting to or challenging in any

way the DIP Liens, DIP Obligations, Prepetition Liens, Prepetition Secured Obligations, DIP

Collateral (including Cash Collateral) or, as the case may be, Prepetition Collateral, or any other

claims or liens, held by or on behalf of any of the DIP Agents, the DIP Lenders, or the Prepetition

Secured Parties, respectively; (g) asserting, commencing or prosecuting any claims or causes of

action whatsoever, including, without limitation, any actions under Chapter 5 of the Bankruptcy

Code or applicable state law equivalents, any so-called “lender liability” claims and causes of


61

action, or actions to recover or disgorge payments, against any of the DIP Agents, the DIP Lenders,

the Prepetition Secured Parties, or any of their respective affiliates, successors and assigns and the

partners, shareholders, controlling persons, directors, officers, employees, agents, trustees,

administrators, managers, advisors, attorneys and representatives, solely in their capacities as such;

(h) litigating, objecting to, challenging, or contesting in any manner, or raising any defenses to, the

validity, extent, amount, perfection, priority, or enforceability of any of the DIP Obligations, the

DIP Liens, the Prepetition Liens, the Prepetition Secured Obligations or any rights or interests of

any of the DIP Agents, the DIP Lenders, the Prepetition Secured Parties granted under this Interim

Order or the DIP Documents; or (i) seeking to subordinate, recharacterize, disallow or avoid the

DIP Obligations or the Prepetition Secured Obligations; provided, however, that the Carve Out and

such collateral proceeds and loans under the DIP Documents may be used for allowed fees and

expenses, in an amount not to exceed $50,000 in the aggregate, incurred solely by a Creditors’

Committee (if appointed), in investigating (but not prosecuting or challenging) the validity,

enforceability, perfection, priority or extent of the Prepetition Liens or Prepetition Secured

Obligations (the “Investigation Budget”).

35. Payment of Compensation. Nothing herein shall be construed as a consent

to the allowance of any professional fees or expenses of the Professional Persons or shall affect

the right of the DIP Agents, the DIP Lenders, or the Prepetition Secured Parties to object to the

allowance and payment of such fees and expenses.

36. Effect of Stipulations on Third Parties.

(i) Generally. The admissions, stipulations, agreements, releases, and

waivers set forth in this Interim Order are and shall be binding on the Debtors, any subsequent

trustee, responsible person, examiner with expanded powers, any other estate representative, and


62

all creditors and parties in interest and all of their successors in interest and assigns, including,

without limitation, any official committee that may be appointed in these cases, unless, and solely

to the extent that, (i) a Creditors’ Committee (if any) or any other party in interest with standing

and requisite authority (other than the Debtors, as to which any Challenge (as defined herein) shall

be waived) has timely filed the appropriate pleadings, and timely commenced the appropriate

proceeding required under the Bankruptcy Code and Bankruptcy Rules, including, without

limitation, as required pursuant to Part VII of the Bankruptcy Rules challenging the Debtors’

Stipulations (each such proceeding or appropriate pleading commencing a proceeding or other

contested matter, a “Challenge”) no later than (1) for a Creditors’ Committee (to the extent one is

appointed), sixty (60) calendar days from the date of the Creditors’ Committee’s appointment, or

(2) seventy-five (75) calendar days from the entry of the Interim Order for any other party in

interest with requisite standing (the “Challenge Deadline”), as such applicable date may be

extended from time to time by written agreement from both of the Prepetition Agents (acting at

the direction of the applicable Required Lenders) and (ii) this Court enters judgment in favor of

the plaintiff or movant in any such timely and properly commenced Challenge proceeding and any

such judgment has become a final judgment that is not subject to any further review or appeal;

provided that any trustee appointed or elected in these Chapter 11 Cases prior to the expiration of

the Challenge Deadline shall have until the later of (x) the Challenge Deadline or (y) 10 calendar

days from the date such trustee is appointed to commence a Challenge proceeding.

(ii) Binding Effect. To the extent no Challenge is timely and properly

commenced by the Challenge Deadline, then, without further notice, motion, or application to,

order of, or hearing before, this Court and without the need or requirement to file any proof of

claim, the Debtors’ Stipulations shall, pursuant to this Interim Order, become binding, conclusive,


63

and final on any person, entity, or party in interest in the Chapter 11 Cases, and their successors

and assigns, and in any Successor Case for all purposes and shall not be subject to challenge or

objection by any party in interest, including, without limitation, a trustee, responsible individual,

examiner with expanded powers, or other representative of the Debtors’ estates. Notwithstanding

anything to the contrary herein, if any such proceeding is properly and timely commenced, the

Debtors’ Stipulations shall nonetheless remain binding on all other parties in interest and

preclusive as provided in subparagraph (i) above, except to the extent that any of such Debtors’

Stipulations is expressly the subject of a timely and properly filed Challenge, which Challenge is

successful as set forth in a final judgment, and only as to plaintiffs or movants that have complied

with the terms hereof. To the extent any such Challenge proceeding is timely and properly

commenced, the Prepetition Agents and any other Prepetition Secured Party to the extent approved

by the Debtors and the Prepetition Agents (acting at the direction of the Required Lenders) in their

respective reasonable discretion, shall be entitled to payment of the related costs and expenses,

including, but not limited to, reasonable attorneys’ fees, incurred under the Prepetition Documents

in defending themselves and the other Prepetition Secured Parties in any such proceeding as

adequate protection.

37. No Third Party Rights. Except as explicitly provided for herein, this Interim

Order does not create any rights for the benefit of any third party, creditor, equity holder or any

direct, indirect, or incidental beneficiary.

38. Section 506(c) Claims. Subject to the entry of a Final Order, no costs or

expenses of administration which have been or may be incurred in the Chapter 11 Cases or the

preservation, protection, or enhancement of realization by the DIP Secured Parties upon the DIP

Collateral or Prepetition Lenders upon the Prepetition Collateral, as applicable, at any time shall


64

be charged against the DIP Agent, DIP Lenders, or the Prepetition Secured Parties, or any of their

respective claims, the DIP Collateral, or the Prepetition Collateral pursuant to sections 105 or

506(c) of the Bankruptcy Code, or otherwise, without the prior written consent, as applicable, of

the DIP Agents (acting at the direction of the applicable Required DIP Lenders) or the Prepetition

Term Agent (acting at the direction of the Required Lenders) or the Prepetition ABL Agent (acting

at the direction of the Required Lenders), as applicable, and no such consent shall be implied from

any other action, inaction, or acquiescence by any such agents or lenders.

39. No Marshaling/Applications of Proceeds. Subject to the entry of a Final

Order, the DIP Agents, DIP Lenders, and Prepetition Secured Parties shall not be subject to the

equitable doctrine of “marshaling” or any other similar doctrine with respect to any of the DIP

Collateral or the Prepetition Collateral, as the case may be, and proceeds shall be received and

applied pursuant to this Interim Order and the DIP Documents notwithstanding any other

agreement or provision to the contrary.

40. Section 552(b). Subject to the entry of a Final Order, the Prepetition

Secured Parties shall each be entitled to all of the rights and benefits of section 552(b) of the

Bankruptcy Code, and the “equities of the case” exception under section 552(b) of the Bankruptcy

Code shall not apply to the Prepetition Secured Parties, with respect to proceeds, product, offspring

or profits of any of the Prepetition Collateral.

41. Access to DIP Collateral. Without limiting any other rights or remedies of

the DIP Agents, exercisable on behalf of the DIP Lenders, contained in this Interim Order, the DIP

Documents, or otherwise available at law or in equity, and subject to the terms of the DIP

Documents, upon written notice to the landlord of any leased premises that an Event of Default or

the Termination Date has occurred and is continuing, the applicable DIP Agents (acting at the


65

direction of the Required DIP Lenders) may, subject to the applicable notice provisions, if any, in

this Interim Order and any separate applicable agreement by and between such landlord and the

DIP Agents, enter upon any leased premises of the Debtors or any other party for the purpose of

exercising any remedy with respect to DIP Collateral located thereon and shall be entitled to all of

the Debtors’ rights and privileges as lessee under such lease without interference from the landlords

thereunder. Nothing herein shall require the DIP Agents to assume any lease as a condition to the

rights afforded in this paragraph. For the avoidance of doubt, subject to (and without waiver of)

the rights of the DIP Agents and/or DIP Lenders under applicable nonbankruptcy law, the DIP

Agents and/or DIP Lenders can only enter upon a leased premises after an Event of Default or the

Termination Date in accordance with (i) a separate agreement with the landlord at the applicable

leased premises, (ii) consent of the landlord, or (iii) upon entry of an order of this Court obtained

by motion of such DIP Agent and/or DIP Lenders, on such notice to the landlord as shall be

required by this Court or applicable law.

42. Limits on Lender Liability. Subject to the entry of a Final Order, nothing in

this Interim Order or in any of the DIP Documents, Prepetition Documents, or any other documents

related thereto shall in any way be construed or interpreted to impose or allow the imposition upon

the DIP Agents, the DIP Lenders or the Prepetition Secured Parties of any liability for any claims

arising from any activities by the Debtors in the operation of their businesses or in connection with

the restructuring efforts and the administration of these Chapter 11 Cases. The DIP Agents, the

DIP Lenders and the Prepetition Secured Parties shall not be deemed in control of the operations

of the Debtors or to be acting as a “responsible person” or “owner or operator” with respect to the

operation or management of the Debtors (as such terms, or any similar terms, are used in the United

States Comprehensive Environmental Response, Compensation and Liability Act,


66

29 U.S.C. §§ 9601 et seq., as amended, or any similar federal or state statute) as a result of or in

connection with this Interim Order and the DIP Documents. Nothing in this Interim Order, the

DIP Documents, or the Prepetition Documents shall in any way be construed or interpreted to

impose or allow the imposition upon the DIP Agents, the DIP Lenders, or any of the Prepetition

Secured Parties of any liability for any claims arising from the prepetition or postpetition activities

of any of the Debtors.

43. Insurance Proceeds and Policies. Upon the entry of this Interim Order and

to the fullest extent provided by applicable law, the DIP Agents (on behalf of the DIP Lenders) and

the Prepetition Agents (on behalf of the other Prepetition Secured Parties) shall be, and shall be

deemed to be, without any further action or notice, named as additional insured and lender loss

payee on each insurance policy maintained by the Debtors that in any way relates to any of the

DIP Collateral.

44. Joint and Several Liability. Nothing in this Interim Order shall be construed

to constitute a substantive consolidation of any of the Debtors’ estates, it being understood,

however, that the Borrowers and the other Loan Parties shall be jointly and severally liable for the

obligations hereunder and all DIP Obligations in accordance with the terms hereof and of the DIP

Facilities and the DIP Documents.

45. Rights Preserved. Except as provided in this Interim Order and the DIP

Documents, and subject to the obligations and agreements of such parties under the Restructuring

Support Agreement, the entry of this Interim Order is without prejudice to, and does not constitute

a waiver of, expressly or implicitly: (a) the DIP Agents’, DIP Lenders’, and Prepetition Secured

Parties’ right to seek any other or supplemental relief in respect of the Debtors; (b) any of the rights

of any of the DIP Agents, DIP Lenders, or the Prepetition Secured Parties under the Bankruptcy


67

Code or under non-bankruptcy law, including, without limitation, the right to (i) request

modification of the automatic stay of section 362 of the Bankruptcy Code, (ii) request dismissal of

any of the Chapter 11 Cases or Successor Cases, conversion of any of the Chapter 11 Cases to

cases under Chapter 7, or appointment of a Chapter 11 trustee or examiner with expanded powers,

or (iii) propose, subject to the provisions of section 1121 of the Bankruptcy Code, a Chapter 11

plan or plans; or (c) subject to the Intercreditor Agreement, any other rights, claims or privileges

(whether legal, equitable or otherwise) of any of the DIP Agents, DIP Lenders, or Prepetition

Secured Parties. Notwithstanding anything herein to the contrary, the entry of this Interim Order

is without prejudice to, and does not constitute a waiver of, expressly or implicitly, the Debtors’,

a Creditors’ Committee’s (if appointed) or any party in interest’s right to oppose any of the relief

requested in accordance with the immediately preceding sentence except as expressly set forth in

this Interim Order. Entry of this Interim Order is without prejudice to any and all rights of any

party in interest with respect to the terms and approval of the Final Order and any other position

which any party in interest deems appropriate to raise in the Chapter 11 Cases.

46. No Waiver by Failure to Seek Relief. The failure of the DIP Agents, DIP

Lenders, or Prepetition Secured Parties to seek relief or otherwise exercise their rights and

remedies under this Interim Order, the DIP Documents, the Prepetition Documents, or applicable

law, as the case may be, shall not constitute a waiver of any of the rights hereunder, thereunder, or

otherwise of the DIP Agents, DIP Lenders, or Prepetition Secured Parties.

47. Binding Effect of Interim Order. Immediately upon the entry of the Interim

Order by this Court, the terms and provisions of this Interim Order shall become valid and binding

upon and inure to the benefit of the Debtors, DIP Agents, DIP Lenders, Prepetition Secured Parties,

all other creditors of any of the Debtors, any Creditors’ Committee (or any other court appointed


68

committee) appointed in the Chapter 11 Cases, and all other parties-in-interest and their respective

successors and assigns, including any trustee or other fiduciary hereafter appointed in any of the

Chapter 11 Cases, any Successor Cases, or upon dismissal of any Chapter 11 Case or Successor

Case.

48. No Modification of Interim Order. Until and unless the DIP Obligations

and the Prepetition Secured Obligations have been indefeasibly paid in full in cash (such payment

being without prejudice to any terms or provisions contained in the DIP Facilities which survive

such discharge by their terms), and all commitments to extend credit under the DIP Facilities have

been terminated, the Debtors irrevocably waive the right to seek and shall not seek or consent to,

directly or indirectly: (a) without the prior written consent of the DIP Agents or the Prepetition

Agents acting at the direction of the applicable Required DIP Lenders or Required Lenders (or, in

each case, the requisite lenders otherwise required to effectuate any such waiver, consent or

amendment the DIP Credit Agreements or of the Prepetition Credit Agreements, as applicable),

respectively, (i) any modification, stay, vacatur or amendment to this Interim Order; or (ii) a

priority claim for any administrative expense or unsecured claim against the Debtors (now existing

or hereafter arising of any kind or nature whatsoever, including, without limitation any

administrative expense of the kind specified in sections 503(b), 506(c), 507(a) or 507(b) of the

Bankruptcy Code) in any of the Chapter 11 Cases or Successor Cases, equal or superior in priority

to the DIP Superpriority Claims or Adequate Protection Superpriority Claims, other than (i) the

Carve Out as to the DIP Term Priority Collateral, and (ii) the US Trustee Carve Out as to the DIP

ABL Priority Collateral; (b) without the prior written consent of the DIP Agents (acting at the

direction of the applicable Required DIP Lenders), any lien on any of the DIP Collateral with

priority equal or superior to the DIP Liens, except as specifically provided in the DIP Documents;


69

(c) without the prior written consent of the Prepetition Agents (acting at the direction of the

applicable Required Lenders), any lien on any of the Prepetition Collateral with priority equal or

superior to the Prepetition Liens or Adequate Protection Liens (other than the DIP Liens); or (d)

without the prior written consent of the DIP Agents or Prepetition Agents, as applicable, any

modification, stay, vacatur or amendment to this Interim Order affecting the rights, duties or

obligations of the DIP Agents or Prepetition Agents, as applicable. The Debtors irrevocably waive

any right to seek any amendment, modification or extension of this Interim Order without the prior

written consent, as provided in the foregoing, of the DIP Agents or the Prepetition Agents acting

at the direction of the applicable Required DIP Lenders or Required Lenders, respectively, and no

such consent shall be implied by any other action, inaction or acquiescence of the DIP Agents or

the Prepetition Agents.

49. Continuing Effect of the Intercreditor Agreement. The Intercreditor

Agreement and any other intercreditor agreement or subordination agreement between and/or

among any Prepetition Secured Party, and any other applicable intercreditor or subordination

provisions contained in any of the Prepetition Documents (i) shall remain in full force and effect,

(ii) shall continue to govern the relative priorities, rights and remedies of the Prepetition Secured

Parties and the DIP Secured Parties (including, by agreement of the Prepetition Term Agent and

the Prepetition ABL Agent (in each case, at the direction of the requisite respective Prepetition

Secured Parties), which agreement is binding on the ABL DIP Agent and Term DIP Agent, the

relative priorities, rights and remedies of such parties with respect to the replacement liens and

administrative expense claims and superpriority administrative expense claims granted, or

amounts payable, by the Debtors under this Interim Order or otherwise and the modification of the

automatic stay), and (iii) shall not be deemed to be amended, altered or modified by the terms of


70

this Interim Order or the DIP Documents, unless expressly set forth herein. The Debtors, the DIP

Agents, DIP Lenders, and Prepetition Secured Parties have each agreed that they shall be bound

by, and in all respects the DIP Facilities and DIP Collateral shall be governed by, and be subject

to, all the terms, provisions and restrictions of the Intercreditor Agreement, except as may be

expressly modified by this Interim Order.

50. Disposition of or New Liens on DIP Collateral. The Debtors shall not sell,

transfer, lease, encumber or otherwise dispose of any portion of the DIP Collateral (or enter into

any binding agreement to do so) other than in the ordinary course of business without the prior

written consent of the DIP Agents (at the direction of the applicable Required DIP Lenders), or as

otherwise provided for in the DIP Documents.

51. Interim Order Controls. In the event of any inconsistency between the terms

and conditions of the DIP Documents and of this Interim Order, the provisions of this Interim

Order shall govern and control, and the DIP Agents and Prepetition Agents shall not have any

liability to any DIP Lender or Prepetition Lender for actions taken (or not taken) by the DIP Agents

or Prepetition Agents, as applicable, in accordance with this Interim Order.

52. Discharge. The DIP Obligations and the obligations of the Debtors with

respect to the adequate protection provided herein shall not be discharged by the entry of an order

confirming any plan of reorganization in any of the Chapter 11 Cases, notwithstanding the

provisions of section 1141(d) of the Bankruptcy Code, unless such obligations have been

indefeasibly paid in full in cash and all commitments have been terminated in writing, on or before

the effective date of such confirmed plan of reorganization or the DIP Agents (acting at the

direction of the applicable Required DIP Lenders) and/or the Prepetition Agents (acting at the

direction of the applicable Required Lenders), as applicable, have otherwise agreed in writing.


71

53. Survival. The provisions of this Interim Order and any actions taken

pursuant hereto shall survive entry of any order which may be entered: (a) confirming any plan of

reorganization in any of the Chapter 11 Cases; (b) converting any of the Chapter 11 Cases to a case

under Chapter 7 of the Bankruptcy Code; (c) dismissing any of the Chapter 11 Cases or any

Successor Cases; or (d) pursuant to which this Court abstains from hearing any of the Chapter 11

Cases or Successor Cases. The terms and provisions of this Interim Order, including the claims,

liens, security interests, and other protections granted to the DIP Agents, DIP Lenders, and

Prepetition Secured Parties granted pursuant to this Interim Order and/or the DIP Documents, shall

continue in the Chapter 11 Cases, in any Successor Cases, or following dismissal of the Chapter

11 Cases or any Successor Cases, and shall maintain their priority as provided by this Interim

Order until: (i) in respect of the DIP Facilities, all the DIP Obligations, pursuant to the DIP

Documents and this Interim Order, have been indefeasibly paid in full in cash and all commitments

have been terminated; and (ii) in respect of the Prepetition Credit Agreements, all of the

Prepetition Obligations pursuant to the Prepetition Documents and this Interim Order have been

indefeasibly paid in full in cash. The terms and provisions concerning the indemnification of the

DIP Agents and DIP Lenders shall continue in the Chapter 11 Cases, in any Successor Cases,

following dismissal of the Chapter 11 Cases or any Successor Cases, following termination of the

DIP Documents and/or the indefeasible repayment of the DIP Obligations.

54. Satisfaction of DIP Claims. Subject to entry of the Final Order, in

connection with any allocation of the Debtors’ property for purposes of determining the value the

Prepetition Secured Parties’ interests in the Prepetition Collateral after the Debtors have accounted

for, and satisfied the DIP Claims (in connection with confirmation of a plan of reorganization or

otherwise), the DIP Claims shall be satisfied from all present and after acquired property of the


72

Debtors (including the proceeds, product, offspring, profits or value thereof), wherever located,

not subject to a lien or security interest on the Petition Date prior to the use of the Prepetition

Collateral to satisfy such DIP Claims.

55. Final Hearing. The Final Hearing to consider entry of the Final Order and

final, approval of the DIP Facilities is scheduled for [___], 2020, at ___ __.m. (Eastern Standard

Time) before the Honorable United States Bankruptcy Judge Christopher S. Sontchi, at the United

States Bankruptcy Court for the District of Delaware. On or before ___, 2020, the Debtors shall

serve, by United States mail, first-class postage prepaid, notice of the entry of this Interim Order

and of the Final Hearing (the “Final Hearing Notice”), together with copies of this Interim Order,

the proposed Final Order and the DIP Motion, on: (a) the parties having been given notice of the

Interim Hearing; (b) any party which has filed prior to such date a request for notices with this

Court; (c) counsel for a Creditors’ Committee (if appointed); (d) the Securities and Exchange

Commission; and (e) the Internal Revenue Service. The Final Hearing Notice shall state that any

party in interest objecting to the entry of the proposed Final Order shall file written objections with

the Clerk of the Court no later than on ________, 2020, which objections shall be served so as to

be received on or before such date by: (i) counsel to the Debtors, Kirkland & Ellis LLP, 601

Lexington Avenue, New York, NY 10022, Attn: and Jonathan S. Henes and Neda Davanipour; (ii)

counsel to the Prepetition Term Loan Lender Group, King & Spalding LLP, 1185 Avenue of the

Americas, New York, NY 10036, Attn: W. Austin Jowers and Peter Montoni (iii) counsel to the

Prepetition Term Agent and DIP Agent, A&P; (iv) counsel to the Prepetition ABL Agent and ABL

DIP Agent, Greenberg Traurig, LLP, 3333 Piedmont Road, NE, Suite 2500, Terminus 200, Atlanta,

GA 30305, Attn: David Kurzweil and John Dyer; and (v) the Office of the U.S. Trustee for region

3, 844 King Street, Suite 3307, Wilmington, DE 19801, Attn: Rosa Sierra and Hannah McCollum.


73

56. Nunc Pro Tunc Effect of this Interim Order. This Interim Order shall

constitute findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052 and shall take

effect and be enforceable nunc pro tunc to the Petition Date immediately upon execution thereof.

57. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this

Interim Order are immediately effective and enforceable upon its entry.

58. No later than two (2) business days after the date of this Interim Order, the

Debtors shall serve a copy of the Interim Order on the Notice Parties and shall file a certificate of

service no later than 24 hours after service.


EXHIBIT A

ABL DIP Credit Agreement


EXHIBIT B

Term DIP Credit Agreement


EXHIBIT C

Initial Budget


PHIL1 8943004v.1

Schedule 1 to Exhibit A

Budget


AP

C

DIP

Fo

reca

st

CH

AP

TER

11

PO

ST-B

AN

KR

UP

TCY

We

ek

End

ing

in '0

00s

6-J

un

13

-Ju

n2

0-J

un

27

-Ju

n4

-Ju

l1

1-J

ul

18

-Ju

l2

5-J

ul

1-A

ug

8-A

ug

15

-Au

g2

2-A

ug

29

-Au

gTo

tal

Rec

eip

ts

AP

Gro

up

1,6

17

$

2

,37

4$

2,3

54

$

2

,38

4$

94

0$

2

,56

0$

2,4

30

$

1

,69

0$

2,3

90

$

2

,22

5$

1,3

65

$

2

,11

5$

2,5

65

$

2

7,0

09

$

CW

D1

,25

0

1,9

50

3

,88

6

4,2

47

3

,50

0

5,2

29

5

,38

2

4,0

00

4

,82

3

2,4

50

5

,84

4

3,6

50

3

,94

3

50

,15

5

Tota

l Rec

eip

ts2

,86

7

4,3

24

6

,24

0

6,6

31

4

,44

0

7,7

89

7

,81

2

5,6

90

7

,21

3

4,6

75

7

,20

9

5,7

65

6

,50

8

77

,16

4$

Op

erat

ing

Dis

bu

rsem

ents

Inve

nto

ry

AP

Exh

aust

2,1

83

3

,94

4

3,3

01

2

,21

4

3,4

25

1

,34

7

2,8

81

2

,62

8

2,2

69

2

,60

9

2,0

35

2

,09

7

2,5

16

3

3,4

49

CW

D2

,83

0

2,6

57

2

,91

1

2,4

71

1

,97

1

2,5

46

2

,44

6

1,6

75

1

,88

0

1,9

61

2

,08

9

1,6

26

1

,37

8

28

,44

0

Tota

l In

ven

tory

5,0

13

6

,60

1

6,2

11

4

,68

5

5,3

97

3

,89

3

5,3

27

4

,30

3

4,1

49

4

,57

0

4,1

24

3

,72

2

3,8

94

6

1,8

89

Sala

ries

& B

enef

its

1,4

58

1

,17

9

1,2

56

1

,78

9

1,3

17

1

,22

2

1,3

16

1

,77

9

1,2

98

1

,17

6

1,2

98

1

,49

6

1,2

98

1

7,8

83

Frei

ght

55

1

3

87

39

4

4

02

40

2

4

02

40

2

4

02

40

2

4

02

40

2

4

02

40

2

5

,35

2

Tari

ffs

-

-

-

1

,78

5

-

-

-

1

,95

9

-

-

-

-

1,5

70

5

,31

4

Occ

up

ancy

98

2

-

63

-

-

9

13

-

-

-

-

91

3

-

-

2

,87

1

Uti

litie

s3

8

35

3

5

35

3

5

35

3

5

35

3

5

35

3

5

35

3

5

45

8

IT-

24

-

-

-

-

-

-

-

-

-

-

-

24

Co

nsu

ltan

ts /

10

99

s2

05

18

6

1

35

41

7

1

28

13

0

4

0

33

5

8

33

2

03

33

4

8

1,6

44

Reb

ates

/ O

ther

3,0

39

1

,91

6

94

0

9

15

15

0

4

40

15

0

1

50

15

0

1

50

15

0

1

50

15

0

8

,45

0

Tota

l Op

erat

ing

Dis

bu

rsem

ents

11

,28

5

1

0,3

28

9,0

34

1

0,0

28

7,4

28

7

,03

4

7,2

70

8

,66

1

6,0

92

6

,36

5

7,1

25

5

,83

8

7,3

97

1

03

,88

5

Op

erat

ing

Cas

h F

low

(8,4

18

)$

(6,0

04

)$

(2,7

94

)$

(3,3

97

)$

(2,9

88

)$

75

5$

5

42

$

(2,9

71

)$

1,1

21

$

(1

,69

0)

$

8

4$

(73

)$

(88

8)

$

(26

,72

1)

$

No

n-O

per

atin

g D

isb

urs

emen

ts

Ch

apte

r 1

1 P

rofe

ssio

nal

Fee

s2

,39

9

-

-

25

7

-

-

9

,84

2

46

1

0

46

1

0

10

1

0

12

,63

1

Cla

ims

Age

nt

-

-

-

-

-

-

20

0

-

-

-

-

-

-

2

00

US

Tru

stee

-

-

-

5

00

-

-

-

-

-

-

-

-

-

5

00

Uti

lity

Dep

osi

ts-

20

0

-

-

-

-

(2

00

)

-

-

-

-

-

-

-

50

3(b

)(9

)-

-

-

-

-

-

-

-

-

-

-

-

-

-

DIP

Lo

an In

tere

st-

-

-

-

-

41

7

-

-

-

41

7

-

-

-

83

3

DO

J Se

ttle

men

t-

-

-

-

-

-

4

,30

0

-

-

-

-

-

-

4,3

00

Seve

ran

ce3

6

20

5

1

14

3

8

2

19

-

18

1

8

18

1

8

18

2

69

Tota

l No

n-O

per

atin

g D

isb

urs

emen

ts2

,43

5

22

0

5

1

77

1

3

8

41

9

1

4,1

61

46

2

8

48

1

2

8

28

2

8

18

,73

3

Net

Cas

h F

low

(10

,85

3)

$

(6,2

24

)$

(2,8

45

)$

(4,1

68

)$

(3,0

26

)$

33

6$

(1

3,6

19

)$

(3

,01

7)

$

1

,09

3$

(2,1

71

)$

56

$

(1

01

)$

(9

16

)$

(4

5,4

54

)$

Cas

h B

alan

ce

Beg

inn

ing

3,6

61

$

2

2,6

16

$

19

,06

0$

1

4,3

93

$

13

,17

5$

1

0,0

48

$

31

,13

1$

1

3,7

56

$

10

,73

9$

1

2,2

21

$

10

,05

1$

1

0,1

07

$

11

,60

5$

3

,66

1$

Net

Cas

h F

low

(10

,85

3)

(6,2

24

)

(2

,84

5)

(4,1

68

)

(3

,02

6)

33

6

(1

3,6

19

)

(3

,01

7)

1,0

93

(2

,17

1)

56

(1

01

)

(9

16

)

(4

5,4

54

)

AB

L B

orr

ow

ings

/ (

Pay

do

wn

)(1

92

)

2

,66

8

(1,8

22

)

2

,95

1

(10

1)

74

6

(3

,75

6)

-

3

89

-

-

1,5

99

-

2,4

82

DIP

Lo

an3

0,0

00

-

-

-

-

20

,00

0

-

-

-

-

-

-

-

50

,00

0

End

ing

Bo

ok

Bal

ance

22

,61

6$

1

9,0

60

$

14

,39

3$

1

3,1

75

$

10

,04

8$

3

1,1

31

$

13

,75

6$

1

0,7

39

$

12

,22

1$

1

0,0

51

$

10

,10

7$

1

1,6

05

$

10

,68

9$

1

0,6

89

$

Rev

olv

er B

alan

ce

Beg

inn

ing

Bal

ance

78

,36

4$

7

8,3

68

$

81

,03

6$

7

9,2

14

$

82

,16

5$

8

2,3

94

$

83

,14

0$

7

9,3

84

$

79

,38

4$

8

0,1

04

$

80

,10

4$

8

0,1

04

$

81

,70

3$

AB

L B

orr

ow

ings

/ (

Pay

do

wn

)(1

92

)

2

,66

8

(1,8

22

)

2

,95

1

(10

1)

74

6

(3

,75

6)

-

3

89

-

-

1,5

99

-

Inte

rest

/ F

ees

19

6

-

-

-

33

0

-

-

-

33

1

-

-

-

-

End

ing

Bal

ance

78

,36

8$

8

1,0

36

$

79

,21

4$

8

2,1

65

$

82

,39

4$

8

3,1

40

$

79

,38

4$

7

9,3

84

$

80

,10

4$

8

0,1

04

$

80

,10

4$

8

1,7

03

$

81

,70

3$

Fin

al1

of

26

/2/2

02

0


AP

C

DIP

Fo

reca

st

CH

AP

TER

11

PO

ST-B

AN

KR

UP

TCY

in '0

00s

6-J

un

13

-Ju

n2

0-J

un

27

-Ju

n4

-Ju

l1

1-J

ul

18

-Ju

l2

5-J

ul

1-A

ug

8-A

ug

15

-Au

g2

2-A

ug

29

-Au

g

Inve

nto

ry

Inve

nto

ry, N

et1

53

,21

7$

1

53

,21

7$

1

53

,21

7$

1

76

,43

7$

1

76

,43

7$

1

76

,43

7$

1

76

,43

7$

1

76

,43

7$

1

78

,56

0$

1

78

,56

0$

1

78

,56

0$

1

78

,56

0$

1

78

,56

0$

% t

o B

BC

Inve

nto

ry9

7.3

%9

7.3

%9

7.3

%8

8.0

%8

8.0

%8

8.0

%8

8.0

%8

8.0

%8

8.0

%8

8.0

%8

8.0

%8

8.0

%8

8.0

%

Bo

rro

win

g B

ase

Cer

tifi

cate

Inve

nto

ry1

49

,02

7

14

9,0

27

1

49

,02

7

15

5,2

65

1

55

,26

5

15

5,2

65

1

55

,26

5

15

5,2

65

1

57

,13

3

15

7,1

33

1

57

,13

3

15

7,1

33

1

57

,13

3

% In

elig

ible

16

.7%

16

.7%

17

.2%

17

.0%

17

.0%

17

.0%

17

.0%

17

.0%

17

.0%

17

.0%

17

.0%

17

.0%

17

.0%

Inel

igib

le In

ven

tory

24

,94

9

2

4,9

49

25

,69

4

2

6,3

95

26

,39

5

2

6,3

95

26

,39

5

2

6,3

95

26

,71

3

2

6,7

13

26

,71

3

2

6,7

13

26

,71

3

Net

Elig

ible

Inve

nto

ry1

24

,07

8

12

4,0

78

1

23

,33

3

12

8,8

70

1

28

,87

0

12

8,8

70

1

28

,87

0

12

8,8

70

1

30

,42

0

13

0,4

20

1

30

,42

0

13

0,4

20

1

30

,42

0

Effe

ctiv

e A

dva

nce

Rat

e5

0.5

%5

0.5

%4

8.8

%4

8.8

%4

8.8

%4

8.8

%4

6.4

%4

6.4

%4

6.4

%4

6.4

%4

6.4

%4

6.4

%4

6.4

%

Net

Inve

nto

ry A

vaila

bili

ty6

2,6

65

$

62

,66

5$

6

0,1

25

$

62

,82

4$

6

2,8

24

$

62

,82

4$

5

9,8

15

$

59

,81

5$

6

0,5

35

$

60

,53

5$

6

0,5

35

$

60

,53

5$

6

0,5

35

$

Acc

ou

nts

Rec

eiva

ble

Bo

rro

win

g B

ase

Cer

tifi

cate

A/R

86

,72

7

9

0,6

82

93

,50

3

9

4,4

94

95

,39

2

9

8,3

24

95

,39

2

9

5,3

92

95

,39

2

9

5,3

92

95

,39

2

1

01

,67

5

10

1,6

75

% In

elig

ible

70

.1%

70

.1%

70

.1%

70

.1%

70

.1%

70

.1%

70

.1%

70

.1%

70

.1%

70

.1%

70

.1%

70

.1%

70

.1%

Inel

igib

le A

/R6

0,7

60

63

,53

1

6

5,5

08

66

,20

2

6

6,8

31

68

,88

5

6

6,8

31

66

,83

1

6

6,8

31

66

,83

1

6

6,8

31

71

,23

3

7

1,2

33

Net

Elig

ible

A/R

25

,96

6

2

7,1

51

27

,99

5

2

8,2

92

28

,56

1

2

9,4

39

28

,56

1

2

8,5

61

28

,56

1

2

8,5

61

28

,56

1

3

0,4

42

30

,44

2

Ad

van

ce R

ate

85

.0%

85

.0%

85

.0%

85

.0%

85

.0%

85

.0%

85

.0%

85

.0%

85

.0%

85

.0%

85

.0%

85

.0%

85

.0%

Net

A/R

Ava

ilab

ility

22

,07

1$

2

3,0

78

$

23

,79

6$

2

4,0

48

$

24

,27

7$

2

5,0

23

$

24

,27

7$

2

4,2

77

$

24

,27

7$

2

4,2

77

$

24

,27

7$

2

5,8

76

$

25

,87

6$

Gro

ss B

orr

ow

ing

Bas

e8

3,0

75

85

,74

3

8

3,9

21

86

,87

2

8

7,1

01

87

,84

7

8

4,0

91

84

,09

1

8

4,8

11

84

,81

1

8

4,8

11

86

,41

0

8

6,4

10

Cre

dit

Fac

ility

Co

mm

itm

ent

90

,00

0

9

0,0

00

90

,00

0

9

0,0

00

90

,00

0

9

0,0

00

90

,00

0

9

0,0

00

90

,00

0

9

0,0

00

90

,00

0

9

0,0

00

90

,00

0

Bo

rro

win

g B

ase

83

,07

5$

8

5,7

43

$

83

,92

1$

8

6,8

72

$

87

,10

1$

8

7,8

47

$

84

,09

1$

8

4,0

91

$

84

,81

1$

8

4,8

11

$

84

,81

1$

8

6,4

10

$

86

,41

0$

Res

erve

s(3

07

)

(3

07

)

(3

07

)

(3

07

)

(3

07

)

(3

07

)

(3

07

)

(3

07

)

(3

07

)

(3

07

)

(3

07

)

(3

07

)

(3

07

)

Lett

ers

of

Cre

dit

(4,4

00

)

(4

,40

0)

(4,4

00

)

(4

,40

0)

(4,4

00

)

(4

,40

0)

(4,4

00

)

(4

,40

0)

(4,4

00

)

(4

,40

0)

(4,4

00

)

(4

,40

0)

(4,4

00

)

Rev

olv

er B

alan

ce(7

8,3

68

)

(8

1,0

36

)

(7

9,2

14

)

(8

2,1

65

)

(8

2,3

94

)

(8

3,1

40

)

(7

9,3

84

)

(7

9,3

84

)

(8

0,1

04

)

(8

0,1

04

)

(8

0,1

04

)

(8

1,7

03

)

(8

1,7

03

)

Net

Rev

olv

ing

Ava

ilab

ility

-

-

-

-

-

-

-

-

-

-

-

-

-

Cas

h B

alan

ce (

Bo

ok

Bas

is)

22

,61

6

1

9,0

60

14

,39

3

1

3,1

75

10

,04

8

3

1,1

31

13

,75

6

1

0,7

39

12

,22

1

1

0,0

51

10

,10

7

1

1,6

05

10

,68

9

Liq

uid

ity

22

,61

6$

1

9,0

60

$

14

,39

3$

1

3,1

75

$

10

,04

8$

3

1,1

31

$

13

,75

6$

1

0,7

39

$

12

,22

1$

1

0,0

51

$

10

,10

7$

1

1,6

05

$

10

,68

9$

Fin

al2

of

26

/2/2

02

0


PHIL1 8943004v.1

Exhibit B

ABL DIP Credit Agreement


GT DRAFT June 2, 2020 (v4)

SUPERPRIORITY SECURED DEBTOR-IN-POSSESSION ABL CREDIT AGREEMENT

dated as of June [__], 2020,

among

APC AUTOMOTIVE TECHNOLOGIES INTERMEDIATE HOLDINGS, LLC, as Holdco,

APC AUTOMOTIVE TECHNOLOGIES, LLC, as a Borrower and the Borrower Representative,

CWD ACQUISITION, LLC and CWD HOLDING CORP.,

as Borrowers,

The Other Loan Parties From Time to Time Party Hereto,

The Lenders Party Hereto,

and

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent,


i

TABLE OF CONTENTS

Page

Article I Definitions ..................................................................................................................................... 2

Section 1.01 Defined Terms .............................................................................................................. 2

Section 1.02 [Reserved] .................................................................................................................. 41

Section 1.03 Terms Generally ......................................................................................................... 41

Section 1.04 Accounting Terms; GAAP ......................................................................................... 42


Section 1.06 Payment in Full .......................................................................................................... 42


Section 1.08 Timing of Payment or Performance ........................................................................... 43

Section 1.09 Letter of Credit Amounts ........................................................................................... 43

Section 1.10 Certifications .............................................................................................................. 43


Section 1.12 Divisions ..................................................................................................................... 43

Article II The Credits ............................................................................................................................... 43

Section 2.01 Commitments. ............................................................................................................ 43

Section 2.02 Loans and Borrowings................................................................................................ 46

Section 2.03 Requests for Borrowings ............................................................................................ 46

Section 2.04 Swing Line Loans ....................................................................................................... 47

Section 2.05 Letters of Credit ......................................................................................................... 49

Section 2.06 Funding of Borrowings; Settlement; Designated Account. ........................................ 55

Section 2.07 [Reserved]. ................................................................................................................. 58

Section 2.08 Termination and Reduction of Commitments ............................................................ 58

Section 2.09 Repayment of Loans; Evidence of Debt ..................................................................... 58


Section 2.11 Prepayment of Loans .................................................................................................. 60

Section 2.12 Fees; Costs and Expenses ........................................................................................... 61

Section 2.13 Interest. ....................................................................................................................... 62


Section 2.15 Increased Costs ........................................................................................................... 62


Section 2.17 Taxes. ......................................................................................................................... 64

Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs. .................................. 67


ii

Section 2.19 Mitigation Obligations; Replacement of Lenders ...................................................... 69



Section 2.22 Defaulting Lenders. .................................................................................................... 70

Section 2.23 Cash Collateral. .......................................................................................................... 72


Section 2.25 Borrower Representative ............................................................................................ 73

Section 2.26 Joint and Several Liability. ......................................................................................... 73

Section 2.27 Super Priority Nature of Obligations and Lenders’ DIP Liens .................................. 74

Section 2.28 No Discharge; Survival of Claims .............................................................................. 75

Section 2.29 Release ....................................................................................................................... 75

Section 2.30 Waiver of Certain Rights ............................................................................................ 75

Article III Representations and Warranties ........................................................................................... 76

Section 3.01 Organization; Powers ................................................................................................. 76

Section 3.02 Authorization; Enforceability ..................................................................................... 76

Section 3.03 Governmental Approvals; No Conflicts ..................................................................... 77

Section 3.04 Financial Condition; Budget; No Material Adverse Effect. ....................................... 77

Section 3.05 Properties; Intellectual Property. ................................................................................ 78

Section 3.06 Litigation and Environmental Matters. ...................................................................... 78

Section 3.07 Compliance with Laws ............................................................................................... 78

Section 3.08 Investment Company Status ....................................................................................... 78

Section 3.09 Taxes .......................................................................................................................... 78

Section 3.10 ERISA ........................................................................................................................ 79

Section 3.11 Disclosure ................................................................................................................... 79

Section 3.12 Labor Matters ............................................................................................................. 79

Section 3.13 Subsidiaries ................................................................................................................ 79

Section 3.14 Chapter 11 Cases; Creditors ....................................................................................... 79

Section 3.15 Federal Reserve Regulations. ..................................................................................... 80

Section 3.16 Insurance .................................................................................................................... 80

Section 3.17 Use of Proceeds .......................................................................................................... 80

Section 3.18 Security Interest .......................................................................................................... 80

Section 3.19 OFAC; FCPA; Patriot Act. ......................................................................................... 80

Section 3.20 Eligible Accounts Receivables. .................................................................................. 81

Section 3.21 Eligible Inventory ....................................................................................................... 81


iii

Section 3.22 Location of Inventory ................................................................................................. 81

Section 3.23 Inventory Records ...................................................................................................... 81

Section 3.24 Deposit and Securities Accounts ................................................................................ 81

Section 3.25 Orders ......................................................................................................................... 82

Section 3.26 No Default .................................................................................................................. 82

Article IV Conditions ................................................................................................................................ 82

Section 4.01 Closing Date ............................................................................................................... 82

Section 4.02 Each Credit Event ....................................................................................................... 84

Article V Affirmative Covenants ............................................................................................................. 85

Section 5.01 Financial Statements and Other Information .............................................................. 85

Section 5.02 Notices of Material Events ......................................................................................... 88

Section 5.03 Cash Management. ..................................................................................................... 88

Section 5.04 Existence; Conduct of Business ................................................................................. 89

Section 5.05 Payment of Taxes ....................................................................................................... 90

Section 5.06 Maintenance of Properties .......................................................................................... 90


Section 5.08 Books and Records; Inspection and Audit Rights; Asset Appraisals and Field Exams ......................................................................................................................... 90


Section 5.10 Use of Proceeds. ......................................................................................................... 91

Section 5.11 Execution of Guaranty and Security Documents after the Closing Date. .................. 92

Section 5.12 Further Assurances. .................................................................................................... 92




Section 5.16 Compliance with Environmental Laws ...................................................................... 93

Section 5.17 ERISA ........................................................................................................................ 93

Section 5.18 Post-Closing Covenants ............................................................................................. 94

Section 5.19 Milestones .................................................................................................................. 94

Section 5.20 Bankruptcy Covenants ............................................................................................... 95

Section 5.21 Chapter 11 Cases. ....................................................................................................... 95

Section 5.22 Budget Matters ........................................................................................................... 96

Section 5.23 Retention of Consultants; Communications with Accountants and other Financial Advisors ..................................................................................................................... 97

Section 5.24 Location of Inventory ................................................................................................. 98


iv

Article VI Negative Covenants................................................................................................................. 98

Section 6.01 Indebtedness; Certain Equity Securities. .................................................................... 98

Section 6.02 Liens ......................................................................................................................... 100

Section 6.03 Fundamental Changes .............................................................................................. 102

Section 6.04 Investments ............................................................................................................... 102

Section 6.05 Asset Sales ................................................................................................................ 104

Section 6.06 Permitted Activities of Holdco ................................................................................. 106

Section 6.07 Sale Leaseback Transactions .................................................................................... 106

Section 6.08 Restricted Payments; Certain Payments of Indebtedness. ........................................ 106

Section 6.09 Transactions with Affiliates ..................................................................................... 107

Section 6.10 Restrictive Agreements ............................................................................................ 109

Section 6.11 Fiscal Year ................................................................................................................ 110

Section 6.12 Conduct of Business. ................................................................................................ 110

Section 6.13 Amendments to Organizational Documents and Certain Junior Indebtedness. ....... 110

Section 6.14 Chapter 11 Claims .................................................................................................... 110

Section 6.15 Revision of Orders; Applications to Bankruptcy Court; Superpriority Claims ........ 110

Section 6.16 Compliance with Budget .......................................................................................... 111

Section 6.17 Minimum Liquidity .................................................................................................. 111

Section 6.18 Investigation Rights .................................................................................................. 111

Article VII Events of Default ................................................................................................................. 112

Section 7.01 Events of Default ...................................................................................................... 112

Section 7.02 Remedies upon an Event of Default ......................................................................... 116

Section 7.03 [Reserved]. ............................................................................................................... 117

Section 7.04 Application of Proceeds. .......................................................................................... 117

Article VIII The Administrative Agent ................................................................................................. 119

Section 8.01 Appointment of Agents ............................................................................................ 119

Section 8.02 Rights of Lender ....................................................................................................... 119

Section 8.03 Exculpatory Provisions............................................................................................. 119

Section 8.04 Reliance by Administrative Agent and Collateral Agent ......................................... 120

Section 8.05 Delegation of Duties ................................................................................................. 121

Section 8.06 Resignation or Removal of Agents; Successor, Administrative Agent and Collateral Agent ....................................................................................................... 121

Section 8.07 Non-Reliance on Agents and Other Lenders ............................................................ 122

Section 8.08 No Other Duties ....................................................................................................... 122

Section 8.09 DIP Collateral and Guaranty Matters ....................................................................... 123


v

Section 8.10 [Reserved] ................................................................................................................ 123

Section 8.11 Withholding Tax ...................................................................................................... 123

Section 8.12 Indemnification of Agents ........................................................................................ 124

Section 8.13 Administrative Agent and Collateral Agent May File Proofs of Claim ................... 124

Section 8.14 Lender’s Representations, Warranties and Acknowledgements. ............................. 125

Section 8.15 Chapter 11 Cases; Bankruptcy ................................................................................. 127

Article IX Miscellaneous ........................................................................................................................ 128

Section 9.01 Notices ...................................................................................................................... 128

Section 9.02 Waivers; Amendments. ............................................................................................ 128

Section 9.03 Expenses; Indemnity; Damage Waiver. ................................................................... 133

Section 9.04 Successors and Assigns. ........................................................................................... 135

Section 9.05 Survival .................................................................................................................... 141

Section 9.06 Counterparts; Integration .......................................................................................... 141

Section 9.07 Severability ............................................................................................................... 142

Section 9.08 Right of Setoff .......................................................................................................... 142

Section 9.09 Governing Law; Jurisdiction; Consent to Service of Process. ................................. 142

Section 9.10 WAIVER OF JURY TRIAL .................................................................................... 143

Section 9.11 Headings ................................................................................................................... 143

Section 9.12 Confidentiality .......................................................................................................... 143

Section 9.13 Interest Rate Limitation ............................................................................................ 144

Section 9.14 USA Patriot Act ....................................................................................................... 145

Section 9.15 Direct Website Communication ............................................................................... 145

Section 9.16 Intercreditor Agreement Governs ............................................................................. 146

Section 9.17 Bankruptcy Matters .................................................................................................. 146

Section 9.18 No Advisory or Fiduciary Responsibility ................................................................ 146

Section 9.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions ............... 147


vi

SCHEDULES:

Schedule 1.01(a) Receivables Facilities Schedule 1.01(b) Excluded Subsidiaries Schedule 1.01(d) Designated Account Schedule 1.01(f) Factory Fee Inventory Agreements Schedule 1.03 Administrative Agent’s Account Schedule 2.01 Revolving Commitments Schedule 3.06 Disclosed Matters Schedule 3.13 Subsidiaries Schedule 3.22(b)(i) Locations of Inventory Schedule 3.22(b)(ii) Locations of “Factory Fee” Inventory Schedule 3.24 Deposit Accounts and Securities Accounts Schedule 5.01(e) Collateral Reporting Schedule 5.18 Post-Closing Covenants Schedule 6.01(a) Existing Indebtedness Schedule 6.02(c) Existing Liens Schedule 6.04(c) Existing Investments Schedule 6.09 Transactions with Affiliates Schedule 9.01 Addresses for Notices

EXHIBITS:

Exhibit A Form of Borrowing Request [Exhibit B Form of Interest Election Request] Exhibit C [Reserved] Exhibit D Form of Security Agreement Exhibit E Form of Guaranty Exhibit F-1 Form of Revolving Note Exhibit F-2 Form of Swing Line Note Exhibit G Form of Assignment and Assumption Exhibit H Form of Borrowing Base Certificate Exhibit I-1 Form of U.S. Tax Certificate (For Foreign Lenders That Are Not Partnerships For

U.S. Federal Income Tax Purposes) Exhibit I-2 Form of U.S. Tax Certificate (For Foreign Lenders That Are Partnerships For U.S.

Federal Income Tax Purposes) Exhibit I-3 Form of U.S. Tax Certificate (For Foreign Participants That Are Not U.S. Persons

or Partnerships For U.S. Federal Income Tax Purposes) Exhibit I-4 Form of U.S. Tax Certificate (For Foreign Participants That Are Partnerships For

U.S. Federal Income Tax Purposes) Exhibit J Form of Compliance Certificate


ACTIVE 50727705v3 1

SUPER PRIORITY SECURED DEBTOR-IN-POSSESSION ABL CREDIT AGREEMENT dated as of June [__], 2020 (this “Agreement”), among APC AUTOMOTIVE TECHNOLOGIES INTERMEDIATE HOLDINGS, LLC, a Delaware limited liability company (“Holdco”), APC AUTOMOTIVE TECHNOLOGIES, LLC, a Delaware limited liability company (“AP Acquisition”), as a Borrower and as the Borrower Representative, CWD ACQUISITION, LLC, a Delaware limited liability company and a wholly-owned direct subsidiary of AP Acquisition (“CWD Buyer”), as a Borrower, CWD HOLDING CORP., a Delaware corporation (“CWD Corp.”), as a Borrower (and, together with AP Acquisition, CWD Buyer and any other additional Person that at any time after the date hereof becomes an additional borrower to this Agreement, collectively the “Borrowers” and each individually a “Borrower”), the SUBSIDIARY GUARANTORS party hereto from time to time, the LENDERS party hereto from time to time and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent.

WHEREAS, capitalized terms used in these recitals shall have the respective meanings set forth for such terms in Article I;

WHEREAS, on June [__], 2020 (the “Petition Date”), the Borrowers and the other Loan Parties (collectively, the “Debtors” and, each individually, a “Debtor”) each commenced a chapter 11 case, which are being jointly administered under Case No. 20-[__________] (each a “Chapter 11 Case” and collectively, the “Chapter 11 Cases”), by filing separate voluntary petitions for reorganization under Chapter 11 of Title 11 of the U.S. Code, 11 U.S.C. 101 et seq. (the “Bankruptcy Code”), with the United States Bankruptcy Court for the District of Delaware (together with any other court having jurisdiction over the Chapter 11 Cases or any proceeding therein from time to time, the “Bankruptcy Court”). Each Debtor continues to operate its businesses and manage its properties as a debtor and debtor in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code;

WHEREAS, prior to the Petition Date, Wells Fargo Bank, National Association, as agent, and certain lenders provided financing to the Borrowers pursuant to that certain ABL Credit Agreement dated as of May 10, 2017, among the Loan Parties, Wells Fargo Bank, National Association, as agent, and the lenders party thereto (as amended, restated, supplemented, or otherwise modified from time to time through the Petition Date, the “Prepetition ABL Credit Agreement”), and the Loan Parties guarantied the payment of all of the Guaranteed Obligations (as defined in the Guaranty (as defined in the Prepetition Senior Credit Agreement));

WHEREAS, the Borrowers have requested that Agent and the Lenders provide a senior secured super-priority revolving credit facility to the Borrowers of up to an aggregate maximum principal amount of $90,000,000 (the “DIP Facility”) as further set forth herein, to fund the working capital requirements of the Borrowers during the pendency of the Chapter 11 Cases and to fund other corporate needs and expenses as set forth in Section 5.10;

WHEREAS, the Borrowers have requested the Term DIP Lenders to extend credit to the Borrowers in the form of a term loan facility in an aggregate principal amount of $50,000,000 (the “Term DIP Facility”) pursuant to the terms of that certain Term DIP Facility Agreement;

WHEREAS, the Borrowers desire that all of their Obligations under the Loan Documents will be joint and several and all of the Guarantors will guaranty all of the Obligations under the Loan Documents;

WHEREAS, in order to secure the Obligations of Holdco, the Borrowers and the other Guarantors under the Loan Documents, the Borrowers and the Guarantors will grant to the Collateral Agent, for the benefit of Collateral Agent and all other Secured Parties, a security interest in and DIP Liens upon substantially all of the now existing and hereafter acquired personal and real property of the Borrowers and the Guarantors;


ACTIVE 50727705v3 2

WHEREAS, the relative priority of the DIP Liens and security interests granted to secure the Obligations in relation to the Liens and security interests securing the Prepetition ABL Obligations and certain other obligations will be set forth in the Interim Order and the Final Order;

WHEREAS, the Borrowers and the other Loan Parties will provide to the prepetition lenders and other prepetition secured parties under the Prepetition ABL Credit Agreement and the other Prepetition ABL Loan Documents, adequate protection in accordance with the Interim Order and the Final Order; and

WHEREAS, the Lenders are willing to extend such credit to the Borrowers and the other Loan Parties on the terms and subject to the conditions set forth herein and the Interim Order and the Final Order, as applicable.

NOW, THEREFORE, in consideration of the premises, provisions, covenants and mutual agreements contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Lenders and Issuing Banks are willing to extend such credit to the Borrowers on the terms and express conditions set forth herein, and accordingly the parties hereto agree as follows:

ARTICLE I

Definitions

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

“ABL Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of May 10, 2017, among Holdco, the Borrowers, the Subsidiaries party thereto, the Collateral Agent, the Prepetition Collateral Agent, as amended, restated, supplemented or otherwise modified from time to time.

“ABL Priority Collateral” has the meaning assigned to such term in the ABL Intercreditor Agreement.

“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, is bearing interest at a rate determined by reference to the Alternate Base Rate.

“Account Debtor” has the meaning assigned to such term in Article 9 of the UCC.

“Accounts” has the meaning assigned to such term in Article 9 of the UCC.

“Acquisition” means any acquisition by Holdco or any Subsidiary, whether by purchase, merger, consolidation, contribution or otherwise, of (x) at least a majority of the assets or property and/or liabilities (or any other substantial part for which financial statements or other financial information is available), or a business line, product line, unit or division of, any other Person, (y) Equity Interests of any other Person such that such other Person becomes a Subsidiary and (z) additional Equity Interests of any Subsidiary not then held by Holdco or any Subsidiary.

“Adjustment Date” means the first day of each calendar quarter of the Borrowers.

“Adjusted Eurocurrency Rate” means for any Interest Period with respect to Borrowing determined pursuant to clause (c) of the definition of “Alternate Base Rate”, a rate per annum determined by the Administrative Agent pursuant to the following formula:

Adjusted Eurocurrency Eurocurrency Rate


ACTIVE 50727705v3 3

Rate = 1.00 – Eurocurrency Reserve Percentage

provided that, notwithstanding the foregoing, the Adjusted Eurocurrency Rate shall not be less than 1% per annum.

“Administrative Agent” means Wells Fargo, in its capacity as administrative agent and/or collateral agent for the Lenders hereunder, and its successors in such capacity as provided in Article VIII.

“Administrative Agent’s Account” means the Deposit Account of the Administrative Agent identified on Schedule 1.03 (or such other Deposit Account of the Administrative Agent that has been designated as such, in writing, by the Administrative Agent to the Borrower Representative and the Lenders).

“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 9.01, or such other address or account as the Administrative Agent may from time to time notify the Borrower Representative and the Lenders.

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

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

“Agent” means any of the Administrative Agent or the Collateral Agent.

“Agent-Related Distress Event” means, with respect to the Administrative Agent or any Person that directly or indirectly Controls the Administrative Agent (each, a “Distressed Agent-Related Person”), a voluntary or involuntary case with respect to such Distressed Agent-Related Person under any Debtor Relief Law, or a custodian, conservator, receiver or similar official is appointed for such Distressed Agent-Related Person or any substantial part of such Distressed Agent-Related Person’s assets, or such Distressed Agent-Related Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Agent-Related Person to be, insolvent or bankrupt; provided that an Agent-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any Equity Interests in the Administrative Agent or any Person that directly or indirectly Controls the Administrative Agent by a Governmental Authority or an instrumentality thereof.

“Agreement” has the meaning assigned to such term in the introductory paragraph hereto.

“ALTA” means the American Land Title Association.

“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1% and (c) the Adjusted Eurocurrency Rate for an Interest Period of one (1) month determined on such day (or if such day is not a Business Day, the immediately preceding Business Day) (without giving effect to the proviso of the definition thereof) plus 1%; provided that, notwithstanding the foregoing, the Alternate Base Rate shall at no time be less than 2% per annum. If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate,


ACTIVE 50727705v3 4

the Federal Funds Effective Rate or the Adjusted Eurocurrency Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Eurocurrency Rate respectively.

“Anti-Corruption Laws” means applicable Laws relating to anti-bribery or anti-corruption which apply to the Loan Parties or their Subsidiaries, including Laws that prohibit the corrupt payment, offer, promise, or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any foreign government official, or foreign government employee to obtain an improper or undue business advantage, including the Foreign Corrupt Practices Act of 1977, as amended.

“Anti-Terrorism Laws” means Laws relating to terrorism or money laundering, including Executive Order No. 13224, the Patriot Act, the Laws comprising or implementing the Bank Secrecy Act, any Sanctions and the Laws administered by OFAC.

“AP Acquisition” has the meaning assigned to such term in the introductory paragraph hereto.

“Applicable Date of Determination” means the last day of the most recently ended fiscal quarter for which financial statements are internally available and copies of which have been provided to the Administrative Agent or available pursuant to Section 5.01(a) or (b), as applicable, or, if such date occurs prior to the date on which financial statements are internally available and copies of which have been provided to the Administrative Agent or available pursuant to Section 5.01(a) or (b), as applicable, the last day of the most recently ended fiscal quarter for which financial statements were delivered under Section 4.01.

“Applicable Margin” means, for any day with respect to any Revolving Loan and any Swing Line Loan 3.00%.

“Applicable Participants” means, with respect to any Letter of Credit, the Revolving Lenders.

“Applicable Percentage” means, as of any date of determination:

(a) with respect to a Lender’s obligation to make all or a portion of the Revolving Loans of any Class, with respect to such Lender’s right to receive payments of interest, fees, and principal with respect to the Revolving Loans, and with respect to all other computations and other matters related to the Revolving Commitments or the Revolving Loans of such Class, the percentage obtained by dividing (i) the Revolving Exposure of such Lender by (ii) the aggregate Revolving Exposure of all Lenders,

(b) with respect to a Lender’s obligation to participate in the Letters of Credit, with respect to such Lender’s obligation to reimburse the Issuing Bank, and with respect to such Lender’s right to receive payments of Letter of Credit fees, and with respect to all other computations and other matters related to the Letters of Credit, the percentage obtained by dividing (i) the Revolving Exposure of such Lender by (ii) the aggregate Revolving Exposure of all Lenders; provided that if all of the Revolving Loans have been repaid in full and all Revolving Commitments have been terminated, but Letters of Credit remain outstanding, Applicable Percentage under this clause shall be determined as if the Revolving Commitments had not been terminated and based upon the Revolving Commitments as they existed immediately prior to their termination, and

(c) with respect to all other matters and for all other matters as to a particular Lender (including the indemnification obligations arising under this Agreement), the percentage obtained by dividing (i) the Revolving Exposure of such Lender by (ii) the aggregate Revolving Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to this Agreement; provided that, if all of the Loans have been repaid in full, all Letters of Credit have been made the subject of Cash Collateralization, and all Revolving Commitments have been terminated, Applicable Percentage


ACTIVE 50727705v3 5

under this clause shall be determined as if the Revolving Exposures had not been repaid, collateralized, or terminated and shall be based upon the Revolving Exposures as they existed immediately prior to their repayment, collateralization, or termination.

“Application Event” means the occurrence of (a) a failure by the Borrowers to repay all of the Obligations in full on the DIP Termination Date or (b) an Event of Default and the election by the Administrative Agent or the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to Section 7.04.

“Approved Account Bank” means a financial institution at which any Loan Party maintains an Approved Deposit Account.

“Approved Deposit Account” means each Deposit Account in respect of which any Loan Party shall have maintained with the Administrative Agent or entered into a Deposit Account Control Agreement.

“Approved Fund” has the meaning assigned to such term in Section 9.04(b).

“Approved Securities Account” means each Securities Account in respect of which any Loan Party shall have entered into a Securities Account Control Agreement.

“Approved Securities Intermediary” means a securities intermediary at which a Loan Party maintains an Approved Securities Account.

“AP Purchase Agreement” means that certain Equity Purchase Agreement, dated as of March 28, 2017 (together with all exhibits, annexes and schedules thereto, as amended, restated, supplemented or otherwise modified from time to time).

“Asset Appraisals” has the meaning assigned to such term in Section 5.08(b).

“Asset Appraisals and Field Exams” has the meaning assigned to such term in Section 5.08(b).

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent pursuant to the terms hereof to the extent the Administrative Agent’s consent is required herein, substantially in the form of Exhibit G hereto or any other form or changes thereto approved by the Administrative Agent and the Borrower Representative.

“Audax” means Audax Management Company, LLC together with its controlled investment affiliates and investment funds managed or advised by it or its controlled investment affiliates.

“Auto-Renewal Letter of Credit” has the meaning specified in Section 2.05(c).

“Availability Reserves” means, as of any date of determination, without duplication of any other reserves or items that are otherwise addressed or excluded through eligibility criteria (including, but not limited to Receivable Reserves and Inventory Reserves), those reserves that the Administrative Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.01(f), to establish and maintain (including reserves with respect to (a) sums that any Loan Party or its Subsidiaries are required to pay under any Section of this Agreement or any other Loan Document (such as taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such Leases) and has failed to pay, (b) freight, taxes, duty and other amounts which the Administrative Agent estimates in its Permitted Discretion must be paid in connection with in-transit Inventory upon arrival and for delivery to one of such Loan Party’s locations for Eligible Inventory, (c) the Carve-Out, and (d) amounts owing by any Loan Party or its Subsidiaries to any Person to the extent secured by a Lien on, or trust over, any of the


ACTIVE 50727705v3 6

Collateral (other than a Lien permitted under Section 6.02), which Lien or trust, in the Permitted Discretion of the Administrative Agent likely would have a priority superior to the Collateral Agent’s Liens (such as Liens or trusts in favor of landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad valorem, excise, sales, or other taxes where given priority under applicable Law) in and to such item of the Collateral) with respect to the Borrowing Base; provided further that circumstances, conditions, events or contingencies disclosed in any Field Exam or Asset Appraisal that result in any adjustments to any reserves as a consequence thereof shall not be subsequently used as the basis for any establishment of any such other reserves, unless such circumstances, conditions, events or contingencies shall have changed in a material respect since such Field Exam or Asset Appraisal.

“Automatic Stay” shall mean the automatic stay imposed under Section 362 of the Bankruptcy Code.

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

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Bank Product Collateralization” means providing cash collateral (pursuant to documentation reasonably satisfactory to the Administrative Agent) to be held by the Administrative Agent for the benefit of the Lender Counterparties (other than the Lender Counterparties in respect of Secured Swap Obligations) in an amount determined by the Administrative Agent as sufficient to satisfy the reasonably estimated credit exposure with respect to the then existing Bank Product Obligations (other than Secured Swap Obligations).

“Bank Product Obligations” means, collectively, the Secured Swap Obligations and the Secured Cash Management Obligations.

“Bankruptcy Code” has the meaning assigned to such term in the recitals hereto.

“Bankruptcy Court” shall have the meaning assigned to such term in the recitals to this Agreement.

“Bankruptcy Plan” means a plan of reorganization filed by the Debtors in form and substance reasonably acceptable to the Required Lenders and, solely with respect to terms and provisions affecting the rights, protections, duties or obligations of the Administrative Agent or the Prepetition ABL Agent, the Administrative Agent or the Prepetition ABL Agent, as applicable.

“Blocked Person” means any Person: (a) listed in the annex to, or otherwise subject to the provisions of, Executive Order No. 13224; (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or otherwise subject to the provisions of, Executive Order No. 13224; (c) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Laws; (d) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224; or (e) a Person that is named on the most current SDN List or a Person 50% or greater owned by such Person or Persons.

“Board” means the Board of Governors of the Federal Reserve System of the United States of America.

“Borrower Materials” has the meaning assigned to such term in Section 5.01.

“Borrower Representative” has the meaning assigned to such term in Section 2.25.


ACTIVE 50727705v3 7

“Borrowers” has the meaning assigned to such term in the introductory paragraph hereto.

“Borrowing” means Loans made on the same date (including, without limitation, Revolving Loans made on the same day by the Revolving Lenders (or the Administrative Agent on behalf thereof), or by Swing Line Lender in the case of a Swing Loan, or by the Administrative Agent in the case of a Protective Advance).

“Borrowing Base” means, at any time of calculation, an amount equal to:

(a) 85% of the amount of Eligible Accounts Receivables of the Loan Parties, taken as a whole, less the amount, if any, of the Dilution Reserve; plus

(b) the lesser of (i) the product of 85% multiplied by the Net Orderly Liquidation Value identified in the most recent Asset Appraisal and Field Exam ordered and obtained by the Administrative Agent multiplied by the value (calculated at the lower of cost or market on a basis consistent with the Loan Parties historical accounting practices) of Eligible Inventory of the Loan Parties, taken as a whole (such determination may be made as to different categories of Eligible Inventory based upon the Net Orderly Liquidation Value applicable to such categories), at such time, and (ii) the product of 75% multiplied by the value (calculated at the lower of cost or market on a basis consistent with the Loan Parties historical accounting practices) of Eligible Inventory of the Loan Parties, taken as a whole, at such time; minus

(c) the outstanding amount of the Prepetition ABL Obligations, that as of any applicable date of determination have not been “rolled up” into this Agreement such that such Prepetition ABL Obligations do not constitute Obligations; minus

(d) the aggregate amount of reserves, if any, established by the Administrative Agent in accordance with Section 2.01(f);

The Borrowing Base shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 5.01(e).

“Borrowing Base Certificate” means a borrowing base certificate in the form of Exhibit H hereto, duly executed by a Financial Officer of the Borrower Representative, or such other form or changes thereto approved by the Administrative Agent and the Borrower Representative.

“Borrowing Request” means a request by a Financial Officer of the Borrower Representative for a Borrowing in accordance with Section 2.03 substantially in the form of Exhibit A hereto.

“Budget” shall mean the Initial Budget, as amended and supplemented by any Budget Update delivered in accordance with Section 5.01(h) and approved by the Administrative Agent in accordance with Section 5.22.

“Budget Update” shall have the meaning assigned to such term in Section 5.01(g).

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.

“Capital Lease Obligations” of any Person means, subject to Section 1.04, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“Carve-Out” shall have the meaning assigned to such term in the then applicable Order.


ACTIVE 50727705v3 8

[“Carve-Out Reserves” shall have the meaning assigned to such term in the then applicable Order.]

“Cash Collateralize” means either (a) providing cash collateral (pursuant to documentation satisfactory to the Administrative Agent in its Permitted Discretion) to be held by the Administrative Agent for the benefit of the Revolving Lenders in an amount equal to 103% of the then existing LC Exposure, (b) delivering to the Administrative Agent documentation executed by all beneficiaries under the Letters of Credit, in form and substance reasonably satisfactory to the Administrative Agent and Issuing Bank, terminating all of such beneficiaries’ rights under the Letters of Credit, or (c) providing the Administrative Agent with a standby letter of credit, in form and substance reasonably satisfactory to the Administrative Agent, from a commercial bank reasonably acceptable to the Administrative Agent in an amount equal to 103% of the then existing LC Exposure. “Cash Collateral” and “Cash Collateralization” shall have a meaning correlative to the foregoing.

“Cash Equivalents” means:

(a) Dollars or any foreign currency held by Holdco, any Borrower or any of their Subsidiaries in the ordinary course of business;

(b) securities issued or directly and fully Guaranteed or insured by the United States or Canadian governments, the United Kingdom, a member state of the European Union or, in each case, any agency or instrumentality of thereof (provided that the full faith and credit of such country or such member state is pledged in support thereof), having maturities of not more than two (2) years from the date of acquisition;

(c) certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits or bankers’ acceptances having maturities of not more than one (1) year from the date of acquisition thereof issued by (x) any Lender or Affiliate thereof or (y) by any bank or trust company (i) whose commercial paper is rated at least “A-2” or the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s (or if at the time neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) or (ii) (in the event that the bank or trust company does not have commercial paper which is rated) having combined capital and surplus in excess of $100,000,000;

(d) repurchase obligations for underlying securities of the types described in clauses (b) and (c) entered into with any Person referenced in clause (c) above;

(e) securities with maturities of one (1) year or less from the date of acquisition backed by standby letters of credit issued by any Person referenced in clause (c);

(f) commercial paper rated at the time of acquisition thereof at least “A-2” or the equivalent thereof by S&P or “P-2” or the equivalent thereof by Moody’s or carrying an equivalent rating by a Nationally Recognized Statistical Rating Organization, if both of the two named rating agencies cease publishing ratings of investments or, if no rating is available in respect of the commercial paper, the issuer of which has an equivalent rating in respect of its long-term debt, and in any case maturing within one (1) year after the date of acquisition thereof;

(g) readily marketable direct obligations issued by any state, commonwealth or territory of the United States of America, any province of Canada, the United Kingdom, any member of the European Union, any other foreign government or any political subdivision or taxing authority thereof, in each case, having one of the two highest rating categories obtainable from either Moody’s or S&P (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) with maturities of not more than two (2) years from the date of acquisition;


ACTIVE 50727705v3 9

(h) Indebtedness or preferred stock issued by Persons with a rating of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) with maturities of twelve (12) months or less from the date of acquisition;

(i) bills of exchange issued in the United States, the United Kingdom, Canada or Japan or a member state of the European Union eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);

(j) interests in any investment company, money market or enhanced high yield fund which invests at least 90% of its assets in instruments of the type specified in clauses (a) through (i) above;

(k) instruments and investments of the type and maturity described in clause (a) through (j) denominated in any foreign currency or of foreign obligors, which investments or obligors are, in the reasonable judgment of the Borrower Representative, comparable in investment quality to those referred to above; and

(l) the marketable securities portfolio owned by Holdco and its Subsidiaries on the Closing Date.

“Cash Management Agreement” means any agreement to provide Cash Management Services.

“Cash Management Obligations” means, as to any Borrower or any Subsidiary, any and all obligations of such Borrower or such Subsidiary, whether absolute or contingent and however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under any Cash Management Agreement.

“Cash Management Services” means any one or more of the following types of services or facilities, including without limitation (a) ACH transactions, (b) cash management services, including controlled disbursement services, treasury, depository, overdraft, credit or debit card, stored value card, electronic funds transfer services, and (c) foreign exchange facilities or other cash management arrangements in the ordinary course of business. For the avoidance of doubt, Cash Management Services do not include Swap Agreements.

“Cash Receipts” means all cash, checks, notes, instruments, and other items of payment. For the avoidance of doubt, Term DIP Facility proceeds do not constitute Cash Receipts.

“Challenge” shall have the meaning assigned to such term in Section 6.19.

“Change in Control” means the occurrence of any of the following events after the Closing Date: (a) the Permitted Holders and their controlled affiliates ceasing to own, directly or indirectly, in the aggregate, beneficially (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), Equity Interests representing at least a majority of the aggregate ordinary voting power represented by the issued and outstanding equity interests of Holdco, (b) a “change of control” (or similar event) shall occur in any document pertaining to the Term DIP Facility, the Prepetition Term Loans, or the Prepetition ABL Obligations, (c) Holdco shall cease to own, directly or indirectly through wholly-owned Subsidiaries, of record and beneficially, 100% of each class of outstanding Equity Interests of the Borrowers free and clear of all Liens (except Liens permitted under the Loan Documents), or (d) a change of control in accordance with the Bankruptcy Plan.

“Change in Law” means (a) the adoption of any law, rule, treaty or regulation after the Closing Date, (b) any change in any law, rule, treaty or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender, Swing Line Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or Swing


ACTIVE 50727705v3 10

Line Lender or by such Lender’s, Swing Line Lender’s or the Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law”, regardless of the date enacted, adopted or issued.

“Chapter 11 Cases” shall have the meaning assigned to such term in the recitals to this Agreement.

“Charges” has the meaning assigned to such term in Section 9.13.

“CLO” has the meaning assigned to such term in Section 9.04(b).

“Closing Date” means the date on which the conditions precedent set forth in Section 4.01 shall have been satisfied or waived.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” means any and all “Collateral” (or any term of similar meaning), as defined in any applicable Security Document, all DIP Collateral, and any and all property of whatever kind or nature subject to or purported to be subject to a Lien under any Security Document.

“Collateral Access Agreement” means an agreement satisfactory in form and substance to the Administrative Agent in its Permitted Discretion executed by, as the case may be, (a) a bailee or other Person in possession of Collateral, or (b) any landlord of any premises leased by any Loan Party, pursuant to which such Person (i) acknowledges the Collateral Agent’s Lien on the Collateral and (ii) agrees to provide the Administrative Agent with reasonable access to the Collateral held by such bailee or other Person or located in or on such premises for the purpose of conducting field examinations, appraisals or Liquidation.

“Collateral Agent” means Wells Fargo, in its capacity as collateral agent for the Secured Parties, and its successors in such capacity as provided in Article VIII.

“Collateral Agent’s Liens” means the Liens granted by each Loan Party to the Administrative Agent under the Security Documents and securing the Obligations.

“Commitment” means with respect to any Person, such Person’s Revolving Commitment.

“Committee” shall mean the official committee of unsecured creditors, if any, appointed in the Chapter 11 Cases.

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“Communications” has the meaning assigned to such term in Section 9.15.

“Competitor” means any Person (a) that is an operating company directly and primarily engaged in substantially similar business operations as any Borrower and (b) any of such Person’s subsidiaries, in each case, identified in writing to the Administrative Agent from time to time.

“Compliance Certificate” means a certificate, duly executed by a Financial Officer of the Borrower Representative, substantially in the form of Exhibit J hereto.


ACTIVE 50727705v3 11

“Confirmation Order” shall have the meaning assigned to such term in Section 5.19(i).

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

“Controlled Entity” means, as to any Person, any other Person that is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

“Credit Event” has the meaning assigned to such term in Section 4.02.

“CWD Buyer” has the meaning assigned to such term in the introductory paragraph hereto.

“CWD Corp.” has the meaning assigned to such term in the introductory paragraph hereto.

“Daily Average Utilization” means, at any Adjustment Date, the sum of the daily average aggregate amount of the Revolving Loans (and, for the avoidance of doubt, excluding Swing Line Loans) outstanding for the fiscal quarter ended immediately preceding such Adjustment Date.

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

“Default” means any event or condition specified in Article VII that after notice, lapse of applicable grace periods or both would, unless cured or waived hereunder, constitute an Event of Default.

“Defaulting Lender” means, subject to Section 2.22(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans on the date such Loans were required to be funded hereunder (including the failure to make available to the Administrative Agent amounts required pursuant to a Settlement), or (ii) pay to the Administrative Agent, any Issuing Bank, the Swing Line Lender, or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) on the date when due, (b) has notified the Borrower Representative, the Administrative Agent, the Swing Line Lender or any Issuing Bank in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect, (c) has failed, within one (1) Business Days after written request by the Administrative Agent or the Borrower Representative, to confirm in writing to the Administrative Agent and the Borrower Representative that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower Representative) or (d) has, or has a direct or indirect parent company that has (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination made in good faith by the Administrative Agent that a Lender is a Defaulting Lender under


ACTIVE 50727705v3 12

clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.22(b)) upon delivery of written notice of such determination to the Borrower Representative, each Issuing Bank, the Swing Line Lender and each Lender.

“Deposit Account” means any checking or other demand deposit account maintained by the Loan Parties, including any “deposit accounts” under Article 9 of the UCC.

“Deposit Account Control Agreement” means, with respect to a Deposit Account, an account control agreement in form and substance reasonably acceptable to each of the Collateral Agent and the Borrower Representative (which approval shall be deemed given by execution of such agreement), among one or more Loan Parties, the Collateral Agent and the bank which maintains such Deposit Account, in each case as the same may be amended, modified or supplemented from time to time.

“Designated Account” means the Deposit Account of the Borrowers (or the Borrower Representative on behalf of the Borrowers) identified on Schedule 1.01(d) (or such other Deposit Account of the Borrowers (or the Borrower Representative on behalf of the Borrowers) located at Designated Account Bank that has been designated as such, in writing, by the Borrower Representative to the Administrative Agent).

“Designated Account Bank” has the meaning assigned to such term in Schedule 1.01(d) (or such other bank that is located within the United States that has been designated as such, in writing, by the Borrower Representative to the Administrative Agent).

“Dilution Reserve” means, as of any date of determination, without duplication of any other reserves or items that are otherwise addressed or excluded through eligibility criteria set forth in this Agreement, an amount sufficient to reduce the advance rate against Eligible Accounts Receivables by one percentage point for each percentage point by which dilution is in excess of 5%.

“DIP ABL Control Agreement” means a deposit account, securities account or commodities account control agreement by and among the applicable Loan Party, the Collateral Agent and the depository, securities intermediary or commodities intermediary, and each in form and substance reasonably satisfactory in all respects to the Collateral Agent and the Required Lenders and in any event providing to the Collateral Agent “control” of such deposit account, securities or commodities account within the meaning of Articles 8 and 9 of the UCC.

“DIP ABL Controlled Account” means a deposit account, securities account or commodities account maintained by a Loan Party and subject to a DIP ABL Control Agreement.

“DIP Collateral” means all of the “Collateral” as defined in the Security Agreement, the “DIP Collateral” as defined in any of the Orders, and assets and interests in assets and proceeds thereof now owned or hereafter acquired by any Loan Party in or upon which a DIP Lien is granted or purported to be granted by such Person in favor of the Collateral Agent, for the benefit of itself and the other Secured Parties, under any of the Loan Documents. For the avoidance of doubt, the DIP Collateral shall not include (and the DIP Liens shall not extend to) Excluded Property.

“DIP Facility” has the meaning assigned to such term in the recitals to this Agreement.

“DIP Liens” shall have the meaning assigned to such term in the then applicable Order.

“DIP Proceeds” shall mean the proceeds received by the Borrowers from the Loans.

“DIP Term Controlled Account” shall have the meaning set forth in the Term DIP Credit Agreement.


ACTIVE 50727705v3 13

“DIP Termination Date” shall mean the date that all Obligations (other than contingent obligations not yet due and payable) will be due and payable in full in cash (except, in the case of clause (v) below, as otherwise expressly provided herein), which such date shall be the earliest of (i) the date that is one hundred and twenty (120) days after the Petition Date, (ii) the consummation of any sale of all or substantially all of the assets of the Debtors pursuant to section 363 of the Bankruptcy Code, (iii) if the Final Order has not been entered, the date that is thirty-seven (37) calendar days after the Petition Date, (iv) the acceleration of the Loans and the termination of the Commitments pursuant to an Event of Default, and (v) the Effective Date.

“Disclosed Matters” means the actions, suits and proceedings and the environmental matters disclosed on Schedule 3.06.

“Disclosure Statement” shall have the meaning assigned to such term in Section 5.19(d).

“Disclosure Statement Order” shall have the meaning assigned to such term in Section 5.19(h).

“Disposition” or “Dispose” means the sale, transfer, license, lease (as lessor) or other disposition (including any Sale Leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any Equity Interests owned by such Person, or any notes or accounts receivable or any rights and claims associated therewith; provided that “Disposition” and “Dispose” shall be deemed not to include any issuance or sale by such Person of its Equity Interests or other securities to another Person.

“Disqualified Equity Interests” means Equity Interests that by their terms (or by the terms of any security into which they are convertible or for which they are exchangeable) (a) require the scheduled payment of any dividends, (b) mature or are mandatorily redeemable or subject to mandatory repurchase or redemption or repurchase at the option of the holders thereof, in whole or in part and whether upon the occurrence of any event, pursuant to a sinking fund obligation, on a fixed date or otherwise, prior to the date that is ninety-one (91) days after the then DIP Termination Date at such time of then outstanding Loans (other than upon (i) payment in full of the Obligations (other than contingent indemnification obligations for which no claim has been made), reduction of the LC Exposure to zero and termination of the Commitments or (ii) a “change in control” or (iii) an asset sale or similar event) or (c) are convertible or exchangeable, automatically or at the option of any holder thereof, into any Indebtedness (other than upon (i) payment in full of the Obligations (other than contingent indemnification obligations for which no claim has been made), reduction of the LC Exposure to zero and termination of the Commitments or (ii) a “change in control” or (iii) an asset sale or similar event); provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of Holdco (or any Parent Entity), Holdco or the Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by Holdco or if its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.

“Disqualified Lender” means any Person who is a Competitor of Holdco or any of its Subsidiaries that is identified in writing to the Administrative Agent by any Sponsor from time to time and any of their Affiliates (other than any Affiliate that is a bona fide debt fund (x) that is primarily engaged in investing in commercial loans and similar extensions of credit in the ordinary course, and (y) for which no personnel making investment decisions in respect of any equity fund which has a direct or indirect equity investment in such companies has the right to make any investment decisions or have access to non-public information regarding the Targets or any of their Affiliates) that is either identified in writing by the Borrower Representative from time to time or clearly identifiable on the basis of such Affiliate’s name.

“Dollars” or “$” refers to the lawful money of the United States of America.


ACTIVE 50727705v3 14

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

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

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Effective Date” shall have the meaning assigned to such term in Section 5.19(j).

