UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (date of earliest event reported): April 7, 2017

 

 

SCHOOL SPECIALTY, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   000-24385   39-0971239

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

W6316 Design Drive

Greenville, Wisconsin 54942

 
 

(Address of principal executive offices,

including zip code)

 

Registrant’s telephone number, including area code: (920) 734-5712

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 1.01 Entry into a Material Definitive Agreements .

On April 7, 2017, the Company entered into a Loan Agreement (the “Term Loan Agreement”) among the Company, as borrower, certain of its subsidiaries, as guarantors, the financial parties party thereto, as lenders (the “Term Loan Lenders”) and TCW Asset Management Company LLC, as the agent. Under the Term Loan Agreement, the Term Loan Lenders agreed to make a term loan (the “Term Loan”) to the Company in aggregate principal amount of $140 million. The initial Term Loan draw at closing was $110 million. These proceeds, along with proceeds received from a draw on the ABL Agreement (as defined below), were used to repay the Company’s previous term loan which had a remaining principal balance including accrued interest of $118.2 million. The Term Loan Agreement provides for a delayed draw feature that allows the Company to draw up to an additional $30 million through April 7, 2019. The ability to access the delayed draw commitment is subject to maintaining compliance with certain terms and conditions. The proceeds from the delayed draw term loan can be used to fund distributions, permitted acquisitions, and repayments of existing indebtedness. At the Company’s option, the Term Loan interest rate will be either the prime rate or the LIBOR rate, plus an applicable margin based on the Company’s net senior leverage ratio. The Company may specify the interest rate period of one, three or six months for interest on loans under the Term Loan Agreement bearing interest based on the LIBOR rate. Initially, the Term Loan will bear interest at a rate of one month LIBOR plus 625 basis points for the 2017 fiscal year.

The Term Loan matures on April 7, 2022. In addition to scheduled quarterly principal repayments, commencing June 30, 2017, the Term Loan Agreement requires prepayments at specified levels upon the Company’s receipt of net proceeds from certain events, including but not limited to certain asset dispositions, extraordinary receipts, and the issuance or sale of any indebtedness or equity interests (other than permitted issuances or sales). The Term Loan Agreement also requires prepayments at specified levels from the Company’s excess cash flow. The Company is also permitted to voluntarily prepay the Term Loan in whole or in part. All prepayments of the loans will be applied first to that portion of the loans comprised of prime rate loans and then to that portion of loans comprised of LIBOR rate loans. The Term Loan Agreement contains customary events of default and financial, affirmative and negative covenants, including but not limited to quarterly financial covenants commencing with the fiscal quarter ending July 1, 2017 relating to the Company’s fixed charge coverage ratio and net senior leverage ratio, and an annual limitation on capital expenditures and product development investments, collectively.

Pursuant to a Guarantee and Collateral Agreement dated as of April 7, 2017 (the “Term Loan Security Agreement”), the Term Loan is secured by a first priority security interest in substantially all assets of the Company and the subsidiary guarantors. Under an intercreditor agreement (the “Intercreditor Agreement”) between the Term Loan Lenders and the ABL Lenders (as defined below), the Term Loan Lenders have a second priority security interest in substantially all working capital assets of the Company and the subsidiary guarantors, subordinate only to the first priority security interest of the Asset-Based Lenders in such assets, and a first priority security interest in all other assets.

Also on April 7, 2017, the Company entered into the Third Amendment to Loan Agreement (the “ABL Agreement”) among the Company, certain of its subsidiary borrowers, Bank of America, N.A. and Bank of Montreal as lenders (the “ABL Lenders”), and Bank of America, N.A., as agent for the ABL Lenders (the “ABL Amendment”). The ABL Amendment provided a new lower pricing tier of LIBOR plus 125 basis points, a seasonal increase in the borrowing base of 5.0% of eligible accounts receivable

 

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for the months of March through August, and the inclusion of certain inventory in the borrowing base, which previously had been excluded. Additionally, certain conforming changes were made in connection with the entry into the Term Loan Agreement. The ABL Amendment extends the maturity of the ABL Agreement to April 7, 2022 (“ABL Termination Date”), provided that the ABL Termination Date will automatically become February 7, 2022 unless the Term Loan Agreement has been repaid, prepaid, refinanced, redeemed, exchanged, amended or otherwise defeased or discharged prior to such date.

Pursuant to an Amended and Restated Guarantee and Collateral Agreement dated as of April 7, 2017 (the “ABL Security Agreement”), the Loan Agreement is secured by a first priority security interest in substantially all assets of the Company and the subsidiary borrowers. Under the Intercreditor Agreement, the ABL Lenders have a first priority security interest in substantially all working capital assets of the Company and the subsidiary borrowers, and a second priority security interest in all other assets, subordinate only to the first priority security interest of the Term Loan Lenders in such other assets.

Total fees incurred with respect to the Term Loan and ABL Amendment were estimated to be approximately $4 million, collectively.

The Term Loan Agreement, the Term Loan Security Agreement, the ABL Amendment and the ABL Security Agreement are filed as exhibits herewith and incorporated herein by reference. The foregoing descriptions of the Term Loan Agreement, the Term Loan Security Agreement, the ABL Amendment and the ABL Security Agreement do not purport to be complete and are qualified in their entirety by the full text of such agreements.

 

Item 1.02 Termination of a Material Definitive Agreements .

In connection with the entry into the Term Loan Agreement, the Credit Agreement, dated June 11, 2013, by and among School Specialty, Inc. and certain of its subsidiaries, as borrowers, certain lenders party thereto, and Credit Suisse AG, as Administrative Agent and Collateral Agent, was terminated on April 7, 2017.

 

Item 9.01. Financial Statements and Exhibits .

(d) Exhibits

 

Exhibit No.

 

Description

10.1   Loan Agreement, dated as of April 7, 2017, by and between School Specialty, Inc., as borrower, certain of its subsidiaries, as guarantors, the financial parties party thereto, as lenders, and TCW Asset Management Company, LLC, as agent.
10.2   Guarantee and Collateral Agreement, dated as of April 7, 2017, among School Specialty, Inc., the guarantors party thereto, and TCW Asset Management Company, LLC, as agent
10.3   Third Amendment, dated as of April 7, 2017, to the Loan Agreement among School Specialty, Inc. and certain of its subsidiaries, as borrowers, Bank of America, N.A. and Bank of Montreal, as lenders, Bank of Montreal as syndication agent, and Bank of America, N.A., as agent for the lenders

 

3


Exhibit No.

 

Description

10.4   Amended and Restated Guarantee and Collateral Agreement, dated April 7, 2017, amending and restating the Guarantee and Collateral Agreement, dated as of June 11, 2013, among School Specialty, Inc., the guarantors party thereto and Bank of America, N.A., as agent

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

        SCHOOL SPECIALTY, INC.

Dated: April 13, 2017

    By:   /s/ Kevin Baehler
     

 

     

Kevin Baehler

Senior Vice President and

Chief Accounting Officer

 

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EXHIBIT INDEX

 

Exhibit No.

 

Description

10.1   Loan Agreement, dated as of April 7, 2017, by and between School Specialty, Inc., as borrower, certain of its subsidiaries, as guarantors, the financial parties party thereto, as lenders, and TCW Asset Management Company, LLC, as agent.
10.2   Guarantee and Collateral Agreement, dated as of April 7, 2017, among School Specialty, Inc., the guarantors party thereto, and TCW Asset Management Company, LLC, as agent
10.3   Third Amendment, dated as of April 7, 2017, to the Loan Agreement among School Specialty, Inc. and certain of its subsidiaries, as borrowers, Bank of America, N.A. and Bank of Montreal, as lenders, Bank of Montreal as syndication agent, and Bank of America, N.A., as agent for the lenders
10.4   Amended and Restated Guarantee and Collateral Agreement, dated April 7, 2017, amending and restating the Guarantee and Collateral Agreement, dated as of June 11, 2013, among School Specialty, Inc., the guarantors party thereto and Bank of America, N.A., as agent

 

 

6

Exhibit 10.1

 

 

 

LOAN AGREEMENT

Dated as of April 7, 2017

 

 

 

SCHOOL SPECIALTY, INC.,

as Borrower,

CERTAIN OF ITS SUBSIDIARIES,

as Guarantors,

 

 

 

THE FINANCIAL INSTITUTIONS PARTY HERETO,

as Lenders

and

TCW ASSET MANAGEMENT COMPANY LLC,

as Agent

 

 


TABLE OF CONTENTS

 

          Page  

SECTION 1.

  

DEFINITIONS; RULES OF CONSTRUCTION

     1  

1.1

   Definitions      1  

1.2

   Accounting Terms      37  

1.3

   Uniform Commercial Code      37  

1.4

   Certain Matters of Construction      37  

SECTION 2.

  

LOANS, PAYMENTS

     38  

2.1

   Term Loan      38  

2.2

   General Provisions Regarding Payment; Register      41  

2.3

   Mandatory Prepayments; Voluntary Commitment Reductions and Prepayments      42  

2.4

   Allocation of Payments After Event of Default      44  

2.5

   Use of Proceeds      45  

SECTION 3.

  

INTEREST AND FEES

     45  

3.1

   Interest      45  

3.2

   LIBOR Provisions      46  

3.3

   Non-Use Fee      47  

3.4

   Fee Letter      47  

3.5

   Maximum Charges      47  

3.6

   Increased Costs      47  

3.7

   Basis for Determining Interest Rate Inadequate or Unfair      48  

3.8

   Capital Adequacy      49  

3.9

   Replacement of Lenders      50  

3.10

   Designation of a Different Lending Office      50  

3.11

   Reimbursement Obligations      51  

SECTION 4.

  

[INTENTIONALLY OMITTED]

     51  

SECTION 5.

  

TAXES

     51  

5.1

   Payments Free of Taxes; Obligation to Withhold; Tax Payment      51  

5.2

   Lender and Agent Tax Information      53  

5.3

   Nature and Extent of Borrower’s Liabilities      55  

SECTION 6.

  

CONDITIONS PRECEDENT

     56  

6.1

   Conditions Precedent to Initial Loans      56  

SECTION 7.

  

COLLATERAL

     59  

7.1

   Cash Collateral      59  

7.2

   Real Estate Collateral      60  

7.3

   Other Collateral      60  

7.4

   Limitations      60  

7.5

   Further Assurances      60  

 

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SECTION 8.

  

COLLATERAL ADMINISTRATION

     61  

8.1

   Borrowing Base Certificates      61  

8.2

   Administration of Accounts      61  

8.3

   Administration of Inventory      62  

8.4

   Administration of Equipment      62  

8.5

   Administration of Deposit Accounts and Securities Accounts      62  

8.6

   General Provisions      63  

8.7

   Power of Attorney      64  

SECTION 9.

  

REPRESENTATIONS AND WARRANTIES

     65  

9.1

   General Representations and Warranties      65  

9.2

   Accuracy of Information, Etc.      70  

SECTION 10.

  

COVENANTS AND CONTINUING AGREEMENTS

     70  

10.1

   Affirmative Covenants      70  

10.2

   Negative Covenants      75  

10.3

   Financial Covenants      82  

SECTION 11.

  

EVENTS OF DEFAULT; REMEDIES ON DEFAULT

     83  

11.1

   Events of Default      83  

11.2

   Remedies upon Default      84  

11.3

   License      85  

11.4

   Setoff      86  

11.5

   Remedies Cumulative; No Waiver      86  

SECTION 12.

  

AGENT

     86  

12.1

   Appointment, Authority and Duties of Agent      86  

12.2

   Agreements Regarding Collateral and Borrower Materials      88  

12.3

   Reliance By Agent      88  

12.4

   Action Upon Default      89  

12.5

   Ratable Sharing      89  

12.6

   Indemnification      89  

12.7

   Limitation on Responsibilities of Agent      89  

12.8

   Successor Agent and Co-Agents      90  

12.9

   Due Diligence and Non-Reliance      90  

12.10

   Remittance of Payments and Collections      91  

12.11

   Individual Capacities      91  

12.12

   No Third Party Beneficiaries      92  

12.13

   Intercreditor Agreement      92  

SECTION 13.

  

BENEFIT OF AGREEMENT; ASSIGNMENTS

     92  

13.1

   Successors and Assigns      92  

13.2

   Participations      92  

13.3

   Assignments      93  

SECTION 14.

  

MISCELLANEOUS

     94  

14.1

   Consents, Amendments and Waivers      94  

 

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14.2

   Indemnity      95  

14.3

   Notices and Communications      95  

14.4

   Performance of Borrower’s Obligations      97  

14.5

   Credit Inquiries      97  

14.6

   Severability      97  

14.7

   Cumulative Effect; Conflict of Terms      97  

14.8

   Counterparts; Execution      97  

14.9

   Entire Agreement      98  

14.10

   Relationship with Lenders      98  

14.11

   No Advisory or Fiduciary Responsibility      98  

14.12

   Confidentiality      98  

14.13

   GOVERNING LAW      99  

14.14

   Consent to Forum; Bail-In of EEA Financial Institutions      99  

14.15

   Waivers by Borrower      100  

14.16

   Patriot Act Notice      100  

14.17

   NO ORAL AGREEMENT      100  

14.18

   Intercreditor Agreement Governs      101  

 

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LIST OF EXHIBITS AND SCHEDULES

 

Exhibit A

  

Assignment and Acceptance

Exhibit B

  

Assignment Notice

Exhibit C

  

Compliance Certificate

Exhibit D

  

Affiliate Subordination Agreement

Exhibit E-1

  

Form of U.S. Tax Compliance Certificate

Exhibit E-2

  

Form of U.S. Tax Compliance Certificate

Exhibit E-3

  

Form of U.S. Tax Compliance Certificate

Exhibit E-4

  

Form of U.S. Tax Compliance Certificate

Exhibit F

  

Form of Notice of Borrowing

Exhibit G

  

Form of Payment Notification

Schedule A

  

Fiscal Months

Schedule 1.1(a)

  

Commitments of Lenders

Schedule 1.1(b)

  

Excluded Subsidiaries

Schedule 1.1(c)

  

Specified Asset Dispositions

Schedule 1.1(d)

  

Subsidiary Guarantors

Schedule 8.5

  

Deposit Accounts and Securities Accounts

Schedule 8.6.1

  

Business Locations

Schedule 9.1.4

  

Names and Capital Structure

Schedule 9.1.11

  

Patents, Trademarks, Copyrights and Licenses

Schedule 9.1.14

  

Environmental Matters

Schedule 9.1.15

  

Restrictive Agreements

Schedule 9.1.16

  

Litigation

Schedule 9.1.18

  

Pension Plans

Schedule 9.1.20

  

Labor Contracts

Schedule 10.2.1

  

Existing Indebtedness

Schedule 10.2.2

  

Existing Liens

Schedule 10.2.5

  

Existing Investments

Schedule 10.2.17

  

Existing Affiliate Transactions

 

 

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LOAN AGREEMENT

THIS LOAN AGREEMENT is dated as of April 7, 2017, among SCHOOL SPECIALTY, INC. , a Delaware corporation (“ Borrower ”), certain Subsidiaries of Borrower party hereto (collectively, “ Guarantors ” and each, a “ Guarantor ”), the financial institutions party to this Agreement from time to time as lenders (collectively, “ Lenders ”), and TCW ASSET MANAGEMENT COMPANY LLC , as agent for the Lenders (“ Agent ”).

R E C I T A L S:

In addition to the Loans to be provided hereunder, on the Revolving Loan Agreement Closing Date, Borrower and certain of its Subsidiaries entered into the Revolving Loan Agreement, which is secured by a first priority security interest in the ABL Priority Collateral and a second priority security interest in the Term Priority Collateral. The Obligations hereunder will be secured by a first priority security interest in the Term Priority Collateral and a second priority security interest in the ABL Priority Collateral.

Borrower has requested that Lenders provide a term loan credit facility to Borrower to finance the mutual and collective business enterprise of Borrower and Guarantors. Lenders are willing to provide the credit facility on the terms and conditions set forth in this Agreement.

NOW, THEREFORE , for valuable consideration hereby acknowledged, the parties hereto agree as follows:

SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION

1.1 Definitions . As used herein, the following terms have the meanings set forth below:

ABL Priority Collateral : any “ABL Priority Collateral” as defined in the Intercreditor Agreement.

Acquisition : a transaction or series of transactions resulting in (a) acquisition of a business, division, or substantially all assets of a Person; (b) record or beneficial ownership of 50% or more of the Equity Interests of a Person; or (c) merger, consolidation or combination of Borrower or a Subsidiary with another Person.

Affected Lender : shall have the meaning set forth in Section  3.9 hereof.

Affiliate : with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided that, for purposes of Section  10.2.17 and Section  13.3.3 , the term “Affiliate” shall also include any Person that directly or indirectly owns 5% or more of any class of Equity Interests of the Person specified or that is an officer or director of the Person specified. “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. “Controlling” and “Controlled” have correlative meanings.


Affiliate Subordination Agreement : an Affiliate Subordination Agreement in the form of Exhibit D pursuant to which intercompany obligations and advances owed by any Obligor to any Subsidiary that is not an Obligor are subordinated to the Obligations.

Agent : as defined in the Preamble hereto.

Agent Indemnitees : Agent and its officers, directors, employees, Affiliates, agents and attorneys.

Agent Professionals : attorneys, accountants, appraisers, auditors, business valuation experts, environmental engineers or consultants, turnaround consultants, and other professionals and experts retained by Agent.

Anti-Terrorism Law : any law relating to terrorism or money laundering, including the Patriot Act.

Applicable Law : all laws, rules, regulations and governmental guidelines applicable to the Person, conduct, transaction, agreement or matter in question, including all applicable statutory law, common law and equitable principles, and all provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities.

Applicable Margin : the applicable rate per annum corresponding to the applicable Net Senior Leverage Ratio, all as set forth in the following table:

 

Net Senior Leverage Ratio    Prime Rate Loans     LIBOR Rate Loans  

> 3.75x

     6.00     7.00

> 3.50x, but < 3.75x

     5.50     6.50

> 3.00x, but < 3.50x

     5.25     6.25

<3.00x

     5.00     6.00

The Applicable Margin shall be adjusted quarterly, to the extent applicable, as of the first Business Day of the month following the date on which financial statements are required to be delivered pursuant to Section  10.1.2 hereof (including with respect to the last Fiscal Quarter of each Fiscal Year) after the end of each related Fiscal Quarter based on the Net Senior Leverage Ratio as of the last day of such Fiscal Quarter. Notwithstanding the foregoing, (a) until the first day of the month following the date on which financial statements for the Fiscal Quarter ending December 30, 2017 are required to be delivered pursuant to Section  10.1.2 hereof, the Applicable Margin shall be (i) 5.25% with respect to Prime Rate Loans and (ii) 6.25% with respect to LIBOR Rate Loans, (b) if Borrower fails to deliver the financial statements required by Section  10.1.2 hereof, and the related Compliance Certificate required by Section  10.1.2 hereof, by the respective date required thereunder after the end of any related Fiscal Quarter, if requested in writing by Agent or Required Lenders, the Applicable Margin shall be the rates corresponding to the Net Senior Leverage Ratio of > 3.75x in the foregoing table until such financial statements and Compliance Certificate are delivered (plus, if requested by Agent or Required Lenders, the Default Rate), and (c) no reduction to the Applicable Margin shall become effective at any time when an Event of Default has occurred and is continuing; provided, that such a reduction shall occur on the date all such Events of Default have been cured or waived in accordance with Section  14.1 hereof.

 

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If, as a result of any restatement of or other adjustment to the financial statements of Borrower and its Subsidiaries or for any other reason, Agent determines that (a) the Net Senior Leverage Ratio as calculated by Borrower as of any applicable date was inaccurate and (b) a proper calculation of the Net Senior Leverage Ratio would have resulted in different pricing for any period, then (i) if the proper calculation of the Net Senior Leverage Ratio would have resulted in higher pricing for such period, Borrower shall automatically and retroactively be obligated to pay to Agent, for the benefit of the applicable Lenders, promptly on demand by Agent, an amount equal to the excess of the amount of interest that should have been paid for such period over the amount of interest actually paid for such period; and (ii) if the proper calculation of the Net Senior Leverage Ratio would have resulted in lower pricing for such period, neither Agent nor any Lender shall have any obligation to repay any interest or fees to Borrower; provided , that, if as a result of any restatement or other event a proper calculation of the Net Senior Leverage Ratio would have resulted in higher pricing for one or more periods and lower pricing for one or more other periods (due to the shifting of income or expenses from one period to another period or any similar reason), then (x) the amount payable by Borrower pursuant to clause (i) above shall be based upon the excess, if any, of the amount of interest that should have been paid for all applicable periods over the amount of interest paid for all such periods and (y) the amount credited to Borrower pursuant to clause (ii) above shall be based upon the excess, if any, of the amount of interest paid by Borrower for all applicable periods over the amount of interest that should have been paid for all such periods.

Approved Fund : any Person (other than a natural Person) engaged in making, purchasing, holding or otherwise investing in commercial loans in its ordinary course of activities.

Asset Disposition : a sale, lease, license, consignment, transfer or other disposition of Property of an Obligor, including a disposition of Property in connection with a sale-leaseback transaction or synthetic lease.

Assignment and Acceptance : an assignment agreement between a Lender and Eligible Assignee, in the form of Exhibit A or otherwise satisfactory to Agent.

Availability : shall have the meaning provided for in the Revolving Loan Agreement.

Bail-In Action : 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 : 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 of America : Bank of America, N.A., a national banking association.

 

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Bankruptcy Code : Title 11 of the United States Code entitled “Bankruptcy” as now and hereafter in effect (or any similar or equivalent legislation as in effect in any applicable jurisdiction), or any successor statutes.

Bankruptcy Court : the United States Bankruptcy Court for the District of Delaware.

Board of Governors : the Board of Governors of the Federal Reserve System.

Borrowed Money : with respect to any Obligor, without duplication, its (a) Indebtedness that (i) arises from the lending of money by any Person to such Obligor, (ii) is evidenced by notes, drafts, bonds, debentures, credit documents or similar instruments, (iii) accrues interest or is a type upon which interest charges are customarily paid (excluding trade payables owing in the Ordinary Course of Business), or (iv) was issued or assumed as full or partial payment for Property; (b) Capital Leases; (c) reimbursement obligations with respect to letters of credit; and (d) guaranties of any Indebtedness of the foregoing types owing by another Person.

Borrower : as defined in the Preamble hereto.

Borrower Materials : Compliance Certificates and other information, reports, financial statements and other materials delivered by Borrower hereunder, as well as other Reports and information provided by Agent to Lenders.

Borrowing : a group of Loans that are made or converted together on the same day and have the same interest option and, if applicable, Interest Period.

Borrowing Base : shall have the meaning provided for in the Revolving Loan Agreement.

Borrowing Base Certificate : shall have the meaning provided for in the Revolving Loan Agreement.

Business Day : any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, Chicago, IL or New York, NY, and if such day relates to a LIBOR Rate Loan, any such day on which dealings in Dollar deposits are conducted between banks in the London interbank Eurodollar market.

Capital Expenditures : for any period, (a) the additions to property, plant and equipment, capitalized investment and development costs, and other capital expenditures of Borrower and its consolidated Subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of Borrower for such period prepared in accordance with GAAP and (b) Capital Lease Obligations incurred by Borrower and its consolidated Subsidiaries during such period, but excluding in each case any such expenditure made to restore, replace or rebuild property to the condition of such property immediately prior to any damage, loss, destruction or condemnation of such property to the extent such expenditure is made with insurance proceeds, condemnation awards or damage recovery proceeds relating to any such damage, loss, destruction or condemnation.

 

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Capital Lease : any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, that is required to be capitalized for financial reporting purposes in accordance with GAAP.

Capital Lease Obligation : as to any Person shall mean the obligations of such Person to pay rent or other amounts under any Capital Lease.

Cash Collateral : cash, and any interest or other income earned thereon, that is delivered to Agent to Cash Collateralize any Obligations.

Cash Collateral Account : a demand deposit, money market or other account established by Agent at such financial institution as Agent may select in its discretion, which account shall be subject to a Lien in favor of Agent.

Cash Collateralize : the delivery of cash to Agent, as security for the payment of Obligations, in an amount equal to Agent’s good faith estimate of the amount due or to become due, including fees, expenses and indemnification hereunder. “ Cash Collateralization ” has a correlative meaning.

Cash Dominion Trigger Period : shall have the meaning provided for in the Revolving Loan Agreement.

Cash Equivalents : (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one (1) year from the date of acquisition thereof, (b) marketable direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one (1) year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s, (c) commercial paper maturing no more than two hundred seventy (270) days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s, (d) certificates of deposit, time deposits, overnight bank deposits or bankers’ acceptances maturing within one (1) year from the date of acquisition thereof issued by any bank organized under the laws of the United States or any state thereof or the District of Columbia or any United States branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $500,000,000, (e) deposit accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank organized under the laws of the United States or any state thereof so long as the full amount maintained with any such other bank is insured by the Federal Deposit Insurance Corporation, (f) repurchase obligations of any commercial bank satisfying the requirements of clause (d) of this definition or recognized securities dealer having combined capital and surplus of not less than $500,000,000, having a term of not more than seven (7) days, with respect to securities satisfying the criteria in clauses (a) or (d) above, (g) debt securities with maturities of six (6) months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the criteria described in clause (d) above, and (h) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (g) above.

 

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CERCLA : the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. § 9601 et seq.).

Change in Law : the occurrence, after the date hereof, of (a) the adoption, taking effect or phasing in of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof; or (c) the making, issuance or application of any request, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided , however , that “Change in Law” shall include, regardless of the date enacted, adopted or issued, all requests, rules, guidelines, requirements or directives (i) under or relating to the Dodd-Frank Wall Street Reform and Consumer Protection Act, or (ii) promulgated pursuant to Basel III by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any similar authority) or any other Governmental Authority.

Change of Control : (a) Borrower ceases to own and control, beneficially and of record, directly or indirectly, all Equity Interests in each Subsidiary Guarantor (unless 100% of the Equity Interests of such Subsidiary Guarantor is sold or otherwise disposed of in connection with an Asset Disposition otherwise permitted hereunder); (b) any “person” or “group” (within the meaning of Rule 13d-5 of the Exchange Act as in effect on the date hereof) shall own, directly or indirectly, beneficially or of record, shares representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding capital stock of Borrower; (c) a majority of the members of the board of directors of Borrower shall at any time not constitute Continuing Directors; or (d) any change in control (or similar event, however denominated) with respect to Borrower or any Subsidiary shall occur under and as defined in the Revolving Loan Documents or in any indenture or agreement in respect of the Specified Unsecured Prepetition Debt.

Claims : all claims, liabilities, obligations, losses, damages, penalties, judgments, proceedings, interest, costs and expenses of any kind (including remedial response costs, reasonable attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment of the Obligations or replacement of Agent or any Lender) incurred by any Indemnitee or asserted against any Indemnitee by any Obligor or other Person, in any way relating to (a) the Proposal Letter, the Fee Letter, any Loans, Loan Documents, Borrower Materials, or the use thereof or transactions relating thereto, (b) any action taken or omitted in connection with any Loan Documents, (c) the existence or perfection of any Liens, or realization upon any Collateral, (d) exercise of any rights or remedies under any Loan Documents or Applicable Law, or (e) failure by any Obligor to perform or observe any terms of any Loan Document, in each case including all costs and expenses relating to any investigation, litigation, arbitration or other proceeding (including an Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a party thereto.

Closing Date : as defined in Section  6.1 .

Closing Date Revolving Loan Agreement Amendment : that certain Third Amendment to Loan Agreement, dated as of the Closing Date, among Revolving Loan Agent, the issuing bank, the Revolving Loan Lenders party thereto and the Obligors.

Code : the Internal Revenue Code of 1986, as amended.

 

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Collateral : all Property described in any Security Documents as security or collateral for any Obligations, and all other Property that now or hereafter, or under the terms hereof, or under the Security Documents, secures (or is intended to secure) any Obligations.

Commitment : as to any Lender, such Lender’s commitment to make the Term A Loan or Delayed Draw Term Loans under this Agreement. The initial amount of each Lender’s commitment to make the Term A Loan or Delayed Draw Term Loans, as applicable, is set forth in the Schedule 1.1(a) hereto.

Compliance Certificate : a certificate, substantially in the form of Exhibit C , by which Borrower certifies compliance with Sections 10.2.7 and 10.3 .

Connection Income Taxes : Other Connection Taxes that are imposed on or measured by net income (however denominated), or are franchise or branch profits Taxes.

Consolidated Net Income : with respect to Borrower and its Subsidiaries on a consolidated basis for any period, net income for such period but excluding net income (or loss) attributable to the equity method of accounting unless such net income has been distributed in cash to Borrower or any Subsidiary.

Consolidated Total Assets : as of any date of determination, the total assets in each case reflected on the consolidated balance sheet of Borrower and its Subsidiaries as at the end of the most recently ended Fiscal Quarter of Borrower for which financial statements have been or are required to have been delivered pursuant to Section  10.1.2 , determined on a consolidated basis in accordance with GAAP.

Contingent Obligation : any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any Indebtedness, lease, dividend or other obligation (“ primary obligations ”) of another obligor (“ primary obligor ”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto.

Continuing Director : (a) any member of the board of directors of Borrower who was a director (or comparable manager) of Borrower on the Closing Date, and (b) any individual who becomes a member of the board of directors after the Closing Date if such individual was approved, appointed or nominated for election to the board of directors of Borrower by a majority of the Continuing Directors, but excluding any such individual originally proposed for election in opposition to the Continuing Directors in an actual or publically threatened election contest relating to the election of the directors (or comparable managers) of Borrower and whose assumption of office resulted from such contest or the settlement thereof.

 

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CWA : the Clean Water Act (33 U.S.C. §§ 1251 et seq.).

Default : an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default.

Default Rate : for any Obligation (including, to the extent permitted by law, interest not paid when due), 2.00% plus the interest rate otherwise applicable thereto.

Defaulting Lender : any Lender that (a) has failed to comply with its funding obligations hereunder, and such failure is not cured within two (2) Business Days; (b) has notified Agent or Borrower that such Lender does not intend to comply with its funding obligations hereunder or under any other credit facility, or has made a public statement to that effect; (c) has failed, within three (3) Business Days following request by Agent or Borrower, to confirm in a manner satisfactory to Agent and Borrower that such Lender will comply with its funding obligations hereunder; or (d) has, or has a direct or indirect parent company that has, become the subject of an Insolvency Proceeding (including reorganization, liquidation, or appointment of a receiver, custodian, administrator or similar Person by the Federal Deposit Insurance Corporation or any other regulatory authority) or Bail-In Action; provided , however , that a Lender shall not be a Defaulting Lender solely by virtue of a Governmental Authority’s ownership of an equity interest in such Lender or parent company unless the ownership provides immunity for such Lender from jurisdiction of courts within the United States or from enforcement of judgments or writs of attachment on its assets, or permits such Lender or Governmental Authority to repudiate or otherwise to reject such Lender’s agreements.

Deposit Account Control Agreement : control agreement satisfactory to Agent executed by an institution maintaining a Deposit Account for an Obligor, to perfect Agent’s Lien on such account.

Designated Jurisdiction : any country or territory that is the subject of any Sanction.

Delayed Draw Funding Conditions : with respect to any Delayed Draw Term Loan, the following: (a) Borrower shall have given written notice to Agent of the proposed funding of such Delayed Draw Term Loan not later than 11:00 a.m. (Chicago time), at least ten (10) Business Days prior to the proposed Delayed Draw Term Loan Draw Date (or by such later time as Agent may agree, in its sole discretion), (b) immediately after giving effect to the funding of such Delayed Draw Term Loan and any Distribution, Permitted Acquisition or payment with respect to Indebtedness made with the proceeds thereof, Borrower shall be in compliance on a pro forma basis with the financial covenants set forth in Section  10.3 hereof, recomputed for the most recently ended month for which financial statements are required to be delivered pursuant to Section  10.1.2 hereof, (c) immediately after giving effect to the funding of such Delayed Draw Term Loan and any Distribution, Permitted Acquisition or payment with respect to Indebtedness made with the proceeds thereof, the Net Senior Leverage Ratio, on a pro forma basis for the

 

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twelve (12) consecutive Fiscal Months ending immediately prior to such funding, recomputed for the most recently ended month for which financial statements are required to be delivered pursuant to Section  10.1.2 hereof, shall be less than or equal to 3.50 to 1.00 (or, at any time after receipt of the financial statements delivered pursuant to clause (a) of Section  10.1.2 with respect to the Fiscal Year ending December 30, 2017, solely to the extent that EBITDA for the period of twelve (12) consecutive months most recently ended on or prior to the date of such funding is at least $50,000,000, 3.75 to 1.00), (d) Specified Availability on the date of the funding of such Delayed Draw Term Loan, before and after giving pro forma effect to such funding and any Distribution, Permitted Acquisition or payment with respect to Indebtedness made with the proceeds thereof, is greater than or equal to $18,750,000; (e) the average daily amount of Specified Availability for the 60-day period immediately preceding the date of the funding of such Delayed Draw Term Loan shall have been greater than or equal to $18,750,000, calculated on a pro forma basis assuming such funding and any Distribution, Permitted Acquisition or payment with respect to Indebtedness made with the proceeds thereof occurred on the first day of such 60-day period, (f) immediately before and after giving effect to the funding of such Delayed Draw Term Loan, no Default or Event of Default shall have occurred and be continuing, (g) the representations and warranties of each Obligor in the Loan Documents shall be true and correct in all material respects (except to the extent already qualified by materiality, in which case it will be true and correct in all respects) on the date of, and upon giving effect to, such funding (except for representations and warranties that expressly relate to an earlier date), and (h) Borrower shall have delivered a certificate to Agent certifying as to clauses (a) through (g) above and setting forth projections prepared in good faith demonstrating that Specified Availability shall be greater than or equal to $18,750,000 at all times for the greater of (i) the 90-day period following the date of the funding of such Delayed Draw Term Loan and (ii) the period following the date of the funding of such Delayed Draw Term Loan up to and including August 31 of such year (or the following year if such funding occurs after August 31 of such year).

Delayed Draw Term Loan : shall have the meaning set forth in Clause (b) of Section  2.1.1 hereof.

Delayed Draw Term Loan Amount : $30,000,000.

Delayed Draw Term Loan Commitment : as to any Lender, such Lender’s commitment to make Delayed Draw Term Loans under this Agreement. The initial amount of each Lender’s commitment to make Delayed Draw Term Loans is set forth in the Schedule 1.1(a) hereto.

Delayed Draw Term Loan Commitment Percentage : as to any Lender, the percentage set forth opposite such Lender’s name on Schedule 1.1(a) hereto under the column “Delayed Draw Term Loan Commitment Percentage” (if such Lender’s name is not so set forth thereon, then such percentage for such Lender shall be deemed to be zero) (or, in the case of any Lender that became party to this Agreement after the Closing Date, the Delayed Draw Term Loan Commitment Percentage of such Lender as set forth in the applicable Assignment and Acceptance).

Delayed Draw Term Loan Commitment Period : the period commencing on the Closing Date and ending on the Delayed Draw Term Loan Commitment Termination Date.

 

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Delayed Draw Term Loan Commitment Termination Date : the earliest of (a) April 7, 2019, (b) the date on which the Delayed Draw Term Loan Amount has been reduced to $0 and (c) the date on which the Delayed Draw Term Loan Commitment has been extinguished in full in accordance with Section 2.1.4.

Delayed Draw Term Loan Draw Date : shall have the meaning set forth in Clause (b) of Section  2.1.1 hereof.

Disqualified Stock : any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital, in each case at any time on or prior to the first anniversary of the Maturity Date; or (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interest referred to in clause (a) above, in each case at any time prior to the first anniversary of the Maturity Date.

Distribution : (i) any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in Borrower or any Subsidiary, (ii) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the repurchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in Borrower or any Subsidiary, or (iii) any other payment (whether in cash, securities or other property) with respect to any Equity Interests in Borrower or any Subsidiary, including but not limited to payments made on account of any stock appreciation rights or restricted stock units with respect to any such Equity Interests.

Dollars : lawful money of the United States.

Domestic Subsidiary : any Subsidiary organized under the laws of the United States of America, any state thereof or the District of Columbia.

Dominion Account : an account of an Obligor at a bank reasonably acceptable to Agent, which is subject at all times to a Deposit Account Control Agreement or a Securities Account Control Agreement.

EBITDA : with respect to Borrower and its Subsidiaries on a consolidated basis for any period, the Consolidated Net Income of Borrower and its Subsidiaries for such period, plus

(a) the sum of (in each case without duplication and to the extent the respective amounts described in subclauses (i) through (viii) of this clause (a) reduced such Consolidated Net Income (and were not excluded therefrom or added thereto) for the respective period for which EBITDA is being determined):

(i) provision for taxes based on income, profits or capital of Borrower and its Subsidiaries for such period, including, without limitation, state, franchise and similar taxes;

 

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(ii) interest expense (and to the extent not included in interest expense, (x) all cash dividend payments (excluding items eliminated in consolidation) on any series of preferred stock or disqualified stock and (y) costs of surety bonds in connection with financing activities) of Borrower and its Subsidiaries for such period;

(iii) depreciation and amortization expenses of Borrower and its Subsidiaries for such period including the amortization of intangible assets, deferred financing fees and capitalized software expenditures and amortization of unrecognized prior service costs;

(iv) (A) non-recurring, unusual or extraordinary charges for such period, (B) business optimization expenses and other restructuring charges or reserves (which, for the avoidance of doubt, shall include the effect of inventory optimization programs, facility closure, facility consolidations, duplicative facility costs, retention, severance, systems establishment costs, contract termination costs, future lease commitments and excess pension charges), and (C) cash expenses relating to earn outs and similar obligations; provided that the aggregate amount to be added back pursuant to this clause (iv) shall not exceed 15% of EBITDA for the 2017 Fiscal Year, 12.5% of EBITDA for the 2018 Fiscal Year, and 10% of EBITDA for any Fiscal Year thereafter;

(v) any other non-cash charges; provided , that for purposes of this subclause (v) of this clause (a), any non-cash charges or losses shall be treated as cash charges or losses in any subsequent period during which cash disbursements attributable thereto are made (but excluding, for the avoidance of doubt, amortization of a prepaid cash item that was paid in a prior period);

(vi) any expenses or charges (other than depreciation or amortization expense as described in the preceding clause (iii)) related to any issuance of equity interests, investment, acquisition, disposition, recapitalization, attempted disposition, attempted recapitalization, proposed sale of the Borrower or any Subsidiary or the incurrence, modification or repayment of indebtedness permitted to be incurred under this Agreement (including any refinancing thereof as long as each Refinancing Condition is satisfied) (whether or not successful), in each case, solely to the extent outside the ordinary course of business, including (x) such fees, expenses or charges related to the Revolving Loan Facility, the Obligations and the Specified Unsecured Prepetition Debt, and (y) any amendment or other modification of the Obligations or other Indebtedness;

(vii) non-cash expenses in connection with expensing stock options or other equity compensation grants for such period; and

(viii) to the extent deducted from Consolidated Net Income for such period, cash fees, costs, expenses, commissions and other cash charges paid on or before April 7, 2017 in connection with this Agreement and the other Loan Documents, the Revolving Loan Facility Amendment and the transactions contemplated by the foregoing; provided that the aggregate amount to be added back pursuant to this clause (viii) for all such periods shall not exceed $4,000,000 (provided, that to the extent such charges associated with this Agreement and the other Loan Documents or the Revolving Loan Facility are capitalized and recognized over the life of the Loans and the Revolving Loans, respectively, then such amount shall be reduced to the extent of such capitalization); minus

 

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(b) the sum of (without duplication and to the extent the amounts described in this clause (b) increased such Consolidated Net Income for the respective period for which EBITDA is being determined) non-cash items increasing Consolidated Net Income of Borrower and its Subsidiaries for such period (but excluding any such items (A) in respect of which cash was received in a prior period or will be received in a future period or (B) which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced EBITDA in any prior period); minus

(c) non-recurring, unusual or extraordinary gains increasing Consolidated Net Income of Borrower and its subsidiaries for such period to the extent non-recurring, unusual or extraordinary losses could be added back for such period; and minus

(d) any cash payments made in respect of non-cash charges added back in a prior period.

EEA Financial Institution : (a) any credit institution or investment firm established in an EEA Member Country that is subject to the supervision of an EEA Resolution Authority; (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) above; or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in the foregoing clauses and is subject to consolidated supervision with its parent.

EEA Member Country : any of the member states of the European Union, Iceland, Liechtenstein and Norway.

EEA Resolution Authority : any public administrative authority or any Person entrusted with public administrative authority of an EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Eligible Assignee : a Person that is (a) a Lender, Affiliate of a Lender or Approved Fund; (b) a financial institution that extends term loan credit facilities of this type in its ordinary course of business and is approved by Borrower (which approval shall not be unreasonably withheld or delayed, and shall be deemed given if no objection is made within five (5) Business Days after notice of the proposed assignment), and Agent; and (c) during an Event of Default, any Person acceptable to Agent in its discretion; provided Borrower’s disapproval of an EEA Financial Institution as an Eligible Assignee will not be deemed unreasonable if Borrower has provided reasonable evidence that it is reasonably likely that such EEA Financial Institution may be subject to a Bail-In Action during the term of this Agreement.

Enforcement Action : any action to enforce any Obligations or Loan Documents or to exercise any rights or remedies relating to any Collateral (whether by judicial action, self-help, notification of Account Debtors, setoff or recoupment, credit bid, action in an Obligor’s Insolvency Proceeding or otherwise).

 

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Environmental Laws : Applicable Laws (including programs, permits and guidance promulgated by regulators) relating to public health (other than occupational safety and health regulated by OSHA) or the protection or pollution of the environment, including CERCLA, RCRA and CWA.

Environmental Notice : a notice (whether written or oral) from any Governmental Authority or other Person of any possible noncompliance with, investigation of a possible violation of, litigation relating to, or potential fine or liability under any Environmental Law, or with respect to any Environmental Release, environmental pollution or hazardous materials, including any complaint, summons, citation, order, claim, demand or request for correction, remediation or otherwise.

Environmental Release : a release as defined in CERCLA or under any other Environmental Law.

Equity Interest : (a)(i) the interest of any shareholder in a corporation; partner in a partnership (whether general, limited, limited liability or joint venture); member in a limited liability company; or (ii) any other form of equity security or ownership interest in any Person, (b) all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities), and (c) any stock appreciation rights and restricted stock units.

ERISA : the Employee Retirement Income Security Act of 1974, as amended.

ERISA Affiliate : any trade or business (whether or not incorporated) under common control with an Obligor within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

ERISA Event : (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Obligor or ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Obligor or ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) the determination that any Pension Plan or Multiemployer Plan is considered an at risk plan under Section 430(i) of the Code or Section 303 of ERISA or a plan in critical or endangered status under Section 432(b) the Code or Section 305 of ERISA; (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of application for a waiver of the minimum funding standard with respect to any Pension Plan; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Obligor or ERISA Affiliate.

 

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EU Bail-In Legislation Schedule : the EU Bail-In Legislation Schedule published by the Loan Market Association, as in effect from time to time.

Event of Default : as defined in Section  11 .

Excess Cash Flow : determined on a consolidated basis for Borrower and Subsidiaries, EBITDA, minus (a) cash interest expense and cash taxes paid; (b) Capital Expenditures (except those financed with Borrowed Money other than Revolving Loans); and (c) scheduled principal payments made on Borrowed Money (excluding payments made with respect to the Specified Unsecured Prepetition Debt made prior to the final maturity date thereof) and Capital Leases.

Excess Cash Flow Due Date : shall have the meaning set forth in Section  2.3.4 hereof.

Exchange Act : the Securities Exchange Act of 1934, as amended.

Excluded Subsidiary : any (a) Immaterial Subsidiary; (b) Foreign Subsidiary; (c) Subsidiary that is prohibited by Applicable Law or by any contractual obligation (with respect to any such contractual obligations, only to the extent existing on the Closing Date or the date the applicable Person becomes a direct or indirect Subsidiary of Borrower) from guaranteeing the Obligations or which would require governmental (including regulatory) consent, approval, license or authorization to provide a guarantee (unless such consent, approval, license or authorization has been received); (d) Subsidiary that is not a Wholly-Owned Subsidiary; (e) any Subsidiary of a Foreign Subsidiary and (f) Domestic Subsidiary that owns no material assets other than Equity Interests in one or more Foreign Subsidiaries. The Excluded Subsidiaries as of the Closing Date are listed on Schedule 1.1(b) .

Excluded Taxes : (a) Taxes imposed on or measured by a Recipient’s net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) as a result of such Recipient being organized under the laws of, or having its principal office or applicable Lending Office located in, the jurisdiction imposing such Tax, or (ii) constituting Other Connection Taxes; (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of a Lender with respect to its interest in a Loan or Commitment pursuant to a law in effect when the Lender acquires such interest (except pursuant to an assignment request by Borrower under Section  3.9 ) or changes its Lending Office, unless the Taxes were payable to its assignor immediately prior to such assignment or to the Lender immediately prior to its change in Lending Office; (c) Taxes attributable to a Recipient’s failure to comply with Section  5.2 ; and (d) U.S. federal withholding Taxes imposed pursuant to FATCA.

Existing Agent : shall mean Credit Suisse AG and its permitted successors and assigns or any other Person designated as term loan agent pursuant to the Existing Credit Agreement.

Existing Credit Agreement : the Credit Agreement, dated as of June 11, 2013, as heretofore amended, modified and supplemented, by and among Borrower, Existing Agent and Existing Lenders.

Existing Lenders : the financial institutions which are parties to the Existing Credit Agreement as lenders.

 

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Existing Loan Documents : collectively, the Existing Credit Agreement and all of the other agreements, documents and instruments executed and delivered in connection therewith or related thereto.

Extraordinary Expenses : all costs (including all internally allocated costs of Agent in connection with field examinations and quality of earnings reports), expenses or fees, in each case, that Agent may incur during a Default or Event of Default, or during the pendency of an Insolvency Proceeding of an Obligor, including those relating to (a) any audit, inspection, repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or other preservation of or realization upon any Collateral; (b) any action, arbitration or other proceeding (whether instituted by or against Agent, any Lender, any Obligor, any representative of creditors of an Obligor or any other Person) in any way relating to any Collateral (including the validity, perfection, priority or avoidability of Agent’s Liens with respect to any Collateral), Loan Documents or Obligations, including any lender liability or other Claims; (c) the exercise of any rights or remedies of Agent in, or the monitoring of, any Insolvency Proceeding; (d) settlement or satisfaction of taxes, charges or Liens with respect to any Collateral; (e) any Enforcement Action; and (f) negotiation and documentation of any modification, waiver, workout, restructuring or forbearance with respect to any Loan Documents or Obligations. Such costs, expenses and advances include transfer fees, Other Taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, expenses of one counsel for Agent (which counsel shall be designated by Agent) and to the extent necessary, one special or local counsel for Agent in each appropriate jurisdiction, appraisal fees, brokers’ and auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees of any Obligor or independent contractors in liquidating any Collateral, and travel expenses.

Extraordinary Receipts : shall mean the Net Proceeds received by any Obligor or any of its Subsidiaries not in the Ordinary Course of Business (and not consisting of proceeds from the sale of Inventory), including, without limitation, (a) proceeds under any insurance policy on account of damage or destruction of any assets or property of such Obligor or Subsidiary, (b) condemnation awards (and payments in lieu thereof), (c) indemnity payments, (d) foreign, United States, state or local tax refunds in excess of $1,000,000 in any Fiscal Year, (e) pension plan reversions and (f) judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action.

FATCA : Sections 1471 through 1474 of the Code (including any amended or successor version if substantively comparable and not materially more onerous to comply with), and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

Federal Funds Rate : for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve, 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 which is a Business Day, the average of the quotations for such day on such transactions received by Agent from three major banks of recognized standing selected by it.

 

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Fee Letter : the fee letter agreement between Agent and Borrower dated as of the Closing Date.

Fiscal Month : as defined in the attached Schedule A for the term of the Agreement.

Fiscal Quarter : each fiscal quarter of Borrower and its Subsidiaries for accounting and tax purposes.

Fiscal Year : the fiscal year of Borrower and Subsidiaries for accounting and tax purposes, ending on the last Saturday of each December.

Fixed Charge Coverage Ratio : the ratio, determined on a consolidated basis for Borrower and its Subsidiaries for the most recent twelve (12) consecutive calendar months, of (a) EBITDA minus Capital Expenditures (except those financed with Borrowed Money other than Revolving Loans), to (b) Fixed Charges.

Fixed Charges : the sum of (a) cash interest expense, plus (b) all principal payments in respect of Borrowed Money (other than (i) mandatory prepayments of the Loans (x) in connection with asset sales pursuant to Section 2.3.1 or (y) arising from Excess Cash Flow pursuant to Section 2.3.4, (ii) unless accompanied with a permanent reduction of the Revolving Loan Commitments, payments of the Revolving Loans, (iii) payments in respect of the Specified Unsecured Prepetition Debt, and (iv) voluntary principal payments in respect of the Loans and other Borrowed Money (unless, in the case of revolving Indebtedness, accompanied by a permanent reduction in commitments)), plus (c) the aggregate amount of net Federal, state, local and foreign income taxes and franchise and similar taxes paid in cash during such period, plus (d) cash Distributions (other than Distributions financed directly with proceeds of Delayed Draw Term Loans) made, plus (e) cash costs of surety bonds to the extent not deducted from Consolidated Net Income; provided that, notwithstanding anything contained herein to the contrary, solely for purposes of calculating Fixed Charges, cash interest expense and principal payments in respect of Borrowed Money expensed or made, as the case may be, on the last day of a calendar quarter shall be deemed to have been made on the last day of the Fiscal Quarter ending on or around such calendar quarter end.

FLSA : the Fair Labor Standards Act of 1938.

Foreign Lender : any Lender that is not a U.S. Person.

Foreign Plan : any employee benefit plan or arrangement (a) maintained or contributed to by any Obligor or Subsidiary that is not subject to the laws of the United States; or (b) mandated by a government other than the United States for employees of any Obligor or Subsidiary.

Foreign Subsidiary : a Subsidiary that is a “controlled foreign corporation” under Section 957 of the Code.

Full Payment : with respect to any Obligations, (a) the full and indefeasible cash payment thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding or which would accrue but for the Insolvency Proceeding (in each case, whether or not allowed in the proceeding); and (b) if such Obligations are inchoate or contingent in nature, the Cash Collateralization thereof (or delivery of a standby letter of credit acceptable to Agent in its discretion, in the amount of required Cash Collateral). No Loans shall be deemed to have been paid in full unless all Commitments related to such Loans have terminated.

 

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GAAP : generally accepted accounting principles in effect in the United States from time to time.

Governmental Approvals : all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and required reports to, all Governmental Authorities.

Governmental Authority : any federal, state, local, foreign or other agency, authority, body, commission, court, instrumentality, political subdivision, central bank, or other entity or officer exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions for any governmental, judicial, investigative, regulatory or self-regulatory authority (including any supra-national bodies such as the European Union or European Central Bank).

Guarantee and Collateral Agreement : the Guarantee and Collateral Agreement, dated as of the Closing Date among Borrower, Agent and each Subsidiary Guarantor, as the same may be amended, supplemented or otherwise modified from time to time.

Guarantors : Each Subsidiary Guarantor and each other Person that guarantees payment or performance of Obligations.

Guaranty : the guaranty set forth in the Guarantee and Collateral Agreement and each other guaranty agreement executed by a Guarantor in favor of Agent.

Hedging Agreement : any “swap agreement” as defined in Section 101(53B)(A) of the Bankruptcy Code.

Immaterial Subsidiary : on any date, any Subsidiary of Borrower that has had less than 2.5% of Consolidated Total Assets and less than 2.5% of annual consolidated revenues of Borrower and its Subsidiaries as reflected on the most recent financial statements delivered pursuant to Section  10.1.2 prior to such date; provided that (a) the aggregate assets and aggregate annual consolidated revenues of all Immaterial Subsidiaries shall at no time exceed 5.0% of Consolidated Total Assets or 5.0% of annual consolidated revenues of Borrower and its Subsidiaries, respectively, and (b) Borrower will designate in writing to Agent from time to time the Subsidiaries which will cease to be treated as “ Immaterial Subsidiaries ” in order to comply with the foregoing limitations.

Indebtedness : as applied to any Person, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind; (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments; (c) all obligations of such Person upon which interest charges are customarily paid; (d) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person; (e) all obligations of such Person issued or assumed as the deferred purchase price of property or services (excluding trade accounts payable incurred in the Ordinary Course of Business); (f) all Indebtedness of others secured by (or for which the holder

 

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of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on Property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed; (g) all guarantees or Contingent Obligations of or by such Person of Indebtedness of others; (h) all Capital Lease Obligations of such Person; (i) net obligations of such Person under any Hedging Agreements, valued at the Agreement Value thereof; (j) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Disqualified Stock of such Person or any other Person or any warrants, rights or options to acquire such Disqualified Stock, valued, in the case of redeemable preferred interests, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (k) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit, bank guarantees or similar instruments; and (l) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such person in respect thereof.

Indemnified Taxes : (a) Taxes, other than Excluded Taxes, imposed on or relating to any payment of an Obligation; and (b) to the extent not otherwise described in clause (a), Other Taxes.

Indemnitees : Agent Indemnitees, Lender Indemnitees and TCW Indemnitees.

Insolvency Proceeding : any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an order for relief under the Bankruptcy Code, or any other insolvency, debtor relief or debt adjustment law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator or other custodian for such Person or any part of its Property; or (c) an assignment or trust mortgage for the benefit of creditors.

Intellectual Property : all intellectual and similar Property of a Person, including inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets, confidential or proprietary information, customer lists, know-how, software and databases; all embodiments or fixations thereof and all related documentation, applications, registrations and franchises; all licenses or other rights to use any of the foregoing; and all books and records relating to the foregoing.

Intellectual Property Claim : any claim or assertion (whether in writing, by suit or otherwise) that Borrower’s or a Subsidiary’s ownership, use, marketing, sale or distribution of any Inventory, Equipment, Intellectual Property or other Property violates another Person’s Intellectual Property.

Intellectual Property Notices : each notice of grant of security interest in trademarks, notice of grant of security interest in patents and notice of grant of security interest in copyrights, substantially in the forms attached as exhibits to the Guarantee and Collateral Agreement, required to be executed and delivered by an Obligor under the terms of the Guarantee and Collateral Agreement.

 

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Intercreditor Agreement : the Intercreditor Agreement of even date herewith, among Obligors, the Revolving Loan Agent and Agent, relating to the Revolving Loan Agreement and this Agreement, and any other intercreditor agreement, on substantially the same terms and otherwise reasonably satisfactory to Agent, entered into in connection with a refinancing of the Revolving Loan Agreement and to the extent such refinancing is permitted under this Agreement and the Intercreditor Agreement.

Interest Period : as to any LIBOR Rate Loan, the period commencing on the date such Loan is borrowed or continued as, or converted into, a LIBOR Rate Loan and ending on the date one (1), two (2), three (3) or six (6) months thereafter, as selected by Borrower pursuant to Section  3.2 hereof; provided , that: (a) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the preceding Business Day; (b) with respect to an Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period), the Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period, as applicable, and (c) Borrower shall not elect an Interest Period which will end after the Maturity Date.

Inventory : as defined in the UCC, including all goods intended for sale, lease, display or demonstration; all work in process; and all raw materials, and other materials and supplies of any kind that are or could be used in connection with the manufacture, printing, packing, shipping, advertising, sale, lease or furnishing of such goods, or otherwise used or consumed in Borrower’s business (but excluding Equipment).

Investment : an Acquisition; an acquisition of record or beneficial ownership of any Equity Interests of a Person; or a loan, advance or capital contribution to or other investment in a Person.

IP Assignment : a collateral assignment or security agreement pursuant to which an Obligor grants a Lien on its Intellectual Property to Agent, as security for its Obligations.

IRS : the United States Internal Revenue Service.

Lender Indemnitees : Lenders and their officers, directors, employees, Affiliates, agents and attorneys.

Lenders : as defined in the preamble to this Agreement and any other Person who hereafter becomes a “Lender” pursuant to an Assignment and Acceptance, including any Lending Office of the foregoing.

Lending Office : the office (including any domestic or foreign Affiliate or branch) designated as such by the applicable Lender at the time it becomes party to this Agreement or thereafter by written notice to Agent and Borrower.

 

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LIBOR : with respect to each day during each Interest Period pertaining to a LIBOR Rate Loan, the greater of (a) 1.00% per annum and (b) the rate per annum appearing on Bloomberg L.P.’s (the “ Service ”) Page BBAM1/(Official BBA USD Dollar Libor Fixings) (or on any successor or substitute page of such Service, or any successor to or substitute for such Service) two (2) Business Days prior to the beginning of such Interest Period, in an amount approximately equal to the principal amount of the LIBOR Rate Loan to which such Interest Period is to apply and for a period of time comparable to such Interest Period, which determination shall be conclusive absent manifest error. If such rate is not available at such time for any reason, then “LIBOR” for such Interest Period shall be the rate per annum determined by Agent to be the rate per annum equal to the offered quotation rate to first class banks in the London interbank market for deposits (for delivery on the first day of the relevant period) in Dollars of amounts in same day funds comparable to the principal amount of the applicable LIBOR Rate Loan of 3 major London banks for which LIBOR is then being determined with maturities comparable to such Interest Period as of approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, which determination shall be conclusive absent manifest error. Notwithstanding anything herein to the contrary, if “LIBOR” shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

LIBOR Rate : for each Interest Period for each LIBOR Rate Loan, the rate per annum determined by Agent (rounded upwards if necessary, to the next 1/100 of 1.00%) by dividing (a) LIBOR for such Interest Period by (b) 100% minus the Reserve Percentage. The LIBOR Rate shall be adjusted on and as of the effective day of any change in the Reserve Percentage.

LIBOR Rate Loans : the Loans which accrue interest by reference to the LIBOR Rate, in accordance with the terms of this Agreement.

License : any written license or written agreement under which an Obligor or any of its Subsidiaries is granted the right or otherwise is authorized to use Intellectual Property in connection with any manufacture, marketing, distribution or disposition of Collateral, any use of Property or any other conduct of its business, that requires a guaranteed minimum payment of Royalties in excess of $500,000 per year.

Licensor : any Person from whom an Obligor obtains the right to use any Intellectual Property.

Lien : a Person’s interest in Property securing an obligation owed to, or a claim by, such Person, including any lien, security interest, pledge, hypothecation, assignment, trust, reservation, encroachment, easement, right-of-way, covenant, condition, restriction, leases, or other title exception or encumbrance.

Lien Waiver : an agreement, in form and substance reasonably satisfactory to Agent, by which (a) for any material Collateral located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to permit Agent to enter upon the premises and remove the Collateral or to use the premises to store or dispose of the Collateral; (b) for any Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any Documents in its possession relating to the Collateral as agent for Agent, and agrees to deliver the Collateral to Agent upon request; (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges Agent’s Lien, waives or subordinates any Lien it

 

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may have on the Collateral, and agrees to deliver the Collateral to Agent upon request; and (d) for any Collateral subject to a Licensor’s Intellectual Property rights, the Licensor grants to Agent the right, vis-à-vis such Licensor, to enforce Agent’s Liens with respect to the Collateral, including the right to dispose of it with the benefit of the Intellectual Property, whether or not a default exists under any applicable License.

Loan Documents : this Agreement, the Security Documents, the Intercreditor Agreement, each Compliance Certificate, the Fee Letter, each Related Real Estate Document, Borrower Materials, any promissory notes issued pursuant to this Agreement and any other note, document, instrument or agreement now or hereafter delivered by an obligor or other Person to Agent or a Lender in connection with any transactions relating hereto.

Loan Year : each 12 month period commencing on the Closing Date and on each anniversary of the Closing Date.

Loans : the Term Loan and any Protective Advances.

Margin Stock : as defined in Regulation U of the Board of Governors.

Material Adverse Effect : the effect of any event or circumstance that, taken alone or in conjunction with other events or circumstances, (a) has or could be reasonably expected to have a material adverse effect on the business, assets, liabilities, operations or financial condition of Borrower, individually or the Obligors, taken as a whole, on the value of any material Collateral, on the enforceability of any Loan Documents, or on the validity or priority of Agent’s Liens on any Collateral; (b) materially impairs the ability of an Obligor to perform its obligations under the Loan Documents, including repayment of any Obligations; or (c) otherwise materially impairs the ability of Agent or any Lender to enforce or collect any Obligations or to realize upon any Collateral.

Material Contract : any agreement or arrangement to which Borrower or a Subsidiary is party (other than the Loan Documents) (a) for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect; or (b) that relates to Subordinated Debt, or to Indebtedness in an aggregate amount of $2,500,000 or more.

Maturity Date : April 7, 2022.

Moody’s : Moody’s Investors Service, Inc., and its successors.

Mortgage : a mortgage or deed of trust in which an Obligor grants a Lien on its Real Estate to Agent, as security for the repayment of the Obligations.

Multiemployer Plan : any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Obligor or ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.

 

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Net Proceeds :

(a) with respect to any Asset Disposition by any Obligor or any of its Subsidiaries of any assets, the amount of cash proceeds received (directly or indirectly) from time to time (whether as initial consideration or through the payment of deferred consideration) by or on behalf of such Obligor or Subsidiary in connection therewith after deducting therefrom only (i) the amount of any Indebtedness secured by any Permitted Lien on any asset (other than (A) the Obligations and (B) Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid in connection with such Asset Disposition, (ii) reasonable fees, commissions and expenses related thereto and required to be paid by such Obligor or such Subsidiary in connection with such Asset Disposition, (iii) taxes paid or payable to any taxing authorities by such Obligor or such Subsidiary in connection with such Asset Disposition, in each case to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or payable to a Person that is not an Affiliate of any Obligor or any of its Subsidiaries, and are properly attributable to such transaction; and (iv) all amounts that are set aside as a reserve (A) for adjustments in respect of the purchase price of such assets, (B) for any liabilities associated with such sale or casualty, to the extent such reserve is required by GAAP, and (C) for the payment of unassumed liabilities relating to the assets sold or otherwise disposed of at the time of, or within thirty (30) days after, the date of such Asset Disposition;

(b) with respect to the issuance or incurrence of any Indebtedness by any Obligor or any of its Subsidiaries, or the issuance by any Obligor or any of its Subsidiaries of any Equity Interests (other than proceeds received upon the exercise of awards of Equity Interests of the Borrower issued to directors or employees of Borrower), the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Obligor or such Subsidiary in connection with such issuance or incurrence, after deducting therefrom only (i) reasonable fees, commissions and expenses related thereto and required to be paid by such Obligor or such Subsidiary in connection with such issuance or incurrence, (ii) taxes paid or payable to any taxing authorities by such Obligor or such Subsidiary in connection with such issuance or incurrence, in each case to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or payable to a Person that is not an Affiliate of any Obligor or any of its Subsidiaries, and are properly attributable to such transaction; and

(c) with respect to any Extraordinary Receipts received by any Obligor or any of its Subsidiaries, the amount of cash proceeds received (directly or indirectly) from time to time (whether as initial consideration or through the payment of deferred consideration) by or on behalf of such Obligor or Subsidiary in connection therewith after deducting therefrom only (i) the amount of any Indebtedness secured by any Permitted Lien on any asset (other than the Obligations) and which is required to be, and is, repaid in connection with such Extraordinary Receipt; (ii) reasonable fees, commissions and expenses related thereto and required to be paid by such Obligor or such Subsidiary in connection with such Extraordinary Receipt; and (iii) taxes paid or payable to any taxing authorities by such Obligor or such Subsidiary in connection with such Extraordinary Receipt, in each case to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash proceeds, actually paid or payable to a Person that is not an Affiliate of any Obligor or any of its Subsidiaries, and are properly attributable to such transaction.

 

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Net Senior Leverage Ratio : on any date, the ratio of (a) Senior Debt on such date minus Unrestricted Cash, to (b) EBITDA for the period of four consecutive Fiscal Quarters most recently ended on or prior to such date.

Notice of Borrowing : a written notification substantially in the form of Exhibit F .

Obligations : all (a) principal of and premium, if any, on the Loans, (b) interest, expenses, fees, indemnification obligations, Extraordinary Expenses and other amounts payable by Obligors under Loan Documents, including interest that accrues following the commencement of an Insolvency Proceeding or which would accrue but for the commencement of such Insolvency Proceeding (whether or not allowed in such proceeding), and (c) other Indebtedness, obligations and liabilities of any kind owing by Obligors pursuant to the Loan Documents, including obligations under the Secured Guarantee (as defined in the Guarantee and Collateral Agreement), whether now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several.

Obligor : Borrower, each Guarantor, or each other Person that is liable for payment of any Obligations or that has granted a Lien in favor of Agent on its assets to secure any Obligations.

OFAC : Office of Foreign Assets Control of the U.S. Treasury Department.

Ordinary Course of Business : the ordinary course of business of Borrower or Subsidiary, undertaken in good faith and consistent with Applicable Law and past practices.

Organic Documents : with respect to any Person, its charter, certificate or articles of incorporation, bylaws, articles of organization, limited liability agreement, operating agreement, members agreement, shareholders agreement, partnership agreement, certificate of partnership, certificate of formation, voting trust agreement, or similar agreement or instrument governing the formation or operation of such Person.

OSHA : the Occupational Safety and Hazard Act of 1970.

Other Connection Taxes : Taxes imposed on a Recipient due to a present or former connection between it and the taxing jurisdiction (other than connections arising from the Recipient having executed, delivered, become party to, performed obligations or received payments under, received or perfected a Lien or engaged in any other transaction pursuant to, enforced, or sold or assigned an interest in, any Loan or Loan Document).

Other Taxes : all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a Lien under, or otherwise with respect to, any Loan Document, except Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section  3.9 ).

 

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Participant : as defined in Section  13.2 .

Patriot Act : the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).

Payment Account : the account specified on the signature pages hereof into which all payments by or on behalf of Borrower to Agent under this Agreement and the other Loan Documents shall be made, or such other account as Agent shall from time to time specify by notice to Borrower.

Payment Conditions : with respect to the applicable specified activity on any date of determination, (a) no Default or Event of Default exists or would result from the specified activity; (b) Specified Availability on the date of such determination, before and after giving pro forma effect to such specified activity, is greater than or equal to $18,750,000; (c) the average daily amount of Specified Availability for the 60-day period immediately preceding such specified activity shall have been greater than or equal to $18,750,000, calculated on a pro forma basis assuming such specified activity occurred on the first day of such 60-day period; (d) immediately after giving effect to the specified activity, Borrower shall be in compliance on a pro forma basis with the financial covenants set forth in Section  10.3 hereof, recomputed for the most recently ended month for which financial statements are required to be delivered pursuant to Section  10.1.2 hereof; (e) immediately after giving effect to the specified activity, the Net Senior Leverage Ratio calculated on a pro forma basis for the four (4) consecutive Fiscal Quarters ending immediately prior to such specified activity, recomputed for the most recently ended month for which financial statements are required to be delivered pursuant to Section  10.1.2 hereof, shall not exceed the lesser of (i) 3.50 to 1.00 (or, at any time after receipt of the financial statements delivered pursuant to clause (a) of Section  10.1.2 with respect to the Fiscal Year ending December 30, 2017, solely to the extent that EBITDA for the period of twelve (12) consecutive months most recently ended on or prior to the date of such funding is at least $50,000,000, 3.75 to 1.00), and (ii) 0.25 less than the maximum Net Senior Leverage Ratio permitted pursuant to Section  10.3.2 for such Fiscal Quarter; and (f) Borrower shall have delivered a certificate to Agent certifying as to clauses (a) through (e) above and setting forth projections prepared in good faith demonstrating that Specified Availability shall be greater than or equal to $18,750,000 for the greater of (i) the 90-day period following such specified activity and (ii) the period following such specified activity up to and including August 31 of such year (or the following year if such specified activity occurs after August 31 of such year).

Payment Item : each check, draft or other item of payment payable to Borrower, including those constituting proceeds of any Collateral.

Payment Notification : a written notification substantially in the form of Exhibit G .

PBGC : the Pension Benefit Guaranty Corporation.

 

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Pension Plan : any employee pension benefit plan (as defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Obligor or ERISA Affiliate or to which such Obligor or ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the preceding five (5) plan years.

Perfection Certificate : as defined in the Guarantee and Collateral Agreement.

Permitted Acquisition : any Acquisition as long as (a) no Default or Event of Default exists or is caused thereby; (b) the Acquisition is consensual and such Acquisition and all transactions related thereto shall be consummated in accordance with Applicable Law; (c) the assets, business or Person being acquired is useful or engaged in the same or a similar line of business as Borrower and its Subsidiaries and is located or organized within the United States; (d) the assets, business or Person being acquired has EBITDA for the 12 month period most recently ended of no less than negative $3,000,000; provided that EBITDA for purposes of this clause (d) shall be calculated after giving pro forma effect to such Acquisition (including pro forma adjustments arising out of events which are directly attributable to such Acquisition, are factually supportable, and are expected to have a continuing impact, in each case to be mutually and reasonably agreed upon by Borrower and Agent); (e) no Indebtedness or Liens are assumed or incurred, other than Permitted Indebtedness and Permitted Liens; provided that no Liens shall be permitted on acquired Inventory or Accounts at the time of such Acquisition; (f) the Payment Conditions are satisfied; (g) if, as a result of such Acquisition, a new Subsidiary is formed or acquired, Obligors shall comply with all applicable provisions of Section  10.1.14 ; (h) Obligors shall take such actions as may be required or reasonably requested to ensure that Agent, for the ratable benefit of the Lenders, has a perfected security interest, to the extent contemplated in the Guarantee and Collateral Agreement and with the priority contemplated in the Intercreditor Agreement, in any assets acquired in such Acquisition and required to become Collateral pursuant to Section  10.1.14 or any other Loan Document; and (i) Borrower uses commercially reasonable efforts to deliver to Agent, at least ten (10) Business Days prior to the Acquisition (but in any event shall deliver to Agent within five (5) Business Days prior to the Acquisition), copies of all material agreements relating thereto and a certificate, in form and substance satisfactory to Agent, stating that the Acquisition is a “Permitted Acquisition” and demonstrating compliance with the foregoing requirements.

Permitted Asset Disposition : as long as no Default or Event of Default exists and all Net Proceeds are remitted to Agent to the extent required by Section  2.3 or the other provisions of the Loan Documents and subject to the terms of the Intercreditor Agreement, an Asset Disposition that is

(a) dispositions or abandonments of damaged, worn-out, obsolete, unmerchantable or surplus Equipment, in each case in the Ordinary Course of Business;

(b) dispositions of Inventory in the Ordinary Course of Business;

(c) dispositions of Cash Equivalents in the Ordinary Course of Business;

 

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(d) dispositions between and among Borrower and its Subsidiaries; provided that if the transferor in such a transaction is an Obligor, then either (x) the transferee must be an Obligor, (y) the aggregate amount of all dispositions made pursuant to this clause (d)(y) shall not exceed $2,500,000 in the aggregate during the term of this Agreement, or (z) the portion of any such Disposition made for less than fair market value and any non-cash consideration received in exchange for such Disposition shall in each case constitute an Investment in such Subsidiary and must be otherwise permitted hereunder;

(e) dispositions solely among Subsidiaries that are not Obligors;

(f) the sale of services, or the termination of any contracts, in each case in the Ordinary Course of Business;

(g) the granting of Liens permitted by Section  10.2.2 ;

(h) the sale or discount, in each case without recourse, of accounts receivable arising in the Ordinary Course of Business and not included in the most recently delivered Borrowing Base Certificate delivered hereunder, but only in connection with the compromise or collection thereof;

(i) any involuntary loss, damage or destruction of property, or any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition or use of property;

(j) the leasing or subleasing of assets of Borrower or its Subsidiaries in the Ordinary Course of Business;

(k) the sale or issuance of Equity Interests (other than Disqualified Stock) of Borrower not resulting in a Change of Control, so long as (i) such disposition is made at fair market value, (ii) in any such disposition, at least 90% of the purchase price is paid in cash and (iii) the Net Cash Proceeds thereto are applied against the Loan in accordance with Section  2.3.3 .

(l) (i) the lapse of registered patents, trademarks, copyrights and other Intellectual Property of Borrower and its Subsidiaries to the extent not economically desirable in the conduct of their business or (ii) the abandonment of patents, trademarks, copyrights, or other Intellectual Property in the Ordinary Course of Business so long as (in each case under clauses (i) and (ii)), (x) with respect to copyrights, such copyrights are not material revenue generating copyrights, and (y) such lapse is not materially adverse to the interests of the Secured Parties hereunder;

(m) the making of Distributions that are expressly permitted to be made pursuant to Section  10.2.4 of this Agreement;

(n) dispositions constituting Investments to the extent permitted under Section  10.2.5 ;

(o) dispositions constituting the licensing or cross-licensing, in any case, on a non-exclusive basis, of Intellectual Property rights in the Ordinary Course of Business;

 

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(p) sale leaseback transactions with respect to property having a fair market value not to exceed $5,000,000 in the aggregate during the term of this Agreement;

(q) a Specified Asset Disposition so long as (i) the Payment Conditions are satisfied, (ii) the Net Senior Leverage Ratio calculated immediately after such disposition is not greater than the Net Senior Leverage Ratio calculated immediately prior to such disposition, and (iii) any proceeds of such disposition constituting Term Priority Collateral are used to prepay the Loans;

(r) as otherwise approved in writing by Agent and the Required Lenders; and

(s) Asset Dispositions in each Fiscal Year during the term of this Agreement in an amount of up to $250,000, but not to exceed $750,000 in the aggregate during the term of this Agreement;

provided that in any Asset Disposition permitted under clauses (a) through (v) (other than under clauses (d), (e), (i), (l), (m), (n), (o) and (p)) above, Borrower receives fair market value (as determined by Borrower in good faith) and at least 75% of the proceeds consist of cash or Cash Equivalents.

Permitted Contingent Obligations : Contingent Obligations (a) arising from endorsements of Payment Items for collection or deposit in the Ordinary Course of Business; (b) arising from Hedging Agreements permitted hereunder; (c) existing on the Closing Date and set forth in Schedule 10.2.1, and any extension or renewal thereof that does not increase the amount of such Contingent Obligation when extended or renewed; (d) incurred in the Ordinary Course of Business with respect to surety, appeal or performance bonds, or other similar obligations; (e) arising from customary indemnification obligations in favor of purchasers in connection with dispositions permitted hereunder; (f) arising under the Loan Documents or the Revolving Loan Facility; or (g) in an aggregate amount of $2,500,000 or less at any time.

Permitted Indebtedness : as defined in Section  10.2.1 .

Permitted Lien : as defined in Section  10.2.2 .

Permitted Purchase Money Debt : Purchase Money Debt of Borrower and its Subsidiaries that is unsecured or secured only by a Purchase Money Lien, as long as the aggregate amount together with all Capital Lease Obligations does not exceed $2,000,000 at any time and its incurrence does not violate Section  10.2.3 .

Permitted Surety Bonds : unsecured guarantees and reimbursement obligations incurred in the Ordinary Course of Business with respect to surety and appeal bond, performance bonds, bid bonds, appeal bonds, completion guarantee and similar obligations.

Person : any individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, Governmental Authority or other entity.

 

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Plan : any employee benefit plan (as defined in Section 3(3) of ERISA) established by an Obligor or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, an ERISA Affiliate.

Plan of Reorganization : the Debtors’ Second Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as filed with the Bankruptcy Court on May 23, 2013.

Platform : as defined in Section  14.3.3 .

Prime Rate : for any period, the greatest of (a) 3.00% per annum, (b) the Federal Funds Rate plus 0.50% per annum, (c) the LIBOR Rate (which rate shall be calculated based upon an Interest Period of one (1) month and shall be determined on a daily basis) plus 1.00% per annum, and (d) the rate last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by Agent) or any similar release by the Federal Reserve Board (as determined by Agent). Each change in the Reference Rate shall be effective from and including the date such change is publicly announced as being effective.

Prime Rate Loans : shall mean the Loans which accrue interest by reference to the Prime Rate, in accordance with the terms of this Agreement.

Properly Contested : with respect to any obligation of an Obligor, (a) the obligation is subject to a bona fide dispute regarding amount or such Obligor’s liability to pay; (b) the obligation is being properly contested in good faith by appropriate proceedings promptly instituted and diligently pursued; (c) appropriate reserves have been established in accordance with GAAP; (d) non-payment during such contest could not have a Material Adverse Effect, nor result in forfeiture or sale of any material assets of such Obligor; (e) no Lien, other than any Permitted Lien, is imposed on assets of such Obligor, unless bonded and stayed to the reasonable satisfaction of Agent in its discretion; and (f) if the obligation results from entry of a judgment or other order, such judgment or order is stayed pending appeal or other judicial review.

Property : any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

Proposal Letter : the proposal letter, dated as of March 3, 2017, between Agent and Borrower.

Protective Advances : shall have the meaning set forth in Clause (e) of Section  2.1.1 hereof.

Purchase Money Debt : (a) Indebtedness (other than the Obligations) for payment of any of the purchase price of the acquisition, construction or improvement of any fixed or capital assets; (b) Indebtedness (other than the Obligations) incurred within ninety (90) days before or after the acquisition or completion of such construction or improvement of any fixed assets or capital assets, for the purpose of financing any of the purchase price thereof; and (c) any renewals, extensions or refinancings (but not increases) thereof.

 

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Purchase Money Lien : a Lien that secures Purchase Money Debt, encumbering only the fixed assets acquired with such Indebtedness and constituting a Capital Lease or a purchase money security interest under the UCC.

Quality of Earnings Report : shall have the meaning set forth in Section 6.1(o) hereof.

RCRA : the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991i).

Real Estate : all right, title and interest (whether as owner, lessor or lessee) in any land and/or any buildings, structures, parking areas or other improvements thereon together with any related real Property interests related thereto.

Reasonable Credit Judgment : Agent’s commercially reasonable credit judgment (from the perspective of a secured, term loan lender) exercised, in good faith.

Recipient : Agent, any Lender or any other recipient of a payment to be made by an Obligor under a Loan Document or on account of an Obligation.

Refinancing Conditions : the following conditions for Refinancing Debt: (a) it is in an aggregate principal amount that, together with the undrawn commitments therefor, does not exceed the sum of the principal amount of the Indebtedness and the undrawn commitments therefor, in each case being extended, renewed or refinanced (solely for purposes of this definition, “ Refinanced Debt ”) plus accrued interest (including any interest paid in kind), fees and premiums (if any) thereon and reasonable fees and expenses associated with the refinancing; (b) the Refinanced Debt shall be repaid, defeased or satisfied and discharged on a dollar-for-dollar basis (or such lesser basis that results in repayment in full of such Refinanced Debt), and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, substantially concurrently with such refinancing; (c) it has a final maturity no sooner than, a weighted average life no less than, and an interest rate no greater than, the Refinanced Debt; (d) if it is secured, the terms and conditions relating to collateral for such Indebtedness, taken as a whole, shall be no more favorable to the investors providing such Indebtedness than the terms and conditions with respect to the collateral for the Refinanced Debt (and the Liens on any collateral securing such Indebtedness shall have the same (or lesser) priority as the Refinanced Debt relative to the Liens on the Collateral securing the Obligations) and if such Refinancing Debt is secured by the Collateral, it shall be subject to the Intercreditor Agreement; (e) it is subordinated to the Obligations at least to the same extent as the Indebtedness being extended, renewed or refinanced; (f) such Refinancing Debt shall be otherwise on terms and conditions (other than interest, fees, premiums, funding discounts, optional prepayment provisions, guarantees, collateral and subordination) that are, taken as a whole, in the reasonable good faith determination of Borrower, not materially less favorable to Borrower than those applicable to the Refinanced Debt; (g) no additional Lien is granted to secure it; (h) no additional Person is obligated on such Indebtedness; and (i) upon giving effect to it, no Default or Event of Default exists.

Refinancing Debt : Borrowed Money or any commitment to extend credit that is the result of an extension, renewal or refinancing of Indebtedness permitted under Section 10.2.1(b) , (d) or (f)  or any commitment to extend credit in connection with the foregoing.

 

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Register : shall have the meaning set forth in Section  2.2.2 hereof.

Related Real Estate Documents : with respect to any Real Estate subject to a Mortgage, the following, in form and substance satisfactory to Agent and received by Agent for review at least fifteen (15) days prior to the effective date of the Mortgage: (a) a mortgagee title policy (or binder therefor) covering Agent’s interest under the Mortgage, by an insurer acceptable to Agent which must be fully paid on such effective date and which will be in an amount satisfactory to Agent; (b) a survey of the Real Estate, in form and substance reasonably satisfactory to Agent, certified by a licensed surveyor acceptable to Agent; (c) a life-of-loan flood hazard determination and, if the Real Estate is located in a special flood hazard area, an acknowledged notice to Borrower and flood insurance by an insurer acceptable to Agent; (d) if requested by Agent, an appraisal complying with the requirements of the Financial Institutions Reform, Recovery and Enforcement Act of 1989, by a third-party appraiser acceptable to Agent, and in form and substance satisfactory to Required Lenders; (e) upon the reasonable request of Agent, Phase I environmental assessments (“ Phase Is ”), prepared by environmental engineers reasonably acceptable to Agent, (f) such other reports, certificates, studies or data as Agent may reasonably require, all in form and substance satisfactory to Required Lenders; and (g) such other documents, instruments or agreements as Agent may reasonably require with respect to any environmental risks regarding the Real Estate.

Replacement Lender : shall have the meaning set forth in Section  3.9 hereof.

Report : as defined in Section  12.2.3 .

Reportable Event : any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

Required Lenders : Lenders holding at least 51% of the sum of the outstanding principal balance of the Term Loan.

Reserve Percentage : on any day, for any Lender, the maximum percentage prescribed by the Board of Governors of the Federal Reserve System (or any successor thereto) for determining the reserve requirements (including any basic, supplemental, marginal, or emergency reserves) that are in effect on such date with respect to eurocurrency funding (currently referred to as “eurocurrency liabilities”) of that Lender, but so long as such Lender is not required or directed under applicable regulations to maintain such reserves, the Reserve Percentage shall be zero.

Restricted Investment : any Investment by Borrower or any Subsidiary, other than

(a) Investments existing on the Closing Date and set forth on Schedule 10.2.5;

(b) Investments in Cash Equivalents made in the Ordinary Course of Business;

(c) Investments in Borrower or any Subsidiary, provided that (i) any such Investments in the form of loans and advances made by an Obligor shall be permitted so long as no Default or Event of Default exists or would result therefrom and shall be evidenced by a promissory note pledged to Agent (or its agent, designee or bailee) for the ratable benefit of the

 

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Lenders pursuant to the Guarantee and Collateral Agreement, (ii) any such Investments in the form of Equity Interests held by an Obligor shall be pledged pursuant to the Guarantee and Collateral Agreement (subject to any limitations applicable to voting stock of a Foreign Subsidiary referred to therein) and (iii) the aggregate amount of such Investments made from the Closing Date by Obligors in Subsidiaries that are not Obligors shall not exceed $2,500,000;

(d) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the Ordinary Course of Business;

(e) loans made by Borrower and its Subsidiaries in the Ordinary Course of Business in accordance with their usual practice to their respective employees so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-down or write-offs of such loans and advances) shall not exceed $1,000,000;

(f) Hedging Agreements entered into by Borrower and its Subsidiaries that are entered into in the Ordinary Course of Business and not for speculative purposes;

(g) to the extent constituting an Investment, Capital Expenditures not prohibited hereunder;

(h) Investments consisting of the non-cash portion of the sales price received for Permitted Asset Dispositions;

(i) lease, utility and other deposits or advances in the Ordinary Course of Business;

(j) cash earnest money deposits made in connection with Permitted Acquisitions or other acquisitions of assets permitted hereunder;

(k) Investments in the Ordinary Course of Business consisting of endorsements for collection or deposit;

(l) Investments of any Person existing at the time such Person becomes a Subsidiary, or consolidates, amalgamates or merges with Borrower or a Subsidiary (including in connection with a Permitted Acquisition) (but excluding Investments in Subsidiaries which must be otherwise permitted by this definition of “ Restricted Investments ”) so long as such Investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation, amalgamation or merger;

(m) Investments of Net Proceeds of a Permitted Asset Disposition in accordance with the reinvestment rights set forth in Section  2.3.1 ;

(n) Extensions of trade credit in the Ordinary Course of Business;

(o) Investments constituting Permitted Acquisitions; provided that the aggregate consideration paid in Permitted Acquisitions to acquire a Person that will not be an Obligor following the acquisition thereof, or to acquire property or assets that will not be owned by an Obligor (each, a “ Non-Obligor Permitted Acquisition ”) shall not exceed, at the time of any such acquisition, together with the aggregate consideration paid in all Non-Obligor Permitted Acquisitions effected prior to such time, $1,000,000;

 

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(p) to the extent constituting Investments, Permitted Contingent Obligations; and

(q) other Investments not included in the preceding clauses; provided that (x) the aggregate amount of such Investments together with the aggregate consideration paid in all Non-Obligor Permitted Acquisitions effected prior to such time, shall not exceed $5,000,000 and (y) Investments permitted pursuant to this clause (q) shall not include Acquisitions and Permitted Acquisitions (other than Non-Obligor Permitted Acquisitions) otherwise permitted hereunder, which shall only be permitted in compliance with clause (o) above.

Restrictive Agreement : an agreement (other than a Loan Document) that conditions or restricts the right of Borrower, any Subsidiary or any other Obligor to incur or repay Borrowed Money, to grant Liens on any assets, to declare or make Distributions, to modify, extend or renew any agreement evidencing Borrowed Money, or to repay any intercompany Indebtedness.

Revolving Loan Agent : the “Agent” as defined in the Revolving Loan Agreement.

Revolving Loan Agreement : that certain Loan Agreement dated as of the Revolving Loan Agreement Closing Date by and among Revolving Loan Agent, the Revolving Loan Lenders and the Obligors, as amended, restated or otherwise modified from time to time to the extent not prohibited by the Intercreditor Agreement, including without limitation, as amended by the Closing Date Revolving Loan Agreement Amendment.

Revolving Loan Agreement Closing Date : June 11, 2013.

Revolving Loan Commitments : “Commitments” as defined in the Revolving Loan Agreement.

Revolving Loan Documents : “ABL Documents” as defined in the Intercreditor Agreement.

Revolving Loan Facility : (i) the Revolving Loan Agreement and (ii) any refinancing thereof as long as each Refinancing Condition is satisfied, in each case to the extent permitted by this Agreement and the Intercreditor Agreement.

Revolving Loan Lenders : the financial institutions from time to time party to the Revolving Loan Agreement as lenders.

Revolving Loan Obligations : “Obligations” (or any such similar term) (as defined in the Revolving Loan Agreement).

Revolving Loans : shall mean “Loans” as defined in the Revolving Loan Agreement.

 

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Royalties : all royalties, fees, expense reimbursement and other amounts payable by an Obligor under a License.

S&P : Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. and any successor thereto.

Sanction : any international economic sanction administered or enforced by the United States Government (including OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.

Scheduled Term Loan Installment Payments : shall have the meaning set forth in Section  2.1.2 hereof.

Secured Parties : Agent and Lenders.

Securities Account Control Agreement : the Securities Account control agreements to be executed by the relevant Obligor and each institution maintaining a Securities Account for Borrower or an Obligor, in favor of Agent, as security for the Obligations, in the form required and to the extent required under Section  8.5 .

Security Documents : the Guarantee and Collateral Agreement, each Security Agreement Supplement (as defined in the Guarantee and Collateral Agreement), Mortgages, IP Assignments, Deposit Account Control Agreements, Securities Account Control Agreements and all other documents, instruments and agreements now or hereafter securing (or given with the intent to secure) any Obligations.

Senior Debt : as of any date of determination, Borrowed Money of Borrower and its Subsidiaries as of such date, other than Subordinated Debt; provided that for the avoidance of doubt, Senior Debt shall include (x) Indebtedness under the Revolving Loan Facility and (y) any Indebtedness the final maturity date of which is earlier than the Maturity Date other than Specified Unsecured Prepetition Debt; provided , further that reimbursement obligations with respect to Permitted Surety Bonds shall not constitute Senior Debt; provided further , that for purposes of determining Senior Debt, as of any date of determination, Indebtedness under the Revolving Loan Agreement shall be deemed to be the average daily amount of such Indebtedness for the 365-day period immediately preceding such date.

Senior Officer : the president, chief executive officer, chief accounting officer, chief operating officer or chief financial officer of Borrower or, if the context requires, an Obligor.

Solvent : as to any Person, such Person (a) owns Property whose fair salable value is greater than the amount required to pay all of its debts (including contingent, subordinated, unmatured and unliquidated liabilities); (b) owns Property whose present fair salable value (as defined below) is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person as they become absolute and matured; (c) is able to pay all of its debts as they mature; (d) has capital that is not unreasonably small for its business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code; and (f) has not incurred (by way of assumption or otherwise)

 

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any obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any conveyance in connection therewith, with actual intent to hinder, delay or defraud either present or future creditors of such Person or any of its Affiliates. “ Fair salable value ” means the amount that could be obtained for assets within a reasonable time, either through collection or through sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who is willing (but under no compulsion) to purchase.

Specified Asset Dispositions : the Asset Dispositions set forth on Schedule 1.1(c) .

Specified Availability : shall have the meaning provided for in the Revolving Loan Agreement.

Specified Default : the failure of any Obligor to comply with the terms of Section  8.2.5 , 8.5 or 10.1.1 , the failure of Borrower to deliver financial statements when required pursuant to Section  10.1.2 , or the occurrence of any Default specified in Sections 11.1(a) , 11.1(i) or 11.1(j) .

Specified Unsecured Prepetition Debt : any payment or distribution in respect of the Allowed General Unsecured Claims or Allowed Trade Unsecured Claims (as such terms are defined in the Plan of Reorganization) that is made in accordance with Sections IV.E, IV.F and V.I of the Plan of Reorganization in an aggregate amount not to exceed $24,500,000 .

Subordinated Debt : Indebtedness incurred by an Obligor that is expressly subordinate and junior in right of payment to Full Payment of all Obligations, and is on terms (including maturity, interest, fees, repayment, covenants and subordination) reasonably satisfactory to Agent.

Subsidiary : with respect to any Person (herein referred to as the “ parent ”), any corporation, partnership, limited liability company, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, owned, controlled or held; or (b) that is, at the time any determination is made, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of Borrower or of an Obligor, as the context may require.

Subsidiary Guarantors : each Subsidiary of Borrower listed on Schedule 1.1(d) and each other Subsidiary of Borrower that shall be required to execute and deliver or become party to a Guaranty pursuant to Section  10.1.14 .

Taxes : all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

TCW Indemnitees : TCW and its officers, directors, employees, Affiliates, agents and attorneys.

 

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TCW : TCW Asset Management Company LLC and its officers, directors, employees, Affiliates, agents and attorneys.

Term A Loan : shall have the meaning set forth in Clause (a) of Section  2.1.1 hereof.

Term A Loan Commitment Percentage : as to any Lender, (i) on the Closing Date, the percentage set forth opposite such Lender’s name on Schedule 1.1(a) hereto under the column “Term A Loan Commitment Percentage” (if such Lender’s name is not so set forth thereon, then, on the Closing Date, such percentage for such Lender shall be deemed to be zero) and (ii) on any date following the Closing Date, the percentage equal to the principal amount of the Term A Loan held by such Lender on such date divided by the aggregate principal amount of Term A Loan on such date.

Term Loan : shall have the meaning set forth in Clause (b) of Section  2.1.1 hereof.

Term Loan Commitment Percentage : as to any Lender, the percentage equal to the principal amount of the Term Loan held by such Lender on such date divided by the aggregate principal amount of Term Loan on such date.

Term Priority Collateral : shall have the meaning given to such term in the Intercreditor Agreement.

Term Priority Collateral Account : the “Term Priority Collateral Account” as defined in the Intercreditor Agreement.

Transactions : collectively, (a) the execution, delivery and performance by Obligors of this Agreement and the other Loan Documents to which they are a party, the borrowing of Loans and the use of the proceeds thereof and (b) the consummation of the Revolving Loan Facility Amendment, in each case on or before the Closing Date.

Transferee : any actual or potential Eligible Assignee, Participant or other Person acquiring an interest in any Obligations.

Transferring Subsidiary : as defined in Section  10.2.9 .

UCC : the Uniform Commercial Code as in effect in the State of New York or, when the laws of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform Commercial Code of such jurisdiction.

Unfunded Pension Liability : the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to the Code, ERISA or the Pension Protection Act of 2006 for the applicable plan year.

Unrestricted Cash : cash or Cash Equivalents of Borrower or any Subsidiaries that would not appear as “restricted” on a consolidated balance sheet of Borrower or any Subsidiaries and are not subject to Liens other than Liens arising by operation of law and Liens securing the Obligations and the Revolving Loan Obligations, not to exceed $5,000,000; provided that Unrestricted Cash shall be deemed to be $0 unless, for the thirty (30) days preceding and the thirty (30) days following any date of determination, there have not been, and there will not be, any borrowings of Revolving Loans and Borrower has had such cash or Cash Equivalents for the preceding 30-day period.

 

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Upstream Payment :

(a) any Subsidiary of Borrower may declare and pay dividends or make other distributions to Borrower or any other Obligor and any Subsidiary of Borrower that is not an Obligor may declare and pay dividends or make other distributions to any other Subsidiary of Borrower that is not an Obligor;

(b) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Borrower may repurchase its Equity Interests owned by directors or employees of Borrower or any Subsidiary or make payments to directors or employees of Borrower or any Subsidiary upon termination of employment or position as a director in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such directors or employees in an aggregate amount not to exceed $2,000,000 in any Fiscal Year;

(c) so long as both immediately before and immediately after giving effect thereto the Payment Conditions are satisfied, any other Distribution to the extent financed with proceeds from Delayed Draw Term Loans; and

(d) commencing with the Fiscal Year ending December 29, 2018, on any date following the date on which Agent has received a prepayment pursuant to Section  2.3.4 hereof arising from Excess Cash Flow for the immediately preceding Fiscal Year, any other Distribution so long as both immediately before and immediately after giving effect thereto (i) the Payment Conditions are satisfied and (ii) the amount of all such Distributions in any Fiscal Year does not exceed 50% of Excess Cash Flow for the immediately preceding Fiscal Year.

U.S. Person : any Person (a) (i) that is not disregarded as separate from its owner for U.S. federal income tax purposes and (ii) that is a “United States Person” as defined in Section 7701(a)(30) of the Code; or (b) (i) that is disregarded as separate from its owner for U.S. federal income tax purposes and (ii) whose regarded owner for U.S. federal income tax purposes is a “United States Person” as defined in Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate : as defined in Section 5.2.2(b)(iii) .

Wholly-Owned Subsidiary : as to any Person, any other Person all of the Equity Interest of which (other than directors’ qualifying shares required by law) is owned by such Person directly and/or through other Wholly-Owned Subsidiaries.

Write-Down and Conversion Powers : the write-down and conversion powers of the applicable EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which powers are described in the EU Bail-In Legislation Schedule.

 

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1.2 Accounting Terms . Under the Loan Documents (except as otherwise specified therein), all accounting terms shall be interpreted, all accounting determinations shall be made, and all financial statements shall be prepared, in accordance with GAAP applied on a basis consistent with the most recent audited financial statements of Borrower delivered to Agent before the Closing Date and using the same inventory valuation method as used in such financial statements, except for any change required or permitted by GAAP if Borrower’s certified public accountants concur in such change, the change is disclosed to Agent, and all relevant provisions of the Loan Documents are amended in a manner satisfactory to Required Lenders to take into account the effects of the change.

1.3 Uniform Commercial Code . As used herein, the following terms are defined in accordance with the UCC in effect in the State of New York from time to time: “Account,” “Account Debtor,” “Chattel Paper,” “Commercial Tort Claim,” “Deposit Account,” “Document,” “Equipment,” “General Intangibles,” “Goods,” “Instrument,” “Inventory,” “Investment Property,” “Letter-of-Credit Right,” “Securities Account” and “Supporting Obligation.”

1.4 Certain Matters of Construction . The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) unless otherwise specified herein as referring to a document, instrument or agreement as in effect on the Closing Date, any document, instrument or agreement includes any amendments, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include successors and assigns; (f) unless otherwise indicated, time of day mean time of day at Agent’s notice address under Section  14.3.1 ; or (g) discretion of Agent or any Lender shall mean the sole and absolute discretion of such Person. All references to Loans, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. All terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of Borrower or any Subsidiary at “fair value”, as defined therein, (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times

 

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be valued at the full stated principal amount thereof, and (iii) without giving effect to Accounting Standards Update No. 2016-02 issued by the Financial Accounting Standards Board. Borrower shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Agent or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter.

SECTION 2. LOANS, PAYMENTS

2.1 Term Loan .

2.1.1 Term Loan Amounts .

(a) On the terms and subject to the conditions set forth herein, the Lenders hereby agree to make to Borrower on the Closing Date a term loan in an original principal amount equal to $110,000,000 (the “ Term A Loan ”). Each Lender’s obligation to fund the Term A Loan shall be limited to such Lender’s Term Loan Commitment Percentage of the Term A Loan, and no Lender shall have any obligation to fund any portion of the Term A Loan required to be funded by any other Lender, but not so funded, and no Lender shall be relieved of its obligation to fund the Term A Loan because another Lender has failed to fund. Borrower shall not have any right to reborrow any portion of the Term A Loan which is repaid or prepaid from time to time. The Commitments of the Lenders to make the Term A Loan shall expire concurrently with the making of the Term A Loan on the Closing Date.

(b) On the terms and subject to the conditions set forth herein, at the election of, and on Business Days during the Delayed Draw Term Loan Commitment Period identified by, Borrower (such date, a “ Delayed Draw Term Loan Draw Date ”), so long as, in each case, each of the Delayed Draw Funding Conditions shall have been satisfied, the Lenders hereby agree to make to Borrower on each Delayed Draw Term Loan Draw Date a delayed draw term loan up to an aggregate original principal amount for all Delayed Draw Term Loans equal to the Delayed Draw Term Loan Amount at such time (a “Delayed Draw Term Loan ”; and, when funded, together with the Term A Loan, the “ Term Loan ”). Each Lender’s obligation to fund a Delayed Draw Term Loan shall be limited to such Lender’s Delayed Draw Term Loan Commitment Percentage of such Delayed Draw Term Loan, and no Lender shall have any obligation to fund any portion of any Delayed Draw Term Loan required to be funded by any other Lender, but not so funded, and no Lender shall be relieved of its obligation to fund any Delayed Draw Term Loan because another Lender has failed to fund. When funded, each Delayed Draw Term Loan shall become part of, and have all of the terms and conditions applicable to (including without limitation in respect of pricing, repayments and maturity), the Term Loan for all purposes hereunder and under the other Loan Documents and shall be secured by the Collateral in all respects. Each Delayed Draw Term Loan shall be in a minimum principal amount of $5,000,000 (unless otherwise agreed by Agent in its discretion) and in integral multiples of $1,000,000 in excess of that amount. Borrower shall not have any right to reborrow any portion of the Delayed Draw Term Loan which is repaid or prepaid from time to time. On

 

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each Delayed Draw Term Loan Draw Date, the Commitments of the Lenders to make Delayed Draw Term Loans shall be permanently reduced on a dollar-for-dollar basis in an amount equal to the Delayed Draw Term Loan made on such Delayed Draw Term Loan Draw Date, and the Delayed Draw Term Loan Commitments of all Lenders shall expire on the Delayed Draw Term Loan Commitment Termination Date.

(c) Borrower shall deliver to Agent a Notice of Borrowing, not later than 10:00 a.m. (Chicago time) at least one Business Day prior to the Closing Date or a Delayed Draw Term Loan Draw Date, as applicable. Such Notice of Borrowing shall be irrevocable and shall specify (x) the principal amount of the proposed Loan, (y) whether the proposed Loan is requested to be a Prime Rate Loan or a LIBOR Rate Loan and, in the case of a LIBOR Rate Loan, the initial Interest Period with respect thereto, and (z) wire instructions for the account to which funds to Borrower should be deposited. Agent and the Lenders may act without liability upon the basis of written notice believed by Agent in good faith to be from Borrower. Borrower hereby waives the right to dispute Agent’s record of the terms of any such Notice of Borrowing absent manifest error. Agent and each Lender shall be entitled to rely conclusively on Borrower’s authority to request a Loan until Agent receives written notice to the contrary. Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing.

(d) The Loans under this Agreement shall be made by the Lenders, to the account specified by Agent, no later than 3:00 p.m. (Chicago time) on the borrowing date of the proposed Loan, simultaneously and proportionately to their Commitment, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender’s obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender’s obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender. Promptly upon receipt of all funds requested in the Notice of Borrowing, Agent will make the proceeds of such Loans available to Borrower by causing an amount, in immediately available funds, equal to the proceeds of the Loans received by Agent to the account provided by the Borrowing Agent in the Notice of Borrowing for such purpose.

(e) Agent is hereby authorized by the Obligors and Lenders, at any time in Agent’s sole discretion, regardless of (i) the existence of a Default or an Event of Default, (ii) whether any of the other applicable conditions precedent have not been satisfied or the Commitments have been terminated for any reason, or (iii) any other contrary provision of this Agreement, to make the Loans to Borrower on behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations, or (c) to pay any other amount chargeable to the Obligors pursuant to the terms of this Agreement (the “ Protective Advances ”). Lenders holding the Loans shall be obligated to fund such Protective Advances and effect a settlement with Agent therefor upon demand of Agent in accordance with their respective pro rata share of the outstanding Loans. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this clause (e) of Section  2.1.1 , any such Protective Advances funded by Agent shall be deemed to be the Loans made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding the Loans.

 

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2.1.2 Scheduled Term Loan Payments . The principal amount of the Term Loan shall be paid in installments (all such installment payments, collectively, the “ Scheduled Term Loan Installment Payments ”) on the dates shown below in an amount equal to the product of (i) the percentage set forth in Column B below shown opposite each date as set forth in Column A below times (ii) the sum of (x) the original principal amount of the Term A Loan plus (y) commencing the last Business Day of the first full calendar quarter after the first Delayed Draw Term Loan Draw Date, the original principal amount of the Delayed Draw Term Loans as of such date, as adjusted in accordance with Section  2.3.5 hereof:

 

Column A

   Column B

Date of Payment

   Percentage of Original Principal
Amount of Term Loan to be Paid

June 30, 2017

   0.625%

September 30, 2017

   0.625%

December 31, 2017

   0.625%

March 31, 2018

   0.625%

June 30, 2018

   0.625%

September 30, 2018

   0.625%

December 31, 2018

   0.625%

March 31, 2019

   0.625%

June 30, 2019

   1.250%

September 30, 2019

   1.250%

December 31, 2019

   1.250%

March 31, 2020

   1.250%

June 30, 2020

   1.250%

September 30, 2020

   1.250%

December 31, 2020

   1.250%

March 31, 2021

   1.250%

June 30, 2021

   1.250%

September 30, 2021

   1.250%

December 31, 2021

   1.250%

March 31, 2022

   1.250%

Maturity Date

   The
remaining principal balance

of the Term Loan

Notwithstanding the foregoing, the outstanding principal amount of the Term Loan, together with all accrued and unpaid interest thereon and all other Obligations accrued and unpaid, shall be due and payable on the Maturity Date. Notwithstanding the foregoing, the Loans shall be subject to earlier repayment upon (x) acceleration upon the occurrence of an Event of Default under this Agreement or (y) termination of this Agreement.

 

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2.1.3 Optional Prepayments . Borrower may from time to time, subject to the Fee Letter, by 11:00 a.m. (Chicago time) with at least one (1) Business Day’s written notice to Agent specifying the date and amount of such prepayment, prepay the Term Loan in whole or in part; provided, that any such partial prepayment shall be in an amount equal to $500,000 or a higher integral multiple of $100,000; provided, further that any notice of optional prepayment pursuant to this clause (c) that is based on the consummation of a Change of Control or a payment in full of the Obligations in connection with another transaction may be conditioned on the closing of such other transaction. All such prepayments shall be applied in accordance with Section  2.3.5 hereof.

2.1.4 Optional Delayed Draw Term Loan Commitment Reductions . Borrower may from time to time by 11:00 a.m. (Chicago time) with at least one (1) Business Day’s written notice to Agent specifying the date and amount of such reduction, reduce the Delayed Draw Term Loan Amount in whole or in part upon ten (10) days prior written notice to the Agent; provided, that any such partial reduction shall be in an amount equal to $5,000,000 or a higher integral multiple of $1,000,000. Upon each reduction of the Delayed Draw Term Loan Amount in accordance with this Section 2.1.4, the Delayed Draw Term Loan Commitment for each Lender shall automatically and concurrently be reduced by the same amount of such Delayed Draw Term Loan Amount reduction on a pro rata basis in accordance with each such Lender’s Delayed Draw Term Loan Commitment Percentage.

2.2 General Provisions Regarding Payment; Register .

2.2.1 All payments to be made by Borrower under any Loan Document, including payments of principal and interest and all fees, expenses, indemnities and reimbursements, shall be made without set off or counterclaim, in lawful money of the United States of America and in immediately available funds. If any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. Borrower shall make all payments in immediately available funds to the Payment Account before 1:00 p.m. (Chicago time) on the date when due; provided that all payments received by Agent after 1:00 p.m. (Chicago time) on any Business Day may (in Agent’s discretion) be credited as if received on the next succeeding Business Day. Any optional or mandatory prepayment of the Term Loan shall be accompanied by timely delivery to Agent of an appropriately completed Payment Notification, as provided in Section  2.3.5 hereof. In the absence of receipt by Agent of an appropriately completed Payment Notification on or prior to such prepayment, Borrower and each Lender hereby fully authorizes and directs Agent, notwithstanding any contrary application provisions contained herein, to apply payments and/or prepayments received from Borrower against the outstanding Term Loan in accordance with the provisions of Section  2.3.5 hereof; provided , that if Agent at any time determines that payments received by Agent were in respect of a mandatory prepayment event, Agent shall apply such payments in accordance with the provisions of Section  2.3.5 hereof, and shall be fully authorized by Borrower and each Lender to make any corresponding Register reversals in respect thereof. Notwithstanding anything to the contrary contained herein, any Payment Notification may state that such Payment Notification is conditioned upon the effectiveness of a payment in full of the Obligations or the consummation of a Change in Control in connection with another transaction and may be conditioned on the closing of such other transaction.

 

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2.2.2 Agent, acting as a non-fiduciary agent of the Obligors, shall maintain at its address a copy of each Assignment and Acceptance delivered to it and a register (the “ Register ”) for the recordation of the names and addresses of each Lender and the outstanding principal, accrued and unpaid interest and other fees due hereunder. The entries in the Register shall be conclusive, in the absence of manifest error, and each Obligor, Agent and Lenders may treat each Person whose name is recorded in the Register as the owner of the Loans recorded therein for the purposes of this Agreement. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.

2.3 Mandatory Prepayments ; Voluntary Commitment Reductions and Prepayments .

2.3.1 Subject to Sections 10.2.6 and 10.2.9 hereof, the provisions of the Intercreditor Agreement and the Fee Letter, upon the receipt by any Obligor of Net Proceeds of any Asset Disposition consisting of Term Priority Collateral (excluding Net Proceeds from Asset Dispositions which qualify as Permitted Asset Dispositions under clauses (a), (b), (c), (d), (e), (f), (g), (j), (k), (l), (m), (n), (o) or (s) of the definition of Permitted Asset Dispositions), Borrower shall prepay the Loans in an amount equal to the Net Proceeds of such Asset Disposition promptly, but in no event more than three (3) Business Days following the receipt thereof, and until the date of payment, such proceeds shall be held in trust for Agent. Notwithstanding the foregoing, (A) so long as no Default or Event of Default has occurred and is continuing, on the date any Obligor or any of its Subsidiaries receives Net Proceeds of any such Asset Disposition, such Net Proceeds may, at the option of Borrower, be applied to invest in property or assets used or useful in the business of any Obligor, provided that (x) Agent has a Lien on such property or assets, (y) Borrower delivers to Agent within ten (10) days after the date of receipt of such Net Proceeds a certificate stating that such Net Proceeds shall be used to acquire property or assets used or useful in the business of any Obligor within one hundred eighty (180) days after the date of receipt of such Net Proceeds (which certificate shall set forth an estimate of the Net Proceeds to be so expended), and (B) pending any such reinvestment or payment of expenses described in clause (A) above, such Net Proceeds shall be deposited in an account pledged solely to Agent. Such prepayments shall be applied to the Loans in accordance with Section  2.3.5 hereof. The foregoing shall not be deemed to be implied consent to any Asset Disposition otherwise prohibited by the terms and conditions hereof.

2.3.2 Subject to the provisions of the Intercreditor Agreement and the Fee Letter, upon the receipt by any Obligor of any Extraordinary Receipts which constitute Term Priority Collateral in an aggregate amount equal to or in excess of $500,000 in any Fiscal Year, Borrower shall prepay the Loans in an amount equal to the amount of such Extraordinary Receipts promptly, but in no event more than one (1) Business Day following the receipt thereof, and until the date of payment, such proceeds shall be held in trust for Agent. Such prepayments shall be applied to the Loans in the manner described in Section  2.3.5 hereof. Notwithstanding the foregoing, (A) so long as no Default or Event of Default has occurred and is continuing, on the date any Obligor or any of its Subsidiaries receives Extraordinary Receipts which constitute Term Priority Collateral consisting of insurance proceeds from one or more policies covering, or proceeds from any judgment, settlement, condemnation or other cause of action in respect of, the loss, damage, taking or theft of any property or assets, such Extraordinary Receipts may, at the

 

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option of Borrower, be applied to repair, refurbish or replace such property or assets or acquire replacement property or assets for the property or assets so lost, damaged or stolen or other property or assets used or useful in the business of any Obligor for the property or assets so disposed, provided that (x) Agent has a Lien on such replacement (or repaired or restored) property or assets, (y) Borrower delivers to Agent within ten (10) days after the date of receipt of such Extraordinary Receipts a certificate stating that such Extraordinary Receipts shall be used to repair or refurbish such property or assets or to acquire such replacement property or assets for the property or assets so lost, damaged or stolen or such other property or assets used or useful in the business of any Obligor within one hundred eighty (180) days after the date of receipt of such Extraordinary Receipts (which certificate shall set forth an estimate of the Extraordinary Receipts to be so expended), and (B) pending any such reinvestment or payment of expenses described in clause (A) above, such Extraordinary Receipts shall be deposited in an account pledged solely to Agent.

2.3.3 Subject to Section  10.2.1 hereof, the provisions of the Intercreditor Agreement and the Fee Letter, upon the receipt by any Obligor of the Net Proceeds from the issuance or sale of any Indebtedness or any Equity Interests (other than (i) Permitted Indebtedness, (ii) Net Proceeds from the issuance of Equity Interests (other than Disqualified Stock) to directors or employees of any Obligor, (iii) Net Proceeds of the issuance of Equity Interests to any Obligor, and (iv) Net Proceeds from the issuance of Equity Interests in order to finance Capital Expenditures and Permitted Acquisitions which are actually consummated within 180 days of the receipt of such Net Proceeds), Borrower shall prepay the Loans in an amount equal to 100% of such Net Proceeds promptly, but in no event more than one (1) Business Day following the receipt thereof, and until the date of payment, such proceeds shall be held in trust for Agent. Such prepayments shall be applied to the Loans in accordance with Section  2.3.5 hereof. The foregoing shall not be deemed to be implied consent to any issuance or sale of any Indebtedness or any Equity Interests otherwise prohibited by the terms and conditions hereof.

2.3.4 Subject to the provisions of the Intercreditor Agreement and the Fee Letter, on or before the fifth (5th) Business Day following the date on which audited financial statements are required to be delivered pursuant to clause (a) of Section  10.1.2 hereof (the “ Excess Cash Flow Due Date ”), beginning with respect to the Fiscal Year ending December 30, 2017 and for each Fiscal year thereafter, Borrower shall prepay the Loans in an amount equal to an amount equal to 50% of Excess Cash Flow for such Fiscal Year minus voluntary prepayments of the Term Loans to the extent made during the applicable Fiscal Year of measurement (such amount not to be less than zero); provided, that in the case of the Fiscal Year ended December 30, 2017, Borrower shall only be obligated to prepay the Loans in an amount equal to 50% of the Excess Cash Flow as calculated for the full 2017 Fiscal Year and prorated for the period commencing with the Closing Date and ending on December 30, 2017; provided further that, in the event Borrower is unable to make any mandatory prepayment described in this Section 2.3.4 on any Excess Cash Flow Due Date due the failure to satisfy the conditions in Section 10.2.8(b) of the Revolving Loan Agreement (as in effect on the date hereof) on such date, then Borrower shall not be obligated to make such prepayment until, and shall make such prepayment on, the first date thereafter on which, before and after giving pro forma effect to such prepayment, Specified Availability (as defined in the Revolving Loan Agreement on the date hereof) is greater than or equal to 15% of the Revolving Loan Commitments at such time. Such prepayments shall be applied to the Loans in accordance with Section  2.3.5 hereof.

 

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2.3.5 Any prepayment of a LIBOR Rate Loan on a day other than the last day of an Interest Period therefor shall include interest on the principal amount being repaid and shall be subject to Section  3.2.4 hereof. All prepayments of the Loans shall be applied first to that portion of the Loans comprised of Prime Rate Loans and then to that portion of the Loans comprised of LIBOR Rate Loans, in direct order of Interest Period maturities. Subject to the provisions of the Intercreditor Agreement and the Fee Letter, all prepayments under Section  2.1.3 hereof and this Section  2.3 shall be applied to the remaining installments of principal of the Term Loan in the inverse order of maturity (for the avoidance of doubt, any amount that is due and payable on the Maturity Date shall constitute an installment).

2.3.6 Borrowing Agent shall deliver to Agent an appropriately completed Payment Notification by 10:00 a.m. (Chicago time) at least one Business Day prior to the date of payment of each mandatory prepayment pursuant to this Section  2.3 and each optional prepayment pursuant to Section 2.1(c) and Agent shall promptly notify each Lender of such notice.

2.4 Allocation of Payments After Event of Default . Notwithstanding any other provisions of this Agreement to the contrary, after the occurrence and during the continuance of an Event of Default, all amounts collected or received by Agent on account of the Obligations, or in respect of the Collateral may, at Agent’s discretion, and shall, at the direction of the Required Lenders, be paid over or delivered as follows:

FIRST, to the payment of all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) of Agent in connection with enforcing its rights and the rights of Lenders under this Agreement and the Loan Documents, and any Protective Advances funded by Agent with respect to the Collateral under or pursuant to the terms of this Agreement;

SECOND, to payment of any fees owed to Agent;

THIRD, to the payment of all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) of each of the Lenders to the extent owing to such Lender pursuant to the terms of this Agreement;

FOURTH, to the payment of all Obligations arising under this Agreement and the Loan Documents consisting of accrued fees and interest;

FIFTH, to the payment of the outstanding principal amount of the Obligations;

SIXTH, to all other Obligations arising under this Agreement, under the Loan Documents or otherwise which shall have become due and payable and not repaid pursuant to clauses “FIRST” through “FIFTH” above; and

SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus.

 

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In carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category; and (ii) each of the Lenders shall receive an amount equal to its pro rata share (based on the proportion that then outstanding Loans held by such Lender bears to the aggregate then outstanding Loans) of amounts available to be applied pursuant to clauses “FOURTH”, “FIFTH”, “SIXTH” and “SEVENTH” above.

2.5 Use of Proceeds .

2.5.1 Borrower shall apply the proceeds of (i) the Term A Loan to (x) repay in full the Indebtedness owing to Existing Agent and Existing Lenders under the Existing Loan Documents, (y) pay fees and expenses relating to the Transactions, and (z) provide for its working capital needs and other general corporate purposes, and (ii) the Delayed Draw Term Loans to finance (x) Permitted Acquisitions, (y) Upstream Payments, and (z) prepayments of Indebtedness, in each case, solely to the extent permitted pursuant to the terms and conditions hereof.

2.5.2 Without limiting the generality of Section  2.4.1 above, neither the Obligors nor any other Person which may in the future become party to this Agreement or the Loan Documents as an Obligor, intends to use nor shall they use any portion of the proceeds of the Term Loan, directly or indirectly, for any purpose in violation in any material respect of Applicable Law.

SECTION 3. INTEREST AND FEES.

3.1 Interest .

3.1.1 From and following the Closing Date, depending upon Borrower’s election from time to time, subject to the terms hereof, to have portions of the Loans accrue interest determined by reference to the Prime Rate or the LIBOR Rate, the Loans and the other Obligations shall bear interest at the applicable rates set forth below:

(a) If a Prime Rate Loan, or any other Obligation other than a LIBOR Rate Loan, then at the sum of the Prime Rate plus the Applicable Margin for Prime Rate Loans.

(b) If a LIBOR Rate Loan, then at the sum of the LIBOR Rate plus the Applicable Margin for LIBOR Rate Loans.

3.1.2 All interest and fees under this Agreement and each Loan Document shall be calculated on the basis of a 360-day year for the actual number of days elapsed. The date of funding of a Prime Rate Loan and the first day of an Interest Period with respect to a LIBOR Rate Loan shall be included in the calculation of interest. The date of payment of a Prime Rate Loan and the last day of an Interest Period with respect to a LIBOR Rate Loan shall be excluded from the calculation of interest. If a Loan is repaid on the same day that it is made, one (1) days’ interest shall be charged. Interest on all Prime Rate Loans is payable in arrears on the last Business Day of each calendar quarter and on the maturity of such Loans, whether by acceleration or otherwise. Interest on LIBOR Rate Loans shall be payable on the last day of the applicable Interest Period, unless the Interest Period is greater than three (3) months, in which case interest will be payable on the last day of each three (3) month interval. In addition, interest on LIBOR Rate Loans is due on the maturity of such Loans, whether by acceleration or otherwise.

 

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3.1.3 At the election of Agent or Required Lenders, after the occurrence of an Event of Default and for so long as it continues, the Loans and other Obligations shall bear interest at the Default Rate. Furthermore, at the election of Agent or Required Lenders during any period in which any Event of Default is continuing (x) as the Interest Periods for LIBOR Rate Loans then in effect expire, such Loans shall be converted into Prime Rate Loans and (y) the LIBOR election will not be available to Borrower

3.2 LIBOR Provisions .

3.2.1 Subject to the provisions of Section  3.1.3 hereof, Borrower may request that the Term Loan be made as LIBOR Rate Loans, that outstanding portions of the Term Loan be converted to LIBOR Rate Loans and that all or any portion of a LIBOR Rate Loan be continued as a LIBOR Rate Loan upon expiration of the applicable Interest Period. Any such request will be made by submitting a Notice of Borrowing to Agent. Upon the expiration of an Interest Period, in the absence of a new Notice of Borrowing submitted to Agent not less than by 11:00 a.m. (Chicago time) three (3) Business Days prior to the end of such Interest Period, the LIBOR Rate Loan then maturing shall be automatically converted to a LIBOR Rate Loan with a one month Interest Period. There may be no more than six (6) LIBOR Rate Loans outstanding at any one time. The Loans which are not requested as LIBOR Rate Loans in accordance with this Section  3.2.1 shall be Prime Rate Loans. Agent will promptly notify Lenders, by written notice, of each Notice of Borrowing received by Agent prior to the first day of the Interest Period of the LIBOR Rate Loan requested thereby.

3.2.2 In the event, prior to commencement of any Interest Period relating to a LIBOR Rate Loan, Agent shall determine in good faith or be notified in good faith and in writing by Required Lenders that adequate and reasonable methods do not exist for ascertaining LIBOR, Agent shall promptly provide notice of such determination to Borrower and Lenders (which shall be conclusive and binding on Borrower and Lenders). In such event (a) any request for a LIBOR Rate Loan or for a conversion to or continuation of a LIBOR Rate Loan shall be automatically withdrawn and shall be deemed a request for a Prime Rate Loan, (b) each LIBOR Rate Loan will automatically, on the last day of the then current Interest Period relating thereto, become a Prime Rate Loan, and (c) the obligations of Lenders to make LIBOR Rate Loans shall be suspended until Agent or Required Lenders determine that the circumstances giving rise to such suspension no longer exist, in which event Agent shall so notify Borrower and Lenders.

3.2.3 Notwithstanding any other provisions hereof, if any law, rule, regulation, treaty or directive or interpretation or application thereof shall make it unlawful for any Lender to make, fund or maintain LIBOR Rate Loans, such Lender shall promptly give notice of such circumstances to Agent, Borrower and the other Lenders. In such an event, (a) the commitment of such Lender to make LIBOR Rate Loans or convert Prime Rate Loans to LIBOR Rate Loans shall be immediately suspended and (b) such Lender’s outstanding LIBOR Rate Loans shall be converted automatically to Prime Rate Loans on the last day of the Interest Period thereof or at such earlier time as may be required by law.

 

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3.2.4 Upon (i) any failure of Borrower in making any borrowing of, conversion into or continuation of any LIBOR Rate Loan following Borrower’s delivery to Agent of any applicable Notice of Borrowing (in each case other than any such failure that arises as a result of a Lender failing to fund such LIBOR Rate Loan or as a result of a notice delivered pursuant to Section  3.7 hereof) or (ii) any payment of a LIBOR Rate Loan on any day that is not the last day of the Interest Period applicable thereto (regardless of the source of such prepayment and whether voluntary, by acceleration or otherwise), Borrower shall pay Agent, for the benefit of all Lenders that funded or were prepared and required to fund any such LIBOR Rate Loan, an amount equal to the amount of any losses, expenses and liabilities (including, without limitation, any loss (including interest paid) in connection with the re-employment of such funds but excluding any loss of interest rate margin that would have been earned on the repaid amounts) that any Lender may sustain as a result of such default or such payment. For purposes of calculating amounts payable to a Lender under this paragraph, each Lender shall be deemed to have actually funded its relevant LIBOR Rate Loan through the purchase of a deposit bearing interest at LIBOR in an amount equal to the amount of that LIBOR Rate Loan and having a maturity and repricing characteristics comparable to the relevant Interest Period; provided , however , that each Lender may fund each of its LIBOR Rate Loans in any manner it sees fit, and the foregoing assumption shall be utilized only for the calculation of amounts payable under this subsection.

3.3 Non-Use Fee . Borrower shall pay to Agent, for the account of each Lender (other than a Defaulting Lender) with a Delayed Draw Term Loan Commitment, a non-use fee, for the period from the Closing Date to the Delayed Draw Term Loan Commitment Termination Date, in an amount equal to a rate per annum of 1.00% of such Lender’s Delayed Draw Term Loan Commitment Percentage of the remaining Delayed Draw Term Loan Commitment of all Lenders as of such date. Such non-use fee shall be payable in arrears on the last Business Day of each calendar quarter and on the Maturity Date for any period then ending for which such non-use fee shall not have previously been paid. The non-use fee shall be computed for the actual number of days elapsed on the basis of a year of three hundred sixty (360) days.

3.4 Fee Letter . Borrower shall pay the amounts required to be paid in the Fee Letter in the manner and at the times required by the Fee Letter.

3.5 Maximum Charges . In no event whatsoever shall interest and other charges charged hereunder exceed the highest rate permissible under Applicable Law. In the event interest and other charges as computed hereunder would otherwise exceed the highest rate permitted under Applicable Law: (i) the interest rates hereunder will be reduced to the maximum rate permitted under Applicable Law; (ii) such excess amount shall be first applied to any unpaid principal balance owed by Borrower; and (iii) if then remaining excess amount is greater than the previously unpaid principal balance, Lenders shall promptly refund such excess amount to Borrower and the provisions hereof shall be deemed amended to provide for such permissible rate.

3.6 Increased Costs . In the event that any Change in Law or compliance by any Lender (for purposes of this Section  3.6 , the term “Lender” shall include Agent, any Lender and any corporation or bank controlling Agent or any Lender and the office or branch where Agent or any Lender makes or maintains any LIBOR Rate Loans) with any request or directive (whether or not having the force of law) from any central bank or other financial, monetary or other authority, shall:

 

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(a) Subject Agent or any Lender to any tax of any kind whatsoever with respect to this Agreement or any LIBOR Rate Loan, or change the basis of taxation of payments to Agent or such Lender in respect thereof (except for Indemnified Taxes or Other Taxes and the imposition of, or any change in the rate of, any Excluded Taxes payable by Agent or such Lender);

(b) Impose, modify or deem applicable any reserve, special deposit, assessment, compulsory loan, insurance charge or similar requirement against assets held by, or deposits in or for the account of, advances or loans by, or other credit extended by, any office of Agent or any Lender, including pursuant to Regulation D of the Board of Governors of the Federal Reserve System; or

(c) Impose on Agent or any Lender or the London interbank LIBOR market any other condition, loss or expense (other than Taxes) affecting this Agreement or any Loan Document or any Loans made by any Lender;

and the result of any of the foregoing is to increase the cost to Agent or any Lender of making, converting to, continuing, renewing or maintaining its Loans hereunder by an amount that Agent or such Lender deems to be material or to reduce the amount of any payment (whether of principal, interest or otherwise) in respect of any of the Loans by an amount that Agent or such Lender deems to be material, then, in any case Borrower shall promptly pay Agent or such Lender, upon its demand, such additional amount as will compensate Agent or such Lender for such additional cost or such reduction, as the case may be, provided that the foregoing shall not apply to increased costs which are reflected in the LIBOR Rate, as the case may be. Agent or such Lender shall certify the amount of such additional cost or reduced amount to Borrower, and such certification shall be conclusive absent manifest error. Failure or delay on the part of Agent or any Lender to demand compensation pursuant to this Section shall not constitute a waiver of the right of Agent or any Lender to demand such compensation; provided that Borrower shall not be required to compensate Agent or any Lender pursuant to this Section for any reductions in return incurred more than one hundred twenty (120) days prior to the date that Agent or such Lender notifies Borrower of such law, rule, regulation or guideline giving rise to such reductions and of the intention of Agent or such Lender to claim compensation therefor; provided further that if such claim arises by reason of the adoption of or change in any law, rule, regulation or guideline that is retroactive, then the one hundred twenty (120)-day period referred to above shall be extended to include the period of retroactive effect thereof.

3.7 Basis for Determining Interest Rate Inadequate or Unfair . In the event that:

(a) Agent shall have determined that reasonable means do not exist for ascertaining the LIBOR Rate applicable pursuant to Section  3.2 hereof for any Interest Period; or

(b) Agent shall have determined that Dollar deposits in the relevant amount and for the relevant maturity are not available in the London interbank LIBOR market, with respect to an outstanding LIBOR Rate Loan, a proposed LIBOR Rate Loan, or a proposed conversion of a Prime Rate Loan into a LIBOR Rate Loan; or

 

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(c) Agent shall have determined that (or any Lender shall have notified Agent that) the making, maintenance or funding of any LIBOR Rate Loan has been made impracticable or unlawful by compliance by Agent or such Lender in good faith with any Applicable Law or any interpretation or application thereof by any Governmental Authority or with any request or directive of any such Governmental Authority (whether or not having the force of law); or

(d) The Required Lenders shall have notified Agent that the LIBOR Rate will not adequately and fairly reflect the cost to the Lenders of the establishment or maintenance of any LIBOR Rate Loan,

then Agent shall give Borrower prompt written notice of such notice or determination. If such notice is given, (i) any such requested LIBOR Rate Loan shall be made as a Prime Rate Loan, unless Borrower shall notify Agent in writing (including by electronic transmission) no later than 10:00 a.m. (Chicago time) two (2) Business Days prior to the date of such proposed borrowing, that its request for such borrowing shall be cancelled or made as an unaffected type of LIBOR Rate Loan, (ii) any Prime Rate Loan or LIBOR Rate Loan which was to have been converted to an affected type of LIBOR Rate Loan shall be continued as or converted into a Prime Rate Loan, or, if Borrower shall notify Agent, no later than 10:00 a.m. (Chicago time) two (2) Business Days prior to the proposed conversion, shall be maintained as an unaffected type of LIBOR Rate Loan, and (iii) any outstanding affected LIBOR Rate Loans shall be converted into a Prime Rate Loan, or, if Borrower shall notify Agent, no later than 10:00 a.m. (Chicago time) two (2) Business Days prior to the last Business Day of then current Interest Period applicable to such affected LIBOR Rate Loan, shall be converted into an unaffected type of LIBOR Rate Loan, on the last Business Day of then current Interest Period for such affected LIBOR Rate Loans (or sooner, if any Lender cannot continue to lawfully maintain such affected LIBOR Rate Loan). Until such notice has been withdrawn, Lenders shall have no obligation to make an affected type of LIBOR Rate Loan or maintain outstanding affected LIBOR Rate Loans and Borrower shall not have the right to convert a Prime Rate Loan or an unaffected type of LIBOR Rate Loan into an affected type of LIBOR Rate Loan.

3.8 Capital Adequacy .

3.8.1 In the event that Agent or any Lender shall have determined that any Change in Law, any change in any guideline regarding capital adequacy or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Agent or any Lender (for purposes of this Section  3.8 , the term “Lender” shall include Agent or any Lender and any corporation or bank controlling Agent or any Lender and the office or branch where Agent or any Lender (as so defined) makes or maintains any LIBOR Rate Loans) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on Agent’s or any Lender’s capital as a consequence of its obligations hereunder to a level below that which Agent or such Lender could have achieved but for such adoption, change or compliance (taking into consideration Agent’s and such Lender’s policies

 

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with respect to capital adequacy) by an amount deemed by Agent or any Lender to be material, then, from time to time, Borrower shall pay upon demand to Agent or such Lender such additional amount or amounts as will compensate Agent or such Lender for such reduction. In determining such amount or amounts, Agent or such Lender may use any reasonable averaging or attribution methods. The protection of this Section 3.8 shall be available to Agent and each Lender regardless of any possible contention of invalidity or inapplicability with respect to the Applicable Law, rule, regulation, guideline or condition.

3.8.2 A certificate of Agent or such Lender setting forth such amount or amounts as shall be necessary to compensate Agent or such Lender with respect to Section  3.8.1 hereof when delivered to Borrower shall be conclusive absent manifest error. Failure or delay on the part of Agent or any Lender to demand compensation pursuant to this Section shall not constitute a waiver of the right of Agent or any Lender to demand such compensation; provided that Borrower shall not be required to compensate Agent or any Lender pursuant to this Section for any reductions in return incurred more than three hundred sixty (360) days prior to the date that Agent or such Lender notifies Borrower of such law, rule, regulation or guideline giving rise to such reductions and of the intention of Agent or such Lender to claim compensation therefor; provided further that if such claim arises by reason of the adoption of or change in any law, rule, regulation or guideline that is retroactive, then the 360-day period referred to above shall be extended to include the period of retroactive effect thereof.

3.9 Replacement of Lenders . If any Lender (an “ Affected Lender ”) (a) makes demand upon Borrower for (or if Borrower is otherwise required to pay) amounts pursuant to Section  3.6 , Section  3.8 or Section  5 hereof, (b) is unable to make or maintain LIBOR Rate Loans as a result of a condition described in Section  3.2.2 hereof, (c) is a Defaulting Lender, (d) denies any consent requested by Agent pursuant to Section  14.1 hereof, or (e) gives a notice described in Section  3.7(c) hereof, Borrower may, by notice in writing to Agent and such Affected Lender (i) request the Affected Lender to cooperate with Borrower in obtaining a replacement Lender satisfactory to Agent and Borrower (the “ Replacement Lender ”); (ii) request the non-Affected Lenders to acquire and assume all of the Affected Lender’s Loans and its Delayed Draw Term Loan Commitment as provided herein, but none of such Lenders shall be under any obligation to do so; or (iii) propose a Replacement Lender subject to approval by Agent in its good faith business judgment. If any satisfactory Replacement Lender shall be obtained, and/or if any one or more of the non-Affected Lenders shall agree to acquire and assume all of the Affected Lender’s Loans and its Delayed Draw Term Loan Commitment, then such Affected Lender shall assign, in accordance with Section  13.3 hereof, all of its Loans and its Delayed Draw Term Loan Commitment and other rights and obligations under this Agreement and the Loan Documents to such Replacement Lender or non-Affected Lenders, as the case may be, in exchange for payment of the principal amount so assigned and all interest and fees accrued on the amount so assigned, plus all other Obligations then due and payable to the Affected Lender.

3.10 Designation of a Different Lending Office . If any Lender requests compensation under Sections 3.6 or 3.8 hereof, or requires Borrower to pay any Indemnified Taxes, Other Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section  5 hereof, then such Lender shall (at the request of Borrower) use reasonable efforts to designate a different lending office for funding or booking its

 

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Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (a) would eliminate or reduce amounts payable pursuant to Sections 3.6 , Section  3.8 , or Section  5 hereof, as the case may be, in the future, and (b) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrower hereby agrees to pay all reasonable and documented costs and expenses incurred by any Lender in connection with any such designation or assignment.

3.11 Reimbursement Obligations . Borrower shall pay all Extraordinary Expenses promptly upon request. Borrower shall also reimburse Agent for all costs of field exams and quality of earnings reports that Agent is entitled to conduct or perform pursuant to Section  10.1.1 (including internally allocated costs thereof) and shall reimburse Agent for all reasonable and documented, out-of-pocket costs and expenses (including all legal, accounting, third party service provider, consulting and other fees and expenses) incurred by it in connection with (a) negotiation and preparation of the Proposal Letter and any Loan Documents, including any amendment or other modification thereof; (b) administration of and actions relating to any Collateral, Loan Documents and transactions contemplated thereby, including any actions taken to perfect or maintain priority of Agent’s Liens on any Collateral, to maintain any insurance required hereunder or to verify Collateral; and (c) subject to the limits of Section  10.1.1 , any examination, quality of earnings report, each inspection, audit or appraisal with respect to any Obligor or Collateral, whether prepared by Agent’s personnel or a third party; provided that Borrower’s obligation to reimburse legal fees pursuant to this sentence shall be limited to fees, charges and disbursements of one counsel for Agent and Lenders (which shall be selected by Agent) and to the extent necessary, one special or local counsel in each appropriate jurisdiction (absent a conflict of interest, in which case the Lenders may engage and be reimbursed for additional counsel). All legal, accounting and consulting fees shall be charged to Borrower by Agent’s professionals at their full hourly rates, regardless of any alternative fee arrangements that Agent, any Lender or any of their Affiliates may have with such professionals that otherwise might apply to this or any other transaction. Borrower acknowledges that counsel may provide Agent with a benefit (such as a discount, credit or accommodation for other matters) based on counsel’s overall relationship with Agent, including fees paid hereunder. All amounts payable by Borrower under this Section  3.11 shall be due on demand.

SECTION 4. [INTENTIONALLY OMITTED].

SECTION 5. TAXES.

5.1 Payments Free of Taxes; Obligation to Withhold; Tax Payment .

(a) All payments of Obligations by Obligors shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If Applicable Law (as determined by Agent in its discretion) requires the deduction or withholding of any Tax from any such payment by Agent or an Obligor, then Agent or such Obligor shall be entitled to make such deduction or withholding based on information and documentation provided pursuant to Section  5.2 .

 

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(b) If Agent or any Obligor is required by the Code to withhold or deduct Taxes, including backup withholding and withholding taxes, from any payment, then (i) Agent shall pay the full amount that it determines is to be withheld or deducted to the relevant Governmental Authority pursuant to the Code, and (ii) to the extent the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Obligor shall be increased as necessary so that the Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

(c) If Agent or any Obligor is required by any Applicable Law other than the Code to withhold or deduct Taxes from any payment, then (i) Agent or such Obligor, to the extent required by Applicable Law, shall timely pay the full amount to be withheld or deducted to the relevant Governmental Authority, and (ii) to the extent the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Obligor shall be increased as necessary so that the Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

5.1.2 Payment of Other Taxes . Without limiting the foregoing, Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at Agent’s option, timely reimburse Agent for payment of, any Other Taxes.

5.1.3 Tax Indemnification .

(a) Borrower shall indemnify and hold harmless, on a joint and several basis, each Recipient against any Indemnified Taxes (including those imposed or asserted on or attributable to amounts payable under this Section  5.1.3 ) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. Borrower shall indemnify and hold harmless Agent against any amount that a Lender fails for any reason to pay indefeasibly to Agent as required pursuant to this Section  5.1.3 . Borrower shall make payment within ten (10) days after demand for any amount or liability payable under this Section  5.1.3 . A certificate as to the amount of such payment or liability delivered to Borrower by a Lender (with a copy to Agent), or by Agent on its own behalf or on behalf of any Recipient, shall be conclusive absent manifest error.

(b) Each Lender Bank shall indemnify and hold harmless, on a several basis, (i) Agent against any Indemnified Taxes attributable to such Lender (but only to the extent Borrower has not already paid or reimbursed Agent therefor and without limiting Borrower’s obligation to do so), (ii) Agent and Obligors, as applicable, against any Taxes attributable to such Lender’s failure to maintain a Participant register as required hereunder, and (iii) Agent and Obligors, as applicable, against any Excluded Taxes attributable to such Lender that are payable or paid by Agent or an Obligor in connection with any Obligations, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. Each Lender shall make payment within ten (10) days after demand for any amount or liability payable under this Section  5.1.3 . A certificate as to the amount of such payment or liability delivered to any Lender by Agent shall be conclusive absent manifest error.

 

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5.1.4 Evidence of Payments . If Agent or an Obligor pays any Taxes pursuant to this Section  5.1.4 , then upon request, Agent shall deliver to Borrower or Borrower shall deliver to Agent, respectively, a copy of a receipt issued by the appropriate Governmental Authority evidencing the payment, a copy of any return required by Applicable Law to report the payment, or other evidence of payment reasonably satisfactory to Agent or Borrower, as applicable.

5.1.5 Treatment of Certain Refunds . Unless required by Applicable Law, at no time shall Agent have any obligation to file for or otherwise pursue on behalf of a Lender, nor have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of a Lender. If a Recipient determines in its discretion that it has received a refund of any Taxes as to which it has been indemnified by Borrower or with respect to which Borrower has paid additional amounts pursuant to this Section  5.1.5 , it shall pay Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by Borrower with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes imposed in connection with such refund) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that Borrower agrees, upon request by the Recipient, to repay the amount paid over to Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient if the Recipient is required to repay such refund to the Governmental Authority. Notwithstanding anything herein to the contrary, no Recipient shall be required to pay any amount to Borrower to the extent such payment would place the Recipient in a less favorable net after-Tax position than it 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. In no event shall Agent or any Recipient be required to make its tax returns (or any other information relating to its taxes that it deems confidential) available to any Obligor or other Person.

5.1.6 Survival . Each party’s obligations under Sections 5.1 and 5.2 shall survive the resignation or replacement of Agent or any assignment of rights by or replacement of a Lender, the termination of the Commitments, and the repayment, satisfaction, discharge or Full Payment of any Obligations.

5.2 Lender and Agent Tax Information .

5.2.1 Status of Lenders . Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments of Obligations shall deliver to Borrower and Agent properly completed and executed documentation reasonably requested by Borrower or Agent as will permit such payments to be made without or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower or Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by Borrower or Agent to enable them to determine whether such Lender is subject to backup withholding or information reporting requirements and to satisfy any such information reporting requirements. Notwithstanding the foregoing, such documentation (other than documentation described in Sections 5.2.2(a) , (b) and (d) ) shall not be required if a Lender reasonably believes delivery of the documentation would subject it to any material unreimbursed cost or expense or would materially prejudice its legal or commercial position.

 

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5.2.2 Lender Documentation . Without limiting the foregoing, if Borrower is a U.S. Person,

(a) Any Lender that is a U.S. Person shall deliver to Borrower and Agent on or prior to the date on which such Lender becomes a Lender hereunder, from time to time thereafter upon reasonable request of Borrower or Agent and pursuant to Section  5.2.4 , executed originals of IRS Form W-9, certifying that such Lender is exempt from U.S. federal backup withholding Tax;

(b) Any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender hereunder, from time to time thereafter upon reasonable request of Borrower or Agent and pursuant to Section  5.2.4 , whichever of the following is applicable:

(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party, (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BENE establishing an exemption from or reduction of U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty, and (y) with respect to other payments under the Loan Documents, IRS Form W-8BENE establishing an exemption from or reduction of U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(ii) executed originals of IRS Form W-8ECI;

(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Sections 871(h) or 881(c) of the Code, (x) a certificate substantially in the form of Exhibit E-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (“ U.S. Tax Compliance Certificate ”), and (y) executed originals of IRS Form W-8BENE; or

(iv) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BENE, a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2 or Exhibit E-3 , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-4 on behalf of each such direct and indirect partner;

 

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(c) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender hereunder, from time to time thereafter upon the reasonable request of Borrower or Agent and pursuant to Section  5.2.4 , executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit Borrower or Agent to determine the withholding or deduction required to be made; and

(d) if payment of an Obligation to a Recipient would be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code), such Recipient shall deliver to Borrower and Agent at the time(s) prescribed by Applicable Law and otherwise as reasonably requested by Borrower or Agent or pursuant to Section  5.2.4 , such documentation prescribed by Applicable Law (including Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Agent as may be necessary for them to comply with their obligations under FATCA and to determine that such Recipient has complied with its obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (d), “FATCA” shall include any amendments made to FATCA after the date hereof.

5.2.3 Agent Documentation . Agent that is entitled to an exemption from or reduction of withholding Tax with respect to payments of Obligations shall deliver to Borrower properly completed and executed documentation reasonably requested by Borrower as will permit such payments to be made without or at a reduced rate of withholding. In addition, Agent, if reasonably requested by Borrower, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by Borrower as will enable Borrower to determine whether or not Agent is subject to backup withholding or information reporting requirements and to satisfy any such information reporting requirements. Without limiting the foregoing, if Borrower is a U.S. Person, Agent that is a U.S. Person shall deliver to Borrower on or prior to the date on which Agent becomes Agent hereunder, from time to time thereafter upon reasonable request of Borrower and pursuant to Section  5.2.4 , executed originals of IRS Form W-9, certifying that Agent is exempt from U.S. federal backup withholding Tax.

5.2.4 Redelivery of Documentation . If any form or certification previously delivered by a Recipient pursuant to this Section  5.2 expires or becomes obsolete or inaccurate in any respect, such Recipient shall promptly update the form or certification or notify Borrower and Agent in writing of its inability to do so.

5.3 Nature and Extent of Borrower’s Liabilities .

5.3.1 Waivers .

(a) Borrower expressly waives all rights that it may have now or in the future under any statute, at common law, in equity or otherwise, to compel Agent or Lenders to marshal assets or to proceed against any Obligor, other Person or security for the payment or performance of any Obligations before, or as a condition to, proceeding against Borrower. Borrower waives all defenses available to a surety, guarantor or accommodation co-obligor other than Full Payment of Obligations and waives, to the maximum extent permitted by law, any right to

 

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revoke any guaranty of Obligations as long as it is Borrower. It is agreed among Borrower, Agent and Lenders that the provisions of this Section  5.3 are of the essence of the transaction contemplated by the Loan Documents and that, but for such provisions, Agent and Lenders would decline to make Loans. Borrower acknowledges that its guaranty pursuant to this Section  5.3 is necessary to the conduct and promotion of its business, and can be expected to benefit such business.

(b) Agent and Lenders may, in their discretion, pursue such rights and remedies as they deem appropriate, including realization upon Collateral or any Real Estate by judicial foreclosure or nonjudicial sale or enforcement, without affecting any rights and remedies under this Section  5.3 . If, in taking any action in connection with the exercise of any rights or remedies, Agent or any Lender shall forfeit any other rights or remedies, including the right to enter a deficiency judgment against Borrower or other Person, whether because of any Applicable Laws pertaining to “election of remedies” or otherwise, Borrower consents to such action and waives any claim based upon it, even if the action may result in loss of any rights of subrogation that Borrower might otherwise have had. Any election of remedies that results in denial or impairment of the right of Agent or any Lender to seek a deficiency judgment against Borrower shall not impair its obligation to pay the full amount of the Obligations. Borrower waives all rights and defenses arising out of an election of remedies, such as nonjudicial foreclosure with respect to any security for Obligations, even though that election of remedies destroys Borrower’s rights of subrogation against any other Person. Agent may bid Obligations, in whole or part, at any foreclosure, trustee or other sale, including any private sale, and the amount of such bid need not be paid by Agent but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether Agent or any other Person is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral, and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section  5.3 , notwithstanding that any present or future law or court decision may have the effect of reducing the amount of any deficiency claim to which Agent or any Lender might otherwise be entitled but for such bidding at any such sale.

5.3.2 Subordination . Borrower hereby subordinates any claims, including any rights at law or in equity to payment, subrogation, reimbursement, exoneration, contribution, indemnification or set off, that it may have at any time against any other Obligor, howsoever arising, to the Full Payment of its Obligations.