“Eligible Accounts Receivables” means those Accounts created by a Loan Party in the ordinary course of its business, that arise out of such Loan Party’s sale of goods or rendition of services, that comply in all material respects with each of the representations and warranties respecting Eligible Accounts Receivables made in the Loan Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided that such criteria may be revised from time to time by the Administrative Agent in the Administrative Agent’s Permitted Discretion to address the results of any Field Exam performed by (or on behalf of) the Administrative Agent from time to time after the Closing Date. In determining the amount to be included, Eligible Accounts Receivables shall be calculated net of customer deposits, unapplied cash, taxes, discounts, credits, allowances, and rebates, and in each case, without duplication of any reserves or items that are otherwise addressed or excluded through eligibility criteria set forth in this Agreement. Eligible Accounts Receivables shall not include any Accounts to the extent that:

(a) such Account does not arise from the sale of goods or the performance of services by the Loan Parties in the ordinary course of their respective business;

(b) (i) the applicable Loan Parties’ right to receive payment is not absolute or is contingent upon the fulfillment of any condition whatsoever (other than the preparation and delivery of a statement) or (ii) as to which such Person is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial process;

(c) the Account Debtor with respect to such Account is a creditor of a Loan Party, or any defense, counterclaim, set-off or dispute exists as to such Account, but only to the extent of such defense, counterclaim, set-off or dispute;

(d) such Account is not subject to the first priority, valid and perfected security interest and Lien of Administrative Agent, for and on behalf of itself and the Lenders;

(e) such Account is the obligation of an Account Debtor that is (i) a director, officer, other employee or Affiliate of a Loan Party or (ii) a natural person; provided that this clause (e) shall not exclude any Account of an Account Debtor solely on the basis that it is a portfolio company of any Equity Investor;

(f) (i) with respect to Accounts having selling terms less than or equal to one hundred twenty (120) days, the Account Debtor with respect to such Account has failed to pay within one hundred (120) days of original invoice date or sixty (60) days of original due date, (ii) with respect to Accounts having selling terms of more than one hundred twenty (120) days but less than or equal to one hundred eighty day (180) days, the Account Debtor with respect to such Account has failed to pay within one hundred


ACTIVE 50727705v3 15

eighty (180) days of original invoice date or sixty (60) days of original due date, and (iii) such Account has selling terms of more than one hundred eighty (180) days; provided that the aggregate outstanding amount of Revolving Loans made available to the Loan Parties with respect to Accounts having selling terms of more than one hundred twenty (120) days but less than or equal to one hundred eighty day (180) days shall not exceed $10,000,000 (or such other amount as determined by the Administrative Agent in its Permitted Discretion, following the receipt and review by the Administrative Agent of any Field Exam after the Closing Date);

(g) such Account is the obligation of an Account Debtor (or its Affiliates) from whom 50% or more of the amount of all Accounts owing by that Account Debtor (or its Affiliates) are ineligible under the criteria set forth in this definition;

(h) such Account is evidenced by chattel paper or an instrument of any kind, or has been reduced to judgment;

(i) such Account, together with all other Accounts owing by such Account Debtor and its Affiliates as of any date of determination, exceeds 20% (or (i) in the case of Parts Authority, Inc. and its Affiliates, 30% of all Eligible Accounts Receivables or (ii) such other percentage with respect to such other Account Debtors as determined by the Administrative Agent in its Permitted Discretion, following the receipt and review by the Administrative Agent of any Asset Appraisal or Field Exam) of all Eligible Accounts Receivables (such percentage, as applied to a particular Account Debtor, being subject to reduction by the Administrative Agent in its Permitted Discretion if the creditworthiness of such Account Debtor deteriorates), to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided that in each case, the amount of Eligible Accounts Receivables that are excluded because they exceed the foregoing percentage shall be determined by the Administrative Agent based on all of the otherwise Eligible Accounts Receivables prior to giving effect to any eliminations based upon the foregoing concentration limit;

(j) such Account has been compromised, settled or otherwise discounted, except discounts or modifications that are granted by the applicable Loan Party in the ordinary course of business and that are reflected in the calculation of the Borrowing Base;

(k) the Account Debtor with respect to such Account is subject to an event of the type described in Section 7.01(h) or (i), is not solvent, has gone out of business, or as to which any Loan Party has received notice of an imminent proceeding commenced by or against it under any provision of any Debtor Relief Law, or a material impairment of the financial condition of such Account Debtor;

(l) the Account Debtor shall have returned the merchandise purchased giving rise to such Account (and then, only with respect to the portion of the merchandise returned);

(m) the portion, if any, of any Account that includes a billing for interest, fees or late charges;

(n) such Account arises in a transaction wherein goods are placed on consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or any other terms by reason of which the payment by the Account Debtor may be conditional;

(o) such Accounts is not payable in Dollars or Canadian Dollars;

(p) the Account Debtor with respect to such Account either (i) does not maintain its chief executive office in the United States, or (ii) is not organized under the laws of the United States or any state thereof or Canada or any province thereof, or (iii) is the government of any foreign country or sovereign state, or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof, unless (A) such Account is supported by an


ACTIVE 50727705v3 16

irrevocable letter of credit reasonably satisfactory to the Administrative Agent (as to form, substance, and issuer or domestic confirming bank) that has been delivered to the Administrative Agent and is directly drawable by the Administrative Agent, (B) such Account is covered by credit insurance in form, substance, and amount, and by an insurer, reasonably satisfactory to the Administrative Agent or (C) such Account is otherwise acceptable to the Administrative Agent in its sole discretion;

(q) the Account Debtor with respect to such Account is either (i) the United States or any department, agency, or instrumentality of the United States (exclusive, however, of Accounts with respect to which Borrowers have complied, to the reasonable satisfaction of the Administrative Agent, with the Assignment of Claims Act, 31 USC §3727), or (ii) any state of the United States (exclusive, however, of Accounts with respect to which the Loan Parties have assigned their rights to the Administrative Agent in compliance with, to the reasonable satisfaction of the Administrative Agent, the applicable state statute or law);

(r) the Administrative Agent, in its Permitted Discretion, believes the collection of such Account to be doubtful, including by reason of the Account Debtor’s financial condition;

(s) (i) the goods giving rise to such Account have not been shipped and billed to the Account Debtor, or (ii) the services giving rise to such Account have not been performed and billed to the Account Debtor;

(t) the Account Debtor with respect to such Account is a Sanctioned Person;

(u) such Account represents the right to receive progress payments or other advance billings that are due prior to the completion of performance by the applicable Loan Party of the subject contract for goods or services;

(v) [reserved]; or

(w) such Account is subject to or included with or in (or potentially subject to or potentially included with or in) a Receivables Facility or otherwise constitutes Receivables Assets.

Any Account which does not constitute Eligible Accounts Receivables shall nevertheless be part of the Collateral.

“Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Approved Fund of any Lender, and (ii) (A) any commercial bank organized under the laws of the United States or any state thereof, (B) any savings and loan association or savings bank organized under the laws of the United States or any state thereof, (C) any commercial bank organized under the laws of any other country or a political subdivision thereof; provided that (1) such bank is acting through a branch or agency located in the United States or (2) such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country and (D) any other entity (other than a natural person) that is an “accredited investor” (as defined in Regulation D under the Securities Act) that extends credit or buys loans in the ordinary course, including insurance companies, investment or mutual funds or lease financing companies; provided that, in any event, Eligible Assignees shall not include (x) any natural person, (y) unless consented to in writing by the Borrower Representative (such consent shall be required regardless of whether a Default or Event of Default shall be continuing), any Disqualified Lender or (z) any Defaulting Lender or any Affiliate thereof.

“Eligible Inventory” means Inventory of a Loan Party that complies in all material respects with each of the representations and warranties respecting Eligible Inventory made in the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided that such criteria may be revised from time to time by the Administrative Agent in the Administrative


ACTIVE 50727705v3 17

Agent’s Permitted Discretion to address the results of any Asset Appraisal and Field Exam performed by (or on behalf of) the Administrative Agent from time to time after the Closing Date. In determining the amount to be so included, Inventory shall be valued at the lower of cost or market on a basis consistent with the Borrowers’ historical accounting practices. An item of Inventory shall not be included in Eligible Inventory to the extent that:

(a) a Loan Party does not have good, valid, and marketable title thereto;

(b) a Loan Party does not have actual and exclusive possession thereof (either directly or through a bailee or agent of a Loan Party), other than if (i) [reserved], (ii) such Inventory is in-transit from one location set forth on Schedule 3.22(b)(i) to another such location; provided that such Inventory is not in transit more than thirty (30) days, or (iii) such Inventory is “factory fee” Inventory and is not deemed ineligible under clause (c)(iii) below;

(c) (i) it is not located at one of the locations in the continental United States set forth on Schedule 3.22(b)(i) or reflected in the collateral reports delivered to the Administrative Agent from time to time pursuant to Section 5.01(e) (with updates to Schedule 3.22(b)(i) reflecting any such additional locations to be delivered in accordance with Section 5.24) (or it is not in-transit from one such location to another such location), except if such Inventory is (A) [reserved] or (B) is “factory fee” Inventory and is not deemed ineligible under clause (c)(iii) below, (ii) it is in-transit to or from a location of a Loan Party (other than in-transit from one location set forth on Schedule 3.22(b)(i) to another location set forth on Schedule 3.22(b)(i)) or reflected in the collateral reports delivered to the Administrative Agent from time to time pursuant to Section 5.01(e) (with updates to Schedule 3.22(b)(i) reflecting any such additional locations to be delivered in accordance with Section 5.24), or (iii) it is “factory fee” Inventory subject to a Factory Fee Inventory Agreement, unless (subject to Section 5.18) it is subject to a Collateral Access Agreement and is located at one of the locations in the continental United States set forth on Schedule 3.22(b)(ii) or reflected in the collateral reports delivered to the Administrative Agent from time to time pursuant to Section 5.01(e) (with updates to Schedule 3.22(b)(ii) reflecting any such additional locations to be delivered in accordance with Section 5.24); provided that the aggregate outstanding amount of Revolving Loans made available to the Loan Parties with respect to “factory fee” Inventory under this clause (c)(iii) shall not exceed $5,000,000 (or such other amount as determined by the Administrative Agent in its Permitted Discretion, following the receipt and review by the Administrative Agent of any Asset Appraisal or Field Exam); provided further that any Inventory held at locations subject to a Collateral Access Agreement shall not be subject to this clause (c);

(d) it is subject to third party trademark, licensing or other proprietary rights, unless the Administrative Agent is satisfied that such Inventory can be freely sold by the Administrative Agent on and after the occurrence of an Event of a Default despite such third party rights;

(e) it is the subject of a bill of lading or other document of title;

(f) it is located on Real Property leased by a Loan Party or in a contract warehouse, in each case, unless (subject to Section 5.18) it is subject to a Collateral Access Agreement executed by the lessor or warehouseman, as the case may be (or if such Loan Party is unable to obtain any such Collateral Access Agreement, such Inventory may be Eligible Inventory but Lender may, in its Permitted Discretion, establish a Landlord Reserve with respect to any Inventory so located or possessed) and, in the case of Inventory located at a public warehouse, unless it is segregated or otherwise separately identifiable from goods of others, if any, stored on the premises; provided that this clause (f) shall not deem ineligible any “factory fee” Inventory that is deemed eligible under clause (c)(iii) above; provided further that any Inventory held at locations subject to a Collateral Access Agreement shall not be subject to this clause (f);


ACTIVE 50727705v3 18

(g) it consists of goods that are obsolete or slow moving, restrictive or custom items, work-in-process, raw materials or goods that constitute spare parts, packaging and shipping materials, supplies used or consumed in the Borrowers’ business, bill and hold goods, defective goods, “seconds”, or Inventory acquired on consignment;

(h) it is not subject to a valid and perfected first priority the Collateral Agent’s Lien;

(i) it consists of goods returned or rejected by a Loan Party’s customers, which are not readily saleable, and held for sale, in the ordinary course of business (including, without limitation, goods that are defective or otherwise not readily saleable in the ordinary course of business); or

(j) Inventory that is not in material compliance with all material standards imposed by any Governmental Authority having regulatory authority over such Inventory, its use or sale.

Any Inventory which is not Eligible Inventory shall nevertheless be part of the Collateral.

“Environment” means ambient air, surface water, groundwater, drinking water, land surface, sediments, subsurface strata and natural resources such as wetlands, flora and fauna.

“Environmental Law” means all binding and applicable treaties, laws, rules having the force and effect of law, regulations, codes, ordinances, orders, decrees, judgments, injunctions or agreements issued, promulgated or entered into by or with any Governmental Authority, relating in any way to the protection of the Environment, the preservation or reclamation of natural resources, the generation, management, Release or threatened Release of, or exposure to, any Hazardous Material or to workplace health and safety matters.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of medical monitoring, costs of environmental remediation or restoration, administrative oversight costs, consultants’ fees, fines, penalties or indemnities), of Holdco or any Subsidiary resulting from or based upon (a) any violation of any Environmental Law or permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

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

“Equity Investors” means, collectively, (a) the Sponsors, (b) [reserved], and (c) the officers, directors, and other members of senior management of Holdco or any of its Subsidiaries, who as of the Closing Date beneficially own or have the right to acquire, directly or indirectly, Equity Interests of Holdco.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

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

“ERISA Event” means (a) any “reportable event”, as defined in Section 4043(c) of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period


ACTIVE 50727705v3 19

is waived), (b) with respect to any Plan, a failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA, whether or not waived, (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by any Loan Party or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan, (e) the receipt by any Loan Party or any ERISA Affiliate from the PBGC of any notice relating to an intention to terminate any Plan or Plans or the appointment of a trustee by the PBGC to administer any Plan, (f) the incurrence by any Loan Party or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan or (g) the receipt by any Loan Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Loan Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

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

“Eurocurrency Rate” shall mean, the rate per annum determined by the Administrative Agent to be the arithmetic mean of the offered rates for deposits in Dollars with a term comparable to such Interest Period that appears on the applicable Reuters screen (or any service selected by the Administrative Agent that has been nominated by ICE Benchmark Administration Limited (or any successor service or entity that has been authorized by the U.K. Financial Conduct Authority to administer the London interbank offered rate)) as of 11:00 a.m., London, England time, on the date of determination; provided that if the Reuters screen shall not be available for such Interest Period (an “Impacted Interest Period”) then the Eurocurrency Rate shall be the Interpolated Rate (as defined below); provided, however, that (i) if no comparable term for an Interest Period is available, the Eurocurrency Rate shall be determined using the weighted average of the offered rates for the two terms most nearly corresponding to such Interest Period and (ii) if there shall at any time no longer exist an applicable Reuters screen, “Eurocurrency Rate” shall mean, with respect to any Borrowings, the rate per annum equal to the rate at which the Administrative Agent is able to borrow in Dollars at the time of determination and in an amount comparable to its portion of the amount of such Eurocurrency Borrowing to be outstanding during such Interest Period. “Interpolated Rate” means the rate per annum determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the applicable Reuters screen for the longest period for which the applicable Reuters is available that is shorter than the Impacted Interest Period; and (b) the applicable Reuters screen for the shortest period (for which the applicable Reuters screen is available) that exceeds the Impacted Interest Period, in each case, at such time.

“Eurocurrency Reserve Percentage” means, as of any time of determination, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect at such time, whether or not applicable to any Lender, under regulations issued from time to time by the Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to any financing accruing interest by reference to the Eurocurrency Rate (currently referred to as “Eurocurrency liabilities”).

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

“Excess Availability” means (a) the lesser of (i) the aggregate Revolving Commitments and (ii) the Borrowing Base then in effect (such lesser amount, the “Line Cap”) minus (b) the Revolving Exposure.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.


ACTIVE 50727705v3 20


“Excluded Accounts” means (a) the DIP Term Controlled Account, (b) the Funded Reserve Account, and (c) accounts used solely for petty cash, payroll, trust, escrow, employee benefits, workers compensation, or tax withholding accounts.


“Excluded Property” means any assets held by the Debtors in trust for a third party and the Funded Reserve Account.

“Excluded Subsidiary” means Eastern Dorman, LLC, a Pennsylvania limited liability company.

“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest pursuant to the Security Documents to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the Guarantee of such Guarantor or the grant of such security interest would otherwise have become effective with respect to such related Swap Obligation but for such Guarantor’s failure to constitute an “eligible contract participant” at such time.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient:

(a) any Taxes imposed on or measured by such Recipient’s net income (however denominated) and franchise Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office, or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Taxes imposed as a result of a present or former connection between the Recipient and the jurisdiction of the Governmental Authority imposing such Tax (other than any such connection arising from such Recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, and/or engaged in any other transaction pursuant to, and/or sold or assigned an interest in any Loan Document);

(b) any branch profits Taxes imposed under Section 884(a) of the Code, or any similar branch profits Tax, imposed by any jurisdiction described in clause (a);

(c) in the case of a Lender, any United States federal withholding Taxes that are imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect at the time such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower Representative under Section 2.19) (or designates a new lending office) except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive additional amounts from any Loan Party with respect to such withholding Tax pursuant to Section 2.17 of this Agreement or;

(d) any Taxes attributable to a Recipient’s failure to comply with Section 2.17(e) or Section 2.17(g), as applicable; and

(e) any Taxes imposed under FATCA.

“Extension” has the meaning set forth in Section 2.24(a).


ACTIVE 50727705v3 21

“Extraordinary Advances” has the meaning assigned to such term in Section 2.03(e).

“Factory Fee Inventory Agreements” means, collectively, (a) the agreements listed on Schedule 1.01(f) and any replacements, amendments, modifications or amendments and restatements thereof, and (b) any other agreements entered into by a Loan Party from time to time wherein Inventory of a Loan Party may be stored with a bailee, which bailee may purchase such Inventory from time to time (including in order to resale such Inventory).

“FATCA” means Sections 1471 through 1474 of the Code as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future Treasury regulations or official administrative interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code and any intergovernmental agreement (and any related laws, regulations or official administrative practices) implementing the foregoing.

“Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

“Fee Letter” means that certain Fee Letter, dated as of the date hereby, by and among the Borrowers, the Administrative Agent, and the Lenders party thereto.

“Field Exams” has the meaning assigned to such term in Section 5.08(b).

“Final Order” shall mean the final order entered by the Bankruptcy Court in the Chapter 11 Cases, in form and substance satisfactory to the Administrative Agent, authorizing and approving, among other things, the DIP Facility and the Transactions, substantially in the form of the Interim Order (with only such modifications thereto as are necessary to convert the Interim Order to a final order and other modifications as are satisfactory in form and substance to the Administrative Agent in its sole discretion).

“Financial Covenant Trigger Event” has the meaning set forth in Section 6.12.

“Financial Covenant Trigger Period” has the meaning set forth in Section 6.12.

“Financial Officer” of any Person means the president, the chief financial officer, vice president of finance, principal accounting officer or treasurer of such Person (or, in the case of Holdco or any Person that is a Foreign Subsidiary, a director of such Person).

“Foreign Lender” means a Lender that is not a U.S. Person.

“Freight Forwarders” means the persons identified on Schedule F or such other person or persons as may be selected by the Loan Parties after the date hereof and after written notice by the Borrower Representative to the Administrative Agent who are acceptable to the Administrative Agent in its Permitted Discretion to handle the receipt of Inventory within the United States and/or to clear Inventory through the Bureau of Customs and Border Protection (formerly the Customs Service), or other domestic or foreign export control authorities or otherwise perform port of entry services to process Inventory imported by Borrowers from outside the United States (such persons sometimes being referred to herein individually as a “Freight Forwarder”).

“Funded Reserve Account” has the meaning assigned to such term in the Order.


ACTIVE 50727705v3 22

“GAAP” means, subject to the limitations set forth in Section 1.04, generally accepted accounting principles in the United States of America as in effect from time to time.

“Governing Body” means the board of directors or other body having the power to direct or cause the direction of the management and policies of a Person that is a corporation, company, partnership, trust, limited liability company, association, Joint Venture or other business entity.

“Governmental Authority” means the government of the United States of America or any other nation or, in each case, any political subdivision thereof, whether state, county, provincial, local or otherwise, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Granting Lender” has the meaning assigned to such term in Section 9.04(e).

“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term “Guarantee” shall not include (x) endorsements for collection or deposit in the ordinary course of business and (y) standard contractual indemnities or product warranties provided in the ordinary course of business; and provided further that the amount of any Guarantee shall be deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made and (ii) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee or, if such Guarantee is not an unconditional guarantee of the entire amount of the primary obligation and such maximum amount is not stated or determinable, the amount of such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith. The term “Guaranteed” has a meaning correlative thereto.

“Guarantors” means Holdco and each Subsidiary of Holdco that has Guaranteed the Obligations pursuant to the Guaranty, including each Borrower.

“Guaranty” means the ABL Guaranty executed and delivered by Holdco and certain of its Subsidiaries on the Closing Date, substantially in the form of Exhibit E hereto.

“Harvest” means Harvest Partners VII, L.P., together with its controlled investment affiliates and any investment fund or other entity managed by Harvest Partners, LP or any of its Affiliates, and which, directly or indirectly, are controlled by, or under common control with Harvest Partners, LP.

“Hazardous Materials” means all explosive or radioactive substances, materials or wastes, petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances, materials or wastes of any nature regulated pursuant to or which can give rise to liability under any Environmental Law.

“Holdco” has the meaning assigned to such term in the recitals to this Agreement.


ACTIVE 50727705v3 23

“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services, (e) all obligations of the type described in clauses (a), (b), (c), (d), (f), (g), (h), (i), (j) or (k) of this definition of “Indebtedness” of others secured by (or for which the holder of such Indebtedness has an existing unconditional right to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed by such Person, (f) all Guarantees by such Person of obligations of the type described in clauses (a), (b), (c), (d), (e), (g), (h), (i), (j) or (k) of this definition of “Indebtedness” of others, (g) the principal component of Capital Lease Obligations of such Person, (h) all reimbursement obligations of such Person as an account party in respect of letters of credit and letters of guaranty (except to the extent such letters of credit, or letters of guaranty relate to trade payables and such outstanding amounts are satisfied within thirty (30) days of incurrence), (i) all reimbursement obligations, of such Person in respect of bankers’ acceptances (except to the extent such bankers’ acceptances relate to trade payables and such outstanding amounts are satisfied within thirty (30) days of incurrence), (j) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Disqualified Equity Interests of such Person to the extent that such purchase, redemption, retirement or other acquisition is required to occur on or prior to the DIP Termination Date in effect at the time of issuance of such Equity Interests (other than as a result of a Change in Control, asset sale or similar event), and (k) to the extent not otherwise included in this definition, net obligations of such Person under Swap Obligations (the amount of any such obligations to be equal at any time to the net payments under such agreement or arrangement giving rise to such obligation that would be payable by such Person at the termination of such agreement or arrangement]. The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner to the extent such Person is liable therefor as a result of such Person’s ownership interest in such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Notwithstanding the foregoing, in no event shall the following constitute Indebtedness: (u) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warrants or other unperformed obligations of the seller of such asset, (v) [Reserved], (w) trade accounts payable, deferred revenues, liabilities associated with customer prepayments and deposits and other accrued obligations (including transfer pricing and accruals for payroll and other operating expenses accrued in the ordinary course of business), in each case incurred in the ordinary course of business, (x) operating leases, (y) customary obligations under employment agreements and deferred compensation and (z) prepaid or deferred revenue and deferred tax liabilities. Notwithstanding the foregoing, the term “Indebtedness” shall not include contingent post-closing purchase price adjustments, non-compete or consulting obligations or earn-outs to which the seller in an Acquisition or Investment may become entitled. The amount of Indebtedness of any Person for purposes of clause (e) above shall (unless such Indebtedness has been assumed by such Person) be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.

“Indemnified Liabilities” has the meaning assigned to such term in Section 9.03(b).

“Indemnified Party” has the meaning assigned to such term in Section 9.03(b).

“Indemnified Taxes” means all Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document.

“Information” has the meaning assigned to such term in Section 9.12.

“Initial Budget” shall mean a 13-week operating budget setting forth all forecasted receipts and disbursements on a weekly basis for such 13-week period beginning the week prior to the Petition Date,


ACTIVE 50727705v3 24

broken down by week, including the anticipated weekly uses of the DIP Proceeds for such period, which shall include, among other things, available cash, cash flow, trade payables and ordinary course expenses, total expenses, fees and expenses relating to the DIP Facility, fees and expenses related to the Chapter 11 Cases (including professional fees and expenses), gross Borrowing Base (only for informational purposes), and working capital and other general corporate needs, which forecast shall be in form and substance satisfactory to the Administrative Agent. Such Initial Budget shall be in the form set forth in Exhibit M hereto. Until supplemented pursuant to Section 5.01(h) and approved by the Administrative Agent pursuant to Section 5.22, the Initial Budget shall constitute the “Budget”.

“Initial Revolving Borrowing” means one or more borrowings of Revolving Loans or issuances or deemed issuances of Letters of Credit on the Closing Date as specified in the definition of the term “Permitted Initial Revolving Borrowing”.

“Intellectual Property” has the meaning assigned to such term in the Security Agreement.

“Interest Election Request” means a request by the Borrower Representative to convert or continue a Revolving Loan Borrowing in accordance with Section 2.07.

“Interest Payment Date” means the first Business day of each calendar month.

“Interest Period” means, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one (1) month thereafter (or any duration shorter than one (1) month thereafter if, at the time of the relevant Borrowing or conversion or continuation thereof, all Lenders participating therein agree to make an interest period of such duration available), as the Borrowers may elect, or, if the Administrative Agent and the Borrower Representative agree, such other period whose end would coincide with a payment due date under Swap Obligations; provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the preceding Business Day and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

“Interim Order” shall mean the interim order entered by the Bankruptcy Court in the Chapter 11 Cases (as the same may be amended, supplemented, or modified form time to time after entry thereof in a manner satisfactory to the Required Lenders in their sole discretion) substantially in the form of [Exhibit G] authorizing and approving, among other things, the DIP Facility and the Transactions, which interim order is in form and substance satisfactory to the Administrative Agent (with respect to matters relevant to or affecting the Administrative Agent) and the Required Lenders in their sole discretion.

“Investigation Period” shall have the meaning assigned to such term in Section 6.19.

“Inventory” has the meaning given to such term in Article 9 of the UCC.

“Inventory Reserves” means, as of any date of determination, without duplication of any other reserves or items that are otherwise addressed or excluded through eligibility criteria set forth in this Agreement, (a) Landlord Reserves, and (b) those reserves that the Administrative Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.01(f), to establish and maintain with respect to Eligible Inventory.


ACTIVE 50727705v3 25

“Investment” means (i) any purchase or other acquisition by Holdco or any of the Subsidiaries of, or of a beneficial interest in, any Equity Interests or Indebtedness of any other Person (including any Subsidiary) and (ii) any loan (including guarantees) or advance constituting Indebtedness of such other Person (other than accounts receivable, credit card and debit card receivables, trade credit, advances to customers, advances to officers, directors, members of management and employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures, in each case, in the ordinary course of business) or capital contribution by Holdco or any of the Subsidiaries to any other Person (including any Subsidiary). The amount of any Investment outstanding as of any time shall be the original cost of such Investment (which, in the case of any Investment constituting the contribution of an asset or property, shall be based on Holdco’s good faith estimate of the fair market value of such asset or property at the time such Investment is made) plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment, less all Returns received by Holdco or any Subsidiary in respect thereof.

“IRS” means the United States Internal Revenue Service.

“ISP” means, with respect to any standby Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

“Issuing Bank” means, as the context may require, Wells Fargo or another Lender reasonably satisfactory to the Borrower Representative and agreed to by such other Lender, each in its capacity as the issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.05(k). Any Issuing Bank may, with the consent of the Borrower, arrange for one or more Letters of Credit to be issued by an Affiliate of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. At any time the Borrowers shall have the right to select additional Lenders to act as Issuing Bank(s) hereunder with the consent of such Lenders.

“Joint Venture” means a joint venture, partnership or similar arrangement, whether in corporate, partnership or other legal form.

“Known Events” means, the commencement and continuation of the Chapter 11 Cases, the events leading up to the Chapter 11 Cases, the effect of the bankruptcy, the conditions in the industry in which the Borrowers operate in as existing on the Closing Date and/or the consummation of transactions contemplated by the Debtors’ “first day” pleadings reviewed by the Administrative Agent and Required Lenders, or as disclosed to the Administrative Agent and the Lenders prior to the Petition Date.

“Landlord Reserve” means, as to each location at which a Loan Party has Inventory or books and records located, a reserve in an amount equal to, without duplication of any other reserves or items that are otherwise addressed or excluded through eligibility criteria set forth in this Agreement, (a) as to locations which a Collateral Access Agreement has not been received by the Administrative Agent, no more than sixty (60) days’ rent under the lease relative to such location by only to the extent rent or storage fees take priority over the Obligations (other than Bank Product Obligations and other than unasserted contingent indemnification Obligations) under applicable Law or (b) as to locations which a Collateral Access Agreement that is not deemed sufficient by the Administrative Agent (in its Permitted Discretion) has been received, those reserves that the Administrative Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.01(f), to establish and maintain with respect to the Borrowing Base.

“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities and executive orders, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative


ACTIVE 50727705v3 26

orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.

“LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of Credit.

“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit, including, without limitation, all outstanding Prepetition ABL Letters of Credit at such time and (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrowers at such time. The LC Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the aggregate LC Exposure at such time.

“LC Sublimit” means $10,000,000 as such amount may be modified from time to time in accordance with the terms hereof.

“LCA Election” has the meaning assigned to such term in Section 1.05.

“LCA Test Date” has the meaning assigned to such term in Section 1.05.

“Lender Counterparty” means Wells Fargo, its Affiliates or any other counterparty to a Secured Swap Agreement or Secured Cash Management Agreement, as applicable.

“Lender Counterparty Agreements” means those agreements entered into from time to time by the Loan Parties or their Subsidiaries with a Lender Counterparty in connection with the obtaining of any of the Bank Products.

“Lenders” means the Persons who are lenders providing Revolving Loans and/or Swing Line Loans and/or have Commitments under this Agreement as of the Closing Date, any Additional Lenders and any other Person that shall have become a party hereto as a Lender pursuant to Section 9.04, other than any such Person that ceases to be a party hereto pursuant to Section 9.04.

“Letter of Credit” means (a) any letter of credit issued pursuant to this Agreement or the Prepetition ABL Credit Agreement, including the Prepetition ABL Letters of Credit, or (b) any guarantee, indemnity or other instrument, in each case in a form requested by the Borrower Representative and agreed by the applicable Issuing Bank.

“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the Issuing Bank.

“Letter of Credit Expiration Date” means the day that is five (5) Business Days prior to the DIP Termination Date (or, (x) if such day is not a Business Day, the immediately succeeding Business Day or (y) subject to Section 2.05(a), such later date if arrangements reasonably satisfactory to the relevant Issuing Bank have been entered into).

“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, charge, assignment by way of security, hypothecation, security interest or similar encumbrance given in the nature of a security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.

“Line Cap” has the meaning assigned to such term in the definition of “Excess Availability”.

“Liquidation” means the exercise by the Administrative Agent of those rights and remedies accorded to the Administrative Agent under the Loan Documents and Applicable Law as a creditor of the Loan Parties with respect to the realization on the Collateral, including (after the occurrence and


ACTIVE 50727705v3 27

continuation of an Event of Default) the conduct by the Loan Parties acting with the consent of the Administrative Agent, of any public, private or “going out of business” sale or other disposition of the Collateral for the purpose of liquidating the Collateral. Derivations of the word “Liquidation” (such as “Liquidate”) are used with like meaning in this Agreement.

“Liquidity” means, at any time of determination, the sum of (a) Excess Availability, plus (b) the sum of all of the Loan Parties’ Qualified Cash, plus (c) the sum of the remaining amount permitted to be drawn under the Term DIP Facility in accordance with its terms and (without duplication of any amounts included under clause (b) of this defined term) cash on deposit in the DIP Term Controlled Account prior to the use or application thereof.

“Loan Account” has the meaning assigned to such term in Section 2.09(c).

“Loan Documents” means this Agreement, the Guaranty, the Orders, the Security Documents, the Fee Letter, the Borrowing Base Certificates, the Letters of Credit, any Issuer Documents and, after the execution and delivery thereof pursuant to the terms of this Agreement, each Note, collectively, in each case as the same may be amended, restated, amended and restated, modified or supplemented from time to time, and all other related agreements and documents executed by a Loan Party in favor of, and delivered to, any Secured Party in connection with or pursuant to any of the foregoing, but for the avoidance of doubt, excluding any Lender Counterparty Agreements.

“Loan Parties” means Holdco, the Borrowers and the other Guarantors.

“Loans” means the Revolving Loans, the Swing Line Loans and any other loans made by any Lenders to the Borrowers pursuant to this Agreement.

“Margin Stock” has the meaning assigned thereto in Regulation U of the Board.

“Material Adverse Effect” means other than with respect to any Known Events, any event, circumstance or condition that materially adversely affects: (i) the business, operations, properties or financial condition of Holdco and its Subsidiaries, collectively, (ii) the legality, validity or enforceability of any Loan Documents or the Orders, (iii) the rights and remedies of the Administrative Agent or the Lenders, taken as a whole, under the Loan Documents, (iv) the perfection or priority of the DIP Liens granted pursuant to the Orders and the other Loan Documents, or (v) the ability of the Borrowers and/or the Guarantors, taken as a whole, to perform their payment obligations under any Loan Document to which the Borrowers or any of the other Loan Parties is a party.

“Material Bank Accounts” has the meaning assigned to such term in Section 5.03(c).

“Material Indebtedness” means any Indebtedness (other than the Loans and Letters of Credit) of Holdco or any Subsidiary an outstanding principal amount exceeding $1,000,000 at such time.

“Maximum Rate” has the meaning assigned to such term in Section 9.13.

“Milestone” has the meaning assigned to such term in Section 5.19.

“Minimum Extension Condition” has the meaning set forth in Section 2.24(b).

“Moody’s” means Moody’s Investors Service, Inc.

“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which any Loan Party makes or is obligated to make contributions, or otherwise has any actual or contingent liability (including any liability on account of any ERISA Affiliate).


ACTIVE 50727705v3 28

“Nationally Recognized Statistical Rating Organization” means a nationally recognized statistical rating organization within the meaning of Rule 436 under the Securities Act.

“Net Orderly Liquidation Value” means, as of any date of determination, the percentage of the book value of the Loan Party’s Inventory that is estimated to be recoverable in an orderly liquidation of such Inventory net of all associated costs and expenses of such liquidation, such percentage to be determined as to each category of Inventory and to be as specified in the most recent Asset Appraisal received by the Administrative Agent from an appraisal company selected by the Administrative Agent in its Permitted Discretion.

“Net Proceeds” means, with respect to any event, (a) the cash proceeds received in respect of such event, including (x) in the case of a Disposition of an asset (including pursuant to a Sale Leaseback transaction or a casualty or a condemnation or similar proceeding), any cash received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment or earn-out, but excluding any reasonable interest payments), but only as and when received, (y) in the case of a casualty, cash insurance proceeds, and (z) in the case of a condemnation or similar event, cash condemnation awards and similar payments received in connection therewith, minus (b) the sum of (i) all reasonable and documented fees and out of pocket expenses (including commissions, transfer taxes and legal, accounting and other professional and transactional fees) paid or payable by Holdco and the Subsidiaries to third parties in connection with such event, (ii) in the case of a Disposition of an asset (including pursuant to a Sale Leaseback transaction or a casualty or a condemnation or similar proceeding), the amount of payments made or required to be made in respect of Indebtedness (other than Loans) secured by such asset or otherwise subject to mandatory prepayment (other than under this Agreement) as a result of such event, or which by applicable law be repaid out of the proceeds of such Disposition, casualty, condemnation or similar proceeding, (iii) the amount of all Taxes paid (or reasonably estimated to be payable or accrued as a liability under GAAP) by Holdco and the Subsidiaries as a result of such event (including, for the avoidance of doubt, income, withholding or other Taxes payable as a result of the distribution of such proceeds to Holdco or any Tax Distributions to be made with respect to such event), (iv) in the case of any Disposition or casualty or condemnation or similar proceeding by a non-wholly-owned Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (iv)) attributable to minority interests and not available for distribution to or for the account of a Borrower or a wholly-owned Subsidiary as a result thereof and (v) any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition.

“Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(c).

“Nonrenewal Notice Date” has the meaning specified in Section 2.05(c).

“Note” means a Revolving Note or a Swing Line Note, as the context may require.

“Obligations” means, with respect to each Loan Party, without duplication, (a) all loans (including the Revolving Loans (inclusive of Swing Line Loans and Extraordinary Advances)), debts, principal, interest (including any interest that accrues after the commencement of an any insolvency, reorganization or like proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such any insolvency, reorganization or like proceeding), reimbursement or indemnification obligations with respect to Letters of Credit (irrespective of whether contingent), premiums, liabilities (including all amounts charged to the Loan Account pursuant to this Agreement), obligations (including indemnification obligations), fees, costs and expenses payable under this Agreement or any of the other Loan Documents (including (i) any fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrowers or the Guarantors pursuant to Section 9.03(a) of this


ACTIVE 50727705v3 29

Agreement or under any other similar provision of any other Loan Document, and (ii) costs and expenses payable under this Agreement or any of the other Loan Documents (including any fees or expenses that accrue after the commencement of an any insolvency, reorganization or like proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such any insolvency, reorganization or like proceeding), and including all interest not paid when due and all other expenses or other amounts that the Borrowers are required to pay or reimburse by the Loan Documents or by Law or otherwise in connection with the Loan Documents, and (b) all Bank Product Obligations. Any reference in this Agreement or in the Loan Documents to the Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any insolvency, reorganization or like proceeding.

“OFAC” means the Office of Foreign Assets Control of the U.S. Treasury Department.

“Operating Account” or “Operating Accounts” means, individually or collectively, all operating accounts established and maintained by Loan Parties and which are designated as such and listed on Schedule 3.24.

“Orders” shall mean, collectively, the Interim Order and the Final Order. “Order” shall mean (a) until the entry of the Final Order by the Bankruptcy Court, the Interim Order, and (b) upon and after the entry of the Final Order by the Bankruptcy Court, the Final Order.

“Organizational Documents” of any Person means the charter, memorandum and articles of association, articles or certificate of organization or incorporation and bylaws or other organizational or governing or constitutive documents of such Person.

“Other Taxes” means all present or future recording, stamp, court, documentary, intangible, filing or similar Taxes arising from any payment made under any Loan Document or from the execution, delivery, performance, registration or enforcement of, or from the registration, receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Taxes described in clause (a)(ii) of the definition of “Excluded Taxes” (other than an assignment made pursuant to Section 2.19(b)).

“Overadvance” means, as of any date of determination, that the Revolving Exposure is greater than the Line Cap.

“Parent” means AP Exhaust Holdings, LLC, a parent company of AP Acquisition.

“Parent Entity” means any Person of which Holdco at any time is or becomes a subsidiary on or after the Closing Date (including, for the avoidance of doubt, as of the Closing Date, Parent) and any holding companies established by any Permitted Holder for purposes of holding its investment in any Parent Entity.

“Participant” has the meaning assigned to such term in Section 9.04(c).

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

“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56 (signed into Law October 26, 2001)).

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.


ACTIVE 50727705v3 30

“Permitted Carryforward” means the amount of any projected disbursements, receipts or net cash flow set forth in the Budget for a Testing Period not expended in such Testing Period, which amounts shall carry forward into the next succeeding Testing Period and applied to increase the applicable amount thereof.

“Permitted Discretion” means a determination made by the Administrative Agent in good faith in the exercise of its reasonable credit judgment (from the perspective of a secured asset-based lender) in accordance with customary business practices of the Administrative Agent for asset-based lending transactions as being necessary or appropriate to reflect: (a) any factor that could reasonably be expected to adversely affect in any material respect (i) the value of any of the ABL Priority Collateral, (ii) the validity, enforceability or priority of the Collateral Agent’s Liens on any of the ABL Priority Collateral, (iii) the validity or enforceability of the Loan Documents, (iv) the rights and remedies of the Secured Parties (including, without limitation, the Collateral Agent’s ability to realize upon the ABL Priority Collateral) or the collectability or repayment of the Obligations, or (v) the amount that the Collateral Agent and the other Secured Parties would receive in a liquidation of any of the ABL Priority Collateral; (b) claims and liabilities that the Administrative Agent and/or the Collateral Agent determines will need to be satisfied in connection with the realization upon the Collateral or to enhance the collectability or repayment of the Obligations; or (c) that any collateral report or financial information delivered by any Loan Party to the Administrative Agent is incomplete, inaccurate or misleading in any material respect.

“Permitted Encumbrances” means:

(a) Liens imposed by law for taxes, assessments or other governmental charges or levies that are not yet due or delinquent, are not more than sixty (60) days overdue, are not required to be paid pursuant to Section 5.05 or are being contested in compliance with Section 5.05;

(b) carriers’, warehousemen’s, supplier’s, construction contractor’s, workmen’s, mechanic’s, materialmen’s, repairmen’s, landlords’ and other like Liens imposed by law or contract, arising in the ordinary course of business and securing obligations (i) that are not yet due or (ii) (x) that are not overdue by more than sixty (60) days, (y) are not required to be paid pursuant to Section 5.05 or (z) are being contested in compliance with Section 5.05;

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

(d) (i) Liens, pledges and deposits to secure the performance of bids, government contracts, trade contracts (other than for borrowed money), leases, statutory obligations, deductibles, co-payment, co-insurance, retentions, premiums, reimbursement obligations or similar obligations to providers of insurance, self-insurance or reinsurance obligations, surety, stay, customs and appeal or similar bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations) and other similar obligations and (ii) obligations in respect of letters of credit or bank guarantees that have been posted to support payment of the items set forth in clause (i) of this clause (d);

(e) attachment or judgment liens in respect of judgments or decrees that do not constitute an Event of Default under Section 7.01(j);

(f) easements, zoning restrictions, rights-of-way, encroachments, minor defects or irregularities in title and similar encumbrances on real property imposed by law or arising in the ordinary course of business and that either (i) individually or in the aggregate do not materially interfere with the ordinary conduct of business of Holdco and its Subsidiaries, taken as a whole or (ii) are described in a mortgage policy of title insurance or survey with respect to any real property;


ACTIVE 50727705v3 31

(g) customary rights of first refusal and tag, drag and similar rights in Joint Venture agreements that are in existence as of the Closing Date;

(h) Liens arising from Cash Equivalents described in clause (d) of the definition of the term “Cash Equivalents”;

(i) [reserved]; and

(j) Liens on the relevant Receivables Assets arising from Receivables Facilities that constitute Permitted Factorings securing such Receivables Facilities.

“Permitted Factoring” has the meaning set forth in Section 6.01(a)(xxix).

“Permitted Holders” means the Equity Investors.

“Permitted Initial Revolving Borrowing” means (a) one or more Borrowings of Revolving Loans for working capital (including, without limitation, with respect to payroll) and other general corporate purposes and (b) the issuance of or deemed issuance of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the Subsidiaries of Holdco outstanding on the Closing Date or for other general corporate purposes.

“Permitted Priority Lien” shall mean any of those existing Liens that under applicable law, are senior to, and have not been subordinated to, the DIP Liens granted in favor of the Collateral Agent under the Loan Documents, but only to the extent that such Liens are valid, perfected, enforceable and non-avoidable Liens as of the Petition Date[; provided, that, the US Trustee Carve Out shall be deemed to be a Permitted Priority Lien for all purposes hereunder].1

“Permitted Variance” shall mean, for the applicable “Testing Period” set forth in the table below, after giving effect to any Permitted Carryforward: (i) all favorable variances and (ii) an unfavorable variance of no more than the applicable percentage (set forth in the table below) for each of actual receipts, disbursements and net cash flow as compared to the budgeted receipts, disbursements and net cash flow, respectively, set forth in the Budget with respect to the applicable Testing Period; provided, that any disbursements in such Testing Period made from proceeds of favorable variances with respect to receipts in such Testing Period shall not be counted as disbursements for purposes of calculating unfavorable variances; and provided further that (x) the calculation of net cash flow for any Testing Period shall be with respect to operating net cash flow and shall exclude restructuring-related costs, and (y) the calculation of disbursements shall not include disbursements on account of the Debtors’ payment of professional fees in accordance with the Budget.

Testing Period (from Petition Date) Applicable Percentage

Percentage for Receipts

Percentage for Disbursements

Percentage for Net Cash Flow

Week 1 N/A NA N/A

Through Week 2 (cumulative) N/A 20% N/A

Through Week 3 (cumulative) 32.5% 15% 35%


1 NTD: Subject to continuing discussions regarding the Interim Order and Carve Out.


ACTIVE 50727705v3 32

Through Week 5 (cumulative) 25% 15% 30%




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

“Petition Date” has the meaning assigned to such term in the recitals to this Agreement.

“Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA) other than a Multiemployer Plan that is subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and is sponsored or maintained by any Loan Party or to which any Loan Party has any liability or contingent liability (including any liability on account of any ERISA Affiliate).

“Plan Supplement” has the meaning assigned to such term in the Bankruptcy Plan.

“Platform” has the meaning assigned to such term in Section 5.01.

“Prepetition ABL Agent” means Wells Fargo Bank, National Association, in its capacity as administrative agent and collateral agent under the Prepetition ABL Loan Documents, or any successor administrative agent and collateral agent under the Prepetition ABL Loan Documents.

“Prepetition ABL Collateral” shall mean the “Collateral” as defined in the Prepetition ABL Credit Agreement as of the Closing Date.

“Prepetition ABL Credit Agreement” shall have the meaning assigned to such term in the recitals to this Agreement.

“Prepetition ABL LC Exposure” means LC Exposure as defined in the Prepetition ABL Credit Agreement with respect to Prepetition ABL Letters of Credit.

“Prepetition ABL Letters of Credit” means the “Letters of Credit” as defined in and issued pursuant to the Prepetition ABL Credit Agreement as of the Closing Date.

“Prepetition ABL Loan Documents” has the meaning assigned to the term “Loan Documents” in the Prepetition ABL Credit Agreement.

“Prepetition ABL Loans” has the meaning assigned to the term “Loans” in the Prepetition ABL Credit Agreement.

“Prepetition ABL Obligations” has the meaning assigned to the term “Obligations” in the Prepetition ABL Credit Agreement.

“Prepetition ABL Secured Parties” shall have the meaning assigned to such term in Section 2.30(b).

“Prepetition Term Agents” shall mean the “Agents” as defined in the Prepetition Term Credit Agreement as of the Closing Date.


ACTIVE 50727705v3 33

“Prepetition Term Collateral” shall mean the “Collateral” as defined in the Prepetition Term Credit Agreement as of the Closing Date.

“Prepetition Term Collateral Agent” shall mean the “Collateral Agent” as defined in the Prepetition Term Credit Agreement as of the Closing Date.

“Prepetition Term Credit Agreement” means the First Lien Credit Agreement dated as of May 10, 2017, by and among Holdco, the Borrowers, the lenders party thereto in their capacities as lenders thereunder, the Prepetition Term Agents, as agent and the other agents party thereto, as the same may be amended, restated, modified, supplemented, extended, renewed, refunded, replaced or refinanced from time to time in one or more agreements (in each case with the same or new lenders, guarantors, institutional investors or agents), in each case as and to the extent not prohibited by this Agreement and the ABL Intercreditor Agreement.

“Prepetition Term Lenders” shall mean the “Lenders” as defined in the Prepetition Term Credit Agreement as of the Closing Date.

“Prepetition Term Liens” shall have the meaning assigned to such term in Section 5.10.

“Prepetition Term Loan Documents” shall mean the “Loan Documents” as defined in the Prepetition Term Credit Agreement as of the Closing Date.

“Prepetition Term Obligations” shall mean the “Obligations” as defined in the Prepetition Term Credit Agreement as of the Closing Date.

“Prepetition Payment” shall mean a payment (by way of adequate protection or otherwise) of principal or interest or otherwise on account of any prepetition Indebtedness, trade payables or other pre-petition claims against any Debtor.

“Prime Rate” means the prime rate published in The Wall Street Journal for such day; provided that if The Wall Street Journal ceases to publish for any reason such rate of interest, “Prime Rate” shall mean the prime lending rate as set forth on the Bloomberg page PRIMBB Index (or successor page) for such day (or such other service as determined by the Administrative Agent from time to time for purposes of providing quotations of prime lending interest rates).

“Professional Costs” shall mean any payment or the obligation to make payment on account of fees and expenses incurred by professional advisors to the Loan Parties, the Lenders, the Agents, or any other party’s professional advisors, the fees and expenses of which are obligated to be paid by the Loan Parties (including, but not limited to, the fees and expenses of professional advisors to any committee appointed in the Chapter 11 Cases), the Lenders or the Agents in connection with the Chapter 11 Cases and/or the Loan Documents.

“Projections” has the meaning assigned to such term in Section 5.01(d).

“Proposed Change” has the meaning assigned to such term in Section 9.02(c).

“Protective Advances” means a Revolving Loan made by the Administrative Agent, in its discretion, which: (a) is made to maintain, protect or preserve the Collateral and/or the Secured Parties’ rights under the Loan Documents or which is otherwise for the benefit of the Secured Parties and/or the Loan Parties; or (b) is made to enhance the likelihood of, or to maximize the amount of, repayment of any Obligation (other than any Bank Product Obligation); or (c) is made to pay any other amount chargeable to any Loan Party hereunder; and (d) together with all other Protective Advances then outstanding, shall not (i) exceed 10% of the Revolving Commitments at any time or (ii) unless a Specified Event of Default is


ACTIVE 50727705v3 34

taking place, remain outstanding for more than forty-five (45) consecutive Business Days, unless in each case, the Requisite Lenders otherwise agree.

“Public Lender” has the meaning assigned to such term in Section 5.01.

“Qualified Cash” means unrestricted (such cash not being subject to any other Liens, other than Liens permitted by Section 6.02) domestic cash and Cash Equivalents owned by any Loan Party (a) that are held in a Deposit Account either (i) maintained with the Administrative Agent or (ii) over which the Administrative Agent has a valid, enforceable and perfected first priority security interest and lien and for which the Collateral Agent has received a Deposit Account Control Agreement and (b) for which the Administrative Agent shall have received evidence, in form and substance reasonably satisfactory to the Administrative Agent, of the amount of such cash or Cash Equivalents held in such Deposit Account as of the applicable date of each Borrowing Base Certificate delivered hereunder and as may be further required by Schedule 5.01(e).

“Receivable Reserves” means, as of any date of determination, without duplication of any other reserves or items that are otherwise addressed or excluded through eligibility criteria set forth in this Agreement those reserves that the Administrative Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.01(f), to establish and maintain (including reserves for rebates, discounts, warranty claims, and returns) with respect to Eligible Accounts Receivables.

“Receivables Assets” means (a) any accounts receivable owed to Holdco or a Subsidiary subject to a Receivables Facility and the proceeds thereof and (b) all collateral securing such accounts receivable, all contracts and contract rights, guarantees or other obligations in respect of such accounts receivable, all records with respect to such accounts receivable and any other assets customarily transferred together with accounts receivable in connection with a non-recourse accounts receivable factoring arrangement and which are sold, conveyed, assigned or otherwise transferred or pledged by Holdco to a commercial bank or an Affiliate thereof in connection with a Receivables Facility.

“Receivables Facility” means (i) the facilities listed on Schedule 1.01(a) hereto or (ii) an arrangement between Holdco or a Subsidiary and a commercial bank or an Affiliate thereof so long as (a) Holdco or such Subsidiary, as applicable, sells (directly or indirectly) to such commercial bank (or such Affiliate) accounts receivable owing by customers, together with Receivables Assets related thereto, (b) the obligations of Holdco or such Subsidiary, as applicable, thereunder are non-recourse (except for Securitization Repurchase Obligations and customary representations, warranties, covenants and indemnities made in connection with such facilities) to Holdco and such Subsidiary, (c) the financing terms, covenants, termination events and other provisions thereof shall be on market terms (as determined in good faith by the Borrower Representative) and may include Standard Securitization Undertakings, and shall include any guaranty in respect of such arrangement (d) such arrangement and the terms thereof are consistent with the past practices of Holdco and its Subsidiaries and (e) such arrangement is approved by the Required Lenders.

“Recipient” means, as applicable, (a) the Administrative Agent, (b) any Lender, or (c) any Issuing Bank.

“Recovery Event” has the meaning set forth in Section 6.12.

“Refunded Swing Line Loans” has the meaning specified in Section 2.04(b).

“Register” has the meaning assigned to such term in Section 9.04(b)(iii).

“Related Parties” means, with respect to any specified Person, (a) such Person’s Affiliates and Controlling Persons and (b) the respective partners, directors, officers, employees, trustees, agents, advisors


ACTIVE 50727705v3 35

and/or representatives of such Person and such Person’s Affiliates and Controlling Persons (in the case of agents, advisors and/or representatives of such Person and such Person’s Affiliates and Controlling Persons, acting at the instructions of such Person or such Person’s Affiliates and Controlling Persons).

“Related Taxes” means:

(1) any franchise or similar Taxes required to maintain the corporate existence of Holdco or a Parent Entity; or

(2) if and for so long as each Borrower is a member of a group filing a consolidated, combined or unitary tax return with Holdco or any Parent Entity or is a “disregarded entity” owned by Holdco or any Parent Entity, any consolidated, combined or unitary Taxes measured by income, and any Taxes imposed in lieu of Taxes measured by income, for which Holdco or such Parent Entity is liable that are attributable to a Borrower and/or its Subsidiaries up to an amount not to exceed with respect to such Taxes the amount of any such Taxes that such Borrower and/or such Subsidiaries would have been required to pay on a separate company basis or on a consolidated basis if such Borrower and/or such Subsidiaries had paid Tax on a consolidated, combined or unitary basis on behalf of an affiliated group consisting only of such Borrower (deemed to be a parent corporation solely for this purpose) and/or such Subsidiaries.

“Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge or leaching into the Environment.

“Released Parties” shall have the meaning assigned to such term in Section 5.10.

“Remedies Notice Period” shall have the meaning assigned to such term in Section 7.02(a).

“Required Lenders” means, at any time, Lenders (other than Defaulting Lenders) having Revolving Exposures and unused Revolving Commitments representing more than 50% of the aggregate Revolving Exposures and unused Revolving Commitments at such time; provided that for any Required Lenders’ vote, no Defaulting Lender shall be included in the calculation of Required Lenders.

“Requirement of Law” means, with respect to any Person, any statute, law, treaty, rule, regulation, order, executive order, ordinance, decree, official administrative pronouncement, writ, injunction or determination of any arbitrator or court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“Responsible Officer” of any Person means the chief executive officer, president or any Financial Officer of such Person, and any other senior officer (or, in the case of any such Person that is a Foreign Subsidiary, director or managing partner or similar official) of such Person with responsibility for the administration of the obligations of such Person under this Agreement.

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in Holdco or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or termination of any Equity Interests in Holdco or any Subsidiary, or any option, warrant or other right to acquire any such Equity Interests in Holdco or any Subsidiary, other than the payment of compensation in the ordinary course of business to holders of any such Equity Interests who are employees of Holdco or any Subsidiary. Notwithstanding the foregoing, Restricted Payments shall not include Tax Distributions to the extent set forth in the Budget.

“Revolving Availability Period” means the period from and including the Closing Date to the DIP Termination Date.


ACTIVE 50727705v3 36

“Revolving Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans, Swing Line Loans (or acquire participations therein) and to acquire participations in Letters of Credit hereunder, expressed as an amount representing the maximum principal aggregate amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s Revolving Commitment is set forth on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Revolving Commitment, as the case may be. References to the “Revolving Commitments” shall mean the Revolving Commitment of each Lender taken together. The aggregate principal amount of the Lenders’ Revolving Commitments on the Closing Date is $90,000,000.

“Revolving Exposure” means, at any time, the sum of (a) the aggregate principal amount of the Revolving Loans (inclusive of Protective Advances) outstanding at such time, (b) the LC Exposure at such time and (c) the aggregate outstanding principal amount of all Swing Line Loans outstanding at such time. The Revolving Exposure of any Lender at any time shall be its Applicable Percentage of the Revolving Exposure at such time.

“Revolving Facility” means the Revolving Commitments and the extension of credit made thereunder.

“Revolving Lender” means a Lender with a Revolving Commitment or, if the Revolving Commitments have terminated or expired, a Lender with Revolving Exposure.

“Revolving Loan” means a Loan made pursuant to clause (b) of Section 2.01.

“Revolving Note” means a promissory note of the Borrowers evidencing Revolving Loans made or held by a Revolving Lender, substantially in the form of Exhibit F-1 hereto.

“S&P” means S&P Global Ratings or any successor thereto.

“Sale Leaseback” means any transaction or series of related transactions pursuant to which Holdco or any of its Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.

“Sanctioned Country” means, at any time, a country or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Cuba, the Crimea region, Iran, North Korea, Sudan and Syria).

“Sanctioned Person” means, at any time, (a) any Person listed in any sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or by the United Nations Security Council, the European Union or any EU member state, or any other relevant Governmental Authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person 50% or greater owned by one or more Persons, or controlled by, any Person or Persons described in the foregoing clauses (a)-(b).

“Sanctions” means economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time by U.S. Governmental Authorities (including, but not limited to, OFAC, the U.S. Department of State and the U.S. Department of Commerce), the United Nations Security Council, the European Union, Her Majesty’s Treasury or any other relevant Governmental Authority.


ACTIVE 50727705v3 37

“SDN List” is the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury.

“SEC” means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.

“Secured Cash Management Agreement” means any Cash Management Agreement permitted under this Agreement that (a) is in effect on the Closing Date between a Loan Party and/or any Subsidiary and a counterparty that is any Agent or a Lender or an Affiliate of any Agent or a Lender as of the Closing Date or (b) is entered into after the Closing Date by a Loan Party and/or any Subsidiary with any counterparty that is any Agent or a Lender or an Affiliate of any Agent or a Lender at the time such arrangement is entered into, and in the case of each of clauses (a) and (b) hereof, the Borrower Representative designates in writing to the Administrative Agent that such Cash Management Agreement shall be a Secured Cash Management Agreement.

“Secured Cash Management Obligations” means all Cash Management Obligations under any Secured Cash Management Agreement.

“Secured Obligations” means the Obligations.

“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Lender Counterparties and each Indemnitee, and their respective successors and assigns.

“Secured Swap Agreement” means any Swap Agreement permitted under this Agreement that (a) is in effect on the Closing Date between a Loan Party and/or any Subsidiary and a counterparty that is an Agent or a Lender or an Affiliate of an Agent or a Lender as of the Closing Date or (b) is entered into after the Closing Date by a Loan Party and/or any Subsidiary with any counterparty that is an Agent or a Lender or an Affiliate of an Agent or a Lender at the time such Swap Agreement is entered into, and the case of each of clauses (a) and (b) hereof, the Borrower Representative designates in writing to the Administrative Agent that such Swap Agreement shall be a Secured Swap Agreement; provided that the “Secured Swap Obligations” shall exclude any Excluded Swap Obligations.

“Secured Swap Obligations” means all Swap Obligations under any Secured Swap Agreement; provided that the “Secured Swap Obligations” shall exclude any Excluded Swap Obligations.

“Securities Account” means all securities accounts of any Loan Party, including “securities accounts” within the meaning given to such term in Article 8 of the UCC.

“Securities Account Control Agreement” means, with respect to a Securities Account, a securities account control agreement in form and substance reasonably acceptable to each of the Collateral Agent and the Borrower Representative (which approval shall be deemed given by execution of such agreement), among one or more Loan Parties, the Collateral Agent and an Approved Securities Intermediary, in each case as the same may be amended, modified or supplemented from time to time.

“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.

“Security Agreement” means the ABL Security Agreement dated as of the Closing Date, among Holdco, the Borrowers, the other Guarantors party thereto from time to time and the Collateral Agent, substantially in the form of Exhibit D hereto.

“Security Documents” means the Security Agreement, the Orders, the ABL Intercreditor Agreement and any other intercreditor agreement entered into in connection with this Agreement, each Collateral Access Agreement and each other security agreement or other instrument or document executed


ACTIVE 50727705v3 38

and delivered pursuant to Section 5.11, Section 5.12 or any other Security Document to secure the Secured Obligations.

“Settlement” has the meaning assigned to such term in Section 2.06(c).

“Settlement Date” has the meaning assigned to such term in Section 2.06(c).

“Software” means any and all computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code; databases and compilations, including any and all data and collections of data, whether machine readable or otherwise; descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons; and all documentation including user manuals and other training documentation related to any of the foregoing.

“Sponsors” means Harvest and Audax.

“SPV” has the meaning assigned to such term in Section 9.04(e).

“Subordinated Indebtedness” means Indebtedness incurred by a Loan Party that is contractually subordinated in right of payment to the prior payment of all Obligations of such Loan Party under the Loan Documents.

“subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, company, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the ordinary voting power for the election of the members of the governing body or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned or controlled by the parent and/or one or more subsidiaries of the parent.

“Subsidiary” means unless otherwise expressly provided, a subsidiary of Holdco other than an Excluded Subsidiary.

“Substantial Compliance” means compliance with the Budget after giving effect to the Permitted Variances.

“Superpriority DIP Claim” means all Obligations shall be entitled, on a joint and several basis, to the benefits of section 364(c)(1) of the Bankruptcy Code, having superpriority over any and all unsecured claims and all administrative expenses, including administrative expenses of the kind that are specified in sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b), 546(c), 726, 1114 or any other provisions of the Bankruptcy Code, subject only to the Carve-Out to the extent set forth in the Orders.

“Swap Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward contracts, future contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, repurchase agreements, reverse repurchase agreements, sell buy back and buy sell back agreements, and securities lending and borrowing agreements or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International


ACTIVE 50727705v3 39

Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“Swap Obligation” means, with respect to any Person, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

“Swap Termination Value” means, in respect of any one or more Secured Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Secured Swap Agreements, (a) for any date on or after the date such Secured Swap Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark to market value(s) for such Secured Swap Agreements, as determined by the Lender Counterparty and the Borrower Representative in accordance with the terms thereof and in accordance with customary methods for calculating mark-to-market values under similar arrangements by the Lender Counterparty and the Borrower Representative.

“Swing Line Lender” means Wells Fargo, in its capacity as provider of Swing Line Loans or any successor swing line lender hereunder, together with its permitted successors and assigns in such capacity.

“Swing Line Loan” means a Loan made by Swing Line Lender to any Borrower pursuant to Section 2.04.

“Swing Line Note” means a promissory note of the Borrowers evidencing Swing Line Loans made by the Swing Line Lender, substantially in the form of Exhibit F-2 hereto.

“Swing Line Sublimit” means an amount equal to the lesser of (a) $20,000,000 and (b) the aggregate amount of the Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to, the Revolving Commitments.

“Tax Distributions” means, so long as Holdco is treated as a pass-through or disregarded entity for federal and state income tax purposes, any direct or indirect distribution (i) made to Holdco or any Parent Entity by any Subsidiary and (ii) from Holdco to its members, in amounts and at times as contemplated in Section 5.1 of Parent’s Operating Agreement (as defined in the AP Purchase Agreement) in the form of such section on the date of execution of the AP Purchase Agreement and as may be amended, restated or otherwise modified in a manner not adverse to the Lenders (in their capacities as such). For the avoidance of doubt, no Borrower shall be permitted to make any Tax Distributions with respect to any Tax for which such Borrower has already made distributions as a Related Tax.

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

“Term DIP Facility” has the meaning specified therefor in the recitals.

“Term DIP Agent” means Wilmington Trust, National Association, in its capacity as administrative agent and collateral agent under the Term DIP Facility Documents, or any successor administrative agent and collateral agent under the Term DIP Facility Documents.

“Term DIP Credit Agreement” means that certain Superpriority Secured Debtor-in-Possession Credit Agreement, dated as of the date hereof, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, in each case as and to the extent not prohibited by this Agreement and the ABL Intercreditor Agreement, among the Borrower, the other borrowers party thereto from time to time, the lenders and other financial institutions party thereto from time to time and the Term DIP Agent.


ACTIVE 50727705v3 40

“Term DIP Facility Documents” means the “Loan Documents” as defined in the Term DIP Credit Agreement, as the same may be amended, supplemented, waived, otherwise modified, extended, renewed, refinanced, or replaced from time to time, in each case as and to the extent not prohibited by this Agreement and the ABL Intercreditor Agreement.

“Term DIP Final DIP Loan Commitment Letter” an executed commitment letter by one or more Term DIP Lenders (or such other party after approval by the Required Lenders (as defined in the Term DIP Credit Agreement)) providing a commitment of the remaining $6,500,000 to be funded on the Final Order Closing Date (as defined in the Term DIP Credit Agreement) as a Final DIP Loan (as defined in the Term DIP Credit Agreement).

“Term DIP Final DIP Loan Commitment Letter Deadline” means the date that the Plan Supplement is required to be filed in the Chapter 11 Cases.

“Term DIP Lenders” means the lenders under the Term DIP Credit Agreement from time to time.

“Term DIP Obligations” means the “Obligations” as defined under the Term DIP Credit Agreement.

“Term Intercreditor Agreement” has the meaning assigned to such term in the Prepetition Term Credit Agreement.

“Term Priority Collateral” has the meaning assigned to such term in the ABL Intercreditor Agreement.

“Termination Notice” shall have the meaning assigned to such term in Section 7.02(a).

“Testing Period: shall have the meaning assigned to such term in the definition of “Permitted Variance.”

“Title Company” means one or more title insurance companies reasonably satisfactory to the Administrative Agent.

“Trading Price” has the meaning set forth in Section 9.04(h)(ii).

“Transaction Costs” means all premiums, fees, costs and expenses incurred or payable by or on behalf of Holdco, the Borrowers or any Subsidiary in connection with the Transactions or in connection with the negotiation, execution, delivery and performance of the Loan Documents and the transactions contemplated thereby, including to fund any original issue discount, upfront fees or legal fees and to grant and perfect any security interests.

“Transactions” means, collectively (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party, the Borrowings hereunder and the use of the proceeds thereof, and the grant of DIP Liens by the Loan Parties on the DIP Collateral pursuant to this Agreement, the Orders and the Security Documents, (b) the commencement and filing of the Chapter 11 Cases and (c) the payment of Transaction Costs.

“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies.


ACTIVE 50727705v3 41

“Unused Line Fee Rate” means the applicable rate set forth below under the heading “Unused Line Fee Rate”, which rate shall be based upon Daily Average Utilization for the immediately preceding fiscal quarter on each Adjustment Date:

Daily Average Utilization Unused Line Fee Rate

Greater than 50% of the aggregate Revolving Commitments

0.375%

Less than or equal to 50% of the aggregate Revolving Commitments

0.500%

“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the

Code.

“U.S. Tax Certificate” has the meaning assigned to such term in Section 2.17(e)(ii)(D).

“US Trustee Carve Out” has the meaning assigned to such term in the Order.

“Variance Report” has the meaning assigned to such term in Section 5.01(g).

“Wells Fargo” means Wells Fargo Bank, National Association, a national banking association.

“wholly-owned Subsidiary” or “wholly-owned subsidiary” means, with respect to any Person at any date, a subsidiary of such Person of which securities or other ownership interests representing 100% of the Equity Interests (other than (x) directors’ qualifying shares or (y) shares issued to foreign nationals to the extent required by applicable law) are, as of such date, owned, controlled or held by such Person or one or more wholly-owned subsidiaries of such Person or by such Person and one or more wholly-owned subsidiaries of such Person. For the avoidance of doubt, “wholly-owned Subsidiary” means a wholly-owned Subsidiary that is a Subsidiary.

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

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Section 1.02 [Reserved].

Section 1.03 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, supplemented or otherwise modified (including pursuant to any permitted refinancing, extension, renewal, replacement, restructuring or increase (in each case, whether pursuant to one or more agreements or with different lenders or different agents), but subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns and, in the case of any Governmental Authority,


ACTIVE 50727705v3 42

any other Governmental Authority that shall have succeeded to any or all of the functions thereof, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) 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, (f) any reference to any Requirement of Law shall, unless otherwise specified, refer to such Requirement of Law as amended, modified or supplemented from time to time and shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Requirement of Law, (g) the phrase “for the term of this Agreement” and any similar phrases shall mean the period beginning on the Closing Date and ending on the DIP Termination Date, the term “manifest error” shall be deemed to include any clearly demonstrable error whether or not obvious on the face of the document containing such error, (h) all references to “knowledge” or “awareness” of any Loan Party or a Subsidiary thereof means the actual knowledge of a Responsible Officer of a Loan Party or such Subsidiary, and (i) any terms used in this Agreement that are defined in the UCC shall be construed and defined as set forth in the UCC unless otherwise defined herein; provided that, to the extent that the UCC is used to define any term herein and such term is defined differently in different Articles of the UCC, the definition of such term contained in Article 9 of the UCC shall govern. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).

Section 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time.

Notwithstanding anything in this Agreement to the contrary, any change in GAAP or the application or interpretation thereof that would require operating leases to be treated similarly as a capital lease shall not be given effect in the definitions of Indebtedness or Liens or any related definitions or in the computation of any financial ratio or requirement.


Section 1.06 Payment in Full. Any reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations shall mean (i) the payment or repayment in full in immediately available funds of (A) the principal amount of, and interest accrued and unpaid with respect to, all outstanding Loans, together with the payment of any premium applicable to the repayment of the Loans, (B) all costs and expenses required to be paid to the Administrative Agent and the Lenders under the Loan Documents that have accrued and are unpaid regardless of whether demand has been made therefor, (C) all fees or charges that have accrued hereunder or under any other Loan Document (including the Letter of Credit fee and the unused line fee) and are unpaid, (ii) in the case of contingent reimbursement obligations with respect to Letters of Credit, providing Cash Collateralization, (iii) in the case of obligations with respect to Bank Products (other than Secured Swap Obligations), providing Bank Product Collateralization, (iv) the receipt by the Administrative 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 the Administrative Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage, or expense (including reasonable attorneys’ fees and legal expenses) which is required to be reimbursed pursuant to the Loan Documents, such cash collateral to be in such amount as the Administrative Agent reasonably determines is appropriate to secure such contingent Obligations, (v) the payment or repayment in full in immediately available funds of all other outstanding Obligations (including the payment of any termination amount then applicable (or which would or could become applicable as a result of the repayment of the other Obligations) under Swap


ACTIVE 50727705v3 43

Agreements provided by Lender Counterparties to the extent required under such Swap Agreements), in each case, other than (A) unasserted contingent indemnification Obligations, (B) any Bank Product Obligations (other than Secured Swap Obligations) that, at such time, are allowed by the applicable Lender Counterparty to remain outstanding without being required to be repaid or cash collateralized, and (C) any Secured Swap Obligations that, at such time, are allowed by the applicable Lender Counterparty to remain outstanding without being required to be repaid, and (vi) the termination of all of the Revolving Commitments of the Lenders; provided, that, in any such case, the deadline set forth in the DIP Order for any Person to file a complaint or adversary proceeding challenging the amount, extent, validity, or enforceability of the Prepetition Senior Obligations, or the perfection or priority of the Prepetition Senior Liens, or otherwise asserting any claims or causes of action on behalf of the Borrowers’ estates against the Prepetition Senior Agent or the Prepetition Senior Secured Parties relating to the Prepetition Senior Obligations, has expired and any such complaint or adversary proceeding has been resolved.


Section 1.08 Timing of Payment or Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on (or before) a day which is not a Business Day, the date of such payment (other than as described in the definition of “Interest Period”) or performance shall extend to the immediately succeeding Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

Section 1.09 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

Section 1.10 Certifications. All certifications to be made hereunder by an officer or representative of a Loan Party shall be made by such a Person in his or her capacity solely as an officer or a representative of such Loan Party, on such Loan Party’s behalf and not in such Person’s individual capacity.


Section 1.12 Divisions. Any reference herein to a merger, consolidation, amalgamation, liquidation, winding up, dissolution, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, limited partnership or trust, or an allocation of assets to a series of a limited liability company, limited partnership or trust (or the unwinding of such a division or allocation), as if it were a merger, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company, limited partnership or trust shall constitute a separate Person hereunder (and each division of any limited liability company, limited partnership or trust that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

ARTICLE II

The Credits

Section 2.01 Commitments.

(a) Subject to the terms and express conditions set forth herein and the Orders, each applicable Lender severally agrees to make Revolving Loans to the Borrowers from time to time during the


ACTIVE 50727705v3 44

Revolving Availability Period in Dollars in an aggregate principal amount that will not result in (i) such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment, (ii) the total Revolving Exposure exceeding the Line Cap in effect as such time, or (iii) the total Revolving Exposure exceeding the budgeted amount for any applicable period of Revolver Usage as set forth in the Budget (after giving effect to the Permitted Variances). Within the foregoing limits and subject to the terms and express conditions set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans (without premium or penalty).

(b) Subject to the limitations set forth below (and notwithstanding anything to the contrary in Section 4.02), the Administrative Agent is authorized by the Borrowers and the Lenders, from time to time in the Administrative Agent’s sole discretion (but shall have absolutely no obligation), to make Revolving Loans to the Borrowers, on behalf of all Lenders at any time that any condition precedent set forth in Section 4.02 has not been satisfied or waived, which the Administrative Agent, in its Permitted Discretion, deems necessary or desirable for the purposes specified in the definition of “Protective Advances”. Any Protective Advance may be made in a principal amount that would cause the aggregate Revolving Exposure to exceed the Borrowing Base by no more than 10% of the Borrowing Base; provided that (subject to paragraph (c) below) the aggregate amount of outstanding Protective Advances plus the aggregate of all other Revolving Exposure (except for and excluding amounts charged to the Loan Account for interest, fees, costs or expenses hereunder or under any of the other Loan Documents) shall not exceed the aggregate Revolving Commitments. Protective Advances may be made even if the conditions precedent set forth in Section 4.02 have not been satisfied or waived. Each Protective Advance shall be secured by the Liens in favor of the Administrative Agent in and to the Collateral and shall constitute Obligations hereunder. The Administrative Agent’s authorization to make Protective Advances may be revoked at any time by the Required Lenders. Any such revocation must be in writing and shall become effective prospectively upon the Administrative Agent’s receipt thereof. The making of a Protective Advance on any one occasion shall not obligate the Administrative Agent to make any Protective Advance on any other occasion. At any time that the conditions precedent set forth in Section 4.02 have been satisfied or waived, the Administrative Agent may request the Lenders to make a Revolving Loan to repay a Protective Advance. At any other time, the Administrative Agent may require the Lenders to fund their risk participations described in Section 2.01(d).

(c) Any contrary provision of this Agreement or any other Loan Document notwithstanding, the Lenders hereby authorize the Administrative Agent or Swing Line Lender, as applicable, and either the Administrative Agent or Swing Line Lender, as applicable, may, but is not obligated to, knowingly and intentionally, continue to make Revolving Loans (including Swing Line Loans) to the Borrowers notwithstanding that an Overadvance exists or would be created thereby, so long as, after giving effect to such Revolving Loans, the outstanding Revolving Exposure does not exceed the Borrowing Base by more than 10% of the Borrowing Base; provided that (subject to paragraph (c) below) the aggregate amount of outstanding Overadvances plus the aggregate of all other Revolving Exposure (except for and excluding amounts charged to the Loan Account for interest, fees, costs or expenses hereunder or under any of the other Loan Documents) shall not exceed the aggregate Revolving Commitments. In the event the Administrative Agent obtains actual knowledge that the Revolving Exposure exceeds the amounts permitted by the immediately foregoing provisions, regardless of the amount of, or reason for, such excess, the Administrative Agent shall notify the Lenders as soon as practicable (and prior to making any (or any additional) intentional Overadvances (except for and excluding amounts charged to the Loan Account for interest, fees, costs or expenses hereunder or under any of the other Loan Documents) unless the Administrative Agent determines that prior notice would result in imminent harm to the Collateral or its value, in which case the Administrative Agent may make such Overadvances and provide notice as promptly as practicable thereafter), and the Lenders with Revolving Commitments thereupon shall, together with the Administrative Agent, jointly determine the terms of arrangements that shall be implemented with the Borrowers intended to reduce, within a reasonable time, the outstanding principal amount of the


ACTIVE 50727705v3 45

Revolving Loans to the Borrowers to an amount permitted by the preceding sentence. In such circumstances, if any Lender with a Revolving Commitment objects to the proposed terms of reduction or repayment of any Overadvance, the terms of reduction or repayment thereof shall be implemented according to the determination of the Required Lenders. The foregoing provisions are meant for the benefit of the Lenders and the Administrative Agent and are not meant for the benefit of the Borrowers. Each Lender with a Revolving Commitment shall be obligated to settle with the Administrative Agent as provided herein for the amount of such Lender’s Applicable Percentage of any unintentional Overadvances by the Administrative Agent reported to such Lender, any intentional Overadvances made as permitted under this Section 2.01(c), and any Overadvances resulting from the charging to the Loan Account of interest, fees, costs or expenses hereunder or under any of the other Loan Documents. The Administrative Agent may, at any time, request the Lenders to make a Revolving Loan to repay an Overadvance or, at any other time, the Administrative Agent may require the Lenders to fund their risk participations described in Section 2.01(d).

(d) Notwithstanding the foregoing paragraphs (b) and (c), the aggregate amount of all Extraordinary Advances outstanding at any one time shall not exceed 10% of the aggregate Revolving Commitments. Upon the making of an Extraordinary Advance by the Administrative Agent (whether before or after the occurrence of a Default), each Lender shall be deemed, without further action by any party hereto, unconditionally and irrevocably to have purchased from the Administrative Agent without recourse or warranty, an undivided interest and participation in such Extraordinary Advance in proportion to its Applicable Percentage. From and after the date, if any, on which any Lender is required to fund its participation in any Extraordinary Advance purchased hereunder, subject to Section 2.06(c), the Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Extraordinary Advance.

(e) Each Protective Advance and each Overadvance (each, an “Extraordinary Advance”) shall be deemed to be a Revolving Loan hereunder; except prior to settlement therefor, all payments on the Extraordinary Advances shall be payable to the Administrative Agent solely for its own account. The Extraordinary Advances shall be repayable on demand, secured by the Collateral Agent’s Liens, constitute Obligations hereunder, and bear interest at the rate applicable from time to time to Revolving Loans. The provisions of this Section 2.03(e) are for the exclusive benefit of the Administrative Agent, Swing Line Lender and the Lenders and are not intended to benefit the Borrowers (or any other Loan Party) in any way.

(f) Anything to the contrary in this Section 2.01 or in this Agreement notwithstanding, the Administrative Agent shall have the right (but not the obligation), in the exercise of its Permitted Discretion, to establish and increase or decrease Receivable Reserves, Inventory Reserves and other Availability Reserves against the Borrowing Base or the Revolving Commitments. The amount of any Receivable Reserves, Inventory Reserves and other Availability Reserve established by the Administrative Agent shall have a reasonable relationship to the event, condition, other circumstance, or fact that is the basis for such reserve and shall not be duplicative of (i) any other reserve established and currently maintained, or (ii) any criteria set forth in the definitions of Eligible Inventory and Eligible Accounts Receivables intended to reduce amounts available for borrowing under this Agreement. Upon establishment or increase in reserves, the Administrative Agent agrees to make itself available to discuss the reserve or increase, and the Borrowers may take such action as may be required so that the event, condition, circumstance, or fact that is the basis for such reserve or increase no longer exists, in a manner and to the extent reasonably satisfactory to the Administrative Agent in the exercise of its Permitted Discretion. In no event shall such opportunity limit the right of the Administrative Agent to establish or change such Receivable Reserves, Inventory Reserves and other Availability Reserves, unless the Administrative Agent shall have determined, in its Permitted Discretion, that the event, condition, other


ACTIVE 50727705v3 46

circumstance, or fact that was the basis for such Receivable Reserves, Inventory Reserves and other Availability Reserves or such change no longer exists or has otherwise been adequately addressed by the Borrowers.

(g) Notwithstanding anything to the contrary contained herein or in any other Loan Document, on the Closing Date, after giving effect to the Interim Order, the total outstanding amount of the Prepetition ABL Obligations shall constitute Obligations hereunder, with (x) the outstanding amount of all Prepetition ABL Loans as of the Closing Date being “rolled up” as Revolving Loans hereunder on the Closing Date, and all interest and fees thereon accrued as of the Closing Date being “rolled up” as Revolving Loans hereunder as of the Closing Date and (y) all Prepetition ABL LC Exposure with respect to Prepetition ABL Letters of Credit on the Closing Date being “rolled up” and constituting LC Exposure hereunder on the Closing Date and all Prepetition ABL Letters of Credit shall constitute Letters of Credit issued hereunder.

Section 2.02 Loans and Borrowings.

(a) Each Loan shall be made as part of a Borrowing consisting of Loans of the same currency made to the applicable Borrowers by the Lenders ratably in accordance with their respective Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

(b) [Reserved].

(c) [Reserved].

(d) [Reserved].

(e) The obligations of the Revolving Lenders hereunder to make Revolving Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 9.03(c) are several and not joint (it being understood that the foregoing shall in no way be in derogation of the reallocation of participations in Letters of Credit among the Revolving Lenders contemplated by Section 2.22(a)(iv)).

Section 2.03 Requests for Borrowings. To request a Borrowing, a Financial Officer of the Borrower Representative shall notify the Administrative Agent of such request in writing (which may be delivered through the Administrative Agent’s electronic platform or portal) not later than 1:00 p.m., New York City time, one (1) Business Day prior to the date of the proposed Borrowing; provided that any notice of a Borrowing to be made on the Closing Date may be given not later than 11:00 a.m. New York City time (or such later time as the Administrative Agent may reasonably agree), one (1) Business Day prior to the date of the proposed Borrowing, which notice may be subject to the effectiveness of this Agreement. All Borrowing Requests which are not made on-line via the Administrative Agent’s electronic platform or portal shall be subject to (and unless the Administrative Agent elects otherwise in the exercise of its sole discretion, such Borrowings shall not be made until the completion of) the Administrative Agent’s reasonable authentication process (with results reasonably satisfactory to the Administrative Agent) prior to the funding of any such requested Borrowing. Each such written Borrowing Request shall specify the following information:

(i) the name of the Borrower(s);

(ii) [reserved];

(iii) the aggregate amount of such Borrowing;

(iv) the date of such Borrowing, which shall be a Business Day;


ACTIVE 50727705v3 47

(v) [reserved];

(vi) [reserved];

(vii) the location and number of the Borrower(s’) account(s) to which funds are to be disbursed, which shall comply with the requirements of Section 2.06; and

(viii) other than a Revolving Loan Borrowing made on the Closing Date, that as of such date the express conditions in Section 4.02(a), (b) and (d) are satisfied (or waived).

Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

Section 2.04 Swing Line Loans.

(a) During the Revolving Availability Period, subject to the terms and conditions hereof, the Swing Line Lender agrees to make Swing Line Loans to the Borrowers in an aggregate amount up to but not exceeding the Swing Line Sublimit; provided that after giving effect to the making of any Swing Line Loan, in no event shall the Revolving Exposure exceed the Line Cap. The Swing Line Lender’s Commitment to make Swing Line Loans shall expire on the DIP Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than such date. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow, prepay and reborrow Swing Line Loans (without premium or penalty).

(b) Borrowing Mechanics for Swing Line Loans.

(i) Swing Line Loans shall be made in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount.

(ii) Subject to Section 4.02(b), to request the making of a Swing Line Loan hereunder, the Borrower Representative shall notify the Swing Line Lender of such request in writing by delivery (which may be by facsimile) of a Borrowing Request signed by a Financial Officer of the Borrower Representative not later than 12:00 p.m., New York City time, on the date of the proposed Borrowing.

(iii) The Swing Line Lender shall make the amount of its Swing Line Loan available to the applicable Borrowers not later than 2:00 p.m., New York City time, on the date specified in the Borrowing Request by wire transfer of same day funds in Dollars to be credited to the Designated Account or such other account as may be designated in writing to the Swing Line Lender by the Borrower Representative.

(iv) With respect to any Swing Line Loans which have not been prepaid by the Borrowers pursuant to Section 2.11 or settled in accordance with Section 2.06(c), the Swing Line Lender may at any time in its sole and absolute discretion, deliver to the Administrative Agent (with a copy to the Borrower Representative), no later than 1:00 p.m., New York City time, at least one (1) Business Day in advance of the proposed Borrowing, a notice (which shall be deemed to be a Borrowing Request given by the Borrower Representative) requesting that each Lender holding a Revolving Commitment make Revolving Loans to the Borrowers on the date of such Borrowing in an amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given which the Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (A) the proceeds of such Revolving Loans made by the Lenders other than the Swing Line Lender shall be immediately delivered to the Swing Line Lender (and not to any Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (B) on the day such Revolving Loans are made, the Swing Line Lender’s pro rata share of the Refunded Swing Line Loans shall be deemed to be


ACTIVE 50727705v3 48

paid with the proceeds of a Revolving Loan made by the Swing Line Lender to the applicable Borrowers, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans but shall instead constitute part of the Swing Line Lender’s outstanding Revolving Loans to the Borrowers. The Borrowers hereby authorize the Swing Line Lender to charge the Borrowers’ accounts with the Swing Line Lender (up to the amount available in each such account) in order to immediately pay the Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by the Lenders, including the Revolving Loans deemed to be made by the Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. If any portion of any such amount paid (or deemed to be paid) to the Swing Line Lender should be recovered by or on behalf of any Borrower from the Swing Line Lender in bankruptcy or insolvency, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Revolving Lenders in the manner contemplated by Section 2.18.

(v) If for any reason Revolving Loans are not made pursuant to Section 2.04(b)(iv) in an amount sufficient to repay any amounts owed to the Swing Line Lender in respect of any outstanding Swing Line Loans on or before the third Business Day after demand for payment thereof by the Swing Line Lender, each Revolving Lender shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans, in an amount equal to its Applicable Percentage of the applicable unpaid amount together with accrued interest thereon. Upon one (1) Business Days’ notice from the Swing Line Lender, each Revolving Lender shall deliver to the Swing Line Lender an amount equal to its respective participation in the applicable unpaid amount in same day funds at the principal office of the Swing Line Lender. In order to evidence such participation each Revolving Lender agrees to enter into a participation agreement at the request of the Swing Line Lender in form and substance reasonably satisfactory to the Swing Line Lender. In the event any Revolving Lender fails to make available to the Swing Line Lender the amount of such Revolving Lender’s participation as provided in this paragraph, the Swing Line Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon at the rate customarily used by the Swing Line Lender for the correction of errors among banks and thereafter at the Alternate Base Rate. A certificate of the Swing Line Lender submitted to any Lender with respect to amounts owing under this Section 2.04(b)(v) shall be conclusive absent manifest error. No funding of risk participations hereunder shall relieve or otherwise impair the obligation of the Borrowers to repay Swing Line Loans, together with interest, as provided for in this Agreement.

(vi) Notwithstanding anything contained herein to the contrary, (A) each Revolving Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to Section 2.04(b)(iv) and each Revolving Lender’s obligation to purchase a participation in any unpaid Swing Line Loans pursuant to Section 2.04(b)(v) shall be absolute and unconditional and shall not be affected by any circumstance, including (1) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against the Swing Line Lender, any Loan Party or any other Person for any reason whatsoever; (2) the occurrence or continuation of a Default or Event of Default; (3) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Loan Party; (4) any breach of this Agreement or any other Loan Document by any party thereto; or (5) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such obligations of each Revolving Lender to make Revolving Loans hereunder (but not to purchase and fund risk participations in Swing Line Loans pursuant Section 2.04(b)(v) above) are subject to the condition that the Swing Line Lender had not received prior notice from the Borrower Representative or the Required Lenders that any of the conditions under Section 4.02 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, were not satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made; and (B) the Swing Line Lender shall not be obligated to make any Swing Line Loans (1) if it does not in good faith believe that all conditions under Section 4.02 to the making of such Swing Line Loan have been satisfied or waived by the Required Lenders or (2) at a time when any Revolving Lender is a Defaulting Lender


ACTIVE 50727705v3 49

unless the Swing Line Lender has entered into arrangements reasonably satisfactory to it and the Borrower Representative to eliminate the applicable fronting exposure.

(c) The Swing Line Lender may be replaced at any time by written agreement among the Borrower Representative, the Administrative Agent, the replaced Swing Line Lender (provided that no consent of the replaced Swing Line Lender will be required if the replaced Swing Line Lender has no Swing Line Loans outstanding or such Swing Line Loans will be prepaid on the effective date of such removal) and the successor Swing Line Lender. The Administrative Agent shall notify the Lenders of any such replacement of the Swing Line Lender. At the time any such replacement shall become effective, the Borrowers shall prepay any outstanding Swing Line Loans made by the removed Swing Line Lender. From and after the effective date of any such replacement, (x) any successor Swing Line Lender shall have all the rights and obligations of the Swing Line Lender under this Agreement with respect to Swing Line Loans made thereafter and (y) references herein to the term “Swing Line Lender” shall be deemed to refer to such successor or to any previous Swing Line Lender, or to such successor and all previous Swing Line Lenders, as the context shall require.