SECTION 6. CONDITIONS PRECEDENT

6.1 Conditions Precedent to Initial Loans . In addition to the conditions set forth in Section  7.2 , Lenders shall not be required to fund any Loan, until the date (“ Closing Date ”) that each of the following conditions has been satisfied:

(a) This Agreement, the Guarantee and Collateral Agreement, the Perfection Certificate, the Intercreditor Agreement and each other Loan Document required by the terms hereof to be delivered on the Closing Date shall have been duly executed and copies of executed counterparts of each such Loan Document shall have been delivered to Agent by each of the signatories thereto.

 

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(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.

(c) Agent shall have received a life-of-loan flood hazard determination for all Real Estate owned by an Obligor and, if such Real Estate is located in a special flood hazard area, an acknowledged notice to the applicable Borrower and flood insurance by an insurer acceptable to Agent.

(d) Agent shall have received (i) originals of stock/unit certificates representing 100% (or 65%, as applicable) of the certificated Equity Interests of each Subsidiary that is directly owned by an Obligor, together with stock powers executed in blank and (ii) Issuer Control Agreements for the Equity Interests of each Subsidiary with uncertificated Equity Interests that is directly owned by an Obligor.

(e) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, set forth on Schedule 8.5 , in form and substance, and with financial institutions, satisfactory to Agent and duly executed Deposit Account Control Agreements, in form and substance, reasonably satisfactory to Agent.

(f) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) Borrower, individually, is, and Borrower and each of its Subsidiaries on a consolidated basis are, Solvent; (ii) no Default or Event of Default exists; and (iii) the representations and warranties set forth in Section  9 are true and correct.

(g) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.

(h) Agent shall have received a written opinion of Godfrey & Kahn, S.C., as well as any local counsel to Borrower for each jurisdiction in which an Obligor is organized, in each case, in form and substance reasonably satisfactory to Agent.

(i) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization.

 

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(j) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrower, all in compliance with the Loan Documents.

(k) Since December 31, 2016, there has been no circumstance, event or condition that has or could reasonably be expected to have a Material Adverse Effect.

(l) No action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (i) could reasonably be expected to have a Material Adverse Effect; or (ii) could reasonably be expected to materially and adversely affect the Transactions.

(m) Agent shall have received, in form and substance satisfactory to Agent, (i) a pro forma balance sheet of Borrower and its Subsidiaries dated as of the Closing Date, (ii) financial projections of Borrower and its Subsidiaries, evidencing Borrower’s ability to comply with the financial covenant set forth in the Loan Documents, and (iii) interim financial statements for Borrower and its Subsidiaries as of a date not more than forty-five (45) days prior to the Closing Date.

(n) Agent shall have received reasonably satisfactory evidence that Borrower has received all governmental and third party consents and approvals as may be appropriate in connection with the Transactions.

(o) Agent shall have completed its customary business, financial, legal, tax, environmental and collateral due diligence, with results reasonably satisfactory to Agent and its counsel. Such due diligence shall include, without limitation, the following: (i) face to face meetings with management, (ii) review of the Obligors’ books, systems and records, (iii) an updated quality of earnings review of the Obligors’ financials by a third party firm reasonably acceptable to Agent with results reasonably satisfactory to Agent (the “ Quality of Earnings Report ”), (iv) Borrower’s detailed five year business plan with the first two (2) years prepared on a quarterly basis, (v) background checks on key management, and (vi) review of ERISA, regulatory, environmental, intellectual property, litigation, accounting, tax, licensing, certification and permit matters and labor matters, in each case, with results reasonably satisfactory to Agent in its reasonable discretion.

(p) Borrower shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.

(q) After giving effect on a pro forma basis to the funding of the Term A Loan and any funding of loans and issuance of letters of credit under the Revolving Loan Agreement on the Closing Date, the consummation of the Transactions and the payment by Borrower of all fees and expenses incurred in connection with the Transactions, as well as any payables stretched beyond their customary payment practices, (i) Availability shall be at least $20,000,000 and (ii) the average daily amount of Revolving Loans for the 365-day period immediately preceding such date shall be not greater than $35,000,000.

(r) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that EBITDA of Borrower and its Subsidiaries (using methodology substantially consistent with the determination of EBITDA in the Quality of Earnings Report, but excluding from the determination of EBITDA the add-back for public company costs and expenses in an amount equal to $1,698,000), for the twelve (12) Fiscal Month period ending on or about February 25, 2017 was equal to or greater than $49,500,000.

 

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(s) After giving pro forma effect to the Loans made hereunder on the Closing Date and the Revolving Loans made by Revolving Loan Lenders on the Closing Date, the Net Senior Leverage Ratio for Borrower and its Subsidiaries, on a consolidated basis, for the four (4) consecutive Fiscal Quarters ending on or about December 31, 2016 shall be less than or equal to 3.35 to 1.00.

(t) Agent shall have received true, correct and complete copies of the Closing Date Revolving Loan Agreement Amendment and the other Revolving Loan Documents, all of which shall be in form and substance reasonably satisfactory to Agent, duly authorized, executed and delivered by the parties thereto and in effect on the Closing Date, and the transactions contemplated by the Revolving Loan Documents shall be consummated simultaneously with the making of the initial Loans hereunder.

(u) Agent shall have received a payoff letter from Existing Agent, in form and substance reasonably satisfactory to Agent, providing that, among other things, all of the Indebtedness of the Obligors under the Existing Loan Documents will be paid and satisfied in full upon Existing Agent’s receipt of the amount set forth therein.

(v) Agent shall have received written instructions from Borrower directing the application of proceeds of the Term A Loan made pursuant to this Agreement.

(w) Agent shall have received an executed Notice of Borrowing.

(x) No Default or Event of Default shall exist at the time of, or result from, such funding, issuance or grant.

(y) The representations and warranties of each Obligor in the Loan Documents shall be true and correct on the date of, and upon giving effect to, the funding of Term A Loan (except for representations and warranties that expressly relate to an earlier date).

(z) A duly executed W-9 (or such other applicable IRS tax form) of the Borrower.

SECTION 7. COLLATERAL

7.1 Cash Collateral . Cash Collateral may be invested, at Agent’s discretion (and with the consent of Borrower, as long as no Event of Default exists), but Agent shall have no duty to do so, regardless of any agreement or course of dealing with Borrower, and shall have no responsibility for any investment or loss. As security for its Obligations, Borrower hereby grants to Agent a security interest in and Lien upon all Cash Collateral held from time to time and all proceeds thereof, whether held in a Cash Collateral Account or otherwise. Agent may apply Cash Collateral to the payment of such Obligations as they become due, in such order as Agent may elect. The Cash Collateral Account and all Cash Collateral shall be under the sole dominion and control of Agent, and neither Borrower nor any other Person (subject to the terms of the Intercreditor Agreement) shall have any right to any Cash Collateral, until Full Payment of the Obligations.

 

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7.2 Real Estate Collateral . The Obligations shall also be secured by Mortgages upon all Real Estate owned by Obligors set forth on Schedule 8.6.1 , which such Mortgages shall be delivered, along with the Related Real Estate Documents, within thirty (30) days of the Closing Date (which period may be extended with the reasonable consent of Agent). The Mortgages shall be duly recorded, at Borrower’s expense, in each office where such recording is required to constitute a fully perfected Lien on the Real Estate covered thereby. If Borrower acquires Real Estate hereafter having a fair market value in excess of $2,000,000, Borrower shall, within thirty (30) days (or such longer period as Agent may reasonably consent) of such acquisition, execute, deliver and record a Mortgage sufficient to create a first-priority fully perfected Lien in favor of Agent on such Real Estate and shall deliver all Related Real Estate Documents.

7.3 Other Collateral .

7.3.1 Commercial Tort Claims . Borrower shall promptly notify Agent in writing if Borrower has a Commercial Tort Claim (other than, as long as no Event of Default exists, a Commercial Tort Claim for less than $500,000), shall promptly amend Schedule 9.1.16 to include such claim, and shall take such actions as Agent deems appropriate to subject such claim to a duly perfected, first priority Lien in favor of Agent.

7.3.2 Certain After-Acquired Collateral . Borrower shall promptly notify Agent in writing if, after the Closing Date, Borrower obtains any interest in any Collateral consisting of Deposit Accounts, Chattel Paper, Documents, Instruments, Intellectual Property, Investment Property or Letter-of-Credit Rights with a value in excess of $500,000 for any such item of Collateral and, upon Agent’s reasonable request, shall promptly take such actions as Agent deems appropriate to effect Agent’s duly perfected, first priority Lien upon such Collateral, including obtaining any appropriate possession or control agreement or Lien Waiver. Notwithstanding anything herein to the contrary, Borrower shall not take any action to perfect or record any security interest in any part of the Collateral under the laws of any jurisdiction outside of the United States of America. If any Collateral is in the possession of a third party, at Agent’s request, Borrower shall use commercially reasonable efforts to obtain an acknowledgment that such third party holds the Collateral for the benefit of Agent.

7.4 Limitations . The Lien on Collateral granted under any Loan Document is given as security only and shall not subject Agent or any Lender to, or in any way modify, any obligation or liability of Obligors relating to any Collateral.

7.5 Further Assurances . All Liens granted to Agent under the Loan Documents are for the benefit of Secured Parties. Promptly upon Agent’s reasonable request, Obligors shall deliver such instruments and agreements, and shall take such actions, as Agent reasonably deems appropriate under Applicable Law to evidence or perfect its Lien on any Collateral, or otherwise to give effect to the intent of this Agreement. Each Obligor authorizes Agent to file any financing statement that describes the Collateral as “all assets” or “all personal property” of such Obligor, or words to similar effect, and ratifies any action taken by Agent before the Closing Date to effect or perfect its Lien on any Collateral.

 

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SECTION 8. COLLATERAL ADMINISTRATION

8.1 Borrowing Base Certificates . Concurrent with its delivery to the Revolving Loan Agent, Borrower shall deliver to Agent (and Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate prepared as of the close of business of the previous month.

8.2 Administration of Accounts .

8.2.1 Records and Schedules of Accounts . Borrower shall keep accurate and complete records of its Accounts, including all payments and collections thereon, and shall submit to Agent sales, collection, reconciliation and other reports in form reasonably satisfactory to Agent, on such periodic basis as Agent may request. Borrower shall also promptly provide to Agent, upon Agent’s request, a detailed aged trial balance of all Accounts as of the end of the preceding month, specifying each Account’s Account Debtor name and address, amount, invoice date and due date, showing any discount, allowance, credit, authorized return or dispute, and including such proof of delivery, copies of invoices and invoice registers, copies of related documents, repayment histories, status reports and other information as Agent may reasonably request.

8.2.2 Taxes . If an Account of Borrower includes a charge for any Taxes, Agent is authorized, in its discretion, to pay the amount thereof to the proper taxing authority for the account of Borrower, and all documented charges, expenses and fees Agent may incur in doing the foregoing shall be at the sole expense of Borrower and payable by Borrower to Agent not later than ten (10) Business Days after written demand; provided , however , that neither Agent nor Lenders shall be liable for any Taxes that may be due from Borrower or with respect to any Collateral.

8.2.3 [ Intentionally Omitted ].

8.2.4 Maintenance of Dominion Account . Obligors shall maintain Dominion Accounts pursuant to lockbox or other arrangements reasonably acceptable to Agent. Obligors shall obtain a Deposit Account Control Agreement or a Securities Account Control Agreement, in each case in form and substance reasonably satisfactory to Agent, from each lockbox servicer and Dominion Account bank, establishing Agent’s control over and fully perfected Lien in the lockbox or Dominion Account, subject only to certain Permitted Liens, including for the avoidance of doubt, the Lien in favor of the Revolving Loan Agent with the priority provided for in the Intercreditor Agreement, requiring the immediate deposit of all remittances received in any lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges. Prior to a Cash Dominion Period, Agent shall not deliver a notice of Exclusive Control with respect to any Dominion Account. During a Cash Dominion Trigger Period, each Obligor hereby irrevocably waives the right to direct the application of funds in a Dominion Account and agrees that, subject to the Intercreditor Agreement, Agent may and, upon the written direction of the Required Lenders given at any time during such Cash Dominion Trigger Period, shall deliver a notice of exclusive control (as described in each

 

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Deposit Account Control Agreement) to each Dominion bank for each Dominion Account, and thereafter require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America or another bank satisfactory to Agent. Agent and Lenders assume no responsibility to Borrower for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.

8.2.5 Proceeds of Collateral . Borrower shall request in writing and otherwise take all necessary steps to ensure that all payments on Accounts or otherwise relating to Collateral are made directly to a Dominion Account (or a lockbox relating to a Dominion Account). If Borrower or any Subsidiary receives cash or Payment Items with respect to any Collateral, it shall hold same in trust for Agent and promptly (not later than the next Business Day) deposit same into a Dominion Account.

8.3 Administration of Inventory . Borrower shall keep accurate and complete records of its Inventory, including costs and daily withdrawals and additions, and shall submit to Agent inventory and reconciliation reports in form reasonably satisfactory to Agent, on such periodic basis as Agent may request. Borrower shall conduct periodic cycle counts consistent with historical practices, and shall, upon Agent’s request, provide to Agent a report based on each such inventory and count promptly upon completion thereof, together with such supporting information as Agent may request. Agent may participate in and observe each physical count.

8.4 Administration of Equipment .

8.4.1 Records and Schedules of Equipment . Borrower shall keep accurate and complete records of its Equipment, including kind, quality, quantity, cost, acquisitions and dispositions thereof, and shall submit to Agent, on such periodic basis as Agent may request, a current schedule thereof, in form satisfactory to Agent. Promptly upon request, Borrower shall deliver to Agent evidence of their ownership or interests in any Equipment.

8.4.2 Dispositions of Equipment . Borrower shall not sell, lease or otherwise dispose of any Equipment, without the prior written consent of Agent, other than a Permitted Asset Disposition.

8.5 Administration of Deposit Accounts and Securities Accounts . Schedule 8.5 sets forth all Deposit Accounts and Securities Accounts maintained by Obligors, including all Dominion Accounts of Obligors. Each Obligor shall obtain a Deposit Account Control Agreement or a Securities Account Control Agreement, in each case in form and substance satisfactory to Agent, from each lockbox servicer and each institution maintaining a Deposit Account or Securities Account, as applicable, establishing Agent’s control over each such Deposit Account and each such Securities Account (other than (x) an account exclusively used for payroll, payroll taxes or employee benefits, (y) a zero balance disbursement account, or (z) an account containing not more than $150,000 at any time, provided, however that amounts on deposit in all such accounts under this clause (z) do not exceed $1,000,000 at any time). Each Obligor shall be the sole account holder of each Deposit Account and each Securities Account and shall not allow any other Person (other than Agent, and, solely to the extent provided for in the Intercreditor Agreement and each Deposit Account Control Agreement or Securities Account

 

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Control Agreement, Revolving Loan Agent) to have control over a Deposit Account, Securities Account or any Property deposited therein. During a Cash Dominion Trigger Period, each Obligor hereby agrees that, subject to the Intercreditor Agreement, Agent may and, upon the written direction of the Required Lenders given at any time during such Cash Dominion Trigger Period, shall deliver a notice of exclusive control (as described in each Deposit Account Control Agreement) to each institution maintaining a Deposit Account covered by a Deposit Account Control Agreement, and thereafter require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America or another bank satisfactory to Agent. Each Obligor shall promptly notify Agent of any opening or closing of a Deposit Account or Securities Account and, with the consent of Agent, will amend Schedule 8.5 to reflect same, which amendment shall be effective notwithstanding any other requirements set forth herein relating to the approval of amendments.

8.6 General Provisions .

8.6.1 Location of Collateral . All tangible items of Collateral, other than Inventory in transit, shall at all times be kept by Obligors at the business locations set forth in Schedule 8.6.1 , except that Obligors may (a) make sales or other dispositions of Collateral in accordance with Section  10.2.6 ; and (b) move Collateral to another location in the United States, upon twenty (20) Business Days prior written notice to Agent.

8.6.2 Insurance of Collateral; Condemnation Proceeds .

(a) Each Obligor shall maintain insurance with respect to the Collateral, covering casualty, hazard, theft, malicious mischief, flood and other risks, in amounts, with endorsements and with insurers (with a Best’s Financial Strength Rating of at least A+, unless otherwise approved by Agent in its discretion) reasonably satisfactory to Agent. Subject to the terms of the Intercreditor Agreement, all proceeds under each policy shall be payable to Agent. From time to time upon request, Obligors shall deliver to Agent the originals or certified copies of its insurance policies and updated flood plain searches. Unless Agent shall agree otherwise and except as provided in the Intercreditor Agreement, each policy shall include satisfactory endorsements (i) showing Agent as loss payee (as its interests may appear in accordance with the Intercreditor Agreement); (ii) requiring thirty (30) days prior written notice to Agent in the event of cancellation of the policy for any reason whatsoever; and (iii) specifying that the interest of Agent shall not be impaired or invalidated by any act or neglect of any Obligor or the owner of the Property, nor by the occupation of the premises for purposes more hazardous than are permitted by the policy. If any Obligor fails to provide and pay for any insurance, Agent may, at its option, but shall not be required to, procure the insurance and charge Obligors therefor. Each Obligor agrees to deliver to Agent, promptly as rendered, copies of all reports made to insurance companies. While no Event of Default exists, Obligors may settle, adjust or compromise any insurance claim, as long as the proceeds are delivered to Agent. If an Event of Default exists, only Agent shall be authorized to settle, adjust and compromise such claims.

(b) Subject to the terms of the Intercreditor Agreement so long as the Revolving Loan Facility is in effect, any proceeds of insurance (other than proceeds from workers’ compensation or D&O insurance) and any awards arising from condemnation of any Collateral (other than ABL Priority Collateral) shall be paid to Agent. Subject to the Intercreditor Agreement so long as the Revolving Loan Facility is in effect, any proceeds or awards that relate to Collateral (other than ABL Priority Collateral) shall be applied to the Loans and then to other Obligations.

 

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8.6.3 Protection of Collateral . All expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping any Collateral, all Taxes payable with respect to any Collateral (including any sale thereof), and all other payments required to be made by Agent to any Person to realize upon any Collateral, shall be borne and paid by Borrower. Agent shall not be liable or responsible in any way for the safekeeping of any Collateral, for any loss or damage thereto (except for reasonable care in its custody while Collateral is in Agent’s actual possession), for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other Person whatsoever, but the same shall be at Borrower’s sole risk.

8.6.4 Defense of Title . Borrower shall defend its title to Collateral and Agent’s Liens therein against all Persons, claims and demands, except Permitted Liens.

8.7 Power of Attorney . Borrower hereby irrevocably constitutes and appoints Agent (and all Persons designated by Agent) as Borrower’s true and lawful attorney (and agent-in-fact) for the purposes provided in this Section. Agent, or Agent’s designee, may, without notice and in either its or Borrower’s name, but at the cost and expense of Borrower:

(a) Endorse Borrower’s name on any Payment Item or other proceeds of Collateral (including proceeds of insurance) that come into Agent’s possession or control; and

(b) During an Event of Default, (i) notify any Account Debtors of the assignment of their Accounts, demand and enforce payment of Accounts by legal proceedings or otherwise, and generally exercise any rights and remedies with respect to Accounts; (ii) settle, adjust, modify, compromise, discharge or release any Accounts or other Collateral, or any legal proceedings brought to collect Accounts or Collateral; (iii) sell or assign any Accounts and other Collateral upon such terms, for such amounts and at such times as Agent deems advisable; (iv) collect, liquidate and receive balances in Deposit Accounts or investment accounts, and take control, in any manner, of proceeds of Collateral; (v) prepare, file and sign Borrower’s name to a proof of claim or other document in a bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien or similar document; (vi) receive, open and dispose of mail addressed to Borrower, and notify postal authorities to deliver any such mail to an address designated by Agent; (vii) endorse any Chattel Paper, Document, Instrument, bill of lading, or other document or agreement relating to any Accounts, Inventory or other Collateral; (viii) use Borrower’s stationery and sign its name to verifications of Accounts and notices to Account Debtors; (ix) use information contained in any data processing, electronic or information systems relating to Collateral; (x) make and adjust claims under insurance policies; (xi) take any action as may be necessary or appropriate to obtain payment under any letter of credit, banker’s acceptance or other instrument for which Borrower is a beneficiary; and (xii) take all other actions as Agent deems appropriate to fulfill Borrower’s obligations under the Loan Documents.

 

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SECTION 9. REPRESENTATIONS AND WARRANTIES

9.1 General Representations and Warranties . To induce Agent and Lenders to enter into this Agreement and to make available the Commitments and Loans, each Obligor represents and warrants that:

9.1.1 Organization and Qualification . Each Obligor and its Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Each Obligor and its Subsidiaries is duly qualified, authorized to do business and in good standing as a foreign corporation in each jurisdiction where failure to be so qualified could reasonably be expected to have a Material Adverse Effect. No Obligor is an EEA Financial Institution.

9.1.2 Power and Authority . Each Obligor is duly authorized to execute, deliver and perform its obligations under the Loan Documents to which it is a party. The execution, delivery and performance of the Loan Documents to which such Obligor is a party have been duly authorized by all necessary action, and do not (a) require any consent or approval of any holders of Equity Interests of any Obligor, except those already obtained; (b) contravene the Organic Documents of any Obligor; (c) violate or cause a default under any Applicable Law or Material Contract; or (d) result in or require imposition of a Lien (other than Permitted Liens) on any Obligor’s Property.

9.1.3 Enforceability . Each Loan Document is a legal, valid and binding obligation of each Obligor party thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

9.1.4 Capital Structure . Schedule 9.1.4 shows Borrower’s legal name and jurisdiction of organization. Schedule 9.1.4 shows, for each Subsidiary of Borrower, its name, jurisdiction of organization, authorized and issued Equity Interests, holders of its Equity Interests, and agreements binding on such holders with respect to such Equity Interests. Except as disclosed on Schedule 9.1.4 , in the five (5) years preceding the Closing Date, no Obligor nor any of its Subsidiaries has acquired any substantial assets from any other Person nor been the surviving entity in a merger or combination. Each Obligor has good title to its Equity Interests in its Subsidiaries, subject only to Agent’s Lien and the Lien in favor of Revolving Loan Agent under the Revolving Loan Documents, and all such Equity Interests are duly issued, fully paid and non-assessable. There are no outstanding purchase options, warrants, subscription rights, agreements to issue or sell, convertible interests, phantom rights or powers of attorney relating to Equity Interests of any Subsidiaries of Borrower.

9.1.5 Title to Properties; Priority of Liens . Each Obligor and its Subsidiaries has, in all material respects, good and marketable title to (or valid leasehold interests in) all of its material Real Estate, and good title to all of its material personal Property, including all Property reflected in any financial statements delivered to Agent or Lenders, in each case free of Liens except Permitted Liens. Each Obligor and its Subsidiaries has paid and discharged or is being Properly Contested all lawful claims that, if unpaid, could become a Lien on its Properties, other than Permitted Liens. All Liens of Agent in the Collateral are duly perfected, first priority Liens, subject only to the Intercreditor Agreement and Permitted Liens that are expressly allowed to have priority over Agent’s Liens.

 

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9.1.6 [ Intentionally Omitted ].

9.1.7 Financial Statements . The consolidated and consolidating balance sheets, and related statements of income, cash flow and shareholders’ equity, of Borrower and its Subsidiaries that have been and are hereafter delivered to Agent and Lenders, are prepared in accordance with GAAP, and fairly present the financial positions and results of operations of Borrower and its Subsidiaries at the dates and for the periods indicated. All projections delivered from time to time to Agent and Lenders have been prepared in good faith, based on reasonable assumptions in light of the circumstances at such time. Since December 31, 2016, there has been no change in the condition, financial or otherwise, of Borrower or Subsidiary that could reasonably be expected to have a Material Adverse Effect. No financial statement delivered to Agent or Lenders at any time contains any untrue statement of a material fact, nor fails to disclose any material fact necessary to make such statement not materially misleading. Borrower individually is, and Borrower and each of its Subsidiaries on a consolidated basis, are Solvent.

9.1.8 Surety Obligations . No Obligor nor any of its Subsidiaries is obligated as surety or indemnitor under any bond or other contract that assures payment or performance of any obligation of any Person, except as permitted hereunder.

9.1.9 Taxes . Each Obligor and its Subsidiaries has filed all material federal, state and local tax returns and other reports that it is required by law to file, and has paid, or made provision for the payment of, all material Taxes upon it, its income and its Properties that are due and payable, except to the extent being Properly Contested. The provision for Taxes on the books of each Obligor and its Subsidiaries is adequate for all years not closed by applicable statutes, and for its current Fiscal Year.

9.1.10 Brokers . There are no brokerage commissions, finder’s fees or investment banking fees payable in connection with any transactions contemplated by the Loan Documents other than an engagement letter entered into by and between the Borrower and Bank of America, N.A.

9.1.11 Intellectual Property . Each Obligor and its Subsidiaries owns or is licensed to use all Intellectual Property material to its respective business, and neither the use thereof nor the conduct of their respective businesses infringes, misappropriates or otherwise violates the Intellectual Property rights of any other Person, except for any such infringements, misappropriations and other violations that could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. Except as disclosed on Schedule 9.1.11 , no Borrower or Subsidiary pays or owes in excess of $250,000 in any Fiscal Year any royalty or other compensation to any Person with respect to any Intellectual Property. All Intellectual Property registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office owned by any Obligor or Subsidiary is shown on Schedule 9.1.11 .

 

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9.1.12 Governmental Approvals . Each Obligor and its Subsidiaries has, is in compliance with, and is in good standing with respect to, all Governmental Approvals necessary to conduct its business and to own, lease and operate its Properties. All necessary import, export or other licenses, permits or certificates for the import or handling of any goods or other Collateral have been procured and are in effect, and Obligors and their Subsidiaries have complied with all foreign and domestic laws with respect to the shipment and importation of any goods or Collateral, except where noncompliance could not reasonably be expected to have a Material Adverse Effect.

9.1.13 Compliance with Laws . Each Obligor and its Subsidiaries has duly complied, and its Properties and business operations are in compliance, in all material respects with all Applicable Law, except where noncompliance could not reasonably be expected to have a Material Adverse Effect. There have been no citations, notices or orders of noncompliance issued to any Obligor or any of its Subsidiaries under any Applicable Law that could reasonably be expected to have a Material Adverse Effect. No Inventory has been produced in violation of the FLSA.

9.1.14 Compliance with Environmental Laws . Except as disclosed on Schedule 9.1.14 or as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (i) no Obligor’s nor any of its Subsidiaries’ past or present operations, Real Estate or other Properties are subject to any federal, state or local investigation to determine whether any remedial action is needed to address any environmental pollution, hazardous material or environmental clean-up; (ii) no Obligor nor any of its Subsidiaries has received any Environmental Notice; and (iii) no Obligor nor any of its Subsidiaries has any contingent liability with respect to any Environmental Release, environmental pollution or hazardous material on any Real Estate now or previously owned, leased or operated by it.

9.1.15 Burdensome Contracts . No Obligor nor any of its Subsidiaries is party or subject to any Restrictive Agreement, except as shown on Schedule 9.1.15 . No such Restrictive Agreement prohibits the execution, delivery or performance of any Loan Document by an Obligor.

9.1.16 Litigation . Except as shown on Schedule 9.1.16 , there are no proceedings or investigations pending or, to any Obligor’s knowledge, threatened against any Obligor or any of its Subsidiaries, or any of their businesses, operations, Properties, prospects or conditions, that (a) relate to any Loan Documents or transactions contemplated thereby; or (b) could reasonably be expected to have a Material Adverse Effect if determined adversely to any Obligor or any of its Subsidiaries. Except as shown on such Schedule, no Obligor has a Commercial Tort Claim (other than, as long as no Default or Event of Default exists, a Commercial Tort Claim for less than $500,000). No Obligor nor any of its Subsidiaries is in default with respect to any order, injunction or judgment of any Governmental Authority, except where such violation or default could not reasonably be expected to result in a Material Adverse Effect.

9.1.17 No Defaults . No event or circumstance has occurred or exists that constitutes a Default or Event of Default. No Obligor nor any of its Subsidiaries is in default, and no event or circumstance has occurred or exists that with the passage of time or giving of notice would constitute a default, under any Material Contract.

 

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9.1.18 ERISA . Except as disclosed on Schedule 9.1.18 :

(a) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code, and other federal and state laws and (ii) each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the knowledge of Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification. Each Obligor and ERISA Affiliate has met in all material respects all applicable requirements under the Code, ERISA and the Pension Protection Act of 2006 with respect to each Plan, and no application for a waiver of the minimum funding standards or an extension of any amortization period has been made with respect to any Plan.

(b) There are no pending or, to the knowledge of Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted in or could reasonably be expected to have a Material Adverse Effect.

(c) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) no ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) no Obligor or ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (iv) no Obligor or ERISA Affiliate has engaged in a transaction that could reasonably be expected to be subject to Section 4069 or 4212(c) of ERISA.

(d) Except as would not reasonably be expected to have a Material Adverse Effect, with respect to any Foreign Plan, (i) all employer and employee contributions required by law or by the terms of the Foreign Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles; and (iii) it has been registered as required and has been maintained in good standing with applicable regulatory authorities.

9.1.19 Trade Relations . There exists no actual or threatened termination, limitation or modification of any business relationship between any Obligor or its Subsidiaries and any customer or supplier, or any group of customers or suppliers, which would have a Material Adverse Effect. There exists no condition or circumstance that could reasonably be expected to impair the ability of Borrower or any Subsidiary to conduct its business at any time hereafter in substantially the same manner as conducted on the Closing Date.

 

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9.1.20 Labor Relations . Except as described on Schedule 9.1.20 , no Obligor nor any of its Subsidiaries is party to or bound by any collective bargaining agreement, any management agreement or any material consulting agreement. Except as could not reasonably be expected to result in a Material Adverse Effect, there are no material grievances, disputes or controversies with any union or other organization of Borrower’s or any Subsidiary’s employees, or, to Borrower’s knowledge, any asserted or threatened strikes, work stoppages or demands for collective bargaining.

9.1.21 Payable Practices . No Obligor nor any of its Subsidiaries has made any material change in its historical accounts payable practices from those in effect on the Closing Date.

9.1.22 Not a Regulated Entity . No Obligor is (a) an “investment company” or a “person directly or indirectly controlled by or acting on behalf of an investment company” within the meaning of the Investment Company Act of 1940; or (b) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any public utilities code or any other Applicable Law regarding its authority to incur Indebtedness.

9.1.23 Margin Stock . Neither Borrower nor any Subsidiary is engaged, principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No proceeds of Loans will be used by Borrower to purchase or carry, or to reduce or refinance any Indebtedness incurred to purchase or carry, any Margin Stock or for any related purpose governed by Regulations T, U or X of the Board of Governors.

9.1.24 OFAC; Anti-Corruption Laws . No Obligor nor any of its Subsidiaries, nor to the knowledge of any Obligor or Subsidiary, any director, officer, employee, agent, affiliate or representative thereof, is or is owned or controlled by any individual or entity that is currently the subject or target of any Sanction or is located, organized or resident in a Designated Jurisdiction. Each Obligor and its Subsidiaries is in compliance with the Patriot Act. Borrower and each Subsidiary has conducted its business in accordance with applicable anti-corruption laws and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

9.1.25 Revolving Loan Documents . Agent has received true, correct and complete copies of the Closing Date Revolving Loan Agreement Amendment and the other Revolving Loan Documents. None of the Revolving Loan Documents has been amended or supplemented, nor have any of the provisions thereof been waived, except pursuant to a written agreement or instrument which has heretofore been delivered to Agent.

9.1.26 Designation as Senior Debt . All Obligations are designated as “Designated Senior Indebtedness” or “Senior Debt” (or any other defined term having a similar purpose) under, and as defined in, any indenture or other agreement related to Subordinated Debt.

 

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9.1.27 Security Documents . The Guarantee and Collateral Agreement is effective to create in favor of Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral described therein and proceeds thereof, to the extent contemplated by the Guarantee and Collateral Agreement. Subject to Section  10.1.15 , all actions have been taken or will be taken promptly following the Closing Date which are necessary to cause the Guarantee and Collateral Agreement to constitute, to the extent contemplated by the Guarantee and Collateral Agreement and this Agreement, a fully perfected Lien on, and security interest in, all right, title and interest of Obligors in the Collateral and the proceeds thereof, as security for the Obligations, in each case prior and superior in right to any other Person, except in the case of (a) Permitted Liens, to the extent any such Permitted Liens would have priority over the Liens in favor of Agent pursuant to any applicable law, or as otherwise permitted by this Agreement and (b) Liens perfected only by possession or control (including possession of any certificate of title) to the extent Agent has not obtained or does not maintain possession or control of such Collateral.

9.2 Accuracy of Information, Etc . None of the information, report, financial statement, exhibit or schedule (excluding the projections, forecasts or other forward-looking information and financial information referred to below) furnished by or on behalf of Borrower to Agent or any Lender in connection with the negotiation of any Loan Document or included therein or delivered pursuant thereto contained, contains or will contain as of the date the same was or is furnished any material misstatement of fact or omitted, omits or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are or will be made, not materially misleading; provided that, to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, Borrower represents and warrants only that such materials are based upon good faith estimates and assumptions believed by management to be reasonable at the time made, in light of the circumstances under which they were made and at the time furnished (and based upon accounting principles consistent with the historical audited financial statements of Borrower), and due care in the preparation of such information, report, financial statement, exhibit or schedule (it being understood that forecasts and projections are subject to uncertainties and that there can be no assurance such results will be achieved).

SECTION 10. COVENANTS AND CONTINUING AGREEMENTS

10.1 Affirmative Covenants . As long as any Commitments or Obligations are outstanding, each Obligor shall, and shall cause each Subsidiary to:

10.1.1 Inspections; Appraisals; Maintenance of Books and Records .

(a) Permit Agent from time to time, subject (except when a Default or Event of Default exists) to reasonable prior notice and during normal business hours, to visit and inspect the Properties of any Obligor or Subsidiary, inspect, audit and make extracts from any Obligor’s or Subsidiary’s books and records, and discuss with its officers, employees, agents, advisors and independent accountants such Obligor’s or Subsidiary’s business, financial condition, assets, prospects and results of operations. Lenders may participate in any such visit or inspection, at their own expense. Neither Agent nor any Lender shall have any duty to any Obligor to make any inspection, nor to share any results of any inspection, appraisal or report with any Obligor. Obligors acknowledge that all inspections, appraisals and reports are prepared by Agent and Lenders for their purposes, and Obligors shall not be entitled to rely upon them. Notwithstanding the foregoing, all examinations, appraisals and reports shall be subject to the limitations set forth in clause (b) below.

 

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(b) Agent shall be permitted to conduct, and shall be reimbursed by Borrower for all reasonable and documented charges, costs and expenses in connection with (i) up to one time per Loan Year, business evaluations or other examinations, including examinations of any Obligor’s books and records or any other financial matters as Agent deems appropriate; and (ii) upon the occurrence and during the continuation of a Default or Event of Default, up to one time per Loan Year, engaging the services of a third party firm acceptable to Agent for the purpose of performing a quality of earnings report; provided , however , that if an evaluation or examination is initiated during a Default or Event of Default, all reasonable and documented charges, costs and expenses therefor shall be reimbursed by Borrower without regard to such limits. Borrower agrees to pay Agent’s then standard charges for examination activities, including the standard charges of Agent’s internal examination and appraisal groups, as well as the charges of any third party used for such purposes.

(c) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of Obligors and Subsidiaries.

10.1.2 Financial and Other Information . Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to Agent and Lenders:

(a) as soon as available, and in any event within ninety (90) days after the close of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on consolidated and consolidating bases for Borrower and its Subsidiaries, which consolidated statements shall be audited and certified (without any “going concern” or like qualification or exception or any qualification or exception as to scope of audit) by a firm of independent certified public accountants of recognized standing selected by Borrower and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent;

(b) as soon as available, and in any event within forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year, unaudited balance sheets as of the end of such month and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Borrower and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;

 

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(c) as soon as available, and in any event within thirty (30) days after the end of each month (but within sixty (60) days after the last month in a Fiscal Year), unaudited balance sheets as of the end of such month and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Borrower and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;

(d) concurrently with delivery of financial statements under clauses (a), (b) and (c) above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by a Senior Officer of Borrower;

(e) concurrently with delivery of financial statements under clause (a) above, copies of all management letters and other material reports submitted to Borrower by its accountants in connection with such financial statements;

(f) not later than thirty (30) days after the end of each Fiscal Year, projections of Borrower’s consolidated balance sheets, results of operations, cash flow and Availability for the next Fiscal Year, month by month and for the next three (3) Fiscal Years, year by year;

(g) at Agent’s request, a listing of Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;

(h) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by Borrower to the public concerning material changes to or developments in the business of Borrower;

(i) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan;

(j) promptly, and in any event within five (5) Business Days after the execution thereof, copies of any notices (including notices of default), amendments, waivers, consents, and forbearances delivered to, or received from, the Revolving Loan Agent under the Revolving Loan Facility; and

(k) such other reports and information (financial or otherwise) as Agent may reasonably request from time to time in connection with any Collateral or Borrower’s, or any Subsidiary’s or other Obligor’s financial condition or business.

10.1.3 Notices . Notify Agent and Lenders in writing, promptly after any Senior Officer of Borrower obtains knowledge thereof, of any of the following that affects an Obligor: (a) the threat or commencement of any proceeding or investigation, whether or not covered by insurance, if an adverse determination could reasonably be expected to have a

 

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Material Adverse Effect; (b) any pending or threatened labor dispute, strike or walkout, or the expiration of any material labor contract; (c) any default under or termination of a Material Contract; (d) the existence of any Default or Event of Default; (e) any judgment in an amount exceeding $1,000,000; (f) the assertion of any Intellectual Property Claim, if its resolution would reasonably be expected to have a Material Adverse Effect, (g) any violation or asserted violation of any Applicable Law (including ERISA, OSHA, FLSA, or any Environmental Laws), for which an adverse resolution could reasonably be expected to have a Material Adverse Effect; (h) any Environmental Release by an Obligor or on any Property owned, leased or occupied by an Obligor; or receipt of any Environmental Notice; (i) the occurrence of any ERISA Event; (j) the discharge of or any withdrawal or resignation by Borrower’s independent accountants; (k) any opening of a new office or place of business, at least thirty (30) days prior to such opening; or (l) any other matter that could reasonably be expected to have a Material Adverse Effect. Each notice pursuant to this Section  10.1.3 shall be accompanied by a statement of a Senior Officer setting forth details of the occurrence referred to therein and stating what action Borrower or the relevant Subsidiary proposes to take with respect thereto.

10.1.4 Landlord and Storage Agreements . Upon request, provide Agent with copies of all existing agreements, and promptly after execution thereof provide Agent with copies of all future agreements, between an Obligor and any landlord, warehouseman, processor, shipper, bailee or other Person that owns any premises at which any Collateral may be kept or that otherwise may possess or handle any Collateral.

10.1.5 Compliance with Laws . Comply with all Applicable Laws, including ERISA, Environmental Laws, FLSA, OSHA, Anti-Terrorism Laws, and laws regarding collection and payment of Taxes, and maintain all Governmental Approvals necessary to the ownership of its Properties or conduct of its business, unless failure to comply (other than failure to comply with Anti-Terrorism Laws) or maintain could not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, if any Environmental Release occurs at or on any Properties of any Obligor or Subsidiary, it shall act promptly and diligently to investigate and report to Agent and all appropriate Governmental Authorities the extent of, and to make appropriate remedial action to eliminate, such Environmental Release, all to the extent required by Environmental Laws, whether or not directed to do so by any Governmental Authority.

10.1.6 Taxes and Payment of Obligations . Pay and discharge (a) all Taxes prior to the date on which they become delinquent or penalties attach, unless such Taxes are being Properly Contested; (b) all lawful claims which, if unpaid, would by law become a Lien upon its Property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.

10.1.7 Insurance . In addition to the insurance required hereunder with respect to Collateral, maintain insurance with insurers (with a Best Rating of at least A7, unless otherwise approved by Agent) satisfactory to Agent, (a) with respect to the Properties and business of Obligors and Subsidiaries of such type (including product liability, workers’ compensation, larceny, embezzlement, or other criminal misappropriation insurance), in such amounts, and with such coverages and deductibles as are customary for companies similarly situated; and (b) business interruption insurance in an amount not less than $25,000,000, with deductibles and subject to an Insurance Assignment satisfactory to Agent.

 

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10.1.8 Licenses . Keep each License (other than as determined in its reasonable business judgment); at the end of each Fiscal Quarter, notify Agent of any material proposed modification to, or termination (other than expiration by its terms) of, any such License, or entry into any new License.

10.1.9 Maintenance of Existence . (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Applicable Laws of the jurisdiction of its organization except in a transaction permitted by Section  10.2.6 or 10.2.9 ; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.

10.1.10 Maintenance of Properties . (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear and abandonment excepted; and (b) make all necessary repairs thereto and renewals and replacements thereof, in each case, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

10.1.11 Material Contracts . Perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material Contract in full force and effect, enforce each such Material Contract in accordance with its terms, take all such action to such end as may be from time to time requested by Agent and, upon request of Agent, make to each other party to each such Material Contract such demands and requests for information and reports or for action as any Obligor or Subsidiary is entitled to make under such Material Contract, and cause each of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

10.1.12 Designation as Senior Debt . Designate all Obligations as “Designated Senior Indebtedness” or “Senior Debt” (or any other defined term having a similar purpose) under, and as defined in, any indenture or other agreement related to Subordinated Debt.

10.1.13 Compliance with Terms of Leaseholds . Make all payments and otherwise perform all obligations in respect of all leases of real property to which any Obligor or Subsidiary is a party, keep such leases in full force and effect and not allow such leases to lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify Agent of any default by any party with respect to such leases and cooperate with Agent in all respects to cure any such default, and cause each of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect.

 

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10.1.14 Future Subsidiaries . (a) Promptly notify Agent upon any Person becoming a Subsidiary and, if such Person is not an Excluded Subsidiary, cause it to guaranty the Obligations in a manner satisfactory to Agent, (i) upon any Person becoming a Subsidiary (other than an Excluded Subsidiary) or (ii) if any Subsidiary that was an Excluded Subsidiary but, as of the end of the most recently ended Fiscal Quarter, has ceased to be an Excluded Subsidiary; and (b) cause (i) the Equity Interests of any such Subsidiary that is not a Foreign Subsidiary and is not described in clauses (e) or (f) of the definition of Excluded Subsidiary to be pledged to Agent and 65% of the voting Equity Interests and 100% of the non-voting Equity Interests of any such Subsidiary that is a Foreign Subsidiary or any Subsidiary described in clause (f) of the definition of Excluded Subsidiary that, in each case, is not directly or indirectly owned by a Foreign Subsidiary to be pledged to Agent; and (ii) such Person to execute a Guarantee and Collateral Agreement Supplement in accordance with the Guarantee and Collateral Agreement, and to execute and deliver such documents, instruments and agreements and to take such other actions as Agent shall require to evidence and perfect a Lien in favor of Agent (for the benefit of Secured Parties) on all assets of such Person, including delivery of such legal opinions, in form and substance satisfactory to Agent, as it shall deem appropriate.

10.1.15 Anti-Corruption Laws . Conduct its business in compliance with applicable anti-corruption laws and maintain policies and procedures designed to promote and achieve compliance with such laws.

10.1.16 Post-Closing Covenants . Satisfy the requirements and/or provide to the Agent each of the documents, instruments, agreements and information set forth below on or before the date specified for such requirement below or such later date to be determined by the Agent in its sole discretion:

(a) On or before June 15, 2017, Borrower shall have delivered to Agent a filed copy of an amendment to Borrower’s Amended and Restated Certificate of Incorporation, recently certified by the Secretary of State of Delaware and in form and substance reasonably acceptable to Agent, which deletes Article 7 thereof, and

(b) On or before the 30th day after the Closing Date, Borrower shall have delivered to Agent evidence of the termination of all security interests (other than security interests in favor of Agent or Bank of America) in any Intellectual Property registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office owned by any Obligor or Subsidiary.

10.2 Negative Covenants . As long as any Commitments or Obligations are outstanding (other than unasserted contingent obligations not yet due and payable), Borrower shall not, and shall cause each Subsidiary not to:

10.2.1 Permitted Indebtedness . Create, incur, guarantee or suffer to exist any Indebtedness, except the following (collectively, “ Permitted Indebtedness ”):

(a) the Obligations (including Indebtedness in respect of the Delayed Draw Term Loans);

 

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(b) Subordinated Debt in an aggregate principal amount not to exceed $5,000,000;

(c) Permitted Purchase Money Debt and Capital Lease Obligations; provided that the aggregate amount of all Indebtedness incurred under this clause (c) does not exceed $2,000,000 at any time;

(d) (i) Indebtedness outstanding on the Closing Date, listed on Schedule 10.2.1 and (ii) Indebtedness under the Revolving Loan Facility (including any incremental facility thereunder), in an aggregate principal amount not to exceed the Maximum ABL Principal Obligations (as defined in the Intercreditor Agreement);

(e) Indebtedness with respect to Bank Products (as defined in the Revolving Loan Facility) (or any such similar term) incurred in the Ordinary Course of Business and not for speculative purposes;

(f) (i) unsecured Indebtedness of an Obligor or Subsidiary that is incurred on the date of the consummation of a Permitted Acquisition or other acquisition of assets permitted hereunder solely for the purpose of consummating such Permitted Acquisition or such other acquisition so long as (A) no Event of Default has occurred and is continuing or would result therefrom, (B) such unsecured Indebtedness is not incurred for working capital purposes, (C) such unsecured Indebtedness does not mature prior to the date that is six (6) months after the Maturity Date, (D) such unsecured Indebtedness does not amortize until six (6) months after the Maturity Date, (E) such unsecured Indebtedness does not provide for the payment of interest thereon in cash or Cash Equivalents prior to the date that is six (6) months after the Maturity Date, and (F) such Indebtedness is subordinated in right of payment to the Obligations on terms and conditions reasonably satisfactory to Agent, (ii) Indebtedness that is in existence prior to the date when a Person becomes a Subsidiary or that is secured by Equipment when acquired by Borrower or a Subsidiary, in each case, as part of a Permitted Acquisition, as long as such Indebtedness was not incurred in contemplation of such Person becoming a Subsidiary or such Permitted Acquisition; provided that for both clauses (i) and (ii), after giving effect to such Permitted Acquisition on a pro forma basis, the Net Senior Leverage Ratio is no greater than the Net Senior Leverage Ratio in effect immediately prior to such Permitted Acquisition;

(g) Permitted Contingent Obligations (excluding Permitted Surety Bonds);

(h) Indebtedness under Permitted Surety Bonds that does not exceed $20,000,000 in the aggregate at any time;

(i) [Intentionally omitted];

(j) Specified Unsecured Prepetition Debt in an aggregate principal amount not to exceed $24,500,000;

(k) Refinancing Debt as long as each Refinancing Condition is satisfied;

(l) Intercompany Indebtedness of Borrower and its Subsidiaries to the extent permitted by Section  10.2.5 ; provided that any such Indebtedness that is owed by an Obligor to a Subsidiary that is not an Obligor is subordinated to the Obligations pursuant to an Affiliate Subordination Agreement;

 

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(m) financing of insurance premiums in the Ordinary Course of Business;

(n) Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”), or cash management services, netting services, overdraft protection, and other like services, in each case incurred in the Ordinary Course of Business;

(o) unsecured Indebtedness owing to former employees, officers or directors (or any spouses, ex-spouses, or estates of any of the foregoing) incurred in connection with the repurchase by Borrower of the Equity Interests of Borrower that have been issued to such Persons, so long as (i) no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness and (ii) the aggregate amount of all such Indebtedness outstanding at any one time does not exceed $500,000; provided that any such Indebtedness shall be treated as a Distribution and only be permitted to the extent permitted pursuant to Section  10.2.4 ;

(p) accrual of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case on Indebtedness that otherwise constitutes Indebtedness permitted under this Section  10.2.1 ;

(q) Indebtedness incurred by Subsidiaries that are not Obligors in an aggregate principal amount not to exceed $2,500,000;

(r) to the extent constituting Indebtedness, customary purchase price adjustments, earn outs, indemnification obligations, unsecured guarantees thereof and similar items of Borrower or any of its Subsidiaries in connection with Permitted Acquisitions, other acquisitions of assets permitted hereunder or Permitted Asset Dispositions;

(s) Borrower and its Subsidiaries may enter into Hedging Agreements that are entered into in the Ordinary Course of Business and not for speculative purposes; and

(t) Indebtedness that is not included in any of the preceding clauses of this Section  10.2.1 , is not secured by a Lien and does not exceed $5,000,000 in the aggregate at any time.

10.2.2 Permitted Liens . Create or suffer to exist any Lien upon any of its Property, except the following (collectively, “ Permitted Liens ”):

(a) Liens in favor of Agent for the benefit of the Secured Parties;

(b) Purchase Money Liens securing Permitted Purchase Money Debt;

(c) Liens for Taxes not yet due or being Properly Contested;

 

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(d) statutory Liens (other than Liens for Taxes or imposed under ERISA) arising in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested, and (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of Borrower or Subsidiary;

(e) Liens incurred or deposits made in the Ordinary Course of Business to secure the performance of government tenders, bids, contracts (other than Indebtedness), leases (other than Capital Leases), statutory obligations, surety and appeal bonds, performance bonds and other similar obligations, as long as such Liens are at all times junior to Agent’s Liens;

(f) Liens arising in the Ordinary Course of Business that are subject to Lien Waivers;

(g) judgment Liens securing judgments not constituting an Event of Default;

(h) zoning restrictions, easements, rights-of-way, restrictions on use of real property, minor defects or irregularities of title and other similar encumbrances that do not secure any monetary obligation incurred in the Ordinary Course of Business which do not interfere with the Ordinary Course of Business;

(i) any interest or title or right of a lessor or sub-lessor under any lease or sub-lease entered into in the Ordinary Course of Business and covering only the assets so leased;

(j) normal and customary rights of setoff upon deposits in favor of depository institutions, and Liens of a collecting bank on Payment Items in the course of collection;

(k) Liens on assets of an Excluded Subsidiary that secures Permitted Debt of such Excluded Subsidiary;

(l) Liens securing Revolving Loan Obligations and Refinancing Debt in respect thereof, so long as the holders of such Revolving Loan Obligations or Indebtedness remain subject to the Intercreditor Agreement;

(m) Liens existing as of the Closing Date and shown on Schedule 10.2.2 and any extensions or renewals thereof in connection with any Refinancing Debt with respect to such Indebtedness secured by such Liens;

(n) pledges and deposits made in the Ordinary Course of Business in compliance with workmen’s compensation, unemployment insurance and other social security laws and regulations;

(o) any license or sub-license entered into in the Ordinary Course of Business and not interfering with such Obligor’s or its Subsidiaries’ conduct of its respective business, and the interest of any non-exclusive licensors under license agreements (including, for the avoidance of doubt, relating to Intellectual Property);

 

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(p) Liens arising from precautionary UCC financing statements filed in connection with operating leases;

(q) Liens on cash earnest money deposits made in connection with Permitted Acquisitions or other acquisitions of assets permitted hereunder;

(r) Liens granted in the Ordinary Course of Business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under Section 10.2.1(o) hereof;

(s) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties not yet delinquent in connection with the importation of goods in the Ordinary Course of Business; and

(t) other Liens securing liabilities (other than Borrowed Money) in an aggregate amount not to exceed $5,000,000 at any time outstanding.

10.2.3 Revolver Usage . Permit the aggregate amount of outstanding Revolving Loans to exceed $0 on (x) the last Saturday of December of each Fiscal Year and (y) each day during a sixty (60) day period that includes the last Saturday of December of such Fiscal Year.

10.2.4 Distributions; Upstream Payments . Declare or make any Distributions, except Upstream Payments; or create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, except for restrictions under the Loan Documents, under the Revolving Loan Documents, under Applicable Law or in effect on the Closing Date as shown on Schedule 9.1.15 .

10.2.5 Restricted Investments . Make any Restricted Investment.

10.2.6 Disposition of Assets . Make any Asset Disposition, except a Permitted Asset Disposition, a disposition of Equipment under Section  8.4.2 , or a transfer of Property by a Subsidiary or Obligor to Borrower.

10.2.7 Capital Expenditures . Make Capital Expenditures (a) in excess of $21,000,000 in the aggregate during Fiscal Year 2017; (b) in excess of $19,000,000 in the aggregate during Fiscal Year 2018; (c) in excess of $17,000,000 in the aggregate during Fiscal Year 2019; and (d) in excess of $15,000,000 in the aggregate during the remaining Fiscal Years during the term of this Agreement; provided , however , that if the amount of Capital Expenditures permitted to be made in any Fiscal Year exceeds the amount actually made, up to $4,000,000 of such excess may be carried forward to the next Fiscal Year.

10.2.8 Restrictions on Payment of Certain Debt . Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any Indebtedness, except:

(a) regularly scheduled payments of principal, interest and fees, but if such Indebtedness is Subordinated Debt, only to the extent permitted under any subordination agreement relating to such Indebtedness (and a Senior Officer of Borrower shall certify to Agent, not less than five (5) Business Days prior to the date of payment, that all conditions under such agreement have been satisfied);

 

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(b) any prepayment in respect of such Indebtedness so long as the Payment Conditions are satisfied;

(c) any prepayments in connection with any refinancing of Indebtedness otherwise permitted hereunder so long as the Refinancing Conditions are satisfied with respect to such Refinancing Debt;

(d) any payments upon conversion of any such Indebtedness into common stock of Borrower made solely in common stock of Borrower, in each case in connection with such conversion; and

(e) payments in respect of the Revolving Loan Obligations.

10.2.9 Fundamental Changes .

(a) Merge, combine or consolidate with any Person, or liquidate or wind up or dissolve itself (or suffer any liquidation or dissolution), or sell, lease, assign, transfer or otherwise dispose of, all or substantially all of its Property, business or assets, whether in a single transaction or in a series of related transactions, except for (i) mergers or consolidations of a wholly-owned Subsidiary with another wholly-owned Subsidiary; provided that if any party to any such transaction is Borrower, the surviving entity of such transaction shall be Borrower; and if any party to any such transaction is an Obligor that is not Borrower, the surviving entity of such transaction shall be an Obligor; (ii) mergers or consolidations of a wholly-owned Subsidiary into Borrower; (iii) sales, leases, transfers or other dispositions by a Subsidiary (the “ Transferring Subsidiary ”) of any or all of its assets (upon voluntary liquidation, winding up or dissolution (which shall be permitted so long as such Subsidiary’s assets are disposed of in accordance with this clause (iii)) or otherwise) to any other Subsidiary; provided that if such Transferring Subsidiary is a Subsidiary Guarantor, such sale, lease, transfer or disposition shall be to an Obligor and if such Transferring Subsidiary is a Subsidiary of Borrower, such sale, lease, transfer or disposition shall be to Borrower; and (iv) Permitted Acquisitions.

(b) Solely in the case of an Obligor, change its name or conduct business under any fictitious name; change its tax, charter or other organizational identification number; change its form or state of organization, except in each case under this clause (b) if (I) such Obligor shall have given Agent ten (10) Business Days prior written notice thereof and (II) Agent shall have taken all steps reasonably deemed necessary by Agent to maintain the validity, enforceability, perfection and priority of Agent’s security interest in the Collateral of such Obligor, and Obligor shall have executed and delivered such documents, instruments and agreements requested by Agent in connection therewith.

10.2.10 Subsidiaries . Form or acquire any Subsidiary after the Closing Date, except in accordance with Sections 10.1.14 , 10.2.5 and 10.2.9 ; or permit any existing Subsidiary to issue any additional Equity Interests except directors’ qualifying shares.

 

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10.2.11 Organic Documents . Amend, modify or otherwise change any of its Organic Documents, except in connection with a transaction permitted under Section  10.2.9 or the deletion of Section 7 of the Amended and Restated Certificate of Incorporation of the Borrower.

10.2.12 Tax Consolidation . File or consent to the filing of any consolidated income tax return with any Person other than Borrower and Subsidiaries.

10.2.13 Accounting Changes . Make any material change in accounting treatment or reporting practices, except as required by GAAP and in accordance with Section  1.2 ; or change its Fiscal Year.

10.2.14 Restrictive Agreements . Become a party to any Restrictive Agreement, except a Restrictive Agreement (a) in effect on the Closing Date; (b) relating to secured Indebtedness permitted hereunder, as long as the restrictions apply only to collateral for such Indebtedness; (c) constituting customary restrictions on assignment in leases and other contracts; or (d) the Revolving Loan Documents (together with any refinancings, renewals, replacements or extensions thereof; provided that the Refinancing Conditions are satisfied and the restrictions contained in the Refinancing Debt are no more restrictive than those contained in the agreements governing the Indebtedness being refinanced).

10.2.15 Hedging Agreements . Enter into any Hedging Agreement, except to hedge risks arising in the Ordinary Course of Business and not for speculative purposes.

10.2.16 Conduct of Business . Engage in any business, other than its business as conducted on the Closing Date and any activities incidental thereto.

10.2.17 Affiliate Transactions . Enter into or be party to any transaction with an Affiliate, except (a) transactions expressly permitted by the Loan Documents; (b) payment of reasonable compensation to officers and employees for services actually rendered, and payment of customary directors’ fees and indemnities; (c) transactions solely among Obligors; (d) transactions with Affiliates consummated prior to the Closing Date, as shown on Schedule 10.2.17 ; or (e) transactions with Affiliates in the Ordinary Course of Business, upon fair and reasonable terms fully disclosed to Agent and no less favorable than would be obtained in a comparable arm’s-length transaction with a non-Affiliate.

10.2.18 Plans . Become party to any Multiemployer Plan or Foreign Plan, other than any in existence on the Closing Date or establish any defined benefit plan.

10.2.19 Amendments to Debt .

(a) Amend, supplement or otherwise modify any document, instrument or agreement relating to any Subordinated Debt, if such modification (i) increases the principal balance of such Indebtedness, or increases any required payment of principal or interest; (ii) accelerates the date on which any installment of principal or any interest is due, or adds any additional redemption, put or prepayment provisions; (iii) shortens the final maturity date or otherwise accelerates amortization; (iv) increases the interest rate; (v) increases or adds any fees or charges; (vi) modifies any covenant in a manner or adds any representation, covenant or

 

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default that is more onerous or restrictive in any material respect for Borrower or any Subsidiary, or that is otherwise materially adverse to Borrower, any Subsidiary or Lenders; or (vii) results in the Obligations not constituting “Designated Senior Indebtedness” or “Senior Debt” (or any other defined term having a similar purpose) under, and as defined in, any indenture or other agreement related to such Subordinated Debt, or otherwise not being fully benefited by the subordination provisions thereof.

(b) Amend, supplement or otherwise modify any of the Revolving Loan Documents or Term Loan Facility, if such modification would contravene the provisions of the Intercreditor Agreement.

(c) Amend, supplement or otherwise modify any document, instrument or agreement relating to the Specified Unsecured Prepetition Debt, if such modification shortens the final maturity or decreases the weighted average life thereof.

10.2.20 Term Priority Collateral Account . Deposit any proceeds of Term Priority Collateral in any Deposit Account other than the Term Priority Collateral Account.

10.3 Financial Covenants .

10.3.1 Fixed Charge Coverage Ratio . Maintain as of the end of each Fiscal Quarter, a Fixed Charge Coverage Ratio of not less than the ratio set forth below for each four (4) consecutive Fiscal Quarter period then ended set forth below:

 

Applicable Ratio

  

Applicable Period

1.40:1.0    For the four (4) consecutive Fiscal Quarter periods ending July 1, 2017, September 30, 2017, December 30, 2017, March 31, 2018, June 30, 2018, September 29, 2018, December 29, 2018 and March 30, 2019
1.45:1.0    For the four (4) consecutive Fiscal Quarter period ending June 29, 2019
1.50:1.0    For the four (4) consecutive Fiscal Quarter periods ending September 28, 2019, December 28, 2019, March 28, 2020, June 27, 2020 and September 26, 2020
1.55:1.0    For the four (4) consecutive Fiscal Quarter periods ending December 26, 2020 and March 27, 2021
1.60:1.0    For the four (4) consecutive Fiscal Quarter periods ending June 26, 2021, September 25, 2021, December 25, 2021and March 26, 2022

10.3.2 Net Senior Leverage Ratio . Maintain as of the end of each Fiscal Quarter, a Net Senior Leverage Ratio of not greater than the ratio set forth below for each four (4) consecutive Fiscal Quarter period then ended set forth below:

 

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Applicable Ratio

  

Applicable Period

4.00:1.0    For the four (4) consecutive Fiscal Quarter periods ending July 1, 2017, September 30, 2017, December 30, 2017, March 31, 2018, June 30, 2018, September 29, 2018 and December 29, 2018
3.75:1.0    For the four (4) consecutive Fiscal Quarter periods ending March 30, 2019, June 29, 2019, September 28, 2019 and December 28, 2019
3.25:1.0    For the four (4) consecutive Fiscal Quarter periods ending March 28, 2020, June 27, 2020, September 26, 2020 and December 26, 2020
2.75:1.0    For the four (4) consecutive Fiscal Quarter periods ending March 27, 2021, June 26, 2021, September 25, 2021 and December 25, 2021
2.50:1.0    For the four (4) consecutive Fiscal Quarter period ending March 26, 2022

SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT

11.1 Events of Default . Each of the following shall be an “ Event of Default ” if it occurs for any reason whatsoever, whether voluntary or involuntary, by operation of law or otherwise:

(a) Borrower fails to pay its Obligations when due (whether at stated maturity, on demand, upon acceleration or otherwise);

(b) Any representation, warranty or other written statement of an Obligor made in connection with any Loan Documents or transactions contemplated thereby is incorrect or misleading in any material respect when given;

(c) An Obligor breaches or fail to perform any covenant contained in Section  2.5 , 8.1 , 8.2.4 , 8.2.5 , 8.5 , 8.6.2 , 10.1.1 , 10.1.2 , 10.1.16 , 10.2 or 10.3 ;

(d) An Obligor breaches or fails to perform any other covenant contained in any Loan Documents, and such breach or failure is not cured within thirty (30) days after a Senior Officer of such Obligor has knowledge thereof or receives written notice thereof from Agent, whichever is sooner; provided , however , that such notice and opportunity to cure shall not apply if the breach or failure to perform is not capable of being cured within such period or is a willful breach by an Obligor;

(e) A Guarantor repudiates, revokes or attempts to revoke its Guaranty; an Obligor or third party denies or contests the validity or enforceability of any Loan Documents or Obligations, or the perfection or priority of any Lien granted to Agent; or any Loan Document ceases to be in full force or effect for any reason (other than a waiver or release by Agent and Lenders);

 

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(f) Any breach or default of an Obligor occurs under (i) any Hedging Agreement with a net amount payable in excess of $2,500,000; (ii) any instrument or agreement to which it is a party or by which it or any of its Properties is bound, relating to any Indebtedness (other than the Obligations) in excess of $2,500,000, if the maturity of or any payment with respect to such Indebtedness may be accelerated or demanded due to such breach, in the case of clause (i) and (ii) after giving effect to any applicable grace periods; or (iii) any “Event of Default” under and as defined in the Revolving Loan Facility or any refinancing thereof;

(g) Any judgment or order for the payment of money is entered against an Obligor in an amount that exceeds, individually or cumulatively with all unsatisfied judgments or orders against all Obligors, $5,000,000 (net of insurance coverage therefor that has not been denied by the insurer), unless a stay of enforcement of such judgment or order is in effect, by reason of a pending appeal or otherwise;

(h) A loss, theft, damage or destruction occurs with respect to any Collateral if the amount not covered by insurance exceeds $2,500,000;

(i) An Obligor is enjoined, restrained or in any way prevented by any Governmental Authority from conducting any material part of its business; an Obligor suffers the loss, revocation or termination of any material license, permit, lease or agreement necessary to its business; there is a cessation of any material part of an Obligor’s business for a material period of time; any material Collateral or Property of an Obligor is taken or impaired through condemnation; an Obligor agrees to or commences any liquidation, dissolution or winding up of its affairs except as expressly permitted by Section  10.2.9 ;

(j) An Insolvency Proceeding is commenced by an Obligor; an Obligor makes an offer of settlement, extension or composition to its unsecured creditors generally; a trustee is appointed to take possession of any substantial Property of or to operate any of the business of an Obligor; or an Insolvency Proceeding is commenced against an Obligor and: such Obligor consents to institution of the proceeding, the petition commencing the proceeding is not timely contested by such Obligor, the petition is not dismissed within thirty (30) days after filing, or an order for relief is entered in the proceeding;

(k) (A) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan; (B) an Obligor or ERISA Affiliate fails to pay when due any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan; or (C) any event similar to the foregoing occurs or exists with respect to a Foreign Plan, that in each of clauses (A) through (C), has resulted or would reasonably be expected to result in a Material Adverse Effect; or

(l) A Change of Control occurs.

11.2 Remedies upon Default . If an Event of Default described in Section 11.1(j) occurs with respect to Borrower, then to the extent permitted by Applicable Law, all Obligations shall become automatically due and payable and all Commitments shall terminate, without any action by Agent or notice of any kind. In addition, or if any other Event of Default exists, Agent may in its discretion (and shall upon written direction of Required Lenders) do any one or more of the following from time to time:

 

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(a) declare any Obligations immediately due and payable, whereupon they shall be due and payable without diligence, presentment, demand, protest or notice of any kind, all of which are hereby waived by Borrower to the fullest extent permitted by law;

(b) terminate, reduce or condition any Commitment;

(c) require Obligors to Cash Collateralize their Obligations that are contingent or not yet due and payable; and

(d) exercise any other rights or remedies afforded under any agreement, by law, at equity or otherwise, including the rights and remedies of a secured party under the UCC. Such rights and remedies include the rights to (i) take possession of any Collateral; (ii) require Borrower to assemble Collateral, at Borrower’s expense, and make it available to Agent at a place designated by Agent; (iii) enter any premises where Collateral is located and store Collateral on such premises until sold (and if the premises are owned or leased by Borrower, Borrower agrees not to charge for such storage); and (iv) sell or otherwise dispose of any Collateral in its then condition, or after any further manufacturing or processing thereof, at public or private sale, with such notice as may be required by Applicable Law, in lots or in bulk, at such locations, all as Agent, in its discretion, deems advisable. Borrower agrees that ten (10) days’ notice of any proposed sale or other disposition of Collateral by Agent shall be reasonable and that any sale conducted on the internet or to a licensor of Intellectual Property shall be commercially reasonable. Agent may conduct sales on any Obligor’s premises, without charge, and any sale may be adjourned from time to time in accordance with Applicable Law. Agent shall have the right to sell, lease or otherwise dispose of any Collateral for cash, credit or any combination thereof, and Agent may purchase any Collateral at public or, if permitted by law, private sale and, in lieu of actual payment of the purchase price, may credit bid and set off the amount of such price against the Obligations.

11.3 License . For purpose of enabling Agent to exercise rights and remedies under this Agreement and the other Loan Documents at such time as Agent shall lawfully be entitled to exercise such rights and remedies, each Obligor hereby grants to Agent an irrevocable, non-exclusive license, sub-license or other right to use, license or sub-license and otherwise exploit (without payment of royalty or other compensation to any Person) any or all Intellectual Property owned by Obligors; provided , however , that such license (i) shall be subject to those exclusive licenses granted by Obligors in effect on the date hereof and those granted by any Obligor hereafter, to the extent conflicting, (ii) may be exercised, at the option of Agent, only upon the occurrence and during the continuation of an Event of Default, provided, further, that any license, sublicense or other transaction entered into by Agent in accordance herewith shall be binding upon Obligor notwithstanding any subsequent cure of an Event of Default and (iii) shall apply to the use of the trademarks or service marks in connection with goods and services of similar type and quality to those theretofore sold by such Obligor under such trademark or service mark. The foregoing license or sublicense shall include access to all media in which any of the licensed or sublicensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof, subject to and solely to the extent permitted by any existing licenses or agreements relating thereto.

 

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11.4 Setoff . At any time during an Event of Default, Agent, Lenders, and any of their Affiliates are authorized, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by Agent, such Lender or such Affiliate to or for the credit or the account of an Obligor against its Obligations, whether or not Agent, such Lender or such Affiliate shall have made any demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or are owed to a branch or office of Agent, such Lender or such Affiliate different from the branch or office holding such deposit or obligated on such indebtedness. The rights of Agent, each Lender and each such Affiliate under this Section  11.4 are in addition to other rights and remedies (including other rights of setoff) that such Person may have.

11.5 Remedies Cumulative; No Waiver .

11.5.1 Cumulative Rights . All agreements, warranties, guaranties, indemnities and other undertakings of Obligors under the Loan Documents are cumulative and not in derogation of each other. The rights and remedies of Agent and Lenders under the Loan Documents are cumulative, may be exercised at any time and from time to time, concurrently or in any order, and are not exclusive of any other rights or remedies available by agreement, by law, at equity or otherwise. All such rights and remedies shall continue in full force and effect until Full Payment of all Obligations.

11.5.2 Waivers . No waiver or course of dealing shall be established by (a) the failure or delay of Agent or any Lender to require strict performance by any Obligor under any Loan Document, or to exercise any rights or remedies with respect to Collateral or otherwise; (b) the making of any Loan during a Default, Event of Default or other failure to satisfy any conditions precedent; or (c) acceptance by Agent or any Lender of any payment or performance by an Obligor under any Loan Documents in a manner other than that specified therein. Any failure to satisfy a financial covenant on a measurement date shall not be cured or remedied by satisfaction of such covenant on a subsequent date.

SECTION 12. AGENT

12.1 Appointment, Authority and Duties of Agent .

12.1.1 Appointment and Authority . Each Secured Party appoints and designates TCW as Agent under all Loan Documents. Agent may, and each Secured Party authorizes Agent to, enter into all Loan Documents to which Agent is intended to be a party and accept all Security Documents. Any action taken by Agent in accordance with the provisions of the Loan Documents, and the exercise by Agent of any rights or remedies set forth therein, together with all other powers reasonably incidental thereto, shall be authorized by and binding upon all Secured Parties. Without limiting the generality of the foregoing, Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with

 

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respect to all payments and collections arising in connection with the Loan Documents; (b) execute and deliver as Agent each Loan Document, including the Intercreditor Agreement and any other intercreditor or subordination agreement, and accept delivery of each Loan Document; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) manage, supervise or otherwise deal with Collateral; and (e) take any Enforcement Action or otherwise exercise any rights or remedies with respect to any Collateral or under any Loan Documents, Applicable Law or otherwise. Agent alone shall be authorized to determine eligibility and applicable advance rates under the Borrowing Base, whether to impose or release any reserve, or whether any conditions to funding have been satisfied, which determinations and judgments, if exercised in good faith, shall exonerate Agent from liability to any Secured Party or other Person for any error in judgment.

12.1.2 Duties . The title of “Agent” is used solely as a matter of market custom and the duties of Agent are administrative in nature only. Agent has no duties except those expressly set forth in the Loan Documents, and in no event does Agent have any agency, fiduciary or implied duty to or relationship with any Secured Party or other Person by reason of any Loan Document or related transaction. The conferral upon Agent of any right shall not imply a duty to exercise such right, unless instructed to do so by Lenders in accordance with this Agreement.

12.1.3 Agent Professionals . Agent may perform its duties through agents and employees. Agent may consult with and employ Agent Professionals, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by an Agent Professional. Agent shall not be responsible for the negligence or misconduct of any agents, employees or Agent Professionals selected by it with reasonable care.

12.1.4 Instructions of Required Lenders . The rights and remedies conferred upon Agent under the Loan Documents may be exercised without the necessity of joining any other party, unless required by Applicable Law. In determining compliance with a condition for any action hereunder, including satisfaction of any condition in Section  6 , Agent may presume that the condition is satisfactory to a Secured Party unless Agent has received notice to the contrary from such Secured Party before Agent takes the action. Agent may request instructions from Required Lenders or other Secured Parties with respect to any act (including the failure to act) in connection with any Loan Documents or Collateral, and may seek assurances to its satisfaction from Secured Parties of their indemnification obligations against Claims that could be incurred by Agent. Agent may refrain from any act until it has received such instructions or assurances, and shall not incur liability to any Person by reason of so refraining. Instructions of Required Lenders shall be binding upon all Secured Parties, and no Secured Party shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting pursuant to instructions of Required Lenders. Notwithstanding the foregoing, instructions by and consent of specific parties shall be required to the extent provided in Section  14.1.1 . In no event shall Agent be required to take any action that it determines in its discretion is contrary to Applicable Law or any Loan Documents or could subject any Agent Indemnitee to liability.

 

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12.2 Agreements Regarding Collateral and Borrower Materials .

12.2.1 Lien Releases; Care of Collateral . Secured Parties authorize Agent to release any Lien with respect to any Collateral (a) upon Full Payment of the Obligations; (b) that is the subject of a disposition or Lien that Borrower certifies in writing is a Permitted Asset Disposition or Permitted Lien entitled to priority over Agent’s Liens (and Agent may rely conclusively on any such certificate without further inquiry); (c) that does not constitute a material part of the Collateral; or (d) subject to Section  14.1 , with the consent of Required Lenders. Secured Parties authorize Agent to subordinate its Liens to any Purchase Money Lien or other Lien entitled to priority hereunder. Agent has no obligation to assure that any Collateral exists or is owned by an Obligor, or is cared for, protected or insured, nor to assure that Agent’s Liens have been properly created, perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care with respect to any Collateral.

12.2.2 Possession of Collateral . Agent and Secured Parties appoint each Lender as agent (for the benefit of Secured Parties) for the purpose of perfecting Liens in any Collateral held or controlled by such Lender, to the extent such Liens are perfected by possession or control. If any Lender obtains possession or control of any Collateral, it shall notify Agent thereof and, promptly upon Agent’s request, deliver such Collateral to Agent or otherwise deal with it in accordance with Agent’s instructions.

12.2.3 Reports . Agent shall promptly provide to Lenders, when complete, any examination or report prepared for Agent with respect to any Obligor (“ Report ”). Reports and other Borrower Materials may be made available to Lenders by providing access to them on the Platform, but Agent shall not be responsible for system failures or access issues that may occur from time to time. Each Lender agrees (a) that Reports are not intended to be comprehensive examinations or reports, and that Agent or any other Person performing an examination or report will inspect only limited information and will rely significantly upon Borrower’s books, records and representations; (b) that Agent makes no representation or warranty as to the accuracy or completeness of any Borrower Materials and shall not be liable for any information contained in or omitted from any Borrower Materials, including any Report; and (c) to keep all Borrower Materials confidential and strictly for such Lender’s internal use, not to distribute any Report or other Borrower Materials (or the contents thereof) to any Person (except to such Lender’s Participants, attorneys and accountants), and to use all Borrower Materials solely for administration of the Obligations. Each Lender shall indemnify and hold harmless Agent and any other Person preparing a Report from any action such Lender may take as a result of or any conclusion it may draw from any Borrower Materials, as well as from any Claims arising as a direct or indirect result of Agent furnishing same to such Lender, via the Platform or otherwise.

12.3 Reliance By Agent . Agent shall be entitled to rely, and shall be fully protected in relying, upon any certification, notice or other communication (including those by telephone, telex, telegram, telecopy or e-mail) believed by it to be genuine and correct and to have been signed, sent or made by the proper Person. Agent shall have a reasonable and practicable amount of time to act upon any instruction, notice or other communication under any Loan Document, and shall not be liable for any delay in acting.

 

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12.4 Action Upon Default . Agent shall not be deemed to have knowledge of any Default or Event of Default, or of any failure to satisfy any conditions in Section  6 , unless it has received written notice from Borrower or Required Lenders specifying the occurrence and nature thereof. If any Lender acquires knowledge of a Default, Event of Default or failure of such conditions, it shall promptly notify Agent and the other Lenders thereof in writing. Each Secured Party agrees that, except as otherwise provided in any Loan Documents or with the written consent of Agent and Required Lenders, it will not take any Enforcement Action, accelerate Obligations or assert any rights relating to any Collateral.

12.5 Ratable Sharing . If any Lender obtains any payment or reduction of any Obligation, whether through set-off or otherwise, in excess of its ratable share of such Obligation, such Lender shall forthwith purchase from Secured Parties participations in the affected Obligation as are necessary to share the excess payment or reduction on a pro rata basis or in accordance with Section  5.5.2 , as applicable. If any of such payment or reduction is thereafter recovered from the purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. Notwithstanding the foregoing, if a Defaulting Lender obtains a payment or reduction of any Obligation, it shall immediately turn over the full amount thereof to Agent for application under Section  4.2.2 and it shall provide a written statement to Agent describing the Obligation affected by such payment or reduction. No Lender shall set off against a Dominion Account without Agent’s prior consent.

12.6 Indemnification . EACH SECURED PARTY SHALL INDEMNIFY AND HOLD HARMLESS AGENT INDEMNITEES, TO THE EXTENT NOT REIMBURSED BY OBLIGORS, ON A PRO RATA BASIS, AGAINST ALL CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE; PROVIDED THAT ANY CLAIM AGAINST AN AGENT INDEMNITEE RELATES TO OR ARISES FROM ITS ACTING AS OR FOR AGENT (IN THE CAPACITY OF AGENT); PROVIDED FURTHER THAT NO SECURED PARTY SHALL HAVE ANY OBLIGATION TO INDEMNIFY ANY AGENT INDEMNITEE HEREUNDER TO THE EXTENT THAT SUCH CLAIM IS DETERMINED IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH AGENT INDEMNITEE. In Agent’s discretion, it may reserve for any Claims made against an Agent Indemnitee, and may satisfy any judgment, order or settlement relating thereto, from proceeds of Collateral prior to making any distribution of Collateral proceeds to Secured Parties. If Agent is sued by any receiver, trustee or other Person for any alleged preference or fraudulent transfer, then any monies paid by Agent in settlement or satisfaction of such proceeding, together with all interest, costs and expenses (including attorneys’ fees) incurred in the defense of same, shall be promptly reimbursed to Agent by each Secured Party to the extent of its pro rata share.

12.7 Limitation on Responsibilities of Agent . Agent shall not be liable to any Secured Party for any action taken or omitted to be taken under the Loan Documents, except for losses directly and solely caused by Agent’s gross negligence or willful misconduct. Agent does not assume any responsibility for any failure or delay in performance or any breach by any Obligor, Lender or other Secured Party of any obligations under the Loan Documents. Agent does not make any express or implied representation, warranty or guarantee to Secured Parties with respect to any Obligations, Collateral, Liens, Loan Documents or Obligor. No Agent

 

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Indemnitee shall be responsible to Secured Parties for any recitals, statements, information, representations or warranties contained in any Loan Documents or Borrower Materials; the execution, validity, genuineness, effectiveness or enforceability of any Loan Documents; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Obligations; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor or Account Debtor. No Agent Indemnitee shall have any obligation to any Secured Party to ascertain or inquire into the existence of any Default or Event of Default, the observance by any Obligor of any terms of the Loan Documents, or the satisfaction of any conditions precedent contained in any Loan Documents.

12.8 Successor Agent and Co-Agents .

12.8.1 Resignation; Successor Agent . Agent may resign at any time by giving at least thirty (30) days written notice thereof to Lenders and Borrower. Required Lenders may appoint a successor to replace the resigning Agent, which successor shall be (a) a Lender or an Affiliate of a Lender; or (b) a financial institution reasonably acceptable to Required Lenders and (provided no Default or Event of Default exists) Borrower. If no successor agent is appointed prior to the effective date of Agent’s resignation, then Agent may appoint a successor agent that is a financial institution acceptable to it (which shall be a Lender unless no Lender accepts the role) or in the absence of such appointment, Required Lenders shall on such date assume all rights and duties of Agent hereunder. Upon acceptance by any successor Agent of its appointment hereunder, such successor Agent shall thereupon succeed to and become vested with all the powers and duties of the retiring Agent without further act. On the effective date of its resignation, the retiring Agent shall be discharged from its duties and obligations hereunder but shall continue to have all rights and protections under the Loan Documents with respect to actions taken or omitted to be taken by it while Agent, including the indemnification set forth in Sections 12.6 and 14.2 , and all rights and protections under this Section  12 . Any successor to TCW by merger or acquisition of stock or this loan shall continue to be Agent hereunder without further act on the part of any Secured Party or Obligor.

12.8.2 Co-Collateral Agent . If appropriate under Applicable Law, Agent may appoint a Person to serve as a co-collateral agent or separate collateral agent under any Loan Document. Each right, remedy and protection intended to be available to Agent under the Loan Documents shall also be vested in such agent. Secured Parties shall execute and deliver any instrument or agreement that Agent may request to effect such appointment. If any such agent shall die, dissolve, become incapable of acting, resign or be removed, then all the rights and remedies of the agent, to the extent permitted by Applicable Law, shall vest in and be exercised by Agent until appointment of a new agent.

12.9 Due Diligence and Non-Reliance . Each Lender acknowledges and agrees that it has, independently and without reliance upon Agent or any other Lenders, and based upon such documents, information and analyses as it has deemed appropriate, made its own credit analysis of each Obligor and its own decision to enter into this Agreement and to fund the Loans hereunder. Each Secured Party has made such inquiries as it feels necessary concerning the Loan Documents, Collateral and Obligors. Each Secured Party acknowledges and agrees that the

 

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other Secured Parties have made no representations or warranties concerning any Obligor, any Collateral or the legality, validity, sufficiency or enforceability of any Loan Documents or Obligations. Each Secured Party will, independently and without reliance upon any other Secured Party, and based upon such financial statements, documents and information as it deems appropriate at the time, continue to make and rely upon its own credit decisions in making the Loans, and in taking or refraining from any action under any Loan Documents. Except for notices, reports and other information expressly requested by a Lender, Agent shall have no duty or responsibility to provide any Secured Party with any notices, reports or certificates furnished to Agent by any Obligor or any credit or other information concerning the affairs, financial condition, business or Properties of any Obligor (or any of its Affiliates) which may come into possession of Agent or its Affiliates.

12.10 Remittance of Payments and Collections .

12.10.1 Remittances Generally . All payments by any Lender to Agent shall be made by the time and on the day set forth in this Agreement, in immediately available funds. If no time for payment is specified or if payment is due on demand by Agent and request for payment is made by Agent by 1:00 p.m. on a Business Day, payment shall be made by Lender not later than 3:00 p.m. on such day, and if request is made after 1:00 p.m., then payment shall be made by 11:00 a.m. on the next Business Day. Payment by Agent to any Secured Party shall be made by wire transfer, in the type of funds received by Agent. Any such payment shall be subject to Agent’s right of offset for any amounts due from such payee under the Loan Documents.

12.10.2 Failure to Pay . If any Secured Party fails to pay any amount when due by it to Agent pursuant to the terms hereof, such amount shall bear interest, from the due date until paid in full, at the rate determined by Agent as customary for interbank compensation for two (2) Business Days and thereafter at the Default Rate for Prime Rate Loans. In no event shall Borrower be entitled to receive credit for any interest paid by a Secured Party to Agent.

12.10.3 Recovery of Payments . If Agent pays an amount to a Secured Party in the expectation that a related payment will be received by Agent from an Obligor and such related payment is not received, then Agent may recover such amount from the Secured Party. If Agent determines that an amount received by it must be returned or paid to an Obligor or other Person pursuant to Applicable Law or otherwise, then Agent shall not be required to distribute such amount to any Secured Party. If any amounts received and applied by Agent to Obligations held by a Secured Party are later required to be returned by Agent pursuant to Applicable Law, such Secured Party shall pay to Agent, on demand, its share of the amounts required to be returned.

12.11 Individual Capacities . As a Lender, TCW shall have the same rights and remedies under the Loan Documents as any other Lender, and the terms “Lenders,” “Required Lenders” or any similar term shall include TCW in its capacity as a Lender. Agent, Lenders and their Affiliates may accept deposits from, lend money to, act as financial or other advisor to, and generally engage in any kind of business with, Obligors and their Affiliates, as if they were not Agent or Lenders hereunder, without any duty to account therefor to any Secured Party. In their individual capacities, Agent, Lenders and their Affiliates may receive information regarding Obligors, their Affiliates and their Account Debtors (including information subject to confidentiality obligations), and shall have no obligation to provide such information to any Secured Party.

 

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12.12 No Third Party Beneficiaries . This Section  12 is an agreement solely among Secured Parties and Agent, and shall survive Full Payment of the Obligations. This Section  12 does not confer any rights or benefits upon Borrower or any other Person. As between Borrower and Agent, any action that Agent may take under any Loan Documents or with respect to any Obligations shall be conclusively presumed to have been authorized and directed by Secured Parties.

12.13 Intercreditor Agreement . Each Lender hereunder (a) consents to the subordination of Liens provided for in the Intercreditor Agreement; (b) agrees that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement; (c) authorizes and instructs Agent to enter into the Intercreditor Agreement as Term Loan Agent on behalf of such holder of “Term Loan Obligations” (as defined therein); and (d) acknowledges (or is deemed to acknowledge) that a copy of the Intercreditor Agreement was delivered, or made available, to such Lender. Each Lender hereby acknowledges that it has received and reviewed the Intercreditor Agreement.

SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS

13.1 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of Borrower, Agent, Lenders, Secured Parties, and their respective successors and assigns, except that (a) Borrower shall have no right to assign its rights or delegate its obligations under any Loan Documents; and (b) any assignment by a Lender must be made in compliance with Section  13.3 . Agent may treat the Person which made any Loan as the owner thereof for all purposes until such Person makes an assignment in accordance with Section  13.3 . Any authorization or consent of a Lender shall be conclusive and binding on any subsequent transferee or assignee of such Lender.

13.2 Participations .

13.2.1 Permitted Participants; Effect . Subject to Section  13.3.3 , any Lender may, sell to a financial institution (“ Participant ”) a participating interest in the rights and obligations of such Lender under any Loan Documents. Despite any sale by a Lender of participating interests to a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged, it shall remain solely responsible to the other parties hereto for performance of such obligations, it shall remain the holder of its Loans and Commitments for all purposes, all amounts payable by Borrower shall be determined as if it had not sold such participating interests, and Borrower and Agent shall continue to deal solely and directly with such Lender in connection with the Loan Documents. Each Lender shall be solely responsible for notifying its Participants of any matters under the Loan Documents, and Agent and the other Lenders shall not have any obligation or liability to any such Participant. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section  5.8 unless Borrower agrees otherwise in writing.

 

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13.2.2 Voting Rights . Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, waiver or other modification of a Loan Document other than that which forgives principal, interest or fees, reduces the stated interest rate or fees payable with respect to any Loan or Commitment in which such Participant has an interest, postpones the Maturity Date or any date fixed for any regularly scheduled payment of principal, interest or fees on such Loan or Commitment, or releases Borrower, any Guarantor or substantially all Collateral.

13.2.3 Participant Register . Each Lender that sells a participation shall, acting solely for this purpose as an agent of Borrower, maintain a register in which it enters the Participant’s name, address and interest in Commitments and Loans (and stated interest). Entries in the register shall be conclusive, absent manifest error, and such Lender shall treat each Person recorded in the register as the owner of the participation for all purposes, notwithstanding any notice to the contrary. No Lender shall have an obligation to disclose any information in such register except to the extent necessary to establish that a Participant’s interest is in registered form under the Code.

13.2.4 Benefit of Setoff . Borrower agrees that each Participant shall have a right of set-off in respect of its participating interest to the same extent as if such interest were owing directly to a Lender, and each Lender shall also retain the right of set-off with respect to any participating interests sold by it. By exercising any right of set-off, a Participant agrees to share with Lenders all amounts received through its set-off, in accordance with Section  12.5 as if such Participant were a Lender.

13.3 Assignments .

13.3.1 Permitted Assignments . A Lender may assign to an Eligible Assignee any of its rights and obligations under the Loan Documents, as long as (a) each assignment is of a constant, and not a varying, percentage of the transferor Lender’s rights and obligations under the Loan Documents and, in the case of a partial assignment, is in a minimum principal amount of $5,000,000 (unless otherwise agreed by Agent in its discretion) and integral multiples of $1,000,000 in excess of that amount; (b) except in the case of an assignment in whole of a Lender’s rights and obligations, the aggregate amount of the Commitments retained by the transferor Lender is at least $5,000,000 (unless otherwise agreed by Agent in its discretion); and (c) the parties to each such assignment shall execute and deliver to Agent, for its acceptance and recording, an Assignment and Acceptance. Nothing herein shall limit the right of a Lender to pledge or assign any rights under the Loan Documents to secure obligations of such Lender, including a pledge or assignment to a Federal Reserve Bank; provided , however , that no such pledge or assignment shall release the Lender from its obligations hereunder nor substitute the pledge or assignee for such Lender as a party hereto.

13.3.2 Effect; Effective Date . Upon delivery to Agent of an executed Assignment Agreement, assignment notice in the form of Exhibit B and a processing fee of $3,500 (unless otherwise agreed by Agent in its discretion), and to the extent that the Eligible Assignee is not an existing Lender, an administrative questionnaire satisfactory to Agent and all such documentation and other information with respect to the assignee that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules

 

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and regulations, including the Patriot Act, the Agent shall record the assignment in the Register in accordance with this Section 13.3.4, and as long as the assignment is also in compliance with this Section 13.3. The assignment shall become effective upon said recordation in the Register. From such effective date, the Eligible Assignee shall for all purposes be a Lender under the Loan Documents, and shall have all rights and obligations of a Lender thereunder; provided , that such Eligible Assignee (for the avoidance of doubt, including any Eligible Assignee that is already a Lender hereunder at the time of assignment) shall not be entitled to receive any greater payment under Section  5.8 than that which its assignor would have been entitled to receive had no such assignment occurred, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after such assignment. Upon consummation of an assignment, the transferor Lender, Agent and Borrower shall make appropriate arrangements for issuance of replacement and/or new notes, if applicable.

13.3.3 Certain Assignees . No assignment or participation may be made to Borrower, an Affiliate of Borrower, Defaulting Lender or a natural person. Any assignment by a Defaulting Lender shall be effective only upon payment by the Eligible Assignee or Defaulting Lender to Agent of an aggregate amount sufficient, upon distribution (through direct payment, purchases of participations or other compensating actions as Agent deems appropriate), to satisfy all funding and payment liabilities then owing by the Defaulting Lender hereunder. If an assignment by a Defaulting Lender shall become effective under Applicable Law for any reason without compliance with the foregoing sentence, then the assignee shall be deemed a Defaulting Lender for all purposes until such compliance occurs.

13.3.4 Register . Agent, acting solely for this purpose as an agent of Borrower, shall maintain (a) a copy (or electronic equivalent) of each Assignment and Acceptance delivered to it, and (b) a register for recordation of the names, addresses and Commitments of, and the Loans and interest owing to, each Lender. Entries in the register shall be conclusive, absent manifest error, and Borrower, Agent and Lenders shall treat each Person recorded in such register as a Lender for all purposes under the Loan Documents, notwithstanding any notice to the contrary. The register shall be available for inspection by Borrower or any Lender (with respect to any such Lender’s Loans), from time to time upon reasonable notice.

SECTION 14. MISCELLANEOUS

14.1 Consents, Amendments and Waivers .

14.1.1 Amendment . No modification of any Loan Document, including any extension or amendment of a Loan Document or any waiver of a Default or Event of Default, shall be effective without the prior written agreement of Agent (with the consent of Required Lenders) and each Obligor party to such Loan Document; provided , however , that

(a) without the prior written consent of Agent, no modification shall alter any provision in a Loan Document that relates to any rights, duties or discretion of Agent;

(b) without the prior written consent of each affected Lender, including a Defaulting Lender, no modification shall (i) increase the Commitment of such Lender; (ii) reduce the amount of, or waive or delay payment of, any principal, interest or fees payable to such Lender; (iii) extend the Maturity Date; or (iv) amend this clause (c);

 

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(c) without the prior written consent of all Lenders (except any Defaulting Lender), no modification shall (i) alter Section  2.4 or 14.1.1 ; (ii) amend the definition of Required Lenders; (iii) release all or substantially all Collateral; (iv) except in connection with a merger, disposition or similar transaction expressly permitted hereby, release any Obligor from liability for any Obligations;

(d) Agent and Borrower may amend any Loan Document (i) to correct administrative errors or omissions, or to effect administrative changes that are not adverse to any Lender, (ii) to correct, amend, cure any ambiguity, inconsistency, defect or correct any typographical error or other manifest error in this Agreement or any other Loan Document, (iii) to comply with local law or advice of local counsel in respect of a Security Document or (iv) to cause a Security Document to be consistent with this Agreement and other Loan Documents. Notwithstanding anything to the contrary contained herein, such amendment shall become effective without any further consent of any other party to such Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof.

14.1.2 Limitations . The agreement of Borrower shall not be required for any modification of a Loan Document that deals solely with the rights and duties of Lenders and/or Agent as among themselves. Only the consent of the parties to any agreement relating to fees shall be required for modification of such agreement. Any waiver or consent granted by Agent or Lenders hereunder shall be effective only if in writing and only for the matter specified.

14.1.3 Payment for Consents . Borrower will not, directly or indirectly, pay any remuneration or other thing of value, whether by way of additional interest, fee or otherwise, to any Lender (in its capacity as a Lender hereunder) as consideration for agreement by such Lender with any modification of any Loan Documents, unless such remuneration or value is concurrently paid, on the same terms, on a Pro Rata basis to all Lenders providing their consent.

14.2 Indemnity . BORROWER SHALL INDEMNIFY AND HOLD HARMLESS THE INDEMNITEES AGAINST ANY CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE, INCLUDING CLAIMS ASSERTED BY ANY OBLIGOR OR OTHER PERSON OR ARISING FROM THE NEGLIGENCE OF AN INDEMNITEE. In no event shall any party to a Loan Document have any obligation thereunder to indemnify or hold harmless an Indemnitee with respect to a Claim that is determined in a final, non-appealable judgment by a court of competent jurisdiction to result from the gross negligence or willful misconduct of such Indemnitee.

14.3 Notices and Communications .

14.3.1 Notice Address . Subject to Section  5.1.4 , all notices and other communications by or to a party hereto shall be in writing and shall be given, if to Borrower, to it at School Specialty, Inc., W6316 Design Drive; Greenville, WI 54942; Attn: Chief Financial Officer; Telecopy (920) 882-5863, and, if to any other Person, at its address shown on the

 

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signature pages hereof (or, in the case of a Person who becomes a Lender after the Closing Date, at the address shown on its Assignment and Acceptance), or at such other address as a party may hereafter specify by notice in accordance with this Section  14.3 . Each communication shall be effective only (a) if given by facsimile transmission, when transmitted to the applicable facsimile number, if confirmation of receipt is received; (b) if given by mail, three (3) Business Days after deposit in the U.S. mail, with first-class postage pre-paid, addressed to the applicable address; or (c) if given by personal delivery, when duly delivered to the notice address with receipt acknowledged. Notwithstanding the foregoing, no notice to Agent pursuant to Section  2.1 , 2.2 , 2.3 or 3.1 shall be effective until actually received by the individual to whose attention at Agent such notice is required to be sent. Any written communication that is not sent in conformity with the foregoing provisions shall nevertheless be effective on the date actually received by the noticed party. Any notice received by Borrower shall be deemed received by Borrower.

14.3.2 Electronic Communications; Voice Mail . Electronic mail and internet websites may be used only for routine communications, such as delivery of Borrower Materials, administrative matters, distribution of Loan Documents, and matters permitted under Section  2.1 , 2.2 , 2.3 or 3.1 . Agent and Lenders make no assurances as to the privacy and security of electronic communications. Electronic and voice mail may not be used as effective notice under the Loan Documents.

14.3.3 Platform . Borrower Materials shall be delivered pursuant to procedures approved by Agent, including electronic delivery (if possible) upon request by Agent to an electronic system maintained by Agent (“ Platform ”). Borrower shall notify Agent of each posting of Borrower Materials on the Platform and the materials shall be deemed received by Agent only upon its receipt of such notice. Borrower Materials and other information relating to this credit facility may be made available to Secured Parties on the Platform, and Obligors and Secured Parties acknowledge that “public” information is not segregated from material non-public information on the Platform. The Platform is provided “as is” and “as available.” Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, and expressly disclaims liability for any errors or omissions in the Borrower Materials or any issues involving the Platform. 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 AGENT WITH RESPECT TO BORROWER MATERIALS OR THE PLATFORM. Secured Parties acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. No Agent Indemnitee shall have any liability to Borrower, Secured Parties or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) relating to use by any Person of the Platform or delivery of Borrower Materials and other information through the Platform or over the internet.

14.3.4 Non-Conforming Communications . Agent and Lenders may rely upon any communications purportedly given by or on behalf of Borrower even if they were not made in a manner specified herein, were incomplete or were not confirmed, or if the terms thereof, as understood by the recipient, varied from a later confirmation. Borrower shall indemnify and hold harmless each Indemnitee from any liabilities, losses, costs and expenses arising from any electronic or telephonic communication purportedly given by or on behalf of Borrower.

 

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14.4 Performance of Borrower’s Obligations . Agent may, in its discretion at any time and from time to time, at Borrower’s expense, pay any amount or do any act required of Borrower under any Loan Documents or otherwise lawfully requested by Agent to (a) enforce any Loan Documents or collect any Obligations; (b) protect, insure, maintain or realize upon any Collateral; or (c) defend or maintain the validity or priority of Agent’s Liens in any Collateral, including any payment of a judgment, insurance premium, warehouse charge, finishing or processing charge, or landlord claim, or any discharge of a Lien. All payments, costs and expenses (including Extraordinary Expenses) of Agent under this Section  14.4 shall be reimbursed to Agent by Borrower, on demand, with interest from the date incurred until paid in full at the Default Rate applicable to Prime Rate Loans. Any payment made or action taken by Agent under this Section  14.4 shall be without prejudice to any right to assert an Event of Default or to exercise any other rights or remedies under the Loan Documents.

14.5 Credit Inquiries . Agent and Lenders may (but shall have no obligation) to respond to usual and customary credit inquiries from third parties concerning any Obligor or Subsidiary.

14.6 Severability . Wherever possible, each provision of the Loan Documents shall be interpreted in such manner as to be valid under Applicable Law. If any provision is found to be invalid under Applicable Law, it shall be ineffective only to the extent of such invalidity and the remaining provisions of the Loan Documents shall remain in full force and effect.

14.7 Cumulative Effect; Conflict of Terms . The provisions of the Loan Documents are cumulative. The parties acknowledge that the Loan Documents may use several limitations or measurements to regulate similar matters, and they agree that these are cumulative and that each must be performed as provided. Except as otherwise provided in another Loan Document (by specific reference to the applicable provision of this Agreement), if any provision contained herein is in direct conflict with any provision in another Loan Document, the provision herein shall govern and control.

14.8 Counterparts; Execution . Any Loan Document may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement shall become effective when Agent has received counterparts bearing the signatures of all parties hereto. Delivery of a signature page of any Loan Document by telecopy or other electronic means shall be effective as delivery of a manually executed counterpart of such agreement. Any electronic signature, contract formation on an electronic platform and electronic record-keeping shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state law based on the Uniform Electronic Transactions Act. Upon request by Agent, any electronic signature or delivery shall be promptly followed by a manually executed or paper document.

 

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14.9 Entire Agreement . Time is of the essence with respect to all Loan Documents and Obligations. The Loan Documents constitute the entire agreement, and supersede all prior understandings and agreements, among the parties relating to the subject matter thereof.

14.10 Relationship with Lenders . The obligations of each Lender hereunder are several, and no Lender shall be responsible for the obligations or Commitments of any other Lender. Amounts payable hereunder to each Lender shall be a separate and independent debt. It shall not be necessary for Agent or any other Lender to be joined as an additional party in any proceeding for such purposes. Nothing in this Agreement and no action of Agent, Lenders or any other Secured Party pursuant to the Loan Documents or otherwise shall be deemed to constitute Agent and any Secured Party to be a partnership, joint venture or similar arrangement, nor to constitute control of any Obligor.

14.11 No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated by any Loan Document, Borrower acknowledges and agrees that (a)(i) this credit facility and any arranging or other services by Agent, any Lender, any of their Affiliates or any arranger are arm’s-length commercial transactions between Borrower and its Affiliates, on one hand, and Agent, any Lender, any of their Affiliates or any arranger, on the other hand; (ii) Borrower has consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate; and (iii) Borrower is capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated by the Loan Documents; (b) each of Agent, Lenders, their Affiliates and any arranger 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 Borrower, its Affiliates or any other Person, and has no obligation with respect to the transactions contemplated by the Loan Documents except as expressly set forth therein; and (c) Agent, Lenders, their Affiliates and any arranger may be engaged in a broad range of transactions that involve interests that differ from those of Borrower and its Affiliates, and have no obligation to disclose any of such interests to Borrower or its Affiliates. To the fullest extent permitted by Applicable Law, Borrower hereby waives and releases any claims that it may have against Agent, Lenders, their Affiliates and any arranger with respect to any breach of agency or fiduciary duty in connection with any transaction contemplated by a Loan Document.

14.12 Confidentiality . Each of Agent and Lenders shall maintain the confidentiality of all Information (as defined below), except that Information may be disclosed (a) to its Affiliates, and to its and their partners, directors, officers, employees, agents, advisors and representatives (provided they are informed of the confidential nature of the Information and instructed to keep it confidential); (b) to the extent requested by any governmental, regulatory or self-regulatory authority purporting to have jurisdiction over it or its Affiliates; (c) to the extent required by Applicable Law or by any subpoena or other legal process; (d) to any other party hereto; (e) in connection with any action or proceeding relating to any Loan Documents or Obligations; (f) subject to an agreement containing provisions substantially the same as this Section  14.12 , to any Transferee; (g) with the consent of Borrower; or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section  14.12 or (ii) is available to Agent, any Lender or any of their Affiliates on a non-confidential basis from a source other than Borrower. Notwithstanding the foregoing, Agent and Lenders may publish or disseminate general information concerning this credit facility for league table, tombstone and advertising

 

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purposes, and may use Borrower’s logos, trademarks or product photographs in advertising materials. As used herein, “ Information ” means information received from an Obligor or Subsidiary relating to it or its business that is identified as confidential when delivered. A Person required to maintain the confidentiality of Information pursuant to this Section  14.12 shall be deemed to have complied if it exercises a degree of care similar to that accorded its own confidential information. Each of Agent and Lenders acknowledges that (i) Information may include material non-public information; (ii) it has developed compliance procedures regarding the use of such information; and (iii) it will handle the material non-public information in accordance with Applicable Law.

14.13 GOVERNING LAW . UNLESS EXPRESSLY PROVIDED IN ANY LOAN DOCUMENT, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ALL CLAIMS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES EXCEPT FEDERAL LAWS RELATING TO NATIONAL BANKS.

14.14 Consent to Forum ; Bail-In of EEA Financial Institutions .

14.14.1 Forum . BORROWER HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING IN OR WITH JURISDICTION OVER NEW YORK, IN ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, AND AGREES THAT ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL CLAIMS, OBJECTIONS AND DEFENSES THAT IT MAY HAVE REGARDING ANY SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE OR INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 14.3.1 . A final judgment in any proceeding of any such court shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or any other manner provided by Applicable Law.

14.14.2 Other Jurisdictions . Nothing herein shall limit the right of Agent or any Lender to bring proceedings against any Obligor in any other court, nor limit the right of any party to serve process in any other manner permitted by Applicable Law. Nothing in this Agreement shall be deemed to preclude enforcement by Agent of any judgment or order obtained in any forum or jurisdiction.

14.14.3 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 the parties, each party hereto (including each Secured Party) acknowledges that any liability arising under a Loan Document of any Secured Party that is an EEA Financial Institution, 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

 

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under any Loan Documents which may be payable to it by any Secured Party that is an EEA Financial Institution; and (b) the effects of any Bail-in Action on any such liability, including (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 any 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.

14.15 Waivers by Borrower . To the fullest extent permitted by Applicable Law, Borrower waives (a) the right to trial by jury (which Agent and each Lender hereby also waives) in any proceeding or dispute of any kind relating in any way to any Loan Documents, Obligations or Collateral; (b) presentment, demand, protest, notice of presentment, default, non-payment, maturity, release, compromise, settlement, extension or renewal of any commercial paper, accounts, documents, instruments, chattel paper and guaranties at any time held by Agent on which Borrower may in any way be liable, and hereby ratifies anything Agent may do in this regard; (c) notice prior to taking possession or control of any Collateral; (d) any bond or security that might be required by a court prior to allowing Agent to exercise any rights or remedies; (e) the benefit of all valuation, appraisement and exemption laws; (f) any claim against Agent or any Lender, on any theory of liability, for special, indirect, consequential, exemplary or punitive damages (as opposed to direct or actual damages) in any way relating to any Enforcement Action, Obligations, Loan Documents or transactions relating thereto; and (g) notice of acceptance hereof. Borrower acknowledges that the foregoing waivers are a material inducement to Agent and Lenders entering into this Agreement and that they are relying upon the foregoing in their dealings with Borrower. Borrower has reviewed the foregoing waivers with its legal counsel and has knowingly and voluntarily waived its jury trial and other rights following consultation with legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.

14.16 Patriot Act Notice . Agent and Lenders hereby notify Borrower that pursuant to the Patriot Act, Agent and Lenders are required to obtain, verify and record information that identifies Borrower, including its legal name, address, tax ID number and other information that will allow Agent and Lenders to identify it in accordance with the Patriot Act. Agent and Lenders will also require information regarding each personal guarantor, if any, and may require information regarding Borrower’s management and owners, such as legal name, address, social security number and date of birth. Borrower shall, promptly upon request, provide all documentation and other information as Agent or any Lender may request from time to time in order to comply with any obligations under any “know your customer,” anti-money laundering or other requirements of Applicable Law.

14.17 NO ORAL AGREEMENT . THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.

 

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14.18 Intercreditor Agreement Governs . As between Agent and the Secured Parties on the one hand and the agent and lenders under the Revolving Loan Facility on the other hand, in the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement with respect to the Collateral, the provisions of the Intercreditor Agreement shall govern.

[Remainder of page intentionally left blank; signatures begin on following page]

 

-101-


IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date set forth above.

 

BORROWER :
SCHOOL SPECIALTY, INC.
By:   /s/ Ryan M. Bohr
Name: Ryan M. Bohr

Title: Executive Vice President and Chief Financial Officer

Address:
  W6316 Design Drive
  Greenville, WI 54942
 

Attn: Joseph M. Yorio

  Fax: 920-882-5863
 

Email: ryan.bohr@schoolspecialty.com

SUBSIDIARY GUARANTORS :
CLASSROOMDIRECT.COM, LLC
By: School Specialty, Inc. its sole member
By:   /s/ Joseph M. Yorio
Name: Joseph M. Yorio

Title: President and Chief Executive Officer

Address:
  W6316 Design Drive
  Greenville, WI 54942
 

Attn: Joseph M. Yorio

  Fax: 920-882-5863
 

Email: joseph.yorio@schoolspecialty.com

SPORTIME, LLC
By: School Specialty, Inc. its sole member
By:   /s/ Joseph M. Yorio
Name: Joseph M. Yorio

Title: President and Chief Executive Officer

Address:
  W6316 Design Drive
  Greenville, WI 54942
 

Attn: Joseph M. Yorio

  Fax: 920-882-5863
 

Email: joseph.yorio@schoolspecialty.com


DELTA EDUCATION, LLC
By: School Specialty, Inc. its sole member
By:   /s/ Joseph M. Yorio
Name: Joseph M. Yorio

Title: President and Chief Executive Officer

Address:
  W6316 Design Drive
  Greenville, WI 54942
 

Attn: Joseph M. Yorio

  Fax: 920-882-5863
 

Email: joseph.yorio@schoolspecialty.com

PREMIER AGENDAS, LLC
By: School Specialty, Inc. its sole member
By:   /s/ Joseph M. Yorio
Name: Joseph M. Yorio

Title: President and Chief Executive Officer

Address:
  W6316 Design Drive
  Greenville, WI 54942
 

Attn: Joseph M. Yorio

  Fax: 920-882-5863
 

Email: joseph.yorio@schoolspecialty.com


CHILDCRAFT EDUCATION, LLC
By: School Specialty, Inc. its sole member
By:   /s/ Joseph M. Yorio
Name: Joseph M. Yorio

Title: President and Chief Executive Officer

Address:
  W6316 Design Drive
  Greenville, WI 54942
 

Attn: Joseph M. Yorio

  Fax: 920-882-5863
 

Email: joseph.yorio@schoolspecialty.com

CALIFONE INTERNATIONAL, LLC
By: School Specialty, Inc. its sole member
By:   /s/ Joseph M. Yorio
Name: Joseph M. Yorio

Title: President and Chief Executive Officer

Address:
  W6316 Design Drive
  Greenville, WI 54942
 

Attn: Joseph M. Yorio

  Fax: 920-882-5863
 

Email: joseph.yorio@schoolspecialty.com

BIRD-IN-HAND WOODWORKS, LLC

By: School Specialty, Inc. sole member of

Childcraft Education, LLC, its sole member

By:   /s/ Joseph M. Yorio
Name: Joseph M. Yorio

Title: President and Chief Executive Officer

Address:
  W6316 Design Drive
  Greenville, WI 54942
 

Attn: Joseph M. Yorio

  Fax: 920-882-5863
 

Email: joseph.yorio@schoolspecialty.com


SSI GUARDIAN, LLC
By: School Specialty, Inc. its sole member
By:   /s/ Joseph M. Yorio
Name: Joseph M. Yorio

Title: President and Chief Executive Officer

Address:
  W6316 Design Drive
  Greenville, WI 54942
 

Attn: Joseph M. Yorio

  Fax: 920-882-5863
 

Email: joseph.yorio@schoolspecialty.com


AGENT :
TCW ASSET MANAGEMENT COMPANY LLC , as Agent
By:  

/s/ Suzanne Grosso

Name:  

Suzanne Grosso

Title:  

Managing Director

Payment Account Designation:
Bank Name: [account information omitted]
ABA:
Account Number:
Account Name:
Ref: School Specialty, Inc.
With a copy of any notice hereunder to:
Cortland Capital Market Services LLC
225 W. Washington, 21st Floor
Chicago, Illinois 60606
Attn: Valerie Opperman and Legal Department
Email: tcw@cortlandglobal.com; legal@cortlandglobal.com
Fax: (312) 376-0751


LENDERS :
TCW DIRECT LENDING LLC , as a Lender
By TCW Asset Management Company LLC
Its Investment Advisor
By:  

/s/ Suzanne Grosso

Name:  

Suzanne Grosso

Title:  

Managing Director

Payment Account Designation:

[account information omitted]

Beneficiary Acct #:
Beneficiary Name:
Ref:

 

TCW DIRECT LENDING STRATEGIC VENTURES LLC ,

as a Lender

By:  

/s/ Suzanne Grosso

Name:  

Suzanne Grosso

Title:  

Managing Director

Payment Account Designation:

[account information omitted]

Beneficiary Acct #:
Beneficiary Name:
Ref:


WEST VIRGINIA DIRECT LENDING LLC , as a Lender
By: TCW Asset Management Company LLC, its Investment Advisor
By:  

/s/ Suzanne Grosso

Name:  

Suzanne Grosso

Title:  

Managing Director

[account information omitted]

Beneficiary Acct #:
Beneficiary Name:
Ref:

 

TCW BRAZOS FUND LLC , as a Lender
By: TCW Asset Management Company LLC, its Investment Advisor
By:  

/s/ Suzanne Grosso

Name:  

Suzanne Grosso

Title:  

Managing Director

Payment Account Designation:

[account information omitted]

Beneficiary Acct #:
Beneficiary Name:
Ref:


TCW SKYLINE LENDING, L.P. , as a Lender
By: TCW Asset Management Company LLC, its Investment Advisor
By:  

/s/ Suzanne Grosso

Name:  

Suzanne Grosso

Title:  

Managing Director

Payment Account Designation:

[account information omitted]

Beneficiary Acct #:
Beneficiary Name:
Ref:

Exhibit 10.2

The liens and security interests securing the obligations as evidenced hereby are subject to the provisions of the Intercreditor Agreement dated as of April 7, 2017 (as amended or modified from time to time), by and among Bank of America, N.A., as ABL Agent, and TCW Asset Management Company LLC, as Term Agent. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this agreement, the terms of the Intercreditor Agreement shall govern and control.

GUARANTEE AND COLLATERAL AGREEMENT

dated as of

April 7, 2017

among

SCHOOL SPECIALTY, INC.,

THE GUARANTORS PARTY HERETO

and

TCW ASSET MANAGEMENT COMPANY, LLC

as Agent


TABLE OF CONTENTS

 

 

 

     P AGE  

SECTION 1 . Definitions

     1  

SECTION 2 . Guarantees by Guarantors

     9  

SECTION 3 . Grant of Transaction Liens

     12  

SECTION 4 . General Representations and Warranties

     15  

SECTION 5 . Further Assurances; General Covenants

     17  

SECTION 6 . Intellectual Property

     19  

SECTION 7 . Investment Property

     21  

SECTION 8 . Deposit Accounts

     24  

SECTION 9 . Commercial Tort Claims

     25  

SECTION 10 . Transfer of Record Ownership

     25  

SECTION 11 . Right to Vote Securities; Right to Proceeds of Insurance

     26  

SECTION 12 . Certain Cash Distributions

     26  

SECTION 13 . Remedies upon Event of Default

     27  

SECTION 14 . Application of Proceeds

     29  

SECTION 15 . Fees and Expenses; Indemnification

     29  

SECTION 16 . Authority to Administer Collateral

     30  

SECTION 17 . Limitation on Duty in Respect of Collateral

     32  

SECTION 18 . General Provisions Concerning the Agent

     32  

SECTION 19 . Termination of Transaction Liens; Release of Collateral

     33  

SECTION 20 . Additional Guarantors and Grantors

     34  

SECTION 21 . Notices

     34  

SECTION 22 . No Implied Waivers; Remedies Not Exclusive

     34  

SECTION 23 . Successors and Assigns

     34  

SECTION 24 . Amendments and Waivers

     34  

SECTION 25 . Choice of Law

     35  

SECTION 26 . Waiver of Jury Trial

     35  

SECTION 27 . Severability

     35  

SECTION 28 . Intercreditor Agreement

     35
 


SCHEDULES:

 

  Schedule 1    Equity Interests in Subsidiaries and Affiliates Owned by Original Grantors
  Schedule 2    Other Investment Property Owned by Original Grantors
  Schedule 3    Material Commercial Tort Claims

EXHIBITS:

 

  Exhibit A    Security Agreement Supplement
  Exhibit B    Copyright Security Agreement
  Exhibit C    Patent Security Agreement
  Exhibit D    Trademark Security Agreement
  Exhibit E    Perfection Certificate
  Exhibit F    Issuer Control Agreement

 

 

ii


GUARANTEE AND COLLATERAL AGREEMENT

GUARANTEE AND COLLATERAL AGREEMENT (this “ Agreement ”), dated as of April 7, 2017, among SCHOOL SPECIALTY, INC., as Borrower, the GUARANTORS party hereto and TCW ASSET MANAGEMENT COMPANY, LLC, as Agent.

WHEREAS, the Borrower is entering into the Loan Agreement described in Section 1 hereof, pursuant to which the Borrower intends to borrow funds for the purposes set forth therein;

WHEREAS, the Borrower and the Guarantors are willing to secure their obligations under the Loan Agreement by granting Liens on their assets to the Agent as provided in the Security Documents;

WHEREAS, the Borrower is willing to cause certain of its Subsidiaries to guarantee the foregoing obligations of the Borrower and to secure their guarantee thereof by granting Liens on their assets to the Agent as provided in the Security Documents;

WHEREAS, the Lenders are not willing to make loans under the Loan Agreement unless (i) the foregoing obligations of the Borrower and the Guarantors are secured and guaranteed as described above and (ii) each guarantee thereof is secured by Liens on assets of the relevant Guarantor as provided in the Security Documents; and

WHEREAS, upon any foreclosure or other enforcement of the Security Documents, the net proceeds of the relevant Collateral are to be received by or paid over to the Agent and applied as provided herein;

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1 . Definitions .

(a) Terms Defined in Loan Agreement . Terms defined in the Loan Agreement and not otherwise defined in subsection (b) or (c) of this Section have, as used herein, the respective meanings provided for therein. The rules of construction specified in Section 1.4 of the Loan Agreement also apply to this Agreement.

(b) Terms Defined in UCC . As used herein, each of the following terms has the meaning specified in the UCC:

 


Term

   UCC
Account            9-102
Authenticate            9-102
Certificated Security            8-102
Chattel Paper            9-102
Commercial Tort Claim            9-102
Commodity Account            9-102
Commodity Customer            9-102
Deposit Account            9-102
Document            9-102
Entitlement Holder            8-102
Equipment            9-102
Financial Asset            8-102 & 103
General Intangibles            9-102
Instrument            9-102
Inventory            9-102
Investment Property            9-102
Letter-of-Credit Right            9-102
Money            1-201
Record            9-102
Securities Account            8-501
Securities Intermediary            8-102
Security            8-102 & 103
Security Entitlement            8-102
Supporting Obligations            9-102
Uncertificated Security            8-102

(c) Additional Definitions . The following additional terms, as used herein, have the following meanings:

Agent Professionals ” means attorneys, accountants, appraisers, auditors, business valuation experts, environmental engineers or consultants, turnaround consultants, and other professionals and experts retained by Agent.

Agreement ” has the meaning specified in the preamble hereto.

Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.

Cash Distributions ” means dividends, interest and other distributions and payments (including proceeds of liquidation, sale or other disposition) made or received in cash upon or with respect to any Collateral.

 

2


Collateral ” means all property, whether now owned or hereafter acquired, on which a Lien is granted or purports to be granted to the Agent pursuant to the Security Documents. When used with respect to a specific Grantor, the term “Collateral” means all its property on which such a Lien is granted or purports to be granted.

Collateral Accounts ” means the Controlled Deposit Accounts and the Controlled Securities Accounts.

Contingent Obligation ” means, at any time, any Obligation (or portion thereof) that is contingent in nature at such time, including any Obligation that is:

(i) any obligation (including any guarantee) that is contingent in nature at such time; or

(ii) an obligation to provide collateral to secure any of the foregoing types of obligations.

Control ” has the meaning specified in UCC Section 8-106, 9-104, 9-105, 9-106 or 9-107, as may be applicable to the relevant Collateral.

Controlled Deposit Account ” means a Deposit Account that is subject to a Deposit Account Control Agreement.

Controlled Securities Account ” means a Securities Account that (i) is maintained in the name of a Grantor at an office of a Securities Intermediary located in the United States and (ii) together with all Financial Assets credited thereto and all related Security Entitlements, is subject to a Securities Account Control Agreement among such Grantor, the Agent and such Securities Intermediary.

Copyright License ” means any agreement now or hereafter in existence granting to any Grantor, or pursuant to which any Grantor grants to any other Person, any right to use, copy, reproduce, distribute, prepare derivative works, display or publish any records or other materials on which a Copyright is in existence or may come into existence (excluding any Exclusive Copyright License).

Copyrights ” means all the following: (i) all copyrights under the laws of the United States or any other country (whether or not the underlying works of authorship have been published), all registrations and recordings thereof, all copyrightable works of authorship (whether or not published), and all applications for copyrights under the laws of the United States or any other country, including registrations, recordings and applications in the United States Copyright Office or in any similar office or agency of the United States, any State thereof or any other

 

3


country or any political subdivision thereof, including those described in Schedule 1 to any Copyright Security Agreement, (ii) all renewals of any of the foregoing, (iii) all claims for, and rights to sue for, past or future infringements of any of the foregoing, and (iv) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past or future infringements thereof.

Copyright Security Agreement ” means a Copyright Security Agreement, substantially in the form of Exhibit B (with any changes that the Agent and the Borrower shall have approved), executed and delivered by a Grantor in favor of the Agent for the benefit of the Secured Parties.

Credit Parties ” means the Agent or any other Lender.

Depositary Bank ” means a bank at which a Controlled Deposit Account is maintained.

Domestic Subsidiary ” means any Subsidiary of the Borrower that is not a Foreign Subsidiary.

Equity Interest ” means, with respect to any Person, (a) the Capital Stock of such Person and (b) any Security Entitlement in respect of any Capital Stock of such Person.

Excluded Assets ” has the meaning specified in Section 3.

Excluded Equity Interests ” means (i) any Equity Interests of any Foreign Subsidiary other than a direct Foreign Subsidiary of the Borrower or a Domestic Subsidiary, (ii) any voting Equity Interests of a direct Foreign Subsidiary of the Borrower or a Domestic Subsidiary in excess of 65% of the Equity Interests of such Foreign Subsidiary and (iii) any Equity Interests of any Person that is not directly owned by the applicable Grantor.

Exclusive Copyright License ” means any material agreement now or hereafter in existence granting to any Grantor an exclusive right to use, copy, reproduce, distribute, prepare derivative works, display or publish any materials on which a United States Copyright is in existence or may come into existence.

Grantors ” means the Borrower and the Guarantors.

Guarantors ” means each Subsidiary listed on the signature pages hereof under the caption “Guarantors” and each Subsidiary that shall, at any time after the date hereof, become a “Guarantor” pursuant to Section 20.

 

4


Intellectual Property ” means all intellectual property and similar proprietary property of any Grantor of every kind and nature now owned or hereafter acquired by any Grantor, including inventions, designs, Patents, Copyrights, Licenses, Trademarks, service marks, trade names, trade secrets, confidential or proprietary technical and business information, customer lists, know-how, show-how or other data or information, software and databases and all embodiments or fixations thereof and related documentation, registrations, applications and franchises, and all additions, improvements and accessions to, licenses or other rights to use, and books and records describing or used in connection with, any of the foregoing.

Intellectual Property Filing ” means (i) with respect to any Patent or Trademark, the filing of the applicable Patent Security Agreement or Trademark Security Agreement with the United States Patent and Trademark Office, together with an appropriately completed recordation form, and (ii) with respect to any Copyright or Exclusive Copyright License, the filing of the applicable Copyright Security Agreement with the United States Copyright Office, together with an appropriately completed recordation form.

Intellectual Property Security Agreement ” means a Copyright Security Agreement, a Patent Security Agreement or a Trademark Security Agreement.

Issuer Control Agreement ” means an Issuer Control Agreement substantially in the form of Exhibit F (with any changes that the Agent and the Borrower shall have approved).

License ” means any Patent License, Trademark License, Copyright License, Exclusive Copyright License or other license or sublicense agreement relating to Intellectual Property to which any Grantor is a party.

Loan Agreement ” means the Loan Agreement dated as of April 7, 2017 among School Specialty, Inc., the Guarantors party thereto, the Lenders party thereto and TCW Asset Management Company, LLC, as Agent.

Material Commercial Tort Claim ” means a Commercial Tort Claim involving a claim for more than $500,000.

Non-Contingent Obligation ” means at any time any Obligation (or portion thereof) that is not a Contingent Obligation at such time.

Obligor ” means the obligor with respect to any Obligation.

Original Grantor ” means any Grantor that grants a Lien on any of its assets hereunder on the Closing Date.

 

5


own ” refers to the possession of sufficient rights in property to grant a security interest therein as contemplated by UCC Section 9-203, and “ acquire ” refers to the acquisition of any such rights.

Patent License ” means any agreement now or hereafter in existence granting to any Grantor, or pursuant to which any Grantor grants to any other Person, any right with respect to any Patent or any invention now or hereafter in existence, whether patentable or not, whether a patent or application for patent is in existence on such invention or not, and whether a patent or application for patent on such invention may come into existence or not.

Patent Security Agreement ” means a Patent Security Agreement, substantially in the form of Exhibit C (with any changes that the Agent and the Borrower shall have approved), executed and delivered by a Grantor in favor of the Agent for the benefit of the Secured Parties.

Patents ” means (i) all letters patent and design letters patent of the United States or any other country and all applications for letters patent or design letters patent of the United States or any other country, including applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, including those described in Schedule 1 to any Patent Security Agreement, (ii) all reissues, divisions, continuations, continuations in part, revisions and extensions of any of the foregoing, (iii) all claims for, and rights to sue for, past or future infringements of any of the foregoing and (iv) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past or future infringements thereof.

Perfection Certificate ” means, with respect to any Grantor, a certificate substantially in the form of Exhibit E (with any changes that the Agent and the Borrower shall have approved), completed and supplemented with the schedules contemplated thereby to the satisfaction of the Agent, and signed by an officer of such Grantor.

Permitted Collateral Liens ” means with respect to (a) the Pledged Equity Interests, Liens imposed by law and Liens granted to the Revolving Loan Agent to secure the Revolving Loan Agreement that are subject to the Intercreditor Agreement; (b) Term Priority Collateral, (i) Permitted Liens that arise by operation of law and are junior to Agent’s Lien and (ii) other Permitted Liens that are junior to Agent’s Lien pursuant to the Intercreditor Agreement or another intercreditor agreement or subordination agreement satisfactory to Agent; and (c) all other Collateral, Permitted Liens.

 

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Pledged ”, when used in conjunction with any type of asset, means at any time an asset of such type that is included (or that creates rights that are included) in the Collateral at such time. For example, “Pledged Equity Interest” means an Equity Interest that is included in the Collateral at such time.

Proceeds ” means all “proceeds” (as defined in Section 9-102 of the UCC) and including, in any event, all proceeds of, and all other profits, products, rents or receipts, in whatever form, arising from the collection, sale, lease, exchange, assignment, licensing or other disposition of, or other realization upon, any Collateral, including all claims of the relevant Grantor against third parties for loss of, damage to or destruction of, or for proceeds payable under, or unearned premiums with respect to, policies of insurance in respect of, any Collateral, and any condemnation or requisition payments with respect to any Collateral.

Recordable Intellectual Property ” means (i) any material Patent issued or applied for issuance with the United States Patent and Trademark Office, (ii) any material Trademark registered or applied for registration with the United States Patent and Trademark Office, (iii) any material Copyright registered or applied for registration with the United States Copyright Office, and (iv) any Exclusive Copyright License.

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

Release Conditions ” means the following conditions for releasing all the Secured Guarantees and terminating all the Transaction Liens:

(i) Full Payment of all Non-Contingent Obligations;

(ii) no Contingent Obligation (other than contingent indemnification and expense reimbursement obligations which are not due and payable and as to which no claim shall have been asserted) shall remain outstanding; and

(iii) receipt by Agent of Cash Collateral or a written agreement, in each case reasonably satisfactory to it, protecting Agent and Lenders from the dishonor or return of any Payment Items previously applied to the Obligations.

Revolving Loan Agent ” means Bank of America, N.A., as agent, and its successors and assigns in such capacities.

Secured Agreement ”, when used with respect to any Obligation secured hereby, refers collectively to each instrument, agreement or other document that sets forth obligations of the Borrower, obligations of any Subsidiary and/or rights of the holder with respect to such Obligation.

 

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Secured Guarantee ” means, with respect to each Guarantor, its guarantee of the Obligations under Section 2 hereof or Section 1 of a Security Agreement Supplement.

Secured Parties ” means the holders from time to time of the Obligations.

Security Agreement Supplement ” means a Security Agreement Supplement, substantially in the form of Exhibit A, signed and delivered to the Agent for the purpose of adding a Subsidiary as a party hereto pursuant to Section 20 and/or adding additional property to the Collateral.

Security Documents ” means this Agreement, the Security Agreement Supplements, the Deposit Account Control Agreements, the Issuer Control Agreements, the Securities Account Control Agreements, the Intellectual Property Security Agreements and all other supplemental or additional security agreements, control agreements or similar instruments now or hereafter securing (or given with the intent to secure) any Obligations.

Trademark License ” means any agreement now or hereafter in existence granting to any Grantor, or pursuant to which any Grantor grants to any other Person, any right to use any Trademark.

Trademark Security Agreement ” means a Trademark Security Agreement, substantially in the form of Exhibit D (with any changes that the Agent and the Borrower shall have approved), executed and delivered by a Grantor in favor of the Agent for the benefit of the Secured Parties.

Trademarks ” means: (i) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, brand names, trade dress, prints and labels on which any of the foregoing have appeared or appear, package and other designs, and all other source or business identifiers, and all general intangibles of like nature, and the rights in any of the foregoing which arise under applicable law, (ii) the goodwill of the business symbolized thereby or associated with each of them, (iii) all registrations and applications in connection therewith, including registrations and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, including those described in Schedule 1 to any Trademark Security Agreement, (iv) all renewals of any of the foregoing, (v) all claims for, and rights to sue for, past or future infringements of any of the foregoing and (vi) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past or future infringements thereof.

 

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Transaction Liens ” means the Liens granted by the Grantors under the Security Documents.

UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any Transaction Lien on any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

SECTION 2 . Guarantees by Guarantors .

(a) Secured Guarantees. Each Guarantor unconditionally guarantees the full and punctual payment of each Obligation (other than the Obligations of such Guarantor) when due (whether at stated maturity, upon acceleration or otherwise), which guarantees shall constitute a continuing guarantee of payment and not of collection. If the Borrower or any other Obligor fails to pay any Obligation punctually when due, each other Guarantor agrees that it will forthwith on demand pay the amount not so paid at the place and in the manner specified in the relevant Secured Agreement.

(b) Secured Guarantees Unconditional . The obligations of each Guarantor under its Secured Guarantee shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:

(i) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Borrower, any Guarantor or other Obligor or any other Person under any Secured Agreement, by operation of law or otherwise (including by Agent or any Lender);

(ii) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any Obligations or any Secured Agreement, or any other document, instrument or agreement to which any Obligor is or may become a party or be bound;

(iii) any release, impairment, non-perfection or invalidity of any direct or indirect security for any obligation of the Borrower, any Guarantor or other Obligor or any other Person under any Secured Agreement;

 

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(iv) any change in the corporate existence, structure or ownership of the Borrower, any Guarantor or other Obligor or any other Person or any of their respective subsidiaries, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower, any Guarantor or other Obligor or any other Person or any of their assets or any resulting release or discharge of any obligation of the Borrower, any Guarantor or other Obligor or any other Person under any Secured Agreement;

(v) the existence of any claim, set-off or other right that such Guarantor may have at any time against the Borrower, any Guarantor or other Obligor, any Secured Party or any other Person, whether in connection with the Loan Documents or any unrelated transactions, provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;

(vi) any invalidity or unenforceability relating to or against the Borrower, any Guarantor or other Obligor or any other Person for any reason of any Secured Agreement, or any provision of Applicable Law or applicable regulation purporting to prohibit the payment of any Obligation by the Borrower, any Guarantor or other Obligor or any other Person; or

(vii) any other act or omission to act or delay of any kind by the Borrower, any Guarantor or other Obligor, any other party to any Secured Agreement, any Secured Party or any other Person, or any other circumstance whatsoever that might, but for the provisions of this clause (vii), constitute a legal or equitable discharge of or defense of a surety or guarantor to any obligation of any Guarantor hereunder.

(c) Release of Secured Guarantees . (i) All Secured Guarantees will be released when all Release Conditions are satisfied. If at any time any payment of a Obligation is rescinded or must be otherwise restored or returned upon the insolvency or receivership of the Borrower, any other Obligor or otherwise, the Secured Guarantees shall be reinstated with respect thereto as though such payment had been due but not made at such time.

(ii) In addition, if a Guarantor shall (A) cease to be a Subsidiary of the Borrower or (B) become an Excluded Subsidiary, in each case as permitted under the Loan Agreement, the Agent, at the request of the Borrower, shall release Borrower or such Guarantor from its Secured Guaranty and its other Obligations under the Loan Documents;

(iii) Upon any termination of a Secured Guaranty, the Agent will, at the expense of the Borrower or relevant Guarantor, execute and deliver to the Borrower such documents as it shall reasonably request to evidence the termination thereof.

 

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(d) Waiver by Guarantors . Each Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Borrower, any Guarantor or other Obligor or any other Person. Each Guarantor expressly waives all rights that it may have now or in the future under any statute, at common law, in equity or otherwise, to compel Agent or Lenders to marshal assets or to proceed against any Obligor, other Person or security for the payment or performance of any Obligations before, or as a condition to, proceeding against such Guarantor. Each Guarantor waives all defenses available to a surety, guarantor or accommodation co-obligor other than Full Payment of all Obligations and waives, to the maximum extent permitted by law, any right to revoke any guaranty of any Obligations as long as it is a Guarantor.

(e) Subrogation . A Guarantor that makes a payment with respect to an Obligation hereunder shall be subrogated to the rights of the payee against the Borrower or the applicable Obligor with respect to such payment; provided that no Guarantor shall enforce any payment by way of subrogation against the Borrower or the applicable Obligor, or by reason of contribution against any other guarantor of such Obligation, until all the Release Conditions have been satisfied.

(f) Stay of Acceleration . If acceleration of the time for payment of any Obligation by the Borrower or the applicable Obligor is stayed by reason of the insolvency or receivership of the Borrower or the applicable Obligor or otherwise, all Obligations otherwise subject to acceleration under the terms of any Secured Agreement shall nonetheless be payable by the Guarantors hereunder forthwith on demand by the Agent.

(g) Right of Set-Off . In addition to any rights and remedies of the Secured Parties provided by law, each Secured Party shall have the right, upon any amount becoming due and payable by any Guarantor hereunder (whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured at any time held or owing by such Secured Party or any branch or agency thereof to or for the credit or the account of such Guarantor. Each Secured Party agrees to promptly notify such Guarantor and the Agent after any such setoff and application made by such Secured Party; provided that the failure to give such notice shall not affect the validity of such setoff and application.

 

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(h) Continuing Guarantee . Each Secured Guarantee is a continuing guarantee, shall be binding on the relevant Guarantor and its successors and assigns, and shall be enforceable by the Agent or the Secured Parties. If all or part of any Secured Party’s interest in any Obligation is assigned or otherwise transferred, the transferor’s rights under each Secured Guarantee, to the extent applicable to the obligation so transferred, shall automatically be transferred with such obligation.

(i) Limitation on Obligations of Guarantor. The obligations of each Guarantor under its Secured Guarantee shall be limited to an aggregate amount equal to the largest amount that would not render such Secured Guarantee subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of applicable law.

(j) Right of Contribution . Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment. Each Guarantor’s right of contribution shall be subject to the terms and conditions of Section 2(e). The provisions of this Section 2(j) shall in no respect limit the obligations and liabilities of any Guarantor to the Agent and the Secured Parties, and each Guarantor shall remain liable to the Agent and the Secured Parties for the full amount guaranteed by such Guarantor hereunder.

SECTION 3 . Grant of Transaction Liens . (a) Borrower, in order to secure all Obligations, and each Guarantor party hereto, in order to secure all Obligations, including its Obligations under its Secured Guarantee, grants to the Agent for the benefit of the Secured Parties a continuing security interest in all the following property of Borrower or such Guarantor, as the case may be, whether now owned or existing or hereafter acquired or arising and regardless of where located:

(i) all Accounts;

(ii) all Chattel Paper, including electronic chattel paper;

(iii) all Money, Deposit Accounts, Commodity Accounts and Security Accounts;

(iv) all Documents;

(v) all Goods, including Inventory, Equipment and fixtures;

 

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(vi) all General Intangibles (including (x) any Equity Interests in other Persons that do not constitute Investment Property and (y) any Intellectual Property);

(vii) all Instruments;

(viii) all Investment Property;

(ix) all Commercial Tort Claims, including those described in Schedule 3;

(x) all Letter-of-Credit Rights;

(xi) all Supporting Obligations;

(xii) all monies, whether or not in the possession or under the control of Agent, a Lender, or a bailee or Affiliate of Agent or a Lender, including any Cash Collateral;

(xiii) all accessions to, substitutions for, and all replacements, products, and cash and non-cash proceeds of the foregoing, including proceeds of and unearned premiums with respect to insurance policies, and claims against any Person for loss, damage or destruction of any Collateral;

(xiv) all vehicles and title documents with respect to vehicles;

(xv) all other personal property whether or not subject to the Code;

(xvi) all books and records (including customer lists, credit files, computer programs, printouts and other computer materials and records) of such Grantor pertaining to any of its Collateral; and

(xvii) all Proceeds of the Collateral described in the foregoing clauses (i) through (xvi);

provided that the following property is excluded from the foregoing security interests (it being understood that such grant will be applicable at such time as any such property or assets ceases to constitute Excluded Assets): (A) Excluded Equity Interests, (B) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any other Grantor) after giving effect to the applicable anti-assignment provisions of the UCC, (C) any properties and assets with respect to which the Agent determines in its good faith judgment that the costs or other

 

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consequences of granting or perfecting a security interest therein are excessive in view of the benefits to be obtained by the Secured Parties, (D) any United States intent-to-use Trademark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use Trademark applications under applicable federal law, (E) any letter of credit rights to the extent any Grantor is required by applicable law to apply the proceeds of a drawing of such letter of credit for a specified purpose, (F) any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code, and (G) any property to the extent that the grant of a security interest therein is prohibited by any applicable law or regulation, requires a consent not obtained of any Governmental Authority pursuant to any applicable law or regulation, or is prohibited by, or would constitute a breach or default under or would result in the termination, invalidation or abandonment of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property or, in the case of any Investment Property, any applicable shareholder or similar agreement (the foregoing, collectively, the “ Excluded Assets ”), provided that the foregoing limitation in clause (G) shall not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any asset or right to the extent that Sections 9-406 and 9-408 of the Uniform Commercial Code as in effect on the date hereof would permit (and excuse any default or violation resulting therefrom) the creation of a security interest in such asset or right notwithstanding such law or regulation or the provision of such contract, license, agreement, instrument or other document or shareholder or similar agreement prohibiting the creation of a security interest therein or shall render such provision unenforceable. Each Grantor shall upon request of the Agent use commercially reasonable efforts to obtain any such required consent that is reasonably obtainable, it being understood and agreed that no Grantor shall be required to obtain any such consent if such Grantor reasonably determines in its good faith judgment that the costs of obtaining such consent is excessive in view of the benefits to be obtained by the Secured Parties thereby.

(b) With respect to each right to payment or performance included in the Collateral from time to time, the Transaction Lien granted therein includes a continuing security interest in (i) any Supporting Obligation that supports such payment or performance and (ii) any Lien that (x) secures such right to payment or performance or (y) secures any such Supporting Obligation.

(c) The Transaction Liens are granted as security only and shall not subject the Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.

 

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SECTION 4 . General Representations and Warranties. Each Grantor represents and warrants that:

(a) Such Grantor (a) is duly organized or formed, as the case may be, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, (b) has the requisite power and authority to own and operate its Property, to lease the Property it operates as lessee and to conduct the business in which it is currently engaged as it is currently conducted, (c) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership, lease or operation of Property or the conduct of its business requires such qualification except to the extent that the failure to so qualify could not, in the aggregate, reasonably be expected to have a Material Adverse Effect and (d) is in compliance with all Applicable Law except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b) With respect to each Original Grantor, Schedule 1 lists all Equity Interests owned by such Grantor as of the Closing Date. Such Grantor holds all such Equity Interests directly ( i.e. , not through a Subsidiary, a Securities Intermediary or any other Person).

(c) With respect to each Original Grantor, Schedule 2 lists, as of the Closing Date, (i) all Securities owned by such Grantor (except for Excluded Equity Interests and Securities evidencing Equity Interests in Subsidiaries and Affiliates of such Grantor) and (ii) all Securities Accounts (other than any one or more Securities Accounts comprising Financial Assets of less than $250,000 in the aggregate) to which Financial Assets are credited in respect of which such Grantor owns Security Entitlements.

(d) As of the Closing Date, such Grantor owns no Commodity Account in respect of which such Grantor is the Commodity Customer.

(e) All Pledged Equity Interests owned by such Grantor are owned by it free and clear of any Lien other than (i) Permitted Collateral Liens and (ii) any liens imposed by law. All shares of capital stock included in such Pledged Equity Interests (including shares of capital stock in respect of which such Grantor owns a Security Entitlement) have been duly authorized and validly issued and are fully paid and non-assessable. None of such Pledged Equity Interests is subject to any option to purchase or similar right of any Person.

 

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(f) Such Grantor has good and marketable title to all its Collateral (subject to exceptions that are, in the aggregate, not material), free and clear of any Lien other than Permitted Collateral Liens.

(g) Such Grantor has not performed any acts that are reasonably likely to prevent the Agent from enforcing any of the provisions of the Security Documents or that would limit the Agent in any such enforcement. No financing statement, security agreement, mortgage or similar or equivalent document or instrument covering all or part of the Collateral owned by such Grantor is on file or of record in any jurisdiction in which such filing or recording would be effective to perfect or record a Lien on such Collateral, except financing statements, mortgages or other similar or equivalent documents with respect to Permitted Collateral Liens. After the Closing Date, no Collateral owned by such Grantor will be in the possession or under the Control of any other Person having a claim thereto or security interest therein, other than a Permitted Collateral Lien.

(h) The Transaction Liens on all Collateral owned by such Grantor (i) have been validly created, (ii) will attach to each item of such Collateral on the Closing Date (or, if such Grantor first obtains rights thereto on a later date, on such later date) and (iii) when so attached, will secure all the Obligations, including the Obligations under its Secured Guarantee, as the case may be.

(i) Such Grantor has delivered a Perfection Certificate to the Agent. With respect to each Original Grantor, information set forth therein is correct and complete, in all material respects, as of the Closing Date.

(j) When UCC financing statements describing the Collateral as “all assets” or “all personal property now existing or hereinafter acquired” or other words to that effect have been filed in the offices specified in such Perfection Certificate, the Transaction Liens will constitute perfected security interests in the Collateral owned by such Grantor to the extent that a security interest therein may be perfected by filing pursuant to the UCC, prior to all Liens and rights of others therein except Permitted Collateral Liens. When, in addition to the filing of such UCC financing statements, the applicable Intellectual Property Filings have been made with respect to such Grantor’s Recordable Intellectual Property (including any future filings required pursuant to Sections 5(a) and 6(a)), the Transaction Liens will constitute perfected security interests in all right, title and interest of such Grantor in its Recordable Intellectual Property to the extent that security interests therein may be perfected by such filings, prior to all Liens and rights of others therein except Permitted Collateral Liens. Except for (x) the filing of such UCC financing statements, (y) such Intellectual Property Filings, and (z) additional Intellectual Property Filings that may be necessary to perfect the Transaction Liens with respect to such Grantor’s Patents, Trademarks and Copyrights that do not constitute Recordable Intellectual Property, no registration, recordation or filing with any governmental body, agency or official is required in

 

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connection with the execution or delivery of the Security Documents or is necessary for the validity or enforceability thereof or for the perfection (other than in respect of deposit accounts) or due recordation of the Transaction Liens or for the enforcement of the Transaction Liens. Notwithstanding anything herein to the contrary, no Grantor shall take any action to perfect any security interest in any part of the Collateral under the laws of any jurisdiction outside of the United States of America.

(k) Such Grantor has taken, and will continue to take, all actions necessary under the UCC to perfect its interest in any Accounts or Chattel Paper purchased or otherwise acquired by it, as against its assignors and creditors of its assignors, except with respect to actions not required to be taken until a specified period after the Closing Date.

SECTION 5. Further Assurances; General Covenants . Each Grantor covenants as follows:

(a) Such Grantor will, from time to time, at the Borrower’s expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including any Intellectual Property Filing but solely with respect to Recordable Intellectual Property) that from time to time may be necessary or desirable, or that the Agent may reasonably request, in order to:

(i) create, preserve, perfect, confirm or validate the Transaction Liens on such Grantor’s Collateral;

(ii) in the case of (a) Pledged Deposit Accounts, Pledged Investment Property and lockboxes associated with any Pledged Deposit Account or Pledged Securities Accounts, in each case, (x) to which Cash Collateral is deposited or (y) which is required to be maintained as a Dominion Account pursuant to Section 8.2.4 of the Loan Agreement and (b) upon the occurrence and during the continuance of an Event of Default, Pledged Letter-of-Credit Rights, cause the Agent to have Control thereof (or, solely in the case of lockboxes, control thereof);

(iii) enable the Agent and the other Secured Parties to obtain the full benefits of the Security Documents; or

(iv) enable the Agent to exercise and enforce any of its rights, powers and remedies with respect to any of such Grantor’s Collateral.

 

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Such Grantor authorizes the Agent to execute and file such financing statements or continuation statements in such jurisdictions with such descriptions of collateral (including “all assets” or “all personal property now existing or hereinafter acquired” or other words to that effect) and other information set forth therein as the Agent may deem necessary or desirable for the purposes set forth in the preceding sentence. Each Grantor also ratifies its authorization for the Agent to file in any such jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the security interests granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Agent as secured party. The Borrower will pay the costs of, or reasonably incidental to, any Intellectual Property Filings and any recording or filing of any financing or continuation statements or other documents recorded or filed pursuant hereto.