Section 2.05 Letters of Credit.

(a) General. Subject to the terms and express conditions set forth herein, (i) the Borrower Representative may request from any Issuing Bank (and such Issuing Bank shall issue) the issuance of standby or trade Letters of Credit for any Borrower’s account up to the LC Sublimit (or, so long as a Borrower is the primary obligor, for the account of any Subsidiary), in each case in a form reasonably acceptable to such Issuing Bank, at any time and from time to time prior to Letters of Credit Expiration Date.

(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.

(i) To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower Representative shall hand deliver or telecopy (or transmit by electronic communication reasonably acceptable to the Issuing Bank) to the Issuing Bank and the Administrative Agent (not later than 1:00 p.m., New York City time, at least three (3) Business Days in advance or a shorter time period if approved by the Issuing Bank in its reasonable discretion, of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof, the documents to be presented by such beneficiary in case of any drawing thereunder, the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder, such other matters as the Issuing Bank may reasonably require and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing Bank, the Borrower Representative also shall submit a letter of credit application on the Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if, after giving effect to such issuance, amendment, renewal or extension, (i) the LC Exposure shall not exceed the LC Sublimit, (ii) the aggregate Revolving Exposures shall not exceed the aggregate Revolving Commitments, and (iii) the LC Exposure and the aggregate Revolving Exposure, in each case, shall not exceed any applicable budgeted amount for the period during which such Letter of Credit would be issued, amended, renewed, or extended as set forth in the Approved Budget (after giving effect to the Permitted Variances).


ACTIVE 50727705v3 50

(ii) Promptly after receipt of any such request pursuant to Section 2.05(b)(i), the Issuing Bank will confirm with the Administrative Agent (in writing) that the Administrative Agent has received a copy of such request from the Borrower Representative and, if not, the Issuing Bank will provide the Administrative Agent with a copy thereof. Unless the Issuing Bank has received written notice from any Applicable Participant, the Administrative Agent or any Loan Party, at least one (1) Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable express conditions contained in Section 4.02 shall not then be satisfied, then, subject to the terms and express conditions hereof, the Issuing Bank shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the Issuing Bank’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Issuing Bank a risk participation in such Letter of Credit in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Letter of Credit.

(iii) The Issuing Bank shall not be under any obligation to issue or renew any Letter of Credit if:

(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) in each case not in effect on the Closing Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which the Issuing Bank is not otherwise compensated hereunder);

(B) the issuance of such Letter of Credit would violate (x) any laws binding upon or otherwise applicable to the Issuing Bank or (y) one or more policies of the Issuing Bank regarding completion of customary “know your customer” requirements on the beneficiary of such Letter of Credit and any Subsidiary of Holdco that is a co-applicant for such Letter of Credit;

(C) the Letter of Credit is to be denominated in a currency other than Dollars;

(D) it is not required to do so pursuant to Section 2.22(c); or

(E) the date of expiration of such Letter of Credit is on or after the Letter of Credit Expiration Date.

(iv) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.


ACTIVE 50727705v3 51

(v) The Issuing Bank shall act on behalf of the Applicable Participants with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article VIII with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and Letter of Credit Application pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article VIII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Bank.

(vi) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the Issuing Bank will also deliver to the Borrower Representative and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

(c) Expiration Date. Each Letter of Credit shall expire no later than at or prior to the close of business on the earlier of (i) (A) in the case of any standby Letter of Credit, the date that is one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (B) in the case of any commercial Letter of Credit, the date that is 180 days after the date of the issuance of such Letter of Credit and (ii) the Letter of Credit Expiration Date; provided if the Borrower Representative or the applicable Borrower so requests in any applicable Letter of Credit Application, the Issuing Bank shall agree to issue a Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of Credit must permit the Issuing Bank to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Nonrenewal Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the Borrowers shall not be required to make a specific request to the Issuing Bank for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the Applicable Participants shall be deemed to have authorized (but may not require) the Issuing Bank to permit the renewal of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided that the Issuing Bank shall not permit any such renewal if (A) the Issuing Bank has determined that it would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of Section 2.05(b)(ii) or otherwise), or (B) it has received written notice on or before the day that is thirty (30) days before the Nonrenewal Notice Date from the Administrative Agent or any Applicable Participant, as applicable, or the Borrower Representative that one or more of the applicable express conditions specified in Section 4.02 is not then satisfied (or waived), and provided further that, if agreed to by the Issuing Bank in its sole discretion, a Letter of Credit may, upon the request of the Borrower Representative or the applicable Borrower, or the applicable Borrower be renewed for a period beyond the date that is the DIP Termination Date if, at the time of such request or such other time as may be agreed by the Issuing Bank, such Letter of Credit has become subject to cash collateralization (at 103% of the face value of such Letter of Credit) on terms satisfactory to the Issuing Bank or other arrangements satisfactory to the Issuing Bank.

(d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Applicable Participants, the Issuing Bank hereby grants to each Applicable Participant, and each Applicable Participant hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Applicable Participant’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing


ACTIVE 50727705v3 52

Bank, such Revolving Lender’s Applicable Percentage of each LC Disbursement in respect of any Letter of Credit made by the Issuing Bank and not reimbursed by the Borrowers on the date due as provided in Section 2.05(e), or of any reimbursement payment required to be refunded to the Borrowers for any reason. Each Applicable Participant acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

(e) Reimbursement. If the Issuing Bank shall honor a Letter of Credit drawing presented under a Letter of Credit and notifies the Borrower Representative or the applicable Borrower of any payment by such Issuing Bank under such Letter of Credit, the applicable Borrower shall reimburse such Letter of Credit honored by paying to the Administrative Agent an amount equal to such LC Disbursement, in Dollars, (i) if the Issuing Bank notifies the Borrower Representative or the applicable Borrower prior to 11:00 a.m., New York City time, then not later than 3:00 p.m., New York City time, on the Business Day succeeding the date on which the Issuing Bank notifies the Borrower Representative or the applicable Borrower in writing of such Letter of Credit honoring or (ii) if the Issuing Bank notifies the Borrower on or after 11:00 a.m., New York City time, then not later than 3:00 p.m. on the second Business Day succeeding the date on which the Issuing Bank notifies the Borrower Representative or the applicable Borrower in writing of such Letter of Credit honoring; provided that, the Borrowers may, subject to the express conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed with a Revolving Loan Borrowing of the same Class in an amount equal to such LC Disbursement and, to the extent so financed, the Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting Revolving Loan Borrowing. If the applicable Borrower fails to make such payment when due, then the Administrative Agent shall notify each Applicable Participant of the applicable LC Disbursement, the payment then due from the applicable Borrower in respect thereof and such Applicable Participant’s Applicable Percentage thereof. Promptly following receipt of such notice, each Applicable Participant shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the applicable Borrower (such payment from such Applicable Participant to be made on demand with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Issuing Bank at a rate per annum equal to the greater of the Federal Funds Effective Rate and a rate determined by the Issuing Bank in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by such Issuing Bank in connection with the foregoing), in the same manner as provided in Section 2.06 with respect to Loans made by such Applicable Participant (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Applicable Participant), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the Applicable Participant. Promptly following receipt by the Administrative Agent of any payment from the applicable Borrowers pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that Applicable Participants have made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Applicable Participants and the Issuing Bank as their interests may appear. Any payment made by an Applicable Participant pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of Revolving Loans as contemplated above) shall not constitute a Loan and shall not relieve the Borrowers of their obligation to reimburse such LC Disbursement.

(f) Repayment of Participations.

(i) At any time after the Issuing Bank has made an LC Disbursement and has received from any Applicable Participant such Applicable Participant’s payment in respect of such LC Disbursement pursuant to Section 2.05(e), if the Administrative Agent receives


ACTIVE 50727705v3 53

for the account of the Issuing Bank any payment in respect of the related LC Disbursement or interest thereon (whether directly from a Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent in accordance with this Agreement), the Administrative Agent will immediately distribute to such Applicable Participant its Applicable Percentage thereof in the same funds as those received by the Administrative Agent.

(ii) If any payment received by the Administrative Agent for the account of the Issuing Bank pursuant to Section 2.05(e) is required to be returned under any of the circumstances described in Section 9.08 (including pursuant to any settlement entered into by the Issuing Bank in its discretion), each Applicable Participant shall pay to the Administrative Agent for the account of the Issuing Bank its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Applicable Participant, at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect. The obligations of the Lenders under this clause (ii) shall survive the payment in full of the Obligations and the termination of this Agreement.

(g) Obligations Absolute. The Borrowers’ obligations to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrowers’ obligations hereunder (other than the defense of payment or performance). Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank; provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrowers to the extent of any direct damages (as opposed to consequential or punitive damages, claims in respect of which are hereby waived by each Borrower to the extent permitted by applicable law) suffered by the Borrowers that are caused by the Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of bad faith, gross negligence, material breach of its obligations as an Issuing Bank hereunder, or willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction) and compliance by the Issuing Bank with the applicable standards of care set forth in the Uniform Commercial Code in the State of New York, the Issuing Bank shall be deemed to have exercised care in each such determination as Issuing Bank. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit, and any


ACTIVE 50727705v3 54

such acceptance or refusal shall be deemed not to constitute bad faith, gross negligence or willful misconduct.

(h) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower Representative of such demand for payment and whether the Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the applicable Borrower of its obligation to reimburse the Issuing Bank and the Applicable Participant with respect to any such LC Disbursement in accordance with Section 2.05(e).

(i) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then, unless the applicable Borrower shall reimburse such LC Disbursement in full as set forth in Section 2.05(e), the unpaid amount thereof shall bear interest, for each day from and including the first Business Day after receipt of notice to but excluding the date that the applicable Borrower reimburses such LC Disbursement, at the rate per annum then applicable to Loans; provided that, if the applicable Borrower fails to reimburse such LC Disbursement when due pursuant to Section 2.05(e), then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to Section 2.05(e) to reimburse the Issuing Bank shall be for the account of such Lender to the extent of such payment.

(j) Role of Issuing Bank. Each Lender and each Borrower agree that, in paying any drawing under a Letter of Credit, the Issuing Bank shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Issuing Bank, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the Issuing Bank shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Lenders, the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. The Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrowers from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.

(k) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time by written agreement among the Borrower Representative, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any replacement of an Issuing Bank. At the time any such replacement shall become effective, the Borrowers shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(c). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit or to amend any Letters of Credit issued by it prior to such replacement.

(l) Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, the Borrowers or any Subsidiary, the Borrowers shall


ACTIVE 50727705v3 55

be obligated to reimburse the applicable Issuing Bank hereunder for any and all drawings under such Letter of Credit. Each Borrower hereby acknowledges that the issuance of Letters of Credit for the account of such Borrower and/or any Subsidiaries of such Borrower inures to the benefit of such Borrower, and that such Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

(m) Applicability of ISP and UCP. Unless otherwise expressly agreed by the Issuing Bank and the Borrower Representative, when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance, shall apply to each commercial Letter of Credit and, if specifically required by its terms and conditions, to any such standby Letter of Credit.

(n) Conflict with Letter of Credit Application. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by any Borrower to, or entered into by any Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control, and any grant of a security interest in any form of Letter of Credit Application or other agreement shall be null and void.

(o) [Reserved].

(p) Addition of an Issuing Bank. A Revolving Lender (or any of its Subsidiaries or Affiliates) may become an additional Issuing Bank hereunder pursuant to a written agreement among the Borrower Representative, the Administrative Agent and such Revolving Lender. The Administrative Agent shall notify the Revolving Lenders of any such additional Issuing Bank.

(q) Not later than the third Business Day following the last day of each week (or at such other intervals as the Administrative Agent and the applicable Issuing Bank shall agree), each Issuing Bank shall provide to the Administrative Agent a schedule of the Letters of Credit issued by it, in form and substance reasonably satisfactory to the Administrative Agent, showing the date of issuance of each Letter of Credit, the account party, the original face amount (if any), the expiration date, and the reference number of any Letter of Credit outstanding at any time during such month, and showing the aggregate amount (if any) payable by the Borrowers to such Issuing Bank during such month.

(r) Anything contained in this Section 2.05 to the contrary notwithstanding, Wells Fargo, solely in its capacity as an Issuing Bank, may, but shall not be obligated to, issue a Letter of Credit that supports the obligations of any Loan Party or one of its Subsidiaries in respect of (i) a lease of real property to the extent that the face amount of such Letter of Credit exceeds the highest rent (including all rent-like charges) payable under such lease for a period of one year, or (ii) an employment contract to the extent that the face amount of such Letter of Credit exceeds the highest compensation payable under such contract for a period of one year.

Section 2.06 Funding of Borrowings; Settlement; Designated Account.

(a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 11:00 a.m., New York City time, for which notice has been provided to such Lender at least one (1) Business Day prior to the date of the proposed Borrowing to the Administrative Agent’s Account. The Administrative Agent will make such Loans available to the applicable Borrowers by wire transfer of the amounts so received, in immediately available funds, to the Designated Account; provided that Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the Issuing Bank or, to the extent that Applicable Participants have made payments pursuant to Section 2.05(e) to


ACTIVE 50727705v3 56

reimburse the Issuing Bank, then to such Applicable Participants and the Issuing Bank as their interests may appear.

(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption and in its sole discretion, make available to the applicable Borrowers a corresponding amount. In such event, after giving effect to the reallocations pursuant to Section 2.22(a)(iv), if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower Representative severally agree to pay to the Administrative Agent, within three (3) Business Days of written notice, such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the applicable Borrowers, to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrowers, the interest rate applicable to Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.

(c) It is agreed that each Lender’s funded portion of the Revolving Loans is intended by the Lenders to equal, at all times, such Lender’s Applicable Percentage of the outstanding Revolving Loans. Such agreement notwithstanding, the Administrative Agent, Swing Line Lender and the other Lenders agree (which agreement shall not be for the benefit of the Borrowers) that in order to facilitate the administration of this Agreement and the other Loan Documents, settlement among the Lenders as to the Revolving Loans, Swing Line Loans and the Extraordinary Advances shall take place on a periodic basis in accordance with the following provisions:

(i) The Administrative Agent shall request settlement (“Settlement”) with the Lenders on a weekly basis, or on a more frequent basis if so determined by the Administrative Agent in its sole discretion (A) on behalf of Swing Line Lender, with respect to the outstanding Swing Line Loans, (B) for itself, with respect to the outstanding Extraordinary Advances, and (C) with respect to the Borrowers or any of the other Loan Parties’ payments or other amounts received, as to each by notifying the Lenders by telecopy, telephone, or other similar form of transmission, of such requested Settlement, no later than 2:00 p.m. New York City time on the Business Day immediately prior to the date of such requested Settlement (the date of such requested Settlement being the “Settlement Date”). Such notice of a Settlement Date shall include a summary statement of the amount of outstanding Revolving Loans and Extraordinary Advances for the period since the prior Settlement Date. Subject to the terms and conditions contained herein (including with respect to Section 2.22): (1) if the amount of the Revolving Loans (including Swing Line Loans and Extraordinary Advances) made by a Lender that is not a Defaulting Lender exceeds such Lender’s Applicable Percentage of the Revolving Loans (including Swing Line Loans and Extraordinary Advances) as of a Settlement Date, then the Administrative Agent shall, by no later than 12:00 p.m. New York City time on the Settlement Date, transfer in immediately available funds to a Deposit Account of such Lender (as such Lender may designate), an amount such that each such Lender shall, upon receipt of such amount, have as of the Settlement Date, its Applicable Percentage of the Revolving Loans (including Swing Line Loans and Extraordinary Advances), and (2) if the amount of the Revolving Loans (including Swing Line Loans and Extraordinary Advances) made by a Lender is less than such Lender’s Applicable Percentage of the Revolving Loans (including Extraordinary Advances) as of a Settlement Date, such Lender shall no later than 12:00 p.m. New York City time on the Settlement Date transfer in immediately available funds to the Administrative Agent’s Account, an amount such that each such Lender shall, upon transfer of such amount, have as of the Settlement Date, its Applicable Percentage of the Revolving Loans (including Swing Line Loans and Extraordinary Advances). Such amounts made


ACTIVE 50727705v3 57

available to the Administrative Agent under clause (2) of the immediately preceding sentence shall be applied against the amounts of the applicable Swing Line Loans or Extraordinary Advances and, together with the portion of such Swing Line Loans or Extraordinary Advances representing Swing Line Lender’s Applicable Percentage thereof, shall constitute Revolving Loans of such Lenders. If any such amount is not made available to the Administrative Agent by any Lender on the Settlement Date applicable thereto to the extent required by the terms hereof, the Administrative Agent shall be entitled to recover for its account such amount on demand from such Lender together with interest thereon at the interest rate then applicable to Revolving Loans (inclusive of the Applicable Margin applicable thereto).

(ii) In determining whether a Lender’s balance of the Revolving Loans, Swing Line Loans and Extraordinary Advances is less than, equal to, or greater than such Lender’s Applicable Percentage of the Revolving Loans, Swing Line Loans and Extraordinary Advances as of a Settlement Date, the Administrative Agent shall, as part of the relevant Settlement, apply to such balance the portion of payments actually received in good funds by the Administrative Agent with respect to principal, interest, fees payable by the Borrowers and allocable to the Lenders hereunder, and proceeds of Collateral.

(iii) Between Settlement Dates, the Administrative Agent, to the extent Extraordinary Advances or Swing Line Loans are outstanding, may pay over to the Administrative Agent or Swing Line Lender, as applicable, any payments or other amounts received by the Administrative Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the Revolving Loans, for application to the Extraordinary Advances or Swing Line Loans. Between Settlement Dates, the Administrative Agent, to the extent no Extraordinary Advances or Swing Line Loans are outstanding, may pay over to Swing Line Lender any payments or other amounts received by the Administrative Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the Revolving Loans, for application to Swing Line Lender’s Applicable Percentage of the Revolving Loans. If, as of any Settlement Date, payments or other amounts of Borrowers or their Subsidiaries received since the then immediately preceding Settlement Date have been applied to Swing Line Lender’s Applicable Percentage of the Revolving Loans other than to Swing Line Loans, as provided for in the previous sentence, Swing Line Lender shall pay to the Administrative Agent for the accounts of the Lenders, and the Administrative Agent shall pay to the Lenders (other than a Defaulting Lender if the Administrative Agent has implemented the provisions of Section 2.22), to be applied to the outstanding Revolving Loans of such Lenders, an amount such that each such Lender shall, upon receipt of such amount, have, as of such Settlement Date, its Applicable Percentage of the Revolving Loans. During the period between Settlement Dates, Swing Line Lender with respect to Swing Line Loans, the Administrative Agent with respect to Extraordinary Advances, and each Lender with respect to the Revolving Loans other than Swing Line Loans and Extraordinary Advances, shall be entitled to interest at the applicable rate or rates payable under this Agreement on the daily amount of funds employed by Swing Line Lender, the Administrative Agent, or the Lenders, as applicable.

(iv) Anything in this Section 2.06(c) to the contrary notwithstanding, in the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 2.22.

(d) The Administrative Agent is authorized to make the Revolving Loans, and Issuing Bank is authorized to issue the Letters of Credit, under this Agreement based upon instructions received from anyone purporting to be a Financial Officer of a Borrower or, without instructions, as expressly provided for in this Agreement. The Borrowers agree to establish and maintain the Designated Account with the Designated Account Bank for the purpose of receiving the proceeds of the Revolving Loans requested by the Borrowers and made by the Administrative Agent or the Lenders hereunder. Unless otherwise agreed by the Administrative Agent and the Borrowers, any Revolving Loan or Swing Line Loan


ACTIVE 50727705v3 58

requested by the Borrowers and made by the Administrative Agent or the Lenders hereunder shall be made to the Designated Account.


Section 2.08 Termination and Reduction of Commitments.

(a) Unless previously terminated or extended, the Revolving Commitments and all other commitments of the Lenders (including Swing Line Lender and the Issuing Bank) to provide additional credit hereunder shall automatically terminate on the DIP Termination Date. No termination of the obligations of the Lenders (including Swing Line Lender and the Issuing Bank) (other than payment in full of the Obligations and termination of the Revolving Commitments) shall relieve or discharge any Loan Party of its duties, obligations, or covenants hereunder or under any other Loan Document and the Collateral 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 and the Revolving Commitments have been terminated.

(b) The Borrowers may at any time, without premium or penalty, terminate, or from time to time reduce, the Commitments; provided that each reduction of the Commitments shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000.

(c) The Borrower Representative shall notify the Administrative Agent of any election to terminate or reduce the Commitments under paragraph (b) of this Section at least five (5) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower Representative pursuant to this Section shall be irrevocable; provided that a notice of termination of the Commitments of any Class delivered by the Borrower Representative may state that such notice is conditioned upon the consummation of an acquisition or sale transaction or upon the effectiveness of other credit facilities or the receipt of proceeds from the issuance of other Indebtedness or any other specified event, in which case such notice may be revoked by the Borrower Representative (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments of any Class shall be permanent. Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Commitments of such Class.

(d) The Borrower Representative, in its sole discretion, shall have the right, but not the obligation, at any time so long as no Specified Event of Default has occurred and is continuing, upon at least one (1) Business Days’ notice to a Defaulting Lender (with a copy to the Administrative Agent), to terminate in whole such Defaulting Lender’s Commitment; provided that, after giving effect to such termination, the aggregate Revolving Exposure of all Revolving Lenders does not exceed the aggregate Revolving Commitments. Such termination shall be effective with respect to such Defaulting Lender’s unused portion of its Commitment on the date set forth in such notice. No termination of the Commitment of a Defaulting Lender shall be deemed a waiver or release of any claim the Borrowers, the Administrative Agent, the Issuing Bank or any Lender may have against the Defaulting Lender.

Section 2.09 Repayment of Loans; Evidence of Debt.

(a) The Borrowers hereby unconditionally promise to pay in full to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Loan of such Lender made to the Borrowers and all other Obligations owed and due to such Lender pursuant to the terms of this Agreement on the DIP Termination Date (or such earlier date on which the Loans become due and payable pursuant to Section 7.1) in cash without further application to or order of the Bankruptcy Court.


ACTIVE 50727705v3 59

(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender to the Borrowers, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(c) The Administrative Agent shall maintain an account on its books in the name of the Borrowers (the “Loan Account”) on which the Borrowers will be charged with all Revolving Loans (including Extraordinary Advances and Swing Line Loans) made by the Administrative Agent, Swing Line Lender or the Lenders to the Borrowers or for Borrowers’ account, the Letters of Credit issued or arranged by Issuing Bank for the Borrowers’ account, and with all other payment Obligations hereunder or under the other Loan Documents, including, accrued interest, fees, costs and expenses, in which it shall record (i) the amount of each Loan made hereunder to the Borrowers, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrowers for the account of the Lenders and each Lender’s share thereof. In accordance with terms of this Agreement, the Loan Account will be credited with all payments received by the Administrative Agent from the Borrowers or for the Borrowers’ account. The Administrative Agent shall make available to the Borrower Representative monthly statements regarding the Loan Account, including the principal amount of the Revolving Loans, interest accrued hereunder, fees accrued or charged hereunder or under the other Loan Documents, and a summary itemization of all charges and expenses accrued hereunder or under the other Loan Documents, and each such statement, absent manifest error, shall be conclusively presumed to be correct and accurate and constitute an account stated among the Borrowers and the Lenders unless, within forty-five (45) days after the Administrative Agent first makes such a statement available to the Borrower Representative, the Borrower Representative shall deliver to the Administrative Agent written objection thereto describing the error or errors contained in such statement.

(d) The Borrowers hereby authorize the Administrative Agent, from time to time without prior notice to the Borrowers (it being understood and agreed that the Administrative Agent shall use commercially reasonable efforts to provide to the Borrower Representative, contemporaneously with or promptly after charging the Loan Account, with copies of any invoices and/or other documentation relating to the foregoing), to charge to the Loan Account: (i) on each Interest Payment Date, all interest accrued during the prior [one (1) month] period ending on such Interest Payment Date (or such other period as specified in the definition of Interest Payment Date) on the Revolving Loans hereunder, (ii) on the first calendar day of each month, all Letter of Credit fees accrued or chargeable hereunder during each calendar month, respectively, (iii) as and when due or accrued, all fees and costs provided for in Section 2.12(a), (iv) on the first calendar day following the last day of March, June, September and December , the unused line fee accrued during the calendar quarter ending on the last day of March, June, September and December, respectively, pursuant to Section 2.12(b), (v) as and when due and payable, all other fees payable hereunder or under any of the other Loan Documents, (vi) as and when due or accrued, and without duplication of any other amounts charged to the Loan Account, the fronting fees and all commissions, other fees, charges and expenses provided for in Section 2.05, (vii) as and when due or accrued, all other costs and expenses due and payable to the Administrative Agent and the other Secured Parties, and (viii) as and when due and payable all other payment obligations payable under any Loan Document or any Lender Counterparty Agreement (including any amounts due and payable to the Lender Counterparties in respect of Bank Products). All amounts (including interest, fees, costs, expenses or other amounts payable hereunder or under any other Loan Document or under any Lender Counterparty Agreement) charged to the Loan Account shall thereupon constitute Revolving Loans hereunder, shall constitute Obligations hereunder, and shall accrue interest at the rate then applicable to Revolving Loans; provided that if any amount set forth in the immediately preceding sentence is charged to the Loan Account on a day that is not a Business Day, the date for such charged amount shall be extended to the next succeeding Business Day and, in the case of


ACTIVE 50727705v3 60

any payment accruing interest, interest thereon shall be payable for the period of such extension at the interest rate then applicable to such payment instead of the rate then applicable to Revolving Loans.

(e) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrowers to repay the Loans and pay interest thereon in accordance with the terms of this Agreement.

(f) Any Lender may request that Loans by it be evidenced by a promissory note. In such event, the Borrower Representative shall promptly prepare, execute and deliver to such Lender a promissory note payable to such Lender and its registered assigns and substantially in the form of the applicable Exhibit F hereto; provided that the delivery of any such note shall not be a condition precedent to the Closing Date or any Acquisition or Investment. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to such payee and its registered assigns (and ownership shall at all times be recorded in the Register).


Section 2.11 Prepayment of Loans.

(a) The Borrowers shall have the right at any time and from time to time, without premium or penalty (but subject to Section 2.16 and the following sentence), to prepay any Borrowing in whole or in part, as selected and designated by the Borrower Representative, subject to the requirements of this Section. Each voluntary prepayment of any Loan pursuant to this Section 2.11(a) and mandatory prepayment pursuant to Section 2.11(b) shall be made without premium or penalty and shall not reduce the Revolving Commitment unless so directed by the Borrower Representative in writing to the Administrative Agent.

(b) Subject to the terms of the Orders, in the event of an Overadvance the Borrowers shall promptly, but in any event, within one (1) Business Day, prepay the Revolving Exposure in accordance with Section 2.11(e) in an aggregate amount equal to such Overadvance.

(c) [Reserved].

(d) The Borrower Representative shall notify the Administrative Agent in writing of any prepayment hereunder, not later than 10:00 a.m., New York City time, on the date of the proposed prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that a notice of optional prepayment may state that such notice is conditional upon the consummation of an acquisition or sale transaction or upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of any other specified event, in which case such notice of prepayment may be revoked by the Borrower Representative (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Except as otherwise provided herein, each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13.


ACTIVE 50727705v3 61

(e) Subject to the Orders, each prepayment pursuant to Sections 2.11(b) and (c) shall, (i) so long as no Application Event shall have occurred and be continuing, be applied, first, to the Swing Line Loans then outstanding in an amount equal to such excess and then, to the extent that the aggregate Revolving Exposure still exceeds Line Cap, the other Revolving Loans then outstanding in an amount equal to such excess, and second, If any such excess remains after repayment in full of the aggregate outstanding Swing Line Loans and the other Revolving Loans, to Cash Collateralize the Letter of Credit Obligations in the manner set forth in Section 2.23, and (ii) if an Application Event shall have occurred and be continuing, be applied in the manner set forth in Section 7.04.

Section 2.12 Fees; Costs and Expenses.

(a) The Borrowers agree to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Borrower Representative and the Administrative Agent as set forth in the Fee Letter. All fees payable hereunder shall be paid by the Borrowers on the dates due, in immediately available funds, to the Administrative Agent (or to the Issuing Bank or Swing Line Lender, in the case of fees payable to them). Fees paid shall not be refundable under any circumstances.

(b) The Borrowers agree to pay to the Administrative Agent for the account of each Revolving Lender, in accordance with its Applicable Percentage of Revolving Commitments, the Unused Line Fee, which shall accrue at the rate under the heading “Unused Line Fee Rate” in the definition of “Unused Line Fee Rate” based on the Daily Average Utilization during the period from and including the Closing Date to, but excluding, the date on which the Revolving Commitments terminate, in each case, calculated on the unused portion of the Revolving Commitments, subject to adjustment as provided in Section 2.22. Accrued Unused Line Fees (or to the Issuing Bank or Swing Line Lender, in the case of fees payable to them) shall be payable in arrears on the first calendar day each calendar month and on the date on which the Revolving Commitments terminate, commencing with the calendar month beginning on July 1, 2020; provided that no Unused Line Fee shall accrue on the Revolving Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. All Unused Line Fees shall be computed on the basis of a year of three hundred sixty (360) days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing Unused Line Fees, a Revolving Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure of such Lender.

(c) The Borrowers agree to pay (i) to the Administrative Agent for the account of each Applicable Participant a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same Applicable Margin used to determine the interest rate applicable to Loans on the actual daily amount of such Applicable Participant’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Closing Date, to but excluding the date on which such Applicable Participant’s Revolving Commitment terminates, and (ii) to the Issuing Bank a fronting fee, which shall accrue at a rate equal to 0.125% per annum on the actual daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Closing Date, to but excluding the date of termination of the Revolving Commitments, as well as the Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees accrued through the last day of March, June, September and December of each year shall be payable on the first calendar day following such last day of March, June, September and December of each year, commencing on the first such date to occur after the Closing Date; provided that all such fees shall be payable on the date on which the Revolving Commitments terminate and any such fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable within thirty (30) days after written demand


ACTIVE 50727705v3 62

(including reasonable supporting documents). All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed.

(d) Subject to Section 9.03 and any other provisions of the Loan Documents that expressly provide otherwise, the Borrowers agree to pay the costs and expenses hereunder or under any of the other Loan Documents on the earlier of (i) the first (1st) day of the month following the date on which the applicable costs or expenses were first incurred or (ii) the date on which demand therefor is made by the Administrative Agent (it being acknowledged and agreed that any charging of such costs or expenses to the Loan Account pursuant to the provisions hereof shall be deemed to constitute a demand for payment thereof for the purposes of this subclause (ii))

Section 2.13 Interest.

(a) The Loans comprising each Borrowing and all other Obligations shall bear interest at the Alternate Base Rate plus the Applicable Margin.

(b) [Reserved].

(c) Notwithstanding the foregoing, following the occurrence and during the continuance of a Specified Event of Default, if any principal of or interest on any Loan or any fee payable by the Borrowers hereunder is not paid when due (after the expiration of any applicable grace period), whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section (including the Applicable Margin) or (ii) in the case of any other amount, 2% plus the rate applicable to Loans as provided in paragraph (a) of this Section; provided that no default rate shall accrue on the Loans of the Defaulting Lender so long as Lender shall be a Defaulting Lender.

(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and upon the Termination Date; provided that in the event of any repayment or prepayment of any Loan (other than a prepayment of a Loan prior to the end of the Revolving Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment.

(e) All interest hereunder shall be computed on the basis of a year of three hundred sixty (360) days. The applicable Alternate Base Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.


Section 2.15 Increased Costs.

(a) If any Change in Law shall:

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

(ii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense affecting this Agreement; or

(iii) subject any Lender or the Issuing Bank to any additional Taxes of any kind whatsoever with respect to this Agreement or any Loan made by it or any Letter of Credit


ACTIVE 50727705v3 63

or participation therein, or change the basis of taxation of such Lender in respect thereof (except, in each case, for Indemnified Taxes or Other Taxes indemnifiable under Section 2.17 and any Excluded Taxes);

and the result of any of the foregoing shall be to materially increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan) of the Borrower or to increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining any Letter of Credit for the benefit of the Borrowers or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) then the Borrowers will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.

(b) If any Lender or the Issuing Bank determines in good faith that any Change in Law regarding capital or liquidity requirements has or would have the effect of materially reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by such Lender to the Borrowers or the Letters of Credit issued by the Issuing Bank for the benefit of the Borrowers, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital and liquidity adequacy), then from time to time the Borrowers will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.

(c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower Representative and shall be conclusive absent manifest error. The Borrowers shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within thirty (30) days after receipt thereof.

(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such compensation; provided that (x) the Borrowers shall not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than one hundred twenty (120) days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the Borrower Representative of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor and (y) the Borrowers shall not be required to compensate for any such amounts, if such Lender or Issuing Bank is applying this Section to the Borrowers in a manner that is inconsistent with its application of “increased cost” or other similar provisions under other syndicated credit agreements to similarly situated borrowers, and provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the one hundred twenty (120) day period referred to above shall be extended to include the period of retroactive effect thereof.



ACTIVE 50727705v3 64

Section 2.17 Taxes.

(a) Each payment by or on account of any Loan Party under any Loan Document shall be made without withholding for any Taxes, unless such withholding is required by any Requirement of Law. If any applicable withholding agent is so required to withhold Taxes, then such withholding agent shall so withhold and shall timely pay the full amount of withheld Taxes to the relevant Governmental Authority in accordance with any applicable law. To the extent such Taxes are Indemnified Taxes or Other Taxes, then the amount payable by the applicable Loan Party shall be increased as necessary so that, net of such withholding (including any such withholding applicable to additional amounts payable under this Section 2.17), the applicable Lender (or, in the case of any amount payable to the Administrative Agent for its own account, the Administrative Agent) receives the amount it would have received had no such withholding been made.

(b) In addition, each Loan Party (i) shall pay any Other Taxes imposed on them to the relevant Governmental Authority in accordance with applicable law and (ii) shall indemnify each Recipient for any Other Taxes imposed on it in accordance with Section 2.17(d).

(c) As promptly as possible after any payment of any Indemnified Taxes, Other Taxes or other material Taxes by a Loan Party to a Governmental Authority, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(d) The Loan Parties shall, jointly and severally, indemnify each Recipient for the full amount of any Indemnified Taxes or Other Taxes that are paid or payable by such Recipient (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.17) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted. The indemnity under this paragraph (d) shall be paid within thirty (30) days after the Recipient (or the Administrative Agent, on behalf of such Recipient) delivers to the applicable Loan Party a certificate stating the amount of Indemnified Taxes or Other Taxes so payable by such Recipient. Such certificate shall be conclusive of the amount so payable absent manifest error. Such Recipient shall deliver a copy of such certificate to the Administrative Agent.

(e) (i) Any Lender that is entitled to an exemption from, or reduction of, any applicable withholding Tax with respect to any payments under any Loan Document shall deliver to the Borrower Representative and the Administrative Agent, at the time or times reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower Representative or the Administrative Agent as will permit any such payments to be made without, or at a reduced rate of, withholding. In addition, any Lender, if requested by the Borrower Representative or the Administrative Agent, shall deliver such other documentation prescribed by law or reasonably requested by the Borrower Representative or the Administrative Agent as will enable the Borrower Representative or the Administrative Agent to determine whether or not such Lender is subject to U.S. federal backup withholding or information reporting requirements, or any other U.S. or non-U.S. withholding requirements. Upon the reasonable request of the Borrower Representative or the Administrative Agent, any Lender shall update any form or certification previously delivered pursuant to this Section 2.17(e). If any form or certification previously delivered pursuant to this Section 2.17(e) expires or becomes obsolete or inaccurate in any respect with respect to a Lender, such Lender shall promptly notify the Borrower Representative and the Administrative Agent in writing of such expiration, obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so. Notwithstanding anything to the contrary in this Section 2.17(e)(i), the completion, execution and submission of such documentation (other than such documentation set forth in Section


ACTIVE 50727705v3 65

2.17(e)(ii)(A)-(E) or (iv) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Each Lender authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided to the Administrative Agent by such Lender pursuant to this Section 2.17(e).

(ii) Without limiting the generality of the foregoing, any Lender shall, if it is legally eligible to do so, deliver to the Borrower Representative and the Administrative Agent on or prior to the date on which such Lender becomes a party hereto, two duly completed and executed copies of whichever of the following is applicable:

(A) in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding;

(B) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party, IRS Form W-8BEN or W-8BEN-E (or any successor form, as applicable);

(C) in the case of a Foreign Lender for whom any payments under any Loan Document constitute income that is effectively connected with such Lender’s conduct of a trade or business in the United States, IRS Form W-8ECI (or any successor form);

(D) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code both (1) IRS Form W-8BEN or W-8BEN-E (or any successor form, as applicable) and (2) a certificate substantially in the form of the applicable Exhibit I hereto (a “U.S. Tax Certificate”);

(E) in the case of a Foreign Lender that is not the beneficial owner of payments made under any Loan Document (including a partnership), (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this paragraph (e)(ii) that would be required of each such beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender; provided, however, that if the Lender is a partnership for U.S. federal income tax purposes and one or more of its partners are claiming the exemption for portfolio interest under Section 871(h) or 881(c) of the Code, such Lender may provide a U.S. Tax Certificate on behalf of such partners; or

(F) any other form prescribed by law as a basis for claiming exemption from, or a reduction of, U.S. federal withholding Tax together with such supplementary documentation necessary to enable the Borrower Representative or the Administrative Agent to determine the amount of Tax (if any) required by law to be withheld.

(iii) [Reserved].

(iv) If a payment made to any Lender would be subject to withholding Tax imposed under FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower Representative and Administrative Agent, at the time or times prescribed by law and at such time or times


ACTIVE 50727705v3 66

reasonably requested by the Borrower Representative or the Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such other documentation reasonably requested by the Borrower Representative or the Administrative Agent as may be necessary for the Administrative Agent and the Borrowers to comply with their obligations under FATCA, to determine whether such Lender has or has not complied with such Lender’s FATCA obligations and to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (iv), “FATCA” shall include any amendments after the Closing Date.

(v) Notwithstanding any other provision of this clause (e), a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.

(f) If any Recipient determines, in its sole discretion (in good faith), that it has received a refund of any Indemnified Taxes as to which it has been indemnified pursuant to this Section 2.17 (including additional amounts paid by any Loan Party pursuant to this Section 2.17), it shall promptly pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of such Recipient and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrowers, upon the request of such Recipient, shall repay to such Recipient the amount paid to such indemnifying party pursuant to this Section 2.17(f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Recipient is required to repay such refund to such Governmental Authority. This Section 2.17(f) shall not be construed to require any Recipient to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any other Person. Notwithstanding anything to the contrary in this Section 2.17(f), in no event will any Recipient be required to pay any amount to an indemnifying party pursuant to this Section 2.17(f), the payment of which would place such Recipient in a less favorable net after-Tax position than the Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.

(g) On or before the date it becomes a party to this Agreement, any Administrative Agent that is a U.S. Person shall deliver to the Borrower Representative two duly completed copies of IRS Form W-9, or any subsequent versions or successors to such form, certifying that such Administrative Agent is exempt from U.S. federal backup withholding. Notwithstanding anything to the contrary, nothing in this Section 2.17(g) shall require the Administrative Agent to deliver any documentation that it is not legally eligible to deliver as a result of any Change in Law after the date hereof. Any Administrative Agent, and any successor or supplemental Administrative Agent, that is not a U.S. Person, shall deliver to the Borrower Representative (i) two (2) duly completed copies of IRS Form W-8IMY certifying that it is a “U.S. branch” and that the payments are not effectively connected with the conduct of a trade or business in the United States and that it is using such form as evidence of its agreement with the Borrowers to be treated as a U.S. Person with respect to such payments (and the Borrowers and the Administrative Agent agree to so treat the Administrative Agent as a U.S. Person with respect to such payments as contemplated by Treasury Regulation Section 1.1441-1(b)(2)(iv)(A)) and (ii) two (2) duly completed copies of IRS Form W-8ECI with respect to any amounts payable to the Administrative Agent for its own account.

(h) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes or Other Taxes attributable to such Lender (but only to the extent that the Loan Parties have not already indemnified the Administrative Agent for such Indemnified Taxes or Other Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any


ACTIVE 50727705v3 67

Taxes attributable to such Lender’s failure to comply with the provisions of Sections 9.04(c) and (e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (h).

(i) For the avoidance of doubt, for purposes of this Section 2.17, the term “Lender” includes any Issuing Bank.

(j) Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the commitments and the repayment, satisfaction or discharge of other obligations under any Loan Document.

Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.

(a) The Borrowers shall make each payment required to be made by them under any Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, Section 2.16, Section 2.17 or otherwise) prior to the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff or counterclaim. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, to the Administrative Agent’s Account or, alternatively, at the applicable Administrative Agent’s Office in Dollars and in same day funds not later than 1:30 p.m. New York City time on the date specified herein. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent’s Account or, alternatively, at the applicable Administrative Agent’s Office, except payments to be made directly to the Issuing Bank as expressly provided herein and except that payments pursuant to Section 2.12, Section 2.15, Section 2.16, Section 2.17 and Section 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. Unless otherwise provided herein, if any payment under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under each Loan Document of principal or interest in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made in Dollars and, except as otherwise set forth in any Loan Document, all other payments under each Loan Document shall be made in Dollars.

(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of the principal and unreimbursed LC Disbursements then


ACTIVE 50727705v3 68

due hereunder, ratably among the parties entitled thereto in accordance with the amounts of the principal and unreimbursed LC Disbursements then due to such parties.

(c) If, other than as provided elsewhere herein, any Lender shall, by exercising any right of setoff or counterclaim, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to (v) any payment or prepayment made by or on behalf of the Borrowers or any other Loan Party pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (w) the application of Cash Collateral provided in Section 2.23 from time to time (including the application of funds arising from the existence of a Defaulting Lender), (x) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant or the termination of any Lender’s commitment and non-pro rata repayment of Liens pursuant to Section 2.19(b), (y) [reserved], or (z) [reserved].

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

(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(d) or (e), Section 2.06(a) or (b), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

(f) Except to the extent otherwise expressly provided herein, each Borrowing, each payment or prepayment of principal of or interest or premium on any Loan, each payment of fees (other than the administrative fees retained by the Administrative Agent for its own account) with respect to any Loan, and each conversion or continuation of any Loan, shall be allocated pro-rata among the relevant Lenders in accordance with their respective pro-rata shares of such Loans; provided that, in the event any amount paid to any Lender pursuant to this Section is rescinded or must otherwise be returned by the Administrative Agent, each Lender shall, upon the request of the Administrative Agent, repay to the Administrative Agent the amount so paid to such Lender, with interest for the period commencing on the date such payment is returned by the Administrative Agent until the date the Administrative Agent receives


ACTIVE 50727705v3 69

such repayment at a rate per annum equal to the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

Section 2.19 Mitigation Obligations; Replacement of Lenders.

(a) If any Lender requests compensation under Section 2.15 or Section 2.17, or if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or Section 2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not be inconsistent with its internal policies or otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b) If any Lender requests compensation under Section 2.15 or Section 2.17, or if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, or if any Lender becomes a Defaulting Lender, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, (1) terminate the unused Revolving Commitment of such Lender and repay the Loans on a non-pro rata basis, or (2) require such Lender (and such Lender shall be obligated) to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and funded participations in LC Disbursements and, other than in the case of a Defaulting Lender, accrued interest thereon, accrued fees and all other amounts payable to it hereunder from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts), and (ii) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or payments.

(c) Any Lender being replaced pursuant to Section 2.19(b) above shall (i) execute and deliver an Assignment and Assumption with respect to such Lender’s Commitment and outstanding Loans and participations in LC Disbursements, as applicable (provided that the failure of any such Lender to execute an Assignment and Assumption shall not render such assignment invalid and such assignment shall be recorded in the Register) and (ii) deliver Revolving Notes, if any, evidencing such Loans to the Borrower Representative or Administrative Agent. Pursuant to such Assignment and Assumption, (A) the assignee Lender shall acquire all or a portion, as the case may be, of the assigning Lender’s Commitments and outstanding Loans and participations in LC Disbursements, as applicable, (B) all obligations of the Loan Parties owing to the assigning Lender relating to the Loan Documents and participations so assigned shall be paid in full by the assignee Lender or the Loan Parties (as applicable) to such assigning Lender concurrently with such assignment and assumption, any amounts owing to the assigning Lender (other than a Defaulting Lender) under Section 2.16 as a consequence of such assignment and (C) upon such payment and, if so requested by the assignee Lender, the assignor Lender shall deliver to the assignee Lender the appropriate Revolving Note or Revolving Notes executed by the Borrowers, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to constitute a Lender hereunder with respect to such assigned Loans, Commitments and participations, except with respect to indemnification provisions under this Agreement, which shall survive as to such assigning Lender.


ACTIVE 50727705v3 70



Section 2.22 Defaulting Lenders.

(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i) Waivers and Amendments. That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 9.02.

(ii) Reallocation of Payments. Any payment of principal, interest, fees, indemnity payments or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 9.08), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the Issuing Bank or Swing Line Lender; third, if so determined by the Administrative Agent or requested by the Issuing Bank or Swing Line Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or Letter of Credit; fourth, as the Borrower Representative may request, to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement; fifth, if so determined by the Administrative Agent and the Borrower Representative, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders or the Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Bank against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursement in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or LC Disbursements were made at a time when the conditions set forth in Section 4.01 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non- Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.22(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

(iii) Certain Fees. That Defaulting Lender shall not be entitled to receive any Unused Line Fee pursuant to Section 2.12(b) or any default rate of interest pursuant to Section 2.13(c), in each case, for any period during which that Lender is a Defaulting


ACTIVE 50727705v3 71

Lender and (A) if the participations in Letters of Credit are reallocated pursuant to clause (iv) below, then the fees payable to the Lenders pursuant to Section 2.12(b) shall be adjusted to reflect the higher amounts of such participations allocated to such Lenders, and (B) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated pursuant to clause (iv) below nor Cash Collateralized pursuant to Section 2.23, then, without prejudice to any rights or remedies of the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.12(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized.

(iv) Reallocation of Pro Rata Shares to Reduce LC Exposure. During any period in which there is a Defaulting Lender with a Revolving Commitment for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit the “Applicable Percentage” of each non-Defaulting Lender with a Revolving Commitment shall be computed without giving effect to the Revolving Commitment of that Defaulting Lender, and such obligation to so acquire, refinance or fund participations in such Letters of Credit shall automatically be reallocated among the non-Defaulting Lenders with Revolving Commitments upon such Defaulting Lender becoming a Defaulting Lender; provided that the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in such Letters of Credit shall not exceed the positive difference, if any, of (1) the Revolving Commitment of that non-Defaulting Lender minus (2) the aggregate outstanding amount of the Revolving Loans of that Lender. Subject to Section 9.19, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender with a Revolving Commitment arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Revolving Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.

(b) Defaulting Lender Cure. If the Borrower Representative, the Administrative Agent, Swing Line Lender and the Issuing Bank agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentage without giving effect to Section 2.22(a)(iv), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(c) So long as such Lender is a Defaulting Lender, (i) the Swing Line Lender shall not be required to fund any Swing Line Loans unless it is satisfied that the participations therein will be fully allocated among Non-Defaulting Lenders in a manner consistent with clause (a)(iii) above and the Defaulting Lender shall not participate therein and (ii) the Issuing Bank shall not be required to issue, amend, increase, renew or extend any Letter of Credit, unless it has received assurances satisfactory to it that non-Defaulting Lenders will cover the related exposure in accordance with this Section 2.22 and/or Cash Collateral will be provided by the Borrowers in accordance with Section 2.23, and participating


ACTIVE 50727705v3 72

interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(a)(iv) (and such Defaulting Lender shall not participate therein).

Section 2.23 Cash Collateral.

(a) Certain Credit Support Events. If, as of the date of termination of all Revolving Commitments, any LC Exposure for any reason remains outstanding, the Borrowers shall promptly provide Cash Collateral. At any time that there shall exist a Defaulting Lender, promptly after the written request of the Administrative Agent, the Borrowers shall deliver to the Administrative Agent Cash Collateral (after giving effect to Section 2.22(a)(iv)) and any Cash Collateral provided by such Defaulting Lender). If at any time the Administrative Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than the Administrative Agent or that the total amount of such funds is less than the aggregate outstanding amount of all LC Exposure in respect of the Borrowers, the Borrowers will, promptly after written demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate outstanding amount over (y) the total amount of funds, if any, then held as Cash Collateral to secure such LC Exposure that the Administrative Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable laws, to reimburse the Issuing Bank.

(b) Grant of Security Interest. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in one or more blocked, non-interest-bearing deposit and/or securities accounts with or established by the Administrative Agent (or under control of the Administrative Agent). The Borrowers, and to the extent provided by any Lender, such Lender, hereby grant to (and subject to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the Issuing Bank and the applicable Revolving Lenders, and agrees to maintain, a first priority security interest (subject to Liens of the type permitted by Section 6.02) in all such cash, Cash Equivalents, deposit and/or securities accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.23(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any non-permitted right or claim of any Person other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than 103% of the applicable LC Exposure and other obligations secured thereby, the Borrowers or the relevant Defaulting Lender will, promptly following written demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.

(c) Application. Notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, Cash Collateral provided under this Section 2.23 or otherwise in respect of Letters of Credit shall be held and applied to the satisfaction of the specific LC Disbursement, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.

(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce LC Exposure or other obligations shall be released promptly following (i) the elimination of the applicable LC Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee) or (ii) the Administrative Agent’s good faith determination that there exists excess Cash Collateral.


ACTIVE 50727705v3 73


Section 2.25 Borrower Representative. AP Acquisition hereby (a) is designated and appointed by the Loan Parties as their representative and agent on their behalf (the “Borrower Representative”) and (b) accepts such appointment as the Borrower Representative for the purposes of issuing a Borrowing Request, Interest Election Request, delivering certificates including Compliance Certificates, giving instructions with respect to the disbursement of the proceeds of the Loans, selecting interest rate options, giving and receiving all other notices and consents hereunder or under any of the other Loan Documents and taking all other actions (including in respect of compliance with covenants, but without relieving any Borrower or any other Loan Party of its obligations, on a joint and several basis where applicable, to pay and perform the Obligations) on behalf of any Borrower or the Borrowers or any Loan Party or the Loan Parties under the Loan Documents. The appointment of AP Acquisition as Borrower Representative shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by each Loan Party that such appointment has been revoked and that another Loan Party has been appointed as agent for the Loan Parties. Administrative Agent and each Lender may regard any notice or other communication pursuant to any Loan Document from the Borrower Representative as a notice or communication from all Loan Parties or the applicable Loan Parties. Each warranty, covenant, agreement and undertaking made on behalf of a Loan Party by the Borrower Representative shall be deemed for all purposes to have been made by such Loan Party and shall be binding upon and enforceable against such Loan Party to the same extent as if the same had been made directly by such Loan Party. It is understood that the handling of the Loan Account and the Collateral in a combined fashion, as more fully set forth herein, is done solely as an accommodation to the Borrowers in order to utilize the collective borrowing powers of the Borrowers in the most efficient and economical manner and at their request. Each Loan Party expects to derive benefit, directly or indirectly, from the handling of the Loan Account and the Collateral in a combined fashion since the successful operation of each Loan Party is dependent on the continued successful performance of the integrated group.

Section 2.26 Joint and Several Liability.

(a) The Borrowers shall be jointly and several liable on a primary basis for all Loans and all Obligations. The obligations of the Borrowers hereunder and under the other Loan Documents are joint and several. Each Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders under this Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of the other Borrowers and in consideration of the undertakings of the other Borrowers to accept joint and several liability for such Borrower. Each Borrower jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers with respect to the payment and performance of all of the Obligations, it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction between them. If and to the extent that any Borrower shall fail to make any payment with respect to any Obligation as and when due or to perform any Obligation in accordance with the terms thereof, then in each such event, the other Borrowers will make such payment with respect to, or perform, such Obligation. The obligations of each Borrower under the provisions of this Section 2.26 constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.

(b) Except as otherwise expressly provided herein, each Borrower hereby waives, to the extent permitted by applicable law, notice of acceptance of its joint and several liability. Except as otherwise expressly provided herein, each Borrower hereby waives, to the extent permitted by law, notice of any Loan made under this Agreement, notice of occurrence of any Default or Event of Default or of any


ACTIVE 50727705v3 74

demand for any payment under this Agreement, any notice of any action at any time taken or omitted by any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, to the extent permitted by applicable law, any extension or postponement of the time for the payment of any Obligation, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender at any time or times in respect of any default by the other Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any Obligation or the addition, substitution or release, in whole or in part, of the other Borrowers. The obligations of each Borrower under this Section 2.26 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower.

(c) The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower.

(d) The provisions of this Section 2.26 are made solely for the benefit of the Administrative Agent, the Collateral Agent and the Lenders and their respective successors and assigns, and may be enforced in accordance with the terms of the Agreement and the Loan Documents against any Borrower without requirement first to marshal any of its claims or to exercise any of its rights against the other Borrowers or to exhaust any remedies available to it against the other Borrowers or to resort to any other source or means of obtaining payment of any Obligation or to elect any other remedy. If at any time, any payment, or any part thereof, made in respect of any Obligation, is rescinded or must otherwise be restored or returned by the Administrative Agent, the Collateral Agent or any Lender upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this Section 2.26 will forthwith be reinstated in effect, as though such payment had not been made.

(e) Notwithstanding any provision to the contrary contained herein or in any other Loan Document, to the extent the obligations of any Borrower as a surety shall be adjudicated to be invalid or unenforceable for any reason (including because of any applicable state, provincial or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal, state or provincial and including, without limitation, Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable laws), after taking into account, among other things, such Borrower’s right of contribution and indemnification from each other Loan Party under applicable law.

Section 2.27 Super Priority Nature of Obligations and Lenders’ DIP Liens.

(a) The priority of the Secured Parties’ DIP Liens on the DIP Collateral owned by the Loan Parties shall be set forth in the Interim Order and the Final Order.

(b) All Obligations shall constitute Superpriority DIP Claims.

(c) Upon entry of the applicable Order, the DIP Liens granted to the Collateral Agent for the benefit of the Lenders on the DIP Collateral shall be valid and automatically perfected on the basis with the priority set forth in the definition of “DIP Lien” herein and in the Orders.

(d) Except as set forth herein or in the Orders, the Debtors shall not seek approval of any other claim having a priority superior or pari passu to that granted to the Collateral Agent and Lenders by the Orders while any Obligations remain outstanding.


ACTIVE 50727705v3 75

Section 2.28 No Discharge; Survival of Claims. Until indefeasible payment in full (other than contingent obligations not yet due and payable) in cash of the Loans and all other Obligations (which includes a conversion thereof into any exit financing of the Debtors pursuant to the terms of the Bankruptcy Plan), each of the Borrowers and the Guarantors agrees that (a) the Obligations hereunder shall not be discharged by the entry of an order confirming a plan of reorganization or liquidation in any Chapter 11 Case (and each of the Borrowers and the Guarantors, pursuant to Section 1141(d)(4) of the Bankruptcy Code, hereby waives any such discharge) and (b) the Superpriority DIP Claims and the DIP Liens granted to the Collateral Agent pursuant to the Orders and described in this Section 2.28 shall not be affected in any manner by the entry of an order confirming a plan of reorganization or liquidation in any Chapter 11 Case.

Section 2.29 Release. The Borrowers and the Guarantors hereby acknowledges effective upon entry of the Final Order, and subject to the terms thereof, that the Borrowers, the Guarantors and any of their Subsidiaries have no defense, counterclaim, offset, recoupment, claim or demand of any kind or nature whatsoever that can be asserted to reduce or eliminate all of any part of the Borrowers’, the Guarantors’ or any Subsidiaries’ liability to repay any Agent or any Lender as provided in this Agreement or to seek affirmative relief or damages of any kind or nature from any Agent or any Lender. Upon entry of the Final Order, the Borrowers and the Guarantors, each in their own right and on behalf of their bankruptcy estates, and on behalf of all their successors, assigns, Subsidiaries and any Affiliates and any Person acting for and on behalf of, or claiming through them, hereby fully, finally and forever release and discharge each Agent and the Lenders and all of the Agents’ and the Lenders’ respective officers, directors, servants, agents, attorneys, assigns, heirs, parents, subsidiaries, and each Person acting for or on behalf of any of them of and from any and all actions, causes of action, demands, suits, claims, liabilities, Liens, lawsuits, adverse consequences, amounts paid in settlement, costs, damages, debts, deficiencies, diminution in value, disbursements, expenses, losses and other obligations of any kind or nature whatsoever, in each case, existing at the time of entry of the Final Order, whether in law, equity or otherwise (including, without limitation, those arising under Sections 541 through 550 of the Bankruptcy Code and interest or other carrying costs, penalties, legal, accounting and other Professional Costs, and incidental, consequential and punitive damages payable to third parties), directly or indirectly arising out of, connected with or relating to this Agreement, the Interim Order, the Final Order and the transactions (including, for avoidance of doubt, the Transactions) contemplated hereby, and all other agreements, certificates, instruments and other documents and statements (whether written or oral) related to any of the foregoing. Notwithstanding anything herein to the contrary, the Borrowers and Guarantors shall not have any obligation to indemnify or hold harmless any Agent or any Lender hereunder with respect to liabilities to the extent they result from the actual fraud (other than in the case of the Agents), gross negligence or willful misconduct of such Agent or Lender, as applicable, as finally determined by a court of competent jurisdiction.

Section 2.30 Waiver of Certain Rights.

(a) On and after the Closing Date, and on behalf of themselves and their estates, and for so long as any Obligations shall be outstanding, the Borrowers and the other Loan Parties hereby irrevocably waive any right, pursuant to sections 364(c) or 364(d) of the Bankruptcy Code or otherwise, to grant any Lien of equal or greater priority than the DIP Liens securing the Obligations, or to approve a claim of equal or greater priority than the Obligations.

(b) The Final Order shall provide that in no event shall the Agents, the Lenders, the Prepetition ABL Agents or the Prepetition ABL Lenders under the Prepetition ABL Credit Agreement (the “Prepetition ABL Secured Parties”) be subject to the equitable doctrine of “marshalling” or any similar doctrine with respect to the DIP Collateral or the Prepetition ABL Collateral, as applicable, and all


ACTIVE 50727705v3 76

proceeds shall be received and applied pursuant to the Final Order and the Loan Documents notwithstanding any other agreement or provision to the contrary.

(c) Subject to the Carve-Out, and only upon entry of the Final Order, the Debtors (on behalf of themselves and their estates) shall irrevocably waive, and shall be prohibited from asserting in the Chapter 11 Cases or any successor cases, (i) any surcharge claim under sections 105(a) or 506(c) of the Bankruptcy Code for any costs and expenses incurred in connection with the preservation, protection or enhancement of, or realization by the Agents, the Lenders, or the Prepetition ABL Secured Parties upon the DIP Collateral or the Prepetition ABL Collateral, and (ii) the Agents, the Lenders, and the Prepetition ABL Secured Parties shall each be entitled to all of the rights and benefits of section 552(b) of the Bankruptcy Code, and the “equities of the case” exception under section 552(b) of the Bankruptcy Code shall not apply to the Agents, the Lenders, and the Prepetition ABL Secured Parties with respect to proceeds, product, offspring or profits of any of the Prepetition ABL Collateral or DIP Collateral.

(d) Upon the Closing Date, and on behalf of themselves and their estates, and for so long as any Obligations and Prepetition ABL Obligations shall be outstanding, without limiting any terms or conditions of the Orders, the Loan Parties hereby irrevocably waive any right, (a) to grant or impose, or request that the Bankruptcy Court grant or impose, under section 364 of the Bankruptcy Code or otherwise, Liens on any of the collateral securing the Obligations or Prepetition ABL Obligations, which are pari passu with, equal to or superior to the Liens held by Agent or Prepetition ABL Agent except (i) for the Carve-Out, and (ii) with respect to the Term Priority Collateral as permitted under the ABL Intercreditor Agreement, (b) to grant or impose, or request that the Bankruptcy Court grant or impose, under section 364 of the Bankruptcy Code or otherwise, claims or expenses against any Loan Party, which are pari passu with, equal to or superior to the Obligations or adequate protection claims of the Prepetition Senior Agent or Prepetition Senior Secured Parties except (i) for the Carve-Out, and (ii) as permitted under the ABL Intercreditor Agreement, and (c) to use, or to request that the Bankruptcy Court authorize the use of, Cash Collateral (as defined in the Orders) or proceeds of Loans, except for such consensual uses expressly provided under the Orders.

ARTICLE III

Representations and Warranties

The Loan Parties hereby jointly and severally, represent and warrant to the Lenders (including the Issuing Bank) and the Administrative Agent that:

Section 3.01 Organization; Powers. Each of Holdco, the Borrowers and the Subsidiaries is (a) duly organized or incorporated, validly existing and, to the extent such concept is applicable in the corresponding jurisdiction, in good standing under the laws of the jurisdiction of its organization or incorporation and (b) subject to the entry by the Bankruptcy Court of the applicable Orders, has all requisite organizational or constitutional power and authority to (i) carry on its business as now conducted and as proposed to be conducted and (ii) to execute, deliver and perform its obligations under each Loan Document to which it is a party, except in the case of clauses (a) (other than with respect to the Borrowers) and (b), where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

Section 3.02 Authorization; Enforceability. Subject to the entry by the Bankruptcy Court of the applicable Orders, this Agreement (and the lending transactions contemplated hereby to occur on the Closing Date) has been duly authorized by all necessary corporate, shareholder or other organizational action by each of Holdco and each Borrower and constitutes, and each other Loan Document to which any Loan Party is a party has been duly authorized by all necessary corporate, shareholder or other organizational action by such Loan Party. This Agreement and each other Loan Document have been duly


ACTIVE 50727705v3 77

executed and delivered by each Loan Party that is a party thereto. Subject to the entry by the Bankruptcy Court of the applicable Orders, each Loan Document constitutes, or when executed and delivered by such Loan Party, will constitute, a legal, valid and binding obligation of Holdco, the Borrowers or such other Loan Party (as the case may be), enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

Section 3.03 Governmental Approvals; No Conflicts. The execution, delivery and performance by the Loan Parties of the Loan Documents to which such Loan Parties are a party, the incurrence of Indebtedness hereunder and the granting of the Guarantees and security interests in respect thereof (a) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, in each case as of the Closing Date, (ii) filings and registrations of charges necessary to perfect the DIP Liens created under the Loan Documents and to release existing Liens (if any), (iii) stamping of any relevant Loan Documents, and (iv) the Interim Order and the Final Order, as applicable, (b) will not violate any Organizational Document of Holdco or any other Loan Party, (c) will not violate any Requirement of Law applicable to Holdco or any Subsidiary, (d) will not violate or result in a default under any indenture, agreement or other instrument in each case constituting Material Indebtedness binding upon Holdco or any Subsidiary or their respective assets, or give rise to a right thereunder to require any payment to be made by Holdco or any Subsidiary or give rise to a right of, or result in, termination, cancelation or acceleration of any obligation thereunder, in each case as of the Closing Date, and (e) will not result in the creation or imposition of any Lien on any asset of Holdco or any Subsidiary, except the DIP Liens created under the Loan Documents and Liens permitted under Section 6.02, except in the cases of clauses (a), (c) and (d) above where such violations, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

Section 3.04 Financial Condition; Budget; No Material Adverse Effect.

(a) The Borrower Representative has heretofore furnished to the Administrative Agent financial statements for the fiscal year 2019. Such financial statements present fairly, in all material respects, the consolidated financial position and the consolidated results of operations and consolidated cash flows of Holdco and its Subsidiaries as of such dates and for such periods in accordance in all material respects with GAAP (except, in the case of the unaudited financial statements, as permitted by the Securities and Exchange Commission), subject, in the case of the unaudited financial statements, to normal year-end audit adjustments and to any other adjustments described therein (including the notes thereto), the absence of footnotes and the inclusion of explanatory notes.

(b) The Borrower Representative has heretofore furnished to the Administrative Agent the Initial Budget. The Initial Budget and each Budget delivered thereafter are based on good faith estimates and assumptions believed by management of the Borrowers to be reasonable and fair in light of current conditions and facts known to the Borrowers at the time delivered.

(c) Since the Petition Date (and for the avoidance of doubt, other than the Known Events), no event, change or condition has occurred that has had, or would reasonably be expected to have, a Material Adverse Effect.

(d) Each Lender and the Administrative Agent hereby acknowledges and agrees that Holdco and its Subsidiaries may be required to restate historical financial statements as the result of the implementation of changes in GAAP, or the respective interpretation thereof, and that such restatements will not result in a Default or an Event of Default under the Loan Documents.


ACTIVE 50727705v3 78

Section 3.05 Properties; Intellectual Property.

(a) Holdco and each Subsidiary has good title to, valid leasehold interests in, or rights to use, all its real and personal property material to its business, except for Liens permitted under Section 6.02 and minor defects in title and except where the failure to have such interest would not reasonably be expected to have a Material Adverse Effect (other than solely as a result of the filing of the Chapter 11 Cases).

(b) Holdco and each Subsidiary owns or has the right to use all Intellectual Property that is necessary for the operation of their respective businesses as currently conducted, except where the failure of the foregoing would not reasonably be expected to have a Material Adverse Effect. The operation of their respective businesses by Holdco and the Subsidiaries does not infringe upon or otherwise violate the proprietary rights of any third party, except where any such infringement or violation would not reasonably be expected to have a Material Adverse Effect. No claim has been asserted and is pending by any Person against any Loan Party or any of its Subsidiaries challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property, nor does any Borrower know of any such claim, and, to the knowledge of each Borrower, the use of such Intellectual Property by the Loan Parties and the Subsidiaries does not infringe on the rights of any Person, except for such claims and infringements which in the aggregate would not reasonably be expected to have a Material Adverse Effect.

Section 3.06 Litigation and Environmental Matters.

(a) Other than the Known Events, or as stayed upon the commencement of the Chapter 11 Cases, there are no actions, suits, investigations or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of Holdco, threatened in writing against Holdco or any Subsidiary as to which there is a reasonable possibility of an adverse determination and that, if adversely determined would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

(b) Except with respect to any other matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, neither Holdco nor any Subsidiary (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability or knows of any basis for which it would reasonably be expected for Holdco or any Subsidiary to become subject to any Environmental Liability or (iii) has received written notice of any claim with respect to any Environmental Liability.

Section 3.07 Compliance with Laws. Subject to the entry of the Orders, Holdco and the Subsidiaries are in compliance with all Requirements of Law applicable to it or its property, except, where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

Section 3.08 Investment Company Status. None of Holdco, the Borrowers or any other Loan Party is required to be registered as an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.

Section 3.09 Taxes. Except for failures that would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, or to the extent otherwise excused or prohibited by the Bankruptcy Code and for which payment has not otherwise been required by the Bankruptcy Court, Holdco and each of the Subsidiaries have timely filed or caused to be filed all Tax returns and reports required to have been filed by them and have paid or caused to be paid all Taxes required to have been paid by it (including in its capacity as a withholding agent), except any Taxes that are being contested in


ACTIVE 50727705v3 79

good faith by appropriate proceedings for which adequate reserves have been provided in accordance with GAAP or applicable foreign accounting principles or the payment of which is stayed by the Automatic Stay.

Section 3.10 ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would reasonably be expected to result in a Material Adverse Effect.

Section 3.11 Disclosure. The representations and warranties of Holdco and the Borrowers contained in any Loan Document or in any other documents, certificates or written statements furnished by or on behalf of Holdco or any Subsidiary to the Administrative Agent in connection with the transactions contemplated hereby (other than projections, budgets, forecasts, pro forma financial information and other forward-looking information and information of a general economic or general industry nature and other general market data), when taken as a whole, do not, as of the date furnished, contain any untrue statement of a material fact or omit to state any material fact (known to Holdco or the Borrowers, in the case of any document not furnished by any of them) necessary to make the statements therein not materially misleading in the light of the circumstances under which they were made (after giving effect to all supplements and updates thereto from time to time). Any projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by Holdco and the Borrowers to be reasonable at the time made and at the time delivered to the Administrative Agent, it being understood by the Agents and the Lenders that such projections as to future events (i) are not to be viewed as facts, (ii)(A) are subject to significant uncertainties and contingencies, which may be beyond the control of the Loan Parties, (B) no assurance is given by the Loan Parties that the results or forecast in any such projections will be realized and (C) the actual results may differ from the forecast results set forth in such projections and such differences may be material and (iii) are not a guarantee of performance and that actual results during the period or periods covered by any such projections may vary significantly from the projected results and such differences may be material.

Section 3.12 Labor Matters. There are no strikes, work stoppages or labor disputes against Holdco or any Subsidiary pending or, to the actual knowledge of Holdco, threatened in writing that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 3.13 Subsidiaries. As of the Closing Date, Schedule 3.13 sets forth the name of and the ownership by Holdco and its Subsidiaries in, each Subsidiary and identifies each Subsidiary that is a Loan Party as of the Closing Date.

Section 3.14 Chapter 11 Cases; Creditors.

(a) The Chapter 11 Cases were commenced by the filing of voluntary petitions on the Petition Date in accordance with applicable law and proper notice has been or will be given of (i) the motion seeking approval of the Loan Documents, the Interim Order and the Final Order, (ii) the hearing for the entry of the Interim Order, and (iii) the hearing for the entry of the Final Order, as applicable.

(b) No Chapter 11 Case has been dismissed.

(c) 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.


ACTIVE 50727705v3 80

Section 3.15 Federal Reserve Regulations.

(a) None of Holdco, the Borrowers or any Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock.

(b) Taking into account all of the Transactions, no part of the DIP Proceeds will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a violation of the provisions of the Regulations of the Board, including Regulation T, U or X.

Section 3.16 Insurance. Holdco and each Subsidiary maintains, with financially sound and reputable insurance companies, material insurance in such amounts (after giving effect to any self-insurance reasonable and customary for similarly-situated Persons engaged in the same or similar business) and against such risks as is (a) customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations as reasonably determined by management of Holdco or (b) considered adequate by Holdco.

Section 3.17 Use of Proceeds. The proceeds of the Revolving Loans will be used in accordance with Section 5.10.

Section 3.18 Security Interest. This Agreement, the Orders and the Security Documents, subject to entry of the Orders, are effective to create in favor of the Collateral Agent, subject to the Carve-Out for the benefit of the Secured Parties legal, valid and enforceable DIP Collateral and continuing first-priority Liens on, and security interests in, the DIP Collateral pledged hereunder or thereunder, in each case, with respect to priority, subject to no Liens other than Permitted Priority Liens with the relative priorities granted pursuant to the terms of the Orders. Pursuant to the terms of the Interim Order and/or Final Order, no filing or other action will be necessary to perfect or protect such DIP Liens and security interests. Pursuant to and to the extent provided in the Interim Order and the Final Order, the Indebtedness of the Debtors under this Agreement will constitute part of the Superpriority DIP Claim.

Section 3.19 OFAC; FCPA; Patriot Act.

(a) Use of Proceeds. No part of the DIP Proceeds will be used, directly or indirectly, (A) to fund or finance any unlawful activities or business of or with any Sanctioned Person or in any Sanctioned Country or (B) for any unlawful payments to any official or employee of a Governmental Authority, 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 or undue advantage in violation of Anti-Corruption Laws.

(b) Anti-Terrorism Laws, Etc. Without limiting the foregoing, no Loan Party, any of its Controlled Entities, nor any of their respective directors, officers, employees nor, to the knowledge of any Loan Party, any of their agents, (i) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Laws, or (ii) is a Blocked Person. No Loan Party nor any of its Controlled Entities (x) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (y) deals in, or otherwise engages in any transaction relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Laws. The Loan Parties, their Controlled Entities, their respective directors, officers, employees and, to the knowledge of the Loan Parties, their agents, have been in material compliance with any Anti-Terrorism Laws.

(c) Anti-Corruption Laws, Etc. There has been no action taken by any Loan Party, any of its Subsidiaries, nor any of their respective officers or directors, nor, to the knowledge of any Loan


ACTIVE 50727705v3 81

Party, any of their respective agents or employees, in violation of any applicable Anti-Corruption Law. None of the Loan Parties or any of their Controlled Entities has been convicted of violating any Anti-Corruption Laws nor have been made aware of any investigation by a Governmental Authority for violation of any applicable Anti-Corruption Laws. To the knowledge of any Responsible Officer of Holdco, there is no material suit, litigation, arbitration, claim, audit, action, proceeding or investigation pending or threatened against the Loan Parties or any of their Controlled Entities related to any applicable Anti-Corruption Laws. None of the Loan Parties or any of their respective Subsidiaries has conducted or initiated any internal investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority with respect to any alleged act or omission arising under or relating to any noncompliance with any Anti-Corruption Law. In the three (3) years prior to the Closing Date, none of the Loan Parties or any of their respective Subsidiaries has received any written notice, request or citation for any actual or potential noncompliance with any of the foregoing.

(d) Foreign Assets Control Regulations and Anti-Money Laundering. Each Loan Party and its Controlled Entities is and will remain in compliance with all Sanctions, and will remain in compliance with all applicable anti-money laundering and counter-terrorism financing provisions of the Bank Secrecy Act and all regulations issued pursuant to it. No Loan Party, Controlled Entity of a Loan Party, and, to the knowledge of the Loan Party, no officer, director or employee of the foregoing and to Holdco’s knowledge no agent or subsidiary that will act in any capacity with or benefit from the credit facility governed by this Agreement is (A) a Sanctioned Person or (B) located, organized or resident in a Sanctioned Country.

Section 3.20 Eligible Accounts Receivables. As to each Account that is identified by the Loan Parties as an Eligible Accounts Receivables in a Borrowing Base Certificate submitted to the Administrative Agent, such Account is (a) a bona fide existing payment obligation of the applicable Account Debtor created by the sale and delivery of Inventory or the rendition of services to such Account Debtor in the ordinary course of the Loan Parties’ business and (b) not excluded as ineligible by virtue of one or more of the excluding criteria (other than any the Administrative Agent-discretionary criteria) set forth in the definition of Eligible Accounts Receivables.

Section 3.21 Eligible Inventory. As to each item of Inventory that is identified by the Loan

Parties as Eligible Inventory in a Borrowing Base Certificate submitted to the Administrative Agent, such Inventory is not excluded as ineligible by virtue of one or more of the excluding criteria (other than any Administrative Agent-discretionary criteria) set forth in the definitions of Eligible Inventory.

Section 3.22 Location of Inventory. The Inventory of each Loan Party (other than Inventory in-

transit or being handled by Freight Forwarders) is (a) located at a location that is owned or leased by a Loan Party or stored with a bailee, warehouseman, or similar party and (b) is located only at, or in-transit between, the locations identified on (i) in the case of Inventory other than “factory fee” Inventory, Schedule 3.22(b)(i), and (ii) in the case of “factory fee” Inventory, Schedule 3.22(b)(ii) (as each such Schedule may be updated in accordance with the terms of this Agreement).

Section 3.23 Inventory Records. Each Loan Party keeps correct and accurate records in all

material respects itemizing and describing the type, quality, and quantity of its Inventory and the book value thereof.

Section 3.24 Deposit and Securities Accounts. As of the Closing Date, Schedule 3.24 sets forth

a complete and correct list of each Loan Party’s Deposit Accounts and Securities Accounts, other than Excluded Accounts (listing the type and the respective account number), the name of the financial institution which maintains each such account and the purpose for which such account is used.


ACTIVE 50727705v3 82

Section 3.25 Orders. The Loan Parties are in compliance in all material respects with the terms and conditions of the Orders. Each of the Interim Order (with respect to the period prior to the entry of the Final Order) or the Final Order (from after the date the Final Order is entered), as applicable, is in full force and effect, shall not have been reversed, vacated or stayed and shall not have been amended, supplemented or otherwise modified without the prior written consent of the Administrative Agent acting at the direction of the Required Lenders, and solely with respect to terms and provisions affecting the rights, protections, duties or obligations of the Administrative Agent, the Administrative Agent in its sole and absolute discretion, in each case, except for any such modification, stay, vacation, reversal, rescindment or amendment that is reversed within five (5) Business Days.

Section 3.26 No Default. No Loan Party nor any of their Subsidiaries are in default under any of the Loan Documents and no Event of Default exist and is continuing.

ARTICLE IV

Conditions

Section 4.01 Closing Date. The Agreement and the obligations of the Lenders to make the extensions of credit to be made hereunder on the Closing Date shall not become effective until the date on which each of the following express conditions is satisfied (or waived by the Administrative Agent):

(a) The Administrative Agent (or its counsel) shall have received: (A) from the Loan Parties either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission (including Adobe pdf file) of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement, (B) from the Loan Parties executed counterparts of the Guaranty and the Security Agreement to be entered into on the Closing Date and prior to the funding of the Initial Revolving Borrowing, and (C) with respect to the Borrowers and each other Loan Party, UCC-1 financing statements in a form appropriate for filing in the state of organization of such Loan Party together with the results of customary UCC searches against the Loan Parties.

(b) All documentation relating to the Term DIP Facility shall be in form and substance satisfactory to the Administrative Agent.

(c) The Administrative Agent shall have received: (i) a copy of each Organizational Document of the Borrowers and the Guarantors as of the Closing Date and, to the extent applicable, certified as of a recent date by the appropriate governmental official; (ii) signature and incumbency certificates of the officers of such Person executing the Loan Documents to which it is a party as of the Closing Date and prior to the funding of the Initial Revolving Borrowing; (iii) resolutions of the board of directors or similar governing body of the Borrowers and the Guarantors approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which such Loan Party is a party as of the Closing Date and prior to the funding of the Initial Revolving Borrowing, certified as of the Closing Date by such Loan Party as being in full force and effect without modification or amendment; and (iv) a good standing certificate (to the extent such concept is known in the relevant jurisdiction) from the applicable Governmental Authority of the Borrowers and the Guarantors’ respective jurisdiction of incorporation, organization or formation dated a recent date prior to the Closing Date.

(d) The Administrative Agent shall have received a Borrowing Request relating to the Initial Revolving Borrowing.

(e) All reasonable and documented (in summary form) out-of-pocket fees, costs, disbursements and expenses, accrued and unpaid as of the Closing Date, of (i) the Administrative Agent


ACTIVE 50727705v3 83

(limited, in the case of counsel, to all reasonable and documented out-of-pocket fees, costs, disbursements and expenses of the Administrative Agent’s outside counsel, Greenberg Traurig, LLP (“GT”) and any successor counsel, and, to the extent necessary, one firm of local counsel engaged by the Administrative Agent in connection with the Debtors’ Chapter 11 Cases) and (ii) any other professional advisors retained by the Administrative Agent in its reasonable discretion, shall have been paid in full in cash (which payment may be made from DIP Proceeds), in each case to the extent summary invoices for any such accrued and unpaid amounts are provided to the Debtors no later than one (1) Business Day prior to the Closing Date.

(f) At the time of and immediately after giving effect to the Initial Revolving Borrowing, no Default or Event of Default shall have occurred and be continuing.

(g) At the time of and immediately after giving effect to the Initial Revolving Borrowing, Liquidity shall be no less than $20,000,000.

(h) The making of the Initial Revolving Borrowing shall not violate any Requirement of Law and shall not be enjoined, temporarily, preliminarily or permanently.

(i) Other than the Orders, there shall not exist any law, regulation, ruling, judgment, order, injunction or other restraint that prohibits, restricts or imposes a materially adverse condition on the DIP Facility or the exercise by the Collateral Agent at the direction of the Required Lenders of its rights as a secured party with respect to the DIP Collateral

(j) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower Representative, confirming compliance with the conditions precedent set forth in paragraphs (f), (g), (h), (k), (l) and (p) of Section 4.01.

(k) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date, all documentation and other information required by the Administrative Agent and regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act. For all such documentation and information, the Administrative Agent shall make a request reasonably prior to the deadline to deliver such documentation or information.

(l) The representations and warranties of each Loan Party set forth in Article 3 and in each of the Loan Documents shall be true and correct in all material respects on and as of the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date).

(m) Since the Petition Date, other than the Known Events, there has been no event or circumstance, either individually or in the aggregate, that could reasonably be expected to have a Material Adverse Effect.

(n) Other than as a result of or in connection with the Chapter 11 Cases, all governmental and third party consents and approvals reasonably necessary to be obtained by the Borrowers in connection with the DIP Facility, if any, shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Administrative Agent at the direction of the Required Lenders in their reasonable discretion) and shall remain in effect.

(o) The Administrative Agent and the Lenders shall have received the Initial Budget.

(p) All first day motions, including those related to the DIP Facility, filed by the Loan Parties and related orders entered by the Bankruptcy Court in the Chapter 11 Cases shall be in form and substance satisfactory to the Administrative Agent.


ACTIVE 50727705v3 84

(q) Other than the Chapter 11 Cases, as stayed upon the commencement of the Chapter 11 Cases, or as disclosed to the Administrative Agent prior to the Petition Date, there shall exist no action, suit, investigation, litigation or proceeding pending or threatened in writing in any court or before any arbitrator or governmental authority that (i) would reasonably be expected to result in a Material Adverse Effect or (ii) restrains, prevents or purports to affect materially adversely the legality, validity or enforceability of the DIP Facility or the consummation of the transactions contemplated thereby.

(r) Subject to entry of the Interim Order, the Collateral Agent, for the benefit of the Lenders, shall have a valid and perfected DIP Lien on and security interest in the DIP Collateral of the Debtors on the basis and with the priority set forth herein.

(s) The Bankruptcy Court shall have entered the Interim Order within [three (3)] Business Days following the Petition Date, which Interim Order shall include, without limitation, copies of the DIP Facility and the Budget as exhibits thereto, entered on notice to such parties as may be satisfactory to the Administrative Agent, (i) authorizing and approving the DIP Facility and the transactions contemplated thereby, including, without limitation, the granting of the superpriority status, security interests and priming liens, and the payment of all fees, referred to herein; (ii) authorizing the lifting or modification of the Automatic Stay to permit the Borrowers and the Guarantors to perform their obligations, and the Lenders to exercise their rights and remedies, with respect to the DIP Facility; (iii) authorizing the use of cash collateral and providing for adequate protection in favor of the Prepetition ABL Lenders, as and to the extent provided herein and therein; and (iv) reflecting such other terms and conditions that are mutually satisfactory to the Administrative Agent and the Debtors, in their respective discretion in each case, which Interim Order shall be in full force and effect, shall not have been reversed, vacated or stayed and shall not have been amended, supplemented or otherwise modified without the prior written consent of the Administrative Acting, which consent shall not be unreasonably withheld, delayed or conditioned.

Section 4.02 Each Credit Event. The obligation of (i) each Lender to make a Loan on the occasion of any Borrowing after the Closing Date and (ii) the Issuing Bank to issue, renew, increase or extend any Letter of Credit after the Closing Date (each event referred to an in clause (i) and (ii) above, a “Credit Event”), is subject to receipt of the request therefor in accordance herewith and to the satisfaction (or waiver) of the following express conditions:

(a) The representations and warranties of each Loan Party set forth in Article 3 and in each of the Loan Documents shall be true and correct in all material respects on and as of the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date).

(b) At the time of and immediately after giving effect to such Credit Event, no Default (including for the avoidance of doubt, a Default in respect of the failure of any Loan Party to comply with Section 5.04 and Section 5.07) or Event of Default shall have occurred and be continuing.

(c) The Administrative Agent shall have received a Borrowing Request meeting the requirements of Section 2.03.

(d) There shall be Excess Availability at least in the amount of the requested Borrowing (after giving effect to any repayment of Loans or termination or expiration of Letters of Credit on or prior to the date of the requested Credit Event).

(e) [reserved].

(f) The Interim Order or Final Order, as applicable, shall be in full force and effect and shall not have been reversed, modified, amended, subject to a pending appeal, stayed or vacated (other


ACTIVE 50727705v3 85

than, as to the Interim Order, by the Final Order) absent the prior written consent of Administrative Agent and the Lenders.

(g) Other than the Orders, there shall not exist any law, regulation, ruling, judgment, order, injunction or other restraint that prohibits, restricts or imposes a materially adverse condition on the DIP Facility or the exercise by the Collateral Agent at the direction of the Lenders of its rights as a secured party with respect to the DIP Collateral.

(h) Other than the Known Events, since the Petition Date there shall not have occurred a Material Adverse Change.

(i) Other than the Chapter 11 Cases, as stayed upon the commencement of the Chapter 11 Cases, or as disclosed to the Administrative Agent prior to the Petition Date, there shall exist no action, suit, investigation, litigation or proceeding pending or threatened in writing in any court or before any arbitrator or governmental authority that (i) would reasonably be expected to result in a Material Adverse Effect or (ii) restrains, prevents or purports to affect materially adversely the legality, validity or enforceability of the DIP Facility or the consummation of the transactions contemplated thereby.

Subject to the immediately preceding paragraph, each Borrowing (provided that a conversion or a continuation of a Borrowing shall not constitute a “Borrowing” for purposes of this Section) and each issuance, renewal, increase or extension of a Letter of Credit (other than any Borrowing or issuance of a Letter of Credit on the Closing Date) shall be deemed to constitute a representation and warranty by the Borrower Representative on the date thereof as to the matters specified in paragraphs (a), (b), (d), (e), (f), (g), (h), and (i) of this Section.