(b) Such Grantor shall furnish to the Agent 10 Business Days (or such shorter period as Agent may agree) prior written notice of any change (1) in its name, (2) in its jurisdiction of organization or formation, (3) in its identity or corporate structure or (4) in its federal taxpayer identification number. Such Grantor agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral under the Loan Documents.

(c) If any of its Collateral is in the possession or control of a warehouseman, bailee or agent at any time, such Grantor will, upon the request of the Agent: (i) notify such warehouseman, bailee or agent of the relevant Transaction Liens, (ii) instruct such warehouseman, bailee or agent to hold all such Collateral for the Agent’s account subject to the Agent’s instructions (which shall permit such Collateral to be removed by such Grantor in the ordinary course of business until the Agent notifies such warehouseman, bailee or agent that an Event of Default has occurred and is continuing), (iii) cause such warehouseman, bailee or agent to Authenticate a Record acknowledging that it holds possession of such Collateral for the Agent’s benefit and (iv) make such Authenticated Record available to the Agent.

(d) Such Grantor will promptly upon request, provide to the Agent all information and evidence concerning such Grantor’s Collateral that the Agent may reasonably request from time to time to enable it to enforce the provisions of the Security Documents.

(f) Except as permitted under the Loan Agreement, each Grantor shall defend its title to Collateral and the Agent’s Liens therein against all Persons, claims and demands, except Permitted Collateral Liens.

 

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SECTION 6 . Intellectual Property . Each Grantor represents, warrants and covenants as follows:

(a) On the Closing Date (in the case of an Original Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Grantor), such Grantor will sign and deliver to the Agent Intellectual Property Security Agreements with respect to all Recordable Intellectual Property then owned by it. On each date on which a Compliance Certificate is to be delivered pursuant to Section 10.1.2(d) of the Credit Agreement (or, if an Event of Default has occurred and is continuing, more frequently if requested by Agent), it will sign and deliver to the Agent an appropriate Intellectual Property Security Agreement covering any Recordable Intellectual Property owned by it on such date that is not covered by any previous Intellectual Property Security Agreement so signed and delivered by it. In each case, it will, on each date on which a Compliance Certificate is to be delivered pursuant to Section 10.1.2(d) of the Credit Agreement (or, if an Event of Default has occurred and is continuing, more frequently if requested by Agent), make all Intellectual Property Filings necessary to record the Transaction Liens on such Recordable Intellectual Property.

(b) Such Grantor will notify the Agent within 45 days after the last day of the fiscal quarter in which it learns that any application or registration relating to any Intellectual Property owned by it may become abandoned, or of any adverse, final and non-appealable determination (including any final, non-appealable adverse determination in the United States Copyright Office, the United States Patent and Trademark Office or any court) regarding such Grantor’s ownership of such Intellectual Property, its right to register or patent the same, or its right to keep and maintain the same, in each case of the foregoing, except to the extent that the loss of such Intellectual Property would not reasonably be expected to have a Material Adverse Effect. If any of such Grantor’s rights to any Intellectual Property are materially infringed or misappropriated by a third party and such infringement or misappropriation would be reasonably expected to have a Material Adverse Effect, such Grantor will notify the Agent within 45 calendar days after it learns thereof and will, unless such Grantor shall reasonably determine that such action would be of negligible value, economic or otherwise, promptly take such actions as such Grantor shall reasonably deem appropriate under the circumstances to protect such Intellectual Property.

(c) Upon the occurrence and during the continuance of an Event of Default, each Grantor shall, upon the request of the Agent therefor, use its commercially reasonable efforts to obtain all requisite consents or approvals by the licensor of each Exclusive Copyright License and each material Copyright License, Patent License and Trademark License under which such Grantor is the licensee to effect the assignment of all such Grantor’s right, title and interest thereunder to the Agent, for the ratable benefit of the Secured Parties, or its designee.

 

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(d) On the Closing Date, all Recordable Intellectual Property owned by such Grantor is valid, in full force and effect, subsisting, unexpired and enforceable, and no Recordable Intellectual Property has been abandoned. No breach or default of any License shall be caused by any of the following, and none of the following shall limit or impair the ownership, use, validity or enforceability of, or any rights of such Grantor in, any Recordable Intellectual Property: (i) the consummation of the transactions contemplated by any Loan Document or (ii) any holding, decision, judgment or order rendered by any Governmental Authority prior to the date hereof. There are no pending (or, to the knowledge of such Grantor, threatened) actions, investigations, suits, proceedings, audits, claims, demands, orders or disputes challenging the ownership, use, validity, enforceability of, or such Grantor’s rights in, any Recordable Intellectual Property of such Grantor. To each Grantor’s knowledge, no Person has been or is infringing, misappropriating, diluting, violating or otherwise impairing any Recordable Intellectual Property of such Grantor. Each Grantor, and to such Grantor’s knowledge each other party thereto, is not in material breach or default of any License.

(e) Unless such Grantor shall reasonably determine that such action would be of negligible value, economic or otherwise, such Grantor shall (and shall cause all its licensees to) (i) (1) continue to use each Trademark included in the Intellectual Property in order to maintain such Trademark in full force and effect with respect to each class of goods for which such Trademark is currently used, free from any claim of abandonment for non-use, (2) maintain at least the same standards of quality of products and services offered under such Trademark as are currently maintained, (3) use such Trademark with the appropriate notice of registration and all other notices and legends required by applicable law, (4) not adopt or use any other Trademark that is confusingly similar or a colorable imitation of such Trademark unless Agent shall obtain a perfected security interest in such other Trademark pursuant to this Agreement and (ii) not do any act or omit to do any act whereby (w) such Trademark (or any goodwill associated therewith) may become destroyed, invalidated, impaired or harmed in any way, (x) any Patent included in the Intellectual Property may become forfeited, misused, unenforceable, abandoned or dedicated to the public, (y) any portion of the Copyrights included in the Intellectual Property may become invalidated, otherwise impaired or fall into the public domain or (z) any trade secret that is Intellectual Property may become publicly available or otherwise unprotectable.

 

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(f) Such Grantor shall notify Agent immediately if it knows, or has reason to know, that any application or registration relating to any Recordable Intellectual Property may become forfeited, misused, unenforceable, abandoned or dedicated to the public, or of any adverse determination or development regarding the validity or enforceability or such Grantor’s ownership of, interest in, right to use, register, own or maintain any Recordable Intellectual Property (including the institution of, or any such determination or development in, any proceeding relating to the foregoing in the United States Patent and Trademark Office or the United States Copyright Office, as applicable). Such Grantor shall take all actions that are necessary or reasonably requested by Agent to maintain and pursue each application (and to obtain the relevant registration or recordation) and to maintain each registration and recordation included in the Intellectual Property, unless such Grantor shall reasonably determine that such action would be of negligible value, economic or otherwise,.

(g) Such Grantor shall not knowingly infringe, misappropriate, dilute, violate or otherwise impair the Intellectual Property of any other Person. In the event that any Intellectual Property of such Grantor is or has been infringed, misappropriated, violated, diluted or otherwise impaired by a third party, such Grantor shall take such action as it reasonably deems appropriate under the circumstances in response thereto, including (if reasonably deemed appropriate by such Grantor) promptly bringing suit and recovering all damages therefor.

(h) Such Grantor shall execute and deliver to Agent in form and substance reasonably acceptable to Agent and suitable for (i) filing in the Applicable IP Office the short-form Intellectual Property Security Agreements in the form attached hereto as Exhibit B, C or D, as applicable, for all Copyrights, Trademarks, Patents and Licenses of such Grantor and (ii) recording with the appropriate Internet domain name registrar, a duly executed form of assignment for all Internet domain names of such Grantor (together with appropriate supporting documentation as may be requested by Agent).

SECTION 7 . Investment Property . Each Grantor represents, warrants and covenants as follows:

(a) Certificated Securities. On the Closing Date (in the case of an Original Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Grantor), such Grantor will deliver to the Agent as Collateral hereunder all certificates representing Pledged Certificated Securities then owned by such Grantor. Thereafter, whenever such Grantor acquires any other certificate representing a Pledged Certificated Security, such Grantor will promptly (and in any event within 10 Business Days) deliver such certificate to the Agent as Collateral hereunder. The provisions of this subsection are subject to the limitation in Section 7(j) in the case of voting Equity Interests in a Foreign Subsidiary.

 

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(b) Uncertificated Securities . On the Closing Date (in the case of an Original Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Grantor), such Grantor will enter into (and cause the relevant issuer to enter into) an Issuer Control Agreement in respect of each Pledged Uncertificated Security then owned by such Grantor and deliver such Issuer Control Agreement to the Agent (which shall enter into the same). Thereafter, whenever such Grantor acquires any other Pledged Uncertificated Security, such Grantor will promptly (and in any event within 10 Business Days) enter into (and cause the relevant issuer to enter into) an Issuer Control Agreement in respect of such Pledged Uncertificated Security and deliver such Issuer Control Agreement to the Agent (which shall enter into the same). The provisions of this subsection are subject to the limitation in Section 7(j) in the case of voting Equity Interests in a Foreign Subsidiary.

(c) Security Entitlements . On the Closing Date (in the case of an Original Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Grantor), such Grantor will, with respect to each Security Entitlement then owned by it with respect to Financial Assets credited to either (i) a Securities Account containing Cash Collateral and (ii) any Securities Account which is required to be maintained as a Dominion Account pursuant to Section 8.2.4 of the Loan Agreement, enter into (and cause the relevant Securities Intermediary to enter into) a Securities Account Control Agreement in respect of such Security Entitlement and the Securities Account to which the underlying Financial Asset is credited and will deliver such Securities Account Control Agreement to the Agent (which shall enter into the same). Thereafter, whenever such Grantor acquires any other Security Entitlement with respect to Financial Assets credited to either (i) a Securities Account containing Cash Collateral or (ii) any Securities Account which is required to be maintained as a Dominion Account pursuant to Section 8.2.4 of the Loan Agreement, promptly (and in any event within 10 Business Days) cause the underlying Financial Asset to be credited to a Controlled Securities Account.

(d) Perfection as to Certificated Securities. Subject to Section 28 hereof, when such Grantor delivers the certificate representing any Pledged Certificated Security owned by it to the Agent and complies with Section 7(h) in connection with such delivery, (i) the Transaction Lien on such Pledged Certificated Security will be perfected, subject to no prior Liens or rights of others (other than Permitted Collateral Liens), (ii) the Agent will have Control of such Pledged Certificated Security and (iii) assuming the Agent does not have notice of any adverse claim to such perfected Certificated Security (it being understood and agreed that as of the Closing Date, the Agent does not have notice of any adverse claim to such perfected Certificated Security other than Revolving Loan Agent’s claim under the Security Documents (as defined in the Revolving Loan Agreement)), the Agent will be a protected purchaser (within the meaning of UCC Section 8-303) thereof.

 

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(e) Perfection as to Uncertificated Securities . When such Grantor, the Agent and the issuer of any Pledged Uncertificated Security owned by such Grantor enter into an Issuer Control Agreement with respect thereto, (i) the Transaction Lien on such Pledged Uncertificated Security will be perfected, subject to no prior Liens or rights of others (other than Permitted Collateral Liens), (ii) the Agent will have Control of such Pledged Uncertificated Security and (iii) assuming the Agent does not have notice of any adverse claim to such Pledged Uncertificated Security (it being understood and agreed that as of the Closing Date, the Agent does not have notice of any adverse claim to such Pledged Uncertificated Security other than the Revolving Loan Agent’s claim under the Security Documents (as defined in the Revolving Loan Agreement)), the Agent will be a protected purchaser (within the meaning of UCC Section 8-303) thereof.

(f) Perfection as to Security Entitlements . So long as the Financial Asset underlying any Security Entitlement owned by such Grantor is credited to a Controlled Securities Account, (i) the Transaction Lien on such Security Entitlement will be perfected, subject to no prior Liens or rights of others (except Liens and rights of the relevant Securities Intermediary that are Permitted Collateral Liens), (ii) the Agent will have Control of such Security Entitlement and (iii) assuming the Agent acquires its Security Entitlement with respect thereto without notice of any adverse claim thereto (it being understood and agreed that as of the Closing Date, the Agent does not have notice of any adverse claim to such Security Entitlement), no action based on an adverse claim to such Security Entitlement or such Financial Asset, whether framed in conversion, replevin, constructive trust, equitable lien or other theory, may be asserted against the Agent or any other Secured Party.

(g) Agreement as to Applicable Jurisdiction . In respect of all Security Entitlements owned by such Grantor, and all Pledged Securities Accounts to which the related Financial Assets are credited, the related Securities Account Control Agreement will provide that the Securities Intermediary’s jurisdiction (determined as provided in UCC Section 8-110(e)) will at all times be located in the United States.

(h) Delivery of Pledged Certificates . All certificates representing Pledged Certificated Securities, when delivered to the Agent, will be in suitable form for transfer by delivery, or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance reasonably satisfactory to the Agent.

 

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(i) Communications . Upon the reasonable request of the Agent, each Grantor will promptly give to the Agent copies of any notices and other communications received by it with respect to (i) Pledged Securities registered in the name of such Grantor or its nominee and (ii) Pledged Security Entitlements as to which such Grantor is the Entitlement Holder; provided that, with respect to any such notice or other communication that could reasonably be expected to adversely affect the security interest of the Agent in such Pledged Securities or Pledged Securities Entitlements granted hereunder or the perfection thereof, the Agent shall be deemed to have made such request on the last day of each fiscal quarter of the Borrower.

(j) Foreign Subsidiaries. A Grantor will not be obligated to comply with the provisions of this Section at any time with respect to any voting Equity Interest in a Foreign Subsidiary if and to the extent (but only to the extent) that such voting Equity Interest is excluded from the Transaction Liens at such time pursuant to the definition of “Excluded Equity Interests” and/or the comparable provisions of one or more Security Agreement Supplements.

(k) Certification of Limited Liability Company and Partnership Interests . Any limited liability company and any partnership controlled by any Grantor shall either (a) not include in its operative documents any provision that any Equity Interests in such limited liability company or such partnership be a “security” as defined under Article 8 of the Uniform Commercial Code, or (b) certificate any Equity Interests in any such limited liability company or such partnership. To the extent an interest in any limited liability company or partnership controlled by any Grantor and pledged hereunder is certificated or becomes certificated, each such certificate shall be delivered to the Agent pursuant to Section 7(a) and such Grantor shall fulfill all other requirements under Section 7 applicable in respect thereof.

SECTION 8 . Deposit Accounts . Each Grantor represents, warrants and covenants as follows:

(a) All cash owned by such Grantor shall be deposited, upon or promptly after receipt thereof, in one or more Controlled Deposit Accounts or an account that would be not be required to be maintained as a Dominion Account pursuant to Section 8.2.4 of the Loan Agreement immediately after such deposit.

(b) In respect of each Controlled Deposit Account, the related Deposit Account Control Agreement will provide that the Depositary Bank’s jurisdiction (determined as provided in UCC Section 9-304) will at all times be a jurisdiction in which Article 9 of the Uniform Commercial Code is in effect.

 

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(c) So long as the Agent has Control of a Controlled Deposit Account, the Transaction Lien on such Controlled Deposit Account will be perfected, subject to no prior Liens or rights of others (except (x) the Depositary Bank’s right to deduct its normal operating charges and any uncollected funds previously credited thereto, (y) Permitted Collateral Liens and (z) as provided in the Intercreditor Agreement).

(d) The Term Priority Collateral Account shall be a Controlled Deposit Account and in no event shall (i) any proceeds of ABL Priority Collateral be deposited in the Term Priority Collateral Account and (ii) any proceeds of Term Priority Collateral be deposited in any Deposit Account other than the Term Priority Collateral Account.

SECTION 9 . Commercial Tort Claims . Each Grantor represents, warrants and covenants as follows:

(a) In the case of an Original Grantor, Schedule 3 accurately describes, with the specificity required to satisfy Official Comment 5 to UCC Section 9-108, each Material Commercial Tort Claim with respect to which such Original Grantor is the claimant as of the Closing Date. In the case of any other Grantor, Schedule 3 to its first Security Agreement Supplement will accurately describe, with the specificity required to satisfy said Official Comment 5, each Material Commercial Tort Claim with respect to which such Grantor is the claimant as of the date on which it signs and delivers such Security Agreement Supplement.

(b) If any Grantor acquires a Material Commercial Tort Claim after the Closing Date (in the case of an Original Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Grantor), such Grantor will promptly (and in any event within 10 Business Days) sign and deliver to the Agent a Security Agreement Supplement granting a security interest in such Commercial Tort Claim (which shall be described therein with the specificity required to satisfy said Official Comment 5) to the Agent for the benefit of the Secured Parties.

SECTION 10 . Transfer of Record Ownership . At any time when an Event of Default shall have occurred and be continuing, the Agent may (and to the extent that action by it is required, the relevant Grantor, if directed to do so by the Agent, will as promptly as practicable) cause each of the Pledged Securities (or any portion thereof specified in such direction) to be transferred of record into the name of the Agent or its nominee. Each Grantor will take any and all actions reasonably requested by the Agent to facilitate compliance with this Section. If the provisions of this Section are implemented, Section 7(b) shall not thereafter apply to any Pledged Security that is registered in the name of the Agent or its nominee. The Agent will promptly give to the relevant Grantor copies of any notices and other communications received by the Agent with respect to Pledged Securities registered in the name of the Agent or its nominee.

 

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SECTION 11 . Right to Vote Securities; Right to Proceeds of Insurance. (a) Unless an Event of Default shall have occurred and be continuing, each Grantor shall have the right, from time to time, to vote and to give consents, ratifications and waivers with respect to any Pledged Security owned by it and the Financial Asset underlying any Pledged Security Entitlement owned by it, and the Agent will, upon receiving a written request from such Grantor, deliver to such Grantor or as specified in such request such proxies, powers of attorney, consents, ratifications and waivers in respect of any such Pledged Security that is registered in the name of the Agent or its nominee or any such Pledged Security Entitlement as to which the Agent or its nominee is the Entitlement Holder, in each case as shall be specified in such request and be in form and substance satisfactory to the Agent.

(b) If an Event of Default shall have occurred and be continuing, upon written notice thereof to the Borrower, the Agent shall have the exclusive right to the extent permitted by law to vote, to give consents, ratifications and waivers and to take any other action with respect to the Pledged Investment Property, the other Pledged Equity Interests and the Financial Assets underlying the Pledged Security Entitlements, with the same force and effect as if the Agent were the absolute and sole owner thereof, and each Grantor shall take all such action as the Agent may reasonably request from time to time to give effect to such right.

(c) Each Grantor hereby grants to Agent an irrevocable proxy, coupled with an interest, to vote all or any part of the Pledged Security and to exercise all other rights, powers, privileges and remedies to which a holder of the Pledged Security would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any action (including any transfer of any Pledged Security on the record books of the issuer thereof) by any other person (including the issuer of such Pledged Security or any officer or agent thereof) during the continuance of an Event of Default and which proxy shall only terminate upon the payment in full of the Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted).

SECTION 12 . Certain Cash Distributions . Cash Distributions with respect to assets held in a Collateral Account shall be deposited and held therein, or withdrawn therefrom, as provided herein and in the Loan Agreement. Funds held in any Collateral Account (other than any Cash Collateral Account) may, until withdrawn, be invested and reinvested in such Cash Equivalents as the relevant Grantor shall request from time to time; provided that if a Cash Dominion Trigger Period or an Event of Default shall have occurred and be continuing, the Agent may select such Cash Equivalents.

 

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SECTION 13 . Remedies upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, the Agent may exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Loan Documents.

(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Agent may exercise on behalf of the Secured Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) with respect to any Collateral and, in addition, the Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral. To the maximum extent permitted by applicable law, any Secured Party may be the purchaser of any or all of the Collateral at any such sale and the Agent (as administrative agent for and representative of the Secured Parties), for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, shall be entitled to use and apply all of any part of the Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Agent shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Agent may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.

 

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(c) If the Agent sells any of the Collateral upon credit, the Grantors will be credited only with payment actually made by the purchaser, received by the Agent and applied in accordance with Section 14 hereof. In the event the purchaser fails to pay for the Collateral, the Agent may resell the same, subject to the same rights and duties set forth herein.

(d) Notice of any such sale or other disposition shall be given as required by Applicable Law. Each Grantor hereby agrees that 10 days’ written notice of any proposed sale or other disposition of Collateral by Agent shall be reasonable.

(e) For the purpose of enabling the Agent to exercise rights and remedies under this Agreement (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, convey, transfer or grant options to purchase any Collateral) at such time as the Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Agent, for the benefit of the Secured Parties, an irrevocable, nonexclusive, worldwide license (exercisable without payment of royalty or other compensation to the Grantors and subject to any prior rights granted by such Grantor to third parties), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs (solely to the extent permitted by the relevant licenses therefor) used for the compilation or printout thereof; provided , however , that any trademarks or service marks licensed pursuant to the foregoing may be used only in connection with goods and services of similar type and similar or greater quality than those theretofore sold by such Grantor under such trademark or service mark. The use of such license by the Agent may be exercised only upon the occurrence and during the continuation of an Event of Default; provided , however , that any license or sublicense entered into by the Agent in accordance herewith shall be binding upon each Grantor notwithstanding any subsequent cure of an Event of Default.

(f) For the purpose of enabling the Agent to exercise rights and remedies under this Agreement (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, convey, transfer or grant options to purchase any Collateral) at such time as the Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Agent, for the benefit of the Secured Parties, an irrevocable license (without payment of rent or other compensation to such Grantor) to use, operate and occupy all real Property owned, operated, leased, subleased or otherwise occupied by such Grantor.

 

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SECTION 14 . Application of Proceeds. Subject to the terms of the Intercreditor Agreement, (a)  if an Event of Default shall have occurred and be continuing, the Agent may apply (i) any cash held in the Collateral Accounts and (ii) the proceeds of any sale or other disposition of all or any part of the Collateral to the Obligations, which application shall be made in accordance with Section 2.4 of the Loan Agreement.

(b) In making the payments and allocations required by this Section, the Agent may rely upon information supplied to it pursuant to Section 18(c). All distributions made by the Agent pursuant to this Section shall be final (except in the event of manifest error) and the Agent shall have no duty to inquire as to the application by any Secured Party of any amount distributed to it.

SECTION 15 . Fees and Expenses; Indemnification . (a)  All expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping any Collateral, all Taxes payable with respect to any Collateral (including any sale thereof), and all other payments required to be made by Agent to any Person to realize upon any Collateral, shall be borne and paid by the Grantors. The Borrower will forthwith upon demand pay to the Agent:

(i) the amount of any taxes that the Agent may have been required to pay by reason of the Transaction Liens or to free any Collateral from any other Lien thereon;

(ii) the amount of any reasonable and documented out-of-pocket costs and expenses incurred in connection with the development, preparation, execution and administration of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Transactions, including, without limitation, the reasonable fees, charges and disbursements of a single counsel to the Agent and Lenders (which shall be selected by the Agent) and, if applicable, one special or local counsel in each applicable jurisdiction, as appropriate and, in the case of a conflict of interest, Secured Parties may engage and be reimbursed for additional counsel; and

(iii) the amount required to pay or reimburse each Secured Party and the Agent for all its reasonable costs and expenses incurred in connection with the enforcement of any rights under this Agreement, the other Loan Documents and any such other documents, including, without limitation, the fees and disbursements of one counsel selected by the

 

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Agent and, at any time after and during the continuance of an Event of Default, of one counsel to the Lenders and, if applicable, special or local counsel in each applicable jurisdiction, as appropriate, and, in the case of a conflict of interest, Secured Parties may engage and be reimbursed for additional counsel, as appropriate.

Any such amount not paid to the Agent on demand will bear interest for each day thereafter until paid at the Default Rate.

(b) If any transfer tax, documentary stamp tax or other tax is payable in connection with any transfer or other transaction provided for in the Security Documents, the Borrower will pay such tax and provide any required tax stamps to the Agent or as otherwise required by law.

(c) The Borrower shall indemnify each of the Secured Parties, their respective affiliates and the respective directors, officers, agents and employees of the foregoing (each an “ Indemnitee ”) in accordance with Section 14.2 of the Loan Agreement.

SECTION 16 . Authority to Administer Collateral . Each Grantor irrevocably appoints the Agent (and all Persons designated by the Agent) as its true and lawful attorney (and agent in fact), with full power of substitution, in its name or in the name of such Grantor, any Secured Party or otherwise, for the sole use and benefit of the Secured Parties, but at the Borrower’s sole cost and expense, to the extent permitted by law and without notice, to exercise, at any time and from time to time, all or any of the following powers with respect to all or any of such Grantor’s Collateral:

(i) endorse a Grantor’s name on any proceeds of Collateral (including proceeds of insurance) that come into Agent’s possession or control; or

(ii) during the continuance of any Event of Default:

(A) notify any Account Debtors of the assignment of their Accounts, demand and enforce payment of Accounts by legal proceedings or otherwise, and generally exercise any rights and remedies with respect to Accounts;

(B) demand, sue for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof,

 

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(C) settle, adjust, modify, compromise, compound, discharge, release, prosecute or defend any Accounts or other Collateral or any action or proceeding with respect thereto,

(D) collect, liquidate and receive balances in Pledged Deposit Accounts or Pledged Securities Accounts, and take control, in any manner, of proceeds of Collateral;

(E) prepare, file and sign a Grantor’s name to a proof of claim or other document in a bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien or similar document;

(F) receive, open and dispose of mail addressed to a Grantor, and notify postal authorities to deliver any such mail to an address designated by Agent;

(G) endorse any Chattel Paper, Document, Instrument, bill of lading, or other document or agreement relating to any Accounts, Inventory or other Collateral;

(H) use a Grantor’s stationery and sign its name to verifications of Accounts and notices to Account Debtors;

(I) use information contained in any data processing, electronic or information systems relating to Collateral;

(J) make and adjust claims under insurance policies;

(K) take any action as may be necessary or appropriate to obtain payment under any letter of credit, banker’s acceptance or other instrument for which a Grantor is a beneficiary;

(L) sell, lease, license or otherwise dispose of the same or the proceeds or avails thereof, as fully and effectually as if the Agent were the absolute owner thereof,

(M) extend the time of payment of any or all thereof and to make any allowance or other adjustment with reference thereto; and

(N) take all other actions as Agent deems appropriate to fulfill any Grantor’s obligations under the Loan Documents.

 

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SECTION 17 . Limitation on Duty in Respect of Collateral. Beyond the exercise of reasonable care in the custody and preservation thereof, the Agent will have no duty as to any Collateral in its possession or control or in the possession or control of any sub-agent or bailee or any income therefrom or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Agent will be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession or control if such Collateral is accorded treatment substantially equal to that which it accords its own property, and will not be liable or responsible for any loss or damage to any Collateral, or for any diminution in the value thereof, by reason of any act or omission of any sub-agent or bailee selected by the Agent in good faith, except to the extent that such liability arises from the Agent’s gross negligence or willful misconduct.

SECTION 18 . General Provisions Concerning the Agent .

(a) The Agent. The provisions of Section 12 of the Loan Agreement shall inure to the benefit of the Agent, and shall be binding upon all Grantors and all Secured Parties, in connection with this Agreement and the other Security Documents. Without limiting the generality of the foregoing, (i) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, (ii) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Security Documents that the Agent is required in writing to exercise by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 14.1 of the Loan Agreement), and (iii) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for any failure to disclose, any information relating to any Grantor that is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be responsible for the existence, genuineness or value of any Collateral or for the validity, perfection, priority or enforceability of any Transaction Lien, whether impaired by operation of law or by reason of any action or omission to act on its part under the Security Documents. The 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 under the circumstances as provided in Section 14.1 of the Loan Agreement) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to the Agent by the Borrower or a Secured Party.

(b) Sub-Agents and Related Parties. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more employees and sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. Agent may consult with and employ

 

32


Agent Professionals, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by an Agent Professional. The exculpatory provisions of Section 17 and this Section shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities as well as activities of the Agent. Agent shall not be responsible for the negligence or misconduct of any agents, employees or Agent Professionals selected by it with reasonable care.

(c) Information as to Obligations and Actions by Secured Parties. For all purposes of the Security Documents, including determining the amounts of the Obligations and whether an Obligation is a Contingent Obligation or not, or whether any action has been taken under any Secured Agreement, the Agent will be entitled to rely on information from (i) its own records for information as to the Credit Parties, their Obligations and actions taken by them, (ii) any Secured Party for information as to its Obligations and actions taken by it, to the extent that the Agent has not obtained such information from its own records, and (iii) the Borrower, to the extent that the Agent has not obtained information from the foregoing sources.

(d) Refusal to Act . The Agent may refuse to act on any notice, consent, direction or instruction from any Secured Parties or any agent, trustee or similar representative thereof that, in the Agent’s opinion, (i) is contrary to law or the provisions of any Security Document, (ii) may expose the Agent to personal liability or (iii) is unduly prejudicial to Secured Parties not joining in such notice, consent, direction or instruction.

SECTION 19 . Termination of Transaction Liens; Release of Collateral . (a) The Transaction Liens granted by each Guarantor shall terminate when its Secured Guarantee is released pursuant to Section 2(c).

(b) The Transaction Liens granted by the Borrower shall terminate when all the Release Conditions are satisfied.

(c) Notwithstanding the foregoing, the Transaction Liens with respect to property of the Borrower or any Guarantor securing the Obligations will be automatically released, in whole or in part, to the extent permitted in Section 12.2.1 of the Loan Agreement.

(d) Upon any termination of a Transaction Lien or release of Collateral, the Agent will, at the expense of the relevant Grantor, execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence the termination of such Transaction Lien or the release of such Collateral, as the case may be, and will duly assign and transfer to such Grantor any such Collateral that may be in the possession of the Agent and has not theretofore been sold or otherwise applied or released pursuant to this Agreement.

 

33


SECTION 20 . Additional Guarantors and Grantors. Any Subsidiary may and to the extent required by Section 10.1.14 of the Loan Agreement, shall become a party hereto by signing and delivering to the Agent a Security Agreement Supplement, whereupon such Subsidiary shall become a “Guarantor” and a “Grantor” as defined herein.

SECTION 21 . Notices . Each notice, request or other communication given to any party hereunder shall be given in accordance with subsection 14.3 of the Loan Agreement, and in the case of any such notice, request or other communication to a Grantor other than the Borrower, shall be given to it in care of the Borrower.

SECTION 22 . No Implied Waivers; Remedies Not Exclusive . No failure to exercise and no delay in exercising, on the part of any party hereto, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Without limiting the generality of the foregoing, the making of the Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

SECTION 23 . Successors and Assigns . This Agreement is for the benefit of the Agent and the Secured Parties. If all or any part of any Secured Party’s interest in any Obligation is assigned or otherwise transferred, the transferor’s rights hereunder, to the extent applicable to the obligation so transferred, shall be automatically transferred with such obligation. This Agreement shall be binding on the Grantors and their respective successors and assigns.

SECTION 24 . Amendments and Waivers . Neither this Agreement nor any provision hereof may be waived, amended, modified or terminated except pursuant to an agreement or agreements in writing entered into by the Agent, with the consent of such Lenders as are required to consent thereto under subsection 14.1 of the Loan Agreement. No such waiver, amendment or modification shall (i) be binding upon any Grantor, except with its written consent, or (ii) affect the rights of a Secured Party (other than a Lender) hereunder more adversely than it affects the comparable rights of the Lenders hereunder, without the consent of such Secured Party.

 

34


SECTION 25 . Choice of Law. This Agreement and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the Transactions shall be construed in accordance with and governed by the law of the State of New York, without giving effect to any conflict of law principles that result in the application of laws of another jurisdiction.

SECTION 26 . 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 SECURITY 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 27 . Severability . Any provision of any Security Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

SECTION 28 . Intercreditor Agreement . Notwithstanding anything herein to the contrary, the Liens and security interests granted to the Agent pursuant to this Agreement and the exercise of any right or remedy by the Agent hereunder, in each case, with respect to the Collateral are subject to the limitations and provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement with respect to the Collateral, the terms of the Intercreditor Agreement shall govern and control; provided that the Intercreditor Agreement shall not be construed, by its terms, to modify any security interest granted pursuant to Section 3 hereof. To the extent that any ABL Priority Collateral is required pursuant to the terms of this Agreement to be delivered to the Agent, so long as the Intercreditor Agreement is in effect, delivery of such ABL Priority Collateral to the Revolving Loan Agent shall be deemed to satisfy such requirement.

[SIGNATURES FOLLOW]

 

 

35


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.

 

SCHOOL SPECIALTY, INC.

 

By: /s/ Ryan M. Bohr

  Name: Ryan M. Bohr
  Title: Executive Vice President and Chief Financial Officer
CALIFONE INTERNATIONAL, LLC
By:   School Specialty, its sole member
 

By: /s/ Joseph M. Yorio

  Name: Joseph M. Yorio
  Title: President and Chief Executive Officer
CLASSROOMDIRECT.COM, LLC
By:   School Specialty, its sole member
 

By: /s/ Joseph M. Yorio

  Name: Joseph M. Yorio
  Title: President and Chief Executive Officer

CHILDCRAFT EDUCATION, LLC

By:   School Specialty, its sole member
 

By: /s/ Joseph M. Yorio

  Name: Joseph M. Yorio
  Title: President and Chief Executive Officer

DELTA EDUCATION, LLC

By:   School Specialty, its sole member
 

By: /s/ Joseph M. Yorio

  Name: Joseph M. Yorio
  Title: President and Chief Executive Officer

SPORTIME, LLC

By:   School Specialty, its sole member
 

By: /s/ Joseph M. Yorio

  Name: Joseph M. Yorio
  Title: President and Chief Executive Officer

Signature Page to Guaranty and Collateral Agreement


PREMIER AGENDAS, LLC

By:

 

School Specialty, Inc., its sole member

 

By: /s/ Joseph M. Yorio

 

Name: Joseph M. Yorio

 

Title: President and Chief Executive Officer

BIRD-IN-HAND WOODWORKS, LLC

By:

 

School Specialty, Inc., sole member

Childcraft, LLC, its sole member

 

By: /s/ Joseph M. Yorio

 

Name: Joseph M. Yorio

 

Title: President and Chief Executive Officer

SSI GUARDIAN, LLC

By:

  School Specialty, Inc., its sole member
 

By: /s/ Joseph M. Yorio

 

Name: Joseph M. Yorio

 

Title: President and Chief Executive Officer

TCW ASSET MANAGEMENT COMPANY, LLC, as Agent

By:

 
 

/s/ Suzanne Grosso

 

Name: Suzanne Grosso

 

Title: Managing Director

Signature Page to Guaranty and Collateral Agreement

 


SCHEDULE 1

EQUITY INTERESTS IN SUBSIDIARIES AND AFFILIATES

OWNED BY ORIGINAL GRANTORS

(as of the Closing Date)

 

Issuer

   Jurisdiction
of
Organization
  

Owner of

Equity Interest

   Percentage
Owned
   

Number of

Shares or
Units

Califone International, LLC

Childcraft Education, LLC

ClassroomDirect.com, LLC

Delta Education, LLC

Frey Scientific, LLC

Premier Agendas, LLC

Sax Arts & Crafts, LLC

Sportime, LLC

Premier School Agendas, Ltd.

Select Agendas, Corp.

Bird-In-Hand Woodworks, LLC

SSI Guardian, LLC

   Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

  

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

Childcraft Education, LLC

School Specialty, Inc.

    

100

100

100

100

100

100

100

100

100

100

100

100


 

N/A

N/A

1

100

N/A

N/A

N/A

100

N/A

N/A

N/A

N/A

 

S-1


SCHEDULE 2

INVESTMENT PROPERTY

(other than Equity Interests in Subsidiaries and Affiliates)

OWNED BY ORIGINAL GRANTORS

(as of the Closing Date)

PART 1 — Securities

 

Issuer

 

Jurisdiction

of

Organization

 

Owner of

Securities

 

Amount

Owned

 

Type of

Security

None.

       

PART 2 — Securities Accounts

The Original Grantors own Security Entitlements with respect to Financial Assets credited to the following Securities Accounts:

 

Owner

 

Securities Intermediary

 

Account Number

None.

   

 

S-2


SCHEDULE 3

MATERIAL COMMERCIAL TORT CLAIMS

Describe each existing Material Commercial Tort Claim with the specificity required to satisfy Official Comment 5 to UCC Section 9-108.

None.

 

S-3


EXHIBIT A

to Security Agreement

SECURITY AGREEMENT SUPPLEMENT

SECURITY AGREEMENT SUPPLEMENT dated as of                          ,             , between [NAME OF GRANTOR] (the “ Grantor ”) and TCW ASSET MANAGEMENT COMPANY, LLC, as Agent.

WHEREAS, School Specialty, Inc. (the “ Borrower ”), the Guarantors party thereto and TCW ASSET MANAGEMENT COMPANY, LLC, as Agent are parties to a Guarantee and Collateral Agreement dated as of April 7, 2017 (as heretofore amended and/or supplemented, the “ Security Agreement ”) under which Borrower secures all Obligations (as defined therein) and the Guarantors guarantee the Obligations and secure their respective guarantees thereof;

WHEREAS, [name of Grantor] desires to become [is] a party to the Security Agreement as a Guarantor and Grantor thereunder; and

WHEREAS, terms defined in the Security Agreement (or whose definitions are incorporated by reference in Section 1 of the Security Agreement) and not otherwise defined herein have, as used herein, the respective meanings provided for therein;

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.     Secured Guarantee. 1 The Grantor unconditionally guarantees the full and punctual payment of each Obligation when due (whether at stated maturity, upon acceleration or otherwise). The Grantor acknowledges that, by signing this Security Agreement Supplement and delivering it to the Agent, the Grantor becomes a “Guarantor” and “Grantor” for all purposes of the Security Agreement and that its obligations under the foregoing Secured Guarantee are subject to all the provisions of the Security Agreement (including those set forth in Section 2 thereof) applicable to the obligations of a Guarantor thereunder.

 

1   Delete this Section if the Grantor is a Borrower or a Guarantor that is already a party to the Security Agreement.

 

A-1


2. Grant of Transaction Liens . (a) In order to secure Obligations, including the Obligations under the Secured Guarantee, as applicable, the Grantor grants to the Agent for the benefit of the Secured Parties a continuing security interest in all the following property of the Grantor, whether now owned or existing or hereafter acquired or arising and regardless of where located (the “ New Collateral ”):

[describe property being added to the Collateral] 2

(b) With respect to each right to payment or performance included in the Collateral from time to time, the Transaction Lien granted therein includes a continuing security interest in (i) any Supporting Obligation that supports such payment or performance and (ii) any Lien that (x) secures such right to payment or performance or (y) secures any such Supporting Obligation.

(c) The foregoing Transaction Liens are granted as security only and shall not subject the Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Grantor with respect to any of the New Collateral or any transaction in connection therewith.

3. Delivery of Collateral . Concurrently with delivering this Security Agreement Supplement to the Agent, the Grantor is complying with the provisions of Section 7 of the Security Agreement with respect to Investment Property, in each case if and to the extent included in the New Collateral at such time.

4. Party to Security Agreement . Upon delivering this Security Agreement Supplement to the Agent, the Grantor will become a party to the Security Agreement and will thereafter have all the rights and obligations of a Guarantor and a Grantor thereunder and be bound by all the provisions thereof as fully as if the Grantor were one of the original parties thereto.

5. Representations and Warranties . (a) The Grantor (a) is duly organized or formed, as the case may be, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, (b) has the requisite power and authority to own and operate its Property, to lease the Property it operates as lessee and to conduct the business in which it is currently

 

 

2  

If the Grantor is not already a party to the Security Agreement, clauses (i) through (xiii) of, and the proviso to, Section 3(a) of the Security Agreement may be appropriate.

 

A-2


engaged as it is currently conducted, (c) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership, lease or operation of Property or the conduct of its business requires such qualification except to the extent that the failure to so qualify could not, in the aggregate, reasonably be expected to have a Material Adverse Effect and (d) is in compliance with all Applicable Law except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b) The Grantor has delivered a Perfection Certificate to the Agent. The information set forth therein is correct and complete as of the date hereof.

(c) The execution and delivery of this Security Agreement Supplement by the Grantor and the performance by it of its obligations under the Security Agreement as supplemented hereby are within its corporate or other powers, have been duly authorized by all necessary corporate or other action, require no action by or in respect of, or filing with, any governmental body, agency or official and do not contravene, or constitute a default under, any provision of applicable law or regulation or of its organizational documents, or of any agreement, judgment, injunction, order, decree or other instrument binding upon it or result in the creation or imposition of any Lien (except a Transaction Lien) on any of its assets.

(d) The Security Agreement as supplemented hereby constitutes a valid and binding agreement of the Grantor, enforceable in accordance with its terms, except as limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting creditors’ rights generally and (ii) general principles of equity.

(e) Each of the representations and warranties set forth in Sections 4 through 10 of the Security Agreement is true as applied to the Grantor and the New Collateral. For purposes of the foregoing sentence, references in said Sections to a “Grantor” shall be deemed to refer to the Grantor, references to “Schedules” to the Security Agreement shall be deemed to refer to the corresponding Schedules to this Security Agreement Supplement, references to “Collateral” shall be deemed to refer to the New Collateral, and references to the “Closing Date” shall be deemed to refer to the date on which the Grantor signs and delivers this Security Agreement Supplement.

 

A-3


6. Governing Law . This Security Agreement Supplement and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Security Agreement Supplement and the Transactions shall be construed in accordance with and governed by the law of the State of New York, without giving effect to any conflict of law principles that result in the application of laws of another jurisdiction.

[The remainder of this page has been intentionally left blank.]

 

A-4


IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement Supplement to be duly executed by their respective authorized officers as of the day and year first above written.

 

[NAME OF GRANTOR]

By:

 

 

 

Name:

 

Title:

 

TCW ASSET MANAGEMENT COMPANY, LLC, as Agent

By:

 

 

 

Name:

 

Title:

 

A-5


Schedule 1

to Security Agreement

Supplement

EQUITY INTERESTS IN SUBSIDIARIES AND AFFILIATES

OWNED BY GRANTOR

 

Issuer

 

Jurisdiction

of

Organization

 

Percentage

Owned

  

Number of

Shares or

Units

 

A-6


Schedule 2

to Security Agreement

Supplement

INVESTMENT PROPERTY

(other than Equity Interests in Subsidiaries and Affiliates)

OWNED BY GRANTOR

PART 1 — Securities

 

Issuer

 

Jurisdiction

of

Organization

 

Amount

Owned

  

Type of

Security

PART 2 — Securities Accounts

The Grantor owns Security Entitlements with respect to Financial Assets credited to the following Securities Accounts:

 

Securities Intermediary

 

Account Number

 

A-7


EXHIBIT B

to Security Agreement

COPYRIGHT SECURITY AGREEMENT

This COPYRIGHT SECURITY AGREEMENT (this “ Copyright Security Agreement ”) is made this 7th day of April, 2017, by and among the grantors listed on the signature pages hereof (collectively, jointly and severally, “ Grantors ” and each individually “ Grantor ”), and TCW Asset Management Company, LLC (“ TCW ”), in its capacity as agent for each Lender (in such capacity, together with its successors and assigns in such capacity, “ Agent ”).

W I T N E S S E T H :

WHEREAS, pursuant to that certain Loan Agreement dated as of April 7, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Loan Agreement ”) by and among SCHOOL SPECIALTY, INC., a Delaware corporation (“ Borrower ”), each Person party thereto as a guarantor from time to time, the financial institutions from time to time party thereto (each a “ Lender ” and, collectively, the “ Lenders ”) Agent, the Lenders have agreed to make certain financial accommodations available to Borrower from time to time pursuant to the terms and conditions thereof; and

WHEREAS, Lenders are willing to make the financial accommodations to Borrower as provided for in the Loan Agreement and the other Loan Documents, but only upon the condition, among others, that Grantors shall have executed and delivered to Agent, for the benefit of the Lenders, that certain Guaranty and Collateral Agreement, dated as of April 7, 2017 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “ Guaranty and Collateral Agreement ”); and

WHEREAS, pursuant to the Guaranty and Collateral Agreement, Grantors are required to execute and deliver to Agent, for the benefit of the Lenders, this Copyright Security Agreement;

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantors hereby agree as follows:

1. DEFINED TERMS . All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Guaranty and Collateral Agreement or, if not defined therein, in the Loan Agreement, and this Copyright Security Agreement shall be subject to the rules of construction set forth in Section  1.4 of the Loan Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis .

2. GRANT OF SECURITY INTEREST IN COPYRIGHT COLLATERAL . Each Grantor hereby unconditionally grants, assigns, and pledges to Agent, for the benefit each Lender, to secure the Obligations, a continuing security interest (referred to in this Copyright Security Agreement as the “ Security Interest ”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (excluding any Excluded Assets, collectively, the “ Copyright Collateral ”):

 

B-1


(a) all of such Grantor’s Copyrights and Copyright Intellectual Property Licenses to which it is a party including those referred to on Schedule I ;

(b) all renewals or extensions of the foregoing; and

(c) all products and proceeds of the foregoing, including any claim by such Grantor against third parties for past, present or future infringement of any Copyright or any Copyright exclusively licensed under any Intellectual Property License, including the right to receive damages, or the right to receive license fees, royalties, and other compensation under any Copyright Intellectual Property License, to the extent provided for in the license.

3. SECURITY FOR OBLIGATIONS . This Copyright Security Agreement and the Security Interest created hereby secures the payment and performance of the Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Copyright Security Agreement secures the payment of all amounts which constitute part of the Obligations and would be owed by Grantors, or any of them, to Agent, the Lenders or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

4. SECURITY AGREEMENT . The Security Interest granted pursuant to this Copyright Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Lenders, pursuant to the Guaranty and Collateral Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the Security Interest in the Copyright Collateral made and granted hereby are more fully set forth in the Guaranty and Collateral Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any inconsistency between this Copyright Security Agreement and the Guaranty and Collateral Agreement, the Guaranty and Collateral Agreement shall control.

5. AUTHORIZATION TO SUPPLEMENT . Grantors shall give Agent notice in writing of any additional copyright registrations granted after the date hereof pursuant to Section 6(a) of the Guaranty and Collateral Agreement. Without limiting Grantors’ obligations under this Section, Grantors hereby authorize Agent unilaterally to modify this Copyright Security Agreement by amending Schedule I to include any future United States registered copyrights or applications therefor of each Grantor. Notwithstanding the foregoing, no failure to so modify this Copyright Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I.

6. COUNTERPARTS . This Copyright Security Agreement is a Loan Document. This Copyright Security Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Copyright Security Agreement. Delivery of an executed counterpart of this Copyright

 

B-2


Security Agreement by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Copyright Security Agreement. Any party delivering an executed counterpart of this Copyright Security Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Copyright Security Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Copyright Security Agreement.

7. CHOICE OF LAW AND VENUE AND JURY TRIAL WAIVER . THIS COPYRIGHT SECURITY AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE AND JURY TRIAL WAIVER SET FORTH IN SECTION 14 OF THE LOAN AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS .

[signature page follows]

 

B-3


IN WITNESS WHEREOF, the parties hereto have caused this Copyright Security Agreement to be executed and delivered as of the day and year first above written.

 

GRANTORS:

 

 

 

By:                                                                                         

Name:                                                                                   

Title:                                                                                     

 

   

 

 

By:                                                                                         

Name:                                                                                   

Title:                                                                                     

 

  

ACCEPTED AND ACKNOWLEDGED BY :

AGENT:

  

TCW Asset Management Company, LLC

 

By:                                                                                         

Name:                                                                                   

Title:                                                                                     

 

 


SCHEDULE I

to

COPYRIGHT SECURITY AGREEMENT

Copyright Registrations

 

Grantor

 

Country

 

Copyright

  

Registration No.

  

Registration Date

Copyright Licenses

 

C-1


EXHIBIT C

to Security Agreement

PATENT SECURITY AGREEMENT

This PATENT SECURITY AGREEMENT (this “ Patent Security Agreement ”) is made this 7th day of April, 2017, by and among the grantors listed on the signature pages hereof (collectively, jointly and severally, “ Grantors ” and each individually “ Grantor ”), and TCW Asset Management Company, LLC (“ TCW ”), in its capacity as agent for each Lender (in such capacity, together with its successors and assigns in such capacity, “ Agent ”).

W I T N E S S E T H :

WHEREAS, pursuant to that certain Loan Agreement dated as of April 7, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Loan Agreement ”) by and among SCHOOL SPECIALTY, INC., a Delaware corporation (“ Borrower ”), each Person party thereto as a guarantor from time to time, the financial institutions from time to time party thereto (each a “ Lender ” and, collectively, the “ Lenders ”) Agent, the Lenders have agreed to make certain financial accommodations available to Borrower from time to time pursuant to the terms and conditions thereof; and

WHEREAS, the Lenders are willing to make the financial accommodations to Borrower as provided for in the Loan Agreement and the other Loan Documents, but only upon the condition, among others, that the Grantors shall have executed and delivered to Agent, for the benefit of the Lenders, that certain Guaranty and Collateral Agreement, dated as of April 7, 2017 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “ Guaranty and Collateral Agreement ”); and

WHEREAS, pursuant to the Guaranty and Collateral Agreement, Grantors are required to execute and deliver to Agent, for the benefit of the Lenders, this Patent Security Agreement;

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor hereby agrees as follows:

1. DEFINED TERMS . All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Guaranty and Collateral Agreement or, if not defined therein, in the Loan Agreement, and this Patent Security Agreement shall be subject to the rules of construction set forth in Section  1.4 of the Loan Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis .

2. GRANT OF SECURITY INTEREST IN PATENT COLLATERAL . Each Grantor hereby unconditionally grants, assigns, and pledges to Agent, for the benefit each Lender, to secure the Obligations, a continuing security interest (referred to in this Patent Security Agreement as the “ Security Interest ”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (excluding any Excluded Assets, collectively, the “ Patent Collateral ”):

 

C-1


(a) all of its Patents and Patent Intellectual Property Licenses to which it is a party including those referred to on Schedule I ;

(b) all divisionals, continuations, continuations-in-part, reissues, reexaminations, or extensions of the foregoing; and

(c) all products and proceeds of the foregoing, including any claim by such Grantor against third parties for past, present or future infringement of any Patent or any Patent exclusively licensed under any Intellectual Property License, including the right to receive damages, or right to receive license fees, royalties, and other compensation under any Patent Intellectual Property License, to the extent permitted in the license.

3. SECURITY FOR OBLIGATIONS . This Patent Security Agreement and the Security Interest created hereby secures the payment and performance of the Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Patent Security Agreement secures the payment of all amounts which constitute part of the Obligations and would be owed by Grantors, or any of them, to Agent, the Lenders or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

4. SECURITY AGREEMENT . The Security Interest granted pursuant to this Patent Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Lenders, pursuant to the Guaranty and Collateral Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the Security Interest in the Patent Collateral made and granted hereby are more fully set forth in the Guaranty and Collateral Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any inconsistency between this Patent Security Agreement and the Guaranty and Collateral Agreement, the Guaranty and Collateral Agreement shall control.

5. AUTHORIZATION TO SUPPLEMENT . If any Grantor shall obtain rights to any new patent application or issued patent or become entitled to the benefit of any patent application or patent for any divisional, continuation, continuation-in-part, reissue, or reexamination of any existing patent or patent application, the provisions of this Patent Security Agreement shall automatically apply thereto. Grantors shall give prompt notice in writing to Agent with respect to any such new patent rights. Without limiting Grantors’ obligations under this Section, Grantors hereby authorize Agent unilaterally to modify this Patent Security Agreement by amending Schedule I to include any such new patent rights of each Grantor. Notwithstanding the foregoing, no failure to so modify this Patent Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I .


6. COUNTERPARTS . This Patent Security Agreement is a Loan Document. This Patent Security Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Patent Security Agreement. Delivery of an executed counterpart of this Patent Security Agreement by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Patent Security Agreement. Any party delivering an executed counterpart of this Patent Security Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Patent Security Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Patent Security Agreement.

7. CHOICE OF LAW AND VENUE AND JURY TRIAL WAIVER . THIS PATENT SECURITY AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE AND JURY TRIAL WAIVER SET FORTH IN SECTION 14 OF THE LOAN AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS .

[signature page follows]


IN WITNESS WHEREOF, the parties hereto have caused this Patent Security Agreement to be executed and delivered as of the day and year first above written.

 

GRANTORS:     

 

     By:                                                                                                    
     Name:                                                                                              
     Title:                                                                                                
    

 

     By:                                                                                                    
     Name:                                                                                              
     Title:                                                                                                
     ACCEPTED AND ACKNOWLEDGED BY :
AGENT:      TCW Asset Management Company, LLC
     By:                                                                                                    
     Name:                                                                                              
     Title:                                                                                                


SCHEDULE I

to

PATENT SECURITY AGREEMENT

Patents

 

Grantor

 

Country

 

Patent

 

Application/ Patent No.

 

Filing Date

Patent Licenses


EXHIBIT D

to Security Agreement

TRADEMARK SECURITY AGREEMENT

This TRADEMARK SECURITY AGREEMENT (this “ Trademark Security Agreement ”) is made this 7th day of April, 2017, by and among the grantors listed on the signature pages hereof (collectively, jointly and severally, “ Grantors ” and each individually “ Grantor ”), and TCW Asset Management Company, LLC (“ TCW ”), in its capacity as agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, “ Agent ”).

W I T N E S S E T H:

WHEREAS, pursuant to that certain Loan Agreement dated as of April 7, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Loan Agreement ”) by and among SCHOOL SPECIALTY, INC., a Delaware corporation (“ Borrower ”), each Person party thereto as a guarantor from time to time, the financial institutions from time to time party thereto (each a “ Lender ” and, collectively, the “ Lenders ”) Agent, the Lenders have agreed to make certain financial accommodations available to Borrower from time to time pursuant to the terms and conditions thereof; and

WHEREAS, Lenders are willing to make the financial accommodations to Borrower as provided for in the Loan Agreement and the other Loan Documents, but only upon the condition, among others, that Grantors shall have executed and delivered to Agent, for the benefit of Lenders, that certain Guaranty and Collateral Agreement, dated as of April 7, 2017 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “ Guaranty and Collateral Agreement ”); and

WHEREAS, pursuant to the Guaranty and Collateral Agreement, Grantors are required to execute and deliver to Agent, for the benefit of Lenders, this Trademark Security Agreement;

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor hereby agrees as follows:

1. DEFINED TERMS . All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Guaranty and Collateral Agreement or, if not defined therein, in the Loan Agreement, and this Trademark Security Agreement shall be subject to the rules of construction set forth in Section  1.4 of the Loan Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis .

2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL . Each Grantor hereby unconditionally grants, assigns, and pledges to Agent, for the benefit each Lender, to secure the Obligations, a continuing security interest (referred to in this Trademark Security Agreement as the “ Security Interest ”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (excluding any Excluded Assets, collectively, the “ Trademark Collateral ”):

 

D-1


(a) all of its Trademarks and Trademark Intellectual Property Licenses to which it is a party including those referred to on Schedule I ;

(b) all goodwill of the business not inuring to the licensor, connected with the use of, and symbolized by, each Trademark and each Trademark Intellectual Property License; and

(c) all products and proceeds (as that term is defined in the Code) of the foregoing, including any claim by such Grantor against third parties for past, present or future (i) infringement or dilution of any Trademark or any Trademarks exclusively licensed under any Intellectual Property License, including right to receive any damages, to the extent permitted by such license, (ii) injury to the goodwill associated with any Trademark, or (iii) right to receive license fees, royalties, and other compensation under any Trademark Intellectual Property License, to the extent permitted by such license.

3. SECURITY FOR OBLIGATIONS . This Trademark Security Agreement and the Security Interest created hereby secures the payment and performance of the Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Trademark Security Agreement secures the payment of all amounts which constitute part of the Obligations and would be owed by Grantors, or any of them, to Agent, the Lenders or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

4. SECURITY AGREEMENT . The Security Interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Lenders, pursuant to the Guaranty and Collateral Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the Security Interest in the Trademark Collateral made and granted hereby are more fully set forth in the Guaranty and Collateral Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any inconsistency between this Trademark Security Agreement and the Guaranty and Collateral Agreement, the Guaranty and Collateral Agreement shall control.

5. AUTHORIZATION TO SUPPLEMENT . If any Grantor shall obtain rights to any new trademarks, the provisions of this Trademark Security Agreement shall automatically apply thereto. Grantors shall give prompt notice in writing to Agent with respect to any such new trademarks or renewal or extension of any trademark registration. Without limiting Grantors’ obligations under this Section, Grantors hereby authorize Agent unilaterally to modify this Trademark Security Agreement by amending Schedule I to include any such new trademark rights of each Grantor. Notwithstanding the foregoing, no failure to so modify this Trademark Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I .

 

D-2


6. COUNTERPARTS . This Trademark Security Agreement is a Loan Document. This Trademark Security Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Trademark Security Agreement. Delivery of an executed counterpart of this Trademark Security Agreement by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Trademark Security Agreement. Any party delivering an executed counterpart of this Trademark Security Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Trademark Security Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Trademark Security Agreement.

7. CHOICE OF LAW AND VENUE AND JURY TRIAL WAIVER . THIS TRADEMARK SECURITY AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE AND JURY TRIAL WAIVER SET FORTH IN SECTION 14 OF THE LOAN AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS .

[signature page follows]

 

D-3


IN WITNESS WHEREOF, the parties hereto have caused this Trademark Security Agreement to be executed and delivered as of the day and year first above written.

 

GRANTORS:     

 

     By:                                                                                                    
     Name:                                                                                              
     Title:                                                                                                
    
     By:                                                                                                    
     Name:                                                                                              
     Title:                                                                                                
     ACCEPTED AND ACKNOWLEDGED BY :
AGENT:      TCW Asset Management Company, LLC
     By:                                                                                                    
     Name:                                                                                              
     Title:                                                                                                


SCHEDULE I

to

TRADEMARK SECURITY AGREEMENT

Trademark Registrations/Applications

 

Grantor

 

Country

 

Mark

  

Application/

Registration No.

  

App/Reg Date

Material Trade Names

Material Common Law Trademarks

Trademark Licenses


EXHIBIT E

to Security Agreement

PERFECTION CERTIFICATE

April 7, 2017

Reference is hereby made to that certain Guarantee and Collateral Agreement, dated as of the date hereof (the “ Security Agreement ”), among SCHOOL SPECIALTY, INC., a Delaware corporation (“ Borrower ”), as borrower, the guarantors party thereto and TCW ASSET MANAGEMENT COMPANY, LLC, as agent (the “ Agent ”). Capitalized terms used but not defined herein have the meanings assigned in the Security Agreement.

As used herein, the term “ Companies ” means each Grantor (as defined in the Security Agreement).

The undersigned hereby certify to each Agent as follows:

1. Names . (a)The exact legal name of each Company, as such name appears in its respective certificate of incorporation or any other organizational document, is set forth in Schedule 1(a) . Each Company is (i) the type of entity disclosed next to its name in Schedule 1(a) and (ii) a registered organization except to the extent disclosed in Schedule 1(a) . Also set forth in Schedule 1(a) is the organizational identification number, if any, of each Company that is a registered organization, the federal taxpayer identification number of each Company and the jurisdiction of formation of each Company.

(b) Set forth in Schedule 1(b) hereto is any other corporate or organizational names each Company has had in the past five years, together with the date of the relevant change.

(c) Set forth in Schedule 1(c) is a list of all other names (including trade names or similar appellations) used by each Company, or any other business or organization to which each Company became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, at any time in the past five years. Also set forth in Schedule  1(c) is the information required by Section 1 of this certificate for any other business or organization to which each Company became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, at any time in the past five years. Except as set forth in Schedule 1(c) , no Company has changed its jurisdiction of organization at any time during the past twelve months.

2. Current Locations . (a)The chief executive office of each Company is located at the address set forth in Schedule 2(a) hereto.

 

E-1


(b) Set forth in Schedule 2(b) are all locations where each Company maintains any books or records relating to any Account.

(c) Set forth in Schedule 2(c) hereto are all other locations where each Company maintains any of the Collateral consisting of inventory or equipment, in each case with an aggregate value in excess of $250,000 at any one location.

(d) Set forth in Schedule 2(d) hereto are the names and addresses of all persons or entities other than each Company, such as lessees, consignees, warehousemen or purchasers of chattel paper, which have possession or are intended to have possession of any of the Collateral consisting of instruments, chattel paper, inventory or equipment, in each case with an aggregate value in excess of $250,000 at any one location.

3. Prior Locations . (a)Set forth in Schedule 3(a) is the information required by Schedule 2(a) or Schedule 2(b) with respect to each location or place of business previously maintained by any Company at any time during the past four months.

(b) Set forth in Schedule 3(b) is the information required by Schedule 2(c) or Schedule 2(d) with respect to each other location at which, or other person or entity with which, any of the Collateral consisting of inventory or equipment has been previously held at any time during the past twelve months.

4. UCC Filings . Financing statements attached as Schedule 4 have been prepared for filing in the proper Uniform Commercial Code filing offices in the jurisdictions identified in Schedule 5 hereof.

5. Schedule of Filings . Attached hereto as Schedule  5 is a schedule of the appropriate filing offices for the Uniform Commercial Code financing statements attached hereto as Schedule 4 .

6. Termination Statements . Attached hereto as Schedule 6(a) are the termination statements in the appropriate form for filing in each applicable jurisdiction identified in Schedule 6(b) hereto with respect to each Lien described therein.

7. Stock Ownership and Other Equity Interests . Attached hereto as Schedule 7 is a true and correct list of each of all of the authorized, and the issued and outstanding, stock, partnership interests, limited liability company membership interests or other equity interest of each Company (other than Borrower) and its respective Subsidiaries and the record and beneficial owners of such stock, partnership interests, membership interests or other equity interests.

8. Instruments and Tangible Chattel Paper . Attached hereto as Schedule 8 is a true and correct list of all promissory notes, instruments (other than checks to be deposited in the ordinary course of business), tangible chattel paper, electronic chattel paper and other evidence of indebtedness, in each case in excess of $250,000 on an individual basis, held by each Company as of the closing date, including all intercompany notes between or among any two or more Companies.

 

E-2


9. Intellectual Property . (a)Attached hereto as Schedule 9(a) is a schedule setting forth all of each Company’s Patents and Trademarks (each as defined in the Security Agreement) registered with the United States Patent and Trademark Office, including the name of the registered owner and the registration number of each such Patent and Trademark owned by each Company.

(b) Attached hereto as Schedule 9(b) is a schedule setting forth all titles of each Company’s material (in the aggregate) United States registered Copyrights (as defined in the Security Agreement), including the name of the registered owner and the registration number of each such Copyright.

(c) [Attached hereto as Schedule 9(c) is a schedule setting forth all of each Company’s material Exclusive Copyright Licenses (as defined in the Security Agreement) including in each case (i) the name and date of and the parties to such Exclusive Copyright License and (ii) to the extent referenced in such Exclusive Copyright License, the titles and the United States Copyright registration numbers, of all works of authorship or copyrights that are the subject of such Exclusive Copyright License.] 3

10. Commercial Tort Claims . Attached hereto as Schedule 10 is a true and correct list of all Commercial Tort Claims (as defined in the Security Agreement) held by each Company, with a value reasonably estimated to exceed $250,000 on an individual basis, including a brief description thereof.

11. Deposit Accounts, Securities Accounts and Commodity Accounts . Attached hereto as Schedule 11 is a true and complete list of all Deposit Accounts, Securities Accounts and Commodity Accounts (each as defined in the Security Agreement) maintained by each Company (excluding any bankruptcy reserve and distribution accounts established in connection with the Plan of Reorganization ), including the name of each institution where each such account is held, the type of each such account and the name of each entity that holds each account.

12. Letter-of-Credit Rights . Attached hereto as Schedule 12 is a true and correct list of all Letters of Credit issued in favor of each Company, as beneficiary thereunder, in each case with a face amount in excess of $250,000.

[The Remainder of this Page has been intentionally left blank]

 

 

3   Not required to be included in the Perfection Certificate delivered at Closing.

 

E-3


IN WITNESS WHEREOF, we have hereunto signed this Perfection Certificate as of the date first written above.

 

[GRANTOR]
By:  

 

  Name:
  Title:


EXHIBIT F

to Security Agreement

ISSUER CONTROL AGREEMENT

ISSUER CONTROL AGREEMENT dated as of                              ,                      among                      (the “ Grantor ”), TCW ASSET MANAGEMENT COMPANY, LLC, as Agent under the Guarantee and Collateral Agreement, dated as of April 7, 2017, among the Grantor, TCW ASSET MANAGEMENT COMPANY, LLC and the other parties thereto (as amended, restated, supplemented or otherwise modified from time to time, the “ First Lien Security Agreement ”) (in such capacity, the “ First Lien Agent ”), BANK OF AMERICA, N.A., as Agent under the Guarantee and Collateral Agreement, dated as of June 11, 2013, among the Grantor, BANK OF AMERICA, N.A. and the other parties thereto (as amended, restated, supplemented or otherwise modified from time to time, the “ Second Lien Security Agreement ” and, together with the First Lien Security Agreement, the “ Security Agreements ”) (in such capacity, the “ Second Lien Agent ”, and together with the First Lien Agent, the “ Agents ”, and each, an “ Agent ”) and                     (the “ Issuer ”). All references herein to the “ UCC ” refer to the Uniform Commercial Code as in effect from time to time in [Issuer’s jurisdiction of incorporation].

W I T N E S S E T H :

WHEREAS, the Grantor is the registered holder of [specify Pledged Uncertificated Securities issued by the Issuer] issued by the Issuer (the “ Securities ”);

WHEREAS, pursuant to the Security Agreements, the Grantor has granted to the Agents a continuing security interest (the “ Transaction Lien ”) in all right, title and interest of the Grantor in, to and under the Securities, whether now existing or hereafter arising; and

WHEREAS, the parties hereto are entering into this Agreement in order to perfect the Transaction Lien on the Securities;

NOW, THEREFORE, the parties hereto agree as follows:

Section 1. Nature of Securities . The Issuer confirms that (i) the Securities are “uncertificated securities” (as defined in Section 8-102 of the UCC) and (ii) the Grantor is registered on the books of the Issuer as the registered holder of the Securities.

Section 2. Instructions . (i) The Issuer agrees to comply with any “instruction” (as defined in Section 8-102 of the UCC) originated by the Controlling Secured Party and relating to the Securities without further consent by the Grantor or any other person; provided that notwithstanding the foregoing provisions of this Section 2 or any provisions herein to the contrary, prior to the Issuer’s receipt of a Notice of Termination (defined below) from the First Lien Agent, the Issuer shall not comply with any such instructions from the Second Lien Agent unless such instructions are accompanied by a written approval thereof of the First Lien Agent. The Grantor consents to the foregoing agreement by the Issuer.

 

F-1


(ii) As used herein, the term “ Controlling Secured Party ” means the First Lien Agent until such time as the Issuer has received written notice, in substantially the form attached as Annex A hereto (a “ Notice of Termination ”), from the First Lien Agent stating in substance that henceforth the Second Lien Agent will be the Controlling Secured Party, and has had a reasonable time (not to exceed one (1) Business Day) to act thereon, at which time the Second Lien Agent will replace the First Lien Agent as the Controlling Secured Party for purposes of this Agreement and the First Lien Agent shall have no further rights (including, without limitation, ability to give instructions pursuant to Section 2(i)) or obligations under this Agreement, other than obligations which arose or which derive from events which occurred while the First Lien Agent was the Controlling Secured Party. Until the First Lien Agent has delivered a Notice of Termination, the Second Lien Agent irrevocably instructs the Issuer to adhere to the instructions of the First Lien Agent.

Section 3. Conflicting Orders or Instructions . Notwithstanding anything to the contrary contained herein, if at any time the Issuer shall receive conflicting orders or instructions from the Grantor and either Agent, the Issuer shall follow the orders or instructions of such Agent, not the Grantor.

Section 4. Waiver of Lien; Waiver of Set-off . The Issuer waives any security interest, lien or right of set-off that it may now have or hereafter acquire in or with respect to the Securities. The Issuer’s obligations in respect of the Securities will not be subject to deduction, set-off or any other right in favor of any person other than the Agents.

Section 5. Choice of Law . This Agreement shall be governed by the laws of [Issuer’s jurisdiction of incorporation].

Section 6. Conflict with Other Agreements . There is no agreement (except this Agreement) between the Issuer and the Grantor with respect to the Securities [except for [identify any other existing agreements] (the “ Existing Other Agreements ”)]. In the event of any conflict between this Agreement (or any portion hereof) and any other agreement [(including any Existing Other Agreement)] between the Issuer and the Grantor with respect to the Securities, whether now existing or hereafter entered into, the terms of this Agreement shall prevail.

Section 7. Amendments . No amendment or modification of this Agreement or waiver of any right hereunder shall be binding on any party hereto unless it is in writing and is signed by all the parties hereto.

Section 8. Notice of Adverse Claims . Except for the claims and interests of the Agents and the Grantor in the Securities, the Issuer does not know of any claim to, or interest in, the Securities. If any person asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, attachment, execution or similar process) against the Securities, the Issuer will promptly notify the Secured Party and the Grantor thereof.

Section 9. Maintenance of Securities . In addition to, and not in lieu of, the obligation of the Issuer to honor instructions as agreed in Section 2 hereof, the Issuer agrees as follows:

 

F-2


(i) Grantor Instructions; Notice of Exclusive Control. So long as the Issuer has not received a Notice of Exclusive Control (as defined below), the Issuer may comply with instructions of the Grantor or any duly authorized agent of the Grantor in respect of the Securities. After the Issuer receives a written notice from the Controlling Secured Party that it is exercising exclusive control over the Securities (a “ Notice of Exclusive Control ”), the Issuer will cease complying with instructions of the Grantor or any of its agents. 4

(ii) Non-Cash Dividends and Distributions. The Issuer shall deliver to the Controlling Secured Party all non-cash dividends, interest and other non-cash distributions paid or made upon or with respect to the Securities.

(iii) Voting Rights. Until the Issuer receives a Notice of Exclusive Control, the Grantor shall be entitled to direct the Issuer with respect to voting the Securities.

(iv) Statements and Confirmations. The Issuer will promptly send copies of all statements and other correspondence concerning the Securities simultaneously to each of the Grantor and the Agents at their respective addresses specified in Section 12 hereof.

(v) Tax Reporting. All items of income, gain, expense and loss recognized in respect of the Securities shall be reported to the Internal Revenue Service and all state and local taxing authorities under the name and taxpayer identification number of the Grantor.

Section 10. Representations, Warranties and Covenants of the Issuer . The Issuer makes the following representations, warranties and covenants:

(i) This Agreement is a valid and binding agreement of the Issuer enforceable in accordance with its terms.

(ii)The Issuer has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other person relating to the Securities pursuant to which it has agreed, or will agree, to comply with instructions (as defined in Section 8-102 of the UCC) of such person. The Issuer has not entered into any other agreement with the Grantor or either Agent to limit or condition the obligation of the Issuer to comply with instructions as agreed in Section 2 hereof.

Section 11. Successors . This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.

 

 

4   Delete subsection (i) if the Grantor will not be permitted to sell the Securities.

 

F-3


Section 12. Notices. Each notice, request or other communication given to any party hereunder shall be in writing (which term includes facsimile or other electronic transmission) and shall be effective (i) when delivered to such party at its address specified below, (ii) when sent to such party by facsimile or other electronic transmission, addressed to it at its facsimile number or electronic address specified below, and such party sends back an electronic confirmation of receipt or (iii) ten days after being sent to such party by certified or registered United States mail, addressed to it at its address specified below, with first class or airmail postage prepaid:

Grantor:

First Lien Agent:

Second Lien Agent:

Issuer:

Any party may change its address, facsimile number and/or e-mail address for purposes of this Section by giving notice of such change to the other parties in the manner specified above.

Section 13. Termination . The rights and powers granted herein to the Agents (i) have been granted in order to perfect the Transaction Lien, (ii) are powers coupled with an interest and (iii) will not be affected by any bankruptcy of the Grantor or any lapse of time. The obligations of the Issuer to the First Lien Agent hereunder shall continue in effect until the security interest of the First Lien Agent in the Securities has been terminated pursuant to the terms of the First Lien Security Agreement and the First Lien Agent has notified the Issuer of such termination by delivering to the Issuer a Notice of Termination. The obligations of the Issuer to the Second Lien Agent pursuant to this Agreement shall continue in effect until the security interest of the Second Lien Agent in the Securities has been terminated pursuant to the terms of the Second Lien Security Agreement and the Second Lien Agent has notified the Issuer of such termination by delivering to the Issuer a Notice of Termination. Each Agent agrees to provide a Notice of Termination in substantially the form of Annex B hereto to the Issuer, with a copy to the Grantor, upon the request of the Grantor on or after the termination of such Agent’s security interest in the Securities pursuant to the terms of the applicable Security Agreement.

Section 14. Counterparts . This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Agreement by signing and delivering one or more counterparts.

(remainder of page intentionally blank; signature pages follow)

 

F-4


[NAME OF GRANTOR]
By:  

 

  Name:    
  Title:    

TCW ASSET MANAGEMENT
COMPANY, LLC, as First Lien Agent

By:  

 

  Name:    
  Title:    
By:  

 

  Name:    
  Title:    

BANK OF AMERICA, N.A.,

as Second Lien Agent

By:  

 

  Name:    
  Title:    
[NAME OF ISSUER]
By:  

 

  Name:    
  Title:    

 

F-5


Exhibit A

[Letterhead of Controlling Secured Party]

[Date]

[Name and Address of Issuer]

Attention:                                                  

Re: Notice of Exclusive Control

Ladies and Gentlemen:

As referenced in the Issuer Control Agreement dated as of                              ,              among [name of Grantor], BANK OF AMERICA, N.A., TCW ASSET MANAGEMENT COMPANY, LLC and you (a copy of which is attached), we notify you that we will hereafter exercise exclusive control over [specify Pledged Uncertificated Securities] registered in the name of [name of Grantor] (the “ Securities ”). You are instructed not to accept any directions or instructions with respect to the Securities from any person other than the undersigned unless otherwise ordered by a court of competent jurisdiction.

You are instructed to deliver a copy of this notice by facsimile transmission to [name of Grantor].

Very truly yours,

 

[CONTROLLING SECURED PARTY],

as Controlling Secured Party

By:  

 

  Name:
  Title:

cc: [name of Grantor]

 

F-6


ANNEX A

TO ISSUER ACCOUNT CONTROL AGREEMENT

[Letterhead of the applicable Agent]

[Date]

[Name and Address of Issuer]

Attention:

Re: Notice of Termination of Issuer Control Agreement

This letter serves as notice to the Issuer in accordance with Section 13 of the Issuer Control Agreement dated as of                              ,              (the “ Agreement ”) among [name of Grantor], you, BANK OF AMERICA, N.A. and TCW ASSET MANAGEMENT COMPANY, LLC (a copy of which is attached) (capitalized terms used but not defined herein shall have the meaning assigned thereto in the Agreement) that [each Agent][the First Lien Agent][the Second Lien Agent] is hereby permanently releasing its control over the Securities and releases the Issuer from any further obligation to comply with instructions originated by [each Agent][the First Lien Agent][the Second Lien Agent] with respect to the Securities. [[The Agreement is terminated and you have no further obligations to the Agents pursuant to the Agreement.] 5 [The Agreement is terminated and you have no further obligations to the [First Lien Agent][Second Lien Agent] pursuant to the Agreement.] 6 Notwithstanding any previous instructions to you, you are hereby instructed to accept all future directions with respect to the Securities from [name of Grantor]] 7 [The Agreement shall remain in effect until you are in receipt of notices in the form of this letter from both the First Lien Agent and the Second Lien Agent. You have no further obligations to

 

5   Use if from both Agents.
6   Use if from one agent, and the other Agent has previously delivered a Notice of Termination to the Financial Institution.
7  

Use if from both Agents, or if the other Agent has previously delivered a Notice of Termination to the Financial Institution.

 

F-7


the [First Lien Agent][Second Lien Agent]] 8 . This notice terminates any obligations you may have to the undersigned with respect to the Securities, however nothing contained in this notice shall alter any obligations which you may otherwise owe to [name of Grantor] pursuant to any other agreement.

 

Very truly yours,
[TCW ASSET MANAGEMENT COMPANY, LLC, as First Lien Agent
By:                                                                                                   
Name:
Title:]
[BANK OF AMERICA, N.A., as Second Lien Agent
By:                                                                                                   
Name:
Title:]

 

 

8   Use if from one Agent, and the other Agent has not delivered a Notice of Termination to the Financial Institution.

 

F-8

Exhibit 10.3

EXECUTION VERSION

THIRD AMENDMENT

TO LOAN AGREEMENT

THIRD AMENDMENT TO LOAN AGREEMENT dated as of April 7, 2017 (this “ Agreement ”), among SCHOOL SPECIALTY, INC., a Delaware corporation (“ Company ”), CLASSROOMDIRECT.COM, LLC, a Delaware limited liability company (“ Classroom ”), SPORTIME, LLC, a Delaware limited liability company (“ Sportime ”), DELTA EDUCATION, LLC, a Delaware limited liability company (“ Delta ”), PREMIER AGENDAS, LLC, a Delaware limited liability company (as successor in interest to Premier Agendas, Inc., a Washington corporation, “ Premier ”), CHILDCRAFT EDUCATION, LLC, a Delaware limited liability company (as successor in interest to Childcraft Education Corp., a New York corporation, “ Childcraft ”), BIRD-IN-HAND WOODWORKS, LLC, a Delaware limited liability company (as successor in interest to Bird-In-Hand Woodworks, Inc., a New Jersey Corporation, “ Bird ”), CALIFONE INTERNATIONAL, LLC, a Delaware limited liability company (as successor in interest to Califone International, Inc., a Delaware corporation, “ Califone ”), SSI GUARDIAN, LLC, a Delaware limited liability company (“ SSI ”, and together with Classroom, Sportime, Delta, Premier, Childcraft, Bird and Califone collectively, “ Subsidiary Borrowers ” and each, individually, a “ Subsidiary Borrower ”), BANK OF AMERICA, N.A. and BANK OF MONTREAL, as lenders (collectively, “ Lenders ” and each, individually, a “ Lender ”), BANK OF MONTREAL, as Syndication Agent, and BANK OF AMERICA, N.A., as agent for Lenders (in such capacity, “ Agent ”).

W I T N E S S E T H :

WHEREAS, Company, Subsidiary Borrowers, Lenders and Agent have entered into that certain Loan Agreement dated as of June 11, 2013 (as amended, supplemented, or otherwise modified from time to time prior to the Effective Time, the “ Loan Agreement ”; capitalized terms used herein but not otherwise defined herein shall have the meanings given to such terms in the Loan Agreement);

WHEREAS, Company has informed Agent that it desires to make certain amendments to the Loan Agreement;

WHEREAS, Agent, Issuing Bank and Lenders are willing to make certain amendments to the Loan Agreement, in each case subject to the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, Company, Subsidiary Borrowers, Issuing Bank, Lenders and Agent hereby agree as follows:

 


ARTICLE I

AMENDMENTS

Section 1.1 Amendments to the Loan Agreement . The Loan Agreement is, effective as of the Effective Time (as defined below), hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text ) as set forth in the pages of the Loan Agreement attached as Exhibit A hereto (the “ Amended Loan Agreement ”). The schedules to this Agreement amend and restate the schedules to the Loan Agreement in their entirety and shall constitute the schedules to the Amended Loan Agreement for all purposes under the Loan Documents.

ARTICLE II

CONDITIONS PRECEDENT TO EFFECTIVENESS

This Agreement shall become effective (the “ Effective Time ”) when each of the following conditions precedent have been satisfied:

Section 2.1 Agreement . Company, Subsidiary Borrowers, Lenders, Issuing Bank and Agent shall have each delivered a duly executed counterpart of this Agreement to Agent.

Section 2.2 Absence of Default . No Default or Event of Default shall exist immediately prior to the occurrence of the Effective Time.

Section 2.3 Representations and Warranties . The representations and warranties of each Obligor in the Loan Documents shall be true and correct on the Effective Time as if made on the Effective Time (unless such representations and warranties relate to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date).

Section 2.4 Closing Certificate . Agent shall have received a certificate, dated the Effective Time and executed by a duly authorized officer of Company certifying as to the matters set forth in Sections 2.2 and 2.3.

Section 2.5 Borrowing Base Certificate . Agent shall have received an update of the Borrowing Base Certificate dated as of a recent date prior to the Effective Time.

Section 2.6 Fees and Expenses . Company shall have paid to Agent (i) all of Agent‘s reasonable and documented out-of-pocket fees and expenses incurred and invoiced on or prior to the Effective Time, including the reasonable and documented out-of-pocket fees and expenses in connection herewith and including fees, charges and disbursements of counsel (paid directly to such counsel if requested by Agent), (ii) all fees set forth in that certain Fee Letter between Company and Agent, dated the date hereof, and (iii) all fees set forth in that certain Engagement Letter, dated as of August 16, 2016, between Bank of America, N.A. and Company.

 

- 2 -


Section 2.7 Organic Documents . Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown, and, in the case of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization; (ii) that an attached copy of resolutions authorizing execution and delivery of this Agreement and the other Loan Documents executed in connection herewith is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this Agreement; and (iii) to the title, name and signature of each Person authorized to sign this Agreement and the other Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing. Agent shall have received good standing certificates as of a recent date prior to the Effective Time for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization.

Section 2.8 Opinions . Agent shall have received a written opinion of Godfrey & Kahn S.C., as well as any local counsel to Obligors for each jurisdiction in which an Obligor is organized, in each case, in form and substance reasonably satisfactory to Agent.

Section 2.9 Payoff and Termination of Existing Term Loan Documents . Prior to or substantially concurrently with the Effective Time, the obligations under the Existing Term Loan Documents (as defined in the Amended Loan Agreement) shall have been discharged and satisfied in full, the commitments thereunder, if any, shall have been terminated, and all Liens securing the obligations under the Existing Term Loan Documents shall have been released, and Agent shall have received (a) a payoff letter to that effect from the administrative agent under the Existing Term Loan Documents and (b) evidence reasonably satisfactory to it of the termination of all mortgages, security documents, liens and UCC financing statement filings, in each case relating to the Existing Term Loan Documents.

Section 2.10 Term Loan Documents . Company shall have entered into, or substantially concurrently with the Effective Time will enter into, the Term Loan Agreement (as defined in the Amended Loan Agreement), providing for a senior secured term loan facility in an aggregate principal amount of $140,000,000, and Company shall have received aggregate gross proceeds from the initial funding under the Term Loan Agreement equal to $110,000,000. The terms of the Term Loan Documents (as defined in the Amended Loan Agreement) shall be reasonably satisfactory to Agent and Agent shall have received fully executed copies of the Term Loan Documents.

 

- 3 -


Section 2.11 Know Your Customer . Agent and Lenders shall have received all documentation and other information reasonably requested by Agent or Lenders that they reasonably determine is required by regulatory authorities with respect to Borrowers under applicable “know your customer,” anti-bribery and anti-money laundering rules and regulations, including, without limitation, the Patriot Act, that has been reasonably requested by Agent or Lenders in advance of the Effective Time.

Section 2.12 Intercreditor Agreement . Agent shall have received duly executed counterparts of the Intercreditor Agreement (as defined in the Amended Loan Agreement) from each party thereto, which agreement shall be in form and substance reasonably acceptable to Agent.

Section 2.13 Deposit Account Control Agreements . Agent shall have received duly executed deposit account control agreements for each account listed on Schedule 8.5 to the Amended Loan Agreement that is not exempted from the DACA requirement (as noted on such Schedule), from each party thereto, which agreements shall be in form and substance reasonably satisfactory to Agent.

ARTICLE III

REPRESENTATIONS, WARRANTIES AND COVENANTS

Section 3.1 Representations and Warranties . To induce Agent, Issuing Bank and Lenders to enter into this Agreement, each Obligor represents and warrants that:

(a) Power and Authority . Each Obligor is duly authorized to execute, deliver and perform its obligations under this Agreement and the Loan Agreement as amended hereby. The execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate or limited liability company action of each Obligor and do not (a) require any consent or approval of any holders of Equity Interests of any Obligor, other than those already obtained; (b) contravene the Organic Documents of any Obligor; (c) violate or cause a default under any Applicable Law or Material Contract; or (d) result in or require the imposition of any Lien (other than Permitted Liens) on any Property of any Obligor.

(b) Enforceability . This Agreement and the Loan Agreement as amended hereby is a legal, valid and binding obligation of each Obligor, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors‘ rights generally and by general equitable principles relating to enforceability (whether enforcement is sought by proceedings in equity or at law).

(c) Governmental Approvals . No Governmental Approval, and no notice to or filing with, any Governmental Authority or any other third party is required for the due execution, delivery, recordation, filing or performance by any Obligor of this Agreement.

(d) No Defaults . No event or circumstance has occurred or exists that constitutes a Default or Event of Default.

 

- 4 -


ARTICLE IV

MISCELLANEOUS

Section 4.1 Effect of Agreement . Except as expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of Agent, Issuing Bank or any Lender under the Loan Documents, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Loan Documents, all of which are ratified and affirmed in all respects and shall continue in full force and effect except that, on and after the Effective Time, each reference to the Loan Agreement in the Loan Documents shall mean and be a reference to the Loan Agreement as amended by this Agreement. Each Obligor hereby confirms that it has reviewed this Agreement and hereby expressly consents to this Agreement and the transactions contemplated hereby and ratifies and affirms all of its obligations under the Loan Documents, including the Guaranty in Section 2 of the Guarantee and Collateral Agreement. Nothing herein shall be deemed to entitle Company or any Subsidiary Borrower to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Loan Documents in similar or different circumstances. This Agreement is a Loan Document executed pursuant to the Loan Agreement and shall be construed, administered and applied in accordance with the terms and provisions thereof.

Section 4.2 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of Obligors, Agent, Issuing Bank, Lenders, and their respective successors and assigns, except that Obligors shall not have the right to assign their rights or delegate their obligations under this Agreement or any Loan Document.

Section 4.3 Headings . The headings and captions hereunder are for convenience only and shall not affect the interpretation or construction of this Agreement.

Section 4.4 Severability . Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be valid under Applicable Law. If any provision is found to be invalid under Applicable Law, it shall be ineffective only to the extent of such invalidity and the remaining provisions of this Agreement shall remain in full force and effect.

Section 4.5 Counterparts . This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of a signature page to this Agreement by telecopy or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.

 

- 5 -


Section 4.6 Reaffirmation . By signing this Agreement, each Borrower and Guarantor hereby confirms that (i) the obligations of such Borrower and such Guarantor under the Loan Agreement as amended by this Agreement and the other Loan Documents as amended hereby constitute “Secured Guarantees” under the Guarantee and Collateral Agreement and Obligations and are entitled to the benefit of the guarantees and security interests set forth in the Security Documents, (ii) the Loan Documents are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects, and (iii) all Liens granted, conveyed or assigned to Agent by such Person pursuant to each Loan Document to which it is a party remain in full force and effect, are not released or reduced, and continue to secure full payment and performance of the Obligations and the Secured Guarantees as amended hereby.

Section 4.7 GOVERNING LAW; CONSENT TO FORUM; WAIVER .

(a) GOVERNING LAW . THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES EXCEPT FEDERAL LAWS RELATING TO NATIONAL BANKS.

(b) CONSENT TO FORUM . EACH BORROWER HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING IN OR WITH JURISDICTION OVER NEW YORK, IN ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING RELATING IN ANY WAY TO THIS AGREEMENT, AND AGREES THAT ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL CLAIMS, OBJECTIONS AND DEFENSES THAT IT MAY HAVE REGARDING ANY SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE OR INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 14.3.1 OF THE LOAN AGREEMENT. A final judgment in any proceeding of any such court shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or any other manner provided by Applicable Law.

(c) Waiver by Obligors . TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH BORROWER WAIVES (A)  THE RIGHT TO TRIAL BY JURY (WHICH AGENT AND EACH LENDER HEREBY ALSO WAIVES) IN ANY PROCEEDING OR DISPUTE OF ANY KIND RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, OBLIGATIONS OR COLLATERAL. Each Borrower has reviewed the foregoing waivers with its legal counsel and has knowingly and voluntarily waived its jury trial and other rights following consultation with legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.

 

- 6 -


Section 4.8 Costs and Expenses . Company agrees to reimburse Agent for its reasonable, documented out-of-pocket expenses incurred in connection with this Agreement, including the reasonable fees, charges and disbursements of counsel for Agent.

Section 4.9 Loss of FATCA Grandfathering . For purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, Company, Subsidiary Borrowers and Agent shall treat (and Lenders hereby authorize Agent to treat) the Loan Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

[ Remainder of this page is intentionally left blank. ]

 

- 7 -


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

 

SCHOOL SPECIALTY, INC.,

as a Borrower and a Guarantor

By:   /s/ Ryan M. Bohr
  Name: Ryan M. Bohr
  Title: Executive Vice President and Chief Financial Officer

CLASSROOMDIRECT.COM, LLC,

as a Borrower and as a Guarantor,

By:   School Specialty, Inc., its sole member
By:   /s/ Joseph M. Yorio
Name:   Joseph M. Yorio
Title:   President and Chief Executive Officer

SPORTIME, LLC,

as a Borrower and as a Guarantor,

By:   School Specialty, Inc., its sole member
By:  

/s/ Joseph M. Yorio

Name:  

Joseph M. Yorio

Title:   President and Chief Executive Officer

DELTA EDUCATION, LLC,

as a Borrower and as a Guarantor,

By:   School Specialty, Inc., its sole member
By:  

/s/ Joseph M. Yorio

Name:  

Joseph M. Yorio

Title:   President and Chief Executive Officer

PREMIER AGENDAS, LLC,

as a Borrower and as a Guarantor,

By:   School Specialty, Inc., its sole member
By:  

/s/ Joseph M. Yorio

Name:  

Joseph M. Yorio

Title:   President and Chief Executive Officer


CHILDCRAFT EDUCATION, LLC,

as a Borrower and as a Guarantor,

By:   School Specialty, Inc., its sole member
By:   /s/ Joseph M. Yorio
Name:  

Joseph M. Yorio

Title:   President and Chief Executive Officer

BIRD-IN-HAND WOODWORKS, LLC,

as a Borrower and as a Guarantor,

By:   School Specialty, Inc., sole member of Childcraft Education, LLC, its sole member
By:  

/s/ Joseph M. Yorio

Name:  

Joseph M. Yorio

Title:   President and Chief Executive Officer

CALIFONE INTERNATIONAL, LLC

as a Borrower and as a Guarantor,

By:   School Specialty, Inc., its sole member
By:  

/s/ Joseph M. Yorio

Name:  

Joseph M. Yorio

Title:   President and Chief Executive Officer

SSI GUARDIAN, LLC

as a Borrower and as a Guarantor,

By:   School Specialty, Inc., its sole member
By:  

/s/ Joseph M. Yorio

Name:  

Joseph M. Yorio

Title:   President and Chief Executive Officer


BANK OF AMERICA, N.A. ,

as Agent, as Issuing Bank and as a Lender

By:  

/s/ Brad H. Breidenbach

 

Name: Brad H. Breidenbach

Title: Senior Vice President


BANK OF MONTREAL ,

as Syndication Agent and as a Lender

By:  

/s/ Stephanie Bach

 

Name: Stephanie Bach

Title: Vice President


Exhibit A

Amended Loan Agreement


Exhibit A

 

 

LOAN AGREEMENT

Dated as of June 11, 2013,

as amended by Amendment No. 1, dated as of October 31, 2014, and

as further amended by Amendment No. 2, dated as of September 16, 2015 , and

as further amended by Amendment No.  3, dated as of April  7, 2017

 

 

 

SCHOOL SPECIALTY, INC. and

certain of its Subsidiaries,

as Borrowers and Guarantors

 

 

 

BANK OF AMERICA, N.A.,

as Agent

 

 

 

SUNTRUST BANK OF MONTREAL ,

as Syndication Agent,

MERRILL LYNCH, PIERCE, FENNER  & SMITH INCORPORATED ,

and

SUNTRUST ROBINSON HUMPHREY, INC. ,

as Joint Lead Arrangers and Bookrunners Arranger and Bookrunner

 

 

 


TABLE OF CONTENTS

 

          Page  
Section 1.      DEFINITIONS; RULES OF CONSTRUCTION      1  

1.1  

  

Definitions

     1  

1.2  

  

Accounting Terms

     40 43  

1.3  

  

Uniform Commercial Code

     40 43  

1.4  

  

Certain Matters of Construction

     40 43  

1.5  

  

Certain Pro Forma Calculations. [ Reserved ]

     41 44  

Section 2.  

  

CREDIT FACILITIES

     42 45  

2.1  

  

Commitment

     42 45  

2.2  

  

Letter of Credit Facility

     43 46  

Section 3.  

  

INTEREST, FEES AND CHARGES

     46 49  

3.1  

  

Interest

     46 49  

3.2  

  

Fees

     47 50  

3.3  

  

Computation of Interest, Fees, Yield Protection

     48 51  

3.4  

  

Reimbursement Obligations

     48 51  

3.5  

  

Illegality

     48 52  

3.6  

  

Inability to Determine Rates

     49 52  

3.7  

  

Increased Costs; Capital Adequacy

     49 52  

3.8  

  

Mitigation

     50 53  

3.9  

  

Funding Losses

     50 54  

3.10

  

Maximum Interest

     51 54  

Section 4.  

  

LOAN ADMINISTRATION

     51 54  

4.1  

  

Manner of Borrowing and Funding Loans

     51 54  

4.2  

  

Defaulting Lender

     52 55  

4.3  

  

Number and Amount of LIBOR Loans; Determination of Rate

     53 56  

4.4  

  

Borrower Agent

     53 56  

4.5  

  

One Obligation

     53 57  

4.6  

  

Effect of Termination

     53 57  

Section 5.  

  

PAYMENTS

     53 57  

5.1  

  

General Payment Provisions

     53 57  

5.2  

  

Repayment of Loans

     54 57  

5.3  

  

Payment of Other Obligations.

     54 57  

5.4  

  

Marshaling; Payments Set Aside

     54 57  

5.5  

  

Application and Allocation of Payments

     54 58  

5.6  

  

Dominion Account

     55 59  

5.7  

  

Account Stated

     55 59  

5.8  

  

Taxes

     55 59  

5.9  

  

Lender and Agent Tax Information

     57 61  

5.10

  

Nature and Extent of Each Borrower’s Liability

     59 62  

Section 6.  

  

CONDITIONS PRECEDENT

     61 65  

6.1  

  

Conditions Precedent to Initial Loans

     61 65  

6.2  

  

Conditions Precedent to All Credit Extensions

     64 67  

Section 7.  

  

COLLATERAL

     64 68  

7.1  

  

Cash Collateral

     64 68  

7.2  

  

Real Estate Collateral [ Reserved ]

     64 68  

7.3  

  

Other Collateral

     65 68  

7.4  

  

Limitations

     65 69  

7.5  

  

Further Assurances

     65 69  

Section 8.  

  

COLLATERAL ADMINISTRATION

     65 69  

8.1  

  

Borrowing Base Certificates

     65 69  


8.2    

  

Administration of Accounts

     66 69  

8.3    

  

Administration of Inventory

     67 70  

8.4    

  

Administration of Equipment

     67 71  

8.5    

  

Administration of Deposit Accounts and Securities Accounts

     67 71  

8.6    

  

General Provisions

     68 72  

Section 9.  

  

REPRESENTATIONS AND WARRANTIES

     69 73  

9.1    

  

General Representations and Warranties

     69 73  

9.2    

  

Accuracy of Information, Etc.

     74 78  

Section 10.  

  

COVENANTS AND CONTINUING AGREEMENTS

     74 79  

10.1  

  

Affirmative Covenants

     74 79  

10.2  

  

Negative Covenants

     78 84  

10.3  

  

Financial Covenant

     85 91  

Section 11.  

  

EVENTS OF DEFAULT; REMEDIES ON DEFAULT

     85 91  

11.1  

  

Events of Default

     85 91  

11.2  

  

Remedies upon Default

     87 92  

11.3  

  

License

     87 93  

11.4  

  

Setoff

     88 93  

11.5  

  

Remedies Cumulative; No Waiver

     88 94  

Section 12.  

  

AGENT

     88 94  

12.1  

  

Appointment, Authority and Duties of Agent

     88 94  

12.2  

  

Agreements Regarding Collateral and Borrower Materials

     89 95  

12.3  

  

Reliance By Agent

     90 96  

12.4  

  

Action Upon Default

     90 96  

12.5  

  

Ratable Sharing

     90 96  

12.6  

  

Indemnification

     90 96  

12.7  

  

Limitation on Responsibilities of Agent

     91 97  

12.8  

  

Successor Agent and Co-Agents

     91 97  

12.9  

  

Due Diligence and Non-Reliance

     92 97  

12.10

  

Remittance of Payments and Collections

     92 98  

12.11

  

Individual Capacities

     92 98  

12.12

  

Titles

     93 98  

12.13

  

Bank Product Providers

     93 99  

12.14

  

No Third Party Beneficiaries

     93 99  

12.15

  

Intercreditor Agreement

     93 99  

Section 13.  

  

BENEFIT OF AGREEMENT; ASSIGNMENTS

     93 99  

13.1  

  

Successors and Assigns

     93 99  

13.2  

  

Participations

     93 99  

13.3  

  

Assignments

     94 100  

13.4  

  

Replacement of Certain Lenders

     95 101  

Section 14.  

  

MISCELLANEOUS

     95 101  

14.1  

  

Consents, Amendments and Waivers

     95 101  

14.2  

  

Indemnity

     96 102  

14.3  

  

Notices and Communications

     96 102  

14.4  

  

Performance of Borrowers’ Obligations

     97 103  

14.5  

  

Credit Inquiries

     98 104  

14.6  

  

Severability

     98 104  

14.7  

  

Cumulative Effect; Conflict of Terms

     98 104  

14.8  

  

Counterparts; Execution

     98 104  

14.9  

  

Entire Agreement

     98 104  

14.10

  

Relationship with Lenders

     98 104  

14.11

  

No Advisory or Fiduciary Responsibility

     98 104  

14.12

  

Confidentiality

     99 105  

 

ii


14.13

  

GOVERNING LAW

     99 105     

14.14

  

Consent to Forum

     99 Bail-In of EEA Financial  Institutions        105  

14.15

  

Waivers by Borrowers

     100 106     

14.16

  

Patriot Act Notice

     100 106     

14.17

  

NO ORAL AGREEMENT

     100 107     

14.18

  

Intercreditor Agreement Governs

     100 107     

LIST OF EXHIBITS AND SCHEDULES

 

Exhibit A    Assignment and Acceptance
Exhibit B    Assignment Notice
Exhibit C    Compliance Certificate
Exhibit D    Affiliate Subordination Agreement
Exhibit E-1    Form of U.S. Tax Compliance Certificate
Exhibit E-2    Form of U.S. Tax Compliance Certificate
Exhibit E-3    Form of U.S. Tax Compliance Certificate
Exhibit E-4    Form of U.S. Tax Compliance Certificate
Exhibit F    Confirmation Order
Schedule 1.1(a)    Commitments of Lenders
Schedule 1.1(b)    Excluded Subsidiaries
Schedule 1.1(c)    Specified Asset Dispositions
Schedule 1.1(d)    Subsidiary Guarantors
Schedule 1.1(e)    Delayed Admin Claims
Schedule 8.5    Deposit Accounts and Securities Accounts
Schedule 8.6.1    Business Locations
Schedule 9.1.4    Names and Capital Structure
Schedule 9.1.11    Patents, Trademarks, Copyrights and Licenses
Schedule 9.1.14    Environmental Matters
Schedule 9.1.15    Restrictive Agreements
Schedule 9.1.16    Litigation
Schedule 9.1.18    Pension Plans
Schedule 9.1.20    Labor Contracts
Schedule 10.1.15    Post-Closing Matters
Schedule 10.2.1    Existing Indebtedness
Schedule 10.2.2    Existing Liens
Schedule 10.2.5    Existing Investments
Schedule 10.2.17    Existing Affiliate Transactions

 

iii


LOAN AGREEMENT

THIS LOAN AGREEMENT is dated as of June 11, 2013, among SCHOOL SPECIALTY, INC. , a Delaware corporation (“ Company ”), certain Subsidiaries of Company party hereto (collectively, “ Subsidiary Borrowers ” and each, a “ Subsidiary Borrower and together with Company, collectively, Borrowers and each, a Borrower ), the other Guarantors party hereto, the financial institutions party to this Agreement from time to time as lenders (collectively, Lenders ) , BANK OF AMERICA, N.A. , a national banking association, as agent for the Lenders (“ Agent ”), SUNTRUST BANK OF MONTREAL , as Syndication Agent (in such capacity, “ Syndication Agent ”) and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and SUNTRUST ROBINSON HUMPHREY, INC. , as Joint Lead Arrangers Arranger (in such capacity, together with its successors and assigns in such capacity Lead Arrangers Arranger ”) and as Joint Bookrunners Bookrunner .

R E C I T A L S:

Borrowers and certain of their respective Subsidiaries (such term and each other capitalized term used but not otherwise defined in this introductory statement having the meaning specified in Section  1 ) are currently debtors in reorganization proceedings (the “ Bankruptcy Proceedings ”) under the Bankruptcy Code in the Bankruptcy Court in jointly administered cases No. 13-10125(KJC).

Borrowers have filed their Disclosure Statement for the Debtors’ Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code [Docket No. 931] (including all exhibits thereto and as amended, modified, and/or supplemented from time to time, the “ Disclosure Statement ”). In addition, on May 21, 2013, Borrowers filed their Second Amended Joint Plan of Reorganization and on May 23, 2013 the Bankruptcy Court entered its Final Order Approving the Disclosure Statement and Findings Of Fact, Conclusions of Law, and Order Under Section 1129 of the Bankruptcy Code and Bankruptcy Rule 3020 Confirming the Debtors’ Second Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code.

In addition to the Loans and other extensions of credit to be provided hereunder, on the Closing Date, Company and certain of its Subsidiaries will enter into the Term Loan Agreement, which will be secured by a first priority security interest in the Term Priority Collateral and a second priority security interest in the ABL Priority Collateral. The Obligations hereunder will be secured by a first priority security interest in the ABL Priority Collateral and a second priority security interest in the Term Priority Collateral.

Borrowers have requested that Lenders provide a revolving credit facility to Borrowers to finance the mutual and collective business enterprise of Borrowers and Guarantors. Lenders are willing to provide the credit facility on the terms and conditions set forth in this Agreement.

NOW, THEREFORE , for valuable consideration hereby acknowledged, the parties hereto agree as follows:

SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION

1.1 Definitions . As used herein, the following terms have the meanings set forth below:

ABL DIP Cash Collateral Account : the Cash Collateral Account holding the Expense Deposit Cash Collateral, each as defined in and pursuant to that certain letter agreement, dated the date hereof, among Wells Fargo Capital Finance, LLC, as administrative agent, Company and certain of its Subsidiaries party thereto,

ABL Priority Collateral : any “ABL Priority Collateral” as defined in the Intercreditor Agreement.

 

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Account : as defined in the UCC, including all rights to payment for goods sold or leased, or for services rendered.

Account Debtor : a Person obligated under an Account, Chattel Paper or General Intangible.

Accounts Formula Amount : 85% of the Value of Eligible Accounts; provided , however , that such percentage shall be reduced by 1.00% for each percentage point (or portion thereof) that the Dilution Percent exceeds 5.00%.

Acquisition : a transaction or series of transactions resulting in (a) acquisition of a business, division, or substantially all assets of a Person; (b) record or beneficial ownership of 50% or more of the Equity Interests of a Person; or (c) merger, consolidation or combination of a Borrower or a Subsidiary with another Person.

Adjusted Net Total Leverage Ratio: on any date, the Net Total Leverage Ratio as of the last day of the Fiscal Quarter most recently ended on or prior to such date; provided that for purposes of calculating the Net Total Leverage Ratio for this definition, Total Debt shall include an amount equal to the average daily amount of Indebtedness under this Agreement for the 365-day period immediately preceding such date.

Affiliate : with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided that, for purposes of Section  10.2.17 and Section  13.3.3 , the term “Affiliate” shall also include any Person that directly or indirectly owns 5% or more of any class of Equity Interests of the Person specified or that is an officer or director of the Person specified. “ 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. “ Controlling ” and “ Controlled ” have correlative meanings.

Affiliate Subordination Agreement : an Affiliate Subordination Agreement in the form of Exhibit  D pursuant to which intercompany obligations and advances owed by any Obligor to any Subsidiary that is not an Obligor are subordinated to the Obligations.

Agent : as defined in the Preamble hereto.

Agent Indemnitees : Agent and its officers, directors, employees, Affiliates, agents and attorneys.

Agent Professionals : attorneys, accountants, appraisers, auditors, business valuation experts, environmental engineers or consultants, turnaround consultants, and other professionals and experts retained by Agent.

Agreement Value : for each Hedging Agreement, on any date of determination, the maximum aggregate amount (giving effect to any netting agreements) that a Borrower or Subsidiary would be required to pay if such Hedging Agreement was terminated on such date.

Allocable Amount : as defined in Section  5.10.3 .

Amendment No.  1: the First Amendment, Consent and Limited Waiver to Loan Agreement and Guarantee and Collateral Agreement, dated as of October  31, 2014, among Obligors party thereto, Lenders and Agent.

Amendment No.  2: the Second Amendment to Loan Agreement, dated as of September  16, 2015, among Obligors party thereto, Lenders and Agent.

 

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Amendment No.  3: the Third Amendment to Loan Agreement, dated as of April  7, 2017, among Obligors party thereto, Lenders, Issuing Bank and Agent.

Amendment No.  3 Effective Date: the Effective Time as defined in Amendment No.  3.

Anti-Terrorism Law : any law relating to terrorism or money laundering, including the Patriot Act.

Applicable Law : all laws, rules, regulations and governmental guidelines applicable to the Person, conduct, transaction, agreement or matter in question, including all applicable statutory law, common law and equitable principles, and all provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities.

Applicable Margin : the margin set forth below, as determined by the Fixed Charge Coverage Ratio for the last twelve-month period:

 

Level

  

Fixed Charge

Coverage Ratio

   Adjusted Net
Total Leverage Ratio
   Base Rate
Loans
    LIBOR
Loans
 

I

  

³ 2.00 to 1.00

   < 3.00 to 1.00      0.25     1.25

II

  

³ 1.75 to 1.00

   Not applicable      0.50     1.50

III

  

³ 1.25 to 1.00 < 1.75 to 1.00

   Not applicable      0.75     1.75

IV

  

< 1.25 to 1:00

   Not applicable      1.00     2.00

Until September  30, 2013 margins shall be determined as if Level II were applicable. Thereafter, margins Margins shall be subject to increase or decrease by Agent on the first day of each calendar month based upon the Fixed Charge Coverage Ratio and the Adjusted Net Total Leverage Ratio reported on the Compliance Certificate required to be delivered during the prior month. If, by the first day of a month, any financial statement or Compliance Certificate due in the preceding month has not been received, then, at the option of Agent or Required Lenders, margins shall be determined as if Level III IV were applicable until the first day of the calendar month following actual receipt.

Approved Fund : any Person (other than a natural Person) engaged in making, purchasing, holding or otherwise investing in commercial loans in its ordinary course of activities , that is administered or managed by (a)  a Lender, (b)  an Affiliate of a Lender or (c)  an entity or an Affiliate of an entity that administers or manages a Lender .

Asset Disposition : a sale, lease, license, consignment, transfer or other disposition of Property of an Obligor, including a disposition of Property in connection with a sale-leaseback transaction or synthetic lease.

Asset Review and Approval Conditions : with respect to any Permitted Acquisition in respect of which the Accounts acquired therein or thereby are requested to be included in the Borrowing Base, Agent shall have completed its review of such assets, including to the extent required by the last paragraph of the definitions of “Eligible Account,” “Eligible Credit Card Account,” or “Eligible Inventory” or Section  10.1.14 , field examinations and appraisals as Agent shall in its Reasonable Credit Judgment require; it being acknowledged and agreed that (a) such additional assets, if any, to be included in the Borrowing Base may be subject to different eligibility criteria or may require the imposition of additional reserves with respect thereto as Agent shall in its Reasonable Credit Judgment require and (b) prior to the inclusion of any additional assets in the Borrowing Base, all actions shall have been taken to ensure that Agent has a perfected and continuing first priority security interest in and Lien on such assets.

 

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Assignment and Acceptance : an assignment agreement between a Lender and Eligible Assignee, in the form of Exhibit A or otherwise satisfactory to Agent.

Auto-Extension Letter of Credit : as defined in Section 2.2.1(e) .

Availability : the Borrowing Base minus Revolver Usage.

Availability Reserve : the sum (without duplication) of (a) the Inventory Reserve; (b) the Rent and Charges Reserve; (c) the Bank Product Reserve; (d) the Wisconsin Wage Protection Act Reserve; (e) the aggregate amount of liabilities secured by Liens upon Collateral that are senior to Agent’s Liens (but imposition of any such reserve shall not waive an Event of Default arising therefrom); and (f)  the Prepetition Escrow Reserve, and (g)  such additional reserves, in such amounts and with respect to such matters, as Agent in its Reasonable Credit Judgment may elect to impose from time to time.

Bail-In Action: 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: 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 of America : Bank of America, N.A., a national banking association, and its successors and assigns.

Bank of America Indemnitees : Bank of America and its officers, directors, employees, Affiliates, agents and attorneys.

Bank Product : any of the following products, services or facilities extended to any Borrower or Affiliate of a Borrower by Agent, a Lender or any of their respective Affiliates: (a) Cash Management Services; (b) products under Hedging Agreements; and (c) commercial credit card and merchant card services.

Bank Product Reserve : the aggregate amount of reserves established by Agent from time to time in its Reasonable Credit Judgment in respect of Secured Bank Product Obligations; provided that (x) any reserve in an amount not in excess of the total amount of Bank Product Obligations secured by the Collateral, shall be deemed to be a reserve established by Agent in its Reasonable Credit Judgment and (y) the aggregate amount of Bank Product Reserves in effect from time to time shall include the aggregate Bank Product Amount with respect to Hedging Agreements owing to any Secured Bank Product Provider, other than Bank of America or any of its Affiliates, at such time, as reported to Agent in a notice delivered pursuant to the definition of “Secured Bank Product Provider”.

Bankruptcy Code : Title 11 of the United States Code entitled “Bankruptcy” as now and hereafter in effect (or any similar or equivalent legislation as in effect in any applicable jurisdiction), or any successor statutes.

Bankruptcy Court : the United States Bankruptcy Court for the District of Delaware.

Bankruptcy Proceedings : has the meaning given to it in the recitals hereto.

Base Rate : for any day, a per annum rate equal to the greater of (a) the Prime Rate for such day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) LIBOR for a 30 day interest period as of such day, plus 1.00%.

 

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Base Rate Loan : any Loan that bears interest based on the Base Rate.

Base Rate Loan : a Loan that bears interest based on the Base Rate.

Board of Governors : the Board of Governors of the Federal Reserve System.

Borrowed Money : with respect to any Obligor, without duplication, its (a) Indebtedness that (i) arises from the lending of money by any Person to such Obligor, (ii) is evidenced by notes, drafts, bonds, debentures, credit documents or similar instruments, (iii) accrues interest or is a type upon which interest charges are customarily paid (excluding trade payables owing in the Ordinary Course of Business), or (iv) was issued or assumed as full or partial payment for Property; (b) Capital Leases; (c) reimbursement obligations with respect to letters of credit; and (d) guaranties of any Indebtedness of the foregoing types owing by another Person.

Borrower Agent : as defined in Section  4.4 .

Borrower Materials : Borrowing Base Certificates, Compliance Certificates and other information, reports, financial statements and other materials delivered by Borrowers hereunder, as well as other Reports and information provided by Agent to Lenders.

Borrowers : School Specialty, Inc., a Delaware corporation, and each Subsidiary Borrower.

Borrowing : a group of Loans that are made or converted together on the same day and have the same interest option and, if applicable, Interest Period.

Borrowing Base : on any date of determination, an amount equal to (a) the lesser of (i) the aggregate Commitments; or (ii) the sum of (w) the Accounts Formula Amount, plus (x) the Credit Card Formula Amount, plus (y) the Inventory Formula Amount, plus (z) during the fiscal months of February, March, April, May, June and July, the Seasonal Formula Amount, minus (b) the Availability Reserve.

Borrowing Base Certificate : a certificate, in form and substance satisfactory to Agent, by which Borrowers certify the Borrowing Base.

Business Day : any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, Chicago, IL or New York, NY, and if such day relates to a LIBOR Loan, any such day on which dealings in Dollar deposits are conducted between banks in the London interbank Eurodollar market.

Capital Expenditures : for any period, (a) the additions to property, plant and equipment, capitalized investment and development costs, and other capital expenditures of Company and its consolidated Subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of Company for such period prepared in accordance with GAAP and (b) Capital Lease Obligations incurred by Company and its consolidated Subsidiaries during such period, but excluding in each case any such expenditure made to restore, replace or rebuild property to the condition of such property immediately prior to any damage, loss, destruction or condemnation of such property to the extent such expenditure is made with insurance proceeds, condemnation awards or damage recovery proceeds relating to any such damage, loss, destruction or condemnation.

Capital Lease : any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, that is required to be capitalized for financial reporting purposes in accordance with GAAP ; provided that the determination of whether a lease is to be treated as an operating lease or capital lease shall be made without giving effect to any change in accounting for leases pursuant to GAAP resulting from the implementation of proposed Accounting Standards Update (ASU) Leases (Topic 840) issued August  17, 2010. .

 

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Capital Lease Obligation : as to any Person shall mean the obligations of such Person to pay rent or other amounts under any Capital Lease.

Carson-Dellosa Drag-Along Sale : a disposition of the entirety of Obligors Equity Interests in Carson- Dellosa Publishing, LLC, pursuant to the exercise by the CJE Members (as defined in the Operating Agreement of Carson- Dellosa Publishing, LLC) of their drag-along rights so as to require Obligors to dispose of such Equity Interests in accordance with the terms of Section  11.6 of the Operating Agreement of Carson- Dellosa Publishing, LLC.

Cash Collateral : cash, and any interest or other income earned thereon, that is delivered to Agent to Cash Collateralize any Obligations.

Cash Collateral Account : a demand deposit, money market or other account established by Agent at such financial institution as Agent may select in its discretion, which account shall be subject to a Lien in favor of Agent.

Cash Collateralize : the delivery of cash to Agent, as security for the payment of Obligations, in an amount equal to (a) with respect to LC Obligations, 103% of the aggregate LC Obligations, and (b) with respect to any inchoate, contingent or other Obligations (including Secured Bank Product Obligations), Agent’s good faith estimate of the amount due or to become due, including fees, expenses and indemnification hereunder. “ Cash Collateralization ” has a correlative meaning.

Cash Dominion Trigger Period : the period (a) commencing on any date in which a Specified Default or an Event of Default occurs or Specified Availability for three (3) consecutive Business Days is less than the greater of (i) $12,500,000 and (ii) 10% of the Commitments at such time and (b) continuing until the first date thereafter on which no Specified Default or Event of Default has existed for 30 consecutive days and Specified Availability has been at least the greater of (i) $12,500,000 and (ii) 10% of the Commitments at all times for 30 consecutive days.

Cash Equivalents : (a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of issuance thereof; (b) investments in commercial paper maturing within 270 days from the date of issuance thereof and having, at such date of acquisition, the highest credit rating obtainable from Moody’s or from S&P; (c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Administrative Agent or any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits at the date of acquisition thereof of not less than $500,000,000 and that issues (or the parent of which issues) commercial paper rated at least “Prime 1” (or the then equivalent grade) by Moody’s or “A-1” (or the then equivalent grade) by S&P; (d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a)  above and entered into with a financial institution satisfying the criteria of clause (c)  above; and (e) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (a)  through (d) above.

Cash Management Services : services relating to operating, collections, payroll, trust, or other depository or disbursement accounts, including automated clearinghouse, e-payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository, information reporting, lockbox and stop payment services.

 

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CERCLA : the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. § 9601 et seq .).

Change in Law : the occurrence, after the date hereof Closing Date , of (a) the adoption, taking effect or phasing in of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof; or (c) the making, issuance or application of any request, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided , however , that “Change in Law” shall include, regardless of the date enacted, adopted or issued, all requests, rules, guidelines, requirements or directives (i) under or relating to the Dodd-Frank Wall Street Reform and Consumer Protection Act, or (ii) promulgated pursuant to Basel III by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any similar authority) or any other Governmental Authority.

Change of Control : (a) Company ceases to own and control, beneficially and of record, directly or indirectly, all Equity Interests in each Subsidiary Borrower Guarantor (unless 100% of the Equity Interests of such Subsidiary Borrower Guarantor is sold or otherwise disposed of in connection with an Asset Disposition otherwise permitted hereunder); (b) any “person” or “group” (within the meaning of Rule 13d-5 of the Exchange Act as in effect on the date hereof Closing Date ) shall own, directly or indirectly, beneficially or of record, shares representing more than 50 35 % of the aggregate ordinary voting power represented by the issued and outstanding capital stock of Company; (c) a majority of the seats (other than vacant seats) on members of the board of directors of Company shall at any time be occupied by persons who were neither ( i )  nominated by the board of directors of Company nor (ii)  appointed by directors so nominated or not constitute Continuing Directors; (d) any change in control (or similar event, however denominated) with respect to Company or any Subsidiary shall occur under and as defined in the Term Loan Documents or in any indenture or agreement in respect of the Specified Unsecured Prepetition Debt.

Claims : all claims, liabilities, obligations, losses, damages, penalties, judgments, proceedings, interest, costs and expenses of any kind (including remedial response costs, reasonable attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment of the Obligations or replacement of Agent or any Lender) incurred by any Indemnitee or asserted against any Indemnitee by any Obligor or other Person, in any way relating to (a) the Commitment Letter, the Fee Letters, the Approval Order (as defined in the Commitment Letter), the Confirmation Order, any Loans (including the syndication thereof and of the Commitments by the Lead Arrangers Arranger ), Letters of Credit, Loan Documents, Borrower Materials, or the use thereof or transactions relating thereto, (b) any action taken or omitted in connection with any Loan Documents, (c) the existence or perfection of any Liens, or realization upon any Collateral, (d) exercise of any rights or remedies under any Loan Documents or Applicable Law, or (e) failure by any Obligor to perform or observe any terms of any Loan Document, in each case including all costs and expenses relating to any investigation, litigation, arbitration or other proceeding (including an Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a party thereto.

Closing Date : as defined in Section  6.1 .

Code : the Internal Revenue Code of 1986, as amended.

Collateral : all Property described in any Security Documents as security or collateral for any Obligations, and all other Property that now or hereafter, or under the terms hereof, or under the Security Documents, secures (or is intended to secure) any Obligations.

Comerica Letter of Credit : letter of credit #5183 issued by Comerica in favor of DEI SCEP, dated as of September  15, 2012 and periodically extended prior to the date hereof with a current outstanding balance of $700,000 and expiring on October  1, 2013.

Commodity Exchange Act : the Commodity Exchange Act (7 U.S.C. § 1 et seq .).

 

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Commitment : for any Lender, its obligation to make Loans and to participate in LC Obligations up to the maximum principal amount shown on Schedule 1.1(a) , as hereafter as of the Amendment No.  3 Effective Date, as thereafter modified pursuant to an Assignment and Acceptance to which it is a party. “ Commitments ” means the aggregate amount of such commitments of all Lenders.

Commitment Letter : the commitment letter, dated as of May 13, 2013, among Agent, Lead Arrangers Arranger , the other financial institutions party thereto, and Company.

Commitment Termination Date : the earliest to occur of (a) the Revolver Termination Date; (b) the date on which Borrowers terminate the Commitments in full pursuant to Section  2.1.4 ; or (c) the date on which the Commitments are terminated in full pursuant to Section  11.2 .

Company : as defined in the Preamble hereto.

Compliance Certificate : a certificate, substantially in the form of Exhibit C (or, if Borrower Agent so requests, such other form as is in form and substance reasonably satisfactory to Agent), by which Borrowers certify as to a reasonably detailed calculation of the Fixed Charge Coverage Ratio (whether or not a Covenant Trigger Period exists and is continuing) , the Adjusted Net Total Leverage Ratio and, to the extent applicable, compliance with Section  10.3 and the applicable Level for the Applicable Margin.

Confirmation Order : The order of the Bankruptcy Court dated May 23, 2013 and attached hereto as Exhibit F.

Connection Income Taxes : Other Connection Taxes that are imposed on or measured by net income (however denominated), or are franchise or branch profits Taxes.

Consolidated Net Income : with respect to Company and its Subsidiaries on a consolidated basis for any period, net income for such period but excluding net income (or loss) attributable to the equity method of accounting unless such net income has been distributed by way of an ordinary dividend in cash to Company or any Subsidiary.

Consolidated Total Assets : as of any date of determination, the total assets in each case reflected on the consolidated balance sheet of Company and its Subsidiaries as at the end of the most recently ended Fiscal Quarter of Company for which financial statements have been or are required to have been delivered pursuant to Section  10.1.2 , determined on a consolidated basis in accordance with GAAP.

Contingent Obligation : any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any Indebtedness, lease, dividend or other obligation (“ primary obligations ”) of another obligor (“ primary obligor ”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto.

 

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Continuing Director: (a)  any member of the board of directors of Company who was a director (or comparable manager) of Company on the Amendment No.  3 Effective Date, and (b)  any individual who becomes a member of the board of directors after the Amendment No.  3 Effective Date if such individual was approved, appointed or nominated for election to the board of directors of Company by a majority of the Continuing Directors, but excluding any such individual originally proposed for election in opposition to the Continuing Directors in an actual or publically threatened election contest relating to the election of the directors (or comparable managers) of Company and whose assumption of office resulted from such contest or the settlement thereof.

Covenant Trigger Period : the period (a) commencing on any date in which Specified Availability is less than the greater of (i) $12,500,000 and (ii) 10% of the Commitments at such time and (b) continuing until the first date thereafter on which Specified Availability has been at least the greater of (i) $12,500,000 and (ii) 10% of the Commitments at all times for 30 consecutive days.

Credit Card Account : an Account arising in the Ordinary Course of Business in respect of a credit card receivable that (a) has been earned by performance, (b) represents the bona fide amounts due to a Borrower from any major processor or issuer of MasterCard, Visa, American Express or Discover credit cards or any other nationally or internationally recognized credit card provider and (c) indicates only a Borrower as payee or remittance party.

Credit Card Formula Amount : 85% of the Value of Eligible Credit Card Accounts.

CWA : the Clean Water Act (33 U.S.C. §§ 1251 et seq .).

Default : an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default.

Default Rate : for any Obligation (including, to the extent permitted by law, interest not paid when due), 2.00% plus the interest rate otherwise applicable thereto.

Defaulting Lender : any Lender that (a) has failed to comply with its funding obligations hereunder, and such failure is not cured within two Business Days; (b) has notified Agent or any Borrower that such Lender does not intend to comply with its funding obligations hereunder or under any other credit facility, or has made a public statement to that effect; (c) has failed, within three Business Days following request by Agent or any Borrower, to confirm in a manner satisfactory to Agent and Borrowers that such Lender will comply with its funding obligations hereunder; or (d) has, or has a direct or indirect parent company that has, become the subject of an Insolvency Proceeding (including reorganization, liquidation, or appointment of a receiver, custodian, administrator or similar Person by the Federal Deposit Insurance Corporation or any other regulatory authority) or a Bail-In Action ; provided , however , that a Lender shall not be a Defaulting Lender solely by virtue of a Governmental Authority’s ownership of an equity interest in such Lender or parent company unless the ownership provides immunity for such Lender from jurisdiction of courts within the United States or from enforcement of judgments or writs of attachment on its assets, or permits such Lender or Governmental Authority to repudiate or otherwise to reject such Lender’s agreements.

Delayed Admin Claims : collectively, each of the Allowed Administrative Claims (as defined in the Plan of Reorganization) as to which the holder thereof has agreed in a writing, in form and substance reasonably satisfactory to Agent, to defer payment thereon until a date no earlier than August  31, 2013 ( provided , however that such fees, to the extent allowed, shall be paid as soon as practicable thereafter). The Delayed Admin Claims are listed on Schedule 1.1(e) .

Deposit Account Control Agreement : control agreement satisfactory to Agent executed by an institution maintaining a Deposit Account for an Obligor, to perfect Agent’s Lien on such account.

Designated Jurisdiction : any country or territory that is the subject of any Sanction.

 

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Dilution Percent : the percent, determined by Agent from time to time in its Reasonable Credit Judgment, equal to (a) bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos and other dilutive items with respect to Accounts, divided by (b) gross sales.

DIP Facilities : (a) that certain Debtor-in-Possession Credit Agreement, dated as of January 31, 2013 (as amended from time to time, the “ ABL DIP ”), among Company and certain of its Subsidiaries party thereto, as borrowers, the lenders party thereto, as lenders, and Wells Fargo Capital Finance, LLC, as administrative agent; and (b) that certain Senior Secured Super-Priority Debtor-in-Possession Credit Agreement, dated as of February 27, 2013 (as amended from time to time, the “ Ad-Hoc DIP ”), among Company and certain of its Subsidiaries party thereto, as borrowers, the guarantors party thereto, as guarantors, the lenders party thereto, as lenders, and U.S. Bank National Association, as administrative agent.

DIP Order : the Final Order Authorizing (I) Replacement Postpetition Secured Financing Pursuant to 11 U.S.C. §§ 105(a), 362, 363(b), 364(c)(1), 364(c)(3), 364(d)(1), 365(e) and 507, (II) Grant of Certain Equal and Ratable Liens and Superpriority Claims to the Ad Hoc DIP Lenders, and (III) Repayment of Existing Postpetition Financing and Prepetition Secured Financing Pursuant to 11 U.S.C. § 363, [Docket No. 548].

Disqualified Stock : any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital, in each case at any time on or prior to the first anniversary of the Revolver Termination Date; or (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interest referred to in clause (a)  above, in each case at any time prior to the first anniversary of the Revolver Termination Date.

Distribution : (i) any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in Borrowers or any Subsidiary, (ii) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the repurchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in Borrowers or any Subsidiary, or (iii) any other payment (whether in cash, securities or other property) with respect to any Equity Interests in Borrowers or any Subsidiary, including but not limited to payments made on account of any stock appreciation rights or restricted stock units with respect to any such Equity Interests.

Dollars : lawful money of the United States.

Domestic Subsidiary : any Subsidiary organized under the laws of the United States of America, any state thereof or the District of Columbia.

Dominion Account : an account of an Obligor at Bank of America or another bank reasonably acceptable to Agent, which is subject at all times to a Deposit Account Control Agreement or a Securities Account Control Agreement.

EBITDA : with respect to Company and its Subsidiaries on a consolidated basis for any period, the Consolidated Net Income of Company and its Subsidiaries for such period plus

(a) the sum of (in each case without duplication and to the extent the respective amounts described in subclauses ( i )  through ( x viii ) of this clause (a)  reduced such Consolidated Net Income (and were not excluded therefrom or added thereto) for the respective period for which EBITDA is being determined):

 

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(i) provision for taxes based on income, profits or capital of Company and its Subsidiaries for such period, including, without limitation, state, franchise and similar taxes;

(ii) interest expense (and to the extent not included in interest expense, (x) all cash dividend payments (excluding items eliminated in consolidation) on any series of preferred stock or disqualified stock and (y) costs of surety bonds in connection with financing activities) of Company and its Subsidiaries for such period;

(iii) depreciation and amortization expenses of Company and its Subsidiaries for such period including the amortization of intangible assets, deferred financing fees and capitalized software expenditures and amortization of unrecognized prior service costs;

(iv) (A) non-recurring, unusual or extraordinary charges for such period, (B) business optimization expenses and other restructuring charges or reserves (which, for the avoidance of doubt, shall include the effect of inventory optimization programs, facility closure, facility consolidations, duplicative facility costs, retention, severance, systems establishment costs, contract termination costs, future lease commitments and excess pension charges), and (C) cash expenses relating to earn outs and similar obligations; provided that the aggregate amount to be added back pursuant to this clause (iv) shall not exceed (1)  for any measurement period ending up to the fiscal month ending in April 2016 (inclusive), 25% of EBITDA for such period, (2)  for any measurement period ending in the fiscal months ending in May through July 2016 (inclusive), 20% of EBITDA for such period, (3)  for any measurement period ending in the fiscal months ending in August through October 2016 (inclusive), 15% of EBITDA for such period, and (4)  for each measurement period thereafter, 15% of EBITDA for the 2017 Fiscal Year, 12.5% of EBITDA for the 2018 Fiscal Year, and 10% of EBITDA for any Fiscal Year thereafter ;

(v) any other non-cash charges; provided , that for purposes of this subclause (v)  of this clause (a) , any non-cash charges or losses shall be treated as cash charges or losses in any subsequent period during which cash disbursements attributable thereto are made (but excluding, for the avoidance of doubt, amortization of a prepaid cash item that was paid in a prior period);

(vi) any expenses or charges (other than depreciation or amortization expense as described in the preceding clause (iii) ) related to any issuance of equity interests, investment, acquisition, disposition, recapitalization , attempted disposition, attempted recapitalization, proposed sale of the Borrower or any Subsidiary or the incurrence, modification or repayment of indebtedness permitted to be incurred under this Agreement (including any refinancing thereof as long as each Refinancing Condition is satisfied) (whether or not successful), in each case, solely to the extent outside the ordinary course of business, including (x) such fees, expenses or charges related to the Existing Term Loan Agreement, the Term Loan Facility, the Obligations and the Specified Unsecured Prepetition Debt and (y) any amendment or other modification of the Obligations or other Indebtedness;

(vii) non-cash expenses in connection with expensing stock options or other equity compensation grants for such period; and

 

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(viii) costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and public company costs;

( ix viii )to the extent deducted from Consolidated Net Income for such period, (A)  cash fees, costs, expenses, commissions and other cash charges paid on or before June  30, 2013 (or, September  15, 2013 in the case of the payment on any Delayed Admin Claims) April  7, 2017 in connection with this Agreement and the other Loan Documents, the Existing Term Loan Facility, the Specified Unsecured Prepetition Debt, the Bankruptcy Proceedings, the Plan of Reorganization Agreement and the transactions contemplated by the foregoing , including in connection with the termination or settlement of executory contracts, professional and accounting fees, costs and expense, management incentive, employee retention or similar plans, and litigation and settlements (but excluding interest and fees accruing after the Closing Date hereunder) ; provided that the aggregate amount to be added back pursuant to this clause ( ix)( A viii ) for all such periods shall not exceed $ 53 million 4,000,000 ( provided , that to the extent such charges associated with this Agreement and the other Loan Documents or the Existing Term Loan Facility Agreement are capitalized and recognized over the life of the Loans and the loans under the Existing Term Loans Loan Agreement , respectively, then such amount shall be reduced to the extent of such capitalization) and (B)  amounts paid in connection with the make-whole litigation in the Cases, in an aggregate amount to be added back to this clause (ix)(B) not to exceed $25  million; and ; minus

(x) for the fiscal year ended April  30, 2014, solely in connection with the Specified Asset Dispositions, business optimization expenses and other restructuring charges or reserves (which, for the avoidance of doubt, shall include the effect of inventory optimization programs, facility closure, facility consolidations, duplicative facility costs, retention, severance, systems establishment costs, contract termination costs, future lease commitments and excess pension charges); provided , that with respect to each business optimization expense or other restructuring charge, a responsible officer of Borrower Agent shall have delivered to Agent an officer s certificate specifying and quantifying such expense or charge; provided , further , that the aggregate amount to be added back pursuant to this clause (x)  shall not exceed $3  million; minus

(b) the sum of (without duplication and to the extent the amounts described in this clause (b)  increased such Consolidated Net Income for the respective period for which EBITDA is being determined) non-cash items increasing Consolidated Net Income of Company and its Subsidiaries for such period (but excluding any such items (A) in respect of which cash was received in a prior period or will be received in a future period or (B) which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced EBITDA in any prior period); minus

(c) non-recurring, unusual or extraordinary gains increasing Consolidated Net Income of the Company and its subsidiaries for such period to the extent non-recurring, unusual or extraordinary losses could be added back for such period; and minus

(d) any cash payments made in respect of non-cash charges added back in a prior period.

EEA Financial Institution: (a)  any credit institution or investment firm established in an EEA Member Country that is subject to the supervision of an EEA Resolution Authority; (b)  any entity established in an EEA Member Country that is a parent of an institution described in clause (a)  above; or (c)  any financial institution established in an EEA Member Country that is a subsidiary of an institution described in the foregoing clauses and is subject to consolidated supervision with its parent.

 

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For purposes of determining the Fixed Charge Coverage Ratio, the Net First Lien Leverage Ratio and the Net Total Leverage Ratio, EBITDA for each of the months ending on or prior to May  31, 2013 shall be deemed to be equal to the amounts set forth in the table below.

EEA Member Country: any of the member states of the European Union, Iceland, Liechtenstein and Norway.

EEA Resolution Authority: any public administrative authority or any Person entrusted with public administrative authority of an EEA Member Country (including any delegee ) having responsibility for the resolution of any EEA Financial Institution.

Eligible Account : an Account owing to a Borrower that arises in the Ordinary Course of Business from the sale of goods or rendition of services and is payable in Dollars, except any Account with respect to which any of the following exclusionary criteria set forth below applies. No Account shall be an Eligible Account if:

(a) it is unpaid for more than 120 days after the original invoice date;

(b) 50% or more of the dollar amount of all Accounts owing by the Account Debtor (or its Affiliates) are not Eligible Accounts under clause (a) of this definition;

(c) when aggregated with other Accounts owing by the Account Debtor (or its Affiliates), it exceeds 20% of the aggregate Eligible Accounts (or such higher percentage as Agent may establish for the Account Debtor from time to time), to the extent of the obligations owing by such Account Debtor in excess of such percentage;

(d) it does not conform with a covenant or representation herein in any material respect;

(e) it is owing by a creditor or supplier, or is otherwise subject to a potential offset, counterclaim, dispute, deduction, discount, recoupment, reserve, defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount thereof);

(f) an Insolvency Proceeding has been commenced by or against the Account Debtor, unless such Account Debtor has been authorized (pursuant to a court order reasonably satisfactory to Administrative Agent) to and is in fact continuing to timely pay, in cash, Accounts arising after the commencement of such Insolvency Proceeding owed to the applicable Borrower, and Administrative Agent agrees in its discretion that such Accounts may be deemed Eligible Accounts; or the Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs, is not Solvent (except as provided in the first clause of this clause (f)  with respect to Account Debtors in Insolvency Proceedings), or is subject to Sanctions or any Sanction or on any specially designated nationals list maintained by OFAC; or such Borrower is not able to bring suit or enforce remedies against the Account Debtor through judicial process;

(g) the Account Debtor is organized or has its principal offices or assets outside the United States or Canada, unless the Account is supported by a letter of credit (delivered to and directly drawable by Agent) or credit insurance satisfactory in all respects to Agent;

(h) the Account Debtor is the United States or any department, agency or instrumentality thereof and such Account has not been assigned to Agent in compliance with the federal Assignment of Claims Act, provided that up to $2,000,000 of such Accounts in the aggregate at any one time may be deemed eligible notwithstanding this clause (h) ;

 

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(i) it (i) is not subject to a duly perfected, first priority Lien in favor of Agent, or (ii) is subject to any other Lien (other than (x) Permitted Liens that arise by operation of law and are junior to the Lien in favor of Agent, or (y) the Lien granted to the Term Loan Agent under the Term Loan Documents or any other Permitted First Lien Debt) and (z)  Liens in connection with the Prepetition Escrowed Amounts to the extent otherwise permitted hereunder; );

(j) the goods giving rise to it have not been delivered to the Account Debtor, the services giving rise to it have not been accepted by the Account Debtor, or it otherwise does not represent a final sale;

(k) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment;

(l) its payment has been extended or the Account Debtor has made a partial payment;

(m) it arises from a sale to an Affiliate, from a sale on a cash-on-delivery, bill-and-hold, sale-or-return, sale-on-approval, consignment, or other repurchase or return basis, or from a sale for personal, family or household purposes;

(n) it represents a progress billing or retainage, or relates to services for which a performance, surety or completion bond or similar assurance has been issued;

(o) it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof; or

(p) it is deemed by Agent, in its Reasonable Credit Judgment, not to be an Eligible Account; provided that Agent shall give Borrowers prior written notice setting forth the reasons for not treating such Account as an Eligible Account and Agent shall be available to discuss such rationale with Borrower Agent.

In calculating delinquent portions of Accounts under clauses (a) and (b), credit balances more than 120 days old will be excluded. Prior to the inclusion of any Accounts acquired as part of a Permitted Acquisition in the Borrowing Base, (i) the conditions set forth in the definition of “Permitted Acquisition” shall be satisfied, (ii) Agent shall have been provided with such information as Agent shall reasonably request to complete its evaluation of any such Accounts and (iii) the Asset Review and Approval Conditions shall have been satisfied; provided that any such Eligible Accounts may, in the Reasonable Credit Judgment of Agent, be included in the Borrowing Base for a period not to exceed 60 days and in an aggregate amount not to exceed 5% of the Accounts Formula Amount pending completion of any field examinations or appraisals required by Agent in its Reasonable Credit Judgment.

Eligible Assignee : a Person that is (a) a Lender, Affiliate of a Lender or Approved Fund; (b) a financial institution that extends revolving credit facilities of this type in its ordinary course of business and is approved by Borrower Agent (which approval shall not be unreasonably withheld or delayed, and shall be deemed given if no objection is made within five Business Days after notice of the proposed assignment), Agent and Issuing Bank; and (c) during an Event of Default, any Person acceptable to Agent in its discretion.

Eligible Credit Card Account : any Credit Card Account owing to a Borrower except any Credit Card Account with respect to which any of the following exclusionary criteria set forth below applies. No Account shall be an Eligible Credit Card Account if:

 

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(a) it has been outstanding for more than five (5) Business Days from the date of sale;

(b) with respect to which a Borrower does not have good, valid and marketable title thereto;

(c) it is (i) not subject to a duly perfected, first priority Lien in favor of Agent, or (ii) subject to any other Lien (other than (x) Permitted Liens that arise by operation of law and are junior to the Lien in favor of Agent, and (y) the Lien granted to the Term Loan Agent under the Term Loan Documents) and (z)  Liens in connection with the Prepetition Escrowed Amounts to the extent otherwise permitted hereunder ;

(d) it is disputed by the processor or issuer of the applicable credit card, are with recourse against a Borrower, or with respect to which a claim, counterclaim, offset or chargeback has been asserted against a Borrower (to the extent of such dispute, claim, counterclaim, offset or chargeback);

(e) it is owing to a processor which has the right under certain circumstances to require such Borrower to repurchase Credit Card Accounts from such credit card processor;

(f) it is due from a processor or issuer which is the subject of any Insolvency Proceeding; or such process or issuer has failed, has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs, is not Solvent, or is subject to Sanctions or any specially designated nationals list maintained by OFAC; or such Borrower is not able to bring suit or enforce remedies against processor or issuer through judicial process;

(g) it is not a valid, legally enforceable obligation of the applicable issuer with respect thereto;

(h) it is evidenced by Chattel Paper or an Instrument;

(i) it does not conform with a covenant or representation herein in any material respect; or

(j) it is deemed by Agent, in its Reasonable Credit Judgment, not to be an Eligible Credit Card Account; provided that Agent shall give Borrowers prior written notice setting forth the reasons for not treating such Account as an Eligible Account and Agent shall be available to discuss such rationale with Borrower Agent.

Prior to the inclusion of any Credit Card Accounts acquired as part of a Permitted Acquisition in the Borrowing Base, (i) the conditions set forth in the definition of “Permitted Acquisition” shall be satisfied, (ii) Agent shall have been provided with such information as Agent shall reasonably request to complete its evaluation of any such Credit Card Accounts and (iii) the Asset Review and Approval Conditions shall have been satisfied; provided that any such Eligible Credit Card Accounts may, in the Reasonable Credit Judgment of Agent, be included in the Borrowing Base for a period not to exceed 60 days and in an aggregate amount not to exceed 5% of the Credit Card Accounts Formula Amount pending completion of any field examinations or appraisals required by Agent in its Reasonable Credit Judgment.

Eligible In-Transit Inventory : Inventory owned by a Borrower that would be Eligible Inventory if it were not subject to a Document and in transit from a foreign location to a location of such Borrower within the United States, and that is (a) is subject to a negotiable Document showing Agent (or, with the consent of Agent, the applicable Borrower) as consignee, which Document is in the possession of Agent or such other Person as Agent shall approve; (b) is fully insured in a manner reasonably satisfactory to Agent; (c) is not sold by a vendor that has a right to reclaim, divert shipment of, repossess, stop delivery,

 

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claim any reservation of title or otherwise assert Lien rights against the Inventory, or with respect to whom any Borrower is in default of any obligations; (d) is subject to purchase orders and other sale documentation satisfactory to Agent, and title has passed to such Borrower; (e) is shipped by a common carrier that is not affiliated with the vendor and is not subject to Sanctions or any Sanction or on any specially designated nationals list maintained by OFAC; and (f) is being handled by a customs broker, freight-forwarder or other handler that has delivered a Lien Waiver. Notwithstanding the foregoing, no Inventory shall be Eligible In-Transit Inventory if it is deemed by Agent, in its Reasonable Credit Judgment, not to be Eligible In-Transit Inventory; provided that Agent shall give Borrowers prior written notice setting forth the reasons for not treating such Inventory as Eligible In-Transit Inventory and Agent shall be available to discuss such rationale with Borrower Agent.

Eligible Inventory : Inventory owned by a Borrower except any Inventory with respect to which any of the following exclusionary criteria set forth below applies. No Inventory shall be an Eligible Inventory unless it:

(a) is finished goods or raw materials, and not work-in-process, packaging or shipping materials, labels, samples, display items, bags, replacement parts or manufacturing supplies; provided that raw materials may be included as Eligible Inventory notwithstanding this clause (a)  to the extent not resulting in an increase of the Borrowing Base of more than $1,000,000 at any one time;

(b) is not held on consignment, nor subject to any deposit or down payment;

(c) is in new and saleable condition and is not damaged, defective, shopworn or otherwise unfit for sale;

(d) is not slow-moving, perishable, obsolete or unmerchantable, and does not constitute returned or repossessed goods; provided Eligible Slow Moving Inventory may be included as Eligible Inventory notwithstanding this clause (d)  to the extent not resulting in an increase of the Borrowing Base of more than $5,000,000 at any one time;

(e) meets all standards imposed by any Governmental Authority, has not been acquired from an entity a Person subject to Sanctions or any Sanction or on any specially designated nationals list maintained by OFAC, and does not constitute hazardous materials under any Environmental Law;

(f) conforms with the covenants and representations herein in all material respects;

(g) it is (i) subject to a duly perfected, first priority Lien in favor of Agent, and (ii) not subject to any other Lien (other than (x) Permitted Liens that arise by operation of law and are junior to the Lien in favor of Agent, and (y) the Lien granted to the Term Loan Agent under the Term Loan Documents) and (z)  Liens in connection with the Prepetition Escrowed Amounts to the extent otherwise permitted hereunder ;

(h) is within the continental United States or Canada, is not in transit except between locations of Borrowers, and is not consigned to any Person; provided that Eligible In-Transit Inventory may be included as Eligible Inventory notwithstanding this clause (h)  to the extent not resulting in an increase of the Borrowing Base of more than $2,500,000 at any one time;

(i) is not subject to any warehouse receipt or negotiable Document;

(j) is not subject to any License or other arrangement that restricts such Borrower’s or Agent’s right to dispose of such Inventory, unless Agent has received an appropriate Lien Waiver;

 

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(k) is not located on leased premises or in the possession of a warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person, unless the lessor or such Person has delivered a Lien Waiver or an appropriate Rent and Charges Reserve has been established;

(l) is reflected in the details of a current perpetual inventory report; provided that furniture Inventory owned by a Borrower may be included as Eligible Inventory notwithstanding this clause (l) ; and

(m) it has not been deemed by Agent, in its Reasonable Credit Judgment, not to be Eligible Inventory; provided that Agent shall give Borrowers prior written notice setting forth the reasons for not treating such Inventory as Eligible Inventory and Agent shall be available to discuss such rationale with Borrower Agent.

Prior to the inclusion of any Inventory acquired as part of a Permitted Acquisition in the Borrowing Base, (i) the conditions set forth in the definition of “Permitted Acquisition” shall be satisfied, (ii) Agent shall have been provided with such information as Agent shall reasonably request to complete its evaluation of any such Inventory and (iii) the Asset Review and Approval Conditions shall have been satisfied; provided that any such Eligible Inventory may, in the Reasonable Credit Judgment of Agent, be included in the Borrowing Base for a period not to exceed 60 days and in an aggregate amount not to exceed 5% of the Inventory Formula Amount pending completion of any field examinations or appraisals required by Agent in its Reasonable Credit Judgment.