ARTICLE V

Affirmative Covenants

From and after the Closing Date and until the DIP Termination Date, each of the Loan Parties covenants and agrees with the Lenders, the Administrative Agent and the Issuing Banks that:

Section 5.01 Financial Statements and Other Information. Holdco will furnish to the Administrative Agent which will furnish to the Lenders:

(a) [reserved];

(b) within sixty (60) days after the end of each of fiscal quarter of each fiscal year of Holdco beginning with the fiscal quarter ended June 30, 2020, (i) the unaudited consolidated balance sheet and unaudited consolidated statements of income, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year for Holdco and its Subsidiaries, setting forth in each case, starting with the fiscal quarter ending June 30, 2020, in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by its Financial Officer as presenting fairly in all material respects the financial condition and results of operations of Holdco and its Subsidiaries on a consolidated basis in accordance in all material respects with GAAP (except as otherwise disclosed in such financial statements), subject to normal year-end audit adjustments and the absence of footnotes and (ii) a customary management discussion and analysis of the financial condition and results of operations for such period;

(c) concurrently with the delivery of any financial statements under paragraph (b) above, a Compliance Certificate certifying as to whether a Default or Event of Default exists and, if a Default or Event of Default exists, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (ii) stating whether any material change in GAAP or in the application


ACTIVE 50727705v3 86

thereof has occurred since the date of the then most recently delivered audited financial statements that would affect the compliance or non-compliance with any requirement in this Agreement and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;

(d) (i) each of the reports set forth on Schedules 5.01(e)(i) and (ii) hereto at the times specified therein; and (ii)(A) on Wednesday of each week, and (B) substantially contemporaneously with the consummation of any Disposition of the type contemplated under Sections 6.05(a)(v), (b), (k) or (bb) involving Eligible Accounts Receivables, Eligible Inventory or any other assets included in the Borrowing Base (other than Qualified Cash), a Borrowing Base Certificate which shall be prepared as of the last day of the immediately preceding week of the Borrowers; provided that any Borrowing Base Certificate delivered pursuant to preceding clause (ii)(B) shall be prepared on a pro forma basis to include or exclude, as applicable, any Eligible Accounts Receivables, Eligible Inventory, or any other assets included in the Borrowing Base the subject of any such event; and, in connection with each of the foregoing clauses (i) and (ii), each of the Loan Parties hereby jointly and severally agrees to use commercially reasonable efforts in cooperation with the Administrative Agent to facilitate and implement a system of electronic collateral reporting in order to provide electronic reporting of the Borrowing Base Certificate and each of the items set forth on Schedule 5.01(e)(i) and Schedule 5.01(e)(ii);

(e) (i) promptly after the receipt or furnishing thereof, as applicable, (x) copies of any notices of default or event of default received or furnished by Holdco, a Borrower or any Subsidiary pursuant to the terms of the Term DIP Facility Documents and (y) copies of any notices of default or event of default received or furnished by Holdco, a Borrower or any Subsidiary in connection with any Indebtedness with an aggregate outstanding principal amount in excess of $10,000,000 to the extent not otherwise required to be furnished to the Lenders pursuant to the terms of this Agreement and (ii) promptly after the execution and delivery thereof, copies of any amendments, waivers, consents or other modifications with respect to the Term DIP Facility Agreement;

(f) within 30 days after the end of each fiscal month (other than quarter end, which will be covered under the financial statements delivered pursuant to paragraph (b) above) of each fiscal year, management operating reports of Holdco and its consolidated Subsidiaries as of the close of such fiscal month and the then elapsed portion of the fiscal year, certified by a Financial Officer of Holdco;

(g) promptly following any reasonable request therefor, such other information regarding the operations, business affairs and financial condition of Holdco, the Borrowers or any Subsidiary as the Administrative Agent may reasonably request, including information requested on behalf of any Lender to comply with Section 9.14; provided that none of Holdco, the Borrowers nor any Subsidiary will be required to disclose or permit the inspection or discussion of, any document, information or other matter (i) that constitutes trade secrets or proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their representatives or contractors) is prohibited by law, fiduciary duty or any binding agreement or (iii) that is subject to attorney client or similar privilege or constitutes attorney work product; provided further that, in the event that Holdco, a Borrower or any Subsidiary does not provide information in reliance on clause (ii) or (iii) of the foregoing proviso, such Person shall (x) if permitted by applicable Law, provide written notice to the Administrative Agent that such information is being withheld pursuant to the foregoing proviso if such notice can, in the Borrower Representative’s good faith determination, be provided in a manner that would not result in such a violation of law, fiduciary duty or any binding agreement or waiver or impairment of privilege and (y) use commercially reasonable efforts to provide such information in a manner that would not result in such a violation of law, fiduciary duty or any binding agreement or waiver or impairment of privilege; and

(h) following the delivery of the Initial Budget on the Closing Date, by 5:00 p.m. New York City time on every second Wednesday thereafter during the Chapter 11 Cases, deliver an updated


ACTIVE 50727705v3 87

budget, consistent with the form of the Initial Budget, for the then-upcoming thirteen (13) week period to the Administrative Agent (for distribution to the Lenders), in form and substance satisfactory to the Administrative Agent (the “Budget Update”); provided, that, a Budget Update consistent with the form of the Initial Budget shall be in a form satisfactory to the Administrative Agent; and following the delivery of the Initial Budget on the Closing Date, by 5:00 p.m. New York City time beginning on the first Wednesday following the Petition Date, and by 5:00 p.m. New York City time on every Wednesday thereafter, a variance report (the “Variance Report”) setting forth actual cash receipts, disbursements, net cash flows, and a gross Borrowing Base (only for informational purposes) of the Debtors for the applicable Testing Period and setting forth all the variances, on a line item (but only for informational purposes) and aggregate basis, from the amount set forth for such period as compared to the applicable Budget delivered by the Debtors, in each case, on a weekly and cumulative basis (and each such Variance Report shall include explanations for all material variances and shall be certified by the Financial Officer of Holdco); provided that any Variance Report and Budget Update shall contain supporting information reasonably requested by the Administrative Agent; provided, further, that for purposes of the Budget Update and Variance Reports, each weekly period shall begin on Monday and end on Sunday.

In no event shall the Administrative Agent post Compliance Certificates, Borrowing Base Certificates, other certificates or budgets to Public Lenders.

The Borrowers hereby acknowledge that (a) the Administrative Agent will make available to the Lenders materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Holdco, the Borrowers or their Subsidiaries, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower Representative hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that are to be made available to Public Lenders; (x) by marking Borrower Materials “PUBLIC”, the Borrower Representative shall be deemed to have authorized the Administrative Agent and the Lenders to treat the Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent the Borrower Materials constitute Information, they shall remain subject to the provisions of Section 9.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information” (it being understood that the Borrower Representative shall be under no obligation to mark any Borrower Materials “PUBLIC”). Notwithstanding the foregoing, to the extent the Borrower Representative has had a reasonable opportunity to review, the following Borrower Materials shall be deemed to be marked “PUBLIC”, unless the Borrower Representative notifies the Administrative Agent promptly that any such document contains material non-public information: (1) the Loan Documents, (2) notification of changes in the terms of the Loans and (3) the financial statements delivered pursuant to Section 5.01(b).

Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrowers or their securities for purposes of United States Federal or state securities laws.


ACTIVE 50727705v3 88

THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE ADMINISTRATIVE AGENT DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.

Section 5.02 Notices of Material Events. The Borrower Representative will furnish to the Administrative Agent (for distribution to each Lender through the Administrative Agent) prompt written notice of a Responsible Officer of Holdco’s or the Borrowers’ obtaining knowledge of any of the following:

(a) the occurrence of any Default or Event of Default, except to the extent the Administrative Agent shall have furnished the Borrower Representative written notice thereof;

(b) the filing or commencement of, or any written threat or notice of intention of any Person to file or commence, any action, suit, litigation or proceeding, whether at law or in equity by or before any Governmental Authority, (i) against any Loan Party that could reasonably be expected to result in a Material Adverse Effect and (ii) with respect to the DIP Facility and any Loan Documents; and

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

Each notice delivered under this Section shall be accompanied by a written statement of a Responsible Officer of the Borrower Representative setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto. Documents required to be delivered pursuant to this Section 5.02 may be delivered electronically in accordance with Section 5.01.

Section 5.03 Cash Management.

(a) Each Loan Party shall, and shall cause their Subsidiaries to, (i) maintain a cash management system as in effect on the Petition Date and as required by the Orders and as authorized by the Bankruptcy Court pursuant to orders approving the first day motions filed by the Loan Parties, (ii) ensure that all of its Account Debtors and other obligors forward payment of the amounts owed by them directly to an Approved Account Bank, and (iii) deposit or cause to be deposited promptly all of their Cash Receipts (other than Cash Receipts constituting Term Priority Collateral) from such Account Debtors (including those sent directly by their Account Debtors to a Grantor) and other amounts constituting ABL Priority Collateral into an Approved Deposit Account at one of the Approved Account Banks.

(b) Each Loan Party shall, in the ordinary course of business, cause to be collected from the Account Debtor named in each of its Accounts, as and when due (including, without limitation, amounts which are delinquent and such amounts to be collected in accordance with customary collection procedures) any and all Cash Receipts (other than Cash Receipts constituting Term Priority Collateral), and apply forthwith upon receipt thereof all such Cash Receipts to the outstanding balance of such Account. Except as otherwise directed by the Collateral Agent, any Loan Party may in the ordinary course of business or as the Loan Party may determine in accordance with reasonable business practices as adjustments to amounts owing under its Accounts, allow (i) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which such Loan Party finds appropriate in accordance with reasonable business judgment, (ii) a refund or credit due as a result of returned or damaged


ACTIVE 50727705v3 89

merchandise or improperly performed services or for other reasons which such Loan Party finds appropriate in accordance with reasonable business judgment and (iii) such other adjustments necessary or desirable in the Loan Party’s reasonable business judgment.

(c) For each Deposit Account noted by an asterisk “*” on Schedule 3.24 attached hereto (and excluding, for the avoidance of doubt, the Excluded Accounts) (collectively, the “Material Bank Accounts”), the respective Loan Party shall establish and maintain a Deposit Account Control Agreement with the Collateral Agent and the applicable Approved Deposit Bank, meeting the requirements of the following Section 5.03(d) or otherwise in form and substance reasonably acceptable to the Collateral Agent. For each Deposit Account (other than any Excluded Account) established after the date hereof, the respective Loan Party shall use commercially reasonable efforts to cause the financial institution with which the Deposit Account is maintained to execute and deliver to the Collateral Agent, at the time of, or within sixty (60) days after the request of the Collateral Agent, establishment of the respective Deposit Account (as such date may be extended from time to time by the Collateral Agent in its sole discretion), a Deposit Account Control Agreement meeting the requirements of the following Section 5.03(d) or otherwise in form and substance reasonably acceptable to the Collateral Agent, and the applicable Loan Party shall furnish a supplement to Schedule 3.24 with respect to the respective Deposit Account.

(d) Each Deposit Account Control Agreement covering Material Bank Accounts shall provide, among other things, that the Approved Account Bank will comply with any instructions (a “Cash Dominion Trigger Notice”) originated by the Collateral Agent directing the disposition of the funds in such Material Bank Account (in each case, net of any minimum balance as may be required to be kept in the subject Deposit Account or Securities Account, as the case may be, by the institution at which such Deposit Account or Securities Account, as applicable, is maintained) without further consent by the applicable Loan Party. If any bank with which a Deposit Account (other than an Excluded Account) is maintained refuses to, or does not, enter into such a Deposit Account Control Agreement within the applicable time period specified in this Agreement , then the respective Loan Party shall, at the request of the Collateral Agent close the respective Deposit Account and transfer all balances therein to another Deposit Account meeting the requirements of this Section 5.03 within thirty (30) days (as such date may be extended from time to time by the Collateral Agent in its reasonable discretion) of such request.

(e) In the event that, notwithstanding the provisions of this Section, any Loan Party receives or otherwise has dominion and control of any Cash Receipts (other than Cash Receipts constituting Term Priority Collateral) that are intended to be deposited into a Material Bank Account, such Cash Receipts shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into a Material Bank Account subject to a Deposit Account Control Agreement or remitted to the Administrative Agent’s Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.

(f) [Reserved].

(g) [Reserved].

(h) [Reserved].

Section 5.04 Existence; Conduct of Business. Holdco will, and will cause each Subsidiary to, do or cause to be done all things reasonably necessary to obtain, preserve, renew and keep in full force and effect its legal existence (except as otherwise permitted hereunder) except to the extent that failure to do so would not reasonably be expected to result in a Material Adverse Effect; provided that the foregoing shall not prohibit any transaction otherwise permitted hereunder.


ACTIVE 50727705v3 90

Section 5.05 Payment of Taxes. Subject to the Budget, Holdco will, and will cause each Subsidiary to, pay all material Tax liabilities (including in their capacity as a withholding agent), before any penalty accrues thereon, except where (a)(i) any such payment is being contested in good faith by appropriate proceedings and (ii) Holdco or such Subsidiary has set aside on its books adequate reserves or other appropriate provision with respect thereto in accordance with GAAP or (b) the failure to make payment would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

Section 5.06 Maintenance of Properties. Except if the failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, Holdco will, and will cause each Subsidiary to, keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted and casualty or condemnation excepted, provided that the foregoing shall not prohibit any transaction otherwise permitted hereunder.

Section 5.07 Insurance. Holdco will, and will cause each Subsidiary to, maintain, with financially sound and reputable insurance companies, (a) material insurance in such amounts (after giving effect to any self-insurance reasonable and customary for similarly-situated Persons engaged in the same or similar business) and against such risks as is (i) customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations as reasonably determined by management of Holdco or (ii) considered adequate by Holdco. Holdco will use commercially reasonable efforts to, no later than thirty (30) days (as such period may be extended in the reasonable discretion of the Administrative Agent) after the Closing Date (or the date any such insurance is obtained, renewed or extended in the case of insurance obtained, renewed or extended after the Closing Date), cause all material property and casualty insurance policies with respect to DIP Collateral to be endorsed or otherwise amended to include a lender’s loss payable, mortgagee or additional insured, as applicable, endorsement, or otherwise reasonably satisfactory to the Administrative Agent.

Section 5.08 Books and Records; Inspection and Audit Rights; Asset Appraisals and Field Exams.

(a) Holdco will, and it will cause each Subsidiary to, keep proper books of record and account in which full, true and correct entries (in all material respects) are made of all material financial transactions in relation to its business and activities including, without limitation, bank statements and evidence of all deposits into and withdrawals from any DIP Term Controlled Account. Holdco will, and will cause each Subsidiary to, permit any representatives designated by the Administrative Agent, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its directors, officers, and independent public accountants (subject to such accountants’ customary policies and procedures), all at the expense of the Borrowers, and all at such reasonable times and as often as reasonably requested. The Administrative Agent shall provide Holdco the opportunity to participate in any discussions with any such independent accountants.

(b) Holdco will, and will cause each Subsidiary to cooperate with the Administrative Agent to permit the Administrative Agent and each of its duly authorized representatives to conduct field exams (the “Field Exams”) and to obtain appraisals (the “Asset Appraisals”) from a third-party appraiser reasonably acceptable to the Borrower Representative and the Administrative Agent with respect to the ABL Priority Collateral (collectively, the “Asset Appraisals and Field Exams”) which shall be limited to (i) two (2) Field Exams in any period of twelve (12) consecutive months, and (ii) two (2) Asset Appraisals of each type of Collateral consisting of ABL Priority Collateral in any period of twelve (12) consecutive months; provided that following the occurrence and during the continuation of an Event of Default, such Asset Appraisals and Field Exams may be conducted and/or obtained as many times as the Administrative Agent shall determine in its Permitted Discretion (but not more than (A) three (3) times annually for Field


ACTIVE 50727705v3 91

Exams and (B) three (3) times annually for Asset Appraisals); provided that any Asset Appraisal and Field Exam conducted in connection with a Permitted Acquisition shall be in addition to any Asset Appraisals and Field Exams required pursuant to this Agreement. The Borrowers shall reimburse and/or pay to the Administrative Agent the reasonable and documented out-of-pocket fees, charges and expenses in connection with the Field Exams and Asset Appraisals permitted by this Section 5.08(b), as follows (1) a fee of $1,000 per day, per examiner, plus reasonable and documented out-of-pocket expenses (including travel, meals, and lodging) for each Field Exam of the Loan Parties performed by personnel employed by the Administrative Agent, and (2) the reasonable and documented out-of-pocket fees or charges paid or incurred by the Administrative Agent if it elects to employ the services of one or more third Persons to perform Field Exams and/or Asset Appraisals of the Loan Parties, to establish electronic collateral reporting systems, to appraise the Collateral consisting of ABL Priority Collateral, or any portion thereof, in each case, subject to this Section 5.08(b).

Section 5.09 Compliance with Laws. Holdco will, and will cause each Subsidiary to, comply with all Requirements of Law with respect to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

Section 5.10 Use of Proceeds.

(a) The proceeds of the Initial Revolving Borrowing will be used, directly or indirectly, by the Borrowers on the Closing Date in the manner provided for in accordance with the definition of the term “Permitted Initial Revolving Borrowing”.

(b) The proceeds of the Loans shall be used to provide working capital, for general corporate purposes and to fund the Chapter 11 Cases, subject to the Budget (including Permitted Variances) and the terms and conditions of this Agreement and the Orders, including, without limitation, to (i) provide working capital and for other general corporate purposes of the Debtors; (ii) fund the costs of the administration of the Chapter 11 Cases (including professional fees and expenses) and the consummation of the Debtors’ Bankruptcy Plan; and (iii) fund interest, fees, and other payments contemplated in respect of the DIP Facility. Without in any way limiting the foregoing, no DIP Collateral, DIP Proceeds, or any portion of the Carve-Out may be used directly or indirectly by any of the Debtors, the Committee, if any, or any trustee or other estate representative appointed in the Chapter 11 Cases (or any successor case) or any other person or entity (or to pay any professional fees, disbursements, costs or expenses incurred in connection therewith): (a) to seek authorization to obtain liens or security interests that are senior to or pari passu with the DIP Liens or the Liens in existence on the Petition Date securing the Prepetition ABL Obligations (the “Prepetition ABL Liens”); or (b) to investigate (including by way of examinations or discovery proceedings), prepare, assert, join, commence, support or prosecute any action for any claim, counter-claim, action, proceeding, application, motion, objection, defense, or other contested matter seeking any order, judgment, determination or similar relief against, or adverse to the interests of, in any capacity, any of the Agents, the Lenders, or the Prepetition ABL Secured Parties, and each of their respective officers, directors, controlling persons, employees, agents, attorneys, affiliates, assigns, or successors of each of the foregoing (all in their capacities as such) (collectively, the “Released Parties”), with respect to any transaction, occurrence, omission, action or other matter (including formal discovery proceedings in anticipation thereof), including, without limitation, (i) any claims or causes of action arising under chapter 5 of the Bankruptcy Code; (ii) any so-called “lender liability” claims and causes of action; (iii) any action with respect to the validity, enforceability, priority and extent of, or asserting any defense, counterclaim, or offset to, the Obligations, the Superpriority DIP Claims, the DIP Liens, the Loan Documents, the Prepetition ABL Liens, the Prepetition ABL Loan Documents, or the Prepetition ABL Obligations; (iv) any action seeking to invalidate, modify, set aside, avoid or subordinate, in whole or in part, the Obligations or the Prepetition ABL Obligations; (v) any action seeking to modify any of the rights, remedies, priorities, privileges, protections and benefits granted to either (A) the Agents or the Lenders


ACTIVE 50727705v3 92

hereunder or under any of the Loan Documents, or (B) the Prepetition ABL Agents or the Prepetition ABL Lenders under any of the Prepetition ABL Loan Documents (in each case, including, without limitation, claims, proceedings or actions that might prevent, hinder or delay any of the Agents’ or the Lenders’ assertions, enforcements, realizations or remedies on or against the DIP Collateral in accordance with the applicable Loan Documents and the Orders); or (vi) objecting to, contesting, or interfering with, in any way, the Agents’ and the Lenders’ enforcement or realization upon any of the DIP Collateral once an Event of Default (as defined herein) has occurred; provided, however, that no more than $[50,000] in the aggregate of the DIP Collateral, DIP Proceeds, or the Carve-Out, may be used by the Committee, if any, to investigate claims and/or liens of the Prepetition ABL Agents and Prepetition ABL Lenders under the Prepetition ABL Credit Agreement.

(c) No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.

Section 5.11 Execution of Guaranty and Security Documents after the Closing Date.

(a) Subject to Sections 5.12(b) and 5.12(d), in the event that any Person becomes a Subsidiary after the Closing Date (other than any Subsidiary for so long as it is an Excluded Subsidiary) or any Subsidiary ceases to be an Excluded Subsidiary, the Borrower Representative or other applicable Loan Parties will promptly (and in no event later than twenty (20) days thereafter or such later date as the Required Lenders may agree in their reasonable discretion) notify Administrative Agent of that fact and cause such Subsidiary to execute and deliver to the Administrative Agent counterparts of the Guaranty, the Security Agreement and each other applicable Security Document (including the applicable intercreditor agreements) and to take all such further actions and execute all such further documents and instruments as required by the Security Agreement and each other Security Document to secure the Obligations for the benefit of the Secured Parties (including all actions necessary to cause such DIP Lien to be duly perfected to the extent required by such Security Document, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent). In addition, as and to the extent provided in the Security Agreement (subject to all applicable exceptions and limitations therein and herein), the applicable Loan Party shall deliver to the Collateral Agent all certificates, if any, representing Equity Interests of such Subsidiary (accompanied by undated stock powers, duly endorsed in blank) as required thereunder.

(b) Subject to Sections 5.12(b) and (d), in the event that any Person becomes a Subsidiary after the Closing Date (other than any Subsidiary for so long as it is an Excluded Subsidiary), concurrently with the execution and delivery of counterparts to the Guaranty and the Security Agreement pursuant to Section 5.11(a), such Subsidiary shall deliver to the Administrative Agent, (i) certified copies of such Subsidiary’s Organizational Documents or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of the applicable Subsidiary, and (ii) a certificate executed on behalf of such Subsidiary by the secretary or similar officer of such Subsidiary as to (a) the fact that the attached resolutions of the Governing Body of such Subsidiary approving and authorizing the execution, delivery and performance of such Loan Documents are in full force and effect and have not been modified or amended and (b) the incumbency and signatures of the officers of such Subsidiary executing such Loan Documents.

Section 5.12 Further Assurances.

(a) Subject to Section 5.11 and Sections 5.12(b) and (d) and the terms, conditions and provisions of the Security Documents applicable to such Loan Party, the Borrower Representative shall, and shall cause the other Loan Parties to, promptly upon reasonable request by the Administrative Agent or the Collateral Agent (i) correct any jointly identified material defect or error that may be discovered in


ACTIVE 50727705v3 93

the execution, acknowledgment, filing or recordation of any Security Document or other document or instrument relating to any DIP Collateral and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent or the Collateral Agent may reasonably request from time to time, and in order to carry out more effectively the purposes thereof (including to add any assets or property that become DIP Collateral on or after the Closing Date), in each case, to the extent required by this Agreement and the Security Documents.

(b) Notwithstanding anything in this Agreement or any Security Document to the contrary: (i) neither the Administrative Agent nor the Collateral Agent shall take, and the Loan Parties shall not be required to grant, a security interest in any Excluded Property and (ii) any security interest required to be granted or any action required to be taken, including to perfect such security interest, shall be subject to the same exceptions and limitations as those set forth in the Security Documents.

(c) [Reserved].

(d) Notwithstanding anything in this Agreement or any Security Document to the contrary, the Administrative Agent may, in its sole discretion, grant extensions of time for the satisfaction of any of the requirements under Section 5.11 and Section 5.12 in respect of any particular DIP Collateral or any particular Subsidiary if it determines that the satisfaction thereof with respect to such DIP Collateral or such Subsidiary cannot be accomplished without undue expense or unreasonable effort or due to factors beyond the control of Holdco and the Subsidiaries by the time or times at which it would otherwise be required to be satisfied under this Agreement or any Security Document.

(e) By its signature hereto, each Loan Party hereby authorizes the Collateral Agent to, in connection with, and to the extent contemplated by, this Agreement, and subject to the Orders, file against such Loan Party, one or more financing, continuation or amendment statements pursuant to the UCC in form and substance satisfactory to the Required Lenders (which statements may have a description of DIP Collateral which is broader than that set forth herein, including without limitation a description of DIP Collateral as “all assets’ and/or “all personal property” of such Loan Party).




Section 5.16 Compliance with Environmental Laws. Except where non-compliance would not reasonably be expected to result in a Material Adverse Effect, Holdco will, and will cause each Subsidiary to: (a) comply in all material respects, with all Environmental Laws, including obtaining and complying with any permit, license or other approval required thereunder; and (b) conduct any investigation, study, sampling and testing, and undertake any cleanup, response or other corrective action required under Environmental Laws for any release of Hazardous Materials in violation of Environmental Law at any properties currently owned, leased or operated by it; provided, however, that neither Holdco nor any Subsidiary shall be required to undertake any of the obligations above to the extent that its obligation to do so is being contested in good faith or where the failure to undertake such obligation would not reasonably be expect to result in a Material Adverse Effect.

Section 5.17 ERISA. Furnish to the Administrative Agent (a) as soon as possible after, and in any event within twenty (20) Business Days after any Responsible Officer of any Loan Party knows or has reason to know that, any ERISA Event has occurred that, alone or together with any other ERISA Event could reasonably be expected to result in a Material Adverse Effect, a statement of a Financial Officer of the Borrower Representative setting forth details as to such ERISA Event and the action, if any,


ACTIVE 50727705v3 94

that the Loan Parties propose to take with respect thereto, and (b) upon request at reasonable times by the Administrative Agent, copies of (i) each Schedule SB (Actuarial Information) to the annual report (Form 5500 Series) filed by any Loan Party or any ERISA Affiliate with the Internal Revenue Service with respect to each Plan; (ii) the most recent actuarial valuation report for each Plan; (iii) all notices received by any Loan Party or any ERISA Affiliate from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; (iv) such other documents or governmental reports or filings relating to any Plan as the Administrative Agent shall reasonably request; and (v) copies of any notices or other documents described in Section 101(k) or 101(l) of ERISA that any Loan Party or its ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if any Loan Party or its ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the applicable Loan Party or ERISA Affiliate shall promptly after the Closing Date make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof.

Section 5.18 Post-Closing Covenants. The Borrower Representative agrees to deliver, or cause to be delivered, to the Administrative Agent, in form and substance reasonably satisfactory to the Required Lenders, the items described on Schedule 5.18 hereof on or before the dates specified with respect to such items, or such later dates as may be agreed to by the Required Lenders in their reasonable discretion. Notwithstanding anything in this Agreement or in the other Loan Documents to the contrary, to the extent any representation and warranty in any Loan Document would not be true because the actions set forth in this Section 5.18 were not taken on the Closing Date, the respective representation and warranty shall not be required to be true and correct in all material respects until the time the respective action is taken (or was required to be taken) in accordance with this Section 5.18.

Section 5.19 Milestones. Each of Holdco, the Borrowers and the Guarantors covenants and agrees with each Lender that, so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest on each Loan, all fees and all other expenses or amounts payable under any Loan Document have been paid in full in cash (other than contingent obligations not yet due and payable), each of Holdco, the Borrowers and the Guarantors shall and shall cause each of the Subsidiaries to ensure that each of the milestones set forth below is achieved in accordance with the applicable timing referred to below (or such later dates as may be approved in writing by the Required Lenders in their reasonable discretion):

(a) The Debtors shall have commenced solicitation on the Bankruptcy Plan by 11:59 pm (ET) on May 31, 2020 (commencing solicitation by email being sufficient; provided that solicitation materials are sent by mail on June 1, 2020).

(b) Promptly following the date the RSA is effective and, in any event, no later than 11:59 pm (ET) on June 3, 2020, the Debtors shall file the Chapter 11 Cases (for the avoidance of doubt, commencement of the Chapter 11 Cases remains subject to approval of the board of directors or other governing bodies of the Debtors).

(c) The Debtors’ filing with the Bankruptcy Court, on or within twenty-four (24) hours of the Petition Date, the Bankruptcy Plan, which shall be in form and substance reasonably acceptable to the Required Lenders and, solely with respect to terms and provisions affecting the rights, protections, duties or obligations of the Administrative Agent or the Prepetition Term Agent, the Administrative Agent or the Prepetition Term Agent, as applicable, and for which the Debtors shall have solicited and obtained the requisite consent to the Bankruptcy Plan by the Requisite Consenting Term A Lenders or requested and obtained authority from the Bankruptcy Court to complete solicitation within twenty (20) days from the Petition Date.


ACTIVE 50727705v3 95

(d) The Debtors’ filing with the Bankruptcy Court, on or within twenty-four (24) hours of the Petition Date, of a disclosure statement relating to the Bankruptcy Plan, and all related schedules, supplements, exhibits and orders (as applicable), in form and substance reasonably satisfactory to the Administrative Agent at the direction of the Required Lenders (the “Disclosure Statement”).

(e) The Bankruptcy Court shall have entered the (i) Interim Order and (ii) an order approving and authorizing the Term DIP Facility, in each case, in form and substance reasonably acceptable to the Required Lenders, in each case on or before three (3) Business Days following the Petition Date.

(f) The Debtors shall have received a Term DIP Final DIP Loan Commitment Letter from one or more Lenders (or such other third parties after approval by the Required Lenders) by the Term DIP Final DIP Loan Commitment Letter Deadline.

(g) The Bankruptcy Court shall hold the combined hearing on the Bankruptcy Plan and Disclosure Statement on or before thirty-seven (37) calendar days following the Petition Date.

(h) The Bankruptcy Court shall have entered the Final Order on or before thirty-seven (37) calendar days following the Petition Date.

(i) The Bankruptcy Court’s entry of an order, in form and substance reasonably satisfactory to the Administrative Agent at the direction of the Required Lenders, approving the Disclosure Statement (the “Disclosure Statement Order”), on or before forty (40) calendar days following the Petition Date.

(j) The Bankruptcy Court’s entry of an order, in form and substance reasonably satisfactory to the Administrative Agent at the direction of the Required Lenders and, solely with respect to terms and provisions affecting the rights, protections, duties or obligations of the Agents or the Prepetition Term Agents, the Agents or the Prepetition Term Agents, as applicable, confirming the Bankruptcy Plan (the “Confirmation Order”) on or before forty (40) calendar days following the Petition Date.

(k) The effective date (the “Effective Date”) of the Bankruptcy Plan having occurred not later than fifty-four (54) calendar days following the Petition Date.

Section 5.20 Bankruptcy Covenants. Notwithstanding anything in the Loan Documents to the contrary, the Debtors shall comply with all material covenants, terms and conditions and otherwise perform all obligations set forth in the Orders in all material respects.

Section 5.21 Chapter 11 Cases.

(a) Each Debtor shall deliver or cause to be delivered for review and comment, as soon as commercially reasonable and in any event at least [two (2) Business Days] (or as soon thereafter as is reasonably practicable under the circumstance) prior to filing, upon request, all material pleadings, motions and other documents (provided that any of the foregoing relating to the DIP Facility shall be deemed material) to be filed on behalf of the Debtors with the Bankruptcy Court to GT and shall consult in good faith with such counsel regarding the form and substance of any such proposed filing. If not otherwise provided by the Bankruptcy Court’s electronic docketing system, the Borrowers shall provide (x) copies to the Administrative Agent of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of the Debtors with the Bankruptcy Court, distributed by or on behalf of the Debtors to any Committee, filed with respect to the Chapter 11 Cases or filed with respect to any Loan Document and (y) such other reports and information as the Administrative Agent may, from


ACTIVE 50727705v3 96

time to time, reasonably request. In connection with the Chapter 11 Cases, the Debtors shall give the proper notice for (x) the motions seeking approval of the Loan Documents and the Orders and (y) the hearings for the approval of the Orders. The Borrowers and the other Debtors shall give, on a timely basis as specified in the Orders, all notices required to be given to all parties specified in the Orders.

(b) Starting in the first week following the Closing Date, and thereafter every other week until the payment in full in cash of the Obligations (other than contingent obligations not yet due and payable), the Borrowers will participate in a conference call with the Agents and the Lenders and their representatives, consultants, and agents, at such mutually convenient dates and times to be proposed by the Agents upon reasonable advance notice, and will use commercially reasonable efforts to cause available senior members of management and any investment bankers and other advisors of Holdco and its Subsidiaries, as applicable or as requested by the Agents or such Lenders, to participate in such calls for the purpose of discussing the status of the financial, collateral, and operational condition, businesses, liabilities, assets, and prospects of the Borrowers and their Subsidiaries and any sale, refinance or other strategic transaction efforts; provided, that each Borrower acknowledges that such calls scheduled as frequently as once per week shall not be unreasonable. Upon the Administrative Agent’s reasonable request, and subject to any confidentiality restrictions, Holdco and its Subsidiaries shall promptly provide copies of all non-privileged material written materials and reports (in each case excluding drafts) produced by Holdco and its Subsidiaries and shared with third parties in connection with any sale, refinance, or other strategic transaction efforts, and any written indications of interest, letters of intent and commitment letters received by Holdco and its Subsidiaries relating to such sale, refinance, or other strategic transaction efforts of Holdco and its Subsidiaries; provided, that such materials may be redacted to the extent information contained therein would adversely affect any attorney-client privilege or accountant-client privilege, and further provided that only final versions of such documents shall be provided. Without limiting the foregoing, each Borrower agrees to notify the Administrative Agent promptly upon such Borrower becoming aware of any material change or development relating to any sale or refinance efforts or to the financial, collateral, or operational condition, businesses, assets, liabilities, or prospects of such Borrower, any of its Affiliates, or any of their respective Subsidiaries.

(c) Each Loan Party shall deliver or cause to be delivered to the Administrative Agent and the Lenders, as soon as commercially reasonable upon receipt of same, copies of any term sheets, proposals, presentations or other material documents, from any Person, related to (i) the restructuring of the Debtors, or (ii) the sale of any material asset of one or all of the Debtors (for the avoidance of doubt, excluding ordinary course asset sales).

(d) Except to the extent permitted (or required) hereunder, under the Orders and under the Budget, no Loan Party shall, without the express prior written consent of the Administrative Agent or pursuant to an order of the Bankruptcy Court after notice and a hearing, use the DIP Proceeds or cash DIP Collateral to make any Prepetition Payment; provided, that the Loan Parties shall be permitted to use the DIP Proceeds or cash DIP Collateral to make Prepetition Payments to critical vendors in an amount not to exceed amounts set forth in the Budget (other than those critical vendors that are approved in writing by the Administrative Agent) subject to Bankruptcy Court approval.

(e) Subject to the Budget, all Professional Costs at any time paid by the Loan Parties, or any of them, shall be paid by the Loan Parties in accordance with the limitation and procedures set forth in the Loan Documents.

Section 5.22 Budget Matters. The Borrowers hereby acknowledge and agree that any Budget Update provided to the Administrative Agent and the Lenders shall not amend and supplement the applicable approved Budget until the Administrative Agent delivers a notice (which may be delivered by electronic mail) to the Borrower Representative stating that the Administrative Agent has approved of


ACTIVE 50727705v3 97

such Budget Update in accordance with Section 5.01(h); provided, that if the Administrative Agent does not deliver a notice of approval to the Borrower Representative, then the existing approved Budget shall continue to constitute the applicable approved Budget until such time as the subject Budget Update is agreed to among the Borrowers and the Administrative Agent in accordance with this Section 5.22. Once such Budget Update is so approved in writing by the Administrative Agent, it shall supplement or replace the prior approved Budget, and shall thereafter constitute the approved Budget.

Section 5.23 Retention of Consultants; Communications with Accountants and other Financial Advisors.

(a) There shall be no material modifications to the compensation (excluding any decreases in compensation but including any other modification in compensation) for the engagement of the Consultants or the appointment and/or replacement of any Consultants without the consent of the Required Lenders except as set forth in the Budget. Among other things, the Consultants shall assist the Loan Parties with the preparation of the Budget and the other financial and DIP Collateral reporting required to be delivered to the Required Lenders pursuant to this Agreement and the Orders, and with approval of all requests for Borrowing and all disbursements by the Borrower.

(b) The Borrower shall provide the Agents, the Lenders, and their respective representatives reasonable access to their independent certified public accountants, appraisers, financial advisors, investment bankers and consultants (including the Consultants) through regular meetings or conference calls at times and locations to be mutually agreed, which have been engaged from time to time by the Loan Parties, and authorizes and agrees to instruct those accountants, appraisers, financial advisors, investment bankers and consultants to communicate to the Agents, the Lenders and their respective representatives’ information relating to each Loan Party with respect to the business, results of operations, prospects and financial condition of such Loan Party. The Borrower acknowledge and agree that the Loan Parties and their representatives will reasonably cooperate with the Consultants and any Lender Group Consultant.

(c) Each Loan Party acknowledges that the Agents and Lenders shall each be permitted to engage such outside consultants and advisors, including, but not limited to GT as counsel to the Agents and the Lenders (each such party, a “Lender Group Consultant”), for the sole benefit thereof, as applicable, as the Agents or the Lenders each may determine to be necessary or appropriate, in their respective reasonable discretion. Each Loan Party covenants and agrees that (i) such Loan Party shall provide its reasonable cooperation with any Lender Group Consultant (including, without limitation, providing reasonable access to such Loan Party’s business, books and records and senior management at times and locations to be mutually agreed); (ii) all costs and expenses of any such Lender Group Consultant shall be expenses (subject to limitations regarding legal expenses provided in Section 9.03) required to be paid by the Loan Parties under Section 9.03 hereof; and (iii) all reports, determinations and other written and verbal information provided by any Lender Group Consultant shall be confidential and no Loan Party shall be entitled to have access to same.

(d) On each Monday (or, in the event that such day is not a Business Day then on the Business Day immediately following) during the Chapter 11 Cases (until such time as the Obligations have been repaid in full in cash), the Borrowers’ senior management and professionals shall host a telephonic meeting for the Lenders and their professionals at which the Borrowers’ senior management and professionals shall provide an update to the Lenders (and make themselves available for questions) with respect to the financial and operating performance of the Loan Parties and their estates (including, but not limited to, the Variance Report), and the progress of the Chapter 11 Cases.


ACTIVE 50727705v3 98

Section 5.24 Location of Inventory. Other than Inventory in-transit or being handled by Freight Forwarders, Holdco will, and will cause each Subsidiary to, keep its Inventory (other than Inventory in-transit) only at the locations identified on (i) in the case of Inventory other than “factory fee” Inventory, Schedule 3.22(b)(i), and (ii) in the case of “factory fee” Inventory, Schedule 3.22(b)(ii); provided that the Borrowers may amend Schedule 3.22(b)(i) and Schedule 3.22(b)(ii) so long as such amendment occurs by written notice to the Administrative Agent promptly (but in any case within ten (10) days) after such Inventory is moved to such new location and so long as such new location is within the continental United States or such other jurisdictions as may be acceptable to the Administrative Agent in its Permitted Discretion.

ARTICLE VI

Negative Covenants

From and after the Closing Date and until the Termination Date, the Loan Parties (and, with respect to the covenant contained in Section 6.06, only Holdco) covenants and agrees with the Lenders, the Administrative Agent and the Issuing Banks that:

Section 6.01 Indebtedness; Certain Equity Securities.

(a) Holdco will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:

(i) Indebtedness created under the Loan Documents and Indebtedness incurred under the Prepetition ABL Credit Agreement;

(ii) Indebtedness existing on the Petition Date;

(iii) Guarantees by Holdco or any Subsidiary of Indebtedness of Holdco or any other Subsidiary, to the extent that (A) the Indebtedness so Guaranteed is otherwise permitted by this Section, (B) if Indebtedness being guaranteed is subordinated in right of payment to the Obligations under the Loan Documents, such Guarantees permitted under this clause (iii) are subordinated to the applicable Loan Party’s Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (C) none of the ABL DIP Loans or the Prepetition ABL Loans is Guaranteed by any Subsidiary of Holdco unless such Subsidiary is or, prior to, or substantially concurrent with, issuing such Guarantee, becomes a Loan Party;

(iv) [reserved];

(v) [reserved];

(vi) [reserved];

(vii) Indebtedness owed to any Person (including obligations in respect of letters of credit, bankers’ acceptances or similar instruments issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty, liability insurance, self-insurance, including pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business or consistent with past practice;

(viii) Indebtedness in respect of or guarantee of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees, workers’ compensation claims, letters of credit, bank guarantees and banker’s acceptances,


ACTIVE 50727705v3 99

warehouse receipts or similar instruments and similar obligations (other than in respect of other Indebtedness for borrowed money) including, without limitation, those incurred to secure health, safety and environmental obligations, in each case provided in the ordinary course of business or consistent with past practice;

(ix) Indebtedness in respect of swap agreements (including forward contracts) that, other than forward contracts that are entered into in the ordinary course of business and in compliance with the Budget, are in existence on the Petition Date; provided, that there shall be no modifications or increases to the Indebtedness thereunder;

(x) [reserved];

(xi) [reserved];

(xii) Indebtedness consisting of “Cash Management Obligations”, and other Indebtedness in respect of treasury, depositary, cash management and netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and similar arrangements or otherwise in connection with securities accounts and deposit accounts, in each case, in the ordinary course of business;

(xiii) Indebtedness consisting of (a) the financing of insurance premiums or (b) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business or consistent with past practice;

(xiv) [reserved];

(xv) [reserved];

(xvi) Indebtedness incurred pursuant to (i) the Term DIP Facility in an aggregate principal amount not to exceed $50,000,000, plus amounts paid-in-kind and capitalized to the principal balance in accordance with the terms of the Term DIP Credit Agreement, and (ii) the Prepetition Term Credit Agreement in an aggregate principal amount (including issued and undrawn letters of credit issued thereunder) not to exceed $[__________];

(xvii) [reserved];

(xviii) [reserved];

(xix) [reserved];

(xx) endorsement of instruments or other payment items for deposit in the ordinary course of business;

(xxi) [reserved];

(xxii) [reserved];

(xxiii) [reserved];

(xxiv) to the extent constituting Indebtedness, Guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of Holdco and its Subsidiaries;


ACTIVE 50727705v3 100

(xxv) performance Guarantees of Holdco and its Subsidiaries primarily guaranteeing performance of contractual obligations of Holdco or Subsidiaries to a third party and not primarily for the purpose of guaranteeing payment of Indebtedness;

(xxvi) [reserved];

(xxvii) obligations in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any Subsidiary of Holdco to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States;

(xxviii) [reserved]; and

(xxix) Indebtedness of (a) those Receivables Facilities set forth on Schedule 1.01(a) and (b) non-recourse factorings consummated in the ordinary course of business, consistent with past practices and to the extent approved by the Administrative Agent (“Permitted Factoring”).

Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest, premium, fees or expenses, in the form of additional Indebtedness or preferred stock shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.01.

Section 6.02 Liens. Holdco will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, except:

(a) Liens pursuant to any Loan Document;

(b) Permitted Encumbrances;

(c) any Lien on any property or asset of Holdco or any Subsidiary existing on the Closing Date and set forth on Schedule 6.02(c); provided that (i) such Lien shall not apply to any other property or asset of Holdco or any Subsidiary (other than any replacements of such property or assets and additions and accessions thereto, after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition, or asset of Holdco or any Subsidiary and the proceeds and the products thereof and customary security deposits in respect thereof and in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender) and (ii) such Lien shall secure only those obligations and unused commitment that it secures on the Closing Date and extensions, renewals and replacements thereof so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the obligations being extended, renewed or replaced (plus any accrued but unpaid interest (including any portion thereof which is payable in kind in accordance with the terms of such extended, renewed or replaced Indebtedness) and premium payable by the terms of such obligations thereon and reasonable fees and expenses associated therewith);

(d) [reserved];

(e) [reserved];

(f) Liens (i) of a collecting bank arising in the ordinary course of business under Section 4-208 of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the items being collected upon, (ii) in favor of a banking or other financial institution arising as a matter of law


ACTIVE 50727705v3 101

encumbering deposits or other funds maintained with a financial institution (including the right of set off) and which are within the general parameters customary in the banking industry or (iii) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

(g) Liens representing (i) any interest or title of a licensor, lessor or sublicensor or sublessor under any lease or license permitted by this Agreement, (ii) any Lien or restriction that the interest or title of such lessor, licensor, sublessor or sublicensor may be subject to, or (iii) the interest of a licensee, lessee, sublicensee or sublessee arising by virtue of being granted a license or lease permitted by this Agreement;

(h) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods;

(i) the filing of Uniform Commercial Code (or equivalent) financing statements solely as a precautionary measure in connection with operating leases or consignment of goods;

(j) [reserved];

(k) [reserved];

(l) [reserved];

(m) [reserved];

(n) Liens consisting of customary rights of set-off or banker’s liens on amounts on deposit, to the extent arising by operation of law and incurred in the ordinary course of business;

(o) [reserved];

(p) Liens on insurance policies and the proceeds thereof granted to secure the financing of insurance premiums with respect thereto;

(q) Liens encumbering deposits made to secure obligations arising from contractual or warranty requirements;

(r) [reserved];

(s) Liens granted pursuant to a security agreement between Holdco or any Subsidiary and a licensee of Intellectual Property to secure the damages, if any, of such licensee resulting from the rejection of the licensee of such licensee in a bankruptcy, reorganization or similar proceeding with respect to Holdco or such Subsidiary;

(t) Liens on Indebtedness permitted pursuant to Section 6.01(a)(xvi);

(u) Liens on (i) Indebtedness permitted pursuant to Section 6.01(a)(xxix) or (ii) the Receivables Assets arising in connection with a Receivables Facility;

(v) [reserved];

(w) Liens in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods;

(x) Liens of bailees in the ordinary course of business;


ACTIVE 50727705v3 102

(y) Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of Holdco and its Subsidiaries;

(z) utility and similar deposits in the ordinary course of business;

(aa) [reserved];

(bb) [reserved];

(cc) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks or other financial institutions not given in connection with the incurrence of Indebtedness for borrowed money, (ii) relating to pooled deposit or sweep accounts of Holdco or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Holdco or its Subsidiaries or (iii) relating to purchase orders and other agreements entered into by Holdco or any Subsidiary in the ordinary course of business;

(dd) [reserved];

(ee) [reserved];

(ff) Liens securing any swap agreement pursuant to any Prepetition ABL Loan Document or the Prepetition Term Loan Documents;

(gg) Liens on securities which are the subject of repurchase agreements incurred in the ordinary course of business;

(hh) [reserved];

(ii) [reserved];

(jj) [reserved]; and

(kk) Liens, reservations, limitations, provisos and conditions, if any, expressed in any original grant from the Crown of any real property or any interest therein in Canada.

Section 6.03 Fundamental Changes. Holdco will not, and will not permit any Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate or amalgamate with it. Holdco will not, and will not permit any Subsidiary to, liquidate or dissolve except to the extent agreed to by the Administrative Agent.

Section 6.04 Investments. Holdco will not, and will not permit any Subsidiary to, make any Investments, except:

(a) Subject to Section 5.10, Investments in cash and Cash Equivalents and assets that were Cash Equivalents when such Investment was made;

(b) [reserved];

(c) Investments existing on the Closing Date;

(d) (i) Investments between and among any of the Loan Parties; provided, that to the extent that any such Investments under this clause (d) constitute loans or advances made to any Loan Party, such loans or advances shall be subordinated in right of payment to the Obligations;

(e) [reserved];


ACTIVE 50727705v3 103

(f) Investments made by any Subsidiary that is not a Loan Party in Holdco or any Subsidiary; provided that to the extent that any such Investments constitute loans or advances made to any Loan Party, such loans or advances shall be subordinated in right of payment to the Obligations;

(g) [reserved];

(h) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment or received as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;

(i) [reserved];

(j) [reserved];

(k) Investments resulting from pledges or deposits described in clause (c) or (d) of the definition of the term “Permitted Encumbrances”;

(l) Investments received in connection with the disposition of any asset in accordance with and to the extent permitted by Section 6.05 (other than Section 6.05(d));

(m) receivables or other trade payables owing to Holdco or any Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as Holdco or such Subsidiary deems reasonable under the circumstances;

(n) Investments resulting from Liens permitted under Section 6.02;

(o) Investments in deposit accounts and securities accounts opened in the ordinary course of business;

(p) [reserved];

(q) [reserved];

(r) [reserved];

(s) [reserved];

(t) [reserved];

(u) Investments consisting of endorsements for collection or deposit in the ordinary course of business;

(v) Investments in any Permitted Factoring;

(w) [reserved];

(x) [reserved];

(y) [reserved];

(z) [reserved];


ACTIVE 50727705v3 104

(aa) Investments consisting of or resulting from Indebtedness, Liens, Restricted Payments, fundamental changes and dispositions permitted under Section 6.01 (other than Section 6.01(a)(ii) and (a)(iii)), Section 6.02, Section 6.03, Section 6.05 (other than Section 6.05(d)) and Section 6.08 (other than Section 6.08(a)(xi)), respectively;

(bb) [reserved];

(cc) [reserved];

(dd) [reserved];

(ee) Guarantee obligations of Holdco or any Subsidiary in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any Subsidiary of Holdco to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States;

(ff) [reserved];

(gg) [reserved];

(hh) purchases and acquisitions (including purchases of inventory, equipment, supplies and materials and of services) and the non-exclusive licensing, sublicensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business and consistent with past practices;

(ii) Guarantees by Holdco or any Subsidiary of leases (other than capital leases), contracts, or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;


(kk) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business and consistent with past practices.

Section 6.05 Asset Sales. Holdco will not, and will not permit any Subsidiary to, sell, transfer, lease or otherwise dispose of any asset, including any Equity Interests owned by it, nor will Holdco permit any Subsidiary to issue any additional Equity Interests in such Subsidiary, except, in each case of the foregoing in accordance with the Budget subject to Permitted Variances:

(a) sales, transfers, leases and other dispositions of (i) inventory, goods or services or immaterial assets in the ordinary course of business, (ii) obsolete, worn-out, uneconomic, damaged or surplus property or property that is no longer economically practical or commercially desirable to maintain or used or useful in its business, whether now or hereafter owned or leased (provided any such sale, transfer, lease or other disposition is made in the ordinary course of business consistent with past practice), (iii) cash, Cash Equivalents and other investment securities in the ordinary course of business, and (iv) accounts in the ordinary course of business for purposes of collection;

(b) sales, transfers, leases and other dispositions to Holdco or any Subsidiary (including by contribution, disposition, dividend or otherwise); provided that if the transferor of such property is a Loan Party, then the transferee thereof must be a Loan Party;


ACTIVE 50727705v3 105

(c) the compromise, settlement or write off of Accounts or sales, transfers and other dispositions of Accounts for collection (i) in the ordinary course of business or (ii) for purposes of compromise in bankruptcy or in connection with disputed accounts;

(d) sales, transfers, leases and other dispositions of property to the extent that such property constitutes an Investment permitted by Section 6.04 (other than Section 6.04(l) and (aa)) hereunder;

(e) leases or non-exclusive licenses or subleases or non-exclusive sublicenses entered into in the ordinary course of business and consistent with past practices, to the extent that they do not materially interfere with the business of Holdco and the Subsidiaries;

(f) conveyances, sales, transfers, non-exclusive licenses or non-exclusive sublicenses or other dispositions of Software or other rights in Intellectual Property in the ordinary course of business or pursuant to a research or development agreement in which the counterparty to such agreement receives a license to Software or other Intellectual Property that result from such agreement;

(g) dispositions resulting from any casualty or insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of Holdco or any Subsidiary;

(h) [reserved];

(i) [reserved];

(j) [reserved];

(k) [reserved];

(l) [reserved];

(m) [reserved];

(n) the incurrence of Liens permitted hereunder;

(o) [reserved];

(p) [reserved];

(q) sales or dispositions of Equity Interests of any Subsidiary (other than any Borrower) in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;

(r) samples, including time-limited evaluation software, provided to customers or prospective customers;

(s) [reserved];

(t) [reserved];

(u) Restricted Payments made pursuant to Section 6.08;

(v) [reserved];

(w) [reserved];


ACTIVE 50727705v3 106

(x) [reserved];

(y) [reserved]; and

(z) any Disposition of an account receivable in connection with a Permitted Factoring.

Section 6.06 Permitted Activities of Holdco. Holdco (i) shall not engage in any material business or material activity other than (1) the ownership of all the outstanding Equity Interests in AP Acquisition (or, indirectly through AP Acquisition, other Equity Interests in accordance with clause (ii) below) and activities incidental thereto, (2) activities necessary or advisable to consummate the Transactions, (3) corporate maintenance activities (including the payment and incurrence of taxes and similar administrative expenses associated with being a holding company), (4) [reserved], (ii) shall not own or acquire any material assets (other than Equity Interests of AP Acquisition or any other indirect Subsidiary of Holdco through AP Acquisition, Indebtedness described in clause (i)(4) above and cash and Cash Equivalents), (iii) shall not create, incur, assume or permit to exist any Lien on the Equity Interests of AP Acquisition owned by it, other than DIP Liens under the Loan Documents, Liens permitted by Section 6.02(ee) or non-consensual Liens of the type permitted under Section 6.02, (iv) [reserved], (v) may contribute to the capital of the Borrowers and the other Subsidiaries described in clause (ii) above and guarantee the obligations of the Borrowers and the other Subsidiaries described in clause (ii) above, (vi) may participate in tax, accounting and other administrative matters as a member of the consolidated group of Holdco, (vii) [reserved], (viii) the performance of its obligations with respect to the Loan Documents, the Term DIP Facility Documents, the Prepetition Term Loan Documents, the Prepetition ABL Loan Documents and any other Indebtedness permitted hereunder, (ix) may engage in activities incidental or reasonably related to the foregoing and (x) may engage in any transaction with any Borrower or any Subsidiary to the extent that any Borrower or such Subsidiary is expressly permitted to enter into or consummate such transaction with Holdco under this Article VI.

Section 6.07 Sale Leaseback Transactions. Holdco will not, and will not permit any Subsidiary to, enter into any Sale Leaseback transaction.

Section 6.08 Restricted Payments; Certain Payments of Indebtedness.

(a) Holdco will not, and will not permit any Subsidiary to, declare or make any Restricted Payment, except that:

(i) (A) the Subsidiaries may declare and make Restricted Payments ratably with respect to their Equity Interests and (B) any Subsidiary may make a Restricted Payment to Holdco or any other Subsidiary (so long as, in the case of this clause (B), if the Subsidiary making the Restricted Payment is not wholly-owned (directly or indirectly) by Holdco, such Restricted Payment is made ratably among the holders of its Equity Interests);

(ii) [reserved];

(iii) Subject to the Budget, Holdco and the Subsidiaries may make Restricted Payments at such times and in such amounts (A) as shall be necessary to permit any Parent Entity and Holdco to discharge their respective general corporate and overhead or other expenses (including administrative, legal, accounting and similar expenses provided by third parties, customary salary, commissions, bonus and other benefits payable to officers and employees of Holdco or any Parent Entity and directors fees and director and officer indemnification obligations) incurred in the ordinary course and (B) to the extent not paid to a Governmental Authority by Holdco and/or the Subsidiaries for any Related Taxes;


ACTIVE 50727705v3 107

(iv) Subject to the Budget, Holdco may make payments to any Parent Entity at such times and in such amounts as are necessary to make payments of or on account of (1) monitoring or management or similar fees or transaction fees and (2) reimbursement of out-of-pocket costs, expenses and indemnities, in each case to any Equity Investor or any of its Affiliates, in each case to the extent permitted by Section 6.09;

(v) Subject to the Budget, payments made or expected to be made by Holdco, any Borrower or any Subsidiary in respect of withholding or similar Taxes payable upon exercise of Equity Interests by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing);

(vi) [reserved];

(vii) [reserved];

(viii) [reserved];

(ix) [reserved];

(x) Restricted Payments made to consummate the Transactions;

(xi) Restricted Payments necessary to consummate transactions permitted pursuant to Section 6.03 and to make Investments permitted pursuant to Section 6.04;

(xii) [reserved];

(xiii) [reserved];

(xiv) [reserved];

(xv) [reserved]; and

(xvi) distributions or payments of factoring fees, sales contributions and other transfers of accounts and purchases of accounts pursuant to a Permitted Factoring.

(b) Holdco will not, and will not permit any Subsidiary to make any voluntary payment or other distribution (whether in cash, securities or other property), of or in respect of principal or interest, or such payment by way of the purchase, redemption, retirement, acquisition, cancellation or termination, in each case prior to the final scheduled maturity thereof, of any Indebtedness that is (x) unsecured, (y) contractually subordinated in right of payment to any of the Obligations or (z) Indebtedness that has a Lien on the DIP Collateral that is junior to the DIP Lien on the DIP Collateral securing the Obligations.

Notwithstanding anything else in this Agreement or the other Loan Documents, each of Holdco and the Subsidiaries shall be permitted to make Tax Distributions in accordance with the Budget.

Section 6.09 Transactions with Affiliates. Holdco will not, and will not permit any Subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates except as permitted under the Budget and provided it meets the following exceptions:

(a) transactions at prices and on terms and conditions (taken as a whole) not materially less favorable to Holdco or such Subsidiary than could reasonably be expected to be obtained on an arm’s-length basis from unrelated third parties (as determined in good faith by Holdco);


ACTIVE 50727705v3 108

(b) transactions between or among Holdco and the Subsidiaries (or any entity that becomes a Subsidiary as a result of such transaction) not involving any other Affiliate;

(c) [reserved];

(d) payroll, travel and similar advances to cover matters permitted under Section 6.04;

(e) the payment of reasonable fees and reimbursement of out-of-pocket expenses to directors of Holdco, the Borrowers or any Subsidiary;

(f) subject to the Budget, compensation (including bonuses, restricted equity units and broker/deal fees) and employee benefit arrangements paid to, indemnities provided for the benefit of, and employment and severance arrangements entered into with, directors, officers, managers, consultants or employees of Holdco, the Borrowers or the Subsidiaries in the ordinary course of business or on terms and conditions (taken as a whole) that would be expected to be obtained on an arm’s length basis from unrelated third parties (as determined in good faith by Holdco), including in connection with the Transactions and any other transaction permitted hereunder;

(g) [reserved];

(h) [reserved];

(i) [reserved];

(j) any payments on Indebtedness not prohibited by Section 6.08;

(k) any transaction among Holdco and its Parent Entities, the Borrowers and their Subsidiaries for the sharing of liabilities for taxes so long as the payments made pursuant to such transaction are made by and among the members of Holdco’s or the Borrowers’ “affiliated group” (as defined in the Code); provided that any payments by the Borrowers and their Subsidiaries to Holdco and/or the Parent Entities shall be permitted only to the extent permitted under Section 6.08(a)(iii);

(l) transactions between and among the Borrowers and their Subsidiaries which are in the ordinary course of business and transactions between the Borrowers, Holdco and its direct or indirect shareholders in the ordinary course of business with respect to the Equity Interests in Holdco or any Parent Entity, such as shareholder agreements, registration agreements and including providing expense reimbursement and indemnities in respect thereof;

(m) the Transactions;

(n) [reserved];

(o) [reserved];

(p) transactions set forth on Schedule 6.09, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this covenant or to the extent not more disadvantageous to the Secured Parties in any material respect (taken as a whole);

(q) any customary transaction with a Receivables Facility or a Securitization Subsidiary effected as part of a Qualified Securitization Financing;

(r) [reserved];


ACTIVE 50727705v3 109

(s) payments to or from, and transactions with, joint ventures (to the extent any such joint venture is only an Affiliate as a result of Investments by Holdco and the Subsidiaries in such joint venture);

(t) loans and other transactions by and among Holdco and its Subsidiaries to the extent not prohibited Section 6.06 (other than Section 6.06(x)); and

(u) transactions by Holdco and its Subsidiaries with customers, clients, joint venture partners, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement that are fair to Holdco and the Subsidiaries, as determined in good faith by the board of directors or the senior management of the relevant Person, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party.

Section 6.10 Restrictive Agreements. Holdco will not, and will not permit any Subsidiary to, enter into any agreement, instrument, deed or lease that prohibits, restricts or imposes any condition upon:

(a) the ability of Holdco or any other Loan Party to create, incur or permit to exist any Lien in favor of the Secured Parties (excluding Lender Counterparties) upon any of its Collateral; or

(b) the ability of any Subsidiary to make Restricted Payments or to transfer assets to the Borrowers or any Subsidiary or to make or repay loans or advances to the Borrowers or any Subsidiary,

provided that the foregoing clauses (a) and (b) shall not apply to

(i) restrictions and conditions imposed by any law or any applicable rule, regulation or order, or any request of any Governmental Authority having regulatory authority over Holdco or any of its Subsidiaries;

(ii) restrictions and conditions existing on the Closing Date to the extent permitted hereunder and made in accordance with the Budget;

(iii) [reserved];

(iv) the foregoing shall not apply to customary provisions in leases, licenses and other contracts restricting the assignment, subletting or transfer thereof or other assets subject thereto;

(v) [reserved];

(vi) restrictions created in connection with any Receivables Facility or Qualified Securitization Financing;

(vii) restrictions or conditions set forth in any agreement in effect at any time any Person becomes a Subsidiary; provided that such agreement was not entered into in contemplation of such Person becoming a Subsidiary and the restriction or condition set forth in such agreement does not apply to Holdco or any other Subsidiary;

(viii) customary provisions in shareholders agreements, joint venture agreements, organizational or constitutive documents or similar binding agreements relating to any Joint Venture or non-wholly-owned Subsidiary and other similar agreements applicable to Joint Ventures and non-wholly-owned Subsidiaries and applicable solely to such Joint Venture or non-wholly-owned Subsidiary and the Equity Interests issued thereby;


ACTIVE 50727705v3 110

(ix) any restrictions on cash or other deposits imposed by agreements entered into in the ordinary course of business;

(x) any restrictions regarding licensing or sublicensing by Holdco and its Subsidiaries of Intellectual Property in the ordinary course of business;

(xi) arise in connection with cash or other deposits permitted under Section 6.02 and Section 6.04;

(xii) are restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and

(xiii) comprise restrictions imposed by any agreement governing Indebtedness entered into on or after the Closing Date and permitted under Section 6.01 if the restrictions contained in any such agreement taken as a whole (a) are not materially less favorable to the Secured Parties than the encumbrances and restrictions contained in the Loan Documents (as determined by the Borrower Representative) or (b) either (I) the Borrower Representative determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrowers’ ability to make principal or interest payments required hereunder or (II) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument.

Section 6.11 Fiscal Year. Holdco will not, and will not permit any Subsidiary, to make any change in its fiscal year.

Section 6.12 Conduct of Business.

(a) From and after the Closing Date, Holdco and its Subsidiaries will not engage in any lines of business other than the lines of business of the type engaged in by Holdco and its Subsidiaries on the Closing Date.

(b) Any provision in this Agreement to the contrary notwithstanding, from and after the Closing Date, Holdco and its Subsidiaries will not create or acquire any foreign Subsidiary.

Section 6.13 Amendments to Organizational Documents and Certain Junior Indebtedness. Holdco will not, and will not permit any Subsidiary to, amend, restate, supplement or otherwise modify any of its Organizational Documents. Holdco will not, and will not permit any Subsidiary to, approve, authorize or enter into any amendment of or other modification to the intercreditor or subordination provisions of any Junior Indebtedness with an outstanding principal amount in excess of $100,000 in any manner that is materially adverse to the interests of the Lenders.

Section 6.14 Chapter 11 Claims. Except for the Carve-Out and Permitted Priority Liens and as provided in the Orders, directly or indirectly, incur, create, assume, suffer to exist or permit any administrative expense claim or Lien that is pari passu with or senior to the claims or DIP Liens granted under the Loan Documents, as the case may be, of the Agents and the Lenders against the Loan Parties hereunder or under the Orders, or apply to the Bankruptcy Court for authority to do so.

Section 6.15 Revision of Orders; Applications to Bankruptcy Court; Superpriority Claims. Directly or indirectly, (a) seek, support, consent to or suffer to exist any modification, stay, vacation or amendment of any Order or any other order of the Bankruptcy Court except for (i) any such modification, stay, vacation or amendment that is stayed or reversed with five (5) Business Days, (ii) modifications and amendments that do not affect the interests of the Lenders and (iii) any modifications and amendments agreed to in writing by the Required Lenders, in their sole discretion, (b) apply to the Bankruptcy Court


ACTIVE 50727705v3 111

for authority to take any action prohibited by this Article VI (except to the extent such application and the taking of such action is conditioned upon receiving the written consent of the Administrative Agent (or Collateral Agent, as applicable) and the Required Lenders, in their sole discretion) or (c) seek authorization for, or permit the existence of, any claims other than that of the Secured Parties entitled to superpriority status under section 364(c)(1) of the Bankruptcy Code that is senior or pari passu with the Secured Parties’ claim under section 364(c)(1) of the Bankruptcy Code, except for the Carve-Out.

Section 6.16 Compliance with Budget.

(a) Except as otherwise provided herein or approved by the Administrative Agent, directly or indirectly, (i) use any cash, including the DIP Proceeds, in a manner or for a purpose other than those permitted under this Agreement, the Orders or the Budget subject to Permitted Variances, (ii) make any Prepetition Payment or application for authority to make any Prepetition Payment, other than those permitted by this Agreement, the Orders or the Budget, (iii) permit the actual aggregate disbursements in any Testing Period to exceed the aggregate amount of disbursements in the Budget for such Testing Period by more than the Permitted Variance, (iv) permit the actual aggregate cash receipts (excluding DIP Proceeds that may be deemed a receipt) during any Testing Period to be less than the aggregate amount of such cash receipts in the Budget for such Testing Period by more than the Permitted Variance, and (v) permit the actual aggregate net cash flow during any Testing Period to exceed by more than the Permitted Variance the aggregate net cash flow in the Budget for the Testing Period. For the avoidance of doubt, the line item variance report provided pursuant to Section 5.01(h) hereof is provided for informational purposes only and shall not apply for purposes of this Section 6.16.

(b) So long as an Event of Default is not continuing, and to the extent permitted under the Orders, the Loan Parties are authorized and directed to pay fees and expenses allowed and payable, as applicable, by any interim, procedural, or final order of the Bankruptcy Court (that has not been vacated or stayed, unless the stay has been vacated) under Sections 330 and 331 of the Bankruptcy Code, as the same may be due and payable.

Section 6.17 Minimum Liquidity. The Loan Parties shall maintain Liquidity of at least $7,500,000 at all times.

Section 6.18 Investigation Rights. The Committee (to the extent one is appointed), and any other party in interest with standing, shall have a maximum of the earlier of (A) if a Confirmation Order is entered, the date on which objections to confirmation of the Bankruptcy Plan were due, and (B) no later than (1) for a Committee (to the extent one is appointed), sixty (60) calendar days from the date of the Committee’s appointment, or (2) seventy-five (75) calendar days from the entry of the Interim Order for any other party in interest with requisite standing (the “Investigation Period”) to investigate and commence an adversary proceeding or contested matter, as required by the applicable Federal Rules of Bankruptcy Procedure, and challenge (each, a “Challenge”) the findings, the Debtors’ stipulations, or any other stipulations contained in the Orders, including, without limitation, any challenge to the validity, priority or enforceability of the liens securing the obligations under the Prepetition ABL Loan Documents, or to assert any claim or cause of action against the Prepetition ABL Agents or the Prepetition ABL Lenders arising under or in connection with the Prepetition ABL Loan Documents or the Prepetition ABL Obligations, as the case may be, whether in the nature of a setoff, counterclaim or defense of Prepetition ABL Obligations, or otherwise. The Investigation Period may only be extended with the prior written consent of the Administrative Agent (acting at the direction of the Required Lenders), or pursuant to an order of the Bankruptcy Court. Except to the extent asserted in an adversary proceeding or contested matter filed during the Investigation Period, upon the expiration of such applicable Investigation Period (to the extent not otherwise waived or barred), (i) any and all Challenges or potential challenges shall be deemed to be forever waived and barred; (ii) all of the agreements, waivers, releases, affirmations, acknowledgements and stipulations contained in the Interim Order shall be irrevocably and forever binding


ACTIVE 50727705v3 112

on the Debtors, the Committee and all parties-in-interest and any and all successors-in-interest as to any of the foregoing, including any trustee appointed in a Chapter 7 case, without further action by any party or the Bankruptcy Court; (iii) the Prepetition ABL Obligations shall be deemed to be finally allowed and the Prepetition ABL Liens shall be deemed to constitute valid, binding and enforceable encumbrances, and not subject to avoidance pursuant to the Bankruptcy Code or applicable non-bankruptcy law; and (iv) the Debtors shall be deemed to have released, waived and discharged the Released Parties from any and all claims and causes of action arising out of, based upon or related to, in whole or in part, the Prepetition Term Obligations. Notwithstanding anything to the contrary herein: (x) if any Challenge is timely commenced, the stipulations contained in the Orders shall nonetheless remain binding on all other parties-in-interest and preclusive except to the extent that such stipulations are expressly and successfully challenged in such Challenge; and (y) the Released Parties reserve all of their rights to contest on any grounds any Challenge. For the avoidance of doubt, the Orders shall include language that the investigation rights afforded to the Committee will not constitute the Debtors’ and Lenders recognition, consent, or agreement not to object to, the Committee’s standing to assert any claim or cause of action.

ARTICLE VII

Events of Default

Section 7.01 Events of Default. If any of the following events (any such event, an “Event of Default”) shall occur:

(a) any Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement, when and as the same shall become due and payable;

(b) any Borrower shall fail to pay (i) any interest on any Loan, when and as the same shall become due and payable or (ii) or any fee, charge, cost or expenses payable hereunder or any other Obligation due under this Agreement or any other Loan Document (including any portion thereof that accrues after the commencement of any proceeding seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, regardless of whether allowed or allowable in whole or in part as a claim in any such proceeding), when and as the same shall become due and payable;

(c) any representation, warranty or certification, when taken as a whole, made or deemed made by any Loan Party in any Loan Document shall be false or incorrect in any material respect as of the date made or deemed made;

(d) either any Borrower or Holdco shall default in the performance or compliance of Section 5.01(h), Section 5.02(a), Section 5.08 (solely if any Loan Party refuses to allow the Administrative Agent or its representatives or agents to visit any Loan Party’s properties, inspect its assets or books or records, or examine and make copies of its books and records, in each case as it relates to the ABL Priority Collateral), Section 5.10, Section 5.19, Section 5.20, or in Article VI;

(e) any Loan Party shall default in the performance or compliance of (i) Section 5.01(e)(i), and such default shall continue unremedied and unwaived for a period of ten (10) days after receipt by the Borrower Representative of written notice of such default from the Administrative Agent or the Required Lenders, (ii) Section 5.01(e)(ii), and such default shall continue unremedied and unwaived for a period of five (5) Business Days, (iii) Sections 5.03(a), (c) or (d), and, in each case, such default shall continue unremedied and unwaived for a period of five (5) Business Days, (iv) Section 5.03(e), and such default shall continue unremedied and unwaived for a period of two (2) Business Days or (v) any other term contained in any Loan Document (other than those specified in paragraph (a), (b), (d), (e)(i) or (e)(ii) of this Section 7.01), and such default shall continue unremedied and unwaived for a period of ten (10)


ACTIVE 50727705v3 113

days after receipt by the Borrower Representative of written notice of such default from the Administrative Agent;

(f) Holdco or any Subsidiary shall fail to make any payment beyond all applicable grace periods (whether of principal or interest and regardless of amount) in respect of any Indebtedness incurred after the Petition Date in excess of $1,000,000, when and as the same shall become due and payable after giving effect to any applicable grace periods provided in the applicable instrument or agreement under which such Material Indebtedness was created;

(g) Any Loan Party or any of its Subsidiaries shall (i) default in (x) any payment of principal of or interest on (A) the Term DIP Facility or (B) any Indebtedness incurred after the Petition Date (excluding the Loans) in excess of $1,000,000, or (y) the payment of (A) any Guarantee in respect of the Term DIP Facility or (B) any Guarantee of any Indebtedness incurred after the Petition Date in excess of $1,000,000 in each case referred to in this clause (i) beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness or Guarantee was created; or (ii) default in the observance or performance of any other agreement or condition relating to any Indebtedness (excluding the Loans) or Guarantee referred to in clause (i) above or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice or lapse of time if required, such Indebtedness to become due prior to its stated maturity or such Guarantee to become payable (an “Acceleration”), and such time shall have lapsed and, if any notice (a “Default Notice”) shall be required to commence a grace period or declare the occurrence of an event of default before notice of Acceleration may be delivered, such Default Notice shall have been given and such default shall not have been remedied or waived by or on behalf of such holder or holders;

(h) Other than with respect to the Chapter 11 Cases, (i) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking liquidation, reorganization or other relief in respect of Holdco, any Borrower or any other Subsidiary, or of all or a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the involuntary appointment of a receiver, trustee, custodian, sequestrator, conservator, manager, administrative receiver or similar official for Holdco, any Borrower or any other Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding shall continue undismissed and unstayed for forty five (45) consecutive days without having been dismissed, bonded or discharged or an order of relief is entered in any such proceeding;

(i) Other than with respect to the Chapter 11 Cases, Holdco, any Borrower or any other Subsidiary shall (i) voluntarily commence any proceeding seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of any proceeding or petition described in paragraph (h) of this Section 7.01, (iii) consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, manager, administrative receiver or similar official for Holdco, any Borrower or any other Subsidiary or for all or a substantial part of its assets or (iv) make a general assignment for the benefit of creditors;

(j) any unsatisfied, final, non-appealable judgment(s) for the payment of money in an aggregate amount in excess of $1,000,000 (to the extent not covered by insurance or indemnities as to which the applicable insurance company or third party has not denied coverage) shall be rendered against Holdco or any Subsidiary or any combination thereof and the same shall remain undischarged, unvacated, unbounded and unstayed for a period of forty five (45) consecutive days;


ACTIVE 50727705v3 114

(k) an ERISA Event shall have occurred that would reasonably be expected to result in a Material Adverse Effect;

(l) (i) any of the Loan Documents shall cease for any reason to be in full force and effect, or any Loan Party shall so assert in writing, or (ii) any Lien purported to be created under any Security Document shall cease to be, or shall be asserted by any Loan Party not to be (other than in an informational notice to the Administrative Agent), a valid and perfected (if and to the extent required to be perfected under the applicable Security Document) Lien on a material portion of the DIP Collateral at any time, with the priority required by the applicable Security Document (subject to Liens permitted under Section 6.02), except as a result of the release of a Loan Party or the sale, transfer or other disposition to a Person that is not a Loan Party of the applicable DIP Collateral in a transaction permitted under the Loan Documents or the occurrence of the DIP Termination Date;

(m) at any time after the execution and delivery thereof, any material portion of the Guarantee of the Obligations under the Guarantees or any material provision of any other Loan Document shall for any reason other than the occurrence of the DIP Termination Date or as expressly permitted hereunder or thereunder (including or as a result of a transaction permitted hereunder) cease to be in full force and effect, or any Loan Party shall contest the validity or enforceability in writing or repudiate, rescind or deny in writing that it has any further liability or obligation under any Loan Document other than as a result of the occurrence of the DIP Termination Date, the sale or transfer of such Loan Party or as a result of a transaction permitted hereunder or thereunder;

(n) a Change in Control shall have occurred;

(o) any impairment of the Loan Documents shall have occurred;

(p) the occurrence of any of the following in any Chapter 11 Case:

(i) [reserved];

(ii) termination of the RSA by the Debtors or the Requisite Consenting Term A Lenders (other than as a result of a breach of the RSA by any Consenting Lender (as defined in the RSA) that would constitute a Company Termination Event (as defined in the RSA);

(iii) filing of a plan of reorganization under Chapter 11 of the Bankruptcy Code by the Debtors (other than the Bankruptcy Plan) that has not been consented to by the Required Lenders;

(iv) filing of a plan of reorganization by the Debtors (other than the Bankruptcy Plan) that does not propose to indefeasibly repay the Obligations in full in cash, unless otherwise consented to by the Administrative Agent;

(v) any of the Debtors shall file a pleading seeking to vacate or modify any of the Orders over the objection of the Administrative Agent;

(vi) entry of an order without the prior written consent of the Required Lenders amending, supplementing or otherwise modifying the Orders (other than, in respect of the Interim Order, the entry of the Final Order);

(vii) reversal, vacatur or stay of the effectiveness of the Orders except to the extent stayed or reversed within five (5) Business Days (and, other than, in respect of the Interim Order, the entry of the Final Order);

(viii) a failure by the Loan Parties to comply with any material provision of the Orders (except where such failure would not materially and adversely affect the Lenders or the Agents);


ACTIVE 50727705v3 115

(ix) dismissal of the Chapter 11 Case of a Debtor with material assets or conversion of the Chapter 11 Case of a Debtor with material assets to a case under Chapter 7 of the Bankruptcy Code;

(x) appointment of a Chapter 11 trustee or examiner with enlarged powers relating to the operation of the business of the Borrower or any other Loan Party;

(xi) any sale of all or substantially all assets of the Debtors pursuant to section 363 of the Bankruptcy Code, unless (i) the proceeds of such sale are applied to indefeasibly satisfy the Obligations in full in cash or (ii) such sale is supported by the Administrative Agent;

(xii) failure to meet a Milestone, unless extended or waived pursuant by the prior written consent of the Administrative Agent;

(xiii) granting of relief from the Automatic Stay in the Chapter 11 Cases to permit foreclosure or enforcement on assets of the Borrower or any other Loan Party, in each case, with a fair market value in excess of $1,000,000;

(xiv) the Debtors’ filing of (or supporting another party in the filing of) a motion seeking entry of, or the entry of an order by the Bankruptcy Court, granting any superpriority claim or lien (except as contemplated herein) which is senior to or pari passu with the Lenders’ claims under the DIP Facility;

(xv) the Debtors’ filing of (or supporting another party in the filing of) a motion seeking entry of an order approving any key employee incentive plan, employee retention plan, or comparable plan, except as provided in the Bankruptcy Plan, without the prior written consent of the Required Lenders;

(xvi) the Debtors shall seek, or shall support any other person’s motion seeking (in any such case, verbally in any court of competent jurisdiction or by way of any motion or pleading with the Bankruptcy Court, or any other writing to another party in interest by Debtors) to challenge the extent, validity, perfection, priority, or enforceability of any of the Lien or obligations of the parties under the Prepetition ABL Loan Documents;

(xvii) payment of or granting adequate protection with respect to prepetition debt, other than as expressly provided herein or in the Orders or consented to by the Administrative Agent;

(xviii) expiration or termination of the period provided by section 1121 of the Bankruptcy Code for the exclusive right to file a plan, with respect to a Debtor with material assets;

(xix) cessation of the DIP Liens or the Superpriority DIP Claims to be valid, perfected and enforceable in all respects;

(xx) Permitted Variances under the Budget are exceeded for any period of time without consent of or waiver by the Administrative Agent;

(xxi) any uninsured judgments are entered with respect to any post-petition non-ordinary course claims against any of the Debtors or any of their respective affiliates in a combined aggregate amount in excess of $1,000,000 unless stayed;

(xxii) other than in the ordinary course and consistent with past practice, any Debtor asserting any right of subrogation or contribution against any other Debtor until all borrowings under the DIP Facility are paid in full in cash and the commitments are terminated;


ACTIVE 50727705v3 116

(xxiii) an order shall be entered in any of the Chapter 11 Cases, without the prior written consent of the Administrative Agent (i) to permit any administrative expense or any claim (now existing or hereafter arising of any kind or nature whatsoever) to have administrative priority equal or superior to the Superpriority DIP Claim (other than the Carve-Out) or (ii) granting or permitted grant of a Lien that is equal in priority or senior to the DIP Liens (other than the Carve-Out and Liens granted to secure the Term DIP Facility pursuant to the Orders);

(xxiv) other than the Confirmation Order confirming the Bankruptcy Plan acceptable to the Administrative Agent, an order shall be entered by the Bankruptcy Court confirming a plan of reorganization or liquidation in any of the Chapter 11 Cases which does not indefeasibly pay in full in cash the Obligations upon the effective date of such plan; or

(xxv) the payment of any prepetition claim other than (i) as consented to by the Administrative Agent, (ii) as authorized by the Budget, (iii) permitted under the terms of this Agreement, or (iv) as authorized by the Bankruptcy Court pursuant to the “first day” or “second day” orders or the Orders and reflected in the Budget;

then, and in every such event, and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by written notice to the Borrower, its counsel, the United States Trustee and counsel for any statutory committee, terminate the DIP Facility, declare the Obligations in respect thereof to be immediately due and payable and, subject to Section 7.02, exercise all rights and remedies under the Loan Documents and the Orders.

Section 7.02 Remedies upon an Event of Default.

(a) If any Event of Default occurs and is continuing, then, subject to the terms of the Orders, the automatic stay provisions of section 362 of the Bankruptcy Code shall be vacated and modified to the extent necessary to permit the Administrative Agent and/or Collateral Agent, as applicable, and the Lenders to exercise all rights and remedies provided for in the Loan Documents and: (i) upon the occurrence and during the continuance of any Event of Default under the Loan Documents, to (A) cease making any Loans under the DIP Facility to the Loan Parties and (B) declare all Obligations to be immediately due and payable; and (ii) unless the Bankruptcy Court orders otherwise during such period, upon the occurrence of an Event of Default and the giving by the Administrative Agent at the direction of the Required Lenders of five (5) business days prior written notice (the “Termination Notice”; and such notice period, the “Remedies Notice Period” provided that such period may be extended by written agreement by the Debtors and the Administrative Agent (acting at the direction of the Required Lenders), in their respective discretion), delivered to counsel to the Debtor, with copies to the United States Trustee and counsel to the Committee (if any), in each case subject in all respects to the Carve-Out and the proviso below, including without limitation the Debtors’ rights to fund the Carve-Out Reserves, to (A) immediately terminate the Debtors’ use of any cash collateral, (B) freeze monies or balances in the Debtors’ accounts (and, with respect to this Agreement and the DIP Facility, sweep all funds contained in the Approved Deposit Accounts and DIP ABL Controlled Accounts); (C) set-off any and all amounts in accounts maintained by the Debtors with the Administrative Agent or the Lenders against the Obligations, or otherwise enforce any and all rights against the DIP Collateral in the possession of any of the applicable Lenders, including, without limitation, disposition of the DIP Collateral solely for application towards the Obligations; and (D) take any other actions or exercise any other rights or remedies permitted under the Orders, the Loan Documents or applicable law to effect the repayment of the Obligations; provided, however, that during the Remedies Notice Period, the Debtors shall be permitted to continue to use proceeds of the DIP Facility and cash collateral to (1) fund the Carve-Out Reserves and, (2) to pay (x) accrued wages and any other critical employee-related expenses and (y) subject to the consent of the Administrative Agent (at the direction of the Required Lenders) any other critical business-related expenses, necessary to operate the Debtors’ business or preserve the DIP Collateral as determined by the Debtors in their reasonable discretion and in


ACTIVE 50727705v3 117

good faith; provided, further, that the only basis on which the Debtors, the Committee or any other party-in-interest shall have the right to contest a Termination Notice shall be with respect to the validity of the Event of Default giving rise to such Termination Notice (i.e., whether or not such Event of Default has occurred or not, or whether or not it has been cured within the cure periods expressly set forth in the applicable Loan Documents). Upon and after the delivery of the Termination Notice, the Debtors and the Administrative Agent consent to a hearing on an expedited basis to consider whether the Automatic Stay may be lifted so that the Agents and the Lenders may exercise all of their respective rights and remedies in respect of the DIP Collateral in accordance with the Orders and the Loan Documents, or to consider any other appropriate relief (including the Debtors’ use of cash collateral on a nonconsensual basis).

(b) Except as expressly provided above in this Section 7.02, to the maximum extent permitted by applicable law, presentment, demand, protest and all other notices of any kind are hereby expressly waived.

(c) Each of the Loan Parties hereby waives any right to seek relief under the Bankruptcy Code, including under section 105 thereof, to the extent such relief would restrict or impair the rights and remedies of the Administrative Agent and the Lenders set forth in the Orders and in the Loan Documents.


Section 7.04 Application of Proceeds.

(a) Subject to the ABL Intercreditor Agreement, upon the occurrence and during the continuation of an Application Event and except as otherwise provided herein with respect to Defaulting Lenders, all proceeds received by the Administrative Agent or the Collateral Agent in respect of any sale of, collection from, or other realization upon all or any part of the DIP Collateral under any Loan Document shall be applied by the Administrative Agent as follows:

(i) First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest) payable to each Agent in its capacity as such, until paid in full;

(ii) Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders, ratably among them in proportion to the amounts described in this clause Second payable to them, until paid in full;

(iii) Third, to payment of to pay interest due in respect of all Protective Advances, until paid in full;

(iv) Fourth, to payment of principal of all Protective Advances, until paid in full;

(v) Fifth, to payment of any costs or expenses (including cost or expense reimbursements) or indemnities then due to any of the Lenders under the Loan Documents, ratably among the Lenders in proportion to the respective amounts described in this clause Fifth payable to them, until paid in full;

(vi) Sixth, to payment of any fees or premiums then due to any of the Lenders under the Loan Documents, ratably among the Lenders in proportion to the respective amounts described in this clause Sixth payable to them, until paid in full;


ACTIVE 50727705v3 118

(vii) Seventh, to payment of that portion of the Obligations (other than Protective Advances and Bank Product Obligations) constituting accrued and unpaid interest (including, but not limited to, post-petition interest), ratably among the Lenders in proportion to the respective amounts described in this clause Seventh payable to them, until paid in full;

(viii) Eighth, to payment of that portion of the Obligations constituting unpaid principal, unreimbursed LC Disbursements or face amounts of the Loans, and for the account of the Issuing Bank, and to Cash Collateralize that portion of Obligations comprised of the aggregate undrawn amount of Letters of Credit, ratably among the Secured Parties in proportion to the respective amounts described in this clause Eighth held by them, until paid in full;

(ix) Ninth, to the payment of all other Secured Obligations of the Loan Parties (other than Obligations owed to Defaulting Lenders) that are due and payable to the Administrative Agent and the other Secured Parties on such date (including being paid, ratably, to the Lender Counterparties on account of Swap Termination Value under Secured Swap Agreements, Secured Cash Management Obligations and all other amounts then due and payable in respect of Bank Product Obligations, with any balance to be paid to the Administrative Agent, to be held by the Administrative Agent, for the ratable benefit of the Lender Counterparties, as cash collateral (which cash collateral may be released by the Administrative Agent to the applicable Lender Counterparty and applied by such Lender Counterparty to the payment or reimbursement of any amounts due and payable with respect to Bank Product Obligations owed to the applicable Lender Counterparty as and when such amounts first become due and payable and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied in full, the cash collateral held by the Administrative Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 7.04(a), beginning with tier (i) hereof), ratably based upon the respective aggregate amounts of all such Secured Obligations owing to the Administrative Agent and the other Secured Parties on such date, until paid in full;

(x) Tenth, to pay any Secured Obligations owed to Defaulting Lenders, ratably among the Defaulting Lenders in proportion to the respective amounts described in this clause Tenth payable to them, until paid in full; and

(xi) Last, the balance, if any, after all of the Secured Obligations have been paid in full, to the Borrower Representative or as otherwise required by law.