Eligible Slow Moving Inventory : Inventory owned by a Borrower that would be Eligible Inventory but is of the type or category that Borrowers then have a supply of 52 weeks or more (based on sales over the then preceding 12 consecutive month period) unless Borrowers have not sold any inventory of such type or category during the then immediately preceding 12 consecutive month period.

Enforcement Action : any action to enforce any Obligations (other than Secured Bank Product Obligations) or Loan Documents or to exercise any rights or remedies relating to any Collateral (whether by judicial action, self-help, notification of Account Debtors, setoff or recoupment, credit bid, action in an Obligor’s Insolvency Proceeding or otherwise).

Environmental Laws : Applicable Laws (including programs, permits and guidance promulgated by regulators) relating to public health (other than occupational safety and health regulated by OSHA) or the protection or pollution of the environment, including CERCLA, RCRA and CWA.

Environmental Notice : a notice (whether written or oral) from any Governmental Authority or other Person of any possible noncompliance with, investigation of a possible violation of, litigation relating to, or potential fine or liability under any Environmental Law, or with respect to any Environmental Release, environmental pollution or hazardous materials, including any complaint, summons, citation, order, claim, demand or request for correction, remediation or otherwise.

Environmental Release : a release as defined in CERCLA or under any other Environmental Law.

Equity Interest : (a)(i) the interest of any shareholder in a corporation; partner in a partnership (whether general, limited, limited liability or joint venture); member in a limited liability company; or (ii) any other form of equity security or ownership interest in any Person, (b) all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities), and (c) any stock appreciation rights and restricted stock units.

ERISA : the Employee Retirement Income Security Act of 1974, as amended.

 

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ERISA Affiliate : any trade or business (whether or not incorporated) under common control with an Obligor within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

ERISA Event : (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Obligor or ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Obligor or ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) the determination that any Pension Plan or Multiemployer Plan is considered an at risk plan under Section 430(i) of the Code or Section 303 of ERISA or a plan in critical or endangered status under Section 432(b) the Code or Section 305 of ERISA; (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of application for a waiver of the minimum funding standard with respect to any Pension Plan; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Obligor or ERISA Affiliate.

EU Bail-In Legislation Schedule: the EU Bail-In Legislation Schedule published by the Loan Market Association, as in effect from time to time.

Event of Default : as defined in Section  11 .

Exchange Act : the Securities Exchange Act of 1934, as amended.

Excluded Subsidiary : any (a) Immaterial Subsidiary; (b) Foreign Subsidiary; (c) Subsidiary that is prohibited by Applicable Law or by any contractual obligation (with respect to any such contractual obligations, only to the extent existing on the Closing Date or the date the applicable Person becomes a direct or indirect Subsidiary of Company) from guaranteeing the Obligations or which would require governmental (including regulatory) consent, approval, license or authorization to provide a guarantee (unless such consent, approval, license or authorization has been received); (d) Subsidiary that is not a Wholly-Owned Subsidiary; (e) any Subsidiary of a Foreign Subsidiary and (f) Domestic Subsidiary that owns no material assets other than Equity Interests in one or more Foreign Subsidiaries. The Excluded Subsidiaries as of the Closing Amendment No.  3 Effective Date are listed on Schedule 1.1(b) . Notwithstanding the foregoing, in no event shall any Borrower be an Excluded Subsidiary.

Excluded Swap Obligation : with respect to an Obligor, each Swap Obligation as to which, and only to the extent that, such Obligor’s guaranty of or grant of a Lien as security for such Swap Obligation is or becomes illegal 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) because such Obligor does not constitute an “eligible contract participant” as defined in the act (determined after giving effect to any keepwell, support or other agreement for the benefit of such Obligor and all guarantees of Swap Obligations by other Obligors) when such guaranty or grant of Lien becomes effective with respect to the Swap Obligation. If a Hedging Agreement governs more than one Swap Obligation, only the Swap Obligation(s) or portions thereof described in the foregoing sentence shall be Excluded Swap Obligation(s) for the applicable Obligor.

 

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Excluded Taxes : (a) Taxes imposed on or measured by a Recipient’s net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) as a result of such Recipient being organized under the laws of, or having its principal office or applicable Lending Office located in, the jurisdiction imposing such Tax, or (ii) constituting Other Connection Taxes; (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of a Lender with respect to its interest in a Loan or Commitment pursuant to a law in effect when the Lender acquires such interest (except pursuant to an assignment request by Borrower Agent under Section  13.4 ) or changes its Lending Office, unless the Taxes were payable to its assignor immediately prior to such assignment or to the Lender immediately prior to its change in Lending Office; (c) Taxes attributable to a Recipient’s failure to comply with Section  5.9 ; and (d) U.S. federal withholding Taxes imposed pursuant to FATCA.

Existing Letter of Credit : letter of credit #3078027 issued by Bank of America, N.A. in favor of EOS Acquisition I, LLC, dated October 26, 2005 and periodically extended prior to the date hereof Closing Date with a current outstanding balance of $18,472.33.

Existing Term Loan Agreement: the Credit Agreement, dated as of June  11, 2013, among Company, the several banks and other financial institutions from time to time parties thereto, Credit Suisse AG, Cayman Islands Branch, as administrative agent and as collateral agent, and the other parties named therein, as amended.

Existing Term Loan Documents: Loan Documents as defined in the Existing Term Loan Agreement.

Extraordinary Expenses : all costs (including all internally allocated costs of Agent in connection with field examinations), expenses , fees or advances, in each case, that Agent may incur during a Default or Event of Default, or during the pendency of an Insolvency Proceeding of an Obligor, including those relating to (a) any audit, inspection, repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or other preservation of or realization upon any Collateral; (b) any action, arbitration or other proceeding (whether instituted by or against Agent, any Lender, any Obligor, any representative of creditors of an Obligor or any other Person) in any way relating to any Collateral (including the validity, perfection, priority or avoidability of Agent’s Liens with respect to any Collateral), Loan Documents, Letters of Credit or Obligations, including any lender liability or other Claims; (c) the exercise of any rights or remedies of Agent in, or the monitoring of, any Insolvency Proceeding; (d) settlement or satisfaction of taxes, charges or Liens with respect to any Collateral; (e) any Enforcement Action; and (f) negotiation and documentation of any modification, waiver, workout, restructuring or forbearance with respect to any Loan Documents or Obligations. Such costs, expenses and advances include transfer fees, Other Taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, expenses of one counsel for the Lead Arrangers Arranger and Agent (which counsel shall be designated by Agent) and to the extent necessary, one special or local counsel for Agent and Lead Arrangers Arranger in each appropriate jurisdiction, appraisal fees, brokers’ and auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees of any Obligor or independent contractors in liquidating any Collateral, and travel expenses.

FATCA : Sections 1471 through 1474 of the Code (including any amended or successor version if substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

Federal Funds Rate : (a) the weighted average of interest rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on the applicable Business Day day (or on the preceding Business Day, if the applicable day is not a Business Day), as published by the Federal Reserve Bank of New York on the next Business Day; or (b) if no such rate is published on the next Business Day, the average rate (rounded up , if necessary, to the nearest 1/8 of 1%) charged to Bank of America on the applicable day on such transactions, as determined by Agent ; provided, that in no event shall such rate be less than zero .

 

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Fee Claims Account : the account holding the Fee Claim Reserve Amount pursuant to Article III.B.2 of the Plan of Reorganization.

Fee Claim Reserve Amount : as such term is defined in the Plan of Reorganization.

Fee Letters : collectively, (a) the fee letter agreement , dated as of May  13, 2013, between Agent and Company and , (b) the fee letter agreement , dated as of May  13, 2013, among Original Lead Arrangers, Agent, SunTrust Bank and Company , in each case and (c)  the fee letter agreement, dated as of May  13, 2013 the Amendment No.  3 Effective Date, between Bank of America, N.A. and Company .

First Lien Debt : Total Debt that is secured by Liens that are not expressly subordinated to the Liens securing the Obligations pursuant to a customary intercreditor agreement; provided that Indebtedness under the Term Loan Facility shall be deemed to be First Lien Debt.

Fiscal Quarter : each fiscal quarter of Company and its Subsidiaries for accounting and tax purposes.

Fiscal Year : the fiscal year of Borrowers and Subsidiaries for accounting and tax purposes, ending on the last Saturday of each December.

Fixed Charge Coverage Ratio : the ratio, determined on a consolidated basis for Borrowers and Subsidiaries for the most recent twelve consecutive calendar months, of (a) EBITDA minus Capital Expenditures (except those financed with Borrowed Money other than Loans), to (b) Fixed Charges.

Fixed Charges : the sum of (a) cash interest expense ( regardless of whether accounted for under GAAP as an other than interest expense , any amount deposited in the in respect of the Specified Unsecured Prepetition Escrow Account after the date hereof shall be treated as an interest expense for purposes of this definition) Debt , plus (b) all principal payments in respect of Borrowed Money (other than ( x w ) mandatory prepayments of the Term Loan Facility in connection with asset sales, ( y x ) payments of the Obligations and , ( z y ) voluntary principal payments in respect of the Existing Term Loan Agreement, the Term Loan Facility and other Borrowed Money (to the extent, in the case of revolving Indebtedness, accompanied by a permanent reduction in commitments) other than Obligations , and (z)  principal payments in respect of the Specified Unsecured Prepetition Debt ), plus (c) the aggregate amount of net Federal, state, local and foreign income taxes and franchise and similar taxes paid in cash during such period, plus (d) cash Distributions made, plus (e) cash costs of surety bonds to the extent not deducted from Consolidated Net Income; provided that, notwithstanding anything contained herein to the contrary, solely for purposes of calculating the Payment Conditions, the amount described in clause (c)  above shall be determined on a pro forma basis by disregarding any reduction in the tax basis of current assets pursuant to Sections 108 and 1017 of the Internal Revenue Code as a result of the discharge of Indebtedness occurring in connection with the bankruptcy Proceeding for the four fiscal quarters of 2015; provided , further , that any reduction in clause (c)  above due to the immediately preceding proviso shall be limited to $10,000,000; provided , finally , that solely for determining whether Payment Conditions are satisfied, any Specified Payment and Distribution shall not be included in Fixed Charges. Fixed Charges, cash interest expense and principal payments in respect of Borrowed Money expensed or made, as the case may be, on the last day of a calendar quarter shall be deemed to have been made on the last day of the Fiscal Quarter ending on or around such calendar quarter end.

For purposes of determining the Fixed Charge Coverage Ratio, cash interest expense for each of the months ending on or prior to May  31, 2013 shall be deemed to be equal to the amounts set forth in the table below.

FLSA : the Fair Labor Standards Act of 1938.

Foreign Lender : any Lender that is not a U.S. Person.

 

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Foreign Plan : any employee benefit plan or arrangement (a) maintained or contributed to by any Obligor or Subsidiary that is not subject to the laws of the United States; or (b) mandated by a government other than the United States for employees of any Obligor or Subsidiary.

Foreign Subsidiary : a Subsidiary that is a “controlled foreign corporation” under Section 957 of the Code.

Fronting Exposure : a Defaulting Lender’s interest in LC Obligations, Swingline Loans and Protective Advances, except to the extent Cash Collateralized by the Defaulting Lender or allocated to other Lenders hereunder.

Full Payment : with respect to any Obligations, (a) the full and indefeasible cash payment thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding or which would accrue but for the Insolvency Proceeding (in each case, whether or not allowed in the proceeding); and (b) if such Obligations are LC Obligations or inchoate or are contingent in nature, the Cash Collateralization thereof (or delivery of a standby letter of credit acceptable to Agent (and in the case of LC Obligations, the related Issuing Bank) in its discretion, in the amount of required Cash Collateral). No Loans shall be deemed to have been paid in full unless all Commitments related to such Loans have terminated.

GAAP : generally accepted accounting principles in effect in the United States from time to time.

Governmental Approvals : all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and required reports to, all Governmental Authorities.

Governmental Authority : any federal, state, local, foreign or other agency, authority, body, commission, court, instrumentality, political subdivision, central bank, or other entity or officer exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions for any governmental, judicial, investigative, regulatory or self-regulatory authority (including any supra-national bodies such as the European Union or European Central Bank).

Guarantee and Collateral Agreement : the Guarantee and Collateral Agreement, dated as of the Closing Date among Borrowers, Agent and each Guarantor, as the same may be amended, supplemented or otherwise modified from time to time.

Guarantor Payment : as defined in Section  5.10.3 .

Guarantors : Borrowers and each Subsidiary Guarantor and each other Person that guarantees payment or performance of Obligations.

Guaranty : the guaranty set forth in the Guarantee and Collateral Agreement and each other guaranty agreement executed by a Guarantor in favor of Agent.

Hedging Agreement : any “swap agreement” as defined in Section 101(53B)(A) of the Bankruptcy Code.

Immaterial Subsidiary : on any date, any Subsidiary of Company that has had less than 2.5% of Consolidated Total Assets and less than 2.5% of annual consolidated revenues of Company and its Restricted Subsidiaries as reflected on the most recent financial statements delivered pursuant to Section  10.1.2 prior to such date; provided that (a) the aggregate assets and aggregate annual consolidated revenues of all Immaterial Subsidiaries shall at no time exceed 5.0% of Consolidated Total Assets or 5.0% of annual consolidated revenues of Company and its Subsidiaries, respectively, and (b) Borrower Agent will designate in writing to Agent from time to time the Subsidiaries which will cease to be treated as “Immaterial Subsidiaries” in order to comply with the foregoing limitations.

 

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Indebtedness : as applied to any Person, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind; (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments; (c) all obligations of such Person upon which interest charges are customarily paid; (d) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person; (e) all obligations of such Person issued or assumed as the deferred purchase price of property or services (excluding trade accounts payable incurred in the Ordinary Course of Business); (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on Property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed; (g) all guarantees or Contingent Obligations of or by such Person of Indebtedness of others; (h) all Capital Lease Obligations of such Person; (i) net obligations of such Person under any Hedging Agreements, valued at the Agreement Value thereof; (j) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Disqualified Stock of such Person or any other Person or any warrants, rights or options to acquire such Disqualified Stock, valued, in the case of redeemable preferred interests, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (k) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit, bank guarantees or similar instruments; and (l) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such person in respect thereof.

Indemnified Taxes : (a) Taxes, other than Excluded Taxes, imposed on or relating to any payment of an Obligation; and (b) to the extent not otherwise described in clause (a) , Other Taxes.

Indemnitees : Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees and Bank of America Indemnitees.

Insolvency Proceeding : any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an order for relief under the Bankruptcy Code, or any other insolvency, debtor relief or debt adjustment law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator or other custodian for such Person or any part of its Property; or (c) an assignment or trust mortgage for the benefit of creditors.

Intellectual Property : all intellectual and similar Property of a Person, including inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets, confidential or proprietary information and know-how, in each case, whether registered or not and including all applications for the same. , customer lists, know-how, software and databases; all embodiments or fixations thereof and all related documentation, applications, registrations and franchises; all licenses or other rights to use any of the foregoing; and all books and records relating to the foregoing.

Intellectual Property Claim: any claim or assertion (whether in writing, by suit or otherwise) that Company’s or a Subsidiary’s ownership, use, marketing, sale or distribution of any Inventory, Equipment, Intellectual Property or other Property violates another Person’s Intellectual Property.

Intellectual Property Notices : each notice of grant of Security Agreement: each trademark security interest in trademarks, notice of grant of agreement , patent security interest in patents and notice of grant of agreement and copyright security interest in copyrights , agreement substantially in the forms attached as exhibits to the Guarantee and Collateral Agreement, required to be executed and delivered by an Obligor under the terms of the Guarantee and Collateral Agreement.

 

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Intercreditor Agreement : the Intercreditor Agreement of even date herewith , dated as of April  7, 2017 , among Obligors, the Term Loan Agent and Agent, relating to the Term Loan Agreement and this Agreement, and any other intercreditor agreement, on substantially the same terms and otherwise reasonably satisfactory to Agent, entered into in connection with a refinancing of the Term Loan Agreement and to the extent such refinancing is permitted under this Agreement and the Intercreditor Agreement.

Interest Period : as defined in Section  3.1.3 .

Inventory : as defined in the UCC, including all goods intended for sale, lease, display or demonstration; all work in process; and all raw materials, and other materials and supplies of any kind that are or could be used in connection with the manufacture, printing, packing, shipping, advertising, sale, lease or furnishing of such goods, or otherwise used or consumed in a Borrower’s business (but excluding Equipment).

Inventory Formula Amount : the lesser of (i) 75% of the Value of Eligible Inventory; and (ii) 85% of the NOLV Percentage of the Value of Eligible Inventory.

Inventory Reserve : reserves established by Agent in its Reasonable Credit Judgment to reflect factors that may negatively impact the Value of Inventory, including change in salability, obsolescence, seasonality, theft, shrinkage, imbalance, change in composition or mix, markdowns and vendor chargebacks.

Investment : an Acquisition; an acquisition of record or beneficial ownership of any Equity Interests of a Person; or a loan, advance or capital contribution to or other investment in a Person.

IP Assignment: a collateral assignment or security agreement pursuant to which an Obligor grants a Lien on its Intellectual Property to Agent, as security for its Obligations.

IRS : the United States Internal Revenue Service.

Issuing Bank : Bank of America or ( including any Affiliate Lending Office of Bank of America ) , or any replacement issuer appointed pursuant to Section  2.2.4 .

Issuing Bank Indemnitees : Issuing Bank and its officers, directors, employees, Affiliates, agents and attorneys.

JPM Letter of Credit : letter of credit #672484 issued by JPMorgan in favor of Employers Insurance Company of Wausau, dated as of June  1, 2013 and periodically extended prior to the date hereof with a current outstanding balance of $250,000 and expiring on September  1, 2013.

LC Application : an application by Borrower Agent to Issuing Bank for issuance of a Letter of Credit, in form and substance satisfactory to Issuing Bank and Agent.

LC Conditions : the following conditions necessary for issuance of a Letter of Credit: (a) each of the conditions set forth in Section  6 ; (b) after giving effect to such issuance, total LC Obligations do not exceed the Letter of Credit Subline, no Overadvance exists and Revolver Usage does not exceed the Borrowing Base; (c) the Letter of Credit and payments thereunder are denominated in Dollars or other currency satisfactory to Agent and Issuing Bank; and (d) the purpose and form of the proposed Letter of Credit are satisfactory to Agent and Issuing Bank in their discretion.

LC Documents : all documents, instruments and agreements (including LC Requests and LC Applications) delivered by Borrowers or any other Person to Issuing Bank or Agent in connection with any Letter of Credit.

 

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LC Obligations : the sum of (a) all amounts owing by Borrowers for drawings under Letters of Credit; and (b) the Stated Amount of all outstanding Letters of Credit.

LC Request : a request for issuance of a Letter of Credit, to be provided by Borrower Agent to Issuing Bank, in form satisfactory to Agent and Issuing Bank.

Lead Arrangers Arranger : as defined in the Preamble hereto.

Lender Indemnitees : Lenders and Secured Bank Product Providers, and their officers, directors, employees, Affiliates, agents and attorneys.

Lenders : as defined in the preamble lenders party to this Agreement , ( including Agent in its capacity as a provider of Swingline Loans ) and any other Person who hereafter becomes a “Lender” pursuant to an Assignment and Acceptance , including any Lending Office of the foregoing .

Lending Office : the office (including any domestic or foreign Affiliate or branch) designated as such by the applicable Lender at the time it becomes party to this Agreement or thereafter a Lender or Issuing Bank by notice to Agent and Borrower Agent.

Letter of Credit : any standby or documentary letter of credit, foreign guaranty, documentary bankers acceptance , indemnity, reimbursement agreement or similar instrument issued by Issuing Bank for the account or benefit of a Borrower or Affiliate of a Borrower; provided that, to the extent that any Letter of Credit is issued for the benefit of an Affiliate of a Borrower, each Borrower shall be jointly and severally liable for all reimbursement obligations under such Letter of Credit.

Letter of Credit Subline : $20,000,000.

LIBOR : for any Interest Period, the per annum rate of interest (rounded up, if necessary, to the nearest 1/8th of 1%) determined by Agent at approximately 11:00 a.m. (London time) two Business Days prior to commencement of such Interest Period an interest period , for a term comparable equivalent to such Interest Period period , equal to (a)  the British Bankers Association LIBOR London Interbank Offered Rate , or comparable or successor thereto if such association is no longer making such rate available rate approved by Agent , as published by on the applicable Reuters screen page (or other commercially available source designated by Agent ); or (b)  if the rate described in clause (a)  is unavailable for any reason, the interest rate at which Dollar deposits in the approximate amount of the Loan would be offered by Agent s London branch to major banks in the London interbank Eurodollar market. from time to time); provided, that any comparable or successor rate shall be applied by Agent, if administratively feasible, in a manner consistent with market practice; provided, further, that in no event shall LIBOR be less than zero.

LIBOR Loan : a Loan that bears interest based on LIBOR.

License : any material written license or written agreement under which an Obligor or any of its Subsidiaries is granted the right or otherwise is authorized to use Intellectual Property in connection with any manufacture, marketing, distribution or disposition of Collateral, that any use of Property or any other conduct of its business, that requires a guaranteed minimum payment of Royalties in excess of $ 250 ,000 500,000 per year.

Licensor : any Person from whom a Borrower an Obligor obtains the right to use any material Intellectual Property under a license .

Lien : a Person’s interest in Property securing an obligation owed to, or a claim by, such Person, including any lien, security interest, pledge, hypothecation, assignment, trust, reservation, encroachment, easement, right-of-way, covenant, condition, restriction, leases, or other title exception or encumbrance.

 

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Lien Waiver : an agreement, in form and substance reasonably satisfactory to Agent, by which (a) for any material Collateral located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to permit Agent to enter upon the premises and remove the Collateral or to use the premises to store or dispose of the Collateral; (b) for any Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any Documents in its possession relating to the Collateral as agent for Agent, and agrees to deliver the Collateral to Agent upon request; (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges Agent’s Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver the Collateral to Agent upon request; and (d) for any Collateral subject to a Licensor’s Intellectual Property rights, the Licensor grants to Agent the right, vis-à-vis such Licensor, to enforce Agent’s Liens with respect to the Collateral, including the right to dispose of it with the benefit of the Intellectual Property, whether or not a default exists under any applicable License. Notwithstanding anything herein to the contrary, Lien Waivers shall be deemed delivered for 30 days following the Closing Date with respect to any landlord, warehouseman, processor, shipper, customs broker, freight forwarder, repairman, mechanic, bailee or Licensor that executed and delivered the equivalent of a Lien Waiver under the ABL DIP (as defined in the definition of DIP Facilities ).

Loan : a loan made pursuant to Section  2.1 , and any Swingline Loan, Overadvance Loan or Protective Advance.

Loan Documents : this Agreement, the Security Documents, the Intercreditor Agreement, each Borrowing Base Certificate, each Compliance Certificate, the Fee Letters, each LC Document Real Estate Related Document , Borrower Materials, any promissory notes issued pursuant to this Agreement and any other note, document, instrument or agreement now or hereafter delivered by an obligor or other Person to Agent or a Lender in connection with any transactions relating hereto.

Loan Year : each 12 month period commencing on the Closing Date and on each anniversary of the Closing Date.

Margin Stock : as defined in Regulation U of the Board of Governors.

Material Adverse Effect : the effect of any event or circumstance that, taken alone or in conjunction with other events or circumstances, (a) has or could be reasonably expected to have a material adverse effect on the business, assets, liabilities, operations or financial condition of Company, individually or the Obligors, taken as a whole, on the value of any material Collateral, on the enforceability of any Loan Documents, or on the validity or priority of Agent’s Liens on any Collateral; (b) materially impairs the ability of an Obligor to perform its obligations under the Loan Documents, including repayment of any Obligations; or (c) otherwise materially impairs the ability of Agent or any Lender to enforce or collect any Obligations or to realize upon any Collateral.

Material Contract : any agreement or arrangement to which a Borrower or Subsidiary is party (other than the Loan Documents) (a) for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect; or (b) that relates to Subordinated Debt, or to Indebtedness in an aggregate amount of $2,500,000 or more.

Moody’s : Moody’s Investors Service, Inc., and its successors.

Mortgage : a mortgage or deed of trust in which an Obligor grants a Lien on its Real Estate to Agent, as security for the repayment of the Obligations.

 

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Multiem ployer Plan : any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Obligor or ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

Net First Lien Leverage Ratio : on any date, the ratio of (a)  First Lien Debt on such date minus Unrestricted Cash, to (b)  EBITDA for the period of four consecutive Fiscal Quarters most recently ended on or prior to such date.

Net Proceeds : with respect to an Asset Disposition, cash proceeds (including cash proceeds subsequently received (but only as and when received) in respect of noncash consideration initially receive), net of (i) selling expenses (including broker’s and advisors fees or commissions, legal fees, transfer and similar taxes and Borrowers’ good faith estimate of income taxes paid or payable in connection with such sale), (ii) amounts provided as a reserve, in accordance with GAAP, against any liabilities under any indemnification obligations or purchase price adjustment associated with such Asset Disposition ( provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Proceeds) and (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money which is secured by the asset sold in such Asset Sale and (A) which is required to be repaid with such proceeds or (B) to the extent such Indebtedness is required to be repaid because the asset sold is removed from a borrowing base supporting such Indebtedness (in each case, other than (x) Indebtedness hereunder and (y) any such Indebtedness assumed by the purchaser of such asset).

Net Senior Leverage Ratio: on any date, the ratio of (a)  Senior Debt on such date minus Unrestricted Cash, to (b)  EBITDA for the period of four consecutive Fiscal Quarters most recently ended on or prior to such date.

Net Total Leverage Ratio : on any date, the ratio of (a) Total Debt on such date minus Unrestricted Cash, to (b) EBITDA for the period of four consecutive Fiscal Quarters most recently ended on or prior to such date.

NOLV Percentage : the net orderly liquidation value of Inventory ( provided that Inventory consisting of raw materials, Eligible In-Transit Inventory and Eligible Slow Moving Inventory shall each be subject to a separate NOLV Percentage), expressed as a percentage, expected to be realized at an orderly, negotiated sale held within a reasonable period of time, net of all liquidation expenses, as determined from the most recent appraisal of Borrowers’ Inventory performed by an appraiser and on terms satisfactory to Agent.

Non-Extension Notice Date : as defined in Section 2.2.1(e) .

Notice of Borrowing : a Notice of Borrowing to be provided request by Borrower Agent to request for a Borrowing of Revolver Loans, in form satisfactory to Agent.

Notice of Conversion/Continuation : a Notice of Conversion/Continuation to be provided request by Borrower Agent to request for a conversion or continuation of any Loans a Loan as a LIBOR Loans Loan , in form satisfactory to Agent.

Obligations : all (a) principal of and premium, if any, on the Loans, (b) LC Obligations and other obligations of Obligors with respect to Letters of Credit, (c) interest, expenses, fees, indemnification obligations, Extraordinary Expenses and other amounts payable by Obligors under Loan Documents, including interest that accrues following the commencement of an Insolvency Proceeding or which would accrue but for the commencement of such Insolvency Proceeding (whether or not allowed in such proceeding), (d) Secured Bank Product Obligations, and (e) other Indebtedness, obligations and liabilities of any kind owing by Obligors pursuant to the Loan Documents, including obligations under the Secured

 

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Guarantee (as defined in the Guarantee and Collateral Agreement), whether now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several; provided , that Obligations of an Obligor shall not include its Excluded Swap Obligations.

Obligor : each Borrower, Guarantor, or other Person that is liable for payment of any Obligations or that has granted a Lien in favor of Agent on its assets to secure any Obligations.

OFAC : Office of Foreign Assets Control of the U.S. Treasury Department.

Ordinary Course of Business : the ordinary course of business of any Borrower or Subsidiary, undertaken in good faith and consistent with Applicable Law and past practices.

Organic Documents : with respect to any Person, its charter, certificate or articles of incorporation, bylaws, articles of organization, limited liability agreement, operating agreement, members agreement, shareholders agreement, partnership agreement, certificate of partnership, certificate of formation, voting trust agreement, or similar agreement or instrument governing the formation or operation of such Person.

Original Lead Arrangers: Merrill Lynch, Pierce, Fenner  & Smith Incorporated and Suntrust Robinson Humphrey, Inc., as joint lead arrangers.

OSHA : the Occupational Safety and Hazard Act of 1970.

Other Connection Taxes : Taxes imposed on a Recipient due to a present or former connection between it and the taxing jurisdiction (other than connections arising from the Recipient having executed, delivered, become party to, performed obligations or received payments under, received or perfected a Lien or engaged in any other transaction pursuant to, enforced, or sold or assigned an interest in, any Loan or Loan Document).

Other Taxes : all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a Lien under, or otherwise with respect to, any Loan Document, except Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 13.4(c) ).

Overadvance : as defined in Section  2.1.5 .

Overadvance Loan : a Base Rate Revolver Loan made when an Overadvance exists or is caused by the funding thereof.

Participant : as defined in Section  13.2 .

Patriot Act : the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).

Payment Conditions : with respect to the applicable specified activity on any date of determination, (a) no Default or Event of Default exists or would result from the specified activity; (b) Specified Availability on the date of such determination, before and after giving pro forma effect to such specified activity, is greater than or equal to the greater of (i) 20 15 % of the Commitments at such time and (ii) $ 20,000,000 18,750,000 ; (c) the average daily amount of Specified Availability for the 60-day period immediately preceding such specified activity shall have been greater than or equal to the greater of (i)  20 15 % of the Commitments at such time and (ii) $ 20,000,000 18,750,000 , calculated on a

 

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pro forma basis assuming such specified activity occurred on the first day of such 60-day period; (d) Borrowers shall be in compliance with a Fixed Charge Coverage Ratio for the trailing twelve-month period ended immediately prior to such date of 1.0 to 1.0, determined on a pro forma basis assuming such specified activity occurred on the first day of such period; and (e) Borrowers shall have delivered a certificate to Agent certifying as to clauses (a)  through (d) above and setting forth projections prepared in good faith demonstrating that Specified Availability shall be greater than or equal to the greater of (i) 20 15 % of the Commitments at such time and (ii) $ 20,000,000 18,750,000 for the greater of (x) the 90-day period following such specified activity and (y) the period following such specified activity up to and including August 31 of such year (or the following year if such specified activity occurs after August 31 of such year).

Payment Item : each check, draft or other item of payment payable to a Borrower, including those constituting proceeds of any Collateral.

PBGC : the Pension Benefit Guaranty Corporation.

Pension Plan : any employee pension benefit plan (as defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Obligor or ERISA Affiliate or to which such Obligor or ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the preceding five plan years.

Perfection Certificate : as defined in the Guarantee and Collateral Agreement.

Permitted Acquisition : any Acquisition as long as (a) no Default or Event of Default exists or is caused thereby; (b) the Acquisition is consensual and such Acquisition and all transactions related thereto shall be consummated in accordance with Applicable Law; (c) the assets, business or Person being acquired is useful or engaged in the same or a similar line of business as Borrowers and Subsidiaries ; (d)  and is located or organized within the United States; (d)  the assets, business or Person being acquired has EBITDA for the 12 month period most recently ended of no less than negative $3,000,000; provided that EBITDA for purposes of this clause (d)  shall be calculated after giving pro forma effect to such Acquisition (including pro forma adjustments arising out of events which are directly attributable to such Acquisition, are factually supportable, and are expected to have a continuing impact, in each case to be mutually and reasonably agreed upon by Company and Agent); (e)  no Indebtedness or Liens are assumed or incurred, other than Permitted Indebtedness and Permitted Liens; provided that no Liens shall be permitted on acquired Inventory or Accounts at the time of such Acquisition; ( e f ) the Payment Conditions are satisfied; ( f g ) if, as a result of such Acquisition, a new Subsidiary is formed or acquired, Obligors shall comply with all applicable provisions of Sections 10.1.14 and 5.10 ; ( g h ) Obligors shall take such actions as may be required or reasonably requested to ensure that Agent, for the ratable benefit of the Lenders and other Secured Parties, has a perfected security interest, to the extent contemplated in the Guarantee and Collateral Agreement and with the priority contemplated in the Intercreditor Agreement, in any assets acquired in such Acquisition and required to become Collateral pursuant to Section  10.1.14 or any other Loan Document; and ( f i ) Borrowers use commercially reasonable efforts to deliver to Agent, at least 10 Business Days prior to the Acquisition (but in any event shall deliver to Agent within 1 5 Business Day Days prior to the Acquisition), copies of all material agreements relating thereto and a certificate, in form and substance satisfactory to Agent, stating that the Acquisition is a “Permitted Acquisition” and demonstrating compliance with the foregoing requirements.

Permitted Asset Disposition : as long as no Default or Event of Default exists and all Net Proceeds are remitted to Agent to the extent required by Section  5.2 or the other provisions of the Loan Documents and subject to the terms of the Intercreditor Agreement, an Asset Disposition that is

 

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(a) dispositions or abandonments of damaged, worn-out, obsolete, unmerchantable or surplus equipment and property (including Intellectual Property) Equipment , in each case in the Ordinary Course of Business;

(b) dispositions of Inventory in the Ordinary Course of Business;

(c) dispositions of Cash Equivalents in the Ordinary Course of Business;

(d) dispositions between and among Borrowers and the Subsidiaries; provided that if the transferor in such a transaction is an Obligor, then either (x) the transferee must be an Obligor, (y) the aggregate amount of all dispositions made pursuant to this clause (d)(y) shall not exceed $2,500,000 in the aggregate during the term of this Agreement, or (z) the portion of any such Disposition made for less than fair market value and any non-cash consideration received in exchange for such Disposition shall in each case constitute an Investment in such Subsidiary and must be otherwise permitted hereunder;

(e) dispositions solely among Subsidiaries that are not Obligors;

(f) the sale of services, or the termination of any contracts, in each case in the Ordinary Course of Business;

(g) the granting of Liens permitted by Section  10.2.2 ;

(h) the sale or discount, in each case without recourse, of accounts receivable arising in the Ordinary Course of Business and not included in the most recently delivered Borrowing Base Certificate delivered hereunder, but only in connection with the compromise or collection thereof;

(i) any involuntary loss, damage or destruction of property, or any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition or use of property;

(j) the leasing or subleasing of assets of Borrowers or their Subsidiaries in the Ordinary Course of Business;

(k) the sale or issuance of Equity Interests (other than Disqualified Stock) of Company not resulting in a Change of Control ; , so long as ( i )  such disposition is made at fair market value, (ii)  in any such disposition, at least 90% of the purchase price is paid in cash, and the Net Proceeds thereto are applied against the Loans in accordance with, and to the extent required by, Section  5.2 ;

(l) (i) the lapse of registered patents, trademarks, copyrights and other Intellectual Property of Borrowers and their Subsidiaries to the extent not economically desirable in the conduct of their business or (ii) the abandonment of patents, trademarks, copyrights , or other Intellectual Property rights in the Ordinary Course of Business ; so long as (in each case under clauses ( i )  and (ii)), (x) with respect to copyrights, such copyrights are not material revenue generating copyrights, and (y)  such lapse is not materially adverse to the interests of the Secured Parties hereunder;

(m) the making of Distributions that are expressly permitted to be made pursuant to Section  10.2.4 of this Agreement;

(n) a Carson- Dellosa Drag-Along Sale [reserved ; ]

(o) contributions of assets to joint ventures and other dispositions constituting Investments , in each case to the extent permitted under Section  10.2.5 ;

 

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(p) dispositions of Investments in joint ventures and other non-wholly owned entities to the extent required by, or made pursuant to buy/sell arrangements between the parties set forth in, joint venture arrangements, shareholder agreements, and similar binding agreements; [reserved;]

(q) dispositions constituting the licensing or cross-licensing , in any case, on an non-exclusive basis, of Intellectual Property rights in the Ordinary Course of Business;

(r) sale leaseback transactions with respect to property having a fair market value not to exceed $5,000,000 in the aggregate during the term of this Agreement;

(s) a disposition not in the Ordinary Course of Business of assets (other than ABL Priority Collateral) so long as the Net Proceeds thereof are applied in accordance with the Term Loan Facility or any replacement thereof to the extent required thereby; [reserved;]

(t) a disposition not in the Ordinary Course of Business of assets (other than ABL Priority Collateral) at any time in an amount not to exceed the greater of $10,000,000 and 2.5% of Consolidated Total Assets in any Fiscal Year [reserved ; ]

(u) a Specified Asset Disposition so long as (i) the Payment Conditions are satisfied, (ii) the Net Total Senior Leverage Ratio calculated immediately after such disposition is not greater than the Net Total Senior Leverage Ratio calculated immediately prior to such disposition, and (iii )  the Net First Lien Leverage Ratio calculated immediately after such disposition is not greater than the Net First Lien Leverage Ratio calculated immediately prior to such disposition, (iv ) any proceeds of such disposition constituting ABL Priority Collateral are used to repay the Loans without any Commitment reduction, ( v iv ) immediately prior to the disposition, Borrowers deliver to Agent an updated Borrowing Base Certificate removing the relevant assets and demonstrating that the Payment Conditions are still satisfied and demonstrating that Availability shall be greater than or equal to the greater of (x) 20 15 % of the Commitments at such time and (y) $ 20,000,000 18,750,000 for the twelve-month period following such disposition; and

(v) as otherwise approved in writing by Agent and the Required Lenders;

(w) Asset Dispositions in each Fiscal Year during the term of this Agreement in an amount of up to $250,000, but not to exceed $750,000 in the aggregate during the term of this Agreement;

provided that in any Asset Disposition permitted under clauses (a)  through (v) (other than under clauses  (d) , (e), ( i ) , (l) , (m) , ( n), ( o) , (q) and ( p r ) ) above, Borrowers receive fair market value (as determined by Borrowers in good faith) and at least 75% of the proceeds consist of cash or Cash Equivalents ( provided further , that the following shall be deemed to be cash: (1)  any liabilities (as shown on Company s most recent balance sheet provided hereunder or in the footnotes thereto) of an Obligor, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Asset Disposition and for which Company and all of its Subsidiaries shall have been validly released by all applicable creditors in writing and (2)  any securities received by the applicable Obligor from such transferee that are converted by such Obligor into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days following the closing of the applicable Asset Disposition. .

Permitted Contingent Obligations : Contingent Obligations (a) arising from endorsements of Payment Items for collection or deposit in the Ordinary Course of Business; (b) arising from Hedging Agreements permitted hereunder; (c) existing on the Closing Amendment No.  3 Effective Date and set forth in Schedule 10.2.1 , and any extension or renewal thereof that does not increase the amount of such Contingent Obligation when extended or renewed; (d) incurred in the Ordinary Course of Business with respect to surety, appeal or performance bonds, or other similar obligations; (e) arising from customary indemnification obligations in favor of purchasers in connection with dispositions permitted hereunder; (f) arising under the Loan Documents or the Term Loan Facility; or (g) in an aggregate amount of $2,500,000 or less at any time.

 

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Permitted First Lien Debt : Indebtedness incurred by Borrowers for Borrowed Money; provided that (a)  such Indebtedness satisfies the requirements set forth below and (b)  Company shall have delivered to Agent a certificate of a Senior Officer ( i )  designating such Indebtedness as Permitted First Lien Debt , (ii) specifying the initial principal amount thereof, (iii)  identifying the trustee, administrative agent or collateral agent (or equivalent agent or representative of the creditors) thereunder and (iv)  certifying that such Indebtedness satisfies the requirements set forth in this definition and that after giving effect to the incurrence thereof no Default or Event of Default shall have occurred and be continuing. No Indebtedness shall be Permitted First Lien Debt at any time unless it satisfies the following requirements at such time:

( i ) the final maturity date of any such Indebtedness shall be no earlier than 91 days following the Revolver Termination Date;

(ii) none of the obligors or guarantors with respect to such Indebtedness shall be a Person that is not an Obligor;

(iii) such Indebtedness shall not require any scheduled payments of principal prior to the Revolver Termination Date, other than any such scheduled payments that, during any one-year period after the date of issuance or incurrence of such Indebtedness, together with all other scheduled payments of principal in respect of Permitted Ratio Debt during such one-year period, do not exceed 1% of the initial principal amount of all Permitted Ratio Debt outstanding at the time such Indebtedness was issued, after giving effect to such issuance;

(iv) such Indebtedness shall not be subject to any terms requiring any obligor of such Indebtedness to pay, prepay, purchase, repurchase, redeem, retire, cancel or terminate (or offer to do any of the foregoing) such Indebtedness other than (A)  at maturity, (B)  pursuant to scheduled payments of principal that comply with clause (iii)  above and (C)  customary mandatory prepayments (1)  in the event of a change in control (or similar event), (2) in the event of an asset sale (or similar event, including condemnation or casualty), subject to customary reinvestment rights; provided such prepayment shall not apply to the sale or disposition of ABL Priority Collateral, and (3)  in the case of any Indebtedness that constitutes a term loan, on account of annual excess cash flow on terms approved by Agent (such approval not to be unreasonably withheld); provided that any mandatory prepayments on account of annual excess cash flow shall only be permitted if the Payment Conditions are satisfied; and

(v) such Indebtedness (A)  shall not be secured on a first-priority basis by any assets of any Obligor other than assets that do not constitute ABL Priority Collateral and (B)  if secured by the Collateral, shall be subject to the Intercreditor Agreement or another intercreditor agreement reasonably satisfactory to Agent.

Permitted Indebtedness : as defined in Section  10.2.1 .

Permitted Lien : as defined in Section  10.2.2 .

Permitted Purchase Money Debt : Purchase Money Debt of Borrowers and Subsidiaries that is unsecured or secured only by a Purchase Money Lien, as long as the aggregate amount together with all Capital Lease Obligations does not exceed $ 15 ,000,000 2,000,000 at any time and its incurrence does not violate Section  10.2.3 .

 

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Permitted Ratio Debt : at any time, the aggregate principal amount of ( i )  Permitted First Lien Debt and (ii)  Permitted Unsecured Debt then outstanding.

Permitted Surety Bonds : unsecured guarantees and reimbursement obligations incurred in the Ordinary Course of Business with respect to surety and appeal bond, performance bonds, bid bonds, appeal bonds, completion guarantee and similar obligations.

Permitted Unsecured Debt : Indebtedness incurred by Borrowers for Borrowed Money; provided that (a)  such Indebtedness satisfies the requirements set forth below and (b)  Company shall have delivered to Agent a certificate of a Senior Officer ( i )  designating such Indebtedness as Permitted Unsecured Debt , (ii) specifying the initial principal amount thereof, (iii)  identifying the trustee, administrative agent or collateral agent (or equivalent agent or representative of the creditors) thereunder and (iv)  certifying that such Indebtedness satisfies the requirements set forth in this definition and that after giving effect to the incurrence thereof no Default or Event of Default shall have occurred and be continuing. No Indebtedness shall be Permitted Unsecured Debt at any time unless it satisfies the following requirements at such time:

( i ) the final maturity date of any such Indebtedness shall be no earlier than 91 days following the Revolver Termination Date;

(ii) none of the obligors or guarantors with respect to such Indebtedness shall be a Person that is not an Obligor;

(iii) such Indebtedness shall not require any scheduled payments of principal prior to the Revolver Termination Date, other than any such scheduled payments that, during any one-year period after the date of issuance or incurrence of such Indebtedness, together with all other scheduled payments of principal in respect of Permitted Ratio Debt during such one-year period, do not exceed 1% of the initial principal amount of all Permitted Ratio Debt outstanding at the time such Indebtedness was issued, after giving effect to such issuance;

(iv) such Indebtedness shall not be subject to any terms requiring any obligor of such Indebtedness to pay, prepay, purchase, repurchase, redeem, retire, cancel or terminate (or offer to do any of the foregoing) such Indebtedness other than (A)  at maturity, (B)  pursuant to scheduled payments of principal that comply with clause (iii)  above and (C)  customary mandatory prepayments (1)  in the event of a change in control (or similar event), (2) in the event of an asset sale (or similar event, including condemnation or casualty), subject to customary reinvestment rights; provided such prepayment shall not apply to the sale or disposition of ABL Priority Collateral, and (3)  in the case of any Indebtedness that constitutes a term loan, on account of annual excess cash flow on terms approved by Agent (such approval not to be unreasonably withheld); provided that any mandatory prepayments on account of annual excess cash flow shall only be permitted if the Payment Conditions are satisfied; and

(v) such Indebtedness shall be unsecured.

Person : any individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, Governmental Authority or other entity.

 

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Plan : any employee benefit plan (as defined in Section 3(3) of ERISA) established by an Obligor or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, an ERISA Affiliate.

Plan of Reorganization : the Debtors’ Second Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as filed with the Bankruptcy Court on May 23, 2013.

Platform : as defined in Section  14.3.3 .

Prepetition Escrow Account : the escrow account holding the Prepetition Escrowed Amounts.

Prepetition Escrow Agreement : the Escrow Agreement, dated as of February  27, 2013, among Borrower, Bayside Finance LLC, as administrative agent for the Prepetition Term Loan Agreement (as defined therein), U.S. Bank National Association, as administrative agent for the Credit Agreement (as defined therein) and U.S. Bank National Association, as escrow agent.

Prepetition Escrow Reserve : so long as the Escrow Agreement is in effect, at all times the aggregate amount of (a)  an amount equal to one month of accrued interest in connection with the Prepetition Escrowed Amounts, plus (b)  accrued and unpaid professional fees and expenses.

Prepetition Escrowed Amounts : as defined in the Plan of Reorganization.

Prime Rate : the rate of interest announced by Bank of America from time to time as its prime rate. Such rate is set by Bank of America on the basis of various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate. Any change in such rate publicly announced by Bank of America shall take effect at the opening of business on the day specified in the announcement.

Pro Forma Transaction : any Investment that results in a person becoming a Subsidiary, any Permitted Acquisition, any Asset Disposition that results in a Subsidiary ceasing to be a Subsidiary, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person or any Asset Disposition of a business unit, line of business or division of Borrowers or any Subsidiary, in each case whether by merger, consolidation, amalgamation or otherwise and any other transaction that by the terms of this Agreement requires a financial ratio or test to be determined on a Pro Forma Basis or to be given pro forma effect .

Pro Rata : with respect to any Lender, a percentage (rounded to the ninth decimal place) determined (a) by dividing the amount of such Lender’s Commitment by the aggregate outstanding Commitments; or (b) following termination of the Commitments, by dividing the amount of such Lender’s Loans and LC Obligations by the aggregate outstanding Loans and LC Obligations or, if all Loans and LC Obligations have been paid in full and/or Cash Collateralized, by dividing such Lender’s and its Affiliates’ remaining Obligations by the aggregate remaining Obligations.

Properly Contested : with respect to any obligation of an Obligor, (a) the obligation is subject to a bona fide dispute regarding amount or such Obligor’s liability to pay; (b) the obligation is being properly contested in good faith by appropriate proceedings promptly instituted and diligently pursued; (c) appropriate reserves have been established in accordance with GAAP; (d) non-payment during such contest could not have a Material Adverse Effect, nor result in forfeiture or sale of any material assets of such Obligor; (e) no Lien, other than any Permitted Lien, is imposed on assets of such Obligor, unless bonded and stayed to the reasonable satisfaction of Agent in its discretion; and (f) if the obligation results from entry of a judgment or other order, such judgment or order is stayed pending appeal or other judicial review.

 

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Property : any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

Protective Advances : as defined in Section  2.1.6 .

Purchase Money Debt : (a) Indebtedness (other than the Obligations) for payment of any of the purchase price of the acquisition, construction or improvement of any fixed or capital assets; (b) Indebtedness (other than the Obligations) incurred within 180 90 days before or after the acquisition or completion of such construction or improvement of any fixed assets or capital assets, for the purpose of financing any of the purchase price thereof; and (c) any renewals, extensions or refinancings (but not increases) thereof.

Purchase Money Lien : a Lien that secures Purchase Money Debt, encumbering only the fixed assets acquired with such Indebtedness and constituting a Capital Lease or a purchase money security interest under the UCC.

Qualified ECP : an Obligor with total assets exceeding $10,000,000, or that constitutes an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” under Section 1a(18)(A)(v)(II) of such act.

RCRA : the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991i).

Real Estate : all right, title and interest (whether as owner, lessor or lessee) in any land and/or any buildings, structures, parking areas or other improvements thereon together with any related real Property interests related thereto.

Reasonable Credit Judgment : Agent’s commercially reasonable credit judgment (from the perspective of a secured, asset-based lender) exercised, in good faith and, as it relates to the establishment or increase of Availability Reserves, the determination of the Dilution Percent, the requirement for field examinations and appraisals, or the adjustment or imposition of exclusionary criteria; provided that (a) such establishment, increase, adjustment or imposition after the Closing Date be based on the analysis of facts or events first occurring or first discovered by Agent, after the Closing Date or that are materially different from facts or events occurring or known to Agent, on the Closing Date; (b) the imposition or increase of any Availability Reserve shall not duplicate (x) the exclusionary criteria set forth in the definitions of “Eligible Accounts,” “Eligible Credit Card Account” and “Eligible Inventory,” as applicable (and vice versa), or (y) any reserves deducted in computing book value or net orderly liquidation value; and (c) the amount of any such Availability Reserve so established or the effect of any adjustment or imposition of exclusionary criteria shall bear a reasonable relationship to the effects that form the basis thereunder. Subject to the foregoing, in exercising such judgment, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security of the Collateral.

Recipient : Agent, Issuing Bank, any Lender or any other recipient of a payment to be made by an Obligor under a Loan Document or on account of an Obligation.

Refinancing Conditions : the following conditions for Refinancing Debt: (a) it is in an aggregate principal amount that , together with the undrawn commitments therefor , does not exceed the sum of the principal amount of the Indebtedness and the undrawn commitments therefor , in each case being extended, renewed or refinanced (solely for purposes of this definition, “ Refinanced Debt ”) plus accrued interest (including any interest paid in kind), fees and premiums (if any) thereon and reasonable fees and expenses associated with the refinancing; (b) the Refinanced Debt shall be repaid, defeased or satisfied and discharged on a dollar-for-dollar basis (or such lesser basis that results in repayment in full of such Refinanced Debt), and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, substantially concurrently with such refinancing; (c) it has a final maturity no sooner than, a

 

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weighted average life no less than, and an interest rate no greater than, the Refinanced Debt; (d) if it is secured, the terms and conditions relating to collateral for such Indebtedness, taken as a whole, shall be no more favorable to the investors providing such Indebtedness than the terms and conditions with respect to the collateral for the Refinanced Debt (and the Liens on any collateral securing such Indebtedness shall have the same (or lesser) priority as the Refinanced Debt relative to the Liens on the Collateral securing the Obligations) and if such Refinancing Debt is secured by the Collateral, it shall be subject to the Intercreditor Agreement; (e) it is subordinated to the Obligations at least to the same extent as the Indebtedness being extended, renewed or refinanced; (f) such Refinancing Debt shall be otherwise on terms and conditions (other than interest, fees, premiums, funding discounts, optional prepayment provisions, guarantees, collateral and subordination) that are, taken as a whole, in the reasonable good faith determination of Borrowers, not materially less favorable to Borrowers than those applicable to the Refinanced Debt; (g) no additional Lien is granted to secure it; (h) no additional Person is obligated on such Indebtedness; and (i) upon giving effect to it, no Default or Event of Default exists.

Refinancing Debt : Borrowed Money or any commitment to extend credit that is the result of an extension, renewal or refinancing of Indebtedness permitted under Section 10.2.1(b) , (d) (other than Indebtedness consisting of letters of credit issued by Wells Fargo and listed on Schedule 10.2.1 ), (f) , ( i ) or (j) , or (f)  or any commitment to extend credit in connection with the foregoing .

Reimbursement Date : as defined in Section  2.2.2 .

Related Real Estate Documents : with respect to any Real Estate subject to a Mortgage, the following, in form and substance satisfactory to Agent and received by Agent for review at least 15 days prior to the effective date of the Mortgage: (a)  a mortgagee title policy (or binder therefor ) covering Agent s interest under the Mortgage, by an insurer acceptable to Agent ( provided , however , so long as the Term Loan Facility is in effect, that any insurer deemed acceptable to the Term Loan Agent pursuant to the Term Loan Facility shall be acceptable to Agent hereunder) which must be fully paid on such effective date and which will be in an amount reasonably satisfactory to the Term Loan Agent pursuant to the Term Loan Facility, but in no event exceeding One Hundred Ten Percent (110%) of the value of such property as determined by the appraisal report delivered pursuant to clause (d)  herein or in the event that no such appraisal is ordered, as reasonably agreed upon by the applicable Borrower and the Term Loan Agent pursuant to the Term Loan Facility; (b)  a survey of the Real Estate, in form and substance reasonably satisfactory to Agent, certified by a licensed surveyor acceptable to Agent ( provided , however , so long as the Term Loan Facility is in effect, that any survey and surveyor acceptable to the Term Loan Agent pursuant to the Term Loan Facility shall be deemed acceptable to Agent hereunder); (c) a life-of-loan flood hazard determination and, if the Real Estate is located in a special flood hazard area, an acknowledged notice to the applicable Borrower and flood insurance by an insurer acceptable to Agent ( provided , however , so long as the Term Loan Facility is in effect, that any survey and surveyor acceptable to the Term Loan Agent pursuant to the Term Loan Facility shall be deemed acceptable to Agent hereunder); (d) if requested by Agent, an appraisal complying with the requirements of the Financial Institutions Reform, Recovery and Enforcement Act of 1989, by a third-party appraiser acceptable to Agent, and in form and substance satisfactory to Required Lenders; (e)  upon the reasonable request of Agent, Phase I environmental assessments ( Phase Is ), prepared by environmental engineers reasonably acceptable to Agent ( provided , that any such Phase Is shall be required to be delivered to Agent within 90 days of the Closing Date), (f) such other reports, certificates, studies or data as Agent may reasonably require, all in form and substance satisfactory to Required Lenders; and (g)  such other documents, instruments or agreements as Agent may reasonably require with respect to any environmental risks regarding the Real Estate.

Rent and Charges Reserve : the aggregate of (a) all past due rent and other amounts owing by an Obligor to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Collateral or could assert a Lien on any such Collateral; and (b) a reserve of not more than three months’ rent and other charges that could be payable to any such Person, unless it has executed a Lien Waiver.

 

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Report : as defined in Section  12.2.3 .

Reportable Event : any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

Reporting Trigger Period : the period (a) commencing on any date in which an Event of Default occurs or Availability is less than 15% of the Commitments at such time and (b) continuing until the first date thereafter on which no Event of Default has existed for 30 consecutive days and Availability has been at least 15% of the Commitments at all times for 30 consecutive days.

Required Lenders : Secured Parties holding more than 50% of (a) the aggregate outstanding Commitments; or (b) following termination of the Commitments, the aggregate outstanding Loans and LC Obligations or, if all Loans and LC Obligations have been Paid in Full, the aggregate remaining Obligations; provided , however , that Commitments, Loans and other Obligations held by a Defaulting Lender and its Affiliates shall be disregarded in making such calculation, but any related Fronting Exposure shall be deemed held as a Loan or LC Obligation by the Secured Party that funded the applicable Loan or issued the applicable Letter of Credit; provided , further , that, in addition to the foregoing, if there are either two or three Lenders, then at least two (2) Secured Parties shall be required for any matter requiring the vote or approval of Required Lenders and for purposes of computing the number of Secured Parties under this definition, Affiliates of a Secured Party shall not constitute a separate Secured Party.

Restricted Investment : any Investment by a Borrower or Subsidiary, other than

(a) Investments existing on the date hereof Amendment No.  3 Effective Date and set forth on Schedule 10.2.5 ;

(b) Investments in Cash Equivalents made in the Ordinary Course of Business;

(c) Investments in Borrowers or any Subsidiary, provided that (i) any such Investments in the form of loans and advances made by an Obligor shall be permitted so long as no Default or Event of Default exists or would result therefrom and shall be evidenced by a promissory note pledged to the Collateral Agent (or its agent, designee or bailee, including the agent under the Term Loan pursuant to the terms of the Intercreditor Agreement) for the ratable benefit of the Secured Parties pursuant to the Guarantee and Collateral Agreement, (ii) any such Investments in the form of Equity Interests held by an Obligor shall be pledged pursuant to the Guarantee and Collateral Agreement (subject to any limitations applicable to voting stock of a Foreign Subsidiary referred to therein) and (iii) the aggregate amount of such Investments made from the Closing Amendment No.  3 Effective Date by Obligors in Subsidiaries that are not Obligors shall not exceed $2,500,000;

(d) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the Ordinary Course of Business;

(e) Loans loans made by Borrowers and their Subsidiaries in the Ordinary Course of Business in accordance with their usual practice to their respective employees so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-down or write-offs of such loans and advances) shall not exceed $1,000,000;

 

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(f) Hedging Agreements entered into by Borrowers and their Subsidiaries that are ( i )  required by the Term Loan Facility and not for speculative purposes or (ii)  entered into in the Ordinary Course of Business and not for speculative purposes;

(g) to the extent constituting an Investment, Capital Expenditures not prohibited hereunder;

(h) Investments consisting of the non-cash portion of the sales price received for Permitted Asset Dispositions;

(i) lease, utility and other deposits or advances in the Ordinary Course of Business;

(j) cash earnest money deposits made in connection with Permitted Acquisitions or other acquisitions of assets permitted hereunder;

(k) Investments in the Ordinary Course of Business consisting of endorsements for collection or deposit;

(l) Investments of any Person existing at the time such Person becomes a Subsidiary, or consolidates, amalgamates or merges with a Borrower or Subsidiary (including in connection with a Permitted Acquisition) (but excluding Investments in Subsidiaries which must be otherwise permitted by this definition of “Restricted Investments”) so long as such Investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation, amalgamation or merger;

(m) Investments of Net Proceeds of a Permitted Asset Disposition in accordance with the reinvestment rights set forth in the Term Loan Facility;

(n) Extensions of trade credit in the Ordinary Course of Business;

(o) Investments on or after October  1, 2013 constituting Permitted Acquisitions; provided that the aggregate consideration paid in Permitted Acquisitions to acquire a Person that will not be an Obligor following the acquisition thereof, or to acquire property or assets that will not be owned by an Obligor (each, a “ Non-Obligor Permitted Acquisition ”) shall not exceed, at the time of any such acquisition, together with the aggregate consideration paid in all Non-Obligor Permitted Acquisitions effected prior to such time, $ 2,500,000 1,000,000 ;

(p) to the extent constituting Investments, Permitted Contingent Obligations;

(q) other Investments (other than Acquisitions and Permitted Acquisitions which shall only be permitted in compliance with clause (o)  above) on or after September  1, 2014 (or, October  1, 2013 in connection with Investments in joint ventures) so long as both before and immediately after giving effect to such Investment the Payment Conditions are satisfied; and

(r) other Investments not included in the preceding clauses; provided that (x) the aggregate amount of such Investments together with the aggregate consideration paid in all Non-Obligor Permitted Acquisitions effected prior to such time, shall not exceed $5,000,000 and (y) Investments permitted pursuant to this clause (r)  shall not include Acquisitions and Permitted Acquisitions (other than Non-Obligor Permitted Acquisitions) otherwise permitted hereunder, which shall only be permitted in compliance with clause (o)  above.

 

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Restrictive Agreement : an agreement (other than a Loan Document) that conditions or restricts the right of any Borrower, Subsidiary or other Obligor to incur or repay Borrowed Money, to grant Liens on any assets, to declare or make Distributions, to modify, extend or renew any agreement evidencing Borrowed Money, or to repay any intercompany Indebtedness.

Revolver Termination Date : September  16 April  7 , 2020 2022 , (the “ Scheduled Maturity Date ”; provided that the Revolver Termination Date shall automatically become March  12, 2019 February  7, 2022 unless the Term Loan Facility has been repaid, prepaid, refinanced, redeemed, exchanged, amended or otherwise defeased or discharged prior to such date (in the case of any refinancing or amendment, to a date that is at least 90 60 days after the Scheduled Maturity Date).

Revolver Usage : (a) the aggregate amount of outstanding Loans; plus (b) the aggregate Stated Amount of outstanding Letters of Credit.

Royalties : all royalties, fees, expense reimbursement and other amounts payable by a Borrower under a License.

S&P : Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. and any successor thereto.

Sanction : any international economic sanction administered or enforced by the United States Government (including OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.

Seasonal Formula Amount : the sum of (a) 10% of the NOLV Percentage of the Value of Eligible Inventory plus (b) 5% of the Value of Eligible Accounts .

Secured Bank Product Obligations : Indebtedness, obligations and other liabilities with respect to Bank Products owing by a Borrower or Affiliate of a Borrower to a Secured Bank Product Provider; provided , that Secured Bank Product Obligations of an Obligor shall not include its Excluded Swap Obligations.

Secured Bank Product Provider : (a) Bank of America or any of its Affiliates; and (b) any other Person that is a Lender or Affiliate of a Lender at the time such agreements relating to Bank Products is entered into (or with respect to agreements already in existence on the date such Person becomes a Lender, is a Lender or Affiliate of a Lender on such date); provided such provider (other than Bank of America or any of its Affiliates) delivers written notice to Agent, in form and substance satisfactory to Agent, within 10 days following the later of the Closing Date (or, in the case of a Person who becomes a Lender pursuant to an assignment under Section  13.3 , 10 days after such Person becomes a Lender) or creation of the Bank Product, (i) describing the Bank Product and setting forth the maximum amount to be secured by the Collateral (the “ Bank Product Amount ”) and the methodology to be used in calculating such amount, and (ii) agreeing to be bound by Section  12.13 . Notwithstanding the foregoing, the Bank Product Amount may be changed from time to time upon written notice to Agent by such Secured Bank Product Provider.

Secured Parties : Agent, Issuing Bank, Lenders and Secured Bank Product Providers.

Securities Account Control Agreement : the Securities Account control agreements to be executed by the relevant Borrower Obligor and each institution maintaining a Securities Account for a Borrower Company or an Obligor , in favor of Agent, as security for the Obligations, in the form required and to the extent required under Section  8.5 .

Security Documents : the Guarantee and Collateral Agreement, each Security Agreement Supplement (as defined in the Guarantee and Collateral Agreement), each Issuer Control Agreement (as defined in the Guarantee and Collateral Agreement), Mortgages IP Assignments , Intellectual Property Notices, Security Agreements, Deposit Account Control Agreements, Securities Account Control Agreements and all other documents, instruments and agreements now or hereafter securing (or given with the intent to secure) any Obligations.

 

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Senior Officer : the chairman of the board, president, chief executive officer , chief accounting officer, chief operating officer or chief financial officer of a Borrower or, if the context requires, an Obligor.

Senior Debt: as of any date of determination, Borrowed Money of Company and its Subsidiaries as of such date, other than Subordinated Debt; provided that for the avoidance of doubt, Senior Debt shall include (x)  Indebtedness under this Agreement and (y)  any Indebtedness the final maturity date of which is earlier than the Maturity Date other than Specified Unsecured Prepetition Debt; provided, further that reimbursement obligations with respect to Permitted Surety Bonds shall not constitute Senior Debt; provided further, that for purposes of determining Senior Debt, as of any date of determination, Indebtedness under this Agreement shall be deemed to be the average daily amount of such Indebtedness for the 365-day period immediately preceding such date.

Settlement Report : a report summarizing Loans and participations in LC Obligations outstanding as of a given settlement date, allocated to Lenders on a Pro Rata basis in accordance with their Commitments.

Solvent : as to any Person, such Person (a) owns Property whose fair salable value is greater than the amount required to pay all of its debts (including contingent, subordinated, unmatured and unliquidated liabilities); (b) owns Property whose present fair salable value (as defined below) is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person as they become absolute and matured; (c) is able to pay all of its debts as they mature; (d) has capital that is not unreasonably small for its business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code; and (f) has not incurred (by way of assumption or otherwise) any obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any conveyance in connection therewith, with actual intent to hinder, delay or defraud either present or future creditors of such Person or any of its Affiliates. “ Fair salable value ” means the amount that could be obtained for assets within a reasonable time, either through collection or through sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who is willing (but under no compulsion) to purchase.

Specified Asset Dispositions : the Asset Dispositions set forth on Schedule 1.1(c) as of the Amendment No.  3 Effective Date .

Specified Availability : as of any date of determination and without duplication, the sum of (a) Availability and (b) during the months of July, August and September, Suppressed Availability; provided that for the purpose of calculating Specified Availability during the fiscal months of July, August and September, not more than 50% of any threshold or test based on Specified Availability may be satisfied with Suppressed Availability; provided further that for purposes of testing whether Payment Conditions are met during the fiscal months of July, August and September, Suppressed Availability used to satisfy such threshold or test shall be limited to $6,250,000.

Specified Default : the failure of any Obligor to comply with the terms of Section  8.1, 8.2.5, 8.5 or 10.1.1 , the failure of Company to deliver financial statements when required pursuant to Section  10.1.2 , or the occurrence of any Default specified in Sections 11.1(a) , 11.1(i) or 11.1(j) .

Specified Payment and Distribution : any prepayment under the Term Loan Agreement, any Distribution pursuant to Section  10.2.4 and any related prepayment of Specified Unsecured Prepetition Debt pursuant to Section 10.2.8(b )( iii) , in each case, as a result of a Specified Asset Disposition.

 

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Specified Unsecured Prepetition Debt : any payment or distribution in respect of the Allowed General Unsecured Claims or Allowed Trade Unsecured Claims (as such terms are defined in the Plan of Reorganization) that is made in accordance with Sections IV.E, IV.F and V.I of the Plan of Reorganization in an aggregate amount not to exceed $ 60 ,000,000 24,500,000 .

Specified Obligor : a Borrower that is not then an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section  5.10 ).

Stated Amount : the stated amount of a Letter of Credit, including any automatic increase (if any) provided by the terms of the Letter of Credit or related LC Documents, whether or not then effective.

Subordinated Debt : Indebtedness incurred by a Borrower an Obligor that is expressly subordinate and junior in right of payment to Full Payment of all Obligations, and is on terms (including maturity, interest, fees, repayment, covenants and subordination) reasonably satisfactory to Agent.

Subsidiary : with respect to any Person (herein referred to as the “ parent ”), any corporation, partnership, limited liability company, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, owned, controlled or held; or (b) that is, at the time any determination is made, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of Company or of an Obligor, as the context may require.

Subsidiary Borrowers : Classroomdirect.com, LLC, a Delaware limited liability company, Sportime, LLC, a Delaware limited liability company, Delta Education, LLC, a Delaware limited liability company, Premier Agendas, LLC, a Delaware limited liability company, Childcraft Education, LLC, a Delaware limited liability company, Bird-In-Hand Woodworks, LLC, a Delaware limited liability company, Califone International, LLC, a Delaware limited liability company, and any additional Subsidiary of Company who becomes a party hereto, as a Borrower.

Subsidiary Guarantors : each Subsidiary Borrower, each Wholly-Owned Subsidiary of Company listed on Schedule 1.1(d) as of the Amendment No.  3 Effective Date and each other Subsidiary of Company that shall be required to execute and deliver or become party to a Guaranty pursuant to Section  10.1.14 .

Suppressed Availability : an amount equal to the greater of (i) the difference between clause (ii) of the definition of Borrowing Base, minus the aggregate Commitments and (ii) zero.

Swap Obligations : with respect to an Obligor, its obligations under a Hedging Agreement that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

Swingline Loan : any Borrowing of Base Rate Loans funded with Agent’s funds, until such Borrowing is settled among Lenders or repaid by Borrowers.

Syndication Agent : Bank of Montreal.

Taxes : all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

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Term Loan Agent : Credit Suisse AG TCW Asset Management Company LLC and its permitted successors and assigns or any other Person designated as term loan agent or administrative agent and collateral agent pursuant to the Term Loan Facility.

Term Loan Agreement : the Credit Agreement dated as of the Closing Date April 7, 2017 , among Company, the several banks and other financial institutions from time to time parties thereto, the Term Loan Agent and the other parties named therein , as amended, restated or otherwise modified from time to time to the extent not prohibited by the Intercreditor Agreement .

Term Loan Documents : “Term Documents” as defined in the Intercreditor Agreement.

Term Loan Facility : (i) the Term Loan Agreement, as amended, amended and restated, modified, or supplemented from time to time and (ii) any refinancing thereof as long as each Refinancing Condition is satisfied, in each case to the extent permitted by this Agreement and the Intercreditor Agreement.

Term Loan Obligations : “Obligations” under the “Loan Documents” each as defined in the Term Loan Facility.

Term Priority Collateral : the “Term Priority Collateral” as defined in the Intercreditor Agreement.

Term Priority Collateral Account : the “Term Priority Collateral Account” as defined in the Intercreditor Agreement.

Third Lien Subordination Agreement : the Third Lien Subordination Agreement of even date herewith, among Bayside Finance LLC, as administrative agent under the Prepetition Term Loan Credit Agreement (as defined therein), the Term Loan Agent and Agent and acknowledged by Obligors and acknowledged for purposes of paragraph 4 thereof, by U.S. Bank National Association, as administrative agent for the Ad Hoc DIP Credit Agreement (as defined therein) and U.S. Bank National Association, as escrow agent.

Total Debt : at any time, the total Indebtedness of Company and its Subsidiaries at such time (excluding the Obligations); provided that for the avoidance of doubt, Total Debt shall include Specified Unsecured Prepetition Debt; provided , further that reimbursement obligations with respect to Permitted Surety Bonds that have not been drawn shall not constitute Total Debt.

Transactions : collectively, (a) the execution, delivery and performance by Obligors of this Agreement and the other Loan Documents to which they are a party, the borrowing of Loans and other credit extensions, the use of the proceeds thereof and the issuance of Letters of Credit hereunder and (b) the consummation of (i) the Plan of Reorganization and (ii) the Existing Term Loan Agreement, in each case on or before the Closing Date.

Transferee : any actual or potential Eligible Assignee, Participant or other Person acquiring an interest in any Obligations.

Transferring Subsidiary : as defined in Section  10.2.9 .

UCC : the Uniform Commercial Code as in effect in the State of New York or, when the laws of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform Commercial Code of such jurisdiction.

Unfunded Pension Liability : the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to the Code, ERISA or the Pension Protection Act of 2006 for the applicable plan year.

 

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Unrestricted Cash : cash or Cash Equivalents of Company or any Subsidiaries that would not appear as “restricted” on a consolidated balance sheet of Company or any Subsidiaries and are not subject to Liens other than Liens arising by operation of law and Liens securing the Obligations and the Term Loan Obligations, not to exceed $5,000,000; provided that Unrestricted Cash shall be deemed to be $0 unless, for the 30 days preceding and the 30 days following any date of determination, there have not been, and there will not be, any Borrowings of Loans and Borrowers have had such cash or Cash Equivalents for the preceding 30-day period.

Unused Line Fee Rate : a per annum rate equal to (a) 0.375%, if the average daily Revolver Usage was less than 50% of the Commitments during the preceding calendar month, or (b) 0.25%, if the average daily Revolver Usage was 50% or more of the Commitments during the preceding calendar month.

Upstream Payment :

(a) any Subsidiary of Company may declare and pay dividends or make other distributions to its equity holders, in each case on a pro rata basis ; Company or any other Obligor and any Subsidiary of Company that is not an Obligor may declare and pay dividends or make other distributions to any other Subsidiary of Company that is not an Obligor;

(b) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Company may repurchase its Equity Interests owned by directors or employees of Company or any Subsidiary or make payments to directors or employees of Company or any Subsidiary upon termination of employment or position as a director in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such directors or employees in an aggregate amount not to exceed $ 1,000,000 2,000,000 in any Fiscal Year;

(c) to the extent permitted by the second proviso of Section 2.13(a) of the Term Loan Agreement as in effect on the Closing Date and so long as both immediately before and immediately after giving effect thereto and giving effect to any related prepayment of Specified Unsecured Prepetition Debt pursuant to Section 10.2.8(b)(iii) , the Payment Conditions are satisfied, distributions from the net cash any other Distribution to the extent financed with proceeds of the Specified Asset Dispositions from Delayed Draw Term Loans (as defined in the Term Loan Agreement) in an amount not to exceed $50,000,000 the Delayed Draw Term Loan Amount (as defined in the Term Loan Agreement as in effect on the Amendment No.  3 Effective Date) ; and

(d) so long as both immediately before and immediately after giving effect thereto the Payment Conditions are satisfied, any other Distribution on or after September  1, 2014 .

U.S. Person : any Person (a) (i) that is not disregarded as separate from its owner for U.S. federal income tax purposes and (ii) that is a “United States Person” as defined in Section 7701(a)(30) of the Code; or (b) (i) that is disregarded as separate from its owner for U.S. federal income tax purposes and (ii) whose regarded owner for U.S. federal income tax purposes is a “United States Person” as defined in Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate : as defined in Section 5.9.2(b)(iii) .