Subject to Section 2.05(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Eighth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the Borrowers.

Notwithstanding the foregoing, amounts received from any Guarantor that is not an “Eligible Contract Participant” (as defined in the Commodity Exchange Act) shall not be applied to the obligations that are Excluded Swap Obligations. Lender Counterparty not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article VIII hereof for itself and its Affiliates as if a “Lender” party hereto.


ACTIVE 50727705v3 119

ARTICLE VIII

The Administrative Agent

Section 8.01 Appointment of Agents. Each of the Lenders and the Issuing Bank (and by entering into a Lender Counterparty Agreement, each Lender Counterparty shall be deemed to designate, appoint, and authorize) hereby irrevocably appoints Wells Fargo to act on its behalf as the Administrative Agent and Collateral Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Unless otherwise specifically set forth herein, the Collateral Agent shall have all the rights and benefits of the Administrative Agent set forth in this Article.

The Collateral Agent shall act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a Lender Counterparty on behalf of itself and its Affiliates or potential Lender Counterparty on behalf of itself and its Affiliates) and the Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent to act as the agent of such Lender and the Issuing Bank for purposes of acquiring, holding and enforcing any and all DIP Liens on DIP Collateral granted by any of the Loan Parties pursuant to the Security Documents and the Orders to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto (and by entering into a Lender Counterparty Agreement, each Lender Counterparty shall be deemed to designate, appoint, and authorize). In this connection, the Collateral Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 8.05 for purposes of holding or enforcing any DIP Lien on the DIP Collateral (or any portion thereof) granted under the Security Documents and the Orders, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Section 9.03 (as though such co-agents, subagents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.

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

Section 8.03 Exculpatory Provisions. The Administrative Agent and Collateral Agent shall not have any duties or obligations except those expressly set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing the Administrative Agent and Collateral Agent, (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent or Collateral Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent


ACTIVE 50727705v3 120

to liability or that is contrary to any Loan Document or applicable law and (c) shall not except as expressly set forth herein or in the other Loan Documents, have any duty to disclose, and shall not be liable to the Lenders for the failure to disclose, any information relating to Holdco, the Borrowers or any Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent, Collateral Agent or any of their respective Affiliates in any capacity. The Administrative Agent and Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary or as the Administrative Agent shall believe in good faith shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct (to the extent determined in a final non-appealable order of a court of competent jurisdiction). The Administrative Agent and Collateral Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdco, the Borrowers, a Lender or the Issuing Bank, and the Administrative Agent and Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or express conditions set forth in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or the creation, perfection or priority of any DIP Lien purported to be created by the Security Documents and the Orders or that the DIP Liens granted to the Collateral Agent pursuant to any Security Document and the Orders have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, (v) the value or the sufficiency of any DIP Collateral or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. The Administrative Agent shall have no obligation to monitor whether any amendment or waiver to any Loan Document has properly become effective or is permitted hereunder or thereunder except to the extent expressly agreed to by the Administrative Agent in such amendment or waiver.

In no event shall any Agent be liable for any failure or delay in the performance of their respective obligations under this Agreement or any related documents because of circumstances beyond such Agent’s control, including, but not limited to, a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, flood, war (whether declared or undeclared), civil or military disturbances or hostilities, nuclear or natural catastrophes, political unrest, explosion, severe weather or accident, earthquake, terrorism, fire, riot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Agreement or any related documents, or the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any other causes beyond the Agent’s control whether or not of the same class or kind as specified above.

For the avoidance of doubt, each Agent’s rights, protections, indemnities and immunities provided herein shall apply to Agent for any actions taken or omitted to be taken under any Loan Document and any other related agreements in any of its capacities.

Section 8.04 Reliance by Administrative Agent and Collateral Agent. Each of the Administrative Agent and Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it


ACTIVE 50727705v3 121

in good faith to be genuine and to have been signed or sent or otherwise authenticated by the proper Person. Each of the Administrative Agent and Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability to the Lenders for relying thereon. Each of the Administrative Agent and Collateral Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. In determining compliance with any condition hereunder to the making of a Loan, a Swing Line Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender, the Swing Line Lender or the Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender, the Swing Line Lender or the Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender, the Swing Line Lender or the Issuing Bank prior to the making of such Loan, Swing Line Loan or the issuance of such Letter of Credit.

Section 8.05 Delegation of Duties. Each of the Administrative Agent and Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Documents by or through any one or more sub-agents appointed by the Administrative Agent. Each of the Administrative Agent and Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent or Collateral Agent.

Section 8.06 Resignation or Removal of Agents; Successor, Administrative Agent and Collateral Agent. The Administrative Agent and Collateral Agent may at any time resign by giving thirty (30) days’ prior written notice of its resignation to the Lenders, the Swing Line Lenders, the Issuing Bank and the Borrower Representative (and without notice to the Lender Counterparties). Any such resignation by such Administrative Agent or Collateral Agent hereunder shall also constitute, to the extent applicable, its resignation as an Issuing Bank or Swing Line Lender, as applicable in which case such resigning Agent (i) shall not be required to issue any further Letters of Credit or provide any Swing Line Loans hereunder and (ii) shall maintain all of its rights as Issuing Bank with respect to any Letters of Credit issued by it and as Swing Line Lender with respect to any outstanding Swing Line Loans issued or made by it, prior to the date of such resignation. If the Administrative Agent is subject to an Agent-Related Distress Event, either the Required Lenders or the Borrower Representative may upon ten (10) days’ prior notice remove the Administrative Agent or Collateral Agent, as the case may be. Upon receipt of any such notice of resignation or delivery of such removal notice, the Required Lenders shall have the right, with the consent of the Borrower Representative (such consent shall not be unreasonably withheld if such successor is a commercial bank with a combined capital and surplus of at least $5 billion and otherwise may be withheld in the Borrower Representative’s sole discretion; provided that such consent shall not be required at any time that a Specified Event of Default shall have occurred and be continuing), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent or Collateral Agent, as applicable, gives notice of its resignation or the delivery of such removal notice, then (a) in the case of a retirement, the retiring Administrative Agent may on behalf of the Lenders, the Swing Line Lender and the Issuing Bank, appoint a successor Administrative Agent or Collateral Agent, as applicable, meeting the qualifications set forth above (including the consent of the Borrower Representative) or (b) in the case of a removal, the Borrower Representative may, after consulting with the Required Lenders, appoint a successor Administrative Agent or Collateral Agent, as applicable, meeting the qualifications set forth above; provided that (x) in the case of a retirement, if such


ACTIVE 50727705v3 122

Administrative Agent shall notify the Borrower Representative and the Lenders that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Required Lenders notify the Borrower Representative that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with such notice and (i) the retiring or removed Administrative Agent or Collateral Agent, as applicable, shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent or Collateral Agent, as applicable, on behalf of the Lenders or the Issuing Bank under any of the Loan Documents, the retiring or removed Administrative Agent or Collateral Agent, as applicable, shall continue to hold such collateral security, as bailee, until such time as a successor Administrative Agent or Collateral Agent, as applicable, is appointed), (ii) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender, the Swing Line Lender and the Issuing Bank directly (and each Lender and the Swing Line Lender and the Issuing Bank will cooperate with the Borrower Representative to enable the Borrower Representative to take such actions), until such time as the Required Lenders or the Borrower Representative, as applicable, appoint a successor Administrative Agent, as provided for above in this Section 8.06 and (iii) the Borrowers and the Lenders agree that in no event shall the retiring Administrative Agent and Collateral Agent or any of their respective Affiliates or any of their respective officers, directors, employees, agents advisors or representatives have any liability to the Loan Parties, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the failure of a successor Administrative Agent or Collateral Agent to be appointed and to accept such appointment. Upon the acceptance of a successor’s appointment as Administrative Agent or Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent or Collateral Agent, as applicable, and the retiring Administrative Agent or Collateral Agent, as applicable, shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Article). The fees payable by the Borrowers to a successor Administrative Agent or Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Representative and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article VIII and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent or Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent or Collateral Agent was acting as Administrative Agent or Collateral Agent.

Section 8.07 Non-Reliance on Agents and Other Lenders. Each Lender, the Swing Line Lender and the Issuing Bank (and by entering into a Lender Counterparty Agreement, each Lender Counterparty shall be deemed to acknowledge) acknowledges that it has, independently and without reliance upon the Administrative Agent, the Collateral Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender, the Swing Line Lender and the Issuing Bank also acknowledges (and by entering into a Lender Counterparty Agreement, each Lender Counterparty shall be deemed to acknowledge) that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Document or any related agreement or any document furnished thereunder.

Section 8.08 No Other Duties. Notwithstanding anything herein to the contrary, none of the Agents listed on the cover page hereof shall have any powers, duties or responsibilities under any Loan


ACTIVE 50727705v3 123

Document, except in its capacity, as applicable, as the Administrative Agent, Collateral Agent, or a Lender or an Issuing Bank hereunder.

Section 8.09 DIP Collateral and Guaranty Matters. Each Lender hereby agrees, and each holder of any Revolving Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders in accordance with the provisions of this Agreement or the Security Documents, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. Each of the Lenders and the Lender Counterparties, irrevocably authorize each of the Administrative Agent and the Collateral Agent,

(a) to release any DIP Lien on any property granted to or held by the Administrative Agent or the Collateral Agent (or any sub-agent thereof) under any Loan Document (i) upon the DIP Termination Date, (ii) that is sold or to be sold or transferred as part of or in connection with any sale or other transfer permitted hereunder or under any other Loan Document to a Person that is not a Loan Party, (iii) that constitutes Excluded Property, (iv) if the property subject to such DIP Lien is owned by a Loan Party, upon the release of such Loan Party from its Guaranty otherwise in accordance with the Loan Documents, (v) as to the extent, if any, provided in the Security Documents or (vi) if approved, authorized or ratified in writing in accordance with Section 9.02;

(b) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction or designation permitted hereunder;

(c) [reserved]; and

(d) enter into the ABL Intercreditor Agreement, the Term Intercreditor Agreement and other subordination or intercreditor agreements with respect to Indebtedness to the extent the Administrative Agent or Collateral Agent is otherwise contemplated herein as being a party to such intercreditor or subordination agreement, in each case in form and substance reasonably satisfactory to the Administrative Agent and/or Collateral Agent and the Borrower Representative (it being understood that junior Liens are not required to be pari passu with other junior Liens, and that Indebtedness secured by junior Liens may secured by Liens that are pari passu with, or junior in priority to, other Liens that are junior to the DIP Liens securing the Obligations); and

(e) to enter into and sign for and on behalf of the Lenders as Secured Parties the Security Documents to which they are party for the benefit of the Lenders and the other Secured Parties.

Upon request by the Administrative Agent or the Collateral Agent at any time, the Required Lenders (or such greater number of Lenders as may be required pursuant to Section 9.02(b)(v) or (vi)) will confirm in writing the Administrative Agent’s or the Collateral Agent’s, as the case may be, authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under the Guaranty pursuant to this Section 8.09. In each case as specified in this Section 8.09, the Administrative Agent and the Collateral Agent will (and each Lender hereby authorizes the Administrative Agent and the Collateral Agent to), at the Borrowers’ expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of DIP Collateral from the assignment and security interest granted under the Security Documents or to subordinate its interest in such item, or to release such Loan Party from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 8.09.


Section 8.11 Withholding Tax. To the extent required by any applicable Requirements of Law (as determined in good faith by the Administrative Agent), the Administrative Agent may withhold from


ACTIVE 50727705v3 124

any payment to any Lender under any Loan Document an amount equivalent to any applicable withholding Tax. If the IRS or any other Governmental Authority of any jurisdiction asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered, was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding Tax ineffective), such Lenders shall indemnify the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Loan Parties and without limiting the obligation of the Loan Parties to do so) fully for, and shall make payable in respect thereof within ten (10) days after demand therefor, all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including penalties, additions to Tax and interest, together with all expenses incurred, including legal expenses, allocated staff costs and any out of pocket expenses. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Section 8.11. The agreements in this Section 8.11 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations. For purposes of this Section 8.11, the term “Lender” includes any Issuing Bank.

Section 8.12 Indemnification of Agents. Whether or not the transactions contemplated hereby are consummated, each Lender shall indemnify upon demand each Agent and their respective Related Parties (to the extent not reimbursed by or on behalf of the Borrowers and without limiting the obligations of any Loan Party to do so) on a pro rata basis (determined as of the time that the applicable payment is sought based on each Lender’s ratable share at such time) and hold harmless each Agent and their respective Related Parties against any and all Indemnified Liabilities incurred by it; provided that (a) no Lender shall be liable for payment to any Agent and their respective Related Parties of any portion of such Indemnified Liabilities to the extent determined in a final, nonappealable judgment of a court of competent jurisdiction to have resulted from such Agent and their respective Related Parties’ own gross negligence or willful misconduct (and no action taken in accordance with the directions of the Required Lender shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section) and (b) to the extent any Issuing Bank is entitled to indemnification under this Section solely in its capacity and role as a Issuing Bank, as applicable, only the Revolving Lenders shall be required to indemnify such Issuing Bank, as the case may be, in accordance with this Section (determined as of the time that the applicable payment is sought based on each Revolving Lender’s Revolving Exposure thereof at such time). In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person. Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including the fees, disbursements and other charges of counsel) incurred by the Administrative Agent in connection with preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights and responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such costs or expenses by or on behalf of the Borrowers.

Section 8.13 Administrative Agent and Collateral Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment or composition under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent and Collateral Agent (irrespective of whether the principal of any Loan or LC Exposure shall then be due and payable as herein expressed or by declaration or otherwise and


ACTIVE 50727705v3 125

irrespective of whether the Administrative Agent or Collateral Agent shall have made any demand on the Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the amount of the principal and interest owing and unpaid in respect of the Loans, the Swing Line Loans, LC Exposures and all other Obligations, in each case, that are owing and unpaid by such Loan Party and to file such other documents as may be necessary or advisable in order to have such claims of the Lenders (and the Lender Counterparties), the Issuing Bank, the Administrative Agent and Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Swing Line Loans, the Issuing Bank, the Administrative Agent and Collateral Agent and their respective agents and counsel and all other amounts due the Lenders, the Swing Line Lender, the Issuing Bank, the Administrative Agent and Collateral Agent under Section 2.12 and Section 9.03 which are payable by such Loan Party) allowed in such judicial proceeding;

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

(c) any custodian, receiver, assignee, trustee, liquidator, sequestrator, examiner or other similar official in any such judicial proceeding is hereby authorized by each Lender, the Swing Line Lender and the Issuing Bank (and by entering into a Lender Counterparty Agreement, each Lender Counterparty), to make such payments to the Administrative Agent and, if the Administrative Agent shall consent, to the making of such payments directly to the Lenders, the Swing Line Lender and the Issuing Bank (or the Lender Counterparties), to pay to the Administrative Agent (and Lenders, the Swing Line Lender and the Issuing Bank, as applicable) any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Section 2.12 and Section 9.03 in each case reimbursable or payable by such Loan Party.

Nothing contained herein shall be deemed to authorize the Administrative Agent or Collateral Agent to authorize or consent to or accept or adopt on behalf of any Lender, the Swing Line Lender or the Issuing Bank (or any Lender Counterparty), any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender, the Swing Line Lender or the Issuing Bank (or any Lender Counterparty), to authorize the Administrative Agent and Collateral Agent to vote in respect of the claim of any Lender, the Swing Line Lender or the Issuing Bank, or in any such proceeding, in each case subject to Section 14(d) of the Security Agreement.

Section 8.14 Lender’s Representations, Warranties and Acknowledgements.

(a) Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of Holdco and its Subsidiaries in connection with the Borrowing of the Loans hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Holdco and its Subsidiaries. Neither the Administrative Agent nor the Collateral Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and neither the Administrative Agent nor the Collateral Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to the Lenders. Each Lender acknowledges that neither the Administrative Agent, the Collateral Agent nor any Related Party of the Administrative Agent or the Collateral Agent has made any representation or warranty to it. Except for documents expressly required by any Loan Document to be transmitted by the Administrative Agent and/or the Collateral Agent to the Lenders, neither the Administrative Agent nor the Collateral Agent shall have any duty or responsibility (either express or implied) to provide any Lender with any credit or other


ACTIVE 50727705v3 126

information concerning any Loan Party, including the business, prospects, operations, property, financial and other condition or creditworthiness of any Loan Party or any Affiliate of a Loan Party, that may come in to the possession of the Administrative Agent, the Collateral Agent or any of its Related Parties.

(b) By becoming a party to this Agreement, each Lender:

(i) is deemed to have requested that the Administrative Agent furnish such Lender, promptly after it becomes available, a copy of each field examination report respecting any Loan Party or its Subsidiaries (each, a “Report”) prepared by or at the request of the Administrative Agent, and the Administrative Agent shall so furnish each Lender with such Reports,

(ii) expressly agrees and acknowledges that the Administrative Agent does not (A) make any representation or warranty as to the accuracy of any Report, and (B) shall not be liable for any information contained in any Report,

(iii) expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that the Administrative Agent or other party performing any field examination will inspect only specific information regarding Loan Parties and their Subsidiaries and will rely significantly upon Loan Parties’ and their Subsidiaries’ books and records, as well as on representations of Loan Parties’ personnel,

(iv) agrees to keep all Reports and other material, non-public information regarding Loan Parties and their Subsidiaries and their operations, assets, and existing and contemplated business plans in a confidential manner in accordance with this Agreement, and

(v) without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (A) to hold the Administrative Agent and any other Lender preparing a Report harmless from any action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying Lender has made or may make to the Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a loan or loans of the Borrowers, and (B) to pay and protect, and indemnify, defend and hold the Administrative Agent, and any such other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including, attorneys’ fees and costs) incurred by the Administrative Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

(c) In addition to the foregoing, (i) any Lender may from time to time request of the Administrative Agent in writing that the Administrative Agent provide to such Lender a copy of any report or document provided by any Loan Party or its Subsidiaries to the Administrative Agent that has not been contemporaneously provided by such Loan Party or such Subsidiary to such Lender, and, upon receipt of such request, the Administrative Agent promptly shall provide a copy of same to such Lender, (ii) to the extent that the Administrative Agent is entitled, under any provision of the Loan Documents, to request additional reports or information from any Loan Party or its Subsidiaries, any Lender may, from time to time, reasonably request the Administrative Agent to exercise such right as specified in such Lender’s notice to the Administrative Agent, whereupon the Administrative Agent promptly shall request of Loan Parties the additional reports or information reasonably specified by such Lender, and, upon receipt thereof from such Loan Party or such Subsidiary, the Administrative Agent promptly shall provide a copy of same to such Lender, and (iii) any time that the Administrative Agent renders to the Borrowers a statement regarding the Loan Account, the Administrative Agent shall send a copy of such statement to each Lender.

(d) Each Lender, by delivering its signature page to this Agreement or an Assignment and Assumption and funding its Loan, shall be deemed to have acknowledged receipt of, and consented to


ACTIVE 50727705v3 127

and approved, each Loan Document and each other document required to be approved by Administrative Agent, the Required Lenders or the Lenders, as applicable, on the Closing Date.

Section 8.15 Chapter 11 Cases; Bankruptcy.

(a) Nothing contained herein shall be deemed to (x) require any Agent to file or prove any claim in the Chapter 11 Cases, or (y) authorize any Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

(b) The Lenders hereby irrevocably authorize the Agents, to (a) consent to, credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the DIP Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363 of the Bankruptcy Code and any similar laws in any other jurisdictions in which a Loan Party is subject, (b) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the DIP Collateral at any sale or other disposition thereof conducted under the provisions of the Uniform Commercial Code, including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code, or (c) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the DIP Collateral at any other sale or foreclosure conducted or consented to by the Collateral Agent in accordance with applicable law in any judicial action or proceeding or by the exercise of any legal or equitable remedy. In connection with any such credit bid or purchase, (i) the Obligations owed to the Lenders shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not impair or unduly delay the ability of the Agents to credit bid or purchase at such sale or other disposition of the DIP Collateral and, if such contingent or unliquidated claims cannot be estimated without impairing or unduly delaying the ability of the Agents to credit bid at such sale or other disposition, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the DIP Collateral that is the subject of such credit bid or purchase) and the Lenders whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the DIP Collateral that is the subject of such credit bid or purchase (or in the Equity Interests of the any entities that are used to consummate such credit bid or purchase), and (ii) the Agents, based upon the instruction of the Required Lenders, may accept non-cash consideration, including debt and equity securities issued by any entities used to consummate such credit bid or purchase and in connection therewith the Agents may reduce the Obligations owed to the Lenders (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon the value of such non-cash consideration. Except as provided above, the Agents will not execute and deliver a release of any DIP Lien on any DIP Collateral without the prior written authorization of (y) if the release is of all or substantially all of the DIP Collateral, all of the Lenders, or (z) otherwise, the Required Lenders. Upon request by the Agents or the Borrower at any time, the Lenders will confirm in writing the Agents’ authority to release any such DIP Liens on particular types or items of DIP Collateral pursuant to this Article 8; provided, that (1) anything to the contrary contained in any of the Loan Documents notwithstanding, the Agents shall not be required to execute any document or take any action necessary to evidence such release on terms that, in the Agents’ reasonable opinion, could expose either Agent to liability or create any obligation or entail any consequence other than the release of such DIP Lien without recourse, representation, or warranty, and (2) such release shall not in any manner discharge, affect, or impair the Obligations or any DIP Liens (other than those expressly released) upon (or obligations of the Borrower in respect of) any and all interests retained by the Borrower, including, the proceeds of any sale, all of which shall continue to constitute part of the DIP Collateral.


ACTIVE 50727705v3 128

ARTICLE IX

Miscellaneous

Section 9.01 Notices. Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows:

(a) if to Holdco at 10822 West Toller Drive, Suite 370, Littleton, Colorado 80127, Attention of Marc Weinsweig, Phone: 301-332-2555, email: Marc Weinsweig [email protected], with a copy to Kirkland & Ellis LLP at 601 Lexington Avenue, New York, NY 10022, Attention of Judson A. Oswald, P.C., email: [email protected];

(b) if to the Administrative Agent or the Collateral Agent, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 9.01;

(c) if to an Issuing Bank, to it at the address or facsimile number set forth separately in writing and delivered to the Borrower Representative and the Administrative Agent;

(d) if to the Swing Line Lender, to it at the address or facsimile number set forth separately in writing and delivered to the Borrower Representative and the Administrative Agent; and

(e) if to any other Lender, to it at its address (or facsimile number) set forth in its Administrative Questionnaire.

Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto. Subject to Section 9.15, notices and other communications to the Lenders and the Issuing Bank hereunder may also be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant to Article II if such Lender or the Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower Representative may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.

Section 9.02 Waivers; Amendments.

(a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights, powers, privileges or remedies that they would otherwise have in law or in equity, or under any other instrument, document or agreement now existing or hereafter arising. No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance, amendment, renewal or extension of a Letter of


ACTIVE 50727705v3 129

Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time. No notice or demand on Holdco or the Borrowers in any case shall entitle Holdco or the Borrowers to any other or further notice or demand in similar or other circumstances.

(b) Except as provided in Section 9.16 or as otherwise specifically provided below or otherwise provided herein or in a Loan Document, neither any Loan Document nor any provision thereof may be waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdco, the Borrowers and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto (except as otherwise expressly provided therein), in each case with the consent of the Required Lenders (other than with respect to any amendment, modification or waiver contemplated in clauses (i) through (iv) and (ix) below, which shall only require the consent of the Lenders expressly set forth therein and not Required Lenders); provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender (it being understood that a waiver of any condition precedent in Section 4.01 or Section 4.02 of this Agreement or the waiver of any covenant, Default, Event of Default or mandatory prepayment or reductions shall not constitute an increase of any Commitment of a Lender), (ii) reduce or forgive the principal amount of any Loan or LC Disbursement owed to a Lender or reduce the rate of interest thereon owed to such Lender, or reduce any fees or premiums payable hereunder owed to such Lender, without the written consent of such Lender directly and adversely affected thereby; provided that any waiver or deferral of Default or Event of Default or default interest, waiver of a mandatory prepayment or any modification, waiver or amendment to the financial covenant definitions or financial ratios or any component thereof or any other covenant in this Agreement shall not constitute a reduction or forgiveness in the interest rates or the fees or premiums for purposes of this clause (ii), (iii) except as otherwise provided hereunder, postpone the scheduled maturity of any Loan, or the required date of reimbursement of any LC Disbursement, or any date for the payment of any interest, fees or premiums payable hereunder, or reduce or forgive the amount of, waive or excuse any such repayment (but not prepayment), or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender or the Issuing Bank directly and adversely affected thereby (it being understood that no amendment, modification or waiver of, deferral of, or consent to departure from, any condition precedent, covenant, Default, Event of Default, waiver of default interest, mandatory prepayment or mandatory reduction of the Commitments shall constitute a postponement of any date scheduled for the payment of principal or interest or an extension of the final maturity of any Loan or the scheduled termination date of any Commitment), (iv) change any of the provisions of Section 2.11, Section 2.18, Section 7.04 or the definition of “Applicable Percentage” in a manner that would alter the pro-rata sharing of payments required thereby without the written consent of each Lender directly and adversely affected thereby, (v) change any of the provisions of this Section 9.02(b) or reduce the percentage set forth in the definition of the term “Required Lenders” or reduce the percentage in any other provision of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender (or each Lender of such Class, as the case may be) (it being understood that, other than as specifically provided in this Agreement, including pursuant to (x) [reserved] and (y) [reserved], with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Revolving Commitments on the Closing Date), (vi) release all or substantially all of the value of the Guarantees under the Guaranty (except as provided herein or in the applicable Loan Document), without the written consent of each Lender, (vii) release all or substantially all the Collateral from the Liens of the Security Documents (except as provided herein or in the applicable Loan Document), without the written consent of each Lender (it being understood that any subordination of a lien permitted hereunder shall not constitute a release of a lien under this Section and the granting of any pari passu liens in connection with the incurrence of debt or the granting of liens otherwise permitted hereunder from time


ACTIVE 50727705v3 130

to time (including pursuant to amendments) shall not constitute a release of liens), (viii) amend, waive or otherwise modify any term or provision of Section 6.12, 7.01 (solely as it relates to Section 6.12) without the written consent of the Required Lenders, (ix) amend, modify, waive, or eliminate any provision of Article VIII pertaining to the Administrative Agent or the Collateral Agent, or any other rights or duties of the Administrative Agent or the Collateral Agent under this Agreement or the other Loan Documents, without the written consent of the Administrative Agent, the Collateral Agent, the Borrowers and the Required Lenders, and (x) amend, modify or waive (A) any Loan Document so as to alter the ratable treatment of (1) Obligations outstanding after the payment of accrued fees and interest and (2) Bank Product Obligations or (B) the definition of “Bank Product Obligations”, “Lender Counterparty”, “Secured Cash Management Obligations”, “Secured Swap Obligations” or “Obligations” or any of the defined terms that are used in such definitions, in each case in a manner adverse to the Lender Counterparty with Bank Product Obligations then outstanding without the written consent of the Lender Counterparty (except, that additional obligations may be secured pari passu with the Obligations and Bank Product Obligations and additional parties may be secured pari passu as Lender Counterparties); provided, further, that no such agreement shall directly adversely amend or modify the rights or duties of the Administrative Agent, the Collateral Agent, the Swing Line Lender or the Issuing Bank without the prior written consent of the Administrative Agent, the Collateral Agent, the Swing Line Lender or the Issuing Bank, as the case may be. In the event an amendment to this Agreement or any other Loan Document is effected without the consent of the Administrative Agent or Collateral Agent (to the extent permitted hereunder) and to which the Administrative Agent or Collateral Agent is not a party, the Borrower Representative shall furnish a copy of such amendment to the Administrative Agent. Notwithstanding the foregoing, no Lender consent is required to effect any amendment, modification or supplement to any intercreditor agreement or arrangement permitted under this Agreement or in any document pertaining to any Indebtedness permitted hereby that is permitted to be secured by the Collateral, for the purpose of adding the holders of such Indebtedness (or their senior representative) as a party thereto and otherwise causing such Indebtedness to be subject thereto, in each case as contemplated by the terms of such intercreditor agreement or arrangement permitted under this Agreement, as applicable, together with (A) any immaterial changes and (B) material changes thereto in light of prevailing market conditions, which material changes shall be posted to the Lenders not less than ten (10) Business Days before execution thereof and, if the Required Lenders shall not have objected to such changes within ten (10) Business Days after posting, then the Required Lenders shall be deemed to have agreed that the Administrative Agent’s and/or Collateral Agent’s entry into such intercreditor agreement (with such changes) is reasonable and to have consented to such intercreditor agreement (with such changes) and to the Administrative Agent’s and/or Collateral Agent’s execution thereof, in each case in form and substance reasonably satisfactory to the Administrative Agent and/or Collateral Agent (it being understood that junior Liens are not required to be pari passu with other junior Liens, and that Indebtedness secured by junior Liens may be secured by Liens that are pari passu with, or junior in priority to, other Liens that are junior to the DIP Liens securing the Obligations).

(c) In connection with any proposed amendment, modification, waiver or termination (a “Proposed Change”) requiring the consent of all Lenders or all directly and adversely affected Lenders, if the consent of the Required Lenders (and, to the extent any Proposed Change requires the consent of Lenders holding Loans pursuant to clause (iv) of paragraph (b) of this Section 9.02, the consent of a majority in interest of the outstanding Loans and unused Commitments of such Class) (or, in the case of a consent, waiver or amendment involving directly and adversely affected Lenders, at least 50.1% of such directly and adversely affected Lenders) to such Proposed Change is obtained, but the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in paragraph (b) of this Section 9.02 being referred to as a “Non-Consenting Lender”), then, the Borrower Representative may, at its sole expense and effort, upon notice to such Non-Consenting Lender and the Administrative Agent, (i) require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an assignee that shall assume


ACTIVE 50727705v3 131

such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (a) such Non-Consenting Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts), (b) such assignee shall have paid to the Administrative Agent the processing and recordation fee specified in clause (b)(ii) of this Section 9.02 and (c) such assignee shall have consented to the Proposed Change or (ii) terminate the Commitment of such Lender or Issuing Bank, as the case may be, and (1) in the case of a Lender (other than the Swing Line Lender or Issuing Bank), repay all Obligations of the Borrowers due and owing to such Lender relating to the Loans and participations held by such Lender as of such termination date and (2) in the case of the Swing Line Lender, repay all Obligations of the Borrowers due and owing to such Swing Line Lender relating to the Swing Line Loans and participations held by such Swing Line Lender as of such termination date and (3) in the case of an Issuing Bank, repay all Obligations of the Borrowers owing to such Issuing Bank relating to the Loans and participations held by the Issuing Bank as of such termination date and cancel or backstop on terms satisfactory to such Issuing Bank any Letters of Credit, issued by it; provided that in the case of any such termination of a Non-Consenting Lender such termination shall be sufficient (together with all other consenting Lenders and terminated Lenders after giving effect hereto) to cause the adoption of the applicable departure, waiver or amendment of the Loan Documents.

(d) [Reserved].

(e) The Lenders and the Issuing Bank, and all other Secured Parties hereby irrevocably agree that the DIP Liens granted to the Collateral Agent by the Loan Parties on any DIP Collateral shall, at the sole cost and expense of the Borrowers, be automatically released (i) upon the occurrence of the DIP Termination Date, (ii) upon the sale or other disposition of such DIP Collateral (as part of or in connection with any other sale or other disposition permitted hereunder) to any Person other than another Loan Party, to the extent such sale or other disposition is made in compliance with the terms of this Agreement, (iii) to the extent such DIP Collateral is comprised of property leased to a Loan Party, (iv) if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders whose consent may be required in accordance with this Section 9.02), (v) to the extent such property constitutes Excluded Property, (vi) to the extent the property constituting such DIP Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the applicable Guaranty (in accordance with the following sentence) to the extent such release of a Guarantor is made in compliance with the terms of this Agreement and (vii) as required to effect any sale or other disposition of DIP Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Loan Documents. Any such release shall not in any manner discharge, affect, or impair the Obligations or any DIP Liens (other than those being released) upon (or obligations (other than those being released) of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the DIP Collateral except to the extent comprised of Excluded Property or otherwise released in accordance with the provisions of the Loan Documents. The Lenders, Issuing Bank, and all other Secured Parties, hereby authorize the Administrative Agent and the Collateral Agent, as applicable, to execute and deliver any instruments, documents, and agreements necessary or desirable to evidence and confirm the release of any Loan Party’s Guaranty or DIP Collateral pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any Lender, Issuing Bank or other Secured Party.

(f) No Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver,


ACTIVE 50727705v3 132

amendment or modification requiring the consent of all Lenders pursuant to Sections 9.02(b)(v) or 9.02(b)(vi) or each directly and adversely affected Lender pursuant to Sections 9.02(b)(ii), 9.02(b)(iii) or 9.02(b)(vi) that, by its terms, adversely affects any Defaulting Lender disproportionately in relation to other affected Lenders shall require the consent of such Defaulting Lender.

(g) This Agreement may be amended (or amended and restated) solely with the written consent of the Required Lenders and the Borrowers (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. Further, (i) the aggregate LC Sublimit may be increased with the consent of the Required Lenders, each Issuing Bank and the Administrative Agent and (ii) the percentages set forth in clause (x) of the definition of LC Sublimit may be adjusted with the consent of each Issuing Bank and the Administrative Agent.

(h) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended solely with the consent of the Administrative Agent and the Borrowers without the need to obtain the consent of any other Lender if such amendment is delivered in order to correct or cure (x) errors, omissions, defects, (y) to effect administrative changes of a technical or immaterial nature or (z) incorrect cross references or similar inaccuracies in this Agreement or the applicable Loan Document. Guarantees, collateral documents, security documents, intercreditor agreements, and related documents executed in connection with this Agreement may be in a form reasonably determined by the Administrative Agent or Collateral Agent, as applicable, and may be amended, modified, terminated or waived, and consent to any departure therefrom may be given, without the consent of any Lender if such amendment, modification, waiver or consent is given in order to (x) comply with local law or advice of counsel or (y) cause such guarantee, collateral document, security document or related document to be consistent with this Agreement and the other Loan Documents. The Borrowers and the Administrative Agent may, without the consent of any other Lender, effect amendments to this Agreement and the other Loan Documents as may be necessary in the reasonable opinion of the Borrowers and the Administrative Agent to effect the provisions of Sections 2.20 and 2.24.

(i) No amendment, waiver, modification, elimination, or consent shall amend, without written consent of the Administrative Agent, the Borrower Representative and the Required Lenders, modify, or eliminate the definition of Borrowing Base or any of the defined terms (including the definitions of Eligible Accounts Receivables and Eligible Inventory) that are used in such definition to the extent that any such change results in more credit being made available to the Borrowers based upon the Borrowing Base, but not otherwise, or the definition of Revolving Commitments (except as expressly contemplated herein), or change Section 2.01(f).

(j) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the other Loan Documents pertaining to the Issuing Bank, or any other rights or duties of the Issuing Bank under this Agreement or the other Loan Documents, without the written consent of the Issuing Bank, the Administrative Agent, the Borrower Representative and the Required Lenders.

(k) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the other Loan Documents pertaining to the Swing Line Lender, or any other rights or duties of the Swing Line Lender under this Agreement or the other Loan Documents, without the written consent of the Swing Line Lender, the Administrative Agent, the Borrower Representative and the Required Lenders.


ACTIVE 50727705v3 133

Section 9.03 Expenses; Indemnity; Damage Waiver.

(a) Each Borrower and each Guarantor shall jointly and severally pay promptly all (i) reasonable and documented (in summary form) out-of-pocket fees, costs, disbursements and expenses of the Agents (including (and limited, in the case of counsel, to) all reasonable and documented out-of-pocket fees, costs, disbursements and expenses of the Agents’ outside counsel, GT and, to the extent necessary, one firm of local counsel engaged by the Agents in connection with the Chapter 11 Cases, and any successor counsel to each), in the case of each of the foregoing, in connection with the negotiations, preparation, execution and delivery of the Loan Documents and the funding of all Loans under the DIP Facility, including, without limitation, all due diligence, transportation, computer, duplication, messenger, audit, insurance, appraisal, valuation and consultant costs and expenses, and all search, filing and recording fees, incurred or sustained by the Agents, and their counsel and professional advisors in connection with the DIP Facility, the Loan Documents or the transactions contemplated thereby, the administration of the DIP Facility and any amendment or waiver of any provision of the Loan Documents, and (ii) without duplication, reasonable and documented (in summary form) out-of-pocket fees, costs, disbursements and expenses of the Agents (including (and limited, in the case of counsel, to) all reasonable and documented out-of-pocket fees, costs, disbursements and expenses of one firm of outside counsel for the Agents and, to the extent necessary, one firm of local counsel engaged by the Agents in each relevant jurisdiction, and any successor counsel to such primary counsel and local counsel)) in connection with (A) the enforcement of any rights and remedies under the Loan Documents, (B) the Chapter 11 Cases, including attendance at all hearings in respect of the Chapter 11 Cases, and (C) defending and prosecuting any actions or proceedings arising out of or relating to the Prepetition ABL Obligations, the Obligations, the Liens securing the Prepetition ABL Obligations and the DIP Liens securing the Obligations, or any transaction related to or arising in connection with the Prepetition ABL Loan Documents, this Agreement or the other Loan Documents (in the case of the Prepetition ABL Obligations and the Liens securing the Prepetition ABL Obligations, to the extent provided in the Prepetition ABL Loan Documents).

(b) Without duplication of the expense reimbursement obligations pursuant to paragraph (a) above, the Borrowers and the Guarantors shall jointly and severally indemnify and hold harmless each Agent, each Lender and each of their Affiliates and each of the respective officers, directors, employees, controlling persons, agents, advisors, attorneys and representatives of each (each, an “Indemnified Party”) from and against any and all claims, damages, actual losses, liabilities and expenses (including (and limited, in the case of counsel, to) reasonable and documented out-of-pocket fees and disbursements of one counsel, one local counsel in each relevant jurisdiction, and any successor counsel to primary or local counsel, for the Agents and one counsel for the other Indemnified Parties), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense, arising out of or in connection with or relating to the DIP Facility, the Loan Documents or the transactions contemplated thereby, or any use made or proposed to be made with the DIP Proceeds, whether or not such investigation, litigation or proceeding is brought by any Debtor or any of its subsidiaries, any shareholders or creditors of the foregoing, an Indemnified Party or any other person, or an Indemnified Party is otherwise a party thereto (collectively, the “Indemnified Liabilities”), except, to the extent such claim, damage, loss, liability or expense (i) is found in a final non appealable judgment by a court of competent jurisdiction to have resulted solely from the gross negligence, or willful misconduct of such Indemnified Party or any of such Indemnified Party’s affiliates or their respective principals, directors, officers or employees, (ii) resulted solely from a dispute among Indemnified Persons other than any claims against any Indemnified Person in its capacity or in fulfilling its role as an Agent or (iii) resulted from a material breach of the Loan Documents by such Indemnified Person or any of such Indemnified Party’s Affiliates or their respective principals, directors, officers or employees, as determined in a final non-appealable judgment of a court of competent jurisdiction. No Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to any Debtor or any of its subsidiaries or any


ACTIVE 50727705v3 134

shareholders or creditors of the foregoing for or in connection with the transactions contemplated hereby, except, with respect to any Indemnified Party, to the extent such liability is found in a final non appealable judgment by a court of competent jurisdiction to have resulted (i) solely from the gross negligence, or willful misconduct of such Indemnified Party or any of such Indemnified Party’s Affiliates or their respective principals, directors, officers or employees or (ii) solely from a material breach of the Loan Documents by such Indemnified Person or any of such Indemnified Party’s affiliates or their respective principals, directors, officers or employees. In no event, however, shall any Indemnified Party or Debtor be liable on any theory of liability for any special, indirect, consequential or punitive damages.

(c) To the extent that the Borrowers fail to pay any amount required to be paid by them to the Administrative Agent or the Collateral Agent under paragraph (a) or (b) of this Section, and without limiting the Borrowers’ obligations to do so, each Lender severally agrees to pay to the Administrative Agent or the Collateral Agent, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent or the Collateral Agent in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the aggregate outstanding Loans and unused Commitments at the time. The obligations of the Lenders under this paragraph (c) are subject to the last sentence of Section 2.02(a) (which shall apply mutatis mutandis to the Lenders’ obligations under this paragraph (c)).

(d) To the extent permitted by applicable law, none of Holdco, the Borrowers, any Agent, any Lender, the Issuing Bank, any other party hereto or any Indemnitee shall assert, and each such Person hereby waives and releases, any claim against any other such Person, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, arising out of, as a result of, or in any way related to, this Agreement or any or any agreement or instrument contemplated hereby or referred to herein, the transactions contemplated hereby or thereby, or any act or omission or event occurring in connection therewith, and each such Person further agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor; provided that the foregoing shall in no event limit the Borrowers’ indemnification obligations under clause (b) above resulting from damages incurred or paid by a third party.

(e) In case any proceeding is instituted involving any Indemnitee for which indemnification is to be sought hereunder by such Indemnitee, then such Indemnitee will promptly notify the Borrower Representative of the commencement of any proceeding; provided, however, that the failure to do so will not relieve the Borrowers from any liability that they may have to such Indemnitee hereunder, except to the extent that the Borrowers are materially prejudiced by such failure. Notwithstanding the above, following such notification, the Borrower Representative may elect in writing to assume the defense of such proceeding, and, upon such election, the Borrowers will not be liable for any legal costs subsequently incurred by such Indemnitee (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower Representative has failed to provide counsel reasonably satisfactory to such Indemnitee in a timely manner, (ii) counsel provided by the Borrowers reasonably determines its representation of such Indemnitee would present it with an actual or perceived conflict of interest or (iii) the Indemnitee reasonably determines that there are actual conflicts of interest between the Borrowers and the Indemnitee, including situations in which there may be legal defenses available to the Indemnitee which are different from or in addition to those available to the Borrowers.

(f) Notwithstanding anything to the contrary in this Agreement, no party hereto or any Indemnitee shall be liable for any damages arising from the use by others of information or other materials


ACTIVE 50727705v3 135

obtained through electronic, telecommunications or other information transmission systems (including IntraLinks or SyndTrak Online), in each case, except to the extent any such damages are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of, or material breach of this Agreement or the other Loan Documents by, such Indemnitee (or its officers, directors, employees, Related Parties or Affiliates).

(g) This Section 9.03 shall not apply to Taxes, except for Taxes which represent costs, losses, claims, etc. with respect to a non-Tax claim.

Section 9.04 Successors and Assigns.

(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective registered successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) except as otherwise permitted herein, the Borrowers may not assign or otherwise transfer any of their rights or obligations hereunder without the prior written consent of each Lender (and any such attempted assignment or transfer by the Borrowers without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section (and any attempted assignment or transfer by such Lender otherwise shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (solely to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b)

(i) Subject to the express conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of (A) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Loan or Commitment to a Lender, an Affiliate of a Lender or an Approved Fund and (B) in the case of any assignment of a Revolving Commitment, each Swing Line Lender and Issuing Bank.

(ii) In addition to the Register, assignments shall be subject to the following additional express conditions: (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 (it being understood and agreed that such minimum amount shall be aggregated for two or more simultaneous assignments by or to two or more Approved Funds), unless the Borrower Representative and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed); provided that no such consent of Borrower Representative shall be required if a Specified Event of Default has occurred and is continuing, (B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement; provided that this clause (B) shall not be construed to prohibit assignment of a proportionate part of


ACTIVE 50727705v3 136

all the assigning Lender’s rights and obligations in respect of its Commitments or Loans, (C) the parties to each assignment shall (1) execute and deliver to the Administrative Agent an Assignment and Assumption, via an electronic settlement system acceptable to the Administrative Agent or (2) if previously agreed with the Administrative Agent, manually execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent); provided that assignments made pursuant to Section 2.19 or Section 9.02(c) shall not require the signature of the assigning Lender to become effective and (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire (in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Loan Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws) and any tax forms required by Section 2.17(e) or Section 2.17(g).

For purposes of paragraph (b) of this Section, the terms “Approved Fund” and “CLO” have the following meanings:

“Approved Fund” means (a) a CLO and (b) with respect to any Lender that is a fund that invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

“CLO” means an entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course and is administered or managed by a Lender or an Affiliate of such Lender.

(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(vi) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 2.15, Section 2.16, Section 2.17 and Section 9.03 and to any fees payable hereunder that have accrued for such Lender’s account but have not yet been paid).

(iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrowers, shall maintain at one of its offices 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 Commitment of, and principal and related interest amounts of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and Holdco, the Borrowers, the Administrative Agent, the Issuing Bank and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Issuing Bank, Borrowers and, with respect to its own interests only, any Lender, at any reasonable time


ACTIVE 50727705v3 137

and from time to time upon reasonable prior notice. This Section 9.04(b)(iv) shall be construed so that the Loans and unreimbursed LC Disbursements are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and the right, title and interest of each Lender, in and to such Loans and unreimbursed LC Disbursements, shall be transferable only upon notation of such transfer in the Register.

(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any tax forms required by Section 2.17(e), as applicable (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section (to the extent required) and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.

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

(c) Any Lender may, without the consent of the Borrowers or the Administrative Agent or the Issuing Bank, sell participations to any Person (other than a natural person, any Defaulting Lender, any Disqualified Lender to the extent the lists thereof are made available to the Lenders) (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) Holdco, the Borrowers, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (D) such Person shall not be entitled to exercise any rights of a Lender under the Loan Documents.

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve any amendment, modification or waiver of any provision of the Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in clause (ii), (iii), (v) or (vi) of the first proviso to Section 9.02(b) that directly or adversely affects such Participant. Subject to the paragraph below, the Borrowers agree that each Participant shall be entitled to the benefits of Section 2.15 and Section 2.17 (subject to the limitations and requirements of such Sections, including Section 2.17(e) and Section 2.19) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section (it being agreed that any documentation required to be provided under Section 2.17(e) shall be delivered to the participating Lender). Each Lender that sells or grants a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal and related interest amounts of each participant’s


ACTIVE 50727705v3 138

interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have the obligation to disclose all or a portion of the Participant Register (including the identity of the Participant or any information relating to a Participant’s interest in any Loans or other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that any loans are in registered form for U.S. federal income tax purposes. The entries in the Participant Register shall be conclusive absent manifest error, and the Borrowers and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. This Section shall be construed so that the Loan Documents are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and the right, title and interest of each Participant, in and to such Loans and unreimbursed LC Disbursements, shall be transferable only upon notation of such transfer in the Participant Register. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

A Participant shall not be entitled to receive any greater payment under Section 2.15 or Section 2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except (i) to the extent the right to a greater payment results from a Change in Law after the Participant becomes a Participant or (ii) if the sale of the participation to such Participant is made with the Borrower Representative’s prior written consent.

(d) Any Lender may, without the consent of any Borrower or the Administrative Agent, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such Lender and including any pledge or assignment to any holders of obligations owed, or securities issued, by such Lender (including to any trustee for, or any other representative of, such holders), and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(e) Notwithstanding anything to the contrary contained herein but subject to the Participant Register and the Register, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle organized and administered by such Granting Lender (an “SPV”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower Representative, the option to provide to the Borrowers all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan and (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one (1) year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, such party will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof; provided that each Lender designating any SPV hereby agrees to indemnify and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such SPV during such period of forbearance. In addition, notwithstanding anything to the contrary contained in this Section 9.04, any SPV may (i) with notice to, but without the prior written consent of, the


ACTIVE 50727705v3 139

Borrower Representative and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the Borrower Representative and Administrative Agent) other than Disqualified Lenders providing liquidity or credit support to or for the account of such SPV to support the funding or maintenance of Loans and (ii) subject to Section 9.13, disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPV other than any Disqualified Lender. The Borrowers agree that each SPV shall be entitled to the benefits of Section 2.15 and Section 2.17 (subject to the limitations and requirements of such Sections, including Section 2.17(e), and Section 2.19) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. An SPV shall not be entitled to receive any greater payment under Section 2.15 or Section 2.17 than the applicable Granting Lender would have been entitled to receive with respect to the interest granted to such SPV, except (i) to the extent the right to a greater payment results from a Change in Law after the grant to the SPV or (ii) if the grant to such SPV is made with the Borrower Representative’s prior written consent.

(f) No such assignment shall be made (A) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (A), or (B) to a natural person.

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

(h) Notwithstanding anything contained in this Agreement or any other Loan Document to the contrary, if any Lender or Participant at any time is a Disqualified Lender, then for so long as such Lender or Participant shall be a Disqualified Lender, the provisions of this Section 9.04(h) shall apply with respect to such Disqualified Lender unless the Borrower Representative shall have otherwise expressly consented in writing in its sole discretion.

(i) No Disqualified Lender shall have any right to approve, disapprove or consent to any amendment, supplement, waiver or modification of this Agreement or any other Loan Document or any term hereof or thereof. In determining whether the requisite Lender or Lenders have consented to any such amendment, supplement, waiver or modification, and in determining the Required Lenders and Required Lenders for any purpose under or in respect of any Loan Document, any Lender that is a Disqualified Lender shall be excluded and disregarded. Each such amendment, supplement, waiver or modification shall be binding and effective as to each Disqualified Lender.

(ii) The Borrowers shall have the right (A) at the sole expense of any Lender that is a Disqualified Lender and/or the Person that assigned its Commitments and/or Loans


ACTIVE 50727705v3 140

to such Disqualified Lender, to seek to replace or terminate such Disqualified Lender as a Lender by causing such Lender to (and such Lender shall be obligated to) assign any or all of its Commitments and/or Loans and its rights and obligations under this Agreement to one or more assignees (which may, at the Borrowers’ sole option, be or include Holdco, any Borrower or any Subsidiary so long as the Loans and Commitments obtained by Holdco, any Borrower or any Subsidiary are immediately cancelled and/or terminated, and each of Holdco, any Borrower or any Subsidiary shall not be deemed to be a Lender for purposes of amendments, voting or any other rights and remedies hereunder); provided that (1) the Administrative Agent shall not have any obligation to the Borrowers to find such a replacement Lender, (2) the Borrowers shall not have any obligation to such Disqualified Lender or any other Person to find such a replacement Lender or accept or consent to any such assignment to itself or any other Person and (3) the assignee (or, at its option, the applicable Borrower) shall pay to such Disqualified Lender concurrently with such assignment an amount (which payment shall be deemed payment in full) equal to the lesser of (x) the face principal amount of the Loans so assigned, (y) the amount that such Disqualified Lender paid to acquire such Commitments and/or Loans and (z) the most recently available quoted price for such Commitments and/or Loans (as determined by the Borrower Representative in good faith, which determination shall be conclusive, the “Trading Price”), in each case without interest thereon (it being understood that if the effective date of such assignment is not an Interest Payment Date, such assignee shall be entitled to be receive on the next succeeding Interest Payment Date interest on the principal amount of the Loans so assigned that has accrued and is unpaid from the Interest Payment Date last preceding such effective date (except as may be otherwise agreed between such assignee and the Borrower Representative)) or (B) to prepay any Loans held by such Disqualified Lender, in whole or in part, by paying an amount (which payment shall be deemed payment in full) equal to the lesser of (x) the face principal amount of the Loans so prepaid, (y) the amount that such Disqualified Lender paid to acquire such Loans and (z) the Trading Price for such Loans (in each case without interest thereon), and if applicable, terminate the Commitments of such Disqualified Lender, in whole or in part. In connection with any such replacement, (1) if the Disqualified Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Assumption and/or any other documentation necessary or appropriate (in the good faith determination of the Administrative Agent or the Borrower Representative, which determination shall be conclusive) to reflect such replacement by the later of (a) the date on which the replacement Lender executes and delivers such Assignment and Assumption and/or such other documentation and (b) the date as of which the Disqualified Lender shall be paid by the assignee Lender (or, at its option, the applicable Borrower) the amount required pursuant to this Section 9.04(h)(iii)(B), then such Disqualified Lender shall be deemed to have executed and delivered such Assignment and Assumption and/or such other documentation as of such date and the applicable Borrower shall be entitled (but not obligated) to execute and deliver such Assignment and Assumption and/or such other documentation on behalf of such Disqualified Lender, and the Administrative Agent shall record such assignment in the Register, (2) each Lender (whether or not then a party hereto) agrees to disclose to the applicable Borrower the amount that the applicable Disqualified Lender paid to acquire Commitments and/or Loans from such Lender and (3) each Lender that is a Disqualified Lender agrees to disclose to the applicable Borrower the amount it paid to acquire the Commitments and/or Loans held by it.

(iii) No Disqualified Lender (whether as a Lender, a Participant or otherwise) shall have any right to (A) receive any information or material made available to any Lender or the Administrative Agent hereunder or under any other Loan Document,


ACTIVE 50727705v3 141

(B) have access to any Internet or intranet website to which any of the Lenders and the Administrative Agent have access (whether a commercial, third-party or other website or whether sponsored by the Administrative Agent, a Borrower or otherwise), (C) attend (including by telephone) or otherwise participate in any meeting or discussions (or portions thereof) among or with any Borrower, the Administrative Agent and/or one or more Lenders, (D) receive any information or material prepared by the Borrowers, the Administrative Agent and/or one or more Lenders or (E) receive advice of counsel to the Administrative Agent, the Collateral Agent or any other Lender or challenge their attorney client privilege. Any Disqualified Lender shall not solicit or seek to obtain any such information or material. If at any time any Disqualified Lender receives or possesses any such information or material, such Disqualified Lender shall (1) notify the Borrower Representative as soon as possible that such information or material has become known to it or came into its possession, (2) immediately return to the Borrower Representative or, at the option of the Borrower Representative, destroy (and confirm to the Borrower Representative such destruction) such information or material, together with any notes, analyses, compilations, forecasts, studies or other documents related thereto which it or its advisors prepared and (3) keep such information or material confidential and shall not utilize such information or material for any purpose. Each Lender (whether or not then a party hereto) agrees to notify the Borrower Representative as soon as possible if it becomes aware that (x) it made an assignment to or has a participation with a Disqualified Lender or (y) any such Disqualified Lender has received any such information of materials.

(iv) The rights and remedies of the Borrowers provided herein are cumulative and are not exclusive of any other rights and remedies provided to the Borrowers at law or in equity, and the Borrowers shall be entitled to pursue any remedy available to it against any Lender that has (or has purported to have) made an assignment or sold or maintained a participation to or with a Disqualified Lender or against any Disqualified Lender. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (y) have any liability with respect to or arising out of any such assignment or participation of Loans or Commitments or disclosure of confidential information, to any Disqualified Lender.

Section 9.05 Survival. All representations and warranties made by the Loan Parties in the other Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to any Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder and none of Holdco, the Borrowers, the Lenders or any Affiliate will bring any claim to that effect.

Section 9.06 Counterparts; Integration. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject


ACTIVE 50727705v3 142

matter hereof, and there are no promises, undertakings, representations or warranties by Holdco, the Borrowers, the Administrative Agent, the Collateral Agent nor any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents. this Agreement may be executed by means of (a) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (b) an original manual signature; or (c) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Lender reserves the right, in its sole discretion, to accept, deny, or condition acceptance of any electronic signature on this Agreement or on any notice delivered to Lender under this Agreement. This Agreement and any notices delivered under this Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument. Delivery of an executed counterpart of a signature page of this Agreement and any notices as set forth herein will be as effective as delivery of a manually executed counterpart of the Agreement or notice.2

Section 9.07 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

Section 9.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and Issuing Bank is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Administrative Agent and the Required Lenders, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency, but not any tax accounts, trust accounts, withholding or payroll accounts) at any time held and other obligations (in whatever currency) at any time owing by such Lender or an Issuing Bank to or for the credit or the account of the Borrowers against any and all of the Obligations of the Borrowers now or hereafter existing under this Agreement held by such Lender or the Issuing Bank, but only to the extent then due and payable; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (i) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.22 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders and (ii) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and the Issuing Bank under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or Issuing Bank may have. Each Lender and Issuing Bank agree promptly to notify the Borrower Representative and the Administrative Agent of such setoff and application made by such Lender; provided that any failure to give or any delay in giving such notice shall not affect the validity of any such setoff and application under this Section.

Section 9.09 Governing Law; Jurisdiction; Consent to Service of Process.

(a) This Agreement and the other Loan Documents and the rights and obligations of the parties hereunder and thereunder, including but not limited to the validity, interpretation, construction,

2 NTD: We understand that the documents may need to be executed electronically. We have updated this section with WF required language to address execution in that manner.


ACTIVE 50727705v3 143

breach, enforcement or termination hereof and thereof, and whether arising in contract or tort or otherwise, shall be construed in accordance with and governed by the law of the State of New York.

(b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof except to the extent that the provisions of the Bankruptcy Code are applicable and specifically conflict with the foregoing, in any action or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Notwithstanding the foregoing, nothing in any Loan Document shall affect any right that the Administrative Agent, the Collateral Agent or any Lender may otherwise have to bring any action or proceeding relating to any Loan Document against Holdco, the Borrowers or their respective properties in the courts of any jurisdiction.

(c) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to any Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in any Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

Notwithstanding any other provision of this Section 9.09, the Bankruptcy Court shall have exclusive jurisdiction over any action or dispute involving, relating to or arising out of this agreement or the other Loan Documents.

Section 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

Section 9.11 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

Section 9.12 Confidentiality. Each of the Administrative Agent, the other Agents, the Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, trustees, officers, employees and


ACTIVE 50727705v3 144

agents, including accountants, legal counsel and other advisors on a “need to know” basis (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential; provided that the relevant Lender shall be responsible for such compliance and non-compliance), (b) to the extent requested by any regulatory authority; provided that, other than in connection with routine regulatory examinations, prior notice shall have been given to the Borrower Representative, to the extent permitted by applicable laws or regulations, (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; provided that prior notice shall have been given to the Borrower Representative, to the extent permitted by disclosures to central banks in connection with pledges or assignments under Section 9.04(d), applicable laws or regulations, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to any Loan Document or the enforcement of rights thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, in each case, except to any Disqualified Lender, except to any Disqualified Lender, (g) with the written consent of the Borrower Representative, or (h)(A) to the extent such information is independently developed by the Administrative Agent, any such other Agent or any such Lender, as applicable or (B) to the extent such Information (I) becomes publicly available other than as a result of a breach of this Section or (II) becomes available to the Administrative Agent, any other Agent, an Issuing Bank or any Lender on a nonconfidential basis from a source other than Holdco or the Borrowers (provided that the source is not actually known (after due inquiry) by such disclosing party or other confidentiality obligations owed to Holdco, the Borrowers or their Affiliates, to be bound by an agreement containing provisions substantially the same as those contained in this confidentiality provision). For the purposes of this Section the term “Information” means all information received from or on behalf of Holdco or the Borrowers relating to Holdco or the Borrowers or any of their Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent, any other Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by Holdco or the Borrowers. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Each Lender acknowledges that Information furnished to it pursuant to this Agreement may include material non-public information concerning the Loan Parties and their respective Related Parties or their respective securities, and confirms that it has developed compliance procedures regarding the use of material non-public information and that it will handle such material non-public information in accordance with those procedures and applicable law, including Federal and state securities laws.

All Information, including requests for waivers and amendments, furnished by the Borrowers or the Administrative Agent pursuant to, or in the course of administering, this Agreement will be syndicate-level Information, which may contain material non-public information about the Loan Parties and their respective Related Parties or their respective securities. Accordingly, each Lender represents to the Borrowers and the Administrative Agent that it has identified in its Administrative Questionnaire a credit contact who may receive Information that may contain material non-public information in accordance with its compliance procedures and applicable law.

Section 9.13 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan or participation in any LC Disbursement, together with all fees, charges and other amounts that are treated as interest on such Loan or LC Disbursement or participation therein under applicable law (collectively, the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by the Lender holding such Loan or LC Disbursement or participation therein in accordance with applicable law, the rate


ACTIVE 50727705v3 145

of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan or LC Disbursement or participation therein but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or LC Disbursement or participation therein or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.

Section 9.14 USA Patriot Act. Each Lender and Issuing Bank that is subject to the Patriot Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the Loan Parties and other information that will allow such Lender, such Issuing Bank or the Administrative Agent, as applicable, to identify the Loan Parties in accordance with the Patriot Act. The Borrowers shall, promptly following a request by the Administrative Agent, any Issuing Bank or any Lender, provide all documentation and other information that the Administrative Agent, such Issuing Bank or such Lender requests that is reasonably required in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Section 9.15 Direct Website Communication. Each of Holdco and the Borrowers may, at its option, provide to the Administrative Agent any information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Loan Documents, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials (all such communications being referred to herein collectively as “Communications”), by (i) posting such documents, or providing a link thereto, on Holdco’s or the Borrowers’ website, (ii) such documents being posted on Holdco’s and/or the Borrowers’ behalf on an Internet or Intranet website, if any, to which the Administrative Agent has access (whether a commercial third-party website or a website sponsored by the Administrative Agent) or (iii) by transmitting the Communications in an electronic/soft medium to the Administrative Agent at an email address provided by the Administrative Agent from time to time; provided that (i) promptly following written request by the Administrative Agent, the Borrowers shall continue to deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) to the extent that Holdco does not separately deliver copies of such documents to the Administrative Agent, the Borrower Representative shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents. Nothing in this Section 9.15 shall prejudice the right of Holdco, the Borrowers, the Administrative Agent, any other Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address in Section 9.01 shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees (A) to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and (B) that the foregoing notice may be sent to such e-mail address. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail


ACTIVE 50727705v3 146

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

Each of Holdco, the Borrowers and the Administrative Agent and the Issuing Bank may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower Representative and the Administrative Agent and the Issuing Bank. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.

Section 9.16 Intercreditor Agreement Governs. Each Lender and Agent (a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of any intercreditor agreement entered into pursuant to the terms hereof (including the ABL Intercreditor Agreement), and (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the Order. Reference is made to the ABL Intercreditor Agreement. Each Lender hereunder (i) acknowledges that it has received a copy of the ABL Intercreditor Agreement, (ii) consents to the subordination of Liens provided for in the Orders and the ABL Intercreditor Agreement, and (iii) agrees that it will be bound by and will take no actions contrary to the provisions of the Orders and the ABL Intercreditor Agreement.

Section 9.17 Bankruptcy Matters. This Agreement, the other Loan Documents, and all Liens and DIP Liens and other rights and privileges created hereby or pursuant hereto or to any other Loan Document shall be binding upon each Debtor, the estate of each Debtor, and any trustee, other estate representative or any successor in interest of any Debtor in any Chapter 11 Case or any subsequent case commenced under Chapter 7 of the Bankruptcy Code, and shall not be subject to Section 365 of the Bankruptcy Code. This Agreement and the other Loan Documents shall be binding upon, and inure to the benefit of, the successors of each Agent and the Lenders and their respective assigns, transferees and endorsees. The DIP Liens created by this Agreement and the other Loan Documents shall be and remain valid and perfected in the event of the substantive consolidation or conversion of any Chapter 11 Case or any other bankruptcy case of any Debtor to a case under Chapter 7 of the Bankruptcy Code or in the event of dismissal of any Chapter 11 Case or the release of any DIP Collateral from the jurisdiction of the Bankruptcy Court for any reason, without the necessity that the Collateral Agent file financing statements or otherwise perfect its DIP Liens under applicable law. No Loan Party may assign, transfer, hypothecate or otherwise convey its rights, benefits, obligations or duties hereunder or under any of the other Loan Documents without the prior express written consent of the Administrative Agent and the Lenders. Any such purported assignment, transfer, hypothecation or other conveyance by any Loan Party without the prior express written consent of the Administrative Agent and the Lenders shall be void. The terms and provisions of this Agreement are for the purpose of defining the relative rights and obligations of each Loan Party, the Administrative Agent and the Lenders with respect to the transactions contemplated hereby and no Person shall be a third party beneficiary of any of the terms and provisions of this Agreement or any of the other Loan Documents.

Section 9.18 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other


ACTIVE 50727705v3 147

modification hereof or of any other Loan Document), each of the Borrowers and Holdco acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent and the other Agents and the making of the Loans and Commitments by the Lenders are arm’s-length commercial transactions between the Borrowers, Holdco and their respective Affiliates, on the one hand, and the Administrative Agent, the other Agents and the Lenders, on the other hand, (B) the Borrowers and Holdco have consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate, and (C) the Borrowers and Holdco are capable of evaluating, and understands and accepts, the terms, risks and express conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent, each other Agent, and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrowers, Holdco or any of their respective Affiliates, or any other Person and (B) none of the Administrative Agent, any other Agent, or any Lender has any obligation to the Borrowers, Holdco or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the other Agents, and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers, Holdco and their respective Affiliates, and none of the Administrative Agent, any other Agent, or any Lender has any obligation to disclose any of such interests to the Borrowers, Holdco or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrowers and Holdco hereby waives and releases any claims that it may have against the Administrative Agent, the other Agents, and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

Section 9.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

(b) the effects of any Bail-In Action on any such liability, including, if applicable:

(i) a reduction in full or in part or cancellation of any such liability;

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

The provisions of this Section 9.19 are intended to comply with, and shall be interpreted in light of, Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union.


ACTIVE 50727705v3 148

[Signature Pages Follow]


[Signature Page to ABL DIP Credit Agreement] Americas 92696295

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

APC AUTOMOTIVE TECHNOLOGIES INTERMEDIATE HOLDINGS, LLC, as Holdco

By: ______________________________ Name: ______________________________ Title: ______________________________

AP EXHAUST ACQUISITION, LLC, as a Borrower and as the Borrower Representative

By: ______________________________ Name: ______________________________ Title: ______________________________

CWD ACQUISITION, LLC, as a Borrower

By: ______________________________ Name: ______________________________ Title: ______________________________

CWD HOLDING CORP., as a Borrower

By: ______________________________ Name: ______________________________ Title: ______________________________



[Signatures Continued from Previous Page]

AP EMISSIONS TECHNOLOGIES, LLC, as a Subsidiary Guarantor

By: ______________________________ Name: ______________________________ Title: ______________________________

AIRTEK, LLC, as a Subsidiary Guarantor

By: ______________________________ Name: ______________________________ Title: ______________________________

ARISTO, LLC, as a Subsidiary Guarantor

By: ______________________________ Name: ______________________________ Title: ______________________________

AP EXHAUST PRODUCTS DISC, INC., as a Subsidiary Guarantor

By: ______________________________ Name: ______________________________ Title: ______________________________

EASTERN MANUFACTURING, LLC, as a Subsidiary Guarantor

By: ______________________________ Name: ______________________________ Title: ______________________________

CWD INTERMEDIATE HOLDING CORP., as a Subsidiary Guarantor

By: ______________________________ Name: ______________________________ Title: ______________________________




CWD, LLC, as a Subsidiary Guarantor

By: ______________________________ Name: ______________________________ Title: ______________________________

QUALIS ENTERPRISES, INC., as a Subsidiary Guarantor

By: ______________________________ Name: ______________________________ Title: ______________________________

QUALIS AUTOMOTIVE, L.L.C., as a Subsidiary Guarantor

By: ______________________________ Name: ______________________________ Title: ______________________________




WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Collateral Agent, Issuing Bank, Swing Line Lender and as a Lender

By: ______________________________ Name: ______________________________ Title: Authorized Signatory


PHIL1 8943004v.1

Exhibit C

Term DIP Credit Agreement


K&S DRAFT: 06/2/20

AMERICAS 101303185

WORKAMER\36876307.v20

SUPERPRIORITY SECURED DEBTOR-IN-POSSESSION CREDIT AGREEMENT

dated as of June [__], 2020,

among

APC AUTOMOTIVE TECHNOLOGIES INTERMEDIATE HOLDINGS, LLC, as Holdco,

APC AUTOMOTIVE TECHNOLOGIES, LLC, as a Borrower and the Borrower Representative,

CWD ACQUISITION, LLC and CWD HOLDING CORP.,

as Borrowers,

The Lenders Party Hereto,

and

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent,


AMERICAS 101303185 i

TABLE OF CONTENTS

Page

ARTICLE I Definitions .............................................................................................................................. 2

Section 1.01 Defined Terms .............................................................................................................. 2


Section 1.03 Terms Generally ......................................................................................................... 27

Section 1.04 Accounting Terms; GAAP ......................................................................................... 28


Section 1.06 Divisions ..................................................................................................................... 28


Section 1.08 Timing of Payment or Performance ........................................................................... 29


Section 1.10 Certifications .............................................................................................................. 29

ARTICLE II The Credits ......................................................................................................................... 29

Section 2.01 Commitments ............................................................................................................. 29

Section 2.02 Disbursement of Loans ............................................................................................... 29

Section 2.03 Requests for Borrowings ............................................................................................ 30

Section 2.04 Borrower Representative ............................................................................................ 30

Section 2.05 Final DIP Loan Commitment Letter .......................................................................... 31

Section 2.06 Funding of Borrowings .............................................................................................. 32



Section 2.09 Repayment of Loans; Evidence of Debt ..................................................................... 33


Section 2.11 Prepayment of Loans .................................................................................................. 34

Section 2.12 Fees............................................................................................................................. 34

Section 2.13 Interest ........................................................................................................................ 34


Section 2.15 Increased Costs ........................................................................................................... 35


Section 2.17 Taxes .......................................................................................................................... 36

Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs ................................... 39

Section 2.19 Mitigation Obligations; Replacement of Lenders ...................................................... 40

Section 2.20 Super Priority Nature of Obligations and Lenders’ DIP Liens. ................................. 41


AMERICAS 101303185 ii

Section 2.21 No Discharge; Survival of Claims .............................................................................. 42

Section 2.22 Release ....................................................................................................................... 42

Section 2.23 Waiver of Certain Rights. ........................................................................................... 42

Section 2.24 Grant of Security; Security for Obligations; Debtors Remain Liable. ....................... 43

ARTICLE III Representations and Warranties .................................................................................... 44

Section 3.01 Organization; Powers ................................................................................................. 44

Section 3.02 Authorization; Enforceability ..................................................................................... 45

Section 3.03 Governmental Approvals; No Conflicts ..................................................................... 45

Section 3.04 Financial Condition; Budget; No Material Adverse Effect ........................................ 45

Section 3.05 Properties; Intellectual Property ................................................................................. 46

Section 3.06 Litigation and Environmental Matters ....................................................................... 46


Section 3.08 Investment Company Status ....................................................................................... 46

Section 3.09 Taxes .......................................................................................................................... 46

Section 3.10 ERISA ........................................................................................................................ 47

Section 3.11 Disclosure ................................................................................................................... 47

Section 3.12 Labor Matters ............................................................................................................. 47

Section 3.13 Subsidiaries ................................................................................................................ 47

Section 3.14 Chapter 11 Cases ........................................................................................................ 47

Section 3.15 Federal Reserve Regulations ...................................................................................... 47



Section 3.18 Security Interest .......................................................................................................... 48

Section 3.19 OFAC; FCPA; Patriot Act .......................................................................................... 48

Section 3.20 Orders ......................................................................................................................... 49

Section 3.21 No Default .................................................................................................................. 49

ARTICLE IV Conditions ......................................................................................................................... 49

Section 4.01 Closing Date ............................................................................................................... 49

Section 4.02 Final Order Closing Date ........................................................................................... 52

ARTICLE V Affirmative Covenants ....................................................................................................... 53

Section 5.01 Financial Statements and Other Information .............................................................. 53

Section 5.02 Notices of Material Events ......................................................................................... 56

Section 5.03 Cash Management ...................................................................................................... 56

Section 5.04 Existence; Conduct of Business ................................................................................. 56

Section 5.05 Payment of Taxes ....................................................................................................... 56


AMERICAS 101303185 iii

Section 5.06 Maintenance of Properties .......................................................................................... 57


Section 5.08 Books and Records; Inspection and Audit Rights ...................................................... 57



Section 5.11 Execution of Guaranty and Security Documents after the Closing Date ................... 58

Section 5.12 Further Assurances. .................................................................................................... 59



Section 5.15 60

Section 5.16 Compliance with Environmental Laws ...................................................................... 60

Section 5.17 ERISA ........................................................................................................................ 60

Section 5.18 Post-Closing Date Covenants ..................................................................................... 60

Section 5.19 Milestones .................................................................................................................. 60

Section 5.20 Bankruptcy Covenants ............................................................................................... 61

Section 5.21 Chapter 11 Cases ........................................................................................................ 62

Section 5.22 Budget Matters ........................................................................................................... 62

Section 5.23 Retention of Consultants; Communications with Accountants and other Financial Advisors. .................................................................................................................... 63

ARTICLE VI Negative Covenants .......................................................................................................... 64

Section 6.01 Indebtedness; Certain Equity Securities ..................................................................... 64

Section 6.02 Liens ........................................................................................................................... 66

Section 6.03 Fundamental Changes ................................................................................................ 68

Section 6.04 Investments ................................................................................................................. 68

Section 6.05 Asset Sales .................................................................................................................. 70

Section 6.06 Permitted Activities of Holdco ................................................................................... 71

Section 6.07 Sale Leaseback Transactions ...................................................................................... 72

Section 6.08 Restricted Payments; Certain Payments of Indebtedness ........................................... 72

Section 6.09 Transactions with Affiliates ....................................................................................... 73

Section 6.10 Restrictive Agreements .............................................................................................. 75

Section 6.11 Fiscal Year .................................................................................................................. 76

Section 6.12 Conduct of Business ................................................................................................... 76

Section 6.13 Amendments to Organizational Documents and Certain Junior Indebtedness .......... 76

Section 6.14 DIP Term Controlled Accounts. ................................................................................. 76



AMERICAS 101303185 iv

Section 6.16 Chapter 11 Claims ...................................................................................................... 77

Section 6.17 Revision of Orders; Applications to Bankruptcy Court; Superpriority Claims .......... 77

Section 6.18 Compliance with Budget. ........................................................................................... 77

Section 6.19 Investigation Rights .................................................................................................... 77

ARTICLE VII Events of Default ............................................................................................................. 78

Section 7.01 Events of Default ........................................................................................................ 78

Section 7.02 Remedies upon an Event of Default ........................................................................... 82


Section 7.04 Application of Proceeds ............................................................................................. 83

ARTICLE VIII The Administrative Agent ............................................................................................ 84

Section 8.01 Appointment of Agents .............................................................................................. 84

Section 8.02 Rights of Lender ......................................................................................................... 85

Section 8.03 Exculpatory Provisions............................................................................................... 85

Section 8.04 Reliance by Administrative Agent and Collateral Agent ........................................... 87

Section 8.05 Delegation of Duties ................................................................................................... 87

Section 8.06 Resignation or Removal of Agents; Successor, Administrative Agent and Collateral Agent ......................................................................................................... 87

Section 8.07 Non-Reliance on Agents and Other Lenders .............................................................. 88

Section 8.08 No Other Duties ......................................................................................................... 88

Section 8.09 DIP Collateral and Guaranty Matters ......................................................................... 88


Section 8.11 Withholding Tax ........................................................................................................ 89

Section 8.12 Indemnification of Agents .......................................................................................... 90

Section 8.13 Administrative Agent and Collateral Agent May File Proofs of Claim ..................... 91

Section 8.14 Chapter 11 Cases; Bankruptcy. .................................................................................. 91

ARTICLE IX Miscellaneous .................................................................................................................... 92

Section 9.01 Notices ........................................................................................................................ 92

Section 9.02 Waivers; Amendments ............................................................................................... 93

Section 9.03 Expenses; Indemnity; Damage Waiver ...................................................................... 96

Section 9.04 Successors and Assigns .............................................................................................. 99

Section 9.05 Survival .................................................................................................................... 106

Section 9.06 Counterparts; Integration .......................................................................................... 106

Section 9.07 Severability ............................................................................................................... 107

Section 9.08 Right of Setoff .......................................................................................................... 107

Section 9.09 Governing Law; Jurisdiction; Consent to Service of Process .................................. 107


AMERICAS 101303185 v

Section 9.10 WAIVER OF JURY TRIAL .................................................................................... 108

Section 9.11 Headings ................................................................................................................... 108

Section 9.12 Confidentiality .......................................................................................................... 108

Section 9.13 Interest Rate Limitation ............................................................................................ 109

Section 9.14 USA Patriot Act ....................................................................................................... 109

Section 9.15 Direct Website Communication ............................................................................... 109

Section 9.16 Intercreditor Agreement Governs ............................................................................. 110

Section 9.17 Bankruptcy Matters .................................................................................................. 111

Section 9.18 No Advisory or Fiduciary Responsibility ................................................................ 111

Section 9.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions ............... 112


AMERICAS 101303185 vi

SCHEDULES:

Schedule 1.01(a) Receivables Facilities Schedule 2.01 Term DIP Commitments Schedule 3.06 Disclosed Matters Schedule 3.13 Subsidiaries Schedule 5.18 Post-Closing Covenants Schedule 6.02(c) Existing Liens Schedule 6.04(c) Existing Investments Schedule 6.09 Transactions with Affiliates Schedule 9.01 Addresses for Notices

EXHIBITS:

Exhibit A Form of Borrowing Request Exhibit B Form of Interim Order Exhibit C [Reserved] Exhibit D [Reserved] Exhibit E Form of Guaranty Exhibit F Form of Note Exhibit G Form of Assignment and Assumption Agreement Exhibit H-1 Form of Affiliated Lender Assignment and Assumption Agreement Exhibit H-2 Form of Affiliated Institutional Lender Assignment and Assumption Agreement Exhibit I-1 Form of U.S. Tax Certificate (For Foreign Lenders That Are Not Partnerships For

U.S. Federal Income Tax Purposes) Exhibit I-2 Form of U.S. Tax Certificate (For Foreign Lenders That Are Partnerships For U.S.

Federal Income Tax Purposes) Exhibit I-3 Form of U.S. Tax Certificate (For Foreign Participants That Are Not U.S. Persons

or Partnerships For U.S. Federal Income Tax Purposes) Exhibit I-4 Form of U.S. Tax Certificate (For Foreign Participants That Are Partnerships For

U.S. Federal Income Tax Purposes) Exhibit J Form of Compliance Certificate Exhibit K Form of Initial Budget Exhibit L Form of Joinder


1

SUPERPRIORITY SECURED DEBTOR-IN-POSSESSION CREDIT AGREEMENT dated as of June [__], 2020 (this “Agreement”), among APC AUTOMOTIVE TECHNOLOGIES INTERMEDIATE HOLDINGS, LLC (F/K/A AP EXHAUST INTERMEDIATE HOLDINGS, LLC), a Delaware limited liability company (“Holdco”), APC AUTOMOTIVE TECHNOLOGIES, LLC (F/K/A AP EXHAUST ACQUISITION, LLC), a Delaware limited liability company (“AP Acquisition”), as a Borrower and as the Borrower Representative, CWD ACQUISITION, LLC, a Delaware limited liability company and a wholly-owned direct subsidiary of AP Acquisition (“CWD Buyer”), as a Borrower, CWD HOLDING CORP., a Delaware corporation, as a Borrower (“CWD Corp.” and, together with AP Acquisition and CWD Buyer, in their capacities as Borrowers, collectively the “Borrowers” and each individually a “Borrower”), the LENDERS party hereto from time to time and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent.

WHEREAS, capitalized terms used in these recitals shall have the respective meanings set forth for such terms in Article I;

WHEREAS, on June [__], 2020 (the “Petition Date”), the Borrowers and the other Loan Parties (collectively, the “Debtors” and, each individually, a “Debtor”) each commenced a chapter 11 case, which are being jointly administered under Case No. [__] (each a “Chapter 11 Case” and collectively, the “Chapter 11 Cases”), by filing separate voluntary petitions for reorganization under Chapter 11 of Title 11 of the U.S. Code, 11 U.S.C. 101 et seq. (the “Bankruptcy Code”), with the United States Bankruptcy Court for the District of Delaware (together with any other court having jurisdiction over the Chapter 11 Cases or any proceeding therein from time to time, the “Bankruptcy Court”). Each Debtor continues to operate its businesses and manage its properties as a debtor and debtor in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code;

WHEREAS, prior to the Petition Date, certain of the Lenders and/or certain of their affiliates or controlled funds provided financing to the Borrowers pursuant to that certain First Lien Credit Agreement, dated as of May 10, 2017, among the Borrowers, Holdco, the lenders party thereto from time to time, and Wilmington Trust, National Association, as the administrative agent and collateral agent thereunder (as successor to Jefferies Finance LLC in its capacities as administrative agent and collateral agent) (as amended by that certain First Amendment to First Lien Credit Agreement, dated as of November 2, 2019, that certain Second Amendment to First Lien Credit Agreement, dated as of April 29, 2020, and as may be further amended, restated, supplemented or otherwise modified through the Petition Date, the “Prepetition Term Credit Agreement”);

WHEREAS, the Borrowers have requested that the Lenders provide a senior secured, superpriority debtor-in-possession term loan facility to the Borrowers in the maximum aggregate principal amount of $50,000,000 (the “DIP Facility”) as further set forth herein. The Loans will be made for purposes set forth in Section 5.10.

WHEREAS, the Borrowers have requested the ABL DIP Lenders to extend credit to the Borrowers in the form of revolving credit commitments in an aggregate of $90,000,000 (the “ABL DIP Facility”) pursuant to the terms of that certain ABL DIP Facility Agreement.

WHEREAS, the Borrowers desire that all of their Obligations under the Loan Documents will be joint and several and all of the Guarantors will guaranty all of the Obligations under the Loan Documents;

WHEREAS, in order to secure the Obligations of Holdco, the Borrowers and the other Guarantors under the Loan Documents, the Borrowers and the Guarantors will grant to the Collateral Agent, for the benefit of Collateral Agent and all other Secured Parties, a security interest in and DIP Lien upon substantially all of the now existing and hereafter acquired personal and real property of the Borrowers and the Guarantors;


2

WHEREAS, the relative priority of the DIP Liens and security interests granted to secure the Obligations in relation to the Liens and security interests securing the Prepetition Term Obligations and certain other obligations will be set forth in the Interim Order and the Final Order;

WHEREAS, the Borrowers and the other Loan Parties will provide to the prepetition lenders and other prepetition secured parties under the Prepetition Term Credit Agreement and the other Prepetition Term Loan Documents, adequate protection in accordance with the Interim Order and the Final Order; and

WHEREAS, the Lenders are willing to extend such credit to the Borrowers and the other Loan Parties on the terms and subject to the conditions set forth herein and the Interim Order and the Final Order, as applicable.

NOW, THEREFORE, in consideration of the premises, provisions, covenants and mutual agreements contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Lenders are willing to extend such credit to the Borrowers on the terms and express conditions set forth herein, and accordingly the parties hereto agree as follows:

ARTICLE I

Definitions

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

“ABL DIP Agent” means Wells Fargo Bank, National Association, in its capacity as administrative agent and collateral agent under the ABL DIP Facility Documents, or any successor administrative agent and collateral agent under the ABL DIP Facility Documents.

“ABL DIP Facility” has the meaning specified therefor in the recitals.

“ABL DIP Facility Agreement” means the Superpriority Secured Debtor-in-Possession ABL Credit Agreement, dated as of the date hereof, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, in each case as and to the extent not prohibited by this Agreement and the ABL Intercreditor Agreement, among the Borrower, the other borrowers party thereto from time to time, the lenders and other financial institutions party thereto from time to time and the ABL DIP Agent.

“ABL DIP Facility Documents” means the “Loan Documents” as defined in the ABL DIP Facility Agreement, as the same may be amended, supplemented, waived, otherwise modified, extended, renewed, refinanced, or replaced from time to time, in each case as and to the extent not prohibited by this Agreement and the ABL Intercreditor Agreement.

“ABL DIP Lenders” means the lenders under the ABL DIP Facility Agreement.

“ABL DIP Loans” has the meaning assigned to the term “Loans” in the ABL DIP Facility Agreement.

“ABL DIP Obligations” means the “Obligations” as defined under the ABL DIP Facility Agreement.

“ABL Intercreditor Agreement” means that certain ABL Intercreditor Agreement, dated as of May 10, 2017, among Holdco, the Borrowers, the Subsidiaries party thereto, the Prepetition Term Collateral Agent and the Prepetition ABL Administrative Agent, as amended, restated, supplemented or otherwise modified from time to time.


3

“ABL Priority Collateral” has the meaning assigned to such term in the ABL Intercreditor Agreement and shall exclude, for the avoidance of doubt, all Term Priority Collateral.

“Accounting Change” has the meaning assigned to such term in Section 1.04.

“Administrative Agent” means Wilmington Trust, National Association, in its capacity as administrative agent for the Lenders hereunder and the other Loan Documents, and its successors in such capacity as provided in Article VIII.

“Administrative Agent’s Account” means the Administrative Agent’s account as the Administrative Agent may from time to time notify the Borrower Representative and the Lenders.

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

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

“Affiliated Institutional Lender” means an Affiliated Lender that is (a) engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course or (b) a bona fide debt fund that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course of its business and whose managers have fiduciary duties to the investors in such fund or investment vehicle independent of or in addition to their duties to any Sponsor.

“Affiliated Institutional Lender Assignment and Assumption Agreement” means an assignment and assumption entered into by a Lender with an Affiliated Institutional Lender, and accepted by the Administrative Agent pursuant to the terms hereof, in the form of Exhibit H-2 or any other form or changes thereto approved by the Administrative Agent and the Borrower Representative.

“Affiliated Lender” means a Lender that is a Sponsor or an Affiliate of a Sponsor, including any Affiliated Institutional Lender.

“Affiliated Lender Assignment and Assumption Agreement” means an assignment and assumption entered into by a Lender with an Affiliated Lender (other than an Affiliated Institutional Lender), and accepted by the Administrative Agent pursuant to the terms hereof, in the form of Exhibit H-1 or any other form or changes thereto approved by the Administrative Agent and the Borrower Representative.

“Agent” means any of the Administrative Agent or the Collateral Agent.

“Agent Fee Letter” means that certain Fee Letter, dated as of the date hereof, by and between the Borrowers and Wilmington Trust, National Association.

“Agent-Related Distress Event” means, with respect to the Administrative Agent or any Person that directly or indirectly Controls the Administrative Agent (each, a “Distressed Agent-Related Person”), a voluntary or involuntary case with respect to such Distressed Agent-Related Person under any Debtor Relief Law, or a custodian, conservator, receiver or similar official is appointed for such Distressed Agent-Related Person or any substantial part of such Distressed Agent-Related Person’s assets, or such Distressed Agent-Related Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Agent-Related Person to be, insolvent or bankrupt; provided that an Agent-Related Distress Event shall not be


4

deemed to have occurred solely by virtue of the ownership or acquisition of any Equity Interests in the Administrative Agent or any Person that directly or indirectly Controls the Administrative Agent by a Governmental Authority or an instrumentality thereof.

“Agreement” has the meaning assigned to such term in the introductory paragraph hereto.

“Anti-Corruption Laws” means applicable Laws relating to anti-bribery or anti-corruption which apply to the Loan Parties, their Subsidiaries, including Laws that prohibit the corrupt payment, offer, promise, or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any foreign government official, or foreign government employee to obtain an improper or undue business advantage, including the Foreign Corrupt Practices Act of 1977, as amended.

“Anti-Terrorism Laws” means Laws relating to terrorism or money laundering, including Executive Order No. 13224, the Patriot Act, the Laws comprising or implementing the Bank Secrecy Act, any Sanctions and the Laws administered by OFAC.

“A&P” has the meaning assigned to such term in Section 4.01(e).

“Applicable Margin” means, for any day with respect to the Loans, 10% per annum.

“Approved Fund” has the meaning assigned to such term in Section 9.04(b).

“AP Purchase Agreement” means that certain Equity Purchase Agreement, dated as of March 28, 2017 (together with all exhibits, annexes and schedules thereto, as amended, restated, supplemented or otherwise modified from time to time.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent pursuant to the terms hereof to the extent the Administrative Agent’s consent is required herein, substantially in the form of Exhibit G or any other form or changes thereto approved by the Administrative Agent and the Borrower Representative.

“Audax” means Audax Management Company, LLC together with its controlled investment affiliates and investment funds managed or advised by it or its controlled investment affiliates.

“Automatic Stay” shall mean the automatic stay imposed under Section 362 of the Bankruptcy Code.

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

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Bankruptcy Code” has the meaning assigned to such term in the recitals hereto.

“Bankruptcy Court” shall have the meaning assigned to such term in the recitals to this Agreement.

“Bankruptcy Plan” means a plan of reorganization filed by the Debtors in form and substance reasonably acceptable to the Required Lenders and, solely with respect to terms and provisions affecting the rights, protections, duties or obligations of the Agents or the Prepetition Term Agents, the Agents or the Prepetition Term Agents, as applicable consistent with the RSA and RSA Term Sheet; provided, that such


5

plan shall be reasonably acceptable to the Required Lenders, the Prepetition Term Agents, the Agents or the Prepetition Term Agents, as applicable.

“Blocked Person” means any Person: (a) listed in the annex to, or otherwise subject to the provisions of, Executive Order No. 13224; (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or otherwise subject to the provisions of, Executive Order No. 13224; (c) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Laws; (d) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224; or (e) a Person that is named on the most current SDN List or a Person 50% or greater owned by such Person or Persons.

“Board” means the Board of Governors of the Federal Reserve System of the United States of America.

“Borrower Materials” has the meaning assigned to such term in Section 5.01.

“Borrower Representative” has the meaning assigned to such term in Section 2.04.

“Borrowers” has the meaning assigned to such term in the introductory paragraph hereto.

“Borrowing” means the making of (a) Interim DIP Loans on the Closing Date and (b) Final DIP Loans on the Final Order Closing Date.

“Borrowing Date” means the Closing Date or the Final Order Closing Date, as the context requires.

“Borrowing Request” means a request by a Financial Officer of the Borrower Representative for a Borrowing in accordance with Section 2.03 substantially in the form of Exhibit A hereto.

“Budget” shall mean the Initial Budget, as amended and supplemented by any Budget Update delivered in accordance with Section 5.01(g) and approved by the Administrative Agent at the direction of the Required Lenders in accordance with Section 5.22.

“Budget Update” shall have the meaning assigned to such term in Section 5.01(g).

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.

“Capital Lease Obligations” of any Person means, subject to Section 1.04, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“Carve-Out” shall have the meaning assigned to such term in the then applicable Order.

“Carve-Out Reserves” shall have the meaning assigned to such term in the then applicable Order.

“Challenge” shall have the meaning assigned to such term in Section 6.19.

“Cash Equivalents” means:

(a) Dollars or any foreign currency held by Holdco, any Borrower or any of their Subsidiaries in the ordinary course of business;

(b) securities issued or directly and fully Guaranteed or insured by the United States or Canadian governments, the United Kingdom, a member state of the European Union or, in each case, any


6

agency or instrumentality of thereof (provided that the full faith and credit of such country or such member state is pledged in support thereof), having maturities of not more than two (2) years from the date of acquisition;

(c) certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits or bankers’ acceptances having maturities of not more than one (1) year from the date of acquisition thereof issued by (x) any Lender or Affiliate thereof or (y) by any bank or trust company (i) whose commercial paper is rated at least “A-2” or the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s (or if at the time neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) or (ii) (in the event that the bank or trust company does not have commercial paper which is rated) having combined capital and surplus in excess of $100,000,000;

(d) repurchase obligations for underlying securities of the types described in clauses (b) and (c) entered into with any Person referenced in clause (c) above;

(e) securities with maturities of one (1) year or less from the date of acquisition backed by standby letters of credit issued by any Person referenced in clause (c);

(f) commercial paper rated at the time of acquisition thereof at least “A-2” or the equivalent thereof by S&P or “P-2” or the equivalent thereof by Moody’s or carrying an equivalent rating by a Nationally Recognized Statistical Rating Organization, if both of the two named rating agencies cease publishing ratings of investments or, if no rating is available in respect of the commercial paper, the issuer of which has an equivalent rating in respect of its long-term debt, and in any case maturing within one (1) year after the date of acquisition thereof;

(g) readily marketable direct obligations issued by any state, commonwealth or territory of the United States of America, any province of Canada, the United Kingdom, any member of the European Union, any other foreign government or any political subdivision or taxing authority thereof, in each case, having one of the two highest rating categories obtainable from either Moody’s or S&P (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) with maturities of not more than two (2) years from the date of acquisition;

(h) [reserved];

(i) bills of exchange issued in the United States, the United Kingdom, Canada or Japan or a member state of the European Union eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);

(j) interests in any investment company, money market or enhanced high yield fund which invests at least 90% of its assets in instruments of the type specified in clauses (a) through (i) above;

(k) instruments and investments of the type and maturity described in clause (a) through (j) denominated in any foreign currency or of foreign obligors, which investments or obligors are, in the reasonable judgment of the Borrower Representative, comparable in investment quality to those referred to above; and

(l) the marketable securities portfolio owned by Holdco and its Subsidiaries on the Closing Date.

“Change in Control” means the occurrence of any of the following events after the Closing Date: (a) the Permitted Holders and their controlled affiliates ceasing to own, directly or indirectly, in the aggregate, beneficially (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), Equity Interests representing at least a majority of the aggregate ordinary voting power represented by the issued and


7

outstanding equity interests of Holdco, (b) a “change of control” (or similar event) shall occur in any document pertaining to the ABL DIP Facility, Prepetition ABL Loans, or the Prepetition Term Obligations; (c) Holdco shall cease to own, directly or indirectly through wholly-owned Subsidiaries, of record and beneficially, 100% of each class of outstanding Equity Interests of the Borrowers free and clear of all Liens (except Liens permitted under the Loan Documents) or (d) a change of control in accordance with the Bankruptcy Plan.

“Change in Law” means (a) the adoption of any law, rule, treaty or regulation after the Closing Date, (b) any change in any law, rule, treaty or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law”, regardless of the date enacted, adopted or issued.

“Chapter 11 Cases” shall have the meaning assigned to such term in the recitals to this Agreement.

“Charges” has the meaning assigned to such term in Section 9.13.

“CLO” has the meaning assigned to such term in Section 9.04(b).

“Closing Date” means the date on which the conditions precedent set forth in Section 4.01 shall have been satisfied or waived.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral Agent” means Wilmington Trust, National Association, in its capacity as collateral agent for the Secured Parties, and its successors in such capacity as provided in Article VIII.

“Commitment” means with respect to any Person, such Person’s Interim DIP Loan Commitment and Final DIP Loan Commitment.

“Committee” shall mean the official committee of unsecured creditors, if any, appointed in the Chapter 11 Cases.

“Communications” has the meaning assigned to such term in Section 9.15.

“Competitor” means any Person (a) that is an operating company directly and primarily engaged in substantially similar business operations as any Borrower and (b) any of such Person’s subsidiaries, in each case, identified in writing by the Borrower Representative to the Administrative Agent from time to time.

“Compliance Certificate” means a certificate, duly executed by a Financial Officer of the Borrower Representative, substantially in the form of Exhibit J annexed hereto.

“Confirmation Order” shall have the meaning assigned to such term in Section 5.19(i).

“Consultants” means Jefferies Finance LLC, in its role as investment banker and financial advisor to the Debtors.


8

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

“Controlled Entity” means, as to any Person, any other Person that is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

“Debtors” shall have the meaning assigned to such term in the recitals to this Agreement.

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

“Default” means any event or condition specified in Article VII that after notice, lapse of applicable grace periods or both would, unless cured or waived hereunder, constitute an Event of Default.

“Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans required to be funded by it or (ii) pay over to the Administrative Agent or any Lender any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower Representative or the Administrative Agent or any Lender in writing that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan cannot be satisfied), (c) has failed, within three (3) Business Days after request by the Administrative Agent or any Lender, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Loans under this Agreement, provided, that, such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Administrative Agent’s or Lender’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any debtor relief law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity. Any determination by the Administrative Agent or the Required Lenders that a Lender is a Defaulting Lender under any one or more of clauses (a) through (c) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender as of the date established therefor by the Administrative Agent or the Required Lenders in a written notice of such determination, which shall be delivered by the Administrative Agent (either on its own account or at the direction of the Required Lenders) to the Borrower Representative and each other Lender promptly following such determination.

“DIP Collateral” means all of the “DIP Collateral” as defined in Section 2.24, and assets and interests in assets and proceeds thereof now owned or hereafter acquired by any Loan Party in or upon which a DIP Lien is granted or purported to be granted by such Person in favor of the Collateral Agent, for the benefit of itself and the other Secured Parties, under any of the Loan Documents. For the avoidance of doubt, the DIP Collateral shall not include (and the DIP Liens shall not extend to) assets held by the Debtors in trust.


9

“DIP Liens” shall have the meaning assigned to such term in the then applicable Order.

“DIP Facility” has the meaning assigned to such term in the recitals to this Agreement.

“DIP Proceeds” shall mean the proceeds received by the Borrower from the Loans.

“DIP Term Control Agreement” means a deposit account, securities account or commodities account control agreement by and among the applicable Loan Party, the Collateral Agent and the depository, securities intermediary or commodities intermediary, and each in form and substance reasonably satisfactory in all respects to the Collateral Agent and the Required Lenders and in any event providing to the Collateral Agent “control” of such deposit account, securities or commodities account within the meaning of Articles 8 and 9 of the UCC.

“DIP Term Controlled Account” means a deposit account, securities account or commodities account maintained by a Loan Party and subject to a DIP Term Control Agreement or, in the case of any Loans funded on or prior to the date that a DIP Term Control Agreement is required to be in place pursuant to Section 5.03(b), a segregated account of the Borrowers holding solely DIP Proceeds; provided, that such deposit account, securities account or commodities account shall not be subject to any control agreement in favor of any Person other than a DIP Term Control Agreement.

“DIP Termination Date” shall mean the date that all Obligations will be due and payable in full in cash (except, in the case of clause (v) below, as otherwise expressly provided herein), which such date shall be the earliest of (i) the date that is ninety (90) days after the Petition Date, (ii) the consummation of any sale of all or substantially all of the assets of the Debtors pursuant to section 363 of the Bankruptcy Code, (iii) if the Final Order has not been entered, the date that is thirty-seven (37) calendar days after the Petition Date, (iv) the acceleration of the Loans and the termination of the Commitments pursuant to an Event of Default, and (v) the Effective Date.

“Disclosure Statement” shall have the meaning assigned to such term in Section 5.19(d).

“Disclosure Statement Order” shall have the meaning assigned to such term in Section 5.19(h).

“Disposition” or “Dispose” means the sale, transfer, license, lease (as lessor) or other disposition (including any Sale Leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any Equity Interests owned by such Person, or any notes or accounts receivable or any rights and claims associated therewith; provided that “Disposition” and “Dispose” shall be deemed not to include any issuance or sale by such Person of its Equity Interests or other securities to another Person.

“Disqualified Equity Interests” means Equity Interests that by their terms (or by the terms of any security into which they are convertible or for which they are exchangeable) (a) require the scheduled payment of any dividends, (b) mature or are mandatorily redeemable or subject to mandatory repurchase or redemption or repurchase at the option of the holders thereof, in whole or in part and whether upon the occurrence of any event, pursuant to a sinking fund obligation, on a fixed date or otherwise, prior to the date that is ninety-one (91) days after the then DIP Termination Date at such time of then outstanding Loans (other than upon (i) payment in full of the Obligations (other than contingent indemnification obligations for which no claim has been made) and termination of the Commitments or (ii) a “change in control” or (iii) an asset sale or similar event) or (c) are convertible or exchangeable, automatically or at the option of any holder thereof, into any Indebtedness (other than upon (i) payment in full of the Obligations (other than contingent indemnification obligations for which no claim has been made) and termination of the Commitments or (ii) a “change in control” or (iii) an asset sale or similar event); provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of Holdco (or any Parent Entity), Holdco or the Subsidiaries or by any such plan to such employees, such Equity Interests


10

shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by Holdco or if its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.

“Disqualified Lender” means any Person who is a Competitor of Holdco or any of its Subsidiaries that is identified in writing to the Administrative Agent by the Borrower Representative from time to time and any of their Affiliates (other than any Affiliate that is a bona fide debt fund (x) that is primarily engaged in investing in commercial loans and similar extensions of credit in the ordinary course, and (y) for which no personnel making investment decisions in respect of any equity fund which has a direct or indirect equity investment in such companies has the right to make any investment decisions or have access to non-public information regarding Holdco or any of its Subsidiaries) that is either identified in writing by the Borrower Representative from time to time or clearly identifiable on the basis of such Affiliate’s name. Any designation of Disqualified Lenders by the Borrower Representative at any time after the Closing Date in accordance with the foregoing shall not apply retroactively to disqualify any Person that has previously acquired an assignment or participation in the Loans or Commitments for so long as such Person continues to hold such Loans or Commitments.

“Dollars” or “$” refers to the lawful money of the United States of America.

“DOJ Action” means the pending judicial action, currently sealed, that has been filed by a relator on behalf of the United States against the Borrowers, asserting alleged violations of the False Claims Act, as disclosed by the Department of Justice to the Lenders prior to the Petition Date.

“DOJ Action Settlement Term Sheet” means that term sheet, annexed as an exhibit to the RSA, setting forth the terms of the settlement of the DOJ Action, in form and substance acceptable to the Required Lenders.

“DOJ Adverse Action” means any action (including, without limitation, any changes, amendments, or other modifications to the DOJ Action Settlement Term Sheet made by the Department of Justice) by the Department of Justice that materially deviates and is adverse to the Loan Parties or the Consenting Term Lenders (as defined in the RSA) (it being understood that any increase to the settlement amount or to the settlement payment structure shall constitute a material deviation) from the DOJ Action Settlement Term Sheet.

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

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

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Effective Date” shall have the meaning assigned to such term in Section 5.19(j).

“Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Approved Fund of any Lender, (ii) (A) any commercial bank organized under the laws of the United States or any state thereof, (B) any savings and loan association or savings bank organized under the laws of the United States or any state thereof, (C) any commercial bank organized under the laws of any other country or a political


11

subdivision thereof; provided that (1) such bank is acting through a branch or agency located in the United States or (2) such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country and (D) any other entity (other than a natural person) that is an “accredited investor” (as defined in Regulation D under the Securities Act) that extends credit or buys loans in the ordinary course, including insurance companies, investment or mutual funds or lease financing companies, and (iii) any Affiliated Lender (including any Affiliated Institutional Lender) and any Person who would be an Affiliated Lender upon completion of the relevant assignment subject to Section 9.04; provided that, in any event, Eligible Assignees shall not include (x) any natural person or (y) unless consented to in writing by the Borrower Representative (such consent shall be required regardless of whether a Default or Event of Default shall be continuing), any Disqualified Lender.

“Environment” means ambient air, surface water, groundwater, drinking water, land surface, sediments, subsurface strata and natural resources such as wetlands, flora and fauna.

“Environmental Law” means all binding and applicable treaties, laws, rules having the force and effect of law, regulations, codes, ordinances, orders, decrees, judgments, injunctions or agreements issued, promulgated or entered into by or with any Governmental Authority, relating in any way to the protection of the Environment, the preservation or reclamation of natural resources, the generation, management, Release or threatened Release of, or exposure to, any Hazardous Material or to workplace health and safety matters.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of medical monitoring, costs of environmental remediation or restoration, administrative oversight costs, consultants’ fees, fines, penalties or indemnities), of Holdco or any Subsidiary resulting from or based upon (a) any violation of any Environmental Law or permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

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

“Equity Investors” means, collectively, (a) the Sponsors, (b) any co-investors (other than the Sponsors or any person in clause (c) below) who are holders of the Equity Interests of Holdco (or any of the direct or indirect parent companies of Holdco) on the Closing Date and their respective controlled investment affiliates, and (c) the officers, directors, and other members of senior management of Holdco or any of its Subsidiaries, who as of the Closing Date beneficially own or have the right to acquire, directly or indirectly, Equity Interests of Holdco.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

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

“ERISA Event” means (a) any “reportable event”, as defined in Section 4043(c) of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived), (b) with respect to any Plan, a failure to satisfy the minimum funding standard under Section 412


12

of the Code or Section 302 of ERISA, whether or not waived, (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by any Loan Party or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan, (e) the receipt by any Loan Party or any ERISA Affiliate from the PBGC of any notice relating to an intention to terminate any Plan or Plans or the appointment of a trustee by the PBGC to administer any Plan, (f) the incurrence by any Loan Party or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan or (g) the receipt by any Loan Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Loan Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

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

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


“Excluded Property” means (i) any assets held by the Debtors in trust for a third party and (ii) the Funded Reserve Account (as defined in the Orders).

“Excluded Subsidiary” means Eastern Dorman, LLC.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient:

(a) any Taxes imposed on or measured by such Recipient’s net income (however denominated) and franchise Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office, or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Taxes imposed as a result of a present or former connection between the Recipient and the jurisdiction of the Governmental Authority imposing such Tax (other than any such connection arising from such Recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, and/or engaged in any other transaction pursuant to any Loan Document);

(b) any branch profits Taxes imposed under Section 884(a) of the Code, or any similar branch profits Tax, imposed by any jurisdiction described in clause (a);

(c) in the case of a Lender, any United States federal withholding Taxes that are imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect at the time such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower Representative under Section 2.19) (or designates a new lending office) except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive additional amounts from any Loan Party with respect to such withholding Tax pursuant to Section 2.17 of this Agreement or;

(d) any Taxes attributable to a Recipient’s failure to comply with Section 2.17(e) or Section 2.17(g), as applicable; and

(e) any Taxes imposed under FATCA.


13

“FATCA” means Sections 1471 through 1474 of the Code as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future Treasury regulations or official administrative interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code and any intergovernmental agreement (and any related laws, regulations or official administrative practices) implementing the foregoing.

“Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

“Fee Letters” means collectively, (i) that certain Fee Letter, dated as of the date hereby, by and among the Borrowers and the Lenders party thereto (the “Lender Fee Letter”) and (ii) the Agent Fee Letter.

“Final DIP Loan Commitment” means on the Final Order Closing Date, with respect to each Lender holding a Final DIP Loan Commitment, the commitment of such Lender to make a Final DIP Loan, which commitment is in the amount set forth opposite such Lender’s name on Schedule 2.01-2 under the caption “Final DIP Loan Commitment”, as amended to (i) reflect an increase thereto pursuant to a Final DIP Loan Commitment Letter or (ii) reflect assignments by or to such Lender pursuant to an Assignment and Assumption. The aggregate amount of the Final DIP Loan Commitments on the Final Order Closing Date shall be the lesser of (a) the DIP Facility in excess of the Interim DIP Loans and (b) such amount as approved by the Bankruptcy Court for funding on the Final Order Closing Date pursuant to the Final Order.

“Final DIP Loans” means the single draw term loans to be made on the Final Order Closing Date in an aggregate amount not to exceed the Final DIP Loan Commitments.

“Final DIP Loan Commitment Lenders” shall have the meaning assigned to such term in Section 2.05.

“Final DIP Loan Commitment Letter” shall have the meaning assigned to such term in Section 2.05.

“Final DIP Loan Commitment Letter Deadline” means the date that the Plan Supplement is required to be filed in the Chapter 11 Cases.

“Final Order” means an order entered by the Bankruptcy Court in the Chapter 11 Cases substantially in the form of the Interim Order (with only such modifications thereto as are necessary to convert the Interim Order to a final order and other modifications as are reasonably satisfactory in form and substance to the Administrative Agent (with respect to matters relevant to or affecting the Administrative Agent and Collateral Agent) and the Required Lenders in their sole discretion).

“Final Order Closing Date” means the date on which the conditions under Section 4.03 are satisfied or waived as reasonably determined by the Administrative Agent and the Required Lenders.

“Financial Officer” of any Person means the president, the chief financial officer, vice president of finance, principal accounting officer or treasurer of such Person (or, in the case of Holdco or any Person that is a foreign Subsidiary, a director of such Person).

“Foreign Lender” means a Lender that is not a U.S. Person.


14

“FTI” has the meaning assigned to such term in Section 4.01(e).

“GAAP” means, subject to the limitations set forth in Section 1.04, generally accepted accounting principles in the United States of America as in effect from time to time.

“Governing Body” means the board of directors or other body having the power to direct or cause the direction of the management and policies of a Person that is a corporation, company, partnership, trust, limited liability company, association, Joint Venture or other business entity.

“Governmental Authority” means the government of the United States of America or any other nation or, in each case, any political subdivision thereof, whether state, county, provincial, local or otherwise, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Granting Lender” has the meaning assigned to such term in Section 9.04(g).

“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term “Guarantee” shall not include (x) endorsements for collection or deposit in the ordinary course of business and (y) standard contractual indemnities or product warranties provided in the ordinary course of business; and provided further that the amount of any Guarantee shall be deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made and (ii) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee or, if such Guarantee is not an unconditional guarantee of the entire amount of the primary obligation and such maximum amount is not stated or determinable, the amount of such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith. The term “Guaranteed” has a meaning correlative thereto.

“Guarantors” means Holdco and each Subsidiary of Holdco that has Guaranteed the Obligations pursuant to the Guaranty, including each Borrower.

“Guaranty” means the Guaranty executed and delivered by Holdco and certain of its Subsidiaries on the Closing Date, substantially in the form of Exhibit E.

“Harvest” means Harvest Partners VII, L.P., together with its controlled investment affiliates and any investment fund or other entity managed by Harvest Partners, LP or any of its Affiliates, and which, directly or indirectly, are controlled by, or under common control with Harvest Partners, LP.

“Hazardous Materials” means all explosive or radioactive substances, materials or wastes, petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances, materials or wastes of any nature regulated pursuant to or which can give rise to liability under any Environmental Law.


15

“Holdco” has the meaning assigned to such term in the recitals to this Agreement.

“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services, (e) all obligations of the type described in clauses (a), (b), (c), (d), (f), (g), (h), (i), (j) or (k) of this definition of “Indebtedness” of others secured by (or for which the holder of such Indebtedness has an existing unconditional right to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed by such Person, (f) all Guarantees by such Person of obligations of the type described in clauses (a), (b), (c), (d), (e), (g), (h), (i), (j) or (k) of this definition of “Indebtedness” of others, (g) the principal component of Capital Lease Obligations of such Person, (h) all reimbursement obligations of such Person as an account party in respect of letters of credit and letters of guaranty (except to the extent such letters of credit, or letters of guaranty relate to trade payables and such outstanding amounts are satisfied within thirty (30) days of incurrence), (i) all reimbursement obligations, of such Person in respect of bankers’ acceptances (except to the extent such bankers’ acceptances relate to trade payables and such outstanding amounts are satisfied within thirty (30) days of incurrence), and (j) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Disqualified Equity Interests of such Person to the extent that such purchase, redemption, retirement or other acquisition is required to occur on or prior to the DIP Termination Date in effect at the time of issuance of such Equity Interests (other than as a result of a Change in Control, IPO, asset sale or similar event). The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner to the extent such Person is liable therefor as a result of such Person’s ownership interest in such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Notwithstanding the foregoing, in no event shall the following constitute Indebtedness: (u) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warrants or other unperformed obligations of the seller of such asset, (v) [reserved], (w) trade accounts payable, deferred revenues, liabilities associated with customer prepayments and deposits and other accrued obligations (including transfer pricing and accruals for payroll and other operating expenses accrued in the ordinary course of business), in each case incurred in the ordinary course of business, (x) operating leases, (y) customary obligations under employment agreements and deferred compensation and (z) prepaid or deferred revenue and deferred tax liabilities. Notwithstanding the foregoing, the term “Indebtedness” shall not include contingent post-closing purchase price adjustments, non-compete or consulting obligations or earn-outs to which the seller in an Acquisition or Investment may become entitled, excepts to the extent such items appear on such Person’s balance sheet as liabilities in accordance with GAAP. The amount of Indebtedness of any Person for purposes of clause (e) above shall (unless such Indebtedness has been assumed by such Person) be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.

“Indemnified Liabilities” has the meaning assigned to such term in Section 9.03(b).

“Indemnified Party” has the meaning assigned to such term in Section 9.03(b).

“Indemnified Taxes” means Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document.

“Information” has the meaning assigned to such term in Section 9.12.

“Initial Budget” shall mean a 13-week operating budget setting forth all forecasted receipts and disbursements on a weekly basis for such 13-week period beginning the week prior to the Petition Date, broken down by week, including the anticipated weekly uses of the DIP Proceeds for such period, which


16

shall include, among other things, available cash, cash flow, trade payables and ordinary course expenses and total expenses, fees and expenses relating to the DIP Facility, fees and expenses related to the Chapter 11 Cases (including professional fees and expenses), and working capital and other general corporate needs, which forecast shall be in form and substance satisfactory to the Administrative Agent at the direction of the Required Lenders. Such Initial Budget shall be in the form set forth in Exhibit K hereto. Until supplemented pursuant to Section 5.01(g) and approved by the Administrative Agent at the direction of the Required Lenders pursuant to Section 5.22, the Initial Budget shall constitute the “Budget”.

“Intellectual Property” shall mean:

(a) any copyright rights to any published or unpublished works of authorship or other copyrightable subject matter owned by any Loan Party, including in computer programs and software (whether in object code or source code), computer data bases, drawings and writings, and all copyright registrations and applications for registration that have been or may hereafter be issued or applied for thereon in the United States and any state thereof.

(b) all patents and patent applications and rights and interests in patents and patent applications owned or held by a Loan Party and all re-issues, divisions, continuations, renewals, extensions and continuations-in-part thereof and all issued patents and applications for issuance of patents that have been or may hereafter be issued or applied for thereon in the United States.

(c) all trademarks, service marks, designs, logos, indicia of origin, trade names, trade dress, corporate names, company names, business names, fictitious business names, trade styles and/or other source and/or business identifiers and applications pertaining thereto, owned by a Loan Party, or hereafter adopted and used, in its business, including all goodwill therein or arising therefrom, all trademark registrations and applications for trademark registration that have been or may hereafter be issued or applied for thereon in the United States or any state thereof.

(d) all trade secrets, trade secret rights, know-how, customer lists, processes of production, ideas, confidential business information, techniques, processes, formulas, and all other proprietary information, and all other intellectual property and similar rights.

(e) all rights to sue at law or in equity for any past, present, and future infringement, dilution, misappropriation, or other violation or impairment of any of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages and proceeds of suit, now or hereafter due and/or payable with respect thereto and all agreements related to the license, ownership, development, use or disclosure of any of the foregoing.

(f) all proceeds of any of the foregoing.

“Interest Payment Date” shall mean the first Business Day of each calendar month.

“Interim DIP Loan Commitment” shall mean, with respect to each Lender holding an Interim DIP Loan Commitment, the commitment of such Lender to make an Interim DIP Loan, which commitment is in the amount set forth opposite such Lender’s name on Schedule 2.01-1 under the caption “Interim DIP Loan Commitment”, as amended to reflect assignments by or to such Lender pursuant to an Assignment and Assumption. The aggregate amount of the Interim DIP Loan Commitments on the Closing Date shall be the lesser of (a) $30,000,000 and (b) such amount as approved by the Bankruptcy Court pursuant to the Interim Order.

“Interim DIP Loans” means the term loans to be made on the Closing Date, in an aggregate amount not to exceed the Interim DIP Loan Commitments.


17

“Interim Order” shall mean the interim order entered by the Bankruptcy Court in the Chapter 11 Cases (as the same may be amended, supplemented, or modified form time to time after entry thereof in a manner satisfactory to the Required Lenders in their sole discretion) substantially in the form of Exhibit B authorizing and approving, among other things, the DIP Facility and the Transactions, which interim order is in form and substance satisfactory to the Administrative Agent (with respect to matters relevant to or affecting the Administrative Agent and the Collateral Agent) and the Required Lenders in their sole discretion.

“Investigation Period” shall have the meaning assigned to such term in Section 6.19.

“Investment” means, whether directly or indirectly, (i) any purchase or other acquisition by Holdco or any of the Subsidiaries of, or of a beneficial interest in, any Equity Interests or Indebtedness of any other Person (including any Subsidiary), (ii) any acquisition and (iii) any loan or note (including guarantees) or advance constituting Indebtedness of such other Person (other than accounts receivable, credit card and debit card receivables, trade credit, advances to customers, advances to officers, directors, members of management and employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures, in each case, in the ordinary course of business) or capital contribution by Holdco or any of the Subsidiaries to any other Person (including any Subsidiary). The amount of any Investment outstanding as of any time shall be the original cost of such Investment (which, in the case of any Investment constituting the contribution of an asset or property, shall be based on Holdco’s good faith estimate of the fair market value of such asset or property at the time such Investment is made) plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment.

“K&S” has the meaning assigned to such term in Section 4.01(e).

“Known Events” means, the commencement and continuation of the Chapter 11 Cases, the events leading up to the Chapter 11 Cases, the effect of the bankruptcy, the conditions in the industry in which the Borrowers operate in as existing on the Closing Date and/or the consummation of transactions contemplated by the Debtors’ “first day” pleadings reviewed by the Administrative Agent or Required Lenders, or as disclosed to the Administrative Agent and the Lenders prior to the Petition Date.

“IRS” means the United States Internal Revenue Service.

“Joint Venture” means a joint venture, partnership or similar arrangement, whether in corporate, partnership or other legal form.

“Junior Indebtedness” shall mean, collectively, any Indebtedness of Holdco or any of its Subsidiaries that is (x) secured by a Lien that is junior in priority to the Lien securing the Obligations, (y) unsecured or (z) by its terms subordinated in right of payment to all or any portion of the Obligations.

“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities and executive orders, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.

“Lender Fee Letter” shall have the meaning assigned to such term in the definition of “Fee Letters”.

“Lender Group Consultant” shall have the meaning assigned to such term in Section 5.23(c).


18

“Lenders” means the Persons who are lenders providing Loans and/or have Commitments under this Agreement as of the Closing Date and any other Person that shall have become a party hereto as a Lender pursuant to Section 9.04, other than any such Person that ceases to be a party hereto pursuant to Section 9.04.

“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, charge, assignment by way of security, hypothecation, security interest or similar encumbrance given in the nature of a security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.

“Loan Documents” means this Agreement, the Guaranty, the Orders, the Security Documents, the Fee Letters and any other document executed in connection with the foregoing.

“Loan Parties” means Holdco, the Borrowers and the other Guarantors.

“Loans” means the Interim DIP Loans and the Final DIP Loans.

“Margin Stock” has the meaning assigned thereto in Regulation U of the Board.

“Material Adverse Effect” means other than with respect to any Known Events, any event, circumstance or condition that materially adversely affects: (i) the business, operations, properties or financial condition of Holdco and its Subsidiaries, collectively, (ii) the legality, validity or enforceability of any Loan Documents or the Orders, (iii) the rights and remedies of the Administrative Agent or the Lenders, taken as a whole, under the Loan Documents, (iv) the perfection or priority of the DIP Liens granted pursuant to the Orders and the other Loan Documents, or (v) the ability of the Borrowers and/or the Guarantors, taken as a whole, to perform their payment obligations under any Loan Document to which the Borrowers or any of the other Loan Parties is a party.

“Material Indebtedness” means any Indebtedness (other than the Loans) of Holdco or any Subsidiary an outstanding principal amount exceeding $1,000,000 at such time.

“Maximum Rate” has the meaning assigned to such term in Section 9.13.

“Milestone” has the meaning assigned to such term in Section 5.19.

“Moody’s” means Moody’s Investors Service, Inc.

“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which any Loan Party makes or is obligated to make contributions, or otherwise has any actual or contingent liability (including any liability on account of any ERISA Affiliate).

“Nationally Recognized Statistical Rating Organization” means a nationally recognized statistical rating organization within the meaning of Rule 436 under the Securities Act.

“Net Proceeds” means, with respect to any event, (a) the cash proceeds received in respect of such event, including (x) in the case of a Disposition of an asset (including pursuant to a Sale Leaseback transaction or a casualty or a condemnation or similar proceeding), any cash received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment or earn-out, but excluding any reasonable interest payments), but only as and when received, (y) in the case of a casualty, cash insurance proceeds, and (z) in the case of a condemnation or similar event, cash condemnation awards and similar payments received in connection therewith, minus (b) the sum of (i) all reasonable and documented fees and out of pocket expenses (including commissions, transfer taxes and legal, accounting and other professional and


19

transactional fees) paid or payable by Holdco and the Subsidiaries to third parties in connection with such event, (ii) in the case of a Disposition of an asset (including pursuant to a Sale Leaseback transaction or a casualty or a condemnation or similar proceeding), the amount of payments made or required to be made in respect of Indebtedness (other than Loans) secured by such asset or otherwise subject to mandatory prepayment (other than under this Agreement) as a result of such event, or which by applicable law be repaid out of the proceeds of such Disposition, casualty, condemnation or similar proceeding, (iii) the amount of all Taxes paid (or reasonably estimated to be payable or accrued as a liability under GAAP) by Holdco and the Subsidiaries as a result of such event (including, for the avoidance of doubt, income, withholding or other Taxes payable as a result of the distribution of such proceeds to Holdco or any Tax Distributions to be made with respect to such event), (iv) in the case of any Disposition or casualty or condemnation or similar proceeding by a non-wholly-owned Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (iv)) attributable to minority interests and not available for distribution to or for the account of a Borrower or a wholly-owned Subsidiary as a result thereof and (v) any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition.

“Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(c).

“Obligations” means all obligations of every nature of each Loan Party, including obligations from time to time owed to the Administrative Agent, the Collateral Agent, any other Agent, the other Lenders or any of them, arising under any Loan Document, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Loan Party, would have accrued on any Obligation, whether or not a claim is allowed against such Loan Party for such interest in the related bankruptcy proceeding), prepayment premiums, fees (including fees which, but for the filing of a petition in bankruptcy with respect to such Loan Party, would have accrued on any Obligation, whether or not a claim is allowed against such Loan Party for such fees in the related bankruptcy proceeding), expenses (including expenses which, but for the filing of a petition in bankruptcy solely with respect to such Loan Party, would have accrued on any Obligation, whether or not a claim is allowed against such Loan Party for such expenses in the related bankruptcy proceeding), indemnification or otherwise.

“OFAC” means the Office of Foreign Assets Control of the U.S. Treasury Department.

“Organizational Documents” of any Person means the charter, memorandum and articles of association, articles or certificate of organization or incorporation and bylaws or other organizational or governing or constitutive documents of such Person.

“Orders” shall mean, collectively, the Interim Order and the Final Order.

“Other Taxes” means all present or future recording, stamp, court, documentary, intangible, filing or similar Taxes arising from any payment made under any Loan Document or from the execution, delivery, performance, registration or enforcement of, or from the registration, receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Taxes described in clause (a)(ii) of the definition of “Excluded Taxes” (other than an assignment made pursuant to Section 2.19(b)).

“Parent” means APC Automotive Technologies Holdings, LLC, a parent company of AP Acquisition.

“Parent Entity” means any Person of which Holdco at any time is or becomes a subsidiary on or after the Closing Date (including, for the avoidance of doubt, as of the Closing Date, Parent) and any holding companies established by any Permitted Holder for purposes of holding its investment in any Parent Entity.


20

“Participant” has the meaning assigned to such term in Section 9.04(c).

“Participant Register” has the meaning assigned to such term in Section 9.04(e).

“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56 (signed into Law October 26, 2001)).

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

“Permitted Encumbrances” means:

(a) Liens imposed by law for taxes, assessments or other governmental charges or levies that are not yet due or delinquent, are not more than sixty (60) days overdue, are not required to be paid pursuant to Section 5.05 or are being contested in compliance with Section 5.05;

(b) carriers’, warehousemen’s, supplier’s, construction contractor’s, workmen’s, mechanic’s, materialmen’s, repairmen’s, landlords’ and other like Liens imposed by law or contract, arising in the ordinary course of business and securing obligations (i) that are not yet due or (ii) (x) that are not overdue by more than sixty (60) days, (y) are not required to be paid pursuant to Section 5.05 or (z) are being contested in compliance with Section 5.05;

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

(d) (i) Liens, pledges and deposits to secure the performance of bids, government contracts, trade contracts (other than for borrowed money), leases, statutory obligations, deductibles, co-payment, co-insurance, retentions, premiums, reimbursement obligations or similar obligations to providers of insurance, self-insurance or reinsurance obligations, surety, stay, customs and appeal or similar bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations) and other similar obligations and (ii) obligations in respect of letters of credit or bank guarantees that have been posted to support payment of the items set forth in clause (i) of this clause (d);

(e) attachment or judgment liens in respect of judgments or decrees that do not constitute an Event of Default under Section 7.01(j);

(f) easements, zoning restrictions, rights-of-way, encroachments, minor defects or irregularities in title and similar encumbrances on real property imposed by law or arising in the ordinary course of business and that either (i) individually or in the aggregate do not materially interfere with the ordinary conduct of business of Holdco and its Subsidiaries, taken as a whole or (ii) are described in a mortgage policy of title insurance or survey with respect to any real property;

(g) customary rights of first refusal and tag, drag and similar rights in Joint Venture agreements that are in existence as of the Closing Date;

(h) Liens arising from Cash Equivalents described in clause (d) of the definition of the term “Cash Equivalents”; and

(i) Liens on the relevant Receivables Assets arising from Receivables Facilities that constitute Permitted Factorings securing such Receivables Facilities.

“Permitted Factoring” has the meaning set forth in Section 6.01(a)(xxix).


21

“Permitted Holders” means the Equity Investors.

“Permitted Priority Lien” shall mean any of those existing Liens that under applicable law, are senior to, and have not been subordinated to, the DIP Liens granted in favor of the Collateral Agent under the Loan Documents, but only to the extent that such Liens are valid, perfected, enforceable and non-avoidable Liens as of the Petition Date; provided that the Carve-Out shall be deemed to be a Permitted Priority Lien for all purposes hereunder.

“Permitted Variance” shall mean, for the applicable “Testing Period” set forth in the table below, after giving effect to any Permitted Carryforward: (i) all favorable variances and (ii) an unfavorable variance of no more than the applicable percentage (set forth in the table below) for each of actual receipts, disbursements and net cash flow as compared to the budgeted receipts, disbursements and net cash flow, respectively, set forth in the Budget with respect to the applicable Testing Period; provided, that any disbursements in such Testing Period made from proceeds of favorable variances with respect to receipts in such Testing Period shall not be counted as disbursements for purposes of calculating unfavorable variances; and provided further that (x) the calculation of net cash flow for any Testing Period shall be with respect to operating net cash flow and shall exclude restructuring-related costs, and (y) the calculation of disbursements shall not include disbursements on account of the Debtors’ payment of professional fees in accordance with the Budget.

Testing Period (from Petition Date) Applicable Percentage

Percentage for Receipts

Percentage for Disbursements

Percentage for Net Cash Flow

Week 1 N/A NA N/A

Through Week 2 (cumulative) N/A 20% N/A







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

“Permitted Carryforward” means the amount of any projected disbursements, receipts or net cash flow set forth in the Budget for a Testing Period not expended in such Testing Period, which amounts shall carry forward into the next succeeding Testing Period and applied to increase the applicable amount thereof.

“Petition Date” has the meaning assigned to such term in the recitals to this Agreement.

“Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA) other than a Multiemployer Plan that is subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and is sponsored or maintained by any Loan Party or to


22

which any Loan Party has any liability or contingent liability (including any liability on account of any ERISA Affiliate).

“Plan Supplement” has the meaning assigned to such term in the Bankruptcy Plan.

“Platform” has the meaning assigned to such term in Section 5.01.

“Prepayment Event” means:

(a) any (i) Disposition of DIP Collateral (other than ABL Priority Collateral) that is not permitted by Section 6.05 and (ii) Disposition of ABL Priority Collateral or assets not constituting DIP Collateral that is not permitted by Section 6.05 so long as provided for in the Orders and the ABL Intercreditor Agreement and to the extent not otherwise required to be applied to ABL DIP Obligations and excluding ordinary course sales of ABL Priority Collateral;

(b) any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any DIP Collateral (other than ABL Priority Collateral (other than as provided for in the Orders and the ABL Intercreditor Agreement)) of Holdco or any Subsidiary; or

(c) the incurrence by Holdco or any Subsidiary of any Indebtedness or the receipt of Net Proceeds from the issuance of Equity Interests, in each case other than as permitted under Section 6.01.

“Prepetition ABL Administrative Agent” means Wells Fargo Bank, National Association, in its capacity as administrative agent and collateral agent under the Prepetition ABL Loan Documents, or any successor administrative agent and collateral agent under the Prepetition ABL Loan Documents.

“Prepetition ABL Credit Agreement” means the ABL Credit Agreement dated as of May 10, 2017, by and among Holdco, the Borrowers, the lenders party thereto in their capacities as lenders thereunder, the Prepetition ABL Administrative Agent, as agent and the other agents party thereto, as the same may be amended, restated, modified, supplemented, extended, renewed, refunded, replaced or refinanced from time to time in one or more agreements (in each case with the same or new lenders, guarantors, institutional investors or agents), in each case as and to the extent not prohibited by this Agreement and the ABL Intercreditor Agreement.

“Prepetition ABL Loan Documents” has the meaning assigned to the term “Loan Documents” in the Prepetition ABL Credit Agreement.

“Prepetition ABL Loans” has the meaning assigned to the term “Loans” in the Prepetition ABL Credit Agreement.

“Prepetition Term Agents” shall mean the “Agents” as defined in the Prepetition Term Credit Agreement as of the Closing Date.

“Prepetition Term Collateral” shall mean the “Collateral” as defined in the Prepetition Term Credit Agreement as of the Closing Date.

“Prepetition Term Collateral Agent” shall mean the “Collateral Agent” as defined in the Prepetition Term Credit Agreement as of the Closing Date.

“Prepetition Term Credit Agreement” shall have the meaning assigned to such term in the recitals to this Agreement.

“Prepetition Term Lenders” shall mean the “Lenders” as defined in the Prepetition Term Credit Agreement as of the Closing Date.


23

“Prepetition Term Liens” shall have the meaning assigned to such term in Section 5.10.

“Prepetition Term Loan Documents” shall mean the “Loan Documents” as defined in the Prepetition Term Credit Agreement as of the Closing Date.

“Prepetition Term Obligations” shall mean the “Obligations” as defined in the Prepetition Term Credit Agreement as of the Closing Date.

“Prepetition Payment” shall mean a payment (by way of adequate protection or otherwise) of principal or interest or otherwise on account of any prepetition Indebtedness, trade payables or other pre-petition claims against any Debtor.

“Prepetition Term Secured Parties” shall have the meaning assigned to such term in Section 2.23(b).

“Professional Costs” shall mean any payment or the obligation to make payment on account of fees and expenses incurred by professional advisors to the Loan Parties, the Lenders, the Agents, or any other party’s professional advisors, the fees and expenses of which are obligated to be paid by the Loan Parties (including, but not limited to, the fees and expenses of professional advisors to any committee appointed in the Chapter 11 Cases), the Lenders or the Agents in connection with the Chapter 11 Cases and/or the Loan Documents.

“Proposed Change” has the meaning assigned to such term in Section 9.02(c).

“Public Lender” has the meaning assigned to such term in Section 5.01.

“Receivables Assets” means (a) any accounts receivable owed to Holdco or a Subsidiary subject to a Receivables Facility and the proceeds thereof and (b) all collateral securing such accounts receivable, all contracts and contract rights, guarantees or other obligations in respect of such accounts receivable, all records with respect to such accounts receivable and any other assets customarily transferred together with accounts receivable in connection with a non-recourse accounts receivable factoring arrangement and which are sold, conveyed, assigned or otherwise transferred or pledged by Holdco to a commercial bank or an Affiliate thereof in connection with a Receivables Facility.

“Receivables Facility” means (i) the facilities listed on Schedule 1.01(a) hereto or (ii) an arrangement between Holdco or a Subsidiary and a commercial bank or an Affiliate thereof so long as (a) Holdco or such Subsidiary, as applicable, sells (directly or indirectly) to such commercial bank (or such Affiliate) accounts receivable owing by customers, together with Receivables Assets related thereto, (b) the obligations of Holdco or such Subsidiary, as applicable, thereunder are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to Holdco and such Subsidiary, (c) the financing terms, covenants, termination events and other provisions thereof shall be on market terms (as determined in good faith by the Borrower Representative), and shall include any guaranty in respect of such arrangement (d) such arrangement and the terms thereof are consistent with the past practices of Holdco and its Subsidiaries and (e) such arrangement is approved by the Required Lenders.

“Recipient” means, as applicable, (a) the Administrative Agent or (b) any Lender.

“Register” has the meaning assigned to such term in Section 9.04(b)(iv).

“Related Parties” means, with respect to any specified Person, (a) such Person’s Affiliates and Controlling Persons and (b) the respective partners, directors, officers, employees, trustees, agents, advisors and/or representatives of such Person and such Person’s Affiliates and Controlling Persons (in the case of


24

agents, advisors and/or representatives of such Person and such Person’s Affiliates and Controlling Persons, acting at the instructions of such Person or such Person’s Affiliates and Controlling Persons).

“Related Taxes” means:

(1) any franchise or similar Taxes required to maintain the corporate existence of Holdco or a Parent Entity; or

(2) if and for so long as each Borrower is a member of a group filing a consolidated, combined or unitary tax return with Holdco or any Parent Entity or a pass-through or disregarded entity for federal and state income tax purposes owned by Holdco or any Parent Entity, any consolidated, combined or unitary Taxes measured by income, and any Taxes imposed in lieu of Taxes measured by income, for which Holdco or such Parent Entity is liable that are attributable to such Borrower and/or its Subsidiaries up to an amount not to exceed the amount of any such Taxes that such Borrower and/or such Subsidiaries would have been required to pay on a separate company basis or on a consolidated basis if such Borrower and/or such Subsidiaries had paid Tax on a consolidated, combined or unitary basis on behalf of an affiliated group consisting only of such Borrower (deemed to be a parent corporation solely for this purpose) and/or such Subsidiaries. For the avoidance of doubt, no Borrower shall be permitted to make any Tax Distributions with respect to any Tax for which such Borrower has made distributions for Related Taxes.

“Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge or leaching into the Environment.

“Released Parties” shall have the meaning assigned to such term in Section 5.10.

“Remedies Notice Period” shall have the meaning assigned to such term in Section 7.02(a).

“Required Lenders” means, at any time, Lenders having Loans and unused Commitments representing more than 50% of the aggregate outstanding Loans and unused Commitments at such time; provided, that for any Required Lenders’ vote, (x) Loans held by Affiliated Lenders (other than Affiliated Institutional Lenders) shall be treated in accordance with Section 9.02(i) and (y) Loans held by Affiliated Institutional Lenders may not account for more than 49.9% of the amounts included in determining whether the Required Lenders have consented to any amendment or waiver.

“Requirement of Law” means, with respect to any Person, any statute, law, treaty, rule, regulation, order, executive order, ordinance, decree, official administrative pronouncement, writ, injunction or determination of any arbitrator or court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“Requisite Consenting Term A Lenders” shall have the meaning ascribed to such term in the RSA.

“Responsible Officer” of any Person means the chief executive officer, president or any Financial Officer of such Person, and any other senior officer (or, in the case of any such Person that is a foreign Subsidiary, director or managing partner or similar official) of such Person with responsibility for the administration of the obligations of such Person under this Agreement.

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in Holdco or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or termination of any Equity Interests in Holdco or any Subsidiary, or any option, warrant or other right to acquire any such Equity Interests in Holdco or any Subsidiary, other than the payment of compensation in the ordinary course of business to holders of any such Equity Interests who are employees of Holdco or any Subsidiary and other than payments of


25

intercompany indebtedness permitted under this Agreement to the extent set forth in the Budget. Notwithstanding the foregoing, Restricted Payments shall not include Tax Distributions set forth in the Budget.

“RSA” shall have the meaning assigned to such term in Section 4.01(t).

“RSA Term Sheet” shall have the meaning assigned to such term in the RSA.

“S&P” means S&P Global Ratings or any successor thereto.

“Sale Leaseback” means any transaction or series of related transactions pursuant to which Holdco or any of its Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.

“Sanctioned Country” means, at any time, a country or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Cuba, the Crimea region, Iran, North Korea, Sudan and Syria).

“Sanctioned Person” means, at any time, (a) any Person listed in any sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or by the United Nations Security Council, the European Union or any EU member state, or any other relevant Governmental Authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person 50% or greater owned by one or more Persons, or controlled by, any Person or Persons described in the foregoing clauses (a)-(b).

“Sanctions” means economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time by U.S. Governmental Authorities (including, but not limited to, OFAC, the U.S. Department of State and the U.S. Department of Commerce), the United Nations Security Council, the European Union, Her Majesty’s Treasury or any other relevant Governmental Authority.

“SDN List” is the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury.

“SEC” means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.

“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders and each Indemnified Party, and their respective successors and assigns.

“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.

“Security Documents” means the ABL Intercreditor Agreement and any other intercreditor agreement or subordination agreement entered into in connection with this Agreement, and each other security agreement or other instrument or document executed and delivered pursuant to Section 5.11, Section 5.12 or any other Security Document to secure the Obligations.

“Software” means any and all computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code; databases and compilations, including any and all data and collections of data, whether machine readable or otherwise; descriptions, flow-charts and other work product used to design, plan, organize and develop any of the


26

foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons; and all documentation including user manuals and other training documentation related to any of the foregoing.

“Sponsors” means Harvest and Audax.

“SPV” has the meaning assigned to such term in Section 9.04(g).

“subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, company, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the ordinary voting power for the election of the members of the governing body or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned or controlled by the parent and/or one or more subsidiaries of the parent.

“Subsidiary” means unless otherwise expressly provided, a subsidiary of Holdco.

“Superpriority DIP Claim” means all Obligations shall be entitled, on a joint and several basis, to the benefits of section 364(c)(1) of the Bankruptcy Code, having superpriority over any and all unsecured claims and all administrative expenses, including administrative expenses of the kind that are specified in sections 105, 326, 328, 330, 331, 365, 503(a), 503(b), 506(c), 507(a), 507(b), 546(c), 726, 1114 or any other provisions of the Bankruptcy Code, subject only to the Carve-Out to the extent set forth in the Orders.

“Tax Distributions” means, so long as Holdco is treated as a pass-through or disregarded entity for federal and state income tax purposes, any direct or indirect distribution (i) made to Holdco or any Parent Entity by any Subsidiary (but only to the extent such Subsidiary is treated as a pass-through or disregarded entity for federal and state income tax purposes) and (ii) from Holdco to its members, in each case (i) and (ii), in amounts and at times to enable such Holdco or Parent Entity to make tax distributions as contemplated in Section 5.1 of Parent’s Operating Agreement (as defined in the AP Purchase Agreement) in the form of such section on the date of execution of the AP Purchase Agreement and as may be amended, restated or otherwise modified in a manner not adverse to the Lenders (in their capacities as such). For the avoidance of doubt, no Borrower shall be permitted to make any Tax Distributions with respect to any Tax for which such Borrower has made distributions for Related Taxes.

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

“Term Loan Lender Group” shall have the meaning assigned to such term in the RSA.

“Term Priority Collateral” has the meaning assigned to such term in the ABL Intercreditor Agreement.

“Termination Notice” shall have the meaning assigned to such term in Section 7.02(a).

“Testing Period: shall have the meaning assigned to such term in the definition of “Permitted Variance.”

“Note” means a promissory note of the Borrowers payable to any Lender or its registered assigns, in substantially the form of Exhibit F hereto, evidencing the aggregate Indebtedness of the Borrowers to such Lender resulting from the Loans made by such Lender.

“Trading Price” has the meaning set forth in Section 9.04(j)(ii).


27

“Transaction Costs” means all premiums, fees, costs and expenses incurred or payable by or on behalf of Holdco, the Borrowers or any Subsidiary in connection with the Transactions or in connection with the negotiation, execution, delivery and performance of the Loan Documents and the transactions contemplated thereby, including to fund any original issue discount, upfront fees or legal fees and to grant and perfect any security interests.

“Transactions” means, collectively (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party, the Borrowings hereunder and the use of the proceeds thereof, and the grant of DIP Liens by the Loan Parties on the DIP Collateral pursuant to this Agreement, the Orders and the Security Documents, (b) the commencement and filing of the Chapter 11 Cases and (c) the payment of Transaction Costs.

“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any DIP Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies.

“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

“U.S. Tax Certificate” has the meaning assigned to such term in Section 2.17(e)(ii)(D).

“Variance Report” has the meaning assigned to such term in Section 5.01(g).

“wholly-owned Subsidiary” or “wholly-owned subsidiary” means, with respect to any Person at any date, a subsidiary of such Person of which securities or other ownership interests representing 100% of the Equity Interests (other than (x) directors’ qualifying shares or (y) shares issued to foreign nationals to the extent required by applicable law) are, as of such date, owned, controlled or held by such Person or one or more wholly-owned subsidiaries of such Person or by such Person and one or more wholly-owned subsidiaries of such Person. For the avoidance of doubt, “wholly-owned Subsidiary” means a wholly-owned Subsidiary that is a Subsidiary.

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

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.


Section 1.03 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, supplemented or otherwise modified (including pursuant to any permitted refinancing, extension, renewal, replacement, restructuring or increase (in each case, whether pursuant to one or more agreements


28

or with different lenders or different agents), but subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all of the functions thereof, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) 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, (f) any reference to any Requirement of Law shall, unless otherwise specified, refer to such Requirement of Law as amended, modified or supplemented from time to time and shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Requirement of Law, (g) the phrase “for the term of this Agreement” and any similar phrases shall mean the period beginning on the Closing Date and ending on the date that the Obligations are indefeasibly paid in full (other than contingent obligations not yet due and payable) in cash (which includes a conversion thereof into any exit financing of the Debtors pursuant to the terms of the Bankruptcy Plan and in accordance with the RSA), the term “manifest error” shall be deemed to include any clearly demonstrable error whether or not obvious on the face of the document containing such error and (h) all references to “knowledge” or “awareness” of any Loan Party or a Subsidiary thereof means the actual knowledge of a Responsible Officer of a Loan Party or such Subsidiary. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).

Section 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time. In the event that any Accounting Change (as defined below) shall occur and such change results in a change in the method of calculation of financial covenants, standards or terms in this Agreement, then Holdco, the Borrowers and the Required Lenders agree to enter into good faith negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Change with the desired result that the criteria for evaluating Holdco’s, the Borrowers’ and the Subsidiaries’ consolidated financial condition shall be the same after such Accounting Change as if such Accounting Change had not been made. Until such time as such an amendment shall have been executed and delivered by Holdco, the Borrowers, the Administrative Agent and the Required Lenders, all financial ratios, covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Change had not occurred. “Accounting Change” refers to any change in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC.

Notwithstanding anything in this Agreement to the contrary, any change in GAAP or the application or interpretation thereof that would require operating leases to be treated similarly as a capital lease shall not be given effect in the definitions of Indebtedness or Liens or any related definitions or in the computation of any financial ratio or requirement.


Section 1.06 Divisions. Any reference herein to a merger, consolidation, amalgamation, liquidation, winding up, dissolution, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, limited partnership or trust, or an allocation of assets to a series of limited liability company, limited partnership or trust (or the unwinding of such a division or allocation), as if it were a merger, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a


29

limited liability company, limited partnership or trust shall constitute a separate Person hereunder (and each division of any limited liability company, limited partnership or trust that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).


Section 1.08 Timing of Payment or Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on (or before) a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.


Section 1.10 Certifications. All certifications to be made hereunder by an officer or representative of a Loan Party shall be made by such a Person in his or her capacity solely as an officer or a representative of such Loan Party, on such Loan Party’s behalf and not in such Person’s individual capacity.

ARTICLE II

The Credits

Section 2.01 Commitments.

(a) Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of the Loan Parties contained herein, on the Closing Date, each Lender, agrees to severally, and not jointly or jointly and severally, to make an Interim DIP Loan to and for the account of the Borrowers as provided herein, in the aggregate amount of such Lender’s Interim DIP Loan Commitment (subject to any limitations contained within the Interim Order). The Interim DIP Loans shall be made in one draw on the Closing Date, and the Interim DIP Loan Commitments shall be immediately terminated after the funding of the Interim DIP Loans. Once repaid, no part of the Interim DIP Loans may be reborrowed.

(b) Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of the Loan Parties contained herein, on the Final Order Closing Date, each Lender, subject to, and in accordance with, this Agreement, agrees to severally, and not jointly or jointly and severally, make a Final DIP Loan to and for the account of the Borrowers as provided herein, in the amount of such Lender’s Final DIP Loan Commitment (subject to any limitations contained within the Interim Order or the Final Order, as applicable). The Final DIP Loans shall be made in one draw on the Final Order Closing Date, and the Final DIP Loan Commitments shall be immediately terminated after the funding of the Final DIP Loans. Once repaid, no part of the Final DIP Loans may be reborrowed.

(c) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder, provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

Section 2.02 Disbursement of Loans. Pending use in accordance with the Budget and subject to Section 5.03(b), all DIP Proceeds (including any intra-company transfers of such DIP Proceeds) shall be deposited into a DIP Term Controlled Account and invested at all times by the applicable Loan Party


30

in cash and Cash Equivalents. Any such DIP Proceeds may only be used by the Borrowers in accordance with the Budget.

Section 2.03 Requests for Borrowings. To request a Borrowing, the Borrower Representative shall notify the Administrative Agent of such request in writing not later than 1:00 p.m., New York City time, one (1) Business Day prior to the date of the proposed Borrowing. Each such written Borrowing Request shall specify the following information:

(i) the name of the Borrower(s);

(ii) whether the Borrowing is for Interim DIP Loans or the Final DIP Loans;

(iii) the aggregate amount of such Borrowing;

(iv) the date of such Borrowing, which shall be a Business Day; and

(v) the location and number of the Borrower(s’) DIP Term Controlled Account(s) to which funds are to be disbursed, which shall comply with the requirements of Section 2.06.

Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

Section 2.04 Borrower Representative. AP Acquisition hereby (i) is designated and appointed by the Borrowers as their representative and agent on their behalf (the “Borrower Representative”) and (ii) accepts such appointment as the Borrower Representative for the purposes of issuing a Borrowing Request, delivering certificates including Compliance Certificates, giving instructions with respect to the disbursement of the DIP Proceeds, giving and receiving all other notices and consents hereunder or under any of the other Loan Documents and taking all other actions (including in respect of compliance with covenants, but without relieving any Borrower of its obligations, on a joint and several basis where applicable, to pay and perform the Obligations) on behalf of any Borrower or the Borrowers under the Loan Documents. Administrative Agent and each Lender may regard any notice or other communication pursuant to any Loan Document from the Borrower Representative as a notice or communication from all Borrowers or the applicable Borrowers. Each warranty, covenant, agreement and undertaking made on behalf of a Borrower by the Borrower Representative shall be deemed for all purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower.

The Borrowers shall be jointly and several liable on a primary basis for all Loans and all

Obligations. The obligations of the Borrowers hereunder and under the other Loan Documents are joint and several. Each Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodation to be provided by the Lenders under this Agreement and the other Loan Documents, for the mutual benefit, directly and indirectly, of the other Borrowers and in consideration of the undertakings of the other Borrowers to accept joint and several liability for such Borrower. Each Borrower jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers with respect to the payment and performance of all of the Obligations, it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction between them. If and to the extent that any Borrower shall fail to make any payment with respect to any Obligation as and when due or to perform any Obligation in accordance with the terms thereof, then in each such event, the other Borrowers will make such payment with respect to, or perform, such Obligation. The obligations of each Borrower under the provisions of this Section 2.04


31

constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.

Except as otherwise expressly provided herein, each Borrower hereby waives, to the extent

permitted by applicable law, notice of acceptance of its joint and several liability. Except as otherwise expressly provided herein, each Borrower hereby waives, to the extent permitted by law, notice of any Loan made under this Agreement, notice of occurrence of any Default or Event of Default or of any demand for any payment under this Agreement, any notice of any action at any time taken or omitted by any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, to the extent permitted by applicable law, any extension or postponement of the time for the payment of any Obligation, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender at any time or times in respect of any default by the other Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any Obligation or the addition, substitution or release, in whole or in part, of the other Borrowers. The obligations of each Borrower under this Section 2.04 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower.

The provisions of this Section 2.04 are made solely for the benefit of the Administrative Agent, the Collateral Agent and the Lenders and their respective successors and assigns, and may be enforced in accordance with the terms of the Agreement and the Loan Documents against any Borrower without requirement first to marshal any of its claims or to exercise any of its rights against the other Borrowers or to exhaust any remedies available to it against the other Borrowers or to resort to any other source or means of obtaining payment of any Obligation or to elect any other remedy. If at any time, any payment, or any part thereof, made in respect of any Obligation, is rescinded or must otherwise be restored or returned by the Administrative Agent, the Collateral Agent or any Lender upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this Section 2.04 will forthwith be reinstated in effect, as though such payment had not been made.

Notwithstanding any provision to the contrary contained herein or in any other Loan Document, to

the extent the obligations of any Borrower as a surety shall be adjudicated to be invalid or unenforceable for any reason (including because of any applicable state, provincial or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal, state or provincial and including, without limitation, the Bankruptcy Code, as now constituted or hereafter amended, or any other applicable laws), after taking into account, among other things, such Borrower’s right of contribution and indemnification from each other Loan Party under applicable law.

Section 2.05 Final DIP Loan Commitment Letter. If by the Final DIP Loan Commitment Letter Deadline the Debtors receive an executed commitment letter by one or more Lenders (or such other party after approval by the Required Lenders) (such parties, the “Final DIP Loan Commitment Lenders”) providing a commitment of the remaining $6,500,000 to be funded on the Final Order Closing Date as a Final DIP Loan (a “Final DIP Loan Commitment Letter”), then the Borrower Representative shall promptly after receipt of such executed commitment letter (and in any event at least two Business Days prior to the Final Order Closing Date) provide the Administrative Agent with a written notice (a “Final


32

DIP Loan Commitment Notice”) setting forth (i) the name of the Final DIP Loan Commitment Lender(s) providing such Final DIP Loan Commitment(s) and (ii) the amount of the new Final DIP Loan Commitment to be provided by each such Final DIP Loan Commitment Lender (it being agreed that the Administrative Agent may conclusively rely on any such Final DIP Loan Commitment Notice as evidence that the consent of the Required Lenders has been obtained to any Final DIP Loan Commitment Lender that is not an existing Lender). If any Final DIP Loan Commitment Lender is not already a Lender hereunder, such Lender shall become a Lender hereunder prior to the Final Order Closing Date by executing and delivering a joinder to this Agreement in form and substance reasonably satisfactory to the Administrative Agent, together with an Administrative Questionnaire and any tax forms required by Section 2.17(e) or Section 2.17(g). Upon receipt by the Administrative Agent of a Final DIP Commitment Notice from the Borrower Representative (and, if any Final DIP Loan Commitment Lender is not an existing Lender, a joinder to this Agreement from such Final DIP Loan Commitment Lender), Schedule 2.01 shall be deemed automatically amended to reflect the Final DIP Loan Commitments of the Final DIP Loan Commitment Lenders. To the extent necessary, Final DIP Loan Commitment Lenders shall, pursuant to a master Assignment and Assumption (or individual Assignment and Assumptions) purchase from each of the Lenders with Commitments (and, in respect of Interim DIP Loan Commitments that have already been funded, Interim DIP Loans), at the principal amount thereof, such interests in the Commitments (or Interim DIP Loans) outstanding as of the Final Order Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Commitments and Interim DIP Loans, as applicable, will be held by existing Lenders and Final DIP Loan Commitment Lenders ratably in accordance with their Commitments after giving effect to the commitments under the Final DIP Loan Commitment Letter (it being agreed that the Administrative Agent shall not have any duties or responsibilities with respect to any such assignments and purchases, other than to record the assignments of the Interim DIP Loans and Commitments set forth in such Assignment and Assumption in the Register promptly following its receipt thereof).

Section 2.06 Funding of Borrowings.

(a) Subject to the satisfaction of the conditions set forth in Article IV, each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds on such date, in each case, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. Upon satisfaction or waiver of the conditions precedent specified herein and receipt of the full amount of the requested borrowing of Loans, the Administrative Agent will make such Loans available to the applicable Borrowers by wire transfer of the amounts so received, in immediately available funds, to one or more DIP Term Controlled Accounts specified in the applicable Borrowing Request. Notwithstanding anything to the contrary herein, any Lender may make any of its Loans to be made by it hereunder by wire transfer of immediately available funds directly to the DIP Term Controlled Accounts upon prior written notice (which may include e-mail) to the Administrative Agent (and the Administrative Agent may conclusively rely on such written notice as evidence that the Loan has been made by such Lender for purposing of maintaining the Register). Nothing in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.

(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption and in its sole discretion, make available to the applicable Borrowers a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower Representative severally agree to


33

pay to the Administrative Agent, within five (5) Business Days of written notice, such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the applicable Borrowers, to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrowers, a rate per annum equal to the Applicable Margin. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.



Section 2.09 Repayment of Loans; Evidence of Debt.

(a) The Borrowers hereby unconditionally promise to pay to the Administrative Agent for the ratable account of each Lender the then unpaid principal amount of, and unpaid accrued interest on, each Loan of such Lender made to the Borrowers, along with all other Obligations owing under any Loan Document, on the DIP Termination Date (or such earlier date on which the Loans become due and payable pursuant to Section 7.1) in cash without further application to or order of the Bankruptcy Court. Notwithstanding the foregoing sentence, in lieu of any applicable portion of the cash payments otherwise owed to the Lenders with respect to the Loans, the Lenders may receive non-cash consideration in the form of senior secured debt and equity in the reorganized Loan Parties on the Effective Date of the confirmed Bankruptcy Plan if the Bankruptcy Plan as contemplated by the RSA is confirmed pursuant to the Confirmation Order.

(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender to the Borrowers, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder to the Borrowers, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrowers for the account of the Lenders and each Lender’s share thereof.

(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein, provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrowers to repay the Loans and pay interest thereon in accordance with the terms of this Agreement; provided, further, that in the event of any inconsistency between the accounts maintained by the Administrative Agent pursuant to paragraph (c) of this Section and any Lender’s records, the accounts of the Administrative Agent shall govern.

(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower Representative shall promptly prepare, execute and deliver to such Lender a promissory note payable to such Lender and its registered assigns and substantially in the form of the applicable Exhibit F, provided that the delivery of any such note shall not be a condition precedent to the Closing Date. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to such payee and its registered assigns (and ownership shall at all times be recorded in the Register).


34

(f) Amounts repaid or prepaid in respect of Loans may not be reborrowed.


Section 2.11 Prepayment of Loans.

(a) The Borrowers shall have the right at any time and from time to time, without premium or penalty ), to prepay the Loans in whole or in part, as selected and designated by the Borrower Representative, subject to the requirements of this Section.

(b) Unless the Required Lenders otherwise agree, in the event and on each occasion that any Net Proceeds are received by or on behalf of Holdco or any Subsidiary in respect of any Prepayment Event, the Borrowers shall, within five (5) Business Days after such Net Proceeds are received, prepay in strict accordance with Section 2.11(e) the outstanding Loans in an aggregate amount equal to 100% of the amount of such Net Proceeds.

(c) The Borrower Representative shall notify the Administrative Agent in writing of any prepayment hereunder not later than 10:00 a.m., New York City time, two (2) Business Days before the date of the proposed prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each prepayment of the Loans shall be applied ratably. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13.

(d) The Administrative Agent will promptly notify each Lender holding the Loans of the contents of the Borrower Representative’s prepayment notice delivered pursuant to Section 2.11(c) and of such Lender’s pro rata share of the prepayment.

(e) Application of Prepayment. In connection with any voluntary prepayments by any Borrower pursuant to Section 2.11(a) and any mandatory prepayments by any Borrower of the Loans pursuant to Section 2.11(b), such prepayments shall be applied on a pro rata basis to the then outstanding Loans.

Section 2.12 Fees.

(a) The Borrowers agree to pay on a pro rata basis to each Lender (which is not a Defaulting Lender), the fees set forth in the Lender Fee Letter at the times and in the amounts specified therein.

(b) The Borrowers agree to pay to the Agents, for their own account, the administrative fees set forth in the Agent Fee Letter at the times and in the amounts specified therein.

(c) All fees shall be paid on the dates due, in Dollars, immediately available funds (unless otherwise provided in the Lender Fee Letter), to (i) the Agents (in the case of fees payable under the Agent Fee Letter) or (ii) the Lenders (in the case of fees payable under the Lender Fee Letter). Once paid, none of the fees shall be refundable under any circumstances.

Section 2.13 Interest.

(a) The Loans shall bear interest at the Applicable Margin.

(b) Notwithstanding the foregoing, immediately following the occurrence and during the continuance of an Event of Default, all overdue outstanding principal of, and all overdue interest on,


35

any Loan or any fee payable by the Borrowers hereunder or under any other Loan Document shall automatically bear interest, after as well as before judgment, at a rate per annum equal to 2.00% plus the rate as provided in paragraph (a) of this Section.

(c) Accrued interest on each Loan shall be payable in cash in arrears on each Interest Payment Date for such Loan, provided that (i) interest accrued pursuant to paragraph (b) of this Section shall be payable on written demand, and (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment.

(d) All interest hereunder shall be computed on the basis of a year of three hundred sixty (360) days for the actual days elapsed.


Section 2.15 Increased Costs.

(a) If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender;

(ii) impose on any Lender any other condition, cost or expense affecting this Agreement (other than Taxes); or

(iii) subject any Lender to any additional Taxes of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis of taxation of such Lender in respect thereof (except, in each case, for Indemnified Taxes or Other Taxes indemnifiable under Section 2.17 and any Excluded Taxes);

and the result of any of the foregoing shall be to materially increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan) of the Borrowers or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) then the Borrowers will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

(b) If any Lender determines in good faith that any Change in Law regarding capital or liquidity requirements has or would have the effect of materially reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by such Lender to the Borrowers to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital and liquidity adequacy), then from time to time the Borrowers will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

(c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower Representative (with a copy delivered to the Administrative Agent) and shall be conclusive absent manifest error. The Borrowers shall pay such Lender the amount shown as due on any such certificate within thirty (30) days after receipt thereof.


36

(d) 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 (x) the Borrowers shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than one hundred twenty (120) days prior to the date that such Lender notifies the Borrower Representative of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor and (y) the Borrowers shall not be required to compensate for any such amounts, if such Lender is applying this Section to the Borrowers in a manner that is inconsistent with its application of “increased cost” or other similar provisions under other syndicated credit agreements to similarly situated borrowers, and provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the one hundred twenty (120) day period referred to above shall be extended to include the period of retroactive effect thereof.


Section 2.17 Taxes.

(a) Each payment by or on account of any Loan Party under any Loan Document shall be made without withholding for any Taxes, unless such withholding is required by any Requirement of Law. If any applicable withholding agent is so required to withhold Taxes, then such withholding agent shall so withhold and shall timely pay the full amount of withheld Taxes to the relevant Governmental Authority in accordance with any applicable law. To the extent such Taxes are Indemnified Taxes or Other Taxes, then the amount payable by the applicable Loan Party shall be increased as necessary so that, net of such withholding (including any such withholding applicable to additional amounts payable under this Section 2.17), the applicable Lender (or, in the case of any amount payable to the Administrative Agent for its own account, the Administrative Agent) receives the amount it would have received had no such withholding been made.

(b) In addition, each Loan Party (i) shall pay any Other Taxes imposed on them to the relevant Governmental Authority in accordance with applicable law and (ii) shall indemnify each Recipient for any Other Taxes imposed on it in accordance with Section 2.17(d).

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

(d) The Loan Parties shall, jointly and severally, indemnify each Recipient for the full amount of any Indemnified Taxes or Other Taxes that are paid or payable by such Recipient (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.17) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted. The indemnity under this paragraph (d) shall be paid within thirty (30) days after the Recipient (or the Administrative Agent, on behalf of such Recipient) delivers to the applicable Loan Party a certificate stating the amount of Indemnified Taxes or Other Taxes so payable by such Recipient. Such certificate shall be conclusive of the amount so payable absent manifest error. Such Recipient shall deliver a copy of such certificate to the Administrative Agent.

(e) (i) Any Lender that is entitled to an exemption from, or reduction of, any applicable withholding Tax with respect to any payments under any Loan Document shall deliver to the Borrower Representative and the Administrative Agent, at the time or times reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower Representative or the Administrative Agent as will permit any such


37

payments to be made without, or at a reduced rate of, withholding. In addition, any Lender, if requested by the Borrower Representative or the Administrative Agent, shall deliver such other documentation prescribed by law or reasonably requested by the Borrower Representative or the Administrative Agent as will enable the Borrower Representative or the Administrative Agent to determine whether or not such Lender is subject to U.S. federal backup withholding or information reporting requirements, or any other U.S. or non-U.S. withholding requirements. Upon the reasonable request of the Borrower Representative or the Administrative Agent, any Lender shall update any form or certification previously delivered pursuant to this Section 2.17(e). If any form or certification previously delivered pursuant to this Section 2.17(e) expires or becomes obsolete or inaccurate in any respect with respect to a Lender, such Lender shall promptly notify the Borrower Representative and the Administrative Agent in writing of such expiration, obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so. Notwithstanding anything to the contrary in this Section 2.17(e)(i), the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.17(e)(ii)(A)-(E) or (iv) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Each Lender authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided to the Administrative Agent by such Lender pursuant to this Section 2.17(e).

(ii) Without limiting the generality of the foregoing, any Lender shall, if it is legally eligible to do so, deliver to the Borrower Representative and the Administrative Agent on or prior to the date on which such Lender becomes a party hereto, two duly completed and executed copies of whichever of the following is applicable:

(A) in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding;

(B) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party, IRS Form W-8BEN or W-8BEN-E (or any successor form, as applicable);

(C) in the case of a Foreign Lender for whom any payments under any Loan Document constitute income that is effectively connected with such Lender’s conduct of a trade or business in the United States, IRS Form W-8ECI (or any successor form);

(D) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code both (1) IRS Form W-8BEN or W-8BEN-E (or any successor form, as applicable) and (2) a certificate substantially in the form of the applicable Exhibit I (a “U.S. Tax Certificate”);

(E) in the case of a Foreign Lender that is not the beneficial owner of payments made under any Loan Document (including a partnership), (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this paragraph (e)(ii) that would be required of each such beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender; provided, however, that if the Lender is a partnership for U.S. federal income tax purposes and one or more of its partners are claiming the exemption for portfolio interest under Section 871(h) or 881(c) of the Code, such Lender may provide a U.S. Tax Certificate on behalf of such partners; or


38

(F) any other form prescribed by law as a basis for claiming exemption from, or a reduction of, U.S. federal withholding Tax together with such supplementary documentation necessary to enable the Borrower Representative or the Administrative Agent to determine the amount of Tax (if any) required by law to be withheld.

(iii) [Reserved].

(iv) If a payment made to any Recipient under any Loan Document would be subject to withholding Tax imposed under FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to the Borrower Representative and Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower Representative or the Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such other documentation reasonably requested by the Borrower Representative or the Administrative Agent as may be necessary for the Administrative Agent and the Borrowers to comply with their obligations under FATCA, to determine whether such Recipient has or has not complied with such Recipient’s FATCA obligations and to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (iv), “FATCA” shall include any amendments after the Closing Date.

(v) Notwithstanding any other provision of this clause (e), a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.

(f) If any Recipient determines, in its sole discretion (in good faith), that it has received a refund of any Indemnified Taxes as to which it has been indemnified pursuant to this Section 2.17 (including additional amounts paid by any Loan Party pursuant to this Section 2.17), it shall promptly pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of such Recipient and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrowers, upon the request of such Recipient, shall repay to such Recipient the amount paid to such indemnifying party pursuant to this Section 2.17(f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Recipient is required to repay such refund to such Governmental Authority. This Section 2.17(f) shall not be construed to require any Recipient to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any other Person. Notwithstanding anything to the contrary in this Section 2.17(f), in no event will any Recipient be required to pay any amount to an indemnifying party pursuant to this Section 2.17(f), the payment of which would place such Recipient in a less favorable net after-Tax position than the Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.

(g) On or before the date it becomes a party to this Agreement, any Administrative Agent that is a U.S. Person shall deliver to the Borrower Representative one (1) duly completed copy of IRS Form W-9, or any subsequent versions or successors to such form, certifying that such Administrative Agent is exempt from U.S. federal backup withholding. Notwithstanding anything to the contrary, nothing in this Section 2.17(g) shall require the Administrative Agent to deliver any documentation that it is not legally eligible to deliver as a result of any Change in Law after the Closing Date. Any Administrative Agent, and any successor or supplemental Administrative Agent, that is not a U.S. Person, shall deliver to


39

the Borrower Representative (i) two (2) duly completed copies of IRS Form W-8IMY certifying that it is a “U.S. branch” and that the payments are not effectively connected with the conduct of a trade or business in the United States and that it is using such form as evidence of its agreement with the Borrowers to be treated as a U.S. Person with respect to such payments (and the Borrowers and the Administrative Agent agree to so treat the Administrative Agent as a U.S. Person with respect to such payments as contemplated by Treasury Regulation Section 1.1441-1(b)(2)(iv)(A)) and (ii) two duly completed copies of IRS Form W-8ECI with respect to any amounts payable to the Administrative Agent for its own account.

(h) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes or Other Taxes attributable to such Lender (but only to the extent that the Loan Parties have not already indemnified the Administrative Agent for such Indemnified Taxes or Other Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Sections 9.04(c) and (e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (h).

(i) Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the commitments and the repayment, satisfaction or discharge of other obligations under any Loan Document.

Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.

(a) The Borrowers shall make each payment required to be made by them under any Loan Document (whether of principal, interest or fees, or of amounts payable under Section 2.15, Section 2.17 or otherwise) prior to the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff or counterclaim. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Account in Dollars and in same day funds not later than 2:00 p.m. New York City time on the date specified herein. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent’s Account, except that payments pursuant to Section 2.12, Section 2.15, Section 2.17 and Section 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. Unless otherwise provided herein, if any payment under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under each Loan Document of principal or interest in respect of any Loan shall be made in Dollars and, except as otherwise set forth in any Loan Document, all other payments under each Loan Document shall be made in Dollars. Unless otherwise provided for herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be


40

extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.

(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, towards the payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards the payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of the principal then due to such parties.

(c) If, other than as provided elsewhere herein, any Lender shall, by exercising any right of setoff or counterclaim, obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans, provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to (x) any payment or prepayment made by or on behalf of the Borrowers or any other Loan Party pursuant to and in accordance with the express terms of this Agreement, or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant or the termination of any Lender’s commitment and non-pro rata repayment of Obligations pursuant to Section 2.19(b).

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

(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.06(a) or (b), Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Section 2.19 Mitigation Obligations; Replacement of Lenders

(a) If any Lender requests compensation under Section 2.15 or Section 2.17, or if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or


41

Section 2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not be inconsistent with its internal policies or otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b) If any Lender requests compensation under Section 2.15 or Section 2.17, or if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender (and such Lender shall be obligated) to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that (i) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and accrued interest thereon, accrued fees and all other amounts payable to it hereunder from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts), (ii) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or payments and (iii) the Borrowers shall have paid to the Administrative Agent the processing and recordation fee specified in Section 9.04(b)(ii)(C).

(c) Any Lender being replaced pursuant to Section 2.19(b) above shall (i) execute and deliver an Assignment and Assumption with respect to such Lender’s Commitment and outstanding Loans (provided that the failure of any such Lender to execute an Assignment and Assumption shall not render such assignment invalid and such assignment shall be recorded in the Register) and (ii) deliver Notes, if any, evidencing such Loans to the Borrower Representative or Administrative Agent. Pursuant to such Assignment and Assumption, (A) the assignee Lender shall acquire all or a portion, as the case may be, of the assigning Lender’s Commitments and outstanding Loans, (B) all obligations of the Loan Parties owing to the assigning Lender relating to the Loan Documents and participations so assigned shall be paid in full by the assignee Lender or the Loan Parties (as applicable) to such assigning Lender concurrently with such assignment and assumption, and (C) upon such payment and, if so requested by the assignee Lender, the assignor Lender shall deliver to the assignee Lender the appropriate Note or Notes executed by the Borrowers, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to constitute a Lender hereunder with respect to such assigned Loans, Commitments and participations, except with respect to indemnification provisions under this Agreement, which shall survive as to such assigning Lender.

Section 2.20 Super Priority Nature of Obligations and Lenders’ DIP Liens.

(a) The priority of the Secured Parties’ DIP Liens on the DIP Collateral owned by the Loan Parties shall be set forth in the Interim Order and the Final Order.

(b) All Obligations shall constitute Superpriority DIP Claims.

(c) Upon entry of the applicable Order, the DIP Liens granted to the Collateral Agent for the benefit of the Lenders on the DIP Collateral shall be valid and automatically perfected on the basis with the priority set forth in the definition of “DIP Lien” herein and in the Orders.

(d) Except as set forth herein or in the Orders, the Debtors shall not seek approval of any other claim having a priority superior or pari passu to that granted to the Collateral Agent and Lenders by the Orders while any Obligations remain outstanding.


42

Section 2.21 No Discharge; Survival of Claims. Except as otherwise contemplated by the RSA, until indefeasible payment in full (other than contingent obligations not yet due and payable) in cash of the Loans and all other Obligations (which includes a conversion thereof into any exit financing of the Debtors pursuant to the terms of the Bankruptcy Plan and in accordance with the RSA), each of the Borrowers and the Guarantors agrees that (a) the Obligations hereunder shall not be discharged by the entry of an order confirming a plan of reorganization or liquidation in any Chapter 11 Case (and each of the Borrowers and the Guarantors, pursuant to Section 1141(d)(4) of the Bankruptcy Code, hereby waives any such discharge) and (b) the Superpriority DIP Claims and the DIP Liens granted to the Collateral Agent pursuant to the Orders and described in this Section 2.21 shall not be affected in any manner by the entry of an order confirming a plan of reorganization or liquidation in any Chapter 11 Case.

Section 2.22 Release. The Borrowers and the Guarantors hereby acknowledges effective upon entry of the Final Order, and subject to the terms thereof, that the Borrowers, the Guarantors and any of their Subsidiaries have no defense, counterclaim, offset, recoupment, claim or demand of any kind or nature whatsoever that can be asserted to reduce or eliminate all of any part of the Borrowers’, the Guarantors’ or any Subsidiaries’ liability to repay any Agent or any Lender as provided in this Agreement or to seek affirmative relief or damages of any kind or nature from any Agent or any Lender. Upon entry of the Final Order, the Borrowers and the Guarantors, each in their own right and on behalf of their bankruptcy estates, and on behalf of all their successors, assigns, Subsidiaries and any Affiliates and any Person acting for and on behalf of, or claiming through them, hereby fully, finally and forever release and discharge each Agent and the Lenders and all of the Agents’ and the Lenders’ respective officers, directors, servants, agents, attorneys, assigns, heirs, parents, subsidiaries, and each Person acting for or on behalf of any of them of and from any and all actions, causes of action, demands, suits, claims, liabilities, Liens, lawsuits, adverse consequences, amounts paid in settlement, costs, damages, debts, deficiencies, diminution in value, disbursements, expenses, losses and other obligations of any kind or nature whatsoever, in each case, existing at the time of entry of the Final Order, whether in law, equity or otherwise (including, without limitation, those arising under Sections 541 through 550 of the Bankruptcy Code and interest or other carrying costs, penalties, legal, accounting and other Professional Costs, and incidental, consequential and punitive damages payable to third parties), directly or indirectly arising out of, connected with or relating to this Agreement, the Interim Order, the Final Order and the transactions (including, for avoidance of doubt, the Transactions) contemplated hereby, and all other agreements, certificates, instruments and other documents and statements (whether written or oral) related to any of the foregoing. Notwithstanding anything herein to the contrary, the Borrowers and Guarantors shall not have any obligation to indemnify or hold harmless any Agent or any Lender hereunder with respect to liabilities to the extent they result from the actual fraud (other than in the case of the Agents), gross negligence or willful misconduct of such Agent or Lender, as applicable, as finally determined by a court of competent jurisdiction.

Section 2.23 Waiver of Certain Rights.

(a) On and after the Closing Date, and on behalf of themselves and their estates, and for so long as any Obligations shall be outstanding, the Borrowers and the other Loan Parties hereby irrevocably waive any right, pursuant to sections 364(c) or 364(d) of the Bankruptcy Code or otherwise, to grant any Lien of equal or greater priority than the DIP Liens securing the Obligations, or to approve a claim of equal or greater priority than the Obligations.

(b) The Final Order shall provide that in no event shall the Agents, the Lenders, the Prepetition Term Agents or the Prepetition Term Lenders under the Prepetition Term Credit Agreement (the “Prepetition Term Secured Parties”) be subject to the equitable doctrine of “marshalling” or any similar doctrine with respect to the DIP Collateral or the Prepetition Term Collateral, as applicable, and all proceeds shall be received and applied pursuant to the Final Order and the Loan Documents notwithstanding any other agreement or provision to the contrary.


43

(c) Subject to the Carve-Out, and only upon entry of the Final Order, the Debtors (on behalf of themselves and their estates) shall irrevocably waive, and shall be prohibited from asserting in the Chapter 11 Cases or any successor cases, (i) any surcharge claim under sections 105(a) or 506(c) of the Bankruptcy Code for any costs and expenses incurred in connection with the preservation, protection or enhancement of, or realization by the Agents, the Lenders, or the Prepetition Term Secured Parties upon the DIP Collateral or the Prepetition Term Collateral, and (ii) the Agents, the Lenders, and the Prepetition Term Secured Parties shall each be entitled to all of the rights and benefits of section 552(b) of the Bankruptcy Code, and the “equities of the case” exception under section 552(b) of the Bankruptcy Code shall not apply to the Agents, the Lenders, and the Prepetition Term Secured Parties with respect to proceeds, product, offspring or profits of any of the Prepetition Term Collateral or DIP Collateral.

Section 2.24 Grant of Security; Security for Obligations; Debtors Remain Liable.

(a) Subject to the Orders, each Debtor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a security interest in all of such Debtor’s right, title and interest in and to all of the following real and personal property, in each case whether now owned or existing or hereafter acquired, possessed or arising, whether tangible or intangible, wherever located, including any such property in which a security interest is granted to the Collateral Agent pursuant to, as applicable, the Loan Documents, the Orders, or any other order of the Bankruptcy Court to secure the Obligations (all of which collectively shall hereinafter be referred to as the “DIP Collateral”):

(i) all Accounts;

(ii) all Chattel Paper;

(iii) all Money and all Deposit Accounts, together with all amounts on deposit from time to time in such Deposit Accounts;

(iv) all Documents;

(v) all General Intangibles, including Payment Intangibles and all Intellectual Property;

(vi) all Goods, including Inventory, Equipment and Fixtures;

(vii) all Instruments;

(viii) all Investment Property;

(ix) all Letter-of-Credit Rights and other Supporting Obligations;

(x) all Records;

(xi) all Commercial Tort Claims;

(xii) all books and records relating to any of the foregoing;

(xiii) all leasehold interests in real property;

(xiv) rights, claims or causes of action that the Loan Parties may have with respect to DIP Collateral;

(xv) all present and future claims, rights, interests, assets and properties recovered by or on behalf of the Loan Parties or any trustee of any Loan Party (whether in the Chapter 11 Cases or any subsequent case to which any Chapter 11 Case is converted), including, without limitation, all such property recovered as a result of transfers or obligations avoided or actions maintained or


44

taken pursuant to, inter alia, Sections 542, 544, 545, 547, 548, 549, 550, 552 and 553 of the Bankruptcy Code, and the proceeds thereof, subject to the terms of the Orders; and

(xvi) all Proceeds and Accessions with respect to any of the foregoing DIP Collateral.

Each category of DIP Collateral set forth above shall have the meaning set forth in the UCC (to the extent such term is defined in the UCC), it being the intention of Debtors that the description of the DIP Collateral set forth above be construed to include the broadest possible range of assets.

(b) Notwithstanding anything herein to the contrary, and subject to the terms of the Orders, in no event shall the DIP Collateral include (nor shall any defined term used therein include), and no Grantor shall be deemed to have granted a security interest in, any of such Grantor’s rights or interests in any Excluded Property.

(c) This Agreement secures, and the DIP Collateral is collateral security for, the prompt payment in full when due and owing, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all Obligations. It is the intention of the parties that if the Collateral Agent shall fail to have a perfected Lien in any particular property or assets of any Loan Party for any reason whatsoever, the provisions of this Agreement and/or the other Loan Documents, together with the Orders, all financing statements and other public financing relating to Liens filed or recorded by the Collateral Agent against the Loan Parties and, with respect to all Loan Parties, the Orders and any other order entered by the Bankruptcy Court to secure the Obligations, would be sufficient to create a perfected DIP Lien in any property or assets that such Loan Party may receive upon the sale, lease, license, exchange, transfer or disposition of such particular property or assets, then all such “proceeds” of such particular property or assets shall be included in the DIP Collateral.

(d) Anything contained herein to the contrary notwithstanding, (a) each Debtor shall remain liable under any contracts and agreements included in the DIP Collateral, to the extent set forth therein, to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by the Collateral Agent of any of its rights hereunder or under any other Loan Document shall not release any Debtor from any of its duties or obligations under the contracts and agreements included in the DIP Collateral unless the Collateral Agent has expressly in writing assumed such duties and obligations and released the Debtors from such duties and obligations, and (c) the Collateral Agent shall not have any obligation or liability under any contracts, licenses, and agreements included in the DIP Collateral by reason of this Agreement, nor shall the Collateral Agent be obligated to perform any of the obligations or duties of any Debtor thereunder or to take any action to collect or enforce any claim for payment assigned hereunder unless the Collateral Agent has expressly in writing assumed such duties and obligations and released the Debtors from such duties and obligations.

ARTICLE III

Representations and Warranties

The Borrowers and Holdco, represent and warrant to the Lenders and the Administrative Agent that:

Section 3.01 Organization; Powers. Each of Holdco, the Borrowers and the Subsidiaries is (a) duly organized or incorporated, validly existing and, to the extent such concept is applicable in the corresponding jurisdiction, in good standing under the laws of the jurisdiction of its organization or incorporation and (b) subject to the entry by the Bankruptcy Court of the applicable Orders, has all requisite organizational or constitutional power and authority to (i) carry on its business as now conducted and as proposed to be conducted and (ii) to execute, deliver and perform its obligations under each Loan Document to which it is a party, except in the case of clauses (a) (other than with respect to the Borrowers)


45

and (b), where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

Section 3.02 Authorization; Enforceability. Subject to the entry by the Bankruptcy Court of the applicable Orders, this Agreement (and the lending transactions contemplated hereby to occur on the Closing Date) has been duly authorized by all necessary corporate, shareholder or other organizational action by each of Holdco and each Borrower and constitutes, and each other Loan Document to which any Loan Party is a party has been duly authorized by all necessary corporate, shareholder or other organizational action by such Loan Party. This Agreement and each other Loan Document have been duly executed and delivered by each Loan Party that is a party thereto. Subject to the entry by the Bankruptcy Court of the applicable Orders, each Loan Document constitutes, or when executed and delivered by such Loan Party, will constitute, a legal, valid and binding obligation of Holdco, the Borrowers or such other Loan Party (as the case may be), enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

Section 3.03 Governmental Approvals; No Conflicts. The execution, delivery and performance by the Loan Parties of the Loan Documents to which such Loan Parties are a party, the incurrence of Indebtedness hereunder and the granting of the Guarantees and security interests in respect thereof (a) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, in each case as of the Closing Date, (ii) filings and registrations of charges necessary to perfect the DIP Liens created under the Loan Documents and to release existing Liens (if any), (iii) stamping of any relevant Loan Documents, and (iv) the Interim Order and the Final Order, as applicable, (b) will not violate any Organizational Document of Holdco or any other Loan Party, (c) will not violate any Requirement of Law applicable to Holdco or any Subsidiary, (d) will not violate or result in a default under any indenture, agreement or other instrument in each case constituting Material Indebtedness binding upon Holdco or any Subsidiary or their respective assets, or give rise to a right thereunder to require any payment to be made by Holdco or any Subsidiary or give rise to a right of, or result in, termination, cancelation or acceleration of any obligation thereunder, in each case as of the Closing Date, and (e) will not result in the creation or imposition of any Lien on any asset of Holdco or any Subsidiary, except the DIP Liens created under the Loan Documents and Liens permitted under Section 6.02, except in the cases of clauses (a), (c) and (d) above where such violations, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

Section 3.04 Financial Condition; Budget; No Material Adverse Effect.

(a) The Borrower Representative has heretofore furnished to the Administrative Agent financial statements for the fiscal year 2019. Such financial statements present fairly, in all material respects, the consolidated financial position and the consolidated results of operations and consolidated cash flows of Holdco and its Subsidiaries as of such dates and for such periods in accordance in all material respects with GAAP (except, in the case of the unaudited financial statements, as permitted by the Securities and Exchange Commission), subject, in the case of the unaudited financial statements, to normal year-end audit adjustments and to any other adjustments described therein (including the notes thereto), the absence of footnotes and the inclusion of explanatory notes.

(b) The Borrower Representative has heretofore furnished to the Administrative Agent the Initial Budget. The Initial Budget and each Budget delivered thereafter are based on good faith estimates and assumptions believed by management of the Borrowers to be reasonable and fair in light of current conditions and facts known to the Borrowers at the time delivered.


46

(c) Since the Petition Date (and for the avoidance of doubt, other than the Known Events), no event, change or condition has occurred that has had, or would reasonably be expected to have, a Material Adverse Effect.

(d) Each Lender and the Administrative Agent hereby acknowledges and agrees that Holdco and its Subsidiaries may be required to restate historical financial statements as the result of the implementation of changes in GAAP, or the respective interpretation thereof, and that such restatements will not result in a Default or an Event of Default under the Loan Documents.

Section 3.05 Properties; Intellectual Property.

(a) Holdco and each Subsidiary has good title to, valid leasehold interests in, or rights to use, all its real and personal property material to its business, including the DIP Collateral, except for Liens permitted under Section 6.02 and minor defects in title and except where the failure to have such interest would not reasonably be expected to have a Material Adverse Effect.

(b) Holdco and each Subsidiary owns or has the right to use all Intellectual Property that is necessary for the operation of their respective businesses as currently conducted, except where the failure of the foregoing would not reasonably be expected to have a Material Adverse Effect. The operation of their respective businesses by Holdco and the Subsidiaries does not infringe upon or otherwise violate the proprietary rights of any third party, except where any such infringement or violation would not reasonably be expected to have a Material Adverse Effect.

Section 3.06 Litigation and Environmental Matters.

(a) Other than (i) the Known Events or (ii) as disclosed on Schedule 3.06, there are no actions, suits, investigations or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of Holdco, threatened in writing against Holdco or any Subsidiary as to which there is a reasonable possibility of an adverse determination and that, if adversely determined would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

(b) Except with respect to any other matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, neither Holdco nor any Subsidiary (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability or knows of any basis for which it would reasonably be expected for Holdco or any Subsidiary to become subject to any Environmental Liability or (iii) has received written notice of any claim with respect to any Environmental Liability.

Section 3.07 Compliance with Laws. Subject to the entry of the Orders, as applicable, Holdco and the Subsidiaries are in compliance with all Requirements of Law applicable to it or its property, except, where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

Section 3.08 Investment Company Status. None of Holdco, the Borrowers or any other Loan Party is required to be registered as an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.

Section 3.09 Taxes. Except for failures that would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, Holdco and each of the Subsidiaries have timely filed or caused to be filed all Tax returns and reports required to have been filed by them and have paid or caused to be paid all Taxes required to have been paid by it (including in its capacity as a withholding agent), except any Taxes that are being contested in good faith by appropriate proceedings for which


47

adequate reserves have been provided in accordance with GAAP or applicable foreign accounting principles or the payment of which are stayed by the Automatic Stay.

Section 3.10 ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would reasonably be expected to result in a Material Adverse Effect.

Section 3.11 Disclosure. As of the date of each Borrowing, the representations and warranties of Holdco and the Borrowers contained in any Loan Document or in any other documents, certificates or written statements furnished by or on behalf of Holdco or any Subsidiary to the Administrative Agent in connection with the transactions contemplated hereby (other than projections, budgets, forecasts, pro forma financial information and other forward-looking information and information of a general economic or general industry nature and other general market data), when taken as a whole, do not, as of the date furnished, contain any untrue statement of a material fact or omit to state any material fact (known to Holdco or the Borrowers, in the case of any document not furnished by any of them) necessary to make the statements therein not materially misleading in the light of the circumstances under which they were made (after giving effect to all supplements and updates thereto from time to time). As of the date of each Borrowing, Any projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by Holdco and the Borrowers to be reasonable at the time made and at the time delivered to the Agent, it being understood by the Agents and the Lenders that such projections as to future events (i) are not to be viewed as facts, (ii)(A) are subject to significant uncertainties and contingencies, which may be beyond the control of the Loan Parties, (B) no assurance is given by the Loan Parties that the results or forecast in any such projections will be realized and (C) the actual results may differ from the forecast results set forth in such projections and such differences may be material and (iii) are not a guarantee of performance and that actual results during the period or periods covered by any such projections may vary significantly from the projected results and such differences may be material.

Section 3.12 Labor Matters. There are no strikes, work stoppages or labor disputes against Holdco or any Subsidiary pending or, to the actual knowledge of Holdco, threatened in writing that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 3.13 Subsidiaries. As of the Closing Date, Schedule 3.13 sets forth, the name of and the ownership by Holdco and its Subsidiaries in, each Subsidiary and identifies each Subsidiary that is a Loan Party as of the Closing Date.

Section 3.14 Chapter 11 Cases. The Chapter 11 Cases were commenced on the Petition Date in accordance with applicable law and proper notice has been or will be given of (i) the motion seeking approval of the Loan Documents, the Interim Order and the Final Order, (ii) the hearing for the entry of the Interim Order, and (iii) the hearing for the entry of the Final Order, as applicable.

Section 3.15 Federal Reserve Regulations.

(a) None of Holdco, the Borrowers or any Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock.

(b) Taking into account all of the Transactions, no part of the DIP Proceeds will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a violation of the provisions of the regulations of the Board, including Regulation T, U or X.

Section 3.16 Insurance. Holdco and each Subsidiary maintain, with financially sound and reputable insurance companies, material insurance in such amounts (after giving effect to any self-


48

insurance reasonable and customary for similarly-situated Persons engaged in the same or similar business) and against such risks as is (i) customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations as reasonably determined by management of Holdco or (ii) considered adequate by Holdco.

Section 3.17 Use of Proceeds. The proceeds of the Loans will be used in accordance with Section 5.10.

Section 3.18 Security Interest. This Agreement, the Orders and the Security Documents, subject to entry of the Orders, are effective to create in favor of the Collateral Agent, subject to the Carve-Out for the benefit of the Secured Parties legal, valid and enforceable DIP Collateral and continuing first-priority Liens on, and security interests in, the DIP Collateral pledged hereunder or thereunder, in each case, with respect to priority, subject to no Liens other than Permitted Priority Liens with the relative priorities granted pursuant to the terms of the Orders. Pursuant to the terms of the Interim Order and/or Final Order, no filing or other action will be necessary to perfect or protect such DIP Liens and security interests. Pursuant to and to the extent provided in the Interim Order and the Final Order, the Indebtedness of the Debtors under this Agreement will constitute part of the Superpriority DIP Claim.

Section 3.19 OFAC; FCPA; Patriot Act.

(a) Use of Proceeds. No part of the DIP Proceeds will be used, directly or indirectly, (A) to fund or finance any unlawful activities or business of or with any Sanctioned Person or in any Sanctioned Country or (B) for any unlawful payments to any official or employee of a Governmental Authority, 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 or undue advantage in violation of Anti-Corruption Laws.

(b) Anti-Terrorism Laws, Etc. Without limiting the foregoing, no Loan Party, any of its Controlled Entities, nor any of their respective directors, officers, employees nor, to the knowledge of any Loan Party, any of their agents, (i) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Laws, or (ii) is a Blocked Person. No Loan Party nor any of its Controlled Entities (x) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (y) deals in, or otherwise engages in any transaction relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Laws. The Loan Parties, their Controlled Entities, their respective directors, officers, employees and, to the knowledge of the Loan Parties, their agents, have been in material compliance with any Anti-Terrorism Laws.

(c) Anti-Corruption Laws, Etc. In the two (2) years prior to the Closing Date, there has been no action taken by any Loan Party, any of its Controlled Entities, nor any of their respective officers, directors or employees, nor, to the knowledge of any Loan Party, any of their respective agents, in violation of any applicable Anti-Corruption Law. None of the Loan Parties or any of their Controlled Entities has been convicted of violating any Anti-Corruption Laws nor have been made aware of any investigation by a Governmental Authority for violation of any applicable Anti-Corruption Laws. To the knowledge of any Responsible Officer of Holdco, there is no material suit, litigation, arbitration, claim, audit, action, proceeding or investigation pending or threatened against the Loan Parties or any of their Controlled Entities related to any applicable Anti-Corruption Laws. None of the Loan Parties or any of their respective Subsidiaries has conducted or initiated any internal investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority with respect to any alleged act or omission arising under or relating to any noncompliance with any Anti-Corruption Law. In the three (3)


49

years prior to the Closing Date, none of the Loan Parties or any of their respective Subsidiaries has received any written notice, request or citation for any actual or potential noncompliance with any of the foregoing.

(d) Foreign Assets Control Regulations and Anti-Money Laundering. Each Loan Party and its Controlled Entities is and will remain in compliance with all Sanctions, and will remain in compliance with all applicable anti-money laundering and counter-terrorism financing provisions of the Bank Secrecy Act and all regulations issued pursuant to it. No Loan Party, Controlled Entity of a Loan Party, and, to the knowledge of the Loan Party, no officer, director or employee of the foregoing and to Holdco’s knowledge no agent or subsidiary that will act in any capacity with or benefit from the credit facility governed by this Agreement is (A) a Sanctioned Person or (B) located, organized or resident in a Sanctioned Country.

Section 3.20 Orders. As of the date of each Borrowing, the Loan Parties are in compliance in all material respects with the terms and conditions of the Orders. Each of the Interim Order (with respect to the period prior to the entry of the Final Order) or the Final Order (from after the date the Final Order is entered), as applicable, is in full force and effect, shall not have been reversed, vacated or stayed and shall not have been amended, supplemented or otherwise modified without the prior written consent of the Administrative Agent acting at the direction of the Required Lenders, and solely with respect to terms and provisions affecting the rights, protections, duties or obligations of the Agents, the Administrative Agent in its sole and absolute discretion, in each case, except for any such modification, stay, vacation, reversal, rescindment or amendment that is reversed within five (5) Business Days.

Section 3.21 No Default. No Loan Party nor any of their Subsidiaries are in default under any of the Loan Documents and no Event of Default exist and is continuing.

ARTICLE IV

Conditions

Section 4.01 Closing Date. The Agreement and the obligations of the Lenders to make the Interim DIP Loans on the Closing Date shall not become effective until the date on which each of the following express conditions is satisfied (or waived by the Administrative Agent and the Required Lenders):

(a) The Administrative Agent (or its counsel) and the Required Lenders (or their counsel) shall have received: (A) from Holdco and the Borrowers either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission (including Adobe pdf file) of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement, (B) from the Loan Parties executed counterparts of the Guaranty to be entered into on the Closing Date and (C) with respect to the Borrowers and each other Loan Party, UCC-1 financing statements in a form appropriate for filing in the state of organization of such Loan Party together with the results of customary UCC searches against the Loan Parties.

(b) All documentation (including in respect of a commitment by the ABL DIP Lenders to make available an asset-backed credit facility upon the Effective Date) relating to the ABL DIP Facility shall be in form and substance satisfactory to the Required Lenders.

(c) The Administrative Agent and the Required Lenders (or their counsel) shall have received: (i) a copy of each Organizational Document of the Borrowers and the Guarantors as of the Closing Date and, to the extent applicable, certified as of a recent date by the appropriate governmental official; (ii) signature and incumbency certificates of the officers of such Person executing the Loan Documents to which it is a party as of the Closing Date; (iii) resolutions of the board of directors or similar governing


50

body of the Borrowers and the Guarantors approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which such Loan Party is a party as of the Closing Date, certified as of the Closing Date by such Loan Party as being in full force and effect without modification or amendment; and (iv) a good standing certificate (to the extent such concept is known in the relevant jurisdiction) from the applicable Governmental Authority of the Borrowers and the Guarantors’ respective jurisdiction of incorporation, organization or formation dated a recent date prior to the Closing Date.

(d) The Administrative Agent shall have received a Borrowing Request relating to the Interim DIP Loan in accordance with Section 2.03.

(e) All reasonable and documented (in summary form) out-of-pocket fees, costs, disbursements and expenses, accrued and unpaid as of the Closing Date, of (i) the Administrative Agent (limited, in the case of counsel, to all reasonable and documented out-of-pocket fees, costs, disbursements and expenses of the Administrative Agent’s outside counsel, Arnold & Porter Kaye Scholer LLP (“A&P”) and any successor counsel, and, to the extent necessary, one firm of local counsel engaged by the Administrative Agent in connection with the Debtors’ Chapter 11 Cases), (ii) the Term Loan Lender Group (limited, in the case of counsel, financial advisors and other outside professional advisors to all reasonable and documented fees, costs, disbursements and expenses of the Term Loan Lender Group’s outside counsel, King & Spalding LLP (“K&S”), and, to the extent necessary, one firm of local counsel engaged by the Term Loan Lender Group in connection with the Debtors’ Chapter 11 Cases), (iii) FTI Consulting (“FTI”), as financial advisor to the Term Loan Lender Group, and (iv) any other professional advisors retained by the Administrative Agent at the direction of the Required Lenders in their reasonable discretion, or the Term Loan Lender Group, in their reasonable discretion, shall have been paid in full in cash (which payment may be made from DIP Proceeds), in each case to the extent invoices for any such accrued and unpaid amounts are provided to the Debtors no later than three (3) Business Days prior to the Closing Date. The Administrative Agent shall have received a fully executed copy of the Agent Fee Letter, and the payment of the agency fee payable thereunder on the Closing Date and the Lenders shall have received a fully executed copy of the Lender Fee Letter and the payment of the fees thereunder on the Closing Date.

(f) At the time of and immediately after giving effect to the Interim DIP Loans, no Default or Event of Default shall have occurred and be continuing.

(g) The making of the Interim DIP Loans shall not violate any Requirement of Law and shall not be enjoined, temporarily, preliminarily or permanently.

(h) Other than the Orders, there shall not exist any law, regulation, ruling, judgment, order, injunction or other restraint that prohibits, restricts or imposes a materially adverse condition on the DIP Facility or the exercise by the Collateral Agent at the direction of the Required Lenders of its rights as a secured party with respect to the DIP Collateral.

(i) The Administrative Agent and the Required Lenders (or their counsel) shall have received a certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower Representative, confirming compliance with the conditions precedent set forth in paragraphs (f), (g), (h), (k), (l) and (p) of Section 4.01.

(j) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date, all documentation and other information required by the Administrative Agent and regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act. For all such documentation and information, the Administrative Agent shall make a request reasonably prior to the deadline to deliver such documentation or information.


51

(k) The representations and warranties of each Loan Party set forth in Article 3 and in each of the Loan Documents shall be true and correct in all material respects on and as of the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date).

(l) Since the Petition Date, other than the Known Events, there has been no event or circumstance, either individually or in the aggregate, that could reasonably be expected to have a Material Adverse Effect.

(m) Other than as a result of or in connection with the Chapter 11 Cases, all governmental and third party consents and approvals reasonably necessary to be obtained by the Borrowers in connection with the DIP Facility, if any, shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Required Lenders in their reasonable discretion) and shall remain in effect.

(n) The Administrative Agent and the Lenders shall have received the Initial Budget.

(o) All first day motions, including those related to the DIP Facility, filed by the Loan Parties and related orders entered by the Bankruptcy Court in the Chapter 11 Cases shall be in form and substance satisfactory to the Administrative Agent (with respect to matters relevant to or affecting the Agents) and the Required Lenders.

(p) Other than the Chapter 11 Cases, as stayed upon the commencement of the Chapter 11 Cases, or as disclosed in Schedule 3.06 or otherwise to the Administrative Agent prior to the Petition Date, there shall exist no action, suit, investigation, litigation or proceeding pending or threatened in writing in any court or before any arbitrator or governmental authority that (i) would reasonably be expected to result in a Material Adverse Effect or (ii) restrains, prevents or purports to affect materially adversely the legality, validity or enforceability of the DIP Facility or the consummation of the transactions contemplated thereby.

(q) Subject to entry of the Interim Order, the Collateral Agent, for the benefit of the Lenders, shall have a valid and perfected DIP Lien on and security interest in the DIP Collateral of the Debtors on the basis and with the priority set forth herein.

(r) The Bankruptcy Court shall have entered the order (which such order may be the Interim Order) authorizing the Debtors’ entry into the ABL DIP Facility within three (3) Business Days following the Petition Date.

(s) The Bankruptcy Court shall have entered the Interim Order within three (3) Business Days following the Petition Date, which Interim Order shall include, without limitation, copies of the DIP Facility and the Budget as exhibits thereto, entered on notice to such parties as may be satisfactory to the Required Lenders, (i) authorizing and approving the DIP Facility and the transactions contemplated thereby, including, without limitation, the granting of the superpriority status, security interests and priming liens, and the payment of all fees, referred to herein and therein; (ii) authorizing the lifting or modification of the Automatic Stay to permit the Borrowers and the Guarantors to perform their obligations, and the Lenders to exercise their rights and remedies, with respect to the DIP Facility; (iii) authorizing the use of cash collateral and providing for adequate protection in favor of the Prepetition Term Lenders, as and to the extent provided herein and therein; and (iv) reflecting such other terms and conditions that are mutually satisfactory to the Required Lenders and the Debtors, in their respective discretion in each case, which Interim Order shall be in full force and effect, shall not have been reversed, vacated or stayed and shall not have been amended, supplemented or otherwise modified without the prior written consent of the


52

Administrative Agent at the direction of the Required Lenders, which consent shall not be unreasonably withheld, delayed or conditioned.

(t) The Debtors shall have entered into the restructuring support agreement (the “RSA”) with the requisite Prepetition Term Lenders in accordance with its terms and the RSA shall otherwise become effective as to such parties, and the RSA shall continue to be in full force and effect according to its terms.

(u) No DOJ Adverse Action shall have occurred.

For purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

Section 4.02 Final Order Closing Date. The obligation of each Lender to make the Final DIP Loan on the Final Order Closing Date is subject to receipt of the request therefor in accordance herewith and to the satisfaction (or waiver) of the following express conditions:

(a) The representations and warranties of each Loan Party set forth in Article 3 and in each of the Loan Documents shall be true and correct in all material respects on and as of the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date).

(b) At the time of and immediately after giving effect to the Final DIP Loans, no Default or Event of Default shall have occurred and be continuing.

(c) The Administrative Agent shall have received a Borrowing Request relating to the Final DIP Loan in accordance with Section 2.03.

(d) The making if the Final DIP Loans shall not violate any requirement of law and shall not be enjoined, temporarily, preliminarily or permanently.

(e) The making of the Final DIP Loans shall be authorized pursuant to the Final Order.

(f) The Bankruptcy Court shall have entered the Final Order authorizing and approving the DIP Facility, which Final Order shall be in full force and effect, shall not have been reversed, vacated or stayed and shall not have been amended, supplemented or otherwise modified without the prior written consent of the Administrative Acting at the direction of the Required Lenders, which consent shall not be unreasonably withheld, delayed or conditioned.

(g) Other than the Orders, there shall not exist any law, regulation, ruling, judgment, order, injunction or other restraint that prohibits, restricts or imposes a materially adverse condition on the DIP Facility or the exercise by the Collateral Agent at the direction of the Lenders of its rights as a secured party with respect to the DIP Collateral.

(h) The RSA is in full force and effect according to its terms as to the Loan Parties and the Consenting Term Lenders (as defined in the RSA).

(i) Other than the Known Events, since the Petition Date there shall not have occurred a Material Adverse Effect.


53

(j) Other than the Chapter 11 Cases, as stayed upon the commencement of the Chapter 11 Cases, or as disclosed in Schedule 3.06 or otherwise to the Administrative Agent prior to the Petition Date, there shall exist no action, suit, investigation, litigation or proceeding pending or threatened in writing in any court or before any arbitrator or governmental authority that (i) would reasonably be expected to result in a Material Adverse Effect or (ii) restrains, prevents or purports to affect materially adversely the legality, validity or enforceability of the DIP Facility or the consummation of the transactions contemplated thereby.

(k) The Bankruptcy Court shall have entered the order authorizing the Debtors’ entry into the ABL DIP Facility (including in respect of a commitment by the ABL DIP Lenders to make available an asset-backed credit facility upon the Effective Date) on a final basis.

(l) The Bankruptcy Court shall have entered the Confirmation Order, and the Confirmation Order shall be in full force and effect, shall not have been reversed, vacated or stayed and shall not have been amended, supplemented or otherwise modified without the prior written consent of the Administrative Agent acting at the direction of the Required Lenders, which consent shall not be unreasonably withheld, delayed or conditioned.

(m) No DOJ Adverse Action shall have occurred.

(n) The settlement of the DOJ Action on a final basis, approved by the court having jurisdiction over the DOJ Action, on terms acceptable to the Required Lenders and consistent with the DOJ Action Settlement Term Sheet, shall have occurred.

(o) The Debtors shall have received a Final DIP Loan Commitment Letter from one or more Lenders (or such other third parties after approval by the Required Lenders) by the Final DIP Loan Commitment Letter Deadline.

ARTICLE V

Affirmative Covenants

From and after the Closing Date and until the date that the Obligations are indefeasibly paid in full (other than contingent Obligations not yet due and payable) in cash (which includes a conversion thereof into any exit financing of the Debtors pursuant to the terms of the Bankruptcy Plan and in accordance with the RSA), each of Holdco and each Borrower covenants and agrees with the Lenders and the Administrative Agent that:

Section 5.01 Financial Statements and Other Information. Holdco will furnish to the Administrative Agent which will furnish to the Lenders:

(a) [reserved];

(b) within sixty (60) days after the end of each fiscal quarter of each fiscal year of Holdco beginning with the fiscal quarter ended June 30, 2020, (i) the unaudited consolidated balance sheet and unaudited consolidated statements of income, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year for Holdco and its Subsidiaries, setting forth in each case, starting with the fiscal quarter ending June 30, 2020, in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by its Financial Officer as presenting fairly in all material respects the financial condition and results of operations of Holdco and its Subsidiaries on a consolidated basis in accordance in all material respects with GAAP (except as otherwise disclosed in such financial statements), subject to normal year-end audit adjustments and the absence of footnotes and (ii) a customary management discussion and analysis of the financial condition and results of operations for such period.


54

(c) concurrently with the delivery of any financial statements under paragraph (b) above, a Compliance Certificate certifying as to whether a Default or Event of Default exists and, if a Default or Event of Default exists, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (ii) stating whether any material change in GAAP or in the application thereof has occurred since the date of the then most recently delivered audited financial statements that would affect the compliance or non-compliance with any requirement in this Agreement and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;

(d) (i) promptly after the receipt or furnishing thereof, as applicable, (x) copies of any notices of default or event of default received or furnished by Holdco, a Borrower or any Subsidiary pursuant to the terms of the ABL DIP Facility Documents and (y) copies of any notices of default or event of default received or furnished by Holdco, a Borrower or any Subsidiary in connection with any Indebtedness with an aggregate outstanding principal amount in excess of $10,000,000 to the extent not otherwise required to be furnished to the Lenders pursuant to the terms of this Agreement and (ii) promptly after the execution and delivery thereof, copies of any amendments, waivers, consents or other modifications with respect to the ABL DIP Facility Agreement;

(e) within 30 days after the end of each fiscal month (other than quarter end, which will be covered under the financial statements delivered pursuant to paragraph (b) above) of each fiscal year, management operating reports of Holdco and its consolidated Subsidiaries as of the close of such fiscal month and the then elapsed portion of the fiscal year, certified by a Financial Officer of Holdco;

(f) promptly following any reasonable request therefor, such other information regarding the operations, business affairs and financial condition of Holdco, the Borrowers or any Subsidiary as the Administrative Agent may reasonably request, including information requested on behalf of any Lender to comply with Section 9.14; provided that none of Holdco, the Borrowers nor any Subsidiary will be required to disclose or permit the inspection or discussion of, any document, information or other matter (i) that constitutes trade secrets or proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their representatives or contractors) is prohibited by law, fiduciary duty or any binding agreement or (iii) that is subject to attorney client or similar privilege or constitutes attorney work product; provided further that, in the event that Holdco, a Borrower or any Subsidiary does not provide information in reliance on clause (ii) or (iii) of the foregoing proviso, such Person shall (x) if permitted by applicable Law, provide written notice to the Administrative Agent that such information is being withheld pursuant to the foregoing proviso if such notice can, in the Borrower Representative’s good faith determination, be provided in a manner that would not result in such a violation of law, fiduciary duty or any binding agreement or waiver or impairment of privilege and (y) use commercially reasonable efforts to provide such information in a manner that would not result in such a violation of law, fiduciary duty or any binding agreement or waiver or impairment of privilege;

(g) following the delivery of the Initial Budget on the Closing Date, by 5:00 p.m. New York City time on every second Wednesday thereafter during the Chapter 11 Cases, deliver an updated budget, consistent with the form of the Initial Budget, for the then-upcoming thirteen (13) week period to the Administrative Agent (for distribution to the Lenders), in form and substance satisfactory to the Administrative Agent at the direction of the Required Lenders (the “Budget Update”); provided, that a Budget Update consistent with the form of the Initial Budget shall be in form satisfactory to the Administrative Agent at the direction of the Required Lenders; and following the delivery of the Initial Budget on the Closing Date, by 12:00 p.m. New York City time beginning on the first Wednesday following the Petition Date, and by 12:00 p.m. New York City time on every Wednesday thereafter, a variance report (the “Variance Report”) setting forth actual cash receipts, disbursements and net cash flows of the Debtors for the applicable Testing Period and setting forth all the variances, on a line item (but only for informational purposes) and aggregate basis, from the amount set forth for such period as compared to the applicable


55

Budget delivered by the Debtors, in each case, on a weekly and cumulative basis (and each such Variance Report shall include explanations for all material variances and shall be certified by the Financial Officer of Holdco); provided that any Variance Report and Budget Update shall contain supporting information reasonably requested by the Administrative Agent (acting at the direction of the Required Lenders) or the Required Lenders; provided, further, that for purposes of the Budget Update and Variance Reports, each weekly period shall begin on Monday and end on Sunday; and

(h) within thirty (30) days after the end of each fiscal quarter, copies of each Borrowing Base Certificate (as defined in the ABL DIP Facility Agreement) delivered to pursuant to the ABL DIP Facility Agreement during such fiscal quarter.

In no event shall the Administrative Agent post Compliance Certificates, borrowing base or other certificates delivered in respect of the ABL DIP Facility Agreement, or budgets (including any “Budget” or “Initial Budget”) to Public Lenders.

The Borrowers hereby acknowledge that (a) the Administrative Agent will make available to the Lenders materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Holdco, the Borrowers or their Subsidiaries, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower Representative hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that are to be made available to Public Lenders; (x) by marking Borrower Materials “PUBLIC”, the Borrower Representative shall be deemed to have authorized the Administrative Agent and the Lenders to treat the Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent the Borrower Materials constitute Information, they shall remain subject to the provisions of Section 9.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information” (it being understood that the Borrower Representative shall be under no obligation to mark any Borrower Materials “PUBLIC”). Notwithstanding the foregoing, to the extent the Borrower Representative has had a reasonable opportunity to review, the following Borrower Materials shall be deemed to be marked “PUBLIC”, unless the Borrower Representative notifies the Administrative Agent promptly that any such document contains material non-public information: (1) the Loan Documents, (2) notification of changes in the terms of the Loans and (3) the financial statements delivered pursuant to Section 5.01(b).

Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrowers or their securities for purposes of United States Federal or state securities laws.

THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE ADMINISTRATIVE AGENT DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.


56

NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.

Section 5.02 Notices of Material Events. The Borrower Representative will furnish to the Administrative Agent (for distribution to each Lender through the Administrative Agent) prompt written notice of a Responsible Officer of Holdco’s or the Borrowers’ obtaining knowledge of any of the following:

(a) the occurrence of any Default or Event of Default except to the extent the Administrative Agent shall have furnished the Borrower Representative written notice thereof; and

(b) the filing or commencement of, or any written threat or notice of intention of any Person to file or commence, any action, suit, litigation or proceeding, whether at law or in equity by or before any Governmental Authority, (i) against any Loan Party that could reasonably be expected to result in a Material Adverse Effect and (ii) with respect to the DIP Facility and any Loan Documents; and

(c) as soon as practicable after the Borrowers obtain knowledge thereof,, any development that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect.

Each notice delivered under this Section 5.02 shall be accompanied by a written statement of a Responsible Officer of the Borrower Representative setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto. Documents required to be delivered pursuant to this Section 5.02 may be delivered electronically in accordance with Section 5.01.

Section 5.03 Cash Management.

(a) Holdco will, and will cause each Subsidiary to, maintain a cash management system as in effect on the Petition Date and as required by the Orders and as authorized by the Bankruptcy Court pursuant to orders approving the first day motions filed by the Loan Parties.

(b) On the Petition Date, the Debtors shall have established one or more DIP Term Controlled Accounts. At the written request of the Administrative Agent (at the direction of the Required Lenders), each Loan Party shall, and shall cause each Subsidiary of each Loan Party that is a Debtor under the Chapter 11 Cases, to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, DIP Term Control Agreements in respect of any DIP Term Controlled Account following the Closing Date. Each Loan Party shall cause, and cause any of their Subsidiaries to cause, all DIP Proceeds to be maintained in DIP Term Controlled Accounts until used in accordance with the Budget.

Section 5.04 Existence; Conduct of Business. Holdco will, and will cause each Subsidiary to, do or cause to be done all things reasonably necessary to obtain, preserve, renew and keep in full force and effect its legal existence (except as otherwise permitted hereunder) except to the extent that failure to do so would not reasonably be expected to result in a Material Adverse Effect, provided that the foregoing shall not prohibit any transaction otherwise permitted hereunder.

Section 5.05 Payment of Taxes. Subject to the Budget, Holdco will, and will cause each Subsidiary to, pay all material Tax liabilities (including in their capacity as a withholding agent), before any penalty accrues thereon, except where (a)(i) any such payment is being contested in good faith by appropriate proceedings and (ii) Holdco or such Subsidiary has set aside on its books adequate reserves or other appropriate provision with respect thereto in accordance with GAAP or (b) the failure to make


57

payment would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

Section 5.06 Maintenance of Properties. Except if the failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, Holdco will, and will cause each Subsidiary to, keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted and casualty or condemnation excepted, provided that the foregoing shall not prohibit any transaction otherwise permitted hereunder.

Section 5.07 Insurance. Holdco will, and will cause each Subsidiary to, maintain, with financially sound and reputable insurance companies, (a) material insurance in such amounts (after giving effect to any self-insurance reasonable and customary for similarly-situated Persons engaged in the same or similar business) and against such risks as is (i) customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations as reasonably determined by management of Holdco or (ii) considered adequate by Holdco. Holdco will use commercially reasonable efforts to, no later than thirty (30) days (as such period may be extended in the reasonable discretion of the Administrative Agent) after the Closing Date (or the date any such insurance is obtained, renewed or extended in the case of insurance obtained, renewed or extended after the Closing Date), cause all material property and casualty insurance policies with respect to DIP Collateral to be endorsed or otherwise amended to include a lender’s loss payable, mortgagee or additional insured, as applicable, endorsement, or otherwise reasonably satisfactory to the Administrative Agent acting at the direction of the Required Lenders.

Section 5.08 Books and Records; Inspection and Audit Rights. Holdco will, and it will cause each Subsidiary to, keep proper books of record and account in which full, true and correct entries (in all material respects) are made of all material financial transactions in relation to its business and activities including, without limitation, bank statements and evidence of all deposits into and withdrawals from any DIP Term Controlled Account. Holdco will, and will cause each Subsidiary to, permit any representatives designated by the Administrative Agent, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its directors, officers, and independent public accountants (subject to such accountants’ customary policies and procedures), all at the expense of the Borrowers, and all at such reasonable times and as often as reasonably requested. The Administrative Agent shall provide Holdco the opportunity to participate in any discussions with any such independent accountants.

Section 5.09 Compliance with Laws. Holdco will, and will cause each Subsidiary to, comply with all Requirements of Law with respect to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

Section 5.10 Use of Proceeds. The proceeds of the Loans shall be used to provide working capital, for general corporate purposes and to fund the Chapter 11 Cases, subject to the Budget (including Permitted Variances) and the terms and conditions of this Agreement and the Orders, including, without limitation, to (i) provide working capital and for other general corporate purposes of the Debtors; (ii) fund the costs of the administration of the Chapter 11 Cases (including professional fees and expenses) and the consummation of the Debtors’ Bankruptcy Plan; and (iii) fund interest, fees, and other payments contemplated in respect of the DIP Facility. Without in any way limiting the foregoing, no DIP Collateral, DIP Proceeds, or any portion of the Carve-Out may be used directly or indirectly by any of the Debtors, the Committee, if any, or any trustee or other estate representative appointed in the Chapter 11 Cases (or any successor case) or any other person or entity (or to pay any professional fees, disbursements, costs or expenses incurred in connection therewith): (a) to seek authorization to obtain liens or security interests that are senior to or pari passu with the DIP Liens or the Liens in existence on the Petition Date securing the Prepetition Term Obligations (the “Prepetition Term Liens”); or (b) to investigate (including by way


58

of examinations or discovery proceedings), prepare, assert, join, commence, support or prosecute any action for any claim, counter-claim, action, proceeding, application, motion, objection, defense, or other contested matter seeking any order, judgment, determination or similar relief against, or adverse to the interests of, in any capacity, any of the Agents, the Lenders, or the Prepetition Term Secured Parties, and each of their respective officers, directors, controlling persons, employees, agents, attorneys, affiliates, assigns, or successors of each of the foregoing (all in their capacities as such) (collectively, the “Released Parties”), with respect to any transaction, occurrence, omission, action or other matter (including formal discovery proceedings in anticipation thereof), including, without limitation, (i) any claims or causes of action arising under chapter 5 of the Bankruptcy Code; (ii) any so-called “lender liability” claims and causes of action; (iii) any action with respect to the validity, enforceability, priority and extent of, or asserting any defense, counterclaim, or offset to, the Obligations, the Superpriority DIP Claims, the DIP Liens, the Loan Documents, the Prepetition Term Liens, the Prepetition Term Loan Documents, or the Prepetition Term Obligations; (iv) any action seeking to invalidate, modify, set aside, avoid or subordinate, in whole or in part, the Obligations or the Prepetition Term Obligations; (v) any action seeking to modify any of the rights, remedies, priorities, privileges, protections and benefits granted to either (A) the Agents or the Lenders hereunder or under any of the Loan Documents, or (B) the Prepetition Term Agents or the Prepetition Term Lenders under any of the Prepetition Term Loan Documents (in each case, including, without limitation, claims, proceedings or actions that might prevent, hinder or delay any of the Agents’ or the Lenders’ assertions, enforcements, realizations or remedies on or against the DIP Collateral in accordance with the applicable Loan Documents and the Orders); or (vi) objecting to, contesting, or interfering with, in any way, the Agents’ and the Lenders’ enforcement or realization upon any of the DIP Collateral once an Event of Default has occurred; provided, however, that no more than $50,000 in the aggregate of the DIP Collateral, DIP Proceeds, or the Carve-Out, may be used by the Committee, if any, to investigate claims and/or liens of the Prepetition Term Agents and Prepetition Term Lenders under the Prepetition Term Credit Agreement.

Section 5.11 Execution of Guaranty and Security Documents after the Closing Date.

(a) Subject to Sections 5.12(b) and 5.12(d), in the event that any Person becomes a Subsidiary after the Closing Date (other than any Subsidiary for so long as it is an Excluded Subsidiary) or any Subsidiary ceases to be an Excluded Subsidiary, the Borrower Representative or other applicable Loan Parties will promptly (and in no event later than twenty (20) days thereafter or such later date as the Required Lenders may agree in their reasonable discretion) notify Administrative Agent of that fact and cause such Subsidiary to execute and deliver to the Administrative Agent counterparts of the Guaranty and each applicable Security Document (including the applicable intercreditor agreements) and to take all such further actions and execute all such further documents and instruments as required by each Security Document to secure the Obligations for the benefit of the Secured Parties (including all actions necessary to cause such DIP Lien to be duly perfected to the extent required by such Security Document, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Required Lenders). In addition, as and to the extent provided in the Security Documents (subject to all applicable exceptions and limitations therein and herein), the applicable Loan Party shall deliver to the Collateral Agent all certificates, if any, representing Equity Interests of such Subsidiary (accompanied by undated stock powers, duly endorsed in blank) as required thereunder.

(b) Subject to Sections 5.12(b) and (d), in the event that any Person becomes a Subsidiary after the Closing Date (other than any Subsidiary for so long as it is an Excluded Subsidiary), concurrently with the execution and delivery of counterparts to the Guaranty pursuant to Section 5.11(a), such Subsidiary shall deliver to the Administrative Agent, (i) certified copies of such Subsidiary’s Organizational Documents or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of the applicable Subsidiary, and (ii) a certificate executed on behalf of such Subsidiary by the secretary or similar officer of such Subsidiary as to (a) the fact that the attached resolutions of the Governing Body of such Subsidiary approving and authorizing the execution, delivery


59

and performance of such Loan Documents are in full force and effect and have not been modified or amended and (b) the incumbency and signatures of the officers of such Subsidiary executing such Loan Documents.

(c) [Reserved].

(d) [Reserved].

(e) [Reserved].

(f) [Reserved].

Section 5.12 Further Assurances.

(a) Subject to Section 5.11 and Sections 5.12(b) and (d) and the terms, conditions and provisions of the Security Documents applicable to such Loan Party, the Borrower Representative shall, and shall cause the other Loan Parties to, promptly upon reasonable request by the Administrative Agent or the Collateral Agent (i) correct any jointly identified material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Security Document or other document or instrument relating to any DIP Collateral and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, the Collateral Agent or the Required Lenders may reasonably request from time to time, and in order to carry out more effectively the purposes thereof (including to add any assets or property that become DIP Collateral on or after the Closing Date), in each case, to the extent required by this Agreement and the Security Documents.

(b) Notwithstanding anything in this Agreement, the Orders or any Security Document to the contrary: (i) neither the Administrative Agent nor the Collateral Agent shall take, and the Loan Parties shall not be required to grant, a security interest in any Excluded Property and (ii) any security interest required to be granted or any action required to be taken, including to perfect such security interest, shall be subject to the same exceptions and limitations as those set forth in the Security Documents.

(c) [Reserved].

(d) Notwithstanding anything in this Agreement or any Security Document to the contrary, the Required Lenders may, in their sole discretion, grant extensions of time for the satisfaction of any of the requirements under Section 5.11 and Section 5.12 in respect of any particular DIP Collateral or any particular Subsidiary if it determines that the satisfaction thereof with respect to such DIP Collateral or such Subsidiary cannot be accomplished without undue expense or unreasonable effort or due to factors beyond the control of Holdco and the Subsidiaries by the time or times at which it would otherwise be required to be satisfied under this Agreement or any Security Document.

(e) By its signature hereto, each Loan Party hereby authorizes the Collateral Agent to, in connection with, and to the extent contemplated by, this Agreement, and subject to the Orders, file against such Loan Party, one or more financing, continuation or amendment statements pursuant to the UCC in form and substance satisfactory to the Required Lenders (which statements may have a description of DIP Collateral which is broader than that set forth herein, including without limitation a description of DIP Collateral as “all assets’ and/or “all personal property” of such Loan Party).





60

Section 5.16 Compliance with Environmental Laws. Except where non-compliance would not reasonably be expected to result in a Material Adverse Effect, Holdco will, and will cause each Subsidiary to: (a) comply in all material respects, with all Environmental Laws, including obtaining and complying with any permit, license or other approval required thereunder; and (b) conduct any investigation, study, sampling and testing, and undertake any cleanup, response or other corrective action required under Environmental Laws for any release of Hazardous Materials in violation of Environmental Law at any properties currently owned, leased or operated by it; provided, however, that neither Holdco nor any Subsidiary shall be required to undertake any of the obligations above to the extent that its obligation to do so is being contested in good faith or where the failure to undertake such obligation would not reasonably be expect to result in a Material Adverse Effect.

Section 5.17 ERISA. Furnish to the Administrative Agent (a) as soon as possible after, and in any event within twenty (20) Business Days after any Responsible Officer of any Loan Party knows or has reason to know that, any ERISA Event has occurred that, alone or together with any other ERISA Event could reasonably be expected to result in a Material Adverse Effect, a statement of a Financial Officer of the Borrower Representative setting forth details as to such ERISA Event and the action, if any, that the Loan Parties propose to take with respect thereto, and (b) upon request at reasonable times by the Administrative Agent, copies of (i) each Schedule SB (Actuarial Information) to the annual report (Form 5500 Series) filed by any Loan Party or any ERISA Affiliate with the Internal Revenue Service with respect to each Plan; (ii) the most recent actuarial valuation report for each Plan; (iii) all notices received by any Loan Party or any ERISA Affiliate from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; (iv) such other documents or governmental reports or filings relating to any Plan as the Administrative Agent shall reasonably request; and (v) copies of any notices or other documents described in Section 101(k) or 101(l) of ERISA that any Loan Party or its ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if any Loan Party or its ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the applicable Loan Party or ERISA Affiliate shall promptly after the Closing Date make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof.

Section 5.18 Post-Closing Date Covenants. The Borrower Representative agrees to deliver, or cause to be delivered, to the Administrative Agent, in form and substance reasonably satisfactory to the Required Lenders, the items described on Schedule 5.18 hereof on or before the dates specified with respect to such items, or such later dates as may be agreed to by the Required Lenders in their reasonable discretion. Notwithstanding anything in this Agreement or in the other Loan Documents to the contrary, to the extent any representation and warranty in any Loan Document would not be true because the actions set forth in this Section 5.18 were not taken on the Closing Date, the respective representation and warranty shall not be required to be true and correct in all material respects until the time the respective action is taken (or was required to be taken) in accordance with this Section 5.18.

Section 5.19 Milestones. Each of Holdco, the Borrowers and the Guarantors covenants and agrees with each Lender that, so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest on each Loan, all fees and all other expenses or amounts payable under any Loan Document have been paid in full in cash (other than contingent obligations not yet due and payable), each of Holdco, the Borrowers and the Guarantors shall and shall cause each of the Subsidiaries to ensure that each of the milestones (each, a “Milestone”) set forth below is achieved in accordance with the applicable timing referred to below (or such later dates as may be approved in writing by the Required Lenders in their reasonable discretion):

(a) The Debtors shall have commenced solicitation on the Bankruptcy Plan by 11:59 pm (ET) on May 31, 2020 (commencing solicitation by email being sufficient; provided, that solicitation materials are sent by mail on June 1, 2020).


61

(b) Promptly following the date the RSA is effective and, in any event, no later than June 3, 2020, the Debtors shall file the Chapter 11 Cases (for the avoidance of doubt, commencement of the Chapter 11 Cases remains subject to approval of the board of directors or other governing bodies of the Debtors).

(c) The Debtors’ filing with the Bankruptcy Court, on or within twenty-four (24) hours of the Petition Date, the Bankruptcy Plan, which shall be in form and substance reasonably acceptable to the Required Lenders and, solely with respect to terms and provisions affecting the rights, protections, duties or obligations of the Administrative Agent or the Prepetition Term Agents, the Administrative Agent or the Prepetition Term Agent, as applicable, and for which the Debtors shall have solicited and obtained the requisite consent to the Bankruptcy Plan by the Requisite Consenting Term A Lenders or requested and obtained authority from the Bankruptcy Court to complete solicitation within twenty (20) days from the Petition Date.

(d) The Debtors’ filing with the Bankruptcy Court, on or within twenty-four (24) hours of the Petition Date, of a disclosure statement relating to the Bankruptcy Plan, and all related schedules, supplements, exhibits and orders (as applicable), in form and substance reasonably satisfactory to the Administrative Agent at the direction of the Required Lenders (the “Disclosure Statement”).

(e) The Bankruptcy Court shall have entered the (i) Interim Order and (ii) an order approving and authorizing the ABL DIP Facility, in each case in form and substance acceptable to the Required Lenders, in each case on or before three (3) Business Days following the Petition Date.

(f) The Debtors shall have received a Final DIP Loan Commitment Letter from one or more Lenders (or such other third parties after approval by the Required Lenders) by the Final DIP Loan Commitment Letter Deadline.

(g) The Bankruptcy Court shall hold the combined hearing on the Bankruptcy Plan and Disclosure Statement on or before thirty-seven (37) calendar days following the Petition Date.

(h) The Bankruptcy Court shall have entered the Final Order on or before thirty-seven (37) calendar days following the Petition Date.

(i) The Bankruptcy Court’s entry of an order, in form and substance reasonably satisfactory to the Administrative Agent at the direction of the Required Lenders, approving the Disclosure Statement (the “Disclosure Statement Order”), on or before forty (40) calendar days following the Petition Date.

(j) The Bankruptcy Court’s entry of an order, in form and substance reasonably satisfactory to the Administrative Agent at the direction of the Required Lenders and, solely with respect to terms and provisions affecting the rights, protections, duties or obligations of the Agents or the Prepetition Term Agents, the Agents or the Prepetition Term Agents, as applicable, confirming the Bankruptcy Plan (the “Confirmation Order”) on or before forty (40) calendar days following the Petition Date.

(k) The effective date (the “Effective Date”) of the Bankruptcy Plan having occurred not later than fifty-four (54) calendar days following the Petition Date.

Section 5.20 Bankruptcy Covenants. Notwithstanding anything in the Loan Documents to the contrary, the Debtors shall comply with all material covenants, terms and conditions and otherwise perform all obligations set forth in the Orders in all material respects.


62

Section 5.21 Chapter 11 Cases.

(a) Each Debtor shall deliver or cause to be delivered for review and comment, as soon as commercially reasonable and in any event at least two (2) Business Days (or as soon thereafter as is reasonably practicable under the circumstance) prior to filing, upon request, all material pleadings, motions and other documents (provided that any of the foregoing relating to the DIP Facility shall be deemed material) to be filed on behalf of the Debtors with the Bankruptcy Court to K&S and shall consult in good faith with such counsel regarding the form and substance of any such proposed filing. If not otherwise provided by the Bankruptcy Court’s electronic docketing system, the Borrowers shall provide copies to the Administrative Agent of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of the Debtors with the Bankruptcy Court, distributed by or on behalf of the Debtors to any Committee, filed with respect to the Chapter 11 Cases or filed with respect to any Loan Document. In connection with the Chapter 11 Cases, the Debtors shall give the proper notice for (x) the motions seeking approval of the Loan Documents and the Orders and (y) the hearings for the approval of the Orders.

(b) Starting in the first week following the Closing Date, and thereafter every week until the payment in full in cash of the Obligations (other than contingent obligations not yet due and payable), the Borrowers and the Consultants will participate in a conference call with the Agents and the Lenders and their representatives, consultants, and agents, at such mutually convenient dates and times to be proposed by the Agents upon reasonable advance notice, and will use commercially reasonable efforts to cause available senior members of management and any investment bankers and other advisors of Holdco and its Subsidiaries, as applicable or as requested by the Agents or such Lenders, to participate in such calls for the purpose of discussing the status of the financial, collateral, and operational condition, businesses, liabilities, assets, and prospects of the Borrowers and their Subsidiaries and any sale, refinance or other strategic transaction efforts; provided, that any materials may be redacted to the extent information contained therein would adversely affect any attorney-client privilege or accountant-client privilege, and further provided that only final versions of such documents shall be provided.

(c) Each Loan Party shall deliver or cause to be delivered to the Administrative Agent and the Lenders, as soon as commercially reasonable upon receipt of same, copies of any term sheets, proposals, presentations or other material documents, from any Person, related to (i) the restructuring of the Debtors, or (ii) the sale of any material asset of one or all of the Debtors (for the avoidance of doubt, excluding ordinary course asset sales).

(d) Except to the extent permitted (or required) hereunder, under the Orders and under the Budget, no Loan Party shall, without the express prior written consent of the Required Lenders or pursuant to an order of the Bankruptcy Court after notice and a hearing, use the DIP Proceeds or cash DIP Collateral to make any Prepetition Payment; provided, that the Loan Parties shall be permitted to use the DIP Proceeds or cash DIP Collateral to make Prepetition Payments to critical vendors in an amount not to exceed amounts set forth in the Budget (other than those critical vendors that are approved in writing by the Required Lenders), subject to Bankruptcy Court approval.

(e) Subject to the Budget, all Professional Costs at any time paid by the Loan Parties, or any of them, shall be paid by the Loan Parties in accordance with the limitation and procedures set forth in the Loan Documents.

Section 5.22 Budget Matters. The Borrowers hereby acknowledge and agree that any Budget Update provided to the Administrative Agent and the Lenders shall not amend and supplement the applicable approved Budget until the Administrative Agent (at the direction of the Required Lenders) delivers a notice (which may be delivered by electronic mail) to the Borrower Representative stating that


63

the Required Lenders have approved of such Budget Update in accordance with Section 5.01(g); provided, that if the Administrative Agent does not deliver a notice of approval to the Borrower Representative, then the existing approved Budget shall continue to constitute the applicable approved Budget until such time as the subject Budget Update is agreed to among the Borrowers and the Required Lenders in accordance with this Section 5.22. Once such Budget Update is so approved in writing by the Administrative Agent and the Required Lenders, it shall supplement or replace the prior approved Budget, and shall thereafter constitute the approved Budget.

Section 5.23 Retention of Consultants; Communications with Accountants and other Financial Advisors.

(a) There shall be no material modifications to the compensation (excluding any decreases in compensation but including any other modification in compensation) for the engagement of the Consultants or the appointment and/or replacement of any Consultants without the consent of the Required Lenders except as set forth in the Budget. Among other things, the Consultants shall assist the Loan Parties with the preparation of the Budget and the other financial and DIP Collateral reporting required to be delivered to the Required Lenders pursuant to this Agreement and the Orders, and with approval of all requests for Borrowing and all disbursements by the Borrower.

(b) The Borrower shall provide the Agents, the Lenders, and their respective representatives reasonable access to their independent certified public accountants, appraisers, financial advisors, investment bankers and consultants (including the Consultants) through regular meetings or conference calls at times and locations to be mutually agreed, which have been engaged from time to time by the Loan Parties, and authorizes and agrees to instruct those accountants, appraisers, financial advisors, investment bankers and consultants to communicate to the Agents, the Lenders and their respective representatives’ information relating to each Loan Party with respect to the business, results of operations, prospects and financial condition of such Loan Party. The Borrower acknowledge and agree that the Loan Parties and their representatives will reasonably cooperate with the Consultants and any Lender Group Consultant.

(c) Each Loan Party acknowledges that the Agents and Lenders shall each be permitted to engage such outside consultants and advisors, including, but not limited to A&P as counsel to the Agents and K&S as counsel to the Lenders (each such party, a “Lender Group Consultant”), for the sole benefit thereof, as applicable, as the Agents or the Lenders each may determine to be necessary or appropriate, in their respective reasonable discretion. Each Loan Party covenants and agrees that (i) such Loan Party shall provide its reasonable cooperation with any Lender Group Consultant (including, without limitation, providing reasonable access to such Loan Party’s business, books and records and senior management at times and locations to be mutually agreed); (ii) all costs and expenses of any such Lender Group Consultant shall be expenses (subject to limitations regarding legal expenses provided in Section 9.03) required to be paid by the Loan Parties under Section 9.03 hereof; and (iii) all reports, determinations and other written and verbal information provided by any Lender Group Consultant shall be confidential and no Loan Party shall be entitled to have access to same.

(d) On each Monday (or, in the event that such day is not a Business Day then on the Business Day immediately following) during the Chapter 11 Cases (until such time as the Obligations have been repaid in full in cash), the Borrowers’ senior management and professionals shall host a telephonic meeting for the Lenders and their professionals at which the Borrowers’ senior management and professionals shall provide an update to the Lenders (and make themselves available for questions) with respect to the financial and operating performance of the Loan Parties and their estates (including, but not limited to, the Variance Report), and the progress of the Chapter 11 Cases.


64

ARTICLE VI

Negative Covenants

From and after the Closing Date and until the date that the Obligations are indefeasibly paid in full (other than contingent Obligations not yet due and payable) in cash (which includes a conversion thereof into any exit financing of the Debtors pursuant to the terms of the Bankruptcy Plan and in accordance with the RSA), Holdco and the Borrowers (and, with respect to the covenant contained in Section 6.06, only Holdco) covenants and agrees with the Lenders and the Administrative Agent that:

Section 6.01 Indebtedness; Certain Equity Securities.

(a) Holdco will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:

(i) Indebtedness created hereunder and under the other Loan Documents, and (ii) Indebtedness incurred under the Prepetition Term Credit Agreement;

(ii) Indebtedness existing on the Petition Date;

(iii) Guarantees by Holdco or any Subsidiary of Indebtedness of Holdco or any other Subsidiary, to the extent that (A) the Indebtedness so Guaranteed is otherwise permitted by this Section, (B) if Indebtedness being guaranteed is subordinated in right of payment to the Obligations under the Loan Documents, such Guarantees permitted under this clause (iii) are subordinated to the applicable Loan Party’s Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (C) none of the ABL DIP Loans or the Prepetition ABL Loans is Guaranteed by any Subsidiary of Holdco unless such Subsidiary is or, prior to, or substantially concurrent with, issuing such Guarantee, becomes a Loan Party;

(iv) [reserved];

(v) [reserved];

(vi) [reserved];

(vii) Indebtedness owed to any Person (including obligations in respect of letters of credit, bankers’ acceptances or similar instruments issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty, liability insurance, self-insurance, including pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business or consistent with past practice;

(viii) Indebtedness in respect of or guarantee of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees, workers’ compensation claims, letters of credit, bank guarantees and banker’s acceptances, warehouse receipts or similar instruments and similar obligations (other than in respect of other Indebtedness for borrowed money) including, without limitation, those incurred to secure health, safety and environmental obligations, in each case provided in the ordinary course of business or consistent with past practice;

(ix) Indebtedness in respect of swap agreements (including forward contracts) that, other than forward contracts that are entered into in the ordinary course of business


65

and in compliance with the Budget, are in existence on the Petition Date; provided, that there shall be no modifications or increases to the Indebtedness thereunder;

(x) [reserved];

(xi) [reserved];

(xii) Indebtedness consisting of cash management obligations, and other Indebtedness in respect of treasury, depositary, cash management and netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and similar arrangements or otherwise in connection with securities accounts and deposit accounts, in each case, in the ordinary course of business;

(xiii) Indebtedness consisting of (a) the financing of insurance premiums or (b) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business or consistent with past practice;

(xiv) [reserved];

(xv) [reserved];

(xvi) Indebtedness incurred pursuant to (i) the ABL DIP Facility in an aggregate principal amount ((including issued and undrawn letters of credit issued thereunder) not to exceed $90,000,000 and (ii) the Prepetition ABL Credit Agreement in an aggregate principal amount (including issued and undrawn letters of credit issued thereunder) not to exceed $90,000,000;

(xvii) [reserved];

(xviii) [reserved];

(xix) [reserved];

(xx) endorsement of instruments or other payment items for deposit in the ordinary course of business;

(xxi) [reserved];

(xxii) [reserved];

(xxiii) [reserved];

(xxiv) to the extent constituting Indebtedness, Guarantees in the ordinary course of business and consistent with past practices of the obligations of suppliers, customers, franchisees and licensees of Holdco and its Subsidiaries;

(xxv) performance Guarantees of Holdco and its Subsidiaries primarily guaranteeing performance of contractual obligations of the Subsidiaries to the extent not prohibited under this Agreement to a third party and not primarily for the purpose of guaranteeing payment of Indebtedness;

(xxvi) [reserved];

(xxvii) obligations in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any Subsidiary of Holdco to the


66

extent required by law or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States;

(xxviii) [reserved];

(xxix) Indebtedness of (a) those Receivables Facilities set forth on Schedule 1.01(a) and (b) non-recourse factorings consummated in the ordinary course of business, consistent with past practices and to the extent approved by the Required Lenders (“Permitted Factoring”); and

(xxx) [reserved].

Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest, premium, fees or expenses, in the form of additional Indebtedness or preferred stock shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.01.

Section 6.02 Liens. Holdco will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, except:

(a) Liens pursuant to any Loan Document;

(b) Permitted Encumbrances;

(c) any Lien on any property or asset of Holdco or any Subsidiary existing on the Closing Date and set forth on Schedule 6.02(c); provided that (i) such Lien shall not apply to any other property or asset of Holdco or any Subsidiary (other than any replacements of such property or assets and additions and accessions thereto, after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition, or asset of Holdco or any Subsidiary and the proceeds and the products thereof and customary security deposits in respect thereof and in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender) and (ii) such Lien shall secure only those obligations and unused commitment that it secures on the Closing Date and extensions, renewals and replacements thereof so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the obligations being extended, renewed or replaced (plus any accrued but unpaid interest (including any portion thereof which is payable in kind in accordance with the terms of such extended, renewed or replaced Indebtedness) and premium payable by the terms of such obligations thereon and reasonable fees and expenses associated therewith);

(d) [reserved];

(e) [reserved];

(f) Liens (i) of a collecting bank arising in the ordinary course of business under Section 4-208 of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the items being collected upon, (ii) in favor of a banking or other financial institution arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of set off) and which are within the general parameters customary in the banking industry or (iii) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;


67

(g) Liens representing (i) any interest or title of a licensor, lessor or sublicensor or sublessor under any lease or license permitted by this Agreement, (ii) any Lien or restriction that the interest or title of such lessor, licensor, sublessor or sublicensor may be subject to, or (iii) the interest of a licensee, lessee, sublicensee or sublessee arising by virtue of being granted a license or lease permitted by this Agreement;

(h) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods;

(i) the filing of Uniform Commercial Code (or equivalent) financing statements solely as a precautionary measure in connection with operating leases or consignment of goods;

(j) [reserved];

(k) [reserved];

(l) [reserved];

(m) [reserved];

(n) Liens consisting of customary rights of set-off or banker’s liens on amounts on deposit, to the extent arising by operation of law and incurred in the ordinary course of business;

(o) [reserved];

(p) Liens on insurance policies and the proceeds thereof granted to secure the financing of insurance premiums with respect thereto;

(q) Liens encumbering deposits made to secure obligations arising from contractual or warranty requirements;

(r) [reserved];

(s) Liens granted pursuant to a security agreement between Holdco or any Subsidiary and a licensee of Intellectual Property to secure the damages, if any, of such licensee resulting from the rejection of the licensee of such licensee in a bankruptcy, reorganization or similar proceeding with respect to Holdco or such Subsidiary;

(t) Liens securing obligations referred to in Section 6.01(a)(xii);

(u) Liens on the Receivables Assets arising in connection with a Receivables Facility;

(v) [reserved];

(w) Liens in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods;

(x) Liens of bailees in the ordinary course of business;

(y) Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of Holdco and its Subsidiaries;

(z) utility and similar deposits in the ordinary course of business;

(aa) [reserved];


68

(bb) [reserved];

(cc) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks or other financial institutions not given in connection with the incurrence of Indebtedness for borrowed money, (ii) relating to pooled deposit or sweep accounts of Holdco or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Holdco or its Subsidiaries or (iii) relating to purchase orders and other agreements entered into by Holdco or any Subsidiary in the ordinary course of business;

(dd) [reserved];

(ee) Liens on DIP Collateral securing Indebtedness permitted pursuant to Section 6.01(a)(xvi); provided that the priority of such Liens on the DIP Collateral shall be as set forth in the ABL Intercreditor Agreement and the Orders;

(ff) Liens securing any Swap Agreement pursuant to any Prepetition Term Loan Document or the Prepetition ABL Loan Documents;

(gg) Liens on securities which are the subject of repurchase agreements incurred in the ordinary course of business;

(hh) [reserved];

(ii) [reserved];


(kk) Liens, reservations, limitations, provisos and conditions, if any, expressed in any original grant from the Crown of any real property or any interest therein in Canada.

Section 6.03 Fundamental Changes. Holdco will not, and will not permit any Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate or amalgamate with it. Holdco will not, and will not permit any Subsidiary to, liquidate or dissolve except to the extent agreed to by the Required Lenders.

Section 6.04 Investments. Holdco will not, and will not permit any Subsidiary to, make any Investments, except:

(a) Subject to Section 5.10, Investments in cash and Cash Equivalents and assets that were Cash Equivalents when such Investment was made;

(b) [reserved];

(c) Investments existing on the Closing Date set forth on Schedule 6.04(c);

(d) Investments between and among any of the Loan Parties; provided, further, that to the extent that any such Investments under this clause (d) constitute loans or advances made to any Loan Party, such loans or advances shall be subordinated in right of payment to the Obligations.

(e) [reserved];

(f) Investments made by any Subsidiary that is not a Loan Party in Holdco or any Subsidiary; provided that to the extent that any such Investments constitute loans or advances made to any Loan Party, such loans or advances shall be subordinated in right of payment to the Obligations;

(g) [reserved];


69

(h) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment or received as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;

(i) [reserved];

(j) [reserved];

(k) Investments resulting from pledges or deposits described in clause (c) or (d) of the definition of the term “Permitted Encumbrances”;

(l) Investments received in connection with the disposition of any asset in accordance with and to the extent permitted by Section 6.05 (other than Section 6.05(d));

(m) receivables or other trade payables owing to Holdco or any Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms, provided that such trade terms may include such concessionary trade terms as Holdco or such Subsidiary deems reasonable under the circumstances;

(n) Investments resulting from Liens permitted under Section 6.02;

(o) Investments in deposit accounts and securities accounts opened in the ordinary course of business;

(p) [reserved];

(q) [reserved];

(r) [reserved];

(s) [reserved];

(t) [reserved];

(u) Investments consisting of endorsements for collection or deposit in the ordinary course of business;

(v) Investments in any Permitted Factoring;

(w) [reserved];

(x) [reserved];

(y) [reserved];

(z) [reserved];

(aa) Investments consisting of or resulting from Indebtedness, Liens, Restricted Payments, fundamental changes and dispositions permitted under Section 6.01 (other than Section 6.01(a)(ii) and (a)(iii)), Section 6.02, Section 6.03, Section 6.05 (other than Section 6.05(d)) and Section 6.08 (other than Section 6.08(a)(xi)), respectively;

(bb) [reserved];

(cc) [reserved];


70

(dd) [reserved];

(ee) Guarantee obligations of Holdco or any Subsidiary in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any Subsidiary of Holdco to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States;

(ff) [reserved];

(gg) [reserved];

(hh) purchases and acquisitions (including purchases of inventory, equipment, supplies and materials and of services) and the non-exclusive licensing, sublicensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business and consistent with past practices;

(ii) Guarantees by Holdco or any Subsidiary of leases (other than capital leases), contracts, or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;


(kk) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business and consistent with past practices.

Section 6.05 Asset Sales. Holdco will not, and will not permit any Subsidiary to, sell, transfer, lease or otherwise dispose of any asset, including any Equity Interests owned by it, nor will Holdco permit any Subsidiary to issue any additional Equity Interests in such Subsidiary, except, in each case of the foregoing in accordance with the Budget subject to Permitted Variances:

(a) sales, transfers, leases and other dispositions of (i) inventory, goods or services or immaterial assets in the ordinary course of business, (ii) obsolete, worn-out, uneconomic, damaged or surplus property or property that is no longer economically practical or commercially desirable to maintain or used or useful in its business, whether now or hereafter owned or leased (provided any such sale, transfer, lease or other disposition is made in the ordinary course of business consistent with past practice), (iii) cash, Cash Equivalents and other investment securities in the ordinary course of business, and (iv) accounts in the ordinary course of business for purposes of collection;

(b) sales, transfers, leases and other dispositions to Holdco or any Subsidiary (including by contribution, disposition, dividend or otherwise); provided that if the transferor of such property is a Loan Party, then the transferee thereof must be a Loan Party;

(c) sales, transfers and other dispositions of accounts receivable (including write-offs, discounts and compromises) in connection with the compromise, settlement or collection thereof;

(d) sales, transfers, leases and other dispositions of property to the extent that such property constitutes an Investment permitted by Section 6.04 (other than Section 6.04(l) and (aa)) hereunder;

(e) leases or non-exclusive licenses or subleases or non-exclusive sublicenses entered into in the ordinary course of business and consistent with past practices, to the extent that they do not materially interfere with the business of Holdco and the Subsidiaries;


71

(f) conveyances, sales, transfers, non-exclusive licenses or non-exclusive sublicenses or other dispositions of Software or other rights in Intellectual Property in the ordinary course of business or pursuant to a research or development agreement in which the counterparty to such agreement receives a license to Software or other Intellectual Property that result from such agreement;

(g) dispositions resulting from any casualty or insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of Holdco or any Subsidiary;

(h) [reserved];

(i) [reserved];

(j) [reserved];

(k) [reserved];

(l) [reserved];

(m) [reserved];

(n) the incurrence of Liens permitted hereunder;

(o) [reserved];

(p) [reserved];

(q) sales or dispositions of Equity Interests of any Subsidiary (other than any Borrower) in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;

(r) samples, including time-limited evaluation software, provided to customers or prospective customers;

(s) [reserved];

(t) [reserved];

(u) Restricted Payments made pursuant to Section 6.08;

(v) [reserved];

(w) [reserved];

(x) [reserved];

(y) [reserved];

(z) any Disposition of an account receivable in connection with a Permitted Factoring;

(aa) [reserved];

(bb) [reserved]; and

(cc) [reserved].

Section 6.06 Permitted Activities of Holdco. Holdco (i) shall not engage in any material business or material activity other than (1) the ownership of all the outstanding Equity Interests in AP


72

Acquisition (or, indirectly through AP Acquisition, other Equity Interests in accordance with clause (ii) below) and activities incidental thereto, (2) activities necessary or advisable to consummate the Transactions, (3) corporate maintenance activities (including the payment and incurrence of taxes and similar administrative expenses associated with being a holding company), (4) [reserved], (ii) shall not own or acquire any material assets (other than Equity Interests of AP Acquisition or any other indirect Subsidiary of Holdco through AP Acquisition, Indebtedness described in clause (i)(4) above and cash and Cash Equivalents), (iii) shall not create, incur, assume or permit to exist any Lien on the Equity Interests of AP Acquisition owned by it, other than DIP Liens under the Loan Documents, Liens permitted by Section 6.02(ee) or non-consensual Liens of the type permitted under Section 6.02, (iv) [reserved], (v) may contribute to the capital of the Borrowers and the other Subsidiaries described in clause (ii) above and guarantee the obligations of the Borrowers and the other Subsidiaries described in clause (ii) above, (vi) may participate in tax, accounting and other administrative matters as a member of the consolidated group of Holdco, (vii) [reserved], (viii) the performance of its obligations with respect to the Loan Documents, the ABL DIP Facility Documents, the Prepetition Term Loan Documents, the Prepetition ABL Loan Documents and any other Indebtedness permitted hereunder, (ix) may engage in activities incidental or reasonably related to the foregoing and (x) may engage in any transaction with any Borrower or any Subsidiary to the extent that any Borrower or such Subsidiary is expressly permitted to enter into or consummate such transaction with Holdco under this Article VI.

Section 6.07 Sale Leaseback Transactions. Holdco will not, and will not permit any Subsidiary to, enter into any Sale Leaseback transaction.

Section 6.08 Restricted Payments; Certain Payments of Indebtedness.

(a) Holdco will not, and will not permit any Subsidiary to, declare or make any Restricted Payment, except that:

(i) (A) the Subsidiaries may declare and make Restricted Payments ratably with respect to their Equity Interests and (B) any Subsidiary may make a Restricted Payment to Holdco or any other Subsidiary (so long as, in the case of this clause (B), if the Subsidiary making the Restricted Payment is not wholly-owned (directly or indirectly) by Holdco, such Restricted Payment is made ratably among the holders of its Equity Interests);

(ii) [reserved];

(iii) Subject to the Budget, Holdco and the Subsidiaries may make Restricted Payments at such times and in such amounts (A) as shall be necessary to permit any Parent Entity and Holdco to discharge their respective general corporate and overhead or other expenses (including administrative, legal, accounting and similar expenses provided by third parties, customary salary, commissions, bonus and other benefits payable to officers and employees of Holdco or any Parent Entity and directors fees and director and officer indemnification obligations) incurred in the ordinary course and (B) to the extent not paid to a Governmental Authority by Holdco and/or the Subsidiaries or any Parent Entity for any Related Taxes;

(iv) Subject to the Budget, Holdco may make payments to any Parent Entity at such times and in such amounts as are necessary to make payments of or on account of (1) monitoring or management or similar fees or transaction fees and (2) reimbursement of out-of-pocket costs, expenses and indemnities, in each case to any Equity Investor or any of its Affiliates, in each case to the extent permitted by Section 6.09;

(v) Subject to the Budget, payments made or expected to be made by Holdco, any Borrower or any Subsidiary in respect of withholding or similar Taxes payable upon


73

exercise of Equity Interests by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing);

(vi) [reserved];

(vii) [reserved];

(viii) [reserved];

(ix) [reserved];

(x) Restricted Payments made (i) to consummate the Transactions;

(xi) Restricted Payments necessary to consummate transactions permitted pursuant to Section 6.03 and to make Investments permitted pursuant to Section 6.04;

(xii) [reserved];

(xiii) [reserved];

(xiv) [reserved];

(xv) [reserved]; and

(xvi) distributions or payments of factoring fees, sales contributions and other transfers of accounts and purchases of accounts pursuant to a Permitted Factoring;

(b) Holdco will not, and will not permit any Subsidiary to make any voluntary payment or other distribution (whether in cash, securities or other property), of or in respect of principal or interest, or such payment by way of the purchase, redemption, retirement, acquisition, cancellation or termination, in each case prior to the final scheduled maturity thereof, of any Indebtedness that is (x) unsecured, (y) contractually subordinated in right of payment to any of the Obligations or (z) Indebtedness that has a Lien on the DIP Collateral that is junior to the DIP Lien on the DIP Collateral securing the Obligations (excluding, for the avoidance of doubt, the ABL DIP Facility).

Notwithstanding anything else in this Agreement or the other Loan Documents, each of Holdco and the Subsidiaries shall be permitted to make Tax Distributions in accordance with the Budget.

Section 6.09 Transactions with Affiliates. Holdco will not, and will not permit any Subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates except as permitted under the Budget and provided it meets the following exceptions:

(a) transactions at prices and on terms and conditions (taken as a whole) not materially less favorable to Holdco or such Subsidiary than could reasonably be expected to be obtained on an arm’s-length basis from unrelated third parties (as determined in good faith by Holdco);

(b) transactions between or among Holdco and the Subsidiaries (or any entity that becomes a Subsidiary as a result of such transaction) not involving any other Affiliate that is permitted by this Agreement;

(c) [reserved];

(d) payroll, travel and similar advances to cover matters permitted under Section 6.04;


74

(e) the payment of reasonable fees and reimbursement of out-of-pocket expenses to directors of Holdco, the Borrowers or any Subsidiary;

(f) compensation (including bonuses, restricted equity units and broker/deal fees) and employee benefit arrangements paid to, indemnities provided for the benefit of, and employment and severance arrangements entered into with, directors, officers, managers, consultants or employees of Holdco, the Borrowers or the Subsidiaries in the ordinary course of business or on terms and conditions (take as a whole) that would be expected to be obtained on an arm’s length basis from unrelated third parties (as determined in good faith by Holdco), including in connection with the Transactions and any other transaction permitted hereunder;

(g) [reserved];

(h) [reserved];

(i) [reserved];

(j) any payments on Indebtedness not prohibited by Section 6.08;

(k) any transaction among Holdco, the Borrowers, their Subsidiaries and Holdco’s Parent Entities for the sharing of liabilities for taxes so long as the payments made pursuant to such transaction are made by and among the members of Holdco’s or the Borrowers’ “affiliated group” (as defined in the Code); provided that any payments by the Borrowers and their Subsidiaries to Holdco and/or the Parent Entities shall be permitted only to the extent permitted under Section 6.08(a)(iii);

(l) transactions between and among the Borrowers and their Subsidiaries which are in the ordinary course of business and transactions between the Borrowers, Holdco and its direct or indirect shareholders in the ordinary course of business with respect to the Equity Interests in Holdco or any Parent Entity, such as shareholder agreements, registration agreements and including providing expense reimbursement and indemnities in respect thereof;

(m) the Transactions;

(n) [reserved];

(o) [reserved];

(p) transactions set forth on Schedule 6.09, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this covenant or to the extent not more disadvantageous to the Secured Parties in any material respect (taken as a whole);

(q) any customary transaction with a Receivables Facility, solely to the extent in accordance with past practice and in the ordinary course of business;

(r) [reserved];

(s) payments to or from, and transactions with, joint ventures (to the extent any such joint venture is only an Affiliate as a result of Investments by Holdco and the Subsidiaries in such joint venture);

(t) loans and other transactions by and among Holdco and its Subsidiaries to the extent not prohibited Section 6.06 (other than Section 6.06(x));


75

(u) transactions by Holdco and its Subsidiaries with customers, clients, joint venture partners, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement that are fair to Holdco and the Subsidiaries, as determined in good faith by the board of directors or the senior management of the relevant Person, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;

(v) [reserved];

(w) [reserved];

(x) [reserved]; and

(y) [reserved].

Section 6.10 Restrictive Agreements. Holdco will not, and will not permit any Subsidiary to, enter into any agreement, instrument, deed or lease that prohibits, restricts or imposes any condition upon:

(a) the ability of Holdco or any other Loan Party to create, incur or permit to exist any Lien in favor of the Secured Parties upon any of its Collateral; or

(b) the ability of any Subsidiary to make Restricted Payments or to transfer assets to the Borrowers or any Subsidiary or to make or repay loans or advances to the Borrowers or any Subsidiary,

provided that the foregoing clauses (a) and (b) shall not apply to

(i) restrictions and conditions imposed by any law or any applicable rule, regulation or order, or any request of any Governmental Authority having regulatory authority over Holdco or any of its Subsidiaries;

(ii) restrictions and conditions existing on the Closing Date to the extent permitted hereunder and made in accordance with the Budget;

(iii) the ABL DIP Facility;

(iv) the foregoing shall not apply to customary provisions in leases, licenses and other contracts restricting the assignment, subletting or transfer thereof or other assets subject thereto;

(v) [reserved];

(vi) restrictions created in connection with any Receivables Facility;

(vii) restrictions or conditions set forth in any agreement in effect at any time any Person becomes a Subsidiary, provided that such agreement was not entered into in contemplation of such Person becoming a Subsidiary and the restriction or condition set forth in such agreement does not apply to Holdco or any other Subsidiary;

(viii) customary provisions in shareholders agreements, joint venture agreements, organizational or constitutive documents or similar binding agreements relating to any Joint Venture or non-wholly-owned Subsidiary and other similar agreements applicable to Joint Ventures and non-wholly-owned Subsidiaries and applicable solely to such Joint Venture or non-wholly-owned Subsidiary and the Equity Interests issued thereby;


76

(ix) any restrictions on cash or other deposits imposed by agreements entered into in the ordinary course of business;

(x) any restrictions regarding licensing or sublicensing by Holdco and its Subsidiaries of Intellectual Property in the ordinary course of business;

(xi) arise in connection with cash or other deposits permitted under Section 6.02 and Section 6.04;

(xii) are restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and

(xiii) comprise restrictions imposed by any agreement governing Indebtedness entered into on or after the Closing Date and permitted under Section 6.01 if the restrictions contained in any such agreement taken as a whole (a) are not materially less favorable to the Secured Parties than the encumbrances and restrictions contained in the Loan Documents (as determined by the Borrower Representative) or (b) either (I) the Borrower Representative determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrowers’ ability to make principal or interest payments required hereunder or (II) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument.

Section 6.11 Fiscal Year. Holdco will not, and will not permit any Subsidiary, to make any change in its fiscal year.

Section 6.12 Conduct of Business.

(a) From and after the Closing Date, Holdco and its Subsidiaries will not engage in any lines of business other than the lines of business of the type engaged in by Holdco and its Subsidiaries on the Closing Date.

(b) Any provision in this Agreement to the contrary notwithstanding, from and after the Closing Date, Holdco and its Subsidiaries will not create or acquire any foreign Subsidiary.

Section 6.13 Amendments to Organizational Documents and Certain Junior Indebtedness. Holdco will not, and will not permit any Subsidiary to, amend, restate, supplement or otherwise modify any of its Organizational Documents. Holdco will not, and will not permit any Subsidiary to, approve, authorize or enter into any amendment of or other modification to the intercreditor or subordination provisions of any Junior Indebtedness with an outstanding principal amount in excess of $100,000 in any manner that is materially adverse to the interests of the Lenders.

Section 6.14 DIP Term Controlled Accounts.

(a) No Loan Party shall create, incur, assume or suffer to exist (i) any Lien upon the DIP Term Controlled Account other than the DIP Lien created in favor of the Secured Parties under the Loan Documents. For the avoidance of doubt, each DIP Term Controlled Account shall constitute Term Priority Collateral.

(b) No Loan Party shall make or permit to be made any payment or withdrawal from a DIP Term Controlled Account except in accordance with the Budget, as expressly permitted in the Orders, or the express terms of this Agreement.



77

Section 6.16 Chapter 11 Claims. Except for the Carve-Out and Permitted Priority Liens and as provided in the Orders, directly or indirectly, incur, create, assume, suffer to exist or permit any administrative expense claim or Lien that is pari passu with or senior to the claims or DIP Liens granted under the Loan Documents, as the case may be, of the Agents and the Lenders against the Loan Parties hereunder or under the Orders, or apply to the Bankruptcy Court for authority to do so.

Section 6.17 Revision of Orders; Applications to Bankruptcy Court; Superpriority Claims. Directly or indirectly, (a) seek, support, consent to or suffer to exist any modification, stay, vacation or amendment of any Order or any other order of the Bankruptcy Court except for (i) any such modification, stay, vacation or amendment that is stayed or reversed with five (5) Business Days, (ii) modifications and amendments that do not affect the interests of the Lenders and (iii) any modifications and amendments agreed to in writing by the Required Lenders, in their sole discretion, (b) apply to the Bankruptcy Court for authority to take any action prohibited by this Article VI (except to the extent such application and the taking of such action is conditioned upon receiving the written consent of the Administrative Agent (or Collateral Agent, as applicable) and the Required Lenders, in their sole discretion) or (c) seek authorization for, or permit the existence of, any claims other than that of the Secured Parties entitled to superpriority status under section 364(c)(1) of the Bankruptcy Code that is senior or pari passu with the Secured Parties’ claim under section 364(c)(1) of the Bankruptcy Code, except for the Carve-Out.

Section 6.18 Compliance with Budget.

(a) Except as otherwise provided herein or approved by the Administrative Agent (at the direction of the Required Lenders, in their sole discretion), directly or indirectly, (a) use any cash, including the DIP Proceeds, in a manner or for a purpose other than those permitted under this Agreement, the Orders or the Budget subject to Permitted Variances, (b) make any Prepetition Payment or application for authority to make any Prepetition Payment, other than those permitted by this Agreement, the Orders or the Budget, (c) permit the actual aggregate disbursements in any Testing Period to exceed the aggregate amount of disbursements in the Budget for such Testing Period by more than the Permitted Variance, (d) permit the actual aggregate cash receipts (excluding DIP Proceeds that may be deemed a receipt) during any Testing Period to be less than the aggregate amount of such cash receipts in the Budget for such Testing Period by more than the Permitted Variance, and (e) permit the actual aggregate net cash flow during any Testing Period to exceed by more than the Permitted Variance the aggregate net cash flow in the Budget for the Testing Period; and

(b) So long as an Event of Default is not continuing, and to the extent permitted under the Orders, the Loan Parties are authorized and directed to pay fees and expenses allowed and payable, as applicable, by any interim, procedural, or final order of the Bankruptcy Court (that has not been vacated or stayed, unless the stay has been vacated) under Sections 330 and 331 of the Bankruptcy Code, as the same may be due and payable.

Section 6.19 Investigation Rights. The Committee (to the extent one is appointed), and any other party in interest with standing, shall have a maximum of the earlier of (A) if a Confirmation Order is entered, the date on which objections to confirmation of the Bankruptcy Plan were due, and (B) no later than (1) for a Committee (to the extent one is appointed), sixty (60) calendar days from the date of the Committee’s appointment, or (2) seventy-five (75) calendar days from the entry of the Interim Order for any other party in interest with requisite standing (the “Investigation Period”) to investigate and commence an adversary proceeding or contested matter, as required by the applicable Federal Rules of Bankruptcy Procedure, and challenge (each, a “Challenge”) the findings, the Debtors’ stipulations, or any other stipulations contained in the Orders, including, without limitation, any challenge to the validity, priority or enforceability of the liens securing the obligations under the Prepetition Term Loan Documents, or to assert any claim or cause of action against the Prepetition Term Agents or the Prepetition Term Lenders


78

arising under or in connection with the Prepetition Term Loan Documents or the Prepetition Term Obligations, as the case may be, whether in the nature of a setoff, counterclaim or defense of Prepetition Term Obligations, or otherwise. The Investigation Period may only be extended with the prior written consent of the Administrative Agent (acting at the direction of the Required Lenders), or pursuant to an order of the Bankruptcy Court. Except to the extent asserted in an adversary proceeding or contested matter filed during the Investigation Period, upon the expiration of such applicable Investigation Period (to the extent not otherwise waived or barred), (i) any and all Challenges or potential challenges shall be deemed to be forever waived and barred; (ii) all of the agreements, waivers, releases, affirmations, acknowledgements and stipulations contained in the Orders shall be irrevocably and forever binding on the Debtors, the Committee and all parties-in-interest and any and all successors-in-interest as to any of the foregoing, including any trustee appointed in a Chapter 7 case, without further action by any party or the Bankruptcy Court; (iii) the Prepetition Term Obligations shall be deemed to be finally allowed and the Prepetition Term Liens shall be deemed to constitute valid, binding and enforceable encumbrances, and not subject to avoidance pursuant to the Bankruptcy Code or applicable non-bankruptcy law; and (iv) the Debtors shall be deemed to have released, waived and discharged the Released Parties from any and all claims and causes of action arising out of, based upon or related to, in whole or in part, the Prepetition Term Obligations. Notwithstanding anything to the contrary herein: (x) if any Challenge is timely commenced, the stipulations contained in the Orders shall nonetheless remain binding on all other parties-in-interest and preclusive except to the extent that such stipulations are expressly and successfully challenged in such Challenge; and (y) the Released Parties reserve all of their rights to contest on any grounds any Challenge. For the avoidance of doubt, and as set forth in the Orders, the investigation rights afforded to the Committee will not constitute the Debtors’ and Lenders recognition, consent, or agreement not to object to, the Committee’s standing to assert any claim or cause of action.

.

ARTICLE VII

Events of Default

Section 7.01 Events of Default. If any of the following events (any such event, an “Event of Default”) shall occur:

(a) any Borrower shall fail to pay any principal of any Loan when and as the same shall become due and payable;

(b) any Borrower shall fail to pay (x) any interest on any Loan, when and as the same shall become due and payable or (y) or any fee, charge, cost or expense payable hereunder or any other amount due under this Agreement or any other Loan Document (including any portion thereof that accrues after the commencement of any proceeding seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, regardless of whether allowed or allowable in whole or in part as a claim in any such proceeding), when and as the same shall become due and payable;

(c) any representation, warranty or certification, when taken as a whole, made or deemed made by any Loan Party in any Loan Document shall be false or incorrect in any material respect as of the date made or deemed made;

(d) either any Borrower or Holdco shall default in the performance or compliance of Section 5.01(g), Section 5.02(a), Section 5.10, Section 5.19, Section 5.20, or in Article VI;

(e) any Loan Party shall default in the performance or compliance of any term contained in any Loan Document (other than those specified in paragraph (a), (b) or (d) of this Section 7.01), and default shall continue unremedied and unwaived for a period of ten (10) days after receipt by the


79

Borrower Representative of written notice thereof from the Administrative Agent (at the Required Lenders’ direction) or the Required Lenders;

(f) Holdco or any Subsidiary shall fail to make any payment beyond all applicable grace periods (whether of principal or interest and regardless of amount) in respect of any post-petition Indebtedness in excess of $1,000,000, when and as the same shall become due and payable after giving effect to any applicable grace periods provided in the applicable instrument or agreement under which such Material Indebtedness was created;

(g) Any Loan Party or any of its Subsidiaries shall (i) default in (x) any payment of principal of or interest on (A) the ABL DIP Facility or (B) any post-petition Indebtedness (excluding the Loans) in excess of $1,000,000, or (y) the payment of (A) any Guarantee in respect of the ABL DIP Facility or (B) any Guarantee of post-petition Indebtedness in excess of $1,000,000 in each case referred to in this clause (i) beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness or Guarantee was created; or (ii) default in the observance or performance of any other agreement or condition relating to any Indebtedness (excluding the Loans) or Guarantee referred to in clause (i) above or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice or lapse of time if required, such Indebtedness to become due prior to its stated maturity or such Guarantee to become payable (an “Acceleration”), and such time shall have lapsed and, if any notice (a “Default Notice”) shall be required to commence a grace period or declare the occurrence of an event of default before notice of Acceleration may be delivered, such Default Notice shall have been given and such default shall not have been remedied or waived by or on behalf of such holder or holders;

(h) Other than with respect to the Chapter 11 Cases, (i) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking liquidation, reorganization or other relief in respect of Holdco, any Borrower or any other Subsidiary, or of all or a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the involuntary appointment of a receiver, trustee, custodian, sequestrator, conservator, manager, administrative receiver or similar official for Holdco, any Borrower or any other Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding shall continue undismissed and unstayed for forty five (45) consecutive days without having been dismissed, bonded or discharged or an order of relief is entered in any such proceeding;

(i) Other than with respect to the Chapter 11 Cases, Holdco, any Borrower or any other Subsidiary shall (i) voluntarily commence any proceeding seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of any proceeding or petition described in paragraph (h) of this Section 7.01, (iii) consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, manager, administrative receiver or similar official for Holdco, any Borrower or any other Subsidiary or for all or a substantial part of its assets or (iv) make a general assignment for the benefit of creditors;

(j) any unsatisfied, final, non-appealable judgment(s) for the payment of money in an aggregate amount in excess of $1,000,000 (to the extent not covered by insurance or indemnities as to which the applicable insurance company or third party has not denied coverage) shall be rendered against Holdco or any Subsidiary or any combination thereof and the same shall remain undischarged, unvacated, unbounded and unstayed for a period of forty five (45) consecutive days;

(k) an ERISA Event shall have occurred that would reasonably be expected to result in a Material Adverse Effect;


80

(l) (i) any of the Loan Documents shall cease for any reason to be in full force and effect, or any Loan Party shall so assert in writing, or (ii) any Lien purported to be created under any Security Document shall cease to be, or shall be asserted by any Loan Party not to be (other than in an informational notice to the Administrative Agent), a valid and perfected (if and to the extent required to be perfected under the applicable Loan Document) Lien on a material portion of the DIP Collateral at any time, with the priority required by the applicable Security Document (subject to Liens permitted under Section 6.02), except as a result of the release of a Loan Party or the sale, transfer or other disposition to a Person that is not a Loan Party of the applicable DIP Collateral in a transaction permitted under the Loan Documents or the occurrence of the indefeasible payment in full in cash of the Obligations (which includes a conversion thereof into any exit financing of the Debtors pursuant to the terms of the Bankruptcy Plan and in accordance with the RSA);

(m) at any time after the execution and delivery thereof, any material portion of the Guarantee of the Obligations under the Guarantees or any material provision of any other Loan Document shall for any reason other than the occurrence of the indefeasible payment in full in cash of the Obligations (which includes a conversion thereof into any exit financing of the Debtors pursuant to the terms of the Bankruptcy Plan and in accordance with the RSA) or as expressly permitted hereunder or thereunder (including or as a result of a transaction permitted hereunder) cease to be in full force and effect, or any Loan Party shall contest the validity or enforceability in writing or repudiate, rescind or deny in writing that it has any further liability or obligation under any Loan Document other than as a result of the occurrence of the indefeasible payment in full in cash of the Obligations (which includes a conversion thereof into any exit financing of the Debtors pursuant to the terms of the Bankruptcy Plan and in accordance with the RSA), the sale or transfer of such Loan Party or as a result of a transaction permitted hereunder or thereunder; or

(n) a Change in Control shall have occurred;

(o) any impairment of the Loan Documents shall have occurred;

(p) the occurrence of any of the following in any Chapter 11 Case:

(i) termination of the RSA by the Debtors or the Requisite Consenting Term A Lenders (other than as a result of a breach of the RSA by any Consenting Lender (as defined in the RSA) that would constitute a Company Termination Event (as defined in the RSA));

(ii) filing of a plan of reorganization under Chapter 11 of the Bankruptcy Code by the Debtors (other than the Bankruptcy Plan) that has not been consented to by the Required Lenders;

(iii) filing of a plan of reorganization by the Debtors (other than the Bankruptcy Plan) that does not propose to indefeasibly repay the Obligations in full in cash, unless otherwise consented to by the Administrative Agent and the Required Lenders;

(iv) any of the Debtors shall file a pleading seeking to vacate or modify any of the Orders over the objection of the Administrative Agent or the Administrative Agent at the direction of the Required Lenders;

(v) entry of an order without the prior written consent of the Required Lenders amending, supplementing or otherwise modifying the Orders (other than, in respect of the Interim Order, the entry of the Final Order);


81

(vi) reversal, vacatur or stay of the effectiveness of the Orders except to the extent stayed or reversed within five (5) Business Days (and, other than, in respect of the Interim Order, the entry of the Final Order);

(vii) a failure by the Loan Parties to comply with any material provision of the Orders (except where such failure would not materially and adversely affect the Lenders or the Agents);

(viii) dismissal of the Chapter 11 Case of a Debtor with material assets or conversion of the Chapter 11 Case of a Debtor with material assets to a case under Chapter 7 of the Bankruptcy Code;

(ix) appointment of a Chapter 11 trustee or examiner with enlarged powers relating to the operation of the business of the Borrower or any other Loan Party;

(x) any sale of all or substantially all assets of the Debtors pursuant to section 363 of the Bankruptcy Code, unless (i) the proceeds of such sale are applied to indefeasibly satisfy the Obligations in full in cash or (ii) such sale is supported by the Administrative Agent at the direction of the Required Lenders;

(xi) failure to meet a Milestone, unless extended or waived pursuant by the prior written consent of the Administrative Agent at the direction of the Required Lenders;

(xii) granting of relief from the Automatic Stay in the Chapter 11 Cases to permit foreclosure or enforcement on assets of the Borrower or any other Loan Party, in each case, with a fair market value in excess of $1,000,000;

(xiii) the Debtors’ filing of (or supporting another party in the filing of) a motion seeking entry of, or the entry of an order by the Bankruptcy Court, granting any superpriority claim or lien (except as contemplated herein) which is senior to or pari passu with the Lenders’ claims under the DIP Facility;

(xiv) the Debtors’ filing of (or supporting another party in the filing of) a motion seeking entry of an order approving any key employee incentive plan, employee retention plan, or comparable plan, except as provided in the Bankruptcy Plan, without the prior written consent of the Required Lenders;

(xv) the Debtors shall seek, or shall support any other person’s motion seeking (in any such case, verbally in any court of competent jurisdiction or by way of any motion or pleading with the Bankruptcy Court, or any other writing to another party in interest by Debtors) to challenge the extent, validity, perfection, priority, or enforceability of any of the Lien or obligations of the parties under the Prepetition Term Loan Documents;

(xvi) payment of or granting adequate protection with respect to prepetition debt, other than as expressly provided herein or in the Orders or consented to by the Administrative Agent at the direction of the Required Lenders;

(xvii) expiration or termination of the period provided by section 1121 of the Bankruptcy Code for the exclusive right to file a plan, with respect to a Debtor with material assets;


82

(xviii) cessation of the DIP Liens or the Superpriority DIP Claims to be valid, perfected and enforceable in all respects;

(xix) Permitted Variances under the Budget are exceeded for any period of time without consent of or waiver by the Administrative Agent at the direction of the Required Lenders;

(xx) any uninsured judgments are entered with respect to any post-petition non-ordinary course claims against any of the Debtors or any of their respective affiliates in a combined aggregate amount in excess of $1,000,000 unless stayed;

(xxi) other than in the ordinary course and consistent with past practice, any Debtor asserting any right of subrogation or contribution against any other Debtor until all borrowings under the DIP Facility are paid in full in cash and the commitments are terminated;

(xxii) an order shall be entered in any of the Chapter 11 Cases, without the prior written consent of the Administrative Agent and the Required Lenders (i) to permit any administrative expense or any claim (now existing or hereafter arising of any kind or nature whatsoever) to have administrative priority equal or superior to the Superpriority DIP Claim (other than the Carve-Out) or (ii) granting or permitted grant of a Lien that is equal in priority or senior to the DIP Liens (other than the Carve-Out and Liens granted to secure the ABL DIP Facility pursuant to the Orders);

(xxiii) other than the Confirmation Order confirming the Bankruptcy Plan in accordance with the RSA, an order shall be entered by the Bankruptcy Court confirming a plan of reorganization or liquidation in any of the Chapter 11 Cases which does not indefeasibly pay in full in cash the Obligations upon the effective date of such plan;

(xxiv) the payment of any prepetition claim other than (i) as consented to by the Required Lenders, (ii) as authorized by the Budget, (iii) permitted under the terms of this Agreement or (iv) as authorized by the Bankruptcy Court pursuant to the “first day” or “second day” orders or the Orders and reflected in the Budget;

(xxv) the occurrence of a DOJ Adverse Action; and

(xxvi) the failure to settle the DOJ Action on a final basis, with approval by the court having jurisdiction over the DOJ Action, on terms acceptable to the Required Lenders and consistent with the DOJ Action Settlement Term Sheet, by July 15, 2020.

then, and in every such event, and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by written notice to the Borrower, its counsel, the United States Trustee and counsel for any statutory committee, terminate the DIP Facility, declare the Obligations in respect thereof to be immediately due and payable and, subject to Section 7.02, exercise all rights and remedies under the Loan Documents and the Orders.

Section 7.02 Remedies upon an Event of Default.

(a) If any Event of Default occurs and is continuing, then, subject to the terms of the Orders, the automatic stay provisions of section 362 of the Bankruptcy Code shall be vacated and modified to the extent necessary to permit the Administrative Agent and/or Collateral Agent, as applicable, and the Lenders to exercise all rights and remedies provided for in the Loan Documents and: (i) upon the occurrence


83

and during the continuance of any Event of Default under the Loan Documents, to (A) cease making any Loans under the DIP Facility to the Loan Parties and (B) declare all Obligations to be immediately due and payable; and (ii) unless the Bankruptcy Court orders otherwise during such period, upon the occurrence of an Event of Default and the giving by the Administrative Agent at the direction of the Required Lenders of five (5) business days prior written notice (the “Termination Notice”; and such notice period, the “Remedies Notice Period” provided that such period may be extended by written agreement by the Debtors and the Administrative Agent (acting at the direction of the Required Lenders), in their respective discretion), delivered to counsel to the Debtor, with copies to the United States Trustee and counsel to the Committee (if any), in each case subject in all respects to the Carve-Out and the proviso below, including without limitation the Debtors’ rights to fund the Carve-Out Reserves, to (A) immediately terminate the Debtors’ use of any cash collateral, (B) freeze monies or balances in the Debtors’ accounts (and, with respect to this Agreement and the DIP Facility, sweep all funds contained in the DIP Term Controlled Accounts); (C) set-off any and all amounts in accounts maintained by the Debtors with the Administrative Agent or the Lenders against the Obligations, or otherwise enforce any and all rights against the DIP Collateral in the possession of any of the applicable Lenders, including, without limitation, disposition of the DIP Collateral solely for application towards the Obligations; and (D) take any other actions or exercise any other rights or remedies permitted under the Orders, the Loan Documents or applicable law to effect the repayment of the Obligations; provided, however, that during the Remedies Notice Period, the Debtors shall be permitted to continue to use proceeds of the DIP Facility and cash collateral to (1) fund the Carve-Out Reserves and, (2) to pay (x) accrued wages and any other critical employee-related expenses and (y) subject to the consent of the Administrative Agent (at the direction of the Required Lenders) any other critical business-related expenses, necessary to operate the Debtors’ business or preserve the DIP Collateral as determined by the Debtors in their reasonable discretion and in good faith; provided, further, that the only basis on which the Debtors, the Committee or any other party-in-interest shall have the right to contest a Termination Notice shall be with respect to the validity of the Event of Default giving rise to such Termination Notice (i.e., whether or not such Event of Default has occurred or not, or whether or not it has been cured within the cure periods expressly set forth in the applicable Loan Documents). Subject to the preceding sentence, upon the occurrence and during the continuation of any Event of Default, the Loan Parties and their Subsidiaries shall not be permitted to withdraw any funds from a DIP Term Controlled Account. Upon and after the delivery of the Termination Notice, the Debtors and the Administrative Agent at the direction of the Required Lenders consent to a hearing on an expedited basis to consider whether the Automatic Stay may be lifted so that the Agents and the Lenders may exercise all of their respective rights and remedies in respect of the DIP Collateral in accordance with the Orders and the Loan Documents, or to consider any other appropriate relief (including the Debtors’ use of cash collateral on a nonconsensual basis).

(b) Except as expressly provided above in this Section 7.02, to the maximum extent permitted by applicable law, presentment, demand, protest and all other notices of any kind are hereby expressly waived.

(c) Each of the Loan Parties hereby waives any right to seek relief under the Bankruptcy Code, including under section 105 thereof, to the extent such relief would restrict or impair the rights and remedies of the Administrative Agent and the Lenders set forth in the Orders and in the Loan Documents.


Section 7.04 Application of Proceeds.

(a) Upon the occurrence and during the continuation of an Event of Default, if requested by the Required Lenders, or upon acceleration of all the Obligations pursuant to Section 7.01, all proceeds received by the Administrative Agent or the Collateral Agent in respect of any sale of, collection


84

from, or other realization upon all or any part of the DIP Collateral under any Loan Document shall be applied by the Administrative Agent as follows (unless, other than in the case of clause “First” below, each directly and adversely affected Lender shall otherwise agree in writing):

(i) First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest) payable to each Agent in its capacity as such;

(ii) Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders, ratably among them in proportion to the amounts described in this clause Second payable to them;

(iii) Third, to payment of that portion of the Obligations constituting accrued and unpaid interest (including, but not limited to, post-petition interest), ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;

(iv) Fourth, to payment of that portion of the Obligations constituting unpaid principal, ratably among the Lenders in proportion to the respective amounts described in this clause Fourth held by them;

(v) Fifth, to the payment of all other Obligations of the Loan Parties that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and

(vi) Last, the balance, if any, after all of the Obligations have been paid in full, to the Borrower Representative or as otherwise required by law.

If any Secured Party collects or receives any amounts received on account of the Obligations to which it is not entitled under this Section 7.04, such Secured Party shall hold the same in trust for the applicable Secured Parties entitled thereto and shall forthwith deliver the same to the Collateral Agent, for the account of such Secured Parties, to be applied in accordance with this Section 7.04 in each case until the prior payment in full in cash of the applicable Obligations of such Secured Parties.

ARTICLE VIII

The Administrative Agent

Section 8.01 Appointment of Agents. Each of the Lenders hereby irrevocably appoints Wilmington Trust, National Association to act on its behalf as the Administrative Agent and Collateral Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Unless otherwise specifically set forth herein, the Collateral Agent shall have all the rights and benefits of the Administrative Agent set forth in this Article.

The Collateral Agent shall act as the “collateral agent” under the Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Collateral Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all DIP Liens on DIP Collateral granted by any of the Loan Parties pursuant to the Security Documents and the Orders to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the


85

Administrative Agent or the Collateral Agent pursuant to Section 8.05 for purposes of holding or enforcing any DIP Lien on the DIP Collateral (or any portion thereof) granted under the Security Documents and the Orders, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent or the Collateral Agent, shall be entitled to the benefits of all provisions of this Article VIII and Section 9.03 (as though such co-agents, subagents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto. The provisions of this Article VIII are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the other Secured Parties and the Borrowers shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent or the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

Any corporation or association into which the Administrative Agent or the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer all or substantially all of its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which the Administrative Agent or the Collateral is a party, will be and become the successor the Administrative Agent or Collateral Agent, as applicable, under this Agreement and will have and succeed to the rights, powers, duties, immunities and privileges as its predecessor, without the execution or filing of any instrument or paper or the performance of any further act.

Section 8.02 Rights of Lender. The bank serving as the Administrative Agent and Collateral Agent hereunder, if applicable, shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and Collateral Agent, and with respect to any of its Loans or Commitments hereunder, the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include, if applicable, the Person serving as the Administrative Agent and Collateral Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdco or any Subsidiary or other Affiliate thereof, all as if such Person were not the Administrative Agent and Collateral Agent hereunder and without any duty to account therefor to the Lenders.

Section 8.03 Exculpatory Provisions. The Administrative Agent and Collateral Agent shall not have any duties or obligations except those expressly set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing the Administrative Agent and Collateral Agent, (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent or Collateral Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that neither the Administrative Agent nor the Collateral Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent or the Collateral Agent to liability or that is contrary to any Loan Document or applicable law and (c) shall not except as expressly set forth herein or in the other Loan Documents, have any duty to disclose, and shall not be liable to the Lenders for the failure to disclose, any information relating to Holdco, the Borrowers or any Subsidiary that is communicated to or obtained by the Person serving as Administrative Agent, Collateral Agent or any of their respective Affiliates in any capacity. The Administrative Agent and Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary or as the Administrative Agent shall believe in good faith shall be


86

necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct (to the extent determined in a final non-appealable order of a court of competent jurisdiction). The Administrative Agent shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Lender to whom payment was due but not made, shall be to recover pro rata from other Lenders any payment equal to the amount to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received by them). The Administrative Agent and Collateral Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdco, the Borrowers or a Lender, and the Administrative Agent and Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or express conditions set forth in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or the creation, perfection or priority of any DIP Lien purported to be created by the Security Documents and the Orders or that the DIP Liens granted to the Collateral Agent pursuant to any Security Document have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, (v) the value or the sufficiency of any DIP Collateral or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. The Administrative Agent and the Collateral Agent shall have no obligation to monitor whether any amendment or waiver to any Loan Document has properly become effective or is permitted hereunder or thereunder except to the extent expressly agreed to by the Administrative Agent or the Collateral Agent in such amendment or waiver.

In no event shall any Agent be liable for any failure or delay in the performance of their respective obligations under this Agreement or any related documents because of circumstances beyond such Agent’s control, including, but not limited to, a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, flood, war (whether declared or undeclared), civil or military disturbances or hostilities, nuclear or natural catastrophes, political unrest, explosion, severe weather or accident, earthquake, terrorism, fire, riot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Agreement or any related documents, or the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any other causes beyond the Agent’s control whether or not of the same class or kind as specified above.

Nothing in this Agreement or any other Loan Document shall require the Administrative Agent or the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder.

The Agents shall have no obligation for (a) perfecting, maintaining, monitoring, preserving or protecting the security interest or Lien granted under the Credit Agreement, any other Loan Document, or any agreement or instrument contemplated hereby or thereby; (b) the filing, re-filing, recording, re-recording, or continuing of any document, financing statement, mortgage, assignment, notice, instrument of further assurance, or other instrument in any public office at any time or times; or (c) providing, maintaining, monitoring, or preserving insurance on or the payment of taxes with respect to any DIP Collateral.


87

The Agents shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Lender. For the avoidance of doubt, each Agent’s rights, protections, indemnities and immunities provided herein shall apply to Agent for any actions taken or omitted to be taken under any Loan Document and any other related agreements in any of its capacities

Section 8.04 Reliance by Administrative Agent and Collateral Agent. Each of the Administrative Agent and Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and to have been signed or sent or otherwise authenticated by the proper Person. Each of the Administrative Agent and Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability to the Lenders for relying thereon. Each of the Administrative Agent and Collateral Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan.

Section 8.05 Delegation of Duties. Each of the Administrative Agent and Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Documents by or through any one or more sub-agents appointed by the Administrative Agent or the Collateral Agent. Each of the Administrative Agent and Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent, the Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent or Collateral Agent. Neither the Administrative Agent nor the Collateral Agent shall be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent or the Collateral Agent, as applicable, acted with gross negligence or willful misconduct in the selection of such sub-agents.

Section 8.06 Resignation or Removal of Agents; Successor, Administrative Agent and Collateral Agent. The Administrative Agent and Collateral Agent may at any time resign by giving thirty (30) days’ prior written notice of its resignation to the Lenders and the Borrower Representative. If the Administrative Agent is subject to an Agent-Related Distress Event, either the Required Lenders or the Borrower Representative may upon ten (10) days’ prior notice remove the Administrative Agent or Collateral Agent, as the case may be. Upon receipt of any such notice of resignation or delivery of such removal notice, the Required Lenders shall have the right to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent or Collateral Agent, as applicable, gives notice of its resignation or the delivery of such removal notice, then in the case of a retirement, the retiring Administrative Agent may on behalf of the Lenders, appoint a successor Administrative Agent or Collateral Agent, as applicable, meeting the qualifications set forth above; provided that (x) in the case of a retirement, if no such successor Administrative Agent and Collateral Agent has been appointed by the thirtieth (30th) day after the resigning Administrative Agent or Collateral


88

Agent gave notice of their resignation or (y) in the case of a removal, the Required Lenders notify the Borrower Representative that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with such notice and (i) the retiring or removed Administrative Agent or Collateral Agent, as applicable, shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent or Collateral Agent, as applicable, on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent or Collateral Agent, as applicable, shall continue to hold such collateral security, as bailee, until such time as a successor Administrative Agent or Collateral Agent, as applicable, is appointed), (ii) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly (and each Lender will cooperate with the Borrower Representative to enable the Borrower Representative to take such actions), until such time as the Required Lenders appoint a successor Administrative Agent, as provided for above in this Section 8.06 and (iii) the Borrowers and the Lenders agree that in no event shall the retiring Administrative Agent and Collateral Agent or any of their respective Affiliates or any of their respective officers, directors, employees, agents advisors or representatives have any liability to the Loan Parties, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the failure of a successor Administrative Agent or Collateral Agent to be appointed and to accept such appointment. Upon the acceptance of a successor’s appointment as Administrative Agent or Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent or Collateral Agent, as applicable, and the retiring Administrative Agent or Collateral Agent, as applicable, shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Article). The fees payable by the Borrowers to a successor Administrative Agent or Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Representative and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article VIII and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent or Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent or Collateral Agent was acting as Administrative Agent or Collateral Agent.

Section 8.07 Non-Reliance on Agents and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, the Collateral Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Document or any related agreement or any document furnished thereunder.

Section 8.08 No Other Duties. Notwithstanding anything herein to the contrary, none of the Agents listed on the cover page hereof shall have any powers, duties or responsibilities under any Loan Document, except in its capacity, as applicable, as the Administrative Agent, Collateral Agent or a Lender.

Section 8.09 DIP Collateral and Guaranty Matters. Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders in accordance with the provisions of this Agreement, the Security Documents or the Orders, and the exercise by the Required Lenders of the powers set forth herein or therein and the Orders, together with such other powers as are reasonably incidental thereto, shall be


89

authorized and binding upon all of the Lenders. Each of the Lenders irrevocably authorize each of the Administrative Agent and the Collateral Agent,

(a) to release any DIP Lien on any property granted to or held by the Administrative Agent or the Collateral Agent (or any sub-agent thereof) under any Loan Document (i) upon the indefeasible payment in full in cash of the Obligations (which includes a conversion thereof into any exit financing of the Debtors pursuant to the terms of the Bankruptcy Plan and in accordance with the RSA), (ii) that is sold or to be sold or transferred as part of or in connection with any sale or other transfer permitted hereunder or under any other Loan Document to a Person that is not a Loan Party, (iii) that constitutes Excluded Property, (iv) if the property subject to such DIP Lien is owned by a Loan Party, upon the release of such Loan Party from its Guaranty otherwise in accordance with the Loan Documents, (v) as to the extent, if any, provided in the Security Documents or (vi) if approved, authorized or ratified in writing in accordance with Section 9.02;

(b) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction or designation permitted hereunder;

(c) [reserved]; and

(d) enter into the ABL Intercreditor Agreement and other subordination or intercreditor agreements with respect to Indebtedness to the extent the Administrative Agent or Collateral Agent is otherwise contemplated herein as being a party to such intercreditor or subordination agreement, in each case to the extent such agreements are substantially consistent with the terms set forth in the ABL Intercreditor Agreement annexed hereto together with (A) any immaterial changes and (B) material changes thereto in light of prevailing market conditions, which material changes shall be acceptable to the Required Lenders (it being understood that junior Liens are not required to be pari passu with other junior Liens, and that Indebtedness secured by junior Liens may secured by Liens that are pari passu with, or junior in priority to, other Liens that are junior to the DIP Liens securing the Obligations); and

(e) to enter into and sign for and on behalf of the Lenders as Secured Parties the Security Documents for the benefit of the Lenders and the other Secured Parties.

Upon request by the Administrative Agent or the Collateral Agent at any time, the Required Lenders (or such greater number of Lenders as may be required pursuant to Section 9.02(b)(vi) or (vii)) will confirm in writing the Administrative Agent’s or the Collateral Agent’s, as the case may be, authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under the Guaranty pursuant to this Section 8.09. In each case as specified in this Section 8.09, the Administrative Agent and the Collateral Agent will (and each Lender hereby authorizes the Administrative Agent and the Collateral Agent to), at the Borrowers’ expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of DIP Collateral from the assignment and security interest granted under the Security Documents or to subordinate its interest in such item, or to release such Loan Party from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 8.09 (and the Agents may conclusively rely on a certificate provided by the Borrower Representative that the transaction giving rise to such release is permitted under the Loan Documents).


Section 8.11 Withholding Tax. To the extent required by any applicable Requirements of Law (as determined in good faith by the Administrative Agent), the Administrative Agent may withhold from any payment to any Lender under any Loan Document an amount equivalent to any applicable withholding Tax. If the IRS or any other Governmental Authority of any jurisdiction asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender


90

for any reason (including because the appropriate form was not delivered, was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding Tax ineffective), such Lenders shall indemnify the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Loan Parties and without limiting the obligation of the Loan Parties to do so) fully for, and shall make payable in respect thereof within ten (10) days after demand therefor, all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including penalties, additions to Tax and interest, together with all expenses incurred, including legal expenses, allocated staff costs and any out of pocket expenses. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Section 8.11. The agreements in this Section 8.11 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.

Section 8.12 Indemnification of Agents. Whether or not the transactions contemplated hereby are consummated, each Lender shall indemnify upon demand each Agent and their respective Related Parties (to the extent not reimbursed by or on behalf of the Borrowers and without limiting the obligations of any Loan Party to do so) in proportion to its applicable Pro Rata Share (determined as set forth below) and hold harmless each Agent and their respective Related Parties against any and all Indemnified Liabilities incurred by it; provided that no Lender shall be liable for payment to any Agent and their respective Related Parties of any portion of such Indemnified Liabilities to the extent determined in a final, nonappealable judgment of a court of competent jurisdiction to have resulted from such Agent’s and their respective Related Parties’ own gross negligence or willful misconduct (and no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section). In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person. Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for its Pro Rata Share of any costs or out-of-pocket expenses (including the fees, disbursements and other charges of counsel) incurred by the Administrative Agent and the Collateral Agent in connection with preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights and responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent or the Collateral Agent, as applicable, is not reimbursed for such costs or expenses by or on behalf of the Borrowers. For purposes of this Section 8.12, (a) “Pro Rata Share” shall mean, with respect to any Lender at any time, the percentage obtained by dividing (i) the sum of the aggregate outstanding principal amount of the Loans of such Lender at such time and its unused Commitments at such time by (ii) the sum of the aggregate outstanding principal amount of the Loans of all Lenders at such time and the aggregate unused Commitments of all Lenders at such time and (b) “Pro Rata Share” shall be determined as of the time that the applicable indemnity or expense reimbursement payment is sought (or, in the event at such time all the Commitments shall have terminated and all the Loans shall have been repaid in full, as of the time most recently prior thereto when any Loans or Commitments remained outstanding). Each Lender hereby authorizes the Administrative Agent and Collateral Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent or the Collateral Agent to such Lender from any source against any amount due to the Administrative Agent or the Collateral Agent under this Section 8.12. The undertaking in this Section 8.12 shall survive termination of the Commitments, the payment of all other Obligations and the resignation and/or replacement of the Administrative Agent or the Collateral Agent, as the case may be.


91

Section 8.13 Administrative Agent and Collateral Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment or composition under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent and Collateral Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent or Collateral Agent shall have made any demand on the Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations, in each case, that are owing and unpaid by such Loan Party and to file such other documents as may be necessary or advisable in order to have such claims of the Lenders, the Administrative Agent and Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Administrative Agent and Collateral Agent and their respective agents and counsel and all other amounts due the Lenders, the Administrative Agent and Collateral Agent under Section 2.12 and Section 9.03 which are payable by such Loan Party) allowed in such judicial proceeding;

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

(c) any custodian, receiver, assignee, trustee, liquidator, sequestrator, examiner or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, if the Administrative Agent shall consent, to the making of such payments directly to the Lenders to pay to the Administrative Agent (and Lenders) any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due to the Administrative Agent under Section 2.12 and Section 9.03 in each case reimbursable or payable by such Loan Party.

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

Section 8.14 Chapter 11 Cases; Bankruptcy.

(a) Nothing contained herein shall be deemed to (x) require any Agent to file or prove any claim in the Chapter 11 Cases, or (y) authorize any Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

(b) The Lenders hereby irrevocably authorize the Agents, based upon the instruction of the Required Lenders, to (a) consent to, credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the DIP Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363 of the Bankruptcy Code and any similar laws in any other jurisdictions in which a Loan Party is subject, (b) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the DIP Collateral at any sale or other disposition thereof conducted under the provisions of the Uniform Commercial Code, including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code, or (c) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the DIP Collateral at any other sale or foreclosure conducted or consented to by the Collateral Agent (at the direction of the Required Lenders) in accordance with applicable law in any judicial action or proceeding or by the exercise of any legal or equitable remedy. In


92

connection with any such credit bid or purchase, (i) the Obligations owed to the Lenders shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not impair or unduly delay the ability of the Agents to credit bid or purchase at such sale or other disposition of the DIP Collateral and, if such contingent or unliquidated claims cannot be estimated without impairing or unduly delaying the ability of the Agents to credit bid at such sale or other disposition, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the DIP Collateral that is the subject of such credit bid or purchase) and the Lenders whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the DIP Collateral that is the subject of such credit bid or purchase (or in the Equity Interests of the any entities that are used to consummate such credit bid or purchase), and (ii) the Agents, based upon the instruction of the Required Lenders, may accept non-cash consideration, including debt and equity securities issued by any entities used to consummate such credit bid or purchase and in connection therewith the Agents may reduce the Obligations owed to the Lenders (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon the value of such non-cash consideration. Except as provided above, the Agents will not execute and deliver a release of any DIP Lien on any DIP Collateral without the prior written authorization of (y) if the release is of all or substantially all of the DIP Collateral, all of the Lenders, or (z) otherwise, the Required Lenders. Upon request by the Agents or the Borrower at any time, the Lenders will confirm in writing the Agents’ authority to release any such DIP Liens on particular types or items of DIP Collateral pursuant to this Article 8; provided, that (1) anything to the contrary contained in any of the Loan Documents notwithstanding, the Agents shall not be required to execute any document or take any action necessary to evidence such release on terms that, in the Agents’ reasonable opinion, could expose either Agent to liability or create any obligation or entail any consequence other than the release of such DIP Lien without recourse, representation, or warranty, and (2) such release shall not in any manner discharge, affect, or impair the Obligations or any DIP Liens (other than those expressly released) upon (or obligations of the Borrower in respect of) any and all interests retained by the Borrower, including, the proceeds of any sale, all of which shall continue to constitute part of the DIP Collateral.

ARTICLE IX

Miscellaneous

Section 9.01 Notices. Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows:

(a) if to Holdco at 10822 West Toller Drive, Suite 370, Littleton, Colorado 80127, Attention of Marc Weinsweig, Phone: 301-332-2555, email: Marc Weinsweig [email protected], with a copy to Kirkland & Ellis LLP at 601 Lexington Avenue, New York, NY 10022, Attention of Judson A. Oswald, P.C., email: [email protected];

(b) if to the Administrative Agent or the Collateral Agent, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 9.01; and

(c) if to any Lender, to it at its address (or facsimile number) set forth in its Administrative Questionnaire.

Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto. Subject to Section 9.15, notices and other communications to the Lenders hereunder may also be delivered or furnished by electronic communication (including e-


93

mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower Representative may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.

Section 9.02 Waivers; Amendments.

(a) No failure or delay by the Administrative Agent or any Lender in exercising any right or power under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights, powers, privileges or remedies that they would otherwise have in law or in equity, or under any other instrument, document or agreement now existing or hereafter arising. No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default at the time. No notice or demand on Holdco or the Borrowers in any case shall entitle Holdco or the Borrowers to any other or further notice or demand in similar or other circumstances.

(b) Except as provided specifically provided below or otherwise provided herein or in a Loan Document, neither any Loan Document nor any provision thereof may be waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdco, the Borrowers and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and/or the Collateral Agent, as applicable, and the Loan Party or Loan Parties that are parties thereto (except as otherwise expressly provided therein), in each case with the consent of the Required Lenders (other than with respect to any amendment, modification or waiver contemplated in clauses (i) through (iv) and (ix) below, which shall only require the consent of the Lenders expressly set forth therein and not Required Lenders), provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender (it being understood that a waiver of any condition precedent in Section 4.01, Section 4.02 or Section 4.03 of this Agreement or the waiver of any covenant, Default, Event of Default or mandatory prepayment or reductions shall not constitute an increase of any Commitment of a Lender), (ii) reduce or forgive the principal amount of any Loan owed to a Lender or reduce the rate of interest thereon owed to such Lender, or reduce any fees or premiums payable hereunder owed to such Lender, without the written consent of such Lender directly and adversely affected thereby, provided that any waiver or deferral of Default or Event of Default or default interest, waiver of a mandatory prepayment or any modification, waiver or amendment to the financial covenant definitions or financial ratios or any component thereof or any other covenant in this Agreement shall not constitute a reduction or forgiveness in the interest rates or the fees or premiums for purposes of this clause (ii), (iii) except as otherwise provided hereunder, postpone the scheduled maturity of any Loan, or any date for the payment of any interest, fees or premiums payable hereunder, or reduce or forgive the amount of, waive or excuse any such repayment (but not prepayment), or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby (it being understood that no amendment, modification or waiver of, deferral of, or consent to departure from, any condition precedent, covenant,


94

Default, Event of Default, waiver of default interest, mandatory prepayment or mandatory reduction of the Commitments shall constitute a postponement of any date scheduled for the payment of principal or interest or an extension of the final maturity of any Loan or the scheduled termination date of any Commitment), (iv) change any of the provisions of Section 2.18, Section 7.04, or any other provision that alters the pro rata sharing of payments among Lenders without the written consent of each Lender directly and adversely affected thereby, (v) change any of the provisions of this Section 9.02(b) or reduce the percentage set forth in the definition of the term “Required Lenders” or reduce the percentage in any other provision of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender (vi) release all or substantially all of the value of the Guarantees under the Guaranty (except as provided herein or in the applicable Loan Document), without the written consent of each Lender, (vii) release all or substantially all the DIP Collateral from the DIP Liens of the Security Documents and the Orders (except as provided herein or in the applicable Loan Document), without the written consent of each Lender (it being understood that any subordination of a lien permitted hereunder shall not constitute a release of a lien under this Section and the granting of any pari passu liens in connection with the incurrence of debt or the granting of liens otherwise permitted hereunder from time to time (including pursuant to amendments) shall not constitute a release of liens), and (viii) change any provision of Section 9.04(a) with respect to the Borrowers’ ability to assign or otherwise transfer any of their rights or obligations hereunder, without the written consent of each Lender other than pursuant to a merger by one Borrower into another Borrower as permitted by this Agreement; provided, further, that (x) no such agreement shall affect the rights or duties of the Administrative Agent or the Collateral Agent without the prior written consent of the Administrative Agent or the Collateral Agent, as the case may be or (y) be any amendment or modification to the Agent Fee Letter, or waiver of any rights or privileges thereunder, shall only require the consent of the Borrowers and the Agents party thereto. In the event an amendment to this Agreement or any other Loan Document is effected without the consent of the Administrative Agent or Collateral Agent (to the extent permitted hereunder) and to which the Administrative Agent or Collateral Agent is not a party, the Borrower Representative shall furnish a copy of such amendment to the Administrative Agent. Notwithstanding the foregoing, no Lender consent is required to effect any amendment, modification or supplement to any intercreditor agreement or arrangement permitted under this Agreement or in any document pertaining to any Indebtedness permitted hereby that is permitted to be secured by the Collateral for the purpose of adding the holders of such Indebtedness (or their senior representative) as a party thereto and otherwise causing such Indebtedness to be subject thereto, in each case as contemplated by the terms of such intercreditor agreement or arrangement permitted under this Agreement, as applicable, together with (A) any immaterial changes and (B) material changes thereto in light of prevailing market conditions, which material changes shall be posted to the Lenders not less than ten (10) Business Days before execution thereof and, if the Required Lenders shall not have objected to such changes within ten (10) Business Days after posting, then the Required Lenders shall be deemed to have agreed that the Administrative Agent’s and/or Collateral Agent’s entry into such intercreditor agreement (with such changes) is reasonable and to have consented to such intercreditor agreement (with such changes) and to the Administrative Agent’s and/or Collateral Agent’s execution thereof, in each case in form and substance reasonably satisfactory to the Administrative Agent and/or Collateral Agent (it being understood that junior Liens are not required to be pari passu with other junior Liens, and that Indebtedness secured by junior Liens may be secured by Liens that are pari passu with, or junior in priority to, other Liens that are junior to the DIP Liens securing the Obligations).

(c) In connection with any proposed amendment, modification, waiver or termination (a “Proposed Change”) requiring the consent of all Lenders or all directly and adversely affected Lenders, if the consent of the Required Lenders (or, in the case of a consent, waiver or amendment involving directly and adversely affected Lenders, at least 50.1% of such directly and adversely affected Lenders) to such Proposed Change is obtained, but the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in paragraph (b) of


95

this Section 9.02 being referred to as a “Non-Consenting Lender”), then, the Borrower Representative may, at its sole expense and effort, upon notice to such Non-Consenting Lender and the Administrative Agent, (i) require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that (a) such Non-Consenting Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts), (b) such assignee shall have paid to the Administrative Agent the processing and recordation fee specified in clause (b)(ii) of this Section 9.02 and (c) such assignee shall have consented to the Proposed Change or (ii) terminate the Commitment of such Lender and repay all Obligations of the Borrowers due and owing to such Lender relating to the Loans held by such Lender as of such termination date; provided that in the case of any such termination of a Non-Consenting Lender such termination shall be sufficient (together with all other consenting Lenders and terminated Lenders after giving effect hereto) to cause the adoption of the applicable departure, waiver or amendment of the Loan Documents.

(d) [Reserved].

(e) The Lenders and all other Secured Parties hereby irrevocably agree that the DIP Liens granted to the Collateral Agent by the Loan Parties on any DIP Collateral shall, at the sole cost and expense of the Borrowers, be automatically released (i) upon the indefeasible payment in full in cash of the Obligations (which includes a conversion thereof into any exit financing of the Debtors pursuant to the terms of the Bankruptcy Plan and in accordance with the RSA), (ii) upon the sale or other disposition of such DIP Collateral (as part of or in connection with any other sale or other disposition permitted hereunder) to any Person other than another Loan Party, to the extent such sale or other disposition is made in compliance with the terms of this Agreement, (iii) to the extent such DIP Collateral is comprised of property leased to a Loan Party, (iv) if the release of such DIP Lien is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders whose consent may be required in accordance with this Section 9.02), (v) to the extent such property constitutes Excluded Property, (vi) to the extent the property constituting such DIP Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the applicable Guaranty (in accordance with the following sentence) to the extent such release of a Guarantor is made in compliance with the terms of this Agreement and (vii) as required to effect any sale or other disposition of DIP Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Loan Documents. Any such release shall not in any manner discharge, affect, or impair the Obligations or any DIP Liens (other than those being released) upon (or obligations (other than those being released) of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the DIP Collateral except to the extent comprised of Excluded Property or otherwise released in accordance with the provisions of the Loan Documents. The Lenders and all other Secured Parties, hereby authorize the Administrative Agent and the Collateral Agent, as applicable, to execute and deliver any instruments, documents, and agreements necessary or desirable to evidence and confirm the release of any Loan Party’s Guaranty or DIP Collateral pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any Lender or other Secured Party (and the Lenders and the other Secured Parties agree that the Agents may conclusively rely on a certificate provided by the Borrower Representative that the transaction giving rise to such release is permitted under the Loan Documents).

(f) [Reserved].

(g) [Reserved].


96

(h) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended solely with the consent of the Administrative Agent and the Borrowers without the need to obtain the consent of any other Lender if such amendment is delivered in order to correct or cure (x) errors, omissions, defects, (y) to effect administrative changes of a technical or immaterial nature or (z) incorrect cross references or similar inaccuracies in this Agreement or the applicable Loan Document. Guarantees, collateral documents, security documents, intercreditor agreements, and related documents executed in connection with this Agreement may be in a form reasonably determined by the Administrative Agent or Collateral Agent, as applicable, and may be amended, modified, terminated or waived, and consent to any departure therefrom may be given, without the consent of any Lender if such amendment, modification, waiver or consent is given in order to (x) comply with local law or advice of counsel or (y) cause such guarantee, collateral document, security document or related document to be consistent with this Agreement and the other Loan Documents.

(i) Subject to the provisos of this paragraph, for purposes of determining whether Required Lenders, have consented (or not consented) to any amendment, modification, waiver or consent (other than pursuant to Sections 9.02(b)(i), (ii), (iii), (iv) or any amendment, modification, waiver or consent that directly and adversely affects any Affiliated Lender in its capacity as a Lender disproportionately in relation to other affected Lenders) under any Loan Document, any Loans held by an Affiliated Lender (other than any Affiliated Institutional Lender) shall be automatically deemed to be voted in the same proportion as all other Lenders who are not Affiliated Lenders; provided that (a) in the event that any proceeding under the Bankruptcy Code shall be instituted by or against any Borrower, each Affiliated Lender (other than any Affiliated Institutional Lender) shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall not be included in determining whether the applicable class of creditors holding such claims has voted to accept a proposed plan for purposes of Section 1129(a)(10) of the Bankruptcy Code, or, alternatively, to the extent that the foregoing designation is deemed unenforceable for any reason, each Affiliated Lender (other than any Affiliated Institutional Lender) shall vote in such proceedings in the same proportion as the allocation of voting with respect to such matter by those Lenders who are not Affiliated Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Affiliated Lender in a manner that is less favorable in any material respect to such Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Affiliated Lenders (and in furtherance thereof, solely to the extent that the designation set forth above is deemed unenforceable, each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender (solely in respect of acceptance of a plan for purposes of Section 1129(a)(10) of the Bankruptcy Code and solely in respect Loans and participations therein and not in respect of any other claim or status such Affiliated Lender may otherwise have)); and (b) for purposes of this paragraph, for the avoidance of doubt, Affiliated Lenders shall be deemed to not include Affiliated Institutional Lenders (and the foregoing limitations shall not apply in respect of Affiliated Institutional Lenders).

(j) [reserved].

(k) Notwithstanding anything to the contrary herein, in connection with any amendment, modification, waiver or consent hereunder, in no event shall Affiliated Institutional Lenders exclusively constitute Required Lenders in and of themselves.

Section 9.03 Expenses; Indemnity; Damage Waiver.

(a) Each Borrower and each Guarantor shall jointly and severally pay promptly all (i) reasonable and documented (in summary form) out-of-pocket fees, costs, disbursements and expenses of (a) the Agents (including (and limited, in the case of counsel, to) all reasonable and documented out-of-


97

pocket fees, costs, disbursements and expenses of the Agents’ outside counsel, A&P and, to the extent necessary, one firm of local counsel engaged by the Agents in connection with the Chapter 11 Cases, and any successor counsel to each) and (b) the Term Loan Lender Group (including (and limited, in the case of counsel, financial advisors and other outside professionals, to) all reasonable and documented out-of-pocket fees, costs, disbursements and expenses of the Term Loan Lender Group’s outside counsel, K&S, and, to the extent necessary, one firm of local counsel engaged by the Term Loan Lender Group’s in connection with the Chapter 11 Cases, and FTI), in the case of each of the foregoing clauses (a) and (b), in connection with the negotiations, preparation, execution and delivery of the Loan Documents and the funding of all Loans under the DIP Facility, including, without limitation, all due diligence, transportation, computer, duplication, messenger, audit, insurance, appraisal, valuation and consultant costs and expenses, and all search, filing and recording fees, incurred or sustained by the Agents and the Term Loan Lender Group, and their counsel and professional advisors in connection with the DIP Facility, the Loan Documents or the transactions contemplated thereby, the administration of the DIP Facility and any amendment or waiver of any provision of the Loan Documents, and (ii) without duplication, reasonable and documented (in summary form) out-of-pocket fees, costs, disbursements and expenses of the Agents and the Term Loan Lender Group (including (and limited, in the case of counsel, to) (x) all reasonable and documented out-of-pocket fees, costs, disbursements and expenses of one firm of outside counsel for the Agents and, to the extent necessary, one firm of local counsel engaged by the Agents in each relevant jurisdiction, and any successor counsel to such primary counsel and local counsel) and (y) all reasonable and documented out-of-pocket fees, costs, disbursements and expenses of one firm of outside counsel for the Term Loan Lender Group and, to the extent necessary, one firm of local counsel engaged by the Term Loan Lender Group in connection therewith) in connection with (A) the enforcement of any rights and remedies under the Loan Documents, (B) the Chapter 11 Cases, including attendance at all hearings in respect of the Chapter 11 Cases, and (C) defending and prosecuting any actions or proceedings arising out of or relating to the Prepetition Term Obligations, the Obligations, the Liens securing the Prepetition Term Obligations and the DIP Liens securing the Obligations, or any transaction related to or arising in connection with the Prepetition Term Loan Documents, this Agreement or the other Loan Documents (in the case of the Prepetition Term Obligations and the Liens securing the Prepetition Term Obligations, to the extent provided in the Prepetition Term Loan Documents).

(b) Without duplication of the expense reimbursement obligations pursuant to paragraph (a) above, the Borrowers and the Guarantors shall jointly and severally indemnify and hold harmless each Agent, each Lender and each of their Affiliates and each of the respective officers, directors, employees, controlling persons, agents, advisors, attorneys and representatives of each (each, an “Indemnified Party”) from and against any and all claims, damages, actual losses, liabilities and expenses (including (and limited, in the case of counsel, to) reasonable and documented out-of-pocket fees and disbursements of (x) one counsel, one local counsel in each relevant jurisdiction, and any successor counsel to primary or local counsel, for the Agents and (y) one counsel for the other Indemnified Parties), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding or the preparation of any defense, arising out of or in connection with or relating to the DIP Facility, the Loan Documents or the transactions contemplated thereby, or any use made or proposed to be made with the DIP Proceeds, whether or not such investigation, litigation or proceeding is brought by any Debtor or any of its subsidiaries, any shareholders or creditors of the foregoing, an Indemnified Party or any other person, or an Indemnified Party is otherwise a party thereto (collectively, the “Indemnified Liabilities”), except, to the extent such claim, damage, loss, liability or expense (i) is found in a final non appealable judgment by a court of competent jurisdiction to have resulted solely from the gross negligence, or willful misconduct of such Indemnified Party or any of such Indemnified Party’s affiliates or their respective principals, directors, officers or employees, (ii) resulted solely from a dispute among Indemnified Parties other than any claims against any Indemnified Party in its capacity or in fulfilling its role as an Agent or (iii) other than in the case of the Agents and their Related Parties, resulted from a material breach of the Loan Documents by


98

such Indemnified Party or any of such Indemnified Party’s Affiliates or their respective principals, directors, officers or employees, as determined in a final non-appealable judgment of a court of competent jurisdiction. No Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to any Debtor or any of its subsidiaries or any shareholders or creditors of the foregoing for or in connection with the transactions contemplated hereby, except, with respect to any Indemnified Party, to the extent such liability is found in a final non appealable judgment by a court of competent jurisdiction to have resulted (i) solely from the gross negligence, or willful misconduct of such Indemnified Party or any of such Indemnified Party’s Affiliates or their respective principals, directors, officers or employees or (ii) other than in the case of the Agents and their Related Parties, solely from a material breach of the Loan Documents by such Indemnified Person or any of such Indemnified Party’s affiliates or their respective principals, directors, officers or employees. In no event, however, shall any Indemnified Party or Debtor be liable on any theory of liability for any special, indirect, consequential or punitive damages.

(c) To the extent that the Borrowers fail to pay any amount required to be paid by them to the Administrative Agent or the Collateral Agent under paragraph (a) or (b) of this Section, and without limiting the Borrowers’ obligations to do so, each Lender severally agrees to pay to the Administrative Agent or the Collateral Agent, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought (or, in the event at such time all the Commitments shall have terminated and all the Loans shall have been repaid in full, as of the time most recently prior thereto when any Loans or Commitments remained outstanding)) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent or the Collateral Agent in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the aggregate outstanding Loans and unused Commitments at the time. The obligations of the Lenders under this paragraph (c) are subject to Section 2.01(c) (which shall apply mutatis mutandis to the Lenders’ obligations under this paragraph (c)).

(d) To the extent permitted by applicable law, none of Holdco, the Borrowers, any Agent, any Lender, any other party hereto or any Indemnified Party shall assert, and each such Person hereby waives and releases, any claim against any other such Person, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, arising out of, as a result of, or in any way related to, this Agreement or any or any agreement or instrument contemplated hereby or referred to herein, the transactions contemplated hereby or thereby, or any act or omission or event occurring in connection therewith, and each such Person further agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor; provided that the foregoing shall in no event limit the Borrowers’ indemnification obligations under clause (b) above resulting from damages incurred or paid by a third party.

(e) In case any proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such Indemnified Party, then such Indemnified Party will promptly notify the Borrower Representative of the commencement of any proceeding; provided, however, that the failure to do so will not relieve the Borrowers from any liability that they may have to such Indemnified Party hereunder, except to the extent that the Borrowers are materially prejudiced by such failure. Notwithstanding the above, following such notification, the Borrower Representative may (except in the case of a case or proceeding brought against an Agent or its Related Parties) elect in writing to assume the defense of such proceeding, and, upon such election, the Borrowers will not be liable for any legal costs subsequently incurred by such Indemnified Party (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower Representative has failed to provide counsel reasonably satisfactory to such Indemnified Party in a timely manner, (ii) counsel provided by the Borrowers reasonably determines its representation of such Indemnified Party would present it with an actual or perceived conflict of interest or (iii) the Indemnified Party reasonably determines that there are


99

actual conflicts of interest between the Borrowers and the Indemnified Party, including situations in which there may be legal defenses available to the Indemnified Party which are different from or in addition to those available to the Borrowers.

(f) Notwithstanding anything to the contrary in this Agreement, no party hereto or any Indemnified Party shall be liable for any damages arising from the use by others of information or other materials obtained through electronic, telecommunications or other information transmission systems (including IntraLinks or SyndTrak Online), in each case, except to the extent any such damages are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith (other than in the case of the Agents and their Related Parties) or willful misconduct of, or (other than in the case of the Agents and their Related Parties) material breach of this Agreement or the other Loan Documents by, such Indemnified Party (or its officers, directors, employees, Related Parties or Affiliates).

(g) This Section 9.03 shall not apply to Taxes, except for Taxes which represent costs, losses, claims, etc. with respect to a non-Tax claim.

Section 9.04 Successors and Assigns.

(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective registered successors and assigns permitted hereby, except that (i) except as otherwise permitted herein, the Borrowers may not assign or otherwise transfer any of their rights or obligations hereunder without the prior written consent of each Lender (and any such attempted assignment or transfer by the Borrowers without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section (and any attempted assignment or transfer by such Lender otherwise shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (solely to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b)

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

(ii) In addition to the Register, assignments shall be subject to the following additional express conditions: (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or to an Affiliated Lender, an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption (or Affiliated Lender Assignment and Assumption Agreement or Affiliated Institutional Lender Assignment and Assumption Agreement, as applicable) with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 (it being understood and agreed that such minimum amount shall be aggregated for two or more simultaneous assignments by or to two or more Approved Funds), unless the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), (B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights


100

and obligations under this Agreement, (C) the parties to each assignment shall (1) execute and deliver to the Administrative Agent an Assignment and Assumption (or Affiliated Lender Assignment and Assumption Agreement or Affiliated Institutional Lender Assignment and Assumption Agreement, as applicable), via an electronic settlement system acceptable to the Administrative Agent or (2) if previously agreed with the Administrative Agent, manually execute and deliver to the Administrative Agent an Assignment and Assumption (or Affiliated Lender Assignment and Assumption Agreement or Affiliated Institutional Lender Assignment and Assumption Agreement, as applicable), together with a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent), provided that assignments made pursuant to Section 2.19 or Section 9.02(c) shall not require the signature of the assigning Lender to become effective and (D) the assignee, if it shall not be a Lender or Affiliated Lender, shall deliver to the Administrative Agent an Administrative Questionnaire (in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Loan Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws) and any tax forms required by Section 2.17(e) or Section 2.17(g).

For purposes of paragraph (b) of this Section, the terms “Approved Fund” and “CLO” have the following meanings:

“Approved Fund” means (a) a CLO and (b) with respect to any Lender that is a fund that invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

“CLO” means an entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course and is administered or managed by a Lender or an Affiliate of such Lender.

(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(vi) of this Section, from and after the effective date specified in each Assignment and Assumption (or Affiliated Lender Assignment and Assumption Agreement or Affiliated Institutional Lender Assignment and Assumption Agreement, as applicable), the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption (or Affiliated Lender Assignment and Assumption Agreement or Affiliated Institutional Lender Assignment and Assumption Agreement, as applicable), have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption (or Affiliated Lender Assignment and Assumption Agreement or Affiliated Institutional Lender Assignment and Assumption Agreement, as applicable), be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption (or Affiliated Lender Assignment and Assumption Agreement or Affiliated Institutional Lender Assignment and Assumption Agreement, as applicable) covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 2.17, Section 2.18 and Section 9.03 and to any fees payable hereunder that have accrued for such Lender’s account but have not yet been paid.


101

(iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrowers, shall maintain at one of its offices a copy of each Assignment and Assumption (or Affiliated Lender Assignment and Assumption Agreement or Affiliated Institutional Lender Assignment and Assumption Agreement, as applicable) delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal and related interest amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and Holdco, the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers and, with respect to its own interests only, any Lender, at any reasonable time and from time to time upon reasonable prior notice. No assignment shall be effective unless recorded in the Register. This Section 9.04(b)(iv) shall be construed so that the Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and the right, title and interest of each Lender, in and to such Loans, shall be transferable only upon notation of such transfer in the Register.

(v) Upon its receipt of a duly completed Assignment and Assumption (or Affiliated Lender Assignment and Assumption Agreement or Affiliated Institutional Lender Assignment and Assumption Agreement, as applicable) executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any tax forms required by Section 2.17(e), as applicable (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section (to the extent required) and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption (or Affiliated Lender Assignment and Assumption Agreement or Affiliated Institutional Lender Assignment and Assumption Agreement, as applicable) and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.

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

(vii) Notwithstanding anything to the contrary contained in this Agreement but subject to the Register and payment of the processing and recordation fee referred to in paragraph (b) of this Section, in connection with any assignment pursuant to this Section 9.04 by a Lender of its Loans or Commitments to any Affiliated Lender shall be subject to the following:


102

(A) the assigning Lender and Affiliated Lender purchasing such Lender’s Loans and/or Commitments shall execute and deliver to the Administrative Agent an Affiliated Lender Assignment and Assumption Agreement;

(B) any Loans or Commitments acquired by Holdco, the Borrowers or any other Subsidiary shall be retired and cancelled immediately upon the acquisition thereof;

(C) each Affiliated Lender hereby agrees that notwithstanding anything to the contrary herein, it may not (A) attend (including by telephone) any meeting or discussions (or portion thereof) among any Agent or any Lender to which representatives of the Borrowers are not invited or then present, or (B) have access to the Platform or receive any information or material prepared by any Agent or any Lender or any communication by or among any Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrowers or their representatives (and in any case, other than the right to receive notices of prepayments and other administrative notices in respect of its Loans required to be delivered to Lenders pursuant hereto);

(D) (I) No proceeds of commitment or loans under the ABL DIP Facility or the Prepetition ABL Credit Agreement may be used by any Affiliated Lender or Person who will become an Affiliated Lender upon completion of the relevant assignment to effect any permitted assignments to it or purchase such commitment or loans and (II) the maximum aggregate principal amount of Loans, together with all other Indebtedness that is secured by a Lien on the DIP Collateral that is pari passu with the DIP Lien securing the Obligations, held by all Affiliated Lenders at the time of the proposed assignment may not exceed 25% of the aggregate principal amount of Loans, together with all other Indebtedness that is secured by a Lien on the DIP Collateral that is pari passu with the DIP Lien securing the Obligations, then outstanding;

Notwithstanding the foregoing, but subject to the Register, (i) in no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any Lender is an Affiliated Lender nor shall the Administrative Agent be obligated to monitor the aggregate amount of Loans held by Affiliated Lenders, and (ii) in no event shall any Affiliated Institutional Lender be required to comply with (or otherwise be subject to) the terms of this clause (vii). Each Affiliated Lender (other than any Affiliated Institutional Lender) agrees to notify the Administrative Agent promptly (and in any event within ten (10) Business Days) if it acquires any Person who is also a Lender, and each Lender agrees to notify the Administrative Agent promptly (and in any event within ten (10) Business Days) if it becomes an Affiliated Lender (other than any Affiliated Institutional Lender). Such notice shall contain the type of information required and be delivered to the same addressee as set forth in an Affiliated Lender Assignment and Assumption Agreement.

(c) Any Lender may, without the consent of the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural person or any Disqualified Lender to the extent the lists thereof are made available to the Lenders) (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it), provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) Holdco, the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under


103

this Agreement and (D) such Person shall not be entitled to exercise any rights of a Lender under the Loan Documents.

(d) [Reserved.]

(e) Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve any amendment, modification or waiver of any provision of the Loan Documents, provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in clause (ii), (iii), (v) or (vi) of the first proviso to Section 9.02(b) that directly or adversely affects such Participant. Subject to the paragraph below, the Borrowers agree that each Participant shall be entitled to the benefits of Section 2.15 and Section 2.17 (subject to the limitations and requirements of such Sections, including Section 2.17(e) and Section 2.19) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section (it being agreed that any documentation required to be provided under Section 2.17(e) shall be delivered to the participating Lender). Each Lender that sells or grants a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal and related interest amounts of each participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have the obligation to disclose all or a portion of the Participant Register (including the identity of the Participant or any information relating to a Participant’s interest in any Loans or other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that any loans are in registered form for U.S. federal income tax purposes. The entries in the Participant Register shall be conclusive absent manifest error, and the Borrowers and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. This Section shall be construed so that the Loan Documents are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and the right, title and interest of each Participant, in and to such Loans, shall be transferable only upon notation of such transfer in the Participant Register. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

A Participant shall not be entitled to receive any greater payment under Section 2.15 or Section 2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except (i) to the extent the right to a greater payment results from a Change in Law after the Participant becomes a Participant or (ii) if the sale of the participation to such Participant is made with the Borrower Representative’s prior written consent.

(f) Any Lender may, without the consent of the Administrative Agent, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such Lender and including any pledge or assignment to any holders of obligations owed, or securities issued, by such Lender (including to any trustee for, or any other representative of, such holders), and this Section shall not apply to any such pledge or assignment of a security interest, provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(g) Notwithstanding anything to the contrary contained herein but subject to the Participant Register and the Register, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle organized and administered by such Granting Lender (an “SPV”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower


104

Representative, the option to provide to the Borrowers all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan and (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one (1) year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, such party will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof, provided that each Lender designating any SPV hereby agrees to indemnify and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such SPV during such period of forbearance. In addition, notwithstanding anything to the contrary contained in this Section 9.04, any SPV may (i) with notice to, but without the prior written consent of, the Borrower Representative and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the Borrower Representative and Administrative Agent) other than Disqualified Lenders providing liquidity or credit support to or for the account of such SPV to support the funding or maintenance of Loans and (ii) subject to Section 9.12, disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPV other than any Disqualified Lender. The Borrowers agree that each SPV shall be entitled to the benefits of Section 2.15 and Section 2.17 (subject to the limitations and requirements of such Sections, including Section 2.17(e), and Section 2.19) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. An SPV shall not be entitled to receive any greater payment under Section 2.15 or Section 2.17 than the applicable Granting Lender would have been entitled to receive with respect to the interest granted to such SPV, except (i) to the extent the right to a greater payment results from a Change in Law after the grant to the SPV or (ii) if the grant to such SPV is made with the Borrower Representative’s prior written consent.

(h) No such assignment shall be made to a natural person.

(i) [Reserved].

(j) Notwithstanding anything contained in this Agreement or any other Loan Document to the contrary, if any Lender or Participant at any time is a Disqualified Lender, then for so long as such Lender or Participant shall be a Disqualified Lender, the provisions of this Section 9.04(j) shall apply with respect to such Disqualified Lender unless the Borrower Representative shall have otherwise expressly consented in writing in its sole discretion.

(i) No Disqualified Lender shall have any right to approve, disapprove or consent to any amendment, supplement, waiver or modification of this Agreement or any other Loan Document or any term hereof or thereof. In determining whether the requisite Lender or Lenders have consented to any such amendment, supplement, waiver or modification, and in determining the Required Lenders for any purpose under or in respect of any Loan Document, any Lender that is a Disqualified Lender shall be excluded and disregarded. Each such amendment, supplement, waiver or modification shall be binding and effective as to each Disqualified Lender.


105

(ii) The Borrowers shall have the right (A) at the sole expense of any Lender that is a Disqualified Lender and/or the Person that assigned its Commitments and/or Loans to such Disqualified Lender, to seek to replace or terminate such Disqualified Lender as a Lender by causing such Lender to (and such Lender shall be obligated to) assign any or all of its Commitments and/or Loans and its rights and obligations under this Agreement to one or more assignees (which may, at the Borrowers’ sole option, be or include Holdco, any Borrower or any Subsidiary); provided that (1) the Administrative Agent shall not have any obligation to the Borrowers to find such a replacement Lender, (2) the Borrowers shall not have any obligation to such Disqualified Lender or any other Person to find such a replacement Lender or accept or consent to any such assignment to itself or any other Person and (3) the assignee (or, at its option, the applicable Borrower) shall pay to such Disqualified Lender concurrently with such assignment an amount (which payment shall be deemed payment in full) equal to the lesser of (x) the face principal amount of the Loans so assigned, (y) the amount that such Disqualified Lender paid to acquire such Commitments and/or Loans and (z) the most recently available quoted price for such Commitments and/or Loans (as determined by the Borrower Representative in good faith, which determination shall be conclusive, the “Trading Price”), in each case without interest thereon (it being understood that if the effective date of such assignment is not an Interest Payment Date, such assignee shall be entitled to be receive on the next succeeding Interest Payment Date interest on the principal amount of the Loans so assigned that has accrued and is unpaid from the Interest Payment Date last preceding such effective date (except as may be otherwise agreed between such assignee and the Borrower Representative)) or (B) to prepay any Loans held by such Disqualified Lender, in whole or in part, by paying an amount (which payment shall be deemed payment in full) equal to the lesser of (x) the face principal amount of the Loans so prepaid, (y) the amount that such Disqualified Lender paid to acquire such Loans and (z) the Trading Price for such Loans (in each case without interest thereon), and if applicable, terminate the Commitments of such Disqualified Lender, in whole or in part. In connection with any such replacement, (1) if the Disqualified Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Assumption and/or any other documentation necessary or appropriate (in the good faith determination of the Administrative Agent or the Borrower Representative, which determination shall be conclusive) to reflect such replacement by the later of (a) the date on which the replacement Lender executes and delivers such Assignment and Assumption and/or such other documentation and (b) the date as of which the Disqualified Lender shall be paid by the assignee Lender (or, at its option, the applicable Borrower) the amount required pursuant to this Section 9.04(j)(iii)(B), then such Disqualified Lender shall be deemed to have executed and delivered such Assignment and Assumption and/or such other documentation as of such date and the applicable Borrower shall be entitled (but not obligated) to execute and deliver such Assignment and Assumption and/or such other documentation on behalf of such Disqualified Lender, and the Administrative Agent shall record such assignment in the Register, (2) each Lender (whether or not then a party hereto) agrees to disclose to the applicable Borrower the amount that the applicable Disqualified Lender paid to acquire Commitments and/or Loans from such Lender and (3) each Lender that is a Disqualified Lender agrees to disclose to the applicable Borrower the amount it paid to acquire the Commitments and/or Loans held by it.

(iii) No Disqualified Lender (whether as a Lender, a Participant or otherwise) shall have any right to (A) receive any information or material made available to any Lender or the Administrative Agent hereunder or under any other Loan Document, (B) have access to any Internet or intranet website to which any of the Lenders and the


106

Administrative Agent have access (whether a commercial, third-party or other website or whether sponsored by the Administrative Agent, a Borrower or otherwise), (C) attend (including by telephone) or otherwise participate in any meeting or discussions (or portions thereof) among or with any Borrower, the Administrative Agent and/or one or more Lenders, (D) receive any information or material prepared by the Borrowers, the Administrative Agent and/or one or more Lenders or (E) receive advice of counsel to the Administrative Agent, the Collateral Agent or any other Lender or challenge their attorney client privilege. Any Disqualified Lender shall not solicit or seek to obtain any such information or material. If at any time any Disqualified Lender receives or possesses any such information or material, such Disqualified Lender shall (1) notify the Borrower Representative as soon as possible that such information or material has become known to it or came into its possession, (2) immediately return to the Borrower Representative or, at the option of the Borrower Representative, destroy (and confirm to the Borrower Representative such destruction) such information or material, together with any notes, analyses, compilations, forecasts, studies or other documents related thereto which it or its advisors prepared and (3) keep such information or material confidential and shall not utilize such information or material for any purpose. Each Lender (whether or not then a party hereto) agrees to notify the Borrower Representative as soon as possible if it becomes aware that (x) it made an assignment to or has a participation with a Disqualified Lender or (y) any such Disqualified Lender has received any such information of materials.

(iv) The rights and remedies of the Borrowers provided herein are cumulative and are not exclusive of any other rights and remedies provided to the Borrowers at law or in equity, and the Borrowers shall be entitled to pursue any remedy available to it against any Lender that has (or has purported to have) made an assignment or sold or maintained a participation to or with a Disqualified Lender or against any Disqualified Lender. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (y) have any liability with respect to or arising out of any such assignment or participation of Loans or Commitments, or disclosure of confidential information, to any Disqualified Lender.

(k) Notwithstanding anything in the Section 9.04 to the contrary, a Lender may only make an assign in accordance with this Section 9.04 to one or more Eligible Assignees if such Eligible Assignees sign a joinder, substantially in the form set forth on Exhibit L hereto, to that certain Exit Commitment Letter, dated as of the date hereof, among the Lenders signatory thereto, Holdco, the Borrowers, and the Administrative Agent.

Section 9.05 Survival. All representations and warranties made by the Loan Parties in the other Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to any Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, the Collateral Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder and none of Holdco, the Borrowers, the Lenders or any Affiliate will bring any claim to that effect.

Section 9.06 Counterparts; Integration. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of


107

which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof, and there are no promises, undertakings, representations or warranties by Holdco, the Borrowers, the Administrative Agent, the Collateral Agent nor any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic transmission (including Adobe pdf file) shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 9.07 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

Section 9.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Administrative Agent and the Required Lenders, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency, but not any tax accounts, trust accounts, withholding or payroll accounts) at any time held and other obligations (in whatever currency) at any time owing by such Lender to or for the credit or the account of the Borrowers against any and all of the Obligations of the Borrowers now or hereafter existing under this Agreement held by such Lender, but only to the extent then due and payable. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender may have. Each Lender agrees promptly to notify the Borrower Representative and the Administrative Agent of such setoff and application made by such Lender, provided that any failure to give or any delay in giving such notice shall not affect the validity of any such setoff and application under this Section.

Section 9.09 Governing Law; Jurisdiction; Consent to Service of Process.

(a) This Agreement and the other Loan Documents and the rights and obligations of the parties hereunder and thereunder, including but not limited to the validity, interpretation, construction, breach, enforcement or termination hereof and thereof, and whether arising in contract or tort or otherwise, shall be construed in accordance with and governed by the law of the State of New York.

(b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Bankruptcy Court, and if the Bankruptcy Cort does not have, or abstains from exercising jurisdiction, the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York (“SDNY”), and any appellate court from any thereof except to the extent that the provisions of the Bankruptcy Code are applicable and specifically conflict with the foregoing, in any action or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such Bankruptcy Court or New York State or, to the extent permitted by law, in the SDNY. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Notwithstanding the foregoing, nothing in any Loan Document shall affect any right that the Administrative Agent, the Collateral Agent or any Lender may otherwise have to bring any action or proceeding relating to any Loan Document against Holdco, the Borrowers or their respective properties in the courts of any jurisdiction.


108

(c) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to any Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in any Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

Notwithstanding any other provision of this Section 9.09, the Bankruptcy Court shall have exclusive jurisdiction over any action or dispute involving, relating to or arising out of this agreement or the other Loan Documents.

Section 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

Section 9.11 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

Section 9.12 Confidentiality. Each of the Administrative Agent, the other Agents and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, trustees, officers, employees and agents, including accountants, legal counsel and other advisors on a “need to know” basis (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential, provided that the relevant Lender shall be responsible for such compliance and non-compliance), (b) to the extent requested by any regulatory authority, provided that, other than in connection with routine regulatory examinations, prior notice shall have been given to the Borrower Representative, to the extent permitted by applicable laws or regulations, (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, provided that prior notice shall have been given to the Borrower Representative, to the extent permitted by disclosures to central banks in connection with pledges or assignments under Section 9.04(f), applicable laws or regulations, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to any Loan Document or the enforcement of rights thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, in each case, except to any Disqualified Lender, except to any Disqualified Lender, (g) with the written consent of the Borrower Representative, or (h)(A) to the extent such information is independently developed by the Administrative Agent, any such other Agent or any such Lender, as applicable or (B) to the extent such Information (I) becomes publicly available other than as a result of a breach of this Section or (II) becomes available to the Administrative


109

Agent, any other Agent or any Lender on a nonconfidential basis from a source other than Holdco or the Borrowers (provided that the source is not actually known (after due inquiry) by such disclosing party or other confidentiality obligations owed to Holdco, the Borrowers or their Affiliates, to be bound by an agreement containing provisions substantially the same as those contained in this confidentiality provision). For the purposes of this Section the term “Information” means all information received from or on behalf of Holdco or the Borrowers relating to Holdco or the Borrowers or any of their Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent, any other Agent or any Lender on a nonconfidential basis prior to disclosure by Holdco or the Borrowers. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Each Lender acknowledges that Information furnished to it pursuant to this Agreement may include material non-public information concerning the Loan Parties and their respective Related Parties or their respective securities, and confirms that it has developed compliance procedures regarding the use of material non-public information and that it will handle such material non-public information in accordance with those procedures and applicable law, including Federal and state securities laws.

All Information, including requests for waivers and amendments, furnished by the Borrowers or the Administrative Agent pursuant to, or in the course of administering, this Agreement will be syndicate-level Information, which may contain material non-public information about the Loan Parties and their respective Related Parties or their respective securities. Accordingly, each Lender represents to the Borrowers and the Administrative Agent that it has identified in its Administrative Questionnaire a credit contact who may receive Information that may contain material non-public information in accordance with its compliance procedures and applicable law.

Section 9.13 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts that are treated as interest on such Loan under applicable law (collectively, the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.

Section 9.14 USA Patriot Act. Each Lender that is subject to the Patriot Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the Loan Parties and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Loan Parties in accordance with the Patriot Act. The Borrowers shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests that is reasonably required in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Section 9.15 Direct Website Communication. Each of Holdco and the Borrowers may, at its option, provide to the Administrative Agent any information, documents and other materials that it is


110

obligated to furnish to the Administrative Agent pursuant to the Loan Documents, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials (all such communications being referred to herein collectively as “Communications”), by (i) posting such documents, or providing a link thereto, on Holdco’s or the Borrowers’ website, (ii) such documents being posted on Holdco’s and/or the Borrowers’ behalf on an Internet or Intranet website, if any, to which the Administrative Agent has access (whether a commercial third-party website or a website sponsored by the Administrative Agent) or (iii) by transmitting the Communications in an electronic/soft medium to the Administrative Agent at an email address provided by the Administrative Agent from time to time; provided that (i) promptly following written request by the Administrative Agent, the Borrowers shall continue to deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) to the extent that Holdco does not separately deliver copies of such documents to the Administrative Agent, the Borrower Representative shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents. Nothing in this Section 9.15 shall prejudice the right of Holdco, the Borrowers, the Administrative Agent, any other Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address in Section 9.01 shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees (A) to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and (B) that the foregoing notice may be sent to such e-mail address. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

Each of Holdco, the Borrowers and the Administrative Agent may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower Representative and the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.

Section 9.16 Intercreditor Agreement Governs. Each Lender and Agent (a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of any intercreditor agreement entered into pursuant to the terms hereof (including the ABL Intercreditor Agreement), and (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the Order. Reference is made to the ABL Intercreditor Agreement. Each Lender hereunder (a) acknowledges that it has received


111

a copy of the ABL Intercreditor Agreement, (b) consents to the subordination of Liens provided for in the Orders and the ABL Intercreditor Agreement, and (c) agrees that it will be bound by and will take no actions contrary to the provisions of the Orders and the ABL Intercreditor Agreement.

Section 9.17 Bankruptcy Matters. This Agreement, the other Loan Documents, and all Liens and DIP Liens and other rights and privileges created hereby or pursuant hereto or to any other Loan Document shall be binding upon each Debtor, the estate of each Debtor, and any trustee, other estate representative or any successor in interest of any Debtor in any Chapter 11 Case or any subsequent case commenced under Chapter 7 of the Bankruptcy Code, and shall not be subject to Section 365 of the Bankruptcy Code. This Agreement and the other Loan Documents shall be binding upon, and inure to the benefit of, the successors of each Agent and the Lenders and their respective assigns, transferees and endorsees. The DIP Liens created by this Agreement and the other Loan Documents shall be and remain valid and perfected in the event of the substantive consolidation or conversion of any Chapter 11 Case or any other bankruptcy case of any Debtor to a case under Chapter 7 of the Bankruptcy Code or in the event of dismissal of any Chapter 11 Case or the release of any DIP Collateral from the jurisdiction of the Bankruptcy Court for any reason, without the necessity that the Collateral Agent file financing statements or otherwise perfect its DIP Liens under applicable law. No Loan Party may assign, transfer, hypothecate or otherwise convey its rights, benefits, obligations or duties hereunder or under any of the other Loan Documents without the prior express written consent of the Administrative Agent and the Lenders. Any such purported assignment, transfer, hypothecation or other conveyance by any Loan Party without the prior express written consent of the Administrative Agent and the Lenders shall be void. The terms and provisions of this Agreement are for the purpose of defining the relative rights and obligations of each Loan Party, the Administrative Agent and the Lenders with respect to the transactions contemplated hereby and no Person shall be a third party beneficiary of any of the terms and provisions of this Agreement or any of the other Loan Documents.

Section 9.18 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each of the Borrowers and Holdco acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the other Agents and the making of the Loans and Commitments by the Lenders are arm’s-length commercial transactions between the Borrowers, Holdco and their respective Affiliates, on the one hand, and the Administrative Agent, the other Agents and the Lenders, on the other hand, (B) the Borrowers and Holdco have consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate, and (C) the Borrowers and Holdco are capable of evaluating, and understands and accepts, the terms, risks and express conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent, each other Agent and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrowers, Holdco or any of their respective Affiliates, or any other Person and (B) none of the Administrative Agent, any other Agent or any Lender has any obligation to the Borrowers, Holdco or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the other Agents and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers, Holdco and their respective Affiliates, and none of the Administrative Agent, any other Agent or any Lender has any obligation to disclose any of such interests to the Borrowers, Holdco or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrowers and Holdco hereby waives and releases any claims that it may have against the Administrative Agent, the other Agents and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.


112

Section 9.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

(b) the effects of any Bail-In Action on any such liability, including, if applicable:

(i) a reduction in full or in part or cancellation of any such liability;

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

The provisions of this Section 9.19 are intended to comply with, and shall be interpreted in light of, Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union.

[Signature Pages Follow]


AMERICAS 101303185

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

APC AUTOMOTIVE TECHNOLOGIES INTERMEDIATE HOLDINGS, LLC, as Holdco

By: Name: ______________________________ Title: ______________________________

AP EXHAUST ACQUISITION, LLC, as a Borrower and as the Borrower Representative

By: Name: ______________________________ Title: ______________________________

CWD ACQUISITION, LLC, as a Borrower

By: Name: ______________________________ Title: ______________________________

CWD HOLDING CORP., as a Borrower

By: Name: ______________________________ Title: ______________________________


AMERICAS 101303185

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent

By: Name: ______________________________ Title: _____________________________