Value : (a) for Inventory, its value determined on the basis of the lower of cost or market, calculated on a first-in, first-out basis, and excluding any portion of cost attributable to intercompany profit among Borrowers and their Affiliates; (b) for an Account (other than a Credit Card Account), its face amount, net of any returns, rebates, discounts (calculated on the shortest terms), credits, allowances or Taxes (including sales, excise or other taxes) that have been or could be claimed by the Account Debtor or any other Person; and (c) for a Credit Card Account, its face amount, net of (x) any discounts,

 

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claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that a Borrower may be obligated to rebate to a customer, a credit card processor or issuer pursuant to the terms of any agreement or understanding (written or oral)) and (y) the aggregate amount of all cash received in respect of such Account but not yet applied by Borrowers to reduce the amount of such Credit Card Account.

Wholly-Owned Subsidiary : as to any Person, any other Person all of the Equity Interest of which (other than directors’ qualifying shares required by law) is owned by such Person directly and/or through other Wholly-Owned Subsidiaries.

Wisconsin Wage Protection Act Reserve : on any date of determination, a reserve established from time to time by Agent in its Reasonable Credit Judgment, in such amount as Agent determines reflects the amounts that may become due under the Wisconsin Wage Protection Act with respect to the employees of any Obligor employed in Wisconsin which would give rise to a Lien with priority under Applicable Law over the Lien of Agent.

Write-Down and Conversion Powers: the write-down and conversion powers of the applicable EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which powers are described in the EU Bail-In Legislation Schedule.

1.2 Accounting Terms . Under the Loan Documents (except as otherwise specified therein), all accounting terms shall be interpreted, all accounting determinations shall be made, and all financial statements shall be prepared, in accordance with GAAP applied on a basis consistent with the most recent audited financial statements of Borrowers delivered to Agent before the Closing Date and using the same inventory valuation method as used in such financial statements, except for any change required or permitted by GAAP if Borrowers’ certified public accountants concur in such change, the change is disclosed to Agent, and all relevant provisions of the Loan Documents are amended in a manner satisfactory to Required Lenders to take into account the effects of the change.

1.3 Uniform Commercial Code. As used herein, the following terms are defined in accordance with the UCC in effect in the State of New York from time to time: “Chattel Paper,” “Commercial Tort Claim,” “Deposit Account,” “Document,” “Equipment,” “General Intangibles,” “Goods,” “Instrument,” “Inventory,” “Investment Property,” “Letter-of-Credit Right,” “Securities Account” and “Supporting Obligation.”

1.4 Certain Matters of Construction . The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) unless otherwise specified herein as referring to a document, instrument or agreement as in effect on the Closing Date, any document, instrument or agreement includes any amendments, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include successors and assigns; (f) unless otherwise indicated, time of day mean time of day at Agent’s notice address under Section  14.3.1 ; or (g) discretion of Agent, Issuing Bank or any Lender shall mean the sole and absolute discretion of such Person. All references to Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be

 

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denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise reasonably satisfactory to Agent (and not necessarily calculated in accordance with GAAP). All terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Borrower or any Subsidiary at “fair value”, as defined therein, (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof , and (iii)  without giving effect to Accounting Standards Update No.  2016-02 issued by the Financial Accounting Standards Board . Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Agent, Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer . , or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter.

1.5 [Reserved] .

1.5 Certain Pro Forma Calculations . Notwithstanding anything to the contrary herein, the Net First Lien Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio shall be calculated in the manner prescribed by this Section  1.5 , provided that, notwithstanding anything to the contrary in clause (a) , (b) or (c)  of this Section  1.5 , when calculating the Fixed Charge Coverage Ratio for purposes of determining whether the Payment Conditions have been satisfied, the events described in this Section  1.5 that occurred subsequent to the end of the applicable testing period shall not be given pro forma effect.

(a) For purposes of calculating the Net First Lien Leverage Ratio, the Net Total Leverage Ratio and the Fixed Charge Coverage Ratio, Pro Forma Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been consummated ( i )  during the applicable period of four consecutive fiscal quarters (or, in the case of the Fixed Charge Coverage Ratio, 12 consecutive months) for which such financial ratio is being determined (the Test Period ), or (ii)  subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Pro Forma Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Pro Forma Transaction) had occurred on the first day of the applicable Test Period.

(b) If pro forma effect is to be given to a Pro Forma Transaction, the pro forma calculations shall be made in good faith by a financial or accounting Senior Officer of Borrowers and include only those adjustments that would be permitted or required by Regulation S-X.

(c) In the event that Borrowers or any Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of Net Total Leverage Ratio, Net First Lien Leverage Ratio or Fixed Charge Coverage Ratio (other than Indebtedness incurred or repaid under any revolving credit facility in the Ordinary Course of Business for working capital purposes) subsequent to the end of

 

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the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Net Total Leverage Ratio, Net First Lien Leverage Ratio or Fixed Charge Coverage Ratio subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, the Net Total Leverage Ratio, Net First Lien Leverage Ratio or Fixed Charge Coverage Ratio, as applicable, shall be calculated after giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the first day of the applicable Test Period.

SECTION 2. CREDIT FACILITIES

2.1 Commitment .

2.1.1 Loans. Each Lender agrees, severally on a Pro Rata basis up to its Commitment, on the terms set forth herein, to make Loans to Borrowers from time to time through the Commitment Termination Date. The Loans may be repaid and reborrowed as provided herein. In no event shall Lenders have any obligation to honor a request for a Loan if the Revolver Usage at such time plus the requested Loan would exceed the Borrowing Base.

2.1.2 Notes. Loans and interest accruing thereon shall be evidenced by the records of Agent and the applicable Lender. At the request of a Lender, Borrowers shall deliver promissory note(s) to such Lender, evidencing its Loan(s).

2.1.3 Use of Proceeds. The proceeds of Loans shall be used by Borrowers (a) to repay the DIP Facilities (specifically, all of the ABL DIP and part of the Ad-Hoc DIP), (b) to fund certain fees and expenses associated with the closing of this credit facility and the Transactions, (c) to repay certain costs and expenses required to be paid in connection with the emergence from Chapter 11 of Borrowers and certain of their Subsidiaries (including, but not limited to, administrative costs, cure costs and potentially to fund cash out options for trade and other unsecured claims), (d) to provide for working capital and (e) for general corporate purposes (including, without limitation, for Permitted Acquisitions and Capital Expenditures). Borrowers shall not, directly or indirectly, use any Letter of Credit or Loan proceeds, nor use, lend, contribute or otherwise make available any Letter of Credit or Loan proceeds to any Subsidiary, joint venture partner or other Person, (i) to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of issuance of the Letter of Credit or funding of the Loan, is the subject of any Sanction; (ii) in any manner that would result in a violation of a Sanction by any Person (including any Secured Party or other individual or entity participating in any transaction); or (iii) for any purpose that would breach the U.S. Foreign Corrupt Practices Act of 1977, UK Bribery Act 2010 or similar law in any jurisdiction.

2.1.4 Voluntary Reduction or Termination of Commitments.

(a) The Commitments shall terminate on the Revolver Termination Date, unless sooner terminated in accordance with this Agreement. Upon at least ten Business Day’s prior written notice to Agent, Borrowers may, at their option, terminate the Commitments and this credit facility in full. Any notice of termination given by Borrowers shall be irrevocable; provided that any such notice may state that such notice is conditioned upon effectiveness of other financing, in which case such notice may be revoked by Borrowers by notice to Agent on or prior to the specified effective date if such condition is not satisfied; provided that Borrowers shall pay any amounts due under Section  3.9 hereof as a result of failing to repay the Obligations on the date specified in such notice. On the termination date, Borrowers shall make Full Payment of all Obligations.

(b) Borrowers may permanently reduce a portion of the Commitments, on a ratable basis for all Lenders, upon at least five Business Days’ prior written notice to Agent, which notice shall specify the amount of the reduction and shall be irrevocable once given. Each reduction shall be in a minimum amount of $5,000,000, or an increment of $1,000,000 in excess thereof.

 

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2.1.5 Overadvances. If Revolver Usage exceeds the Borrowing Base (such excess amount, an “ Overadvance ”) at any time, such Overadvance shall be payable by Borrowers on demand by Agent, but all such Loans and LC Obligations in excess of the Borrowing Base shall nevertheless constitute Obligations secured by the Collateral and entitled to all benefits of the Loan Documents. Agent may require Lenders to honor requests for Overadvance Loans and to forbear from requiring Borrowers to cure an Overadvance, (a) when no other Event of Default is known to Agent, as long as (i) the Overadvance does not continue for more than 30 consecutive days (and no Overadvance may exist for at least five consecutive days thereafter before further Overadvance Loans are required), and (ii) the Overadvance is not known by Agent to exceed 10% of the Borrowing Base; and (b) regardless of whether an Event of Default exists, if Agent discovers an Overadvance not previously known by it to exist, as long as from the date of such discovery the Overadvance is not increased by more than $5,000,000 and does not continue for more than 30 consecutive days; provided that the aggregate amount of outstanding Overadvances and Protective Advances shall not, at any time, exceed 10% of the Borrowing Base. In no event shall Overadvance Loans be required that would cause Revolver Usage to exceed the aggregate Commitments. Required Lenders may at any time revoke Agent’s authority to make further Overadvances by written notice to Agent. Any funding of an Overadvance Loan or sufferance of an Overadvance shall not constitute a waiver by Agent or Lenders of the Event of Default caused thereby. In no event shall any Borrower or other Obligor be deemed a beneficiary of this Section  2.1.5 nor authorized to enforce any of its terms.

2.1.6 Protective Advances . Agent shall be authorized, in its discretion, at any time that any conditions in Section  6 are not satisfied, to make Base Rate Loans (“Protective Advances”) (a) up to an aggregate amount outstanding at any time not to exceed 10% of the Borrowing Base, if Agent deems such Loans necessary or desirable to preserve or protect Collateral, or to enhance the collectability or repayment of Obligations, as long as such Loans do not cause Revolver Usage to exceed the aggregate Commitments; or (b) if Borrowers default on their obligation to pay such amounts or any other amounts chargeable to Obligors under any Loan Documents, including interest, costs, fees and expenses. Lenders shall participate on a Pro Rata basis in Protective Advances outstanding from time to time. Required Lenders may at any time revoke Agent’s authority to make further Protective Advances under clause (a)  by written notice to Agent. Absent such revocation, Agent’s determination that funding of a Protective Advance is appropriate shall be conclusive; provided that the aggregate amount of outstanding Overadvances and Protective Advances shall not, at any time, exceed 10% of the Borrowing Base.

2.2 Letter of Credit Facility .

2.2.1 Issuance of Letters of Credit . Issuing Bank shall issue Letters of Credit from time to time until 30 days prior to the Revolver Termination Date (or until the Commitment Termination Date, if earlier), on the terms set forth herein, including the following:

(a) Each Borrower acknowledges that Issuing Bank’s issuance of any Letter of Credit is conditioned upon Issuing Bank’s receipt of a LC Application with respect to the requested Letter of Credit, as well as such other instruments and agreements as Issuing Bank may customarily require for issuance of a letter of credit of similar type and amount. Issuing Bank shall have no obligation to issue any Letter of Credit unless (i) Issuing Bank receives a LC Request and LC Application at least three Business Days prior to the requested date of issuance; (ii) each LC Condition is satisfied; and (iii) if a Defaulting Lender exists, such Lender or Borrowers have entered into arrangements satisfactory to Agent and Issuing Bank to eliminate any Fronting Exposure associated with such Lender. If, in sufficient time to act, Issuing Bank receives written notice from Agent or Required Lenders that a LC Condition has not been satisfied, Issuing Bank shall not issue the requested Letter of Credit. Prior to receipt of any such notice, Issuing Bank shall not be deemed to have knowledge of any failure of LC Conditions.

 

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(b) Letters of Credit may be requested by a Borrower to support obligations incurred in the Ordinary Course of Business, or as otherwise approved by Agent. Increase, renewal or extension of a Letter of Credit shall be treated as issuance of a new Letter of Credit, except that Issuing Bank may require a new LC Application in its discretion.

(c) Borrowers assume all risks of the acts, omissions or misuses of any Letter of Credit by the beneficiary. In connection with issuance of any Letter of Credit, none of Agent, Issuing Bank or any Lender shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any Documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any Documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any Documents or of any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial or incomplete shipment of, or failure to ship, any goods referred to in a Letter of Credit or Documents; any deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; any breach of contract between a shipper or vendor and a Borrower; errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical terms; the misapplication by a beneficiary of any Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond the control of Issuing Bank, Agent or any Lender, including any act or omission of a Governmental Authority. The rights and remedies of Issuing Bank under the Loan Documents shall be cumulative. Borrowers shall take all commercially reasonable action to avoid and mitigate any damages relating to any Letter of Credit or claimed against Issuing Bank, Agent or any Lender, including through enforcement of any available rights against a beneficiary. Issuing Bank shall be fully subrogated to the rights and remedies of each beneficiary whose claims against Borrowers are discharged with proceeds of any Letter of Credit.

(d) In connection with its administration of and enforcement of rights or remedies under any Letters of Credit or LC Documents, Issuing Bank shall be entitled to act, and shall be fully protected in acting, upon any certification, documentation or communication in whatever form believed by Issuing Bank, in good faith, to be genuine and correct and to have been signed, sent or made by a proper Person. Issuing Bank may consult with and employ legal counsel, accountants and other experts to advise it concerning its obligations, rights and remedies, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by such experts. Issuing Bank may employ agents and attorneys-in-fact in connection with any matter relating to Letters of Credit or LC Documents, and shall not be liable for the negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.

(e) If any Borrower so requests in any applicable Letter of Credit application, Issuing Bank may, in its discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension 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 “ Non-Extension 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, Borrowers shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date at least 5 Business Days prior to the Revolver Termination Date; provided , however , that the Issuing Bank shall not permit any such extension if Issuing Bank has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from Agent that the Required Lenders have elected not to permit such extension or (2) from Agent, any Lender or any Borrower that one or more of the applicable conditions specified in Section  6.2 is not then satisfied, and in each such case directing the Issuing Bank not to permit such extension.

 

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2.2.2 Reimbursement; Participations.

(a) If Issuing Bank honors any request for payment under a Letter of Credit, Borrowers shall pay to Issuing Bank, on the same day (“ Reimbursement Date ”), the amount paid by Issuing Bank under such Letter of Credit, together with interest at the interest rate for Base Rate Loans from the Reimbursement Date until payment by Borrowers. The obligation of Borrowers to reimburse Issuing Bank for any payment made under a Letter of Credit shall be absolute, unconditional, irrevocable, and joint and several, and shall be paid without regard to any lack of validity or enforceability of any Letter of Credit or the existence of any claim, setoff, defense or other right that Borrowers may have at any time against the beneficiary. Whether or not Borrower Agent submits a Notice of Borrowing, Borrowers shall be deemed to have requested a Borrowing of Base Rate Loans in an amount necessary to pay all amounts due Issuing Bank on any Reimbursement Date and each Lender shall fund its Pro Rata share of such Borrowing whether or not the Commitments have terminated, an Overadvance exists or is created thereby, or the conditions in Section  6 are satisfied.

(b) Each Lender hereby irrevocably and unconditionally purchases from Issuing Bank, without recourse or warranty, an undivided Pro Rata participation in all LC Obligations outstanding from time to time. Issuing Bank is issuing Letters of Credit in reliance upon this participation. If Borrowers do not make a payment to Issuing Bank when due hereunder, Agent shall promptly notify Lenders and each Lender shall within one Business Day after such notice pay to Agent, for the benefit of Issuing Bank, the Lender’s Pro Rata share of such payment. Upon request by a Lender, Issuing Bank shall provide copies of Letters of Credit and LC Documents in its possession at such time.

(c) The obligation of each Lender to make payments to Agent for the account of Issuing Bank in connection with Issuing Bank’s payment under a Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever, and shall be made in accordance with this Agreement under all circumstances, irrespective of any lack of validity or unenforceability of any Loan Documents; any draft, certificate or other document presented under a Letter of Credit having been determined to be forged, fraudulent, noncompliant, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; any waiver by Issuing Bank of a requirement that exists for its protection (and not a Borrower’s protection) or that does not materially prejudice a Borrower; any honor of an electronic demand for payment even if a draft is required; any payment of an item presented after a Letter of Credit’s expiration date if authorized by the UCC or applicable customs or practices; or any setoff or defense that an Obligor may have with respect to any Obligations. Issuing Bank does not assume any responsibility for any failure or delay in performance or any breach by any Borrower or other Person of any obligations under any LC Documents. Issuing Bank does not make to Lenders any express or implied warranty, representation or guaranty with respect to any Letter of Credit, Collateral, LC Document or Obligor. Issuing Bank shall not be responsible to any Lender for any recitals, statements, information, representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any LC Documents; the validity, genuineness, enforceability, collectability, value or sufficiency of any Collateral or the perfection of any Lien therein; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor.

(d) No Issuing Bank Indemnitee shall be liable to any Lender or other Person for any action taken or omitted to be taken in connection with any Letter of Credit or LC Document except as a result of its gross negligence or willful misconduct. Issuing Bank may refrain from taking any action with respect to a Letter of Credit until it receives written instructions (and in its discretion, appropriate assurances) from the Lenders.

 

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2.2.3 Cash Collateral . Subject to Section  2.1.5 , if at any time (a) an Event of Default exists, (b) the Commitment Termination Date has occurred, or (c) the Revolver Termination Date is scheduled to occur within 20 days, then Borrowers shall, at Issuing Bank’s or Agent’s request, Cash Collateralize all outstanding Letters of Credit. Borrowers shall, at Issuing Bank’s or Agent’s request at any time, Cash Collateralize the Fronting Exposure of any Defaulting Lender. If Borrowers fail to provide any Cash Collateral as required hereunder, Lenders may (and shall upon direction of Agent) advance, as Loans, the amount of Cash Collateral required (whether or not the Commitments have terminated, an Overadvance exists or the conditions in Section  6 are satisfied).

2.2.4 Resignation of Issuing Bank . Issuing Bank may resign at any time upon notice to Agent and Borrowers , and any resignation of Agent hereunder shall automatically constitute its concurrent resignation as Issuing Bank. From the effective date of such resignation, Issuing Bank shall have no obligation to issue, amend, renew, extend or otherwise modify any Letter of Credit, but shall continue to have all rights and other obligations of an Issuing Bank hereunder relating to any Letter of Credit issued by it prior to such date. Agent shall promptly appoint a replacement Issuing Bank, which, as long as no Default or Event of Default exists, shall be reasonably acceptable to Borrowers.

2.2.5 Existing Letter of Credit . On the Closing Date, (a) the Existing Letter of Credit, to the extent outstanding, shall be automatically and without further action by the parties thereto deemed converted into a Letter of Credit issued pursuant to Section  2.2 for the account of Borrowers and subject to the provisions hereof, and for this purpose fees in respect thereof pursuant to Section  3.2.2 shall be payable (in substitution for any fees set forth in the applicable letter of credit reimbursement agreements or applications relating to the Existing Letter of Credit, except to the extent that such fees are also payable pursuant to Section  3.2.2 ) as if the Existing Letter of Credit had been issued on the Closing Date, (b) the Existing Letter of Credit shall be included in the calculation of LC Obligations and (c) all liabilities of Borrowers with respect to the Existing Letter of Credit shall constitute Obligations secured by the Collateral. Notwithstanding the foregoing, Borrowers shall not be required to pay any additional issuance fees with respect to the issuance of the Existing Letter of Credit solely as a result of such letter of credit being converted to Letters of Credit hereunder, it being understood that the fronting, participation and other fees set forth in Section  3.2.2 shall otherwise apply to the Existing Letter of Credit.

SECTION 3. INTEREST, FEES AND CHARGES

3.1 Interest.

3.1.1 Rates and Payment of Interest .

(a) The Obligations shall bear interest (i) if a Base Rate Loan, at the Base Rate in effect from time to time, plus the Applicable Margin; (ii) if a LIBOR Loan, at LIBOR for the applicable Interest Period, plus the Applicable Margin; and (iii) if any other Obligation (including, to the extent permitted by law, interest not paid when due), at the Base Rate in effect from time to time, plus the Applicable Margin for Base Rate Loans.

(b) During an Insolvency Proceeding with respect to any Borrower, or during any other Event of Default if Agent or Required Lenders in their discretion so elect, Obligations shall bear interest at the Default Rate (whether before or after any judgment). Each Borrower acknowledges that the cost and expense to Agent and Lenders due to an Event of Default are difficult to ascertain and that the Default Rate is fair and reasonable compensation for this.

(c) Interest shall accrue from the date a Loan is advanced or Obligation is incurred or payable, until paid in full by Borrowers , and shall in no event be less than zero at any time . If a Loan is repaid on the same day made, one day’s interest shall accrue. Interest accrued on the Loans (other than any LIBOR Loan) shall be due and payable in arrears, (i) on the first day of each month; (ii) on any date

 

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of prepayment, with respect to the principal amount of Loans being prepaid; and (iii) on the Commitment Termination Date. Interest accrued on any LIBOR Loan shall be due and payable in arrears, (1) on the last day of each Interest Period applicable to such Loan or, if sooner, on the respective dates that fall every three months after the beginning of such Interest Period, (2) on the Commitment Termination Date, and (3) on any date of prepayment, with respect to the principal amount of Loans being prepaid. Interest accrued on any other Obligations shall be due and payable as provided in the Loan Documents and, if no payment date is specified, shall be due and payable on demand . Notwithstanding the foregoing, interest accrued at the Default Rate shall be due and payable on demand .

3.1.2 Application of LIBOR to Outstanding Loans .

(a) Borrowers may on any Business Day , subject to delivery of a Notice of Conversion/Continuation, elect to convert any portion of the Base Rate Loans to, or to continue any LIBOR Loan at the end of its Interest Period as, a LIBOR Loan. During any Default or Event of Default, Agent may (and shall at the direction of Required Lenders) declare that no Loan may be made, converted or continued as a LIBOR Loan.

(b) Whenever Borrowers desire to convert or continue Loans as LIBOR Loans, Borrower Agent shall give Agent a Notice of Conversion/Continuation, no later than 11:00 a.m. at least two Business Days before the requested conversion or continuation date. Promptly after receiving any such notice, Agent shall notify each Lender thereof. Each Notice of Conversion/Continuation shall be irrevocable, and shall specify the amount of Loans to be converted or continued, the conversion or continuation date (which shall be a Business Day), and the duration of the Interest Period (which shall be deemed to be 30 days if not specified). If, upon the expiration of any Interest Period in respect of any LIBOR Loans, Borrowers shall have failed to deliver a Notice of Conversion/Continuation, they shall be deemed to have elected to convert such Loans into Base Rate Loans.

3.1.3 Interest Periods . In connection with the making, conversion or continuation of any LIBOR Loans, Borrowers shall select an interest period (“ Interest Period ”) to apply, which interest period shall be 30, 60, 90 or 180 days (if available from all Lenders); provided , however , that:

(a) the Interest Period shall begin on the date the Loan is made or continued as, or converted into, a LIBOR Loan, and shall expire on the numerically corresponding day in the calendar month at its end;

(b) if any Interest Period begins on a day for which there is no corresponding day in the calendar month at its end or if such corresponding day falls after the last Business Day of such month, then the Interest Period shall expire on the last Business Day of such month; and if any Interest Period would otherwise expire on a day that is not a Business Day, the period shall expire on the next Business Day; and

(c) no Interest Period shall extend beyond the Revolver Termination Date.

3.1.4 Interest Rate Not Ascertainable . If, due to any circumstance affecting the London interbank market, Agent determines that adequate and fair means do not exist for ascertaining LIBOR on any applicable date or any Interest Period is not available on the basis provided herein, then Agent shall immediately notify Borrowers of such determination. Until Agent notifies Borrowers that such circumstance no longer exists, the obligation of Lenders to make affected LIBOR Loans shall be suspended and no further Loans may be converted into or continued as such LIBOR Loans.

3.2 Fees .

3.2.1 Unused Line Fee . Borrowers shall pay to Agent, for the Pro Rata benefit of Lenders, a fee equal to the Unused Line Fee Rate times the amount by which the Commitments exceed the average daily Revolver Usage during any month. Such fee shall be payable in arrears, on the first day of each month and on the Commitment Termination Date.

 

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3.2.2 LC Facility Fees . Borrowers shall pay (a) to Agent, for the Pro Rata benefit of Lenders, a fee equal to the Applicable Margin in effect for LIBOR Loans times the average daily Stated Amount of Letters of Credit, which fee shall be payable monthly in arrears, on the first day of each month; (b) to Agent, for its own account, a fronting fee equal to 0.125% per annum on the Stated Amount of each Letter of Credit, which fee shall be payable monthly in arrears, on the first day of each month; and (c) to Issuing Bank, for its own account, all customary charges associated with the issuance, amending, negotiating, payment, processing, transfer and administration of Letters of Credit, which charges shall be paid as and when incurred. During an Event of Default, the fee payable under clause (a)  shall be increased by 2% per annum.

3.2.3 Fee Letters . Borrowers shall pay all fees set forth in the Fee Letters and any other fee letter executed in connection with this Agreement.

3.3 Computation of Interest, Fees, Yield Protection . All interest, as well as fees and other charges calculated on a per annum basis, shall be computed for the actual days elapsed, based on a year of 360 days; provided that all interest on Base Rate Loans (other than those where interest is computed by reference to LIBOR) shall be computed for the actual days elapsed, based on a year of 365 or 366 days, as applicable. Each determination by Agent of any interest, fees or interest rate hereunder shall be final, conclusive and binding for all purposes, absent manifest error. All fees shall be fully earned when due and shall not be subject to rebate, refund or proration. All fees payable under Section  3.2 are compensation for services and are not, and shall not be deemed to be, interest or any other charge for the use, forbearance or detention of money. A certificate as to amounts payable by Borrowers under Section  3.4, 3.6, 3.7, 3.9 or 5.8 , submitted to Borrower Agent by Agent or the affected Lender shall be final, conclusive and binding for all purposes, absent manifest error, and Borrowers shall pay such amounts to the appropriate party within 10 days following receipt of the certificate.

3.4 Reimbursement Obligations . Borrowers shall pay all Extraordinary Expenses promptly upon request. Borrowers shall also reimburse Agent for all costs of field exams that Agent is entitled to conduct pursuant to Section  10.1.1 (including internally allocated costs thereof) and shall reimburse Agent and, in the case of clause (a)  below, each the Lead Arranger, for all reasonable and documented, out-of-pocket costs and expenses (including all legal, accounting, consulting fees and expenses) incurred by it in connection with (a) negotiation and preparation of the Commitment Letter, any Loan Documents, including any amendment or other modification thereof, and the syndication of the Loans and Commitments by the Lead Arrangers Arranger ; (b) administration of and actions relating to any Collateral, Loan Documents and transactions contemplated thereby, including any actions taken to perfect or maintain priority of Agent’s Liens on any Collateral, to maintain any insurance required hereunder or to verify Collateral; and (c) subject to the limits of Section  10.1.1 , each inspection, audit , examination or appraisal with respect to any Obligor or Collateral, whether prepared by Agent’s personnel or a third party; provided that Borrowers’ obligation to reimburse legal fees pursuant to this sentence shall be limited to fees, charges and disbursements of one counsel for Agent and Lenders (which shall be selected by Agent) and to the extent necessary, one special or local counsel in each appropriate jurisdiction (absent a conflict of interest, in which case the Lenders may engage and be reimbursed for additional counsel). All legal, accounting and consulting fees shall be charged to Borrowers by Agent’s professionals at their full hourly rates, regardless of any alternative fee arrangements that Agent, any Lender or any of their Affiliates may have with such professionals that otherwise might apply to this or any other transaction. Borrowers acknowledge that counsel may provide Agent with a benefit (such as a discount, credit or accommodation for other matters) based on counsel’s overall relationship with Agent, including fees paid hereunder. If, for any reason (including inaccurate reporting in any Borrower Materials), it is determined that a higher Applicable Margin should have applied to a period than was actually applied, then the proper margin shall be applied retroactively and Borrowers shall immediately pay to Agent, for the ratable benefit of Lenders, an amount equal to the difference between the amount of interest and fees that would have accrued using the proper margin and the amount actually paid. All amounts payable by Borrowers under this Section  3.4 shall be due on demand .

 

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3.5 Illegality . If any Lender reasonably determines that any Applicable Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to perform any of its obligations hereunder , to make, maintain or , fund LIBOR Loans or charge applicable interest or fees with respect to any Loan or Letter of Credit , or to determine or charge interest rates based upon on LIBOR, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to Agent, any obligation of such Lender to make or continue perform such obligations, to make, maintain or fund the Loan or participate in the Letter of Credit (or to charge interest or fees with respect thereto), or to continue or convert Loans as LIBOR Loans or to convert Base Rate Loans to LIBOR Loans , shall be suspended until such Lender notifies Agent that the circumstances giving rise to such determination no longer exist. Upon delivery of such notice, Borrowers shall prepay the applicable Loan, Cash Collateralize the applicable LC Obligations or, if applicable, convert all LIBOR Loans Loan(s) of such Lender to Base Rate Loans Loan(s) , either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such the LIBOR Loans Loan to such day, or immediately, if such Lender may not lawfully continue to maintain such the LIBOR Loans Loan . Upon any such prepayment or conversion, Borrowers shall also pay accrued interest on the amount so prepaid or converted.

3.6 Inability to Determine Rates . Agent will promptly notify Borrower Agent and Lenders if, in connection with a Borrowing of, conversion to or continuation of a LIBOR Loan, (a) Agent determines that (i) Dollar deposits are not being offered to banks in the London interbank Eurodollar market for the applicable Loan amount or Interest Period, or (ii) adequate and reasonable means do not exist for determining LIBOR for the applicable Interest Period; or (b) Required Lenders determine for any reason that LIBOR for the applicable Interest Period does not adequately and fairly reflect the cost to Lenders of funding the Loan. Thereafter, the obligation of Lenders to make or maintain LIBOR Loans shall be suspended to the extent of the affected LIBOR Loan or Interest Period until Agent (upon instruction by Required Lenders) revokes the notice. Upon receipt of such notice, Borrower Agent may revoke any pending request for a Borrowing, conversion or continuation of a LIBOR Loan or, failing that, will be deemed to have submitted a request for a Base Rate Loan.

3.7 Increased Costs; Capital Adequacy .

3.7.1 Increased Costs Generally . If any Change in Law shall:

(a) impose, modify or deem applicable any reserve, liquidity, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in calculating LIBOR) or Issuing Bank;

(b) subject any Recipient to Taxes (other than (i) Indemnified Taxes, (ii) Taxes described in clauses (b), (c) or (d)  of the definition of Excluded Taxes, or (iii) Connection Income Taxes) with respect to any Loan, Letter of Credit, Commitment or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(c) impose on any Lender, Issuing Bank or interbank market any other condition, cost or expense affecting any Loan, Letter of Credit, participation in LC Obligations, Commitment or Loan Document;

 

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and the result thereof shall be to increase the cost to a Lender of making or maintaining any Loan or Commitment, or converting to or continuing any interest option for a Loan, or to increase the cost to a Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by a Lender or Issuing Bank hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or Issuing Bank, Borrowers will pay to such Lender or Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered.

3.7.2 Capital Requirements . If a Lender or Issuing Bank determines that a Change in Law affecting such Lender or Issuing Bank or any Lending Office of such Lender or such Lender s or Issuing Bank s i ts holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s or holding company’s capital as a consequence of this Agreement, or such Lender’s or Issuing Bank’s Commitments, Loans, Letters of Credit or participations in LC Obligations or Loans, to a level below that which such Lender, Issuing Bank or holding company could have achieved but for such Change in Law (taking into consideration its policies with respect to capital adequacy), then from time to time Borrowers will pay to such Lender or Issuing Bank, as the case may be, such additional amounts as will compensate it or its holding company for the reduction suffered.

3.7.3 LIBOR Loan Reserves . If any Lender is required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits, Borrowers shall pay additional interest to such Lender on each LIBOR Loan equal to the costs of such reserves allocated to the Loan by the Lender (as determined by it in good faith, which determination shall be conclusive). The additional interest shall be due and payable on each interest payment date for the Loan; provided , however , that if the Lender notifies Borrowers (with a copy to Agent) of the additional interest less than 10 days prior to the interest payment date, then the additional interest shall be payable 10 days after Borrowers’ receipt of the notice.

3.7.4 Compensation . A certificate as to any additional amounts payable pursuant to this Section  3.7 , showing in reasonable detail the calculation thereof, submitted by any Lender or Issuing Bank through Agent shall be conclusive in the absence of manifest error. Borrowers shall pay such Lender or Issuing Bank the amount shown as due on any such certificate within 10 days after receipt thereof. Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section  3.7 shall not constitute a waiver of its right to demand such compensation, but Borrowers shall not be required to compensate a Lender or Issuing Bank for any increased costs or reductions suffered more than nine months (plus any period of retroactivity of the Change in Law giving rise to the demand) prior to the date that the Lender or Issuing Bank notifies Borrower Agent of the applicable Change in Law and of such Lender’s or Issuing Bank’s intention to claim compensation therefor.

3.8 Mitigation . If any Lender gives a notice under Section  3.5 or requests compensation under Section  3.7 , or if Borrowers are required to pay any Indemnified Taxes or additional amounts with respect to a Lender under Section  5.8 , then at the request of Borrower Agent, such Lender shall use reasonable efforts to designate a different Lending Office or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (a) would eliminate the need for such notice or reduce amounts payable or to be withheld in the future, as applicable; and (b) would not subject the Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to it or unlawful. Borrowers shall pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

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3.9 Funding Losses . If for any reason (a) any Borrowing of, or conversion to or continuation of, a LIBOR Loan does not occur on the date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn), (b) any repayment or conversion of a LIBOR Loan occurs on a day other than the end of its Interest Period, (c) Borrowers fail to repay a LIBOR Loan when required hereunder, or (d) a Lender (other than a Defaulting Lender) is required to assign a LIBOR Loan prior to the end of its Interest Period pursuant to Section  13.4 , then Borrowers shall pay to Agent its customary administrative charge and to each Lender all resulting losses and expenses including any loss, expense or fee arising from redeployment of funds or termination of match funding but excluding any loss of anticipated profits or margin. For purposes of calculating amounts payable under this Section  3.9 , each Lender shall be deemed to have funded a LIBOR Loan by a matching deposit or other borrowing in the London interbank market for a comparable amount and period, whether or not the Loan was in fact so funded.

3.10 Maximum Interest . Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (“ maximum rate ”). If Agent or any Lender shall receive interest in an amount that exceeds the maximum rate, the excess interest shall be applied to the principal of the Obligations or, if it exceeds such unpaid principal, refunded to Borrowers. In determining whether the interest contracted for, charged or received by Agent or a Lender exceeds the maximum rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any payment that is not principal as an expense, fee or premium rather than interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize, prorate, allocate and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

SECTION 4. LOAN ADMINISTRATION

4.1 Manner of Borrowing and Funding Loans .

4.1.1 Notice of Borrowing.

(a) Whenever Borrowers desire funding of Loans, Borrower Agent shall give Agent a Notice of Borrowing. Such notice must be received by Agent by 1:00 p.m. (i) on the requested funding date, in the case of Base Rate Loans, and (ii) at least two Business Days prior to the requested funding date, in the case of LIBOR Loans. Notices received by Agent after such time shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable and shall specify (A) the amount of the Borrowing, (B) the requested funding date (which must be a Business Day), (C) whether the Borrowing is to be made as a Base Rate Loan or LIBOR Loan, and (D) in the case of a LIBOR Loan, the applicable Interest Period (which shall be deemed to be 30 days if not specified).

(b) Unless payment is otherwise timely made by Borrowers, the becoming due of any Obligations (whether principal, interest, fees or other charges, including Extraordinary Expenses, LC Obligations, Cash Collateral and Secured Bank Product Obligations) shall be deemed to be a request for a Base Rate Loan on the due date, in the amount due. The proceeds of such Loan shall be disbursed as direct payment of the relevant Obligation. In addition, Agent may, at its option, charge such amount against any operating, investment or other account of a Borrower maintained with Agent or any of its Affiliates.

(c) If a Borrower maintains a disbursement account with Agent or any of its Affiliates, then presentation for payment in the account of a Payment Item when there are insufficient funds to cover it shall be deemed to be a request for a Base Rate Loan on the presentation date, in the amount of the Payment Item. Proceeds of the Loan may be disbursed directly to the account.

4.1.2 Fundings by Lenders . Except for Borrowings to be made as Swingline Loans, Agent shall endeavor to notify Lenders of each Notice of Borrowing (or deemed request for a Borrowing) by 1:00 p.m. on the proposed funding date for a Base Rate Loan or by 3:00 p.m. at least two Business Days before a proposed funding of a LIBOR Loan. Each Lender shall fund its Pro Rata share of a

 

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Borrowing in immediately available funds not later than 3:00 p.m. on the requested funding date, unless Agent’s notice is received after the times provided above, in which case Lender shall fund its Pro Rata share by 11:00 a.m. on the next Business Day. Subject to its receipt of such amounts from Lenders, Agent shall disburse the Borrowing proceeds as directed by Borrower Agent. Unless Agent shall have received (in sufficient time to act) written notice from a Lender that it does not intend to fund its share of a Borrowing, Agent may assume that such Lender has deposited or promptly will deposit its share with Agent, and Agent may disburse a corresponding amount to Borrowers. If a Lender’s share of a Borrowing or of a settlement under Section 4.1.3(b) is not received by Agent, then Borrowers agree to repay to Agent on demand the amount of such share, together with interest thereon from the date disbursed until repaid, at the rate applicable to the Borrowing. A Lender or Issuing Bank may fulfill its obligations under Loan Documents through one or more Lending Offices, and this shall not affect any obligation of Obligors under the Loan Documents or with respect to any Obligations.

4.1.3 Swingline Loans; Settlement.

(a) To fulfill any request for a Base Rate Loan hereunder, Agent may in its discretion advance Swingline Loans to Borrowers, up to an aggregate outstanding amount of $20,000,000. Swingline Loans shall constitute Loans for all purposes, except that payments thereon shall be made to Agent for its own account until Lenders have funded their participations therein as provided below.

(b) Settlement of Loans, including Swingline Loans, among Lenders and Agent shall take place on a date determined from time to time by Agent (but at least weekly , unless the settlement amount is de minimis ), on a Pro Rata basis in accordance with the Settlement Report delivered by Agent to Lenders. Between settlement dates, Agent may in its discretion apply payments on Loans to Swingline Loans, regardless of any designation by Borrowers or any provision herein to the contrary. Each Lender hereby purchases, without recourse or warranty, an undivided Pro Rata participation in all Swingline Loans outstanding from time to time until settled. If a Swingline Loan cannot be settled among Lenders, whether due to an Obligor’s Insolvency Proceeding or for any other reason, each Lender shall pay the amount of its participation in the Loan to Agent, in immediately available funds, within one Business Day after Agent’s request therefor. Lenders’ obligations to make settlements and to fund participations are absolute, irrevocable and unconditional, without offset, counterclaim or other defense, and whether or not the Commitments have terminated, an Overadvance exists or the conditions in Section  6 are satisfied.

4.1.4 Notices. If Borrowers may request, convert or continue Loans, select interest rates and or transfer funds based on telephonic or e- mailed electronic instructions to Agent . , Borrowers shall confirm each such request by prompt delivery to Agent of a Notice of Borrowing or Notice of Conversion/Continuation, if as applicable , but if it differs materially from the action taken by Agent or Lenders, the records of Agent and Lenders shall govern . Neither Agent nor any Lender shall have any liability for any loss suffered by a Borrower as a result of Agent or any Lender acting upon its understanding of telephonic or e- mailed electronic instructions from a person believed in good faith by Agent or any Lender to be a person authorized to give such instructions on a Borrower’s behalf.

4.2 Defaulting Lender . Notwithstanding anything herein to the contrary:

4.2.1 Reallocation of Pro Rata Share; Amendments . For purposes of determining Lenders’ obligations or rights to fund, participate in or receive collections with respect to Loans and Letters of Credit (including existing Swingline Loans, Protective Advances and LC Obligations), Agent may in its discretion reallocate Pro Rata shares by excluding the Commitments and Loans of a Defaulting Lender from the calculation of such shares. A Defaulting Lender shall have no right to vote on any amendment, waiver or other modification of a Loan Document, except as provided in Section 14.1.1(c) .

 

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4.2.2 Payments; Fees . Agent may, in its discretion, receive and retain any amounts payable to a Defaulting Lender under the Loan Documents, and a Defaulting Lender shall be deemed to have assigned to Agent such amounts until all Obligations owing to Agent, non-Defaulting Lenders and other Secured Parties have been paid in full. Agent may use such amounts to cover the Defaulting Lender’s defaulted obligations, to Cash Collateralize such Lender’s Fronting Exposure, to readvance the amounts to Borrowers or to repay Obligations. A Lender shall not be entitled to receive any fees accruing hereunder during the period in which it is a Defaulting Lender, and the unfunded portion of its Commitment shall be disregarded for purposes of calculating the unused line fee under Section  3.2.1 . If any LC Obligations owing to a Defaulted Lender are reallocated to other Lenders, fees attributable to such LC Obligations under Section  3.2.2 shall be paid to such Lenders. Agent shall be paid all fees attributable to LC Obligations that are not reallocated.

4.2.3 Status; Cure . Agent may determine in its discretion that a Lender constitutes a Defaulting Lender and the effective date of such status shall be conclusive and binding on all parties, absent manifest error. Borrowers, Agent and Issuing Bank may agree in writing that a Lender has ceased to be a Defaulting Lender, whereupon Pro Rata shares shall be reallocated without exclusion of the reinstated Lender’s Commitments and Loans, and the Revolver Usage and other exposures under the Commitments shall be reallocated among Lenders and settled by Agent (with appropriate payments by the reinstated Lender, including its payment of any breakage costs for reallocated LIBOR Loans) in accordance with the readjusted Pro Rata shares. Unless expressly agreed by Borrowers, Agent and Issuing Bank, no or as expressly provided herein with respect to Bail-In Actions and related matters, no reallocation of Commitments and Loans to non-Defaulting Lenders or reinstatement of a Defaulting Lender shall constitute a waiver or release of claims against such Lender. The failure of any Lender to fund a Loan, to make a payment in respect of LC Obligations or otherwise to perform obligations hereunder shall not relieve any other Lender of its obligations under any Loan Document, and no Lender shall be responsible for default by another Lender.

4.3 Number and Amount of LIBOR Loans; Determination of Rate . Each Borrowing of LIBOR Loans when made shall be in a minimum amount of $500,000, plus an increment of $100,000 in excess thereof. No more than ten (10) Borrowings of LIBOR Loans may be outstanding at any time, and all LIBOR Loans having the same length and beginning date of their Interest Periods shall be aggregated together and considered one Borrowing for this purpose. Upon determining LIBOR for any Interest Period requested by Borrowers, Agent shall promptly notify Borrowers thereof by telephone or electronically and, if requested by Borrowers, shall confirm any telephonic notice in writing.

4.4 Borrower Agent . Each Borrower hereby designates Company (“ Borrower Agent ”) as its representative and agent for all purposes under the Loan Documents, including requests for Loans and Letters of Credit, designation of interest rates, delivery or receipt of communications, preparation and delivery of Borrower Materials, receipt and payment of Obligations, requests for waivers, amendments or other accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with Agent, Issuing Bank or any Lender. Borrower Agent hereby accepts such appointment. Agent and Lenders shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or communication (including any notice of borrowing) delivered by Borrower Agent on behalf of any Borrower. Agent and Lenders may give any notice or communication with a Borrower hereunder to Borrower Agent on behalf of such Borrower. Each of Agent, Issuing Bank and Lenders shall have the right, in its discretion, to deal exclusively with Borrower Agent for any or all purposes under the Loan Documents. Each Borrower agrees that any notice, election, communication, representation, agreement , action, omission or undertaking made on its behalf by Borrower Agent shall be binding upon and enforceable against it s uch Borrower .

 

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4.5 One Obligation . The Loans, LC Obligations and other Obligations constitute one general obligation of Borrowers and are secured by Agent’s Lien on all Collateral; provided , however , that Agent and each Lender shall be deemed to be a creditor of, and the holder of a separate claim against, each Borrower to the extent of any Obligations jointly or severally owed by such Borrower.

4.6 Effect of Termination. On the effective date of the termination of all Commitments, the Obligations shall be immediately due and payable, and each Secured Bank Product Provider may terminate its Bank Products. Until Full Payment of the Obligations, all undertakings of Borrowers contained in the Loan Documents shall continue, and Agent shall retain its Liens in the Collateral and all of its rights and remedies under the Loan Documents. Agent shall not be required to terminate its Liens unless it receives Cash Collateral or a written agreement, in each case satisfactory to it, protecting Agent and Lenders from dishonor or return of any Payment Item previously applied to the Obligations. Sections 2.2, 3.4, 3.6, 3.7, 3.9, 5.4, 5.8, 5.9, 12, 14.2 , this Section  4.6 , and each indemnity or waiver given by an Obligor or Lender in any Loan Document, shall survive Full Payment of the Obligations.

SECTION 5. PAYMENTS

5.1 General Payment Provisions . All payments of Obligations shall be made in Dollars, without offset, counterclaim or defense of any kind, free and clear of (and without deduction for) any Taxes, and in immediately available funds, not later than 1:00 p.m. on the due date. Any payment after such time shall be deemed made on the next Business Day. Any payment of a LIBOR Loan prior to the end of its Interest Period shall be accompanied by all amounts due under Section  3.9 . Borrowers agree that Agent shall have the continuing, exclusive right to apply and reapply payments and proceeds of Collateral against the Obligations, in such manner as Agent deems advisable, but whenever possible, any prepayment of Loans shall be applied first to Base Rate Loans and then to LIBOR Loans.

5.2 Repayment of Loans . Loans shall be due and payable in full on the Revolver Termination Date, unless payment is sooner required hereunder. Loans may be prepaid from time to time, without penalty or premium. Borrower Agent shall give Agent notice of such prepayment not later than 11:00 a.m. (i) one Business Day prior to the proposed prepayment date, in the case of Base Rate Loans, and (ii) three Business Days prior to the proposed prepayment date, in the case of LIBOR Loans. Notices received after such time shall be deemed received on the next Business Day. Subject to Section  2.1.5 , if an Overadvance exists at any time, Borrowers shall, on the sooner of Agent’s demand or the first Business Day after any Borrower has knowledge thereof, repay Loans or Cash Collateralize Letters of Credit in an amount sufficient to reduce Revolver Usage to the Borrowing Base. If any Specified Asset Disposition includes the disposition of Accounts or Inventory, Borrowers shall apply the proceeds thereof to repay Loans (without any Commitment reduction) equal to the greater of (a) the book value of such Accounts and Inventory, or (b) the reduction in the Borrowing Base resulting from the disposition.

5.3 Payment of Other Obligations . Obligations other than Loans, including LC Obligations and Extraordinary Expenses, shall be paid by Borrowers as provided in the Loan Documents or, if no payment date is specified, on demand .

5.4 Marshaling; Payments Set Aside . None of Agent or Lenders shall be under any obligation to marshal any assets in favor of any Obligor or against any Obligations. If any payment by or on behalf of Borrowers is made to Agent, Issuing Bank or any Lender, or if Agent, Issuing Bank or any Lender exercises a right of setoff, and any of such payment or setoff is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Agent, Issuing Bank or a Lender in its discretion) to be repaid to a trustee, receiver or any other Person, then the Obligation originally intended to be satisfied, and all Liens, rights and remedies relating thereto, shall be revived and continued in full force and effect as if such payment or setoff had not occurred.

 

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5.5 Application and Allocation of Payments .

5.5.1 Application . Payments made by Borrowers hereunder shall be applied (a)  first , as specifically required hereby; (b)  second , to Obligations then due and owing; (b)  third , to other Obligations specified by Borrowers; and (c)  fourth , as determined by Agent in its discretion.

5.5.2 Post-Default Allocation . Notwithstanding anything in any Loan Document to the contrary, during an Event of Default, monies to be applied to the Obligations, whether arising from payments by Obligors, realization on Collateral, setoff or otherwise, shall be allocated as follows:

(a) first , to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent;

(b) second , to all amounts owing to Agent on Swingline Loans, Protective Advances, and Loans and participations that a Defaulting Lender has failed to settle or fund;

(c) third , to all amounts owing to Issuing Bank;

(d) fourth , to all Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing to Lenders;

(e) fifth , to all Obligations (other than Secured Bank Product Obligations) constituting interest;

(f) sixth , to Cash Collateralize all LC Obligations;

(g) seventh , to all Loans, and to Secured Bank Product Obligations arising under Hedge Agreements (including Cash Collateralization thereof) up to the amount of Bank Product Reserves relating to Secured Bank Product Obligations arising under Hedging Agreements existing therefor;

(h) eighth , to all other Secured Bank Product Obligations; and

(i) last , to all remaining Obligations.

Amounts shall be applied to payment of each category of Obligations only after Full Payment of amounts payable from time to time under all preceding categories. If amounts are insufficient to satisfy a category, they shall be paid ratably among outstanding Obligations in the category. Monies and proceeds obtained from an Obligor shall not be applied to its Excluded Swap Obligations, but appropriate adjustments shall be made with respect to amounts obtained from other Obligors to preserve the allocations in any applicable category. Agent shall have no obligation to calculate the amount of any Secured Bank Product Obligation and may request a reasonably detailed calculation thereof from a Secured Bank Product Provider. If the provider fails to deliver the calculation within five days following request, Agent may assume the amount is zero. The allocations set forth in this Section  5.5.2 are solely to determine the rights and priorities among Secured Parties, and may be changed by agreement of the affected Secured Parties, without the consent of any Obligor. This Section  5.5.2 is not for the benefit of or enforceable by any Obligor, and each Borrower irrevocably waives the right to direct the application of any payments or Collateral proceeds subject to this Section  5.5.2 .

5.5.3 Erroneous Application . Agent shall not be liable for any application of amounts made by it in good faith and, if any such application is subsequently determined to have been made in error, the sole recourse of any Lender or other Person to which such amount should have been made shall be to recover the amount from the Person that actually received it (and, if such amount was received by a Secured Party, the Secured Party agrees to return it).

 

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5.6 Dominion Account . The ledger balance in the main Dominion Account as of the end of a Business Day and all proceeds of ABL Priority Collateral received by Agent as of the end of any Business Day shall be applied to the Obligations at the beginning of the next Business Day during any Cash Dominion Trigger Period. If a credit balance results from such application and all Letters of Credit required to be Cash Collateralized in accordance with the terms hereof shall have been so Cash Collateralized, it shall not accrue interest in favor of Borrowers and shall promptly be made available to Borrowers.

5.7 Account Stated . Agent shall maintain, in accordance with its customary practices, loan account(s) evidencing the Indebtedness of Borrowers hereunder. Any failure of Agent to record anything in a loan account, or any error in doing so, shall not limit or otherwise affect the obligation of Borrowers to pay any amount owing hereunder. Entries made in a loan account shall constitute presumptive evidence of the information contained therein. If any information contained in a loan account is provided to or inspected by any Person, the information shall be conclusive and binding on such Person for all purposes absent manifest error, except to the extent such Person notifies Agent in writing within 30 days after receipt or inspection that specific information is subject to dispute.

5.8 Taxes .

5.8.1 Payments Free of Taxes; Obligation to Withhold; Tax Payment .

(a) All payments of Obligations by Obligors shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If Applicable Law (as determined by Agent in its discretion) requires the deduction or withholding of any Tax from any such payment by Agent or an Obligor, then Agent or such Obligor shall be entitled to make such deduction or withholding based on information and documentation provided pursuant to Section  5.9 .

(b) If Agent or any Obligor is required by the Code to withhold or deduct Taxes, including backup withholding and withholding taxes, from any payment, then (i) Agent shall pay the full amount that it determines is to be withheld or deducted to the relevant Governmental Authority pursuant to the Code, and (ii) to the extent the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Obligor shall be increased as necessary so that the Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

(c) If Agent or any Obligor is required by any Applicable Law other than the Code to withhold or deduct Taxes from any payment, then (i) Agent or such Obligor, to the extent required by Applicable Law, shall timely pay the full amount to be withheld or deducted to the relevant Governmental Authority, and (ii) to the extent the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Obligor shall be increased as necessary so that the Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

5.8.2 Payment of Other Taxes . Without limiting the foregoing, Borrowers shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at Agent’s option, timely reimburse Agent for payment of, any Other Taxes.

5.8.3 Tax Indemnification .

(a) Each Borrower shall indemnify and hold harmless, on a joint and several basis, each Recipient against any Indemnified Taxes (including those imposed or asserted on or attributable to amounts payable under this Section  5.8.3 ) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. Each Borrower shall indemnify and hold harmless Agent against any amount that a Lender or Issuing Bank fails for any reason to pay indefeasibly to Agent as required pursuant to this Section  5.8.3 . Each Borrower shall make payment

 

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within 10 days after demand for any amount or liability payable under this Section  5.8.3 . A certificate as to the amount of such payment or liability delivered to Borrowers by a Lender or Issuing Bank (with a copy to Agent), or by Agent on its own behalf or on behalf of any Recipient, shall be conclusive absent manifest error.

(b) Each Lender and Issuing Bank shall indemnify and hold harmless, on a several basis, (i) Agent against any Indemnified Taxes attributable to such Lender or Issuing Bank (but only to the extent Borrowers have not already paid or reimbursed Agent therefor and without limiting Borrowers’ obligation to do so), (ii) Agent and Obligors, as applicable, against any Taxes attributable to such Lender’s failure to maintain a Participant register as required hereunder, and (iii) Agent and Obligors, as applicable, against any Excluded Taxes attributable to such Lender or Issuing Bank, in each case, that are payable or paid by Agent or an Obligor in connection with any Obligations, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. Each Lender and Issuing Bank shall make payment within 10 days after demand for any amount or liability payable under this Section  5.8.3 . A certificate as to the amount of such payment or liability delivered to any Lender or Issuing Bank by Agent shall be conclusive absent manifest error.

5.8.4 Evidence of Payments . If Agent or an Obligor pays any Taxes pursuant to this Section  5.8.4 , then upon request, Agent shall deliver to Borrower Agent or Borrower Agent shall deliver to Agent, respectively, a copy of a receipt issued by the appropriate Governmental Authority evidencing the payment, a copy of any return required by Applicable Law to report the payment, or other evidence of payment reasonably satisfactory to Agent or Borrower Agent, as applicable.

5.8.5 Treatment of Certain Refunds . Unless required by Applicable Law, at no time shall Agent have any obligation to file for or otherwise pursue on behalf of a Lender or Issuing Bank, nor have any obligation to pay to any Lender or Issuing Bank, any refund of Taxes withheld or deducted from funds paid for the account of a Lender or Issuing Bank. If a Recipient determines in its discretion that it has received a refund of any Taxes as to which it has been indemnified by Borrowers or with respect to which a Borrower has paid additional amounts pursuant to this Section  5.8.5 , it shall pay Borrowers an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by Borrowers with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes imposed in connection with such refund) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that Borrowers agree, upon request by the Recipient, to repay the amount paid over to Borrowers (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient if the Recipient is required to repay such refund to the Governmental Authority. Notwithstanding anything herein to the contrary, no Recipient shall be required to pay any amount to Borrowers to the extent such payment would place the Recipient in a less favorable net after-Tax position than it 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. In no event shall Agent or any Recipient be required to make its tax returns (or any other information relating to its taxes that it deems confidential) available to any Obligor or other Person.

5.8.6 Survival . Each party’s obligations under Sections 5.8 and 5.9 shall survive the resignation or replacement of Agent or any assignment of rights by or replacement of a Lender or Issuing Bank, the termination of the Commitments, and the repayment, satisfaction, discharge or Full Payment of any Obligations.

 

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5.9 Lender and Agent Tax Information .

5.9.1 Status of Lenders . Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments of Obligations shall deliver to Borrowers and Agent properly completed and executed documentation reasonably requested by Borrowers or Agent as will permit such payments to be made without or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrowers or Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by Borrowers or Agent to enable them to determine whether such Lender is subject to backup withholding or information reporting requirements and to satisfy any such information reporting requirements. Notwithstanding the foregoing, such documentation (other than documentation described in Sections 5.9.2(a) , (b) and (d) ) shall not be required if a Lender reasonably believes delivery of the documentation would subject it to any material unreimbursed cost or expense or would materially prejudice its legal or commercial position.

5.9.2 Lender Documentation . Without limiting the foregoing, if any Borrower is a U.S. Person,

(a) Any Lender that is a U.S. Person shall deliver to Borrowers and Agent on or prior to the date on which such Lender becomes a Lender hereunder, from time to time thereafter upon reasonable request of Borrowers or Agent and pursuant to Section  5.9.4 , executed originals of IRS Form W-9, certifying that such Lender is exempt from U.S. federal backup withholding Tax;

(b) Any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrowers and Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender hereunder, from time to time thereafter upon reasonable request of Borrowers or Agent and pursuant to Section  5.9.4 , whichever of the following is applicable:

(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party, (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from or reduction of U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty, and (y) with respect to other payments under the Loan Documents, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from or reduction of U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(ii) executed originals of IRS Form W-8ECI;

(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Sections 871(h) or 881(c) of the Code, (x) a certificate substantially in the form of Exhibit E-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (“U.S. Tax Compliance Certificate”), and (y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E ; or

(iv) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E , a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2 or Exhibit E-3 , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-4 on behalf of each such direct and indirect partner;

 

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(c) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrowers and Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender hereunder, from time to time thereafter upon the reasonable request of Borrowers or Agent and pursuant to Section  5.9.4 , executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit Borrowers or Agent to determine the withholding or deduction required to be made; and

(d) if payment of an Obligation to a Recipient would be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code), such Recipient shall deliver to Borrowers and Agent at the time(s) prescribed by Applicable Law and otherwise as reasonably requested by Borrowers or Agent or pursuant to Section  5.9.4 , such documentation prescribed by Applicable Law (including Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrowers or Agent as may be necessary for them to comply with their obligations under FATCA and to determine that such Recipient has complied with its obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (d) , “FATCA” shall include any amendments made to FATCA after the date hereof Closing Date .

5.9.3 Agent Documentation . Any Agent that is entitled to an exemption from or reduction of withholding Tax with respect to payments of Obligations shall deliver to Borrowers properly completed and executed documentation reasonably requested by Borrowers as will permit such payments to be made without or at a reduced rate of withholding. In addition, any Agent, if reasonably requested by a Borrower, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by such Borrower as will enable such Borrower to determine whether or not such Agent is subject to backup withholding or information reporting requirements and to satisfy any such information reporting requirements. Without limiting the foregoing, if any Borrower is a U.S. Person, any Agent that is a U.S. Person shall deliver to Borrowers on or prior to the date on which such Agent becomes an Agent hereunder, from time to time thereafter upon reasonable request of Borrowers and pursuant to Section  5.9.4 , executed originals of IRS Form W-9, certifying that such Agent is exempt from U.S. federal backup withholding Tax

5.9.4 Redelivery of Documentation . If any form or certification previously delivered by a Recipient pursuant to this Section  5.9 expires or becomes obsolete or inaccurate in any respect, such Recipient shall promptly update the form or certification or notify Borrowers and Agent in writing of its inability to do so.

5.10 Nature and Extent of Each Borrower’s Liability .

5.10.1 Joint and Several Liability . Each Borrower agrees that it is jointly and severally liable for, and absolutely and unconditionally guarantees to Agent and Lenders the prompt payment and performance of, all Obligations, except its Excluded Swap Obligations. Each Borrower agrees that its guaranty obligations hereunder constitute a continuing guaranty of payment and not of collection, that such obligations shall not be discharged until Full Payment of the Obligations, and that such obligations are absolute and unconditional, irrespective of (a) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any Obligations or Loan Document, or any other document, instrument or agreement to which any Obligor is or may become a party or be bound; (b) the absence of any action to enforce this Agreement (including this Section  5.10 ) or any other Loan

 

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Document, or any waiver, consent or indulgence of any kind by Agent or any Lender with respect thereto; (c) the existence, value or condition of, or failure to perfect a Lien or to preserve rights against, any security or guaranty for any Obligations or any action, or the absence of any action, by Agent or any Lender in respect thereof (including the release of any security or guaranty); (d) the insolvency of any Obligor; (e) any election by Agent or any Lender in an Insolvency Proceeding for the application of Section 1111(b)(2) of the Bankruptcy Code; (f) any borrowing or grant of a Lien by any other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code or otherwise; (g) the disallowance of any claims of Agent or any Lender against any Obligor for the repayment of any Obligations under Section 502 of the Bankruptcy Code or otherwise; or (h) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, except Full Payment of the Obligations.

5.10.2 Waivers .

(a) Each Borrower expressly waives all rights that it may have now or in the future under any statute, at common law, in equity or otherwise, to compel Agent or Lenders to marshal assets or to proceed against any Obligor, other Person or security for the payment or performance of any Obligations before, or as a condition to, proceeding against such Borrower. Each Borrower waives all defenses available to a surety, guarantor or accommodation co-obligor other than Full Payment of Obligations and waives, to the maximum extent permitted by law, any right to revoke any guaranty of Obligations as long as it is a Borrower. It is agreed among each Borrower, Agent and Lenders that the provisions of this Section  5.10 are of the essence of the transaction contemplated by the Loan Documents and that, but for such provisions, Agent and Lenders would decline to make Loans and issue Letters of Credit. Each Borrower acknowledges that its guaranty pursuant to this Section  5.10 is necessary to the conduct and promotion of its business, and can be expected to benefit such business.

(b) Agent and Lenders may, in their discretion, pursue such rights and remedies as they deem appropriate, including realization upon Collateral or any Real Estate by judicial foreclosure or nonjudicial sale or enforcement, without affecting any rights and remedies under this Section  5.10 . If, in taking any action in connection with the exercise of any rights or remedies, Agent or any Lender shall forfeit any other rights or remedies, including the right to enter a deficiency judgment against any Borrower or other Person, whether because of any Applicable Laws pertaining to “election of remedies” or otherwise, each Borrower consents to such action and waives any claim based upon it, even if the action may result in loss of any rights of subrogation that any Borrower might otherwise have had. Any election of remedies that results in denial or impairment of the right of Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower’s obligation to pay the full amount of the Obligations. Each Borrower waives all rights and defenses arising out of an election of remedies, such as nonjudicial foreclosure with respect to any security for Obligations, even though that election of remedies destroys such Borrower’s rights of subrogation against any other Person. Agent may bid Obligations, in whole or part, at any foreclosure, trustee or other sale, including any private sale, and the amount of such bid need not be paid by Agent but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether Agent or any other Person is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral, and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section  5.10 , notwithstanding that any present or future law or court decision may have the effect of reducing the amount of any deficiency claim to which Agent or any Lender might otherwise be entitled but for such bidding at any such sale.

5.10.3 Extent of Liability; Contribution .

(a) Notwithstanding anything herein to the contrary, each Borrower’s liability under this Section  5.10 shall not exceed the greater of (i) all amounts for which such Borrower is primarily liable, as described in clause (c)  below, and (ii) such Borrower’s Allocable Amount.

 

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(b) If any Borrower makes a payment under this Section  5.10 of any Obligations (other than amounts for which such Borrower is primarily liable) (a “ Guarantor Payment ”) that, taking into account all other Guarantor Payments previously or concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payments in the same proportion that such Borrower’s Allocable Amount bore to the total Allocable Amounts of all Borrowers, then such Borrower shall be entitled to receive contribution and indemnification payments from, and to be reimbursed by, each other Borrower for the amount of such excess, ratably based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. The “Allocable Amount” for any Borrower shall be the maximum amount that could then be recovered from such Borrower under this Section  5.10 without rendering such payment voidable under Section 548 of the Bankruptcy Code or under any applicable state fraudulent transfer or conveyance act, or similar statute or common law.

(c) Section 5.10.3(a) shall not limit the liability of any Borrower to pay or guarantee Loans made directly or indirectly to it (including Loans advanced hereunder to any other Person and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower), LC Obligations relating to Letters of Credit issued to support its business, Secured Bank Product Obligations incurred to support its business, and all accrued interest, fees, expenses and other related Obligations with respect thereto, for which such Borrower shall be primarily liable for all purposes hereunder. Agent and Lenders shall have the right, at any time in their discretion, to condition Loans and Letters of Credit upon a separate calculation of borrowing availability for each Borrower and to restrict the disbursement and use of Loans and Letters of Credit to a Borrower based on that calculation.

(d) Each Obligor that is a Qualified ECP when its guaranty of or grant of Lien as security for a Swap Obligation becomes effective hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to guaranty such Swap Obligations of each Specified Obligor as may be needed by such Specified Obligor from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP’s obligations and undertakings under this Section  5.10 voidable under any applicable fraudulent transfer or conveyance act). The obligations and undertakings of each Qualified ECP under this Section  5.10 shall remain in full force and effect until Full Payment of all Obligations. Each Obligor intends this Section 5.10.3(d) to constitute, and this Section 5.10.3(d) shall be deemed to constitute, a guarantee of the obligations of each Obligor for all purposes of the Commodity Exchange Act.

5.10.4 Joint Enterprise . Each Borrower has requested that Agent and Lenders make this credit facility available to Borrowers on a combined basis, in order to finance Borrowers’ business most efficiently and economically. Borrowers’ business is a mutual and collective enterprise, and the successful operation of each Borrower is dependent upon the successful performance of the integrated group. Borrowers believe that consolidation of their credit facility will enhance the borrowing power of each Borrower and ease administration of the facility, all to their mutual advantage. Borrowers acknowledge that Agent’s and Lenders’ willingness to extend credit and to administer the Collateral on a combined basis hereunder is done solely as an accommodation to Borrowers and at Borrowers’ request.

5.10.5 Subordination . Each Borrower hereby subordinates any claims, including any rights at law or in equity to payment, subrogation, reimbursement, exoneration, contribution, indemnification or set off, that it may have at any time against any other Obligor, howsoever arising, to the Full Payment of its Obligations.

 

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SECTION 6. CONDITIONS PRECEDENT

6.1 Conditions Precedent to Initial Loans . In addition to the conditions set forth in Section  6.2 , Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“ Closing Date ”) that each of the following conditions has been satisfied:

(a) This Agreement, the Guarantee and Collateral Agreement, the Perfection Certificate, the Intercreditor Agreement and each other Loan Document required by the terms hereof to be delivered on the Closing Date shall have been duly executed and copies of executed counterparts of each such Loan Document shall have been delivered to Agent by each of the signatories thereto.

(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral (other than Collateral which may be perfected post-closing in accordance with the terms hereof) (or arrangements satisfactory to Agent for filing financing statements shall have been made), as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.

(c) Agent shall have received a life-of-loan flood hazard determination for all Real Estate owned by an Obligor and, if such Real Estate is located in a special flood hazard area, an acknowledged notice to the applicable Borrower and flood insurance by an insurer acceptable to Agent.

(d) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, set forth on Schedule 8.5 , in form and substance, and with financial institutions, satisfactory to Agent and duly executed Deposit Account Control Agreements, in form and substance, reasonably satisfactory to Agent.

(e) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunder, (i) Company and each of its Subsidiaries, on a consolidated basis, is Solvent; (ii) no Default or Event of Default exists; and (iii) the representations and warranties set forth in Section  9 are true and correct.

(f) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.

(g) Agent shall have received a written opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, as well as any local counsel to Borrowers for each jurisdiction in which an Obligor is organized, in each case, in form and substance reasonably satisfactory to Agent.

(h) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization.

(i) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents.

(j) Since April 28, 2012, there has been no circumstance, event or condition that has or could reasonably be expected to have a material adverse effect on the business, assets, liabilities, operations, or financial condition of Borrowers, taken as a whole (excluding the Bankruptcy Proceedings and any historical events associated with the Bankruptcy Proceedings, and any events that customarily occur as part of a proceeding under Chapter 11 of the Bankruptcy Code).

 

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(k) No action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (i) could reasonably be expected to have a material adverse effect on the business, assets, liabilities, operations, or financial condition of Obligors, taken as a whole, or could impair the ability of an Obligor to perform its obligations under the Loan Documents; or (ii) could reasonably be expected to materially and adversely affect the Transactions.

(l) Agent and the Original Lead Arrangers shall have received, in form and substance satisfactory to Agent and the Original Lead Arrangers, (i) a pro forma balance sheet of Company and its Subsidiaries dated as of the Closing Date and giving effect to the effectiveness of the Plan of Reorganization, (ii) financial projections of Company and its Subsidiaries, evidencing Borrowers’ ability to comply with the financial covenant set forth in the Loan Documents, and (iii) interim financial statements for Company and its Subsidiaries as of a date not more than 30 days prior to the Closing Date.

(m) Agent shall have received reasonably satisfactory evidence that Borrowers have received all governmental and third party consents and approvals as may be appropriate in connection with the Transactions.

(n) Agent and the Original Lead Arrangers shall have received a final collateral appraisal and field examination addressed or assigned to each of them and upon which each of them are entitled to rely and to share with potential lenders. Such collateral appraisal and field examination shall be, in each case, satisfactory to Agent and the Original Lead Arrangers.

(o) Borrowers shall have paid all fees and expenses to be paid to Agent, the Original Lead Arrangers and Lenders on the Closing Date.

(p) Agent shall have received a Borrowing Base Certificate prepared as of the Friday immediately prior to the Closing Date. Upon giving effect to the initial funding of loans and issuance of letters of credit, the consummation of the Transactions and the payment by Borrowers of all fees and expenses incurred in connection with the Transactions (including but not limited to administrative costs, cure costs, and the funding of cash out options for trade and other unsecured claims but excluding any Delayed Admin Claims ), including those payable post-closing, as well as any payables stretched beyond their customary payment practices, Availability shall be at least $45,000,000. In addition, Agent and the Original Lead Arrangers shall have received, in form and substance satisfactory to them, a 13-week cash flow statement commencing on the Closing Date and ending 13 weeks thereafter, demonstrating that Availability is not less than $25,000,000 at any time during such 13-week period.

(q) (i) Concurrently with the closing of the Senior Credit this Agreement and the Term Loan Facility, the obligations under each of the DIP Facilities shall have been discharged and satisfied in full, all commitments thereunder shall have been terminated, any unexpired letters of credit issued thereunder shall have been returned or collateralized in accordance with the terms of the Plan of Reorganization and all Liens securing the DIP Facilities shall have been released, and Agent and the Original Lead Arrangers shall have received (x) a payoff letter to that effect from the administrative agent under each of the DIP Facilities and (y) evidence reasonably satisfactory to it of the termination of all UCC financing statement filings relating to the DIP Facilities and (ii) after consummation of the Plan of Reorganization and giving effect to the Transactions, Obligors shall have no outstanding Indebtedness, contingent liabilities or claims against them, except as expressly contemplated by the Plan of Reorganization and expressly permitted under the Loan Documents.

(r) Company shall have entered into the Existing Term Loan Facility in an amount not to exceed $145,000,000 on terms acceptable to Agent and the Original Lead Arrangers.

 

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(s) The Confirmation Order shall (i) not have been reversed, vacated, amended, supplemented or otherwise modified in any manner without the written consent of Agent and the Original Lead Arrangers and (ii) be in full force and effect, unstayed, final and non-appealable and not subject to any appeal, motion to stay, motion for rehearing or reconsideration or a petition for writ of certiorari, unless waived by Agent and the Original Lead Arrangers in writing in their sole discretion.

(t) Agent shall have received evidence of the Delayed Admin Allowed Administrative Claims as defined in and contemplated by Article III.B.3 of the Plan of Reorganization.

(u) (i) All conditions precedent to the effectiveness of the Plan of Reorganization shall have been or shall substantially concurrently be satisfied or, with the consent of Agent and the Original Lead Arrangers, waived, (ii) the effective date of the Plan of Reorganization shall have occurred on or before the Closing Date, (iii) the substantial consummation (as defined in Section 1101 of the Bankruptcy Code) of the Plan of Reorganization in accordance with its terms shall occur substantially contemporaneously with the Closing Date and (iv) the Existing Term Loan Documents, the Intercreditor Agreement and all other documents, agreements and instruments necessary to consummate the Plan of Reorganization on the Effective Date (as defined in the Plan of Reorganization) shall, unless consented to by the Original Lead Arrangers, be consistent with the Plan of Reorganization and with the final engagement letter and term sheet in respect of the Existing Term Loan Agreement reviewed by the Original Lead Arrangers prior to the date of the Commitment Letter, exclusive of any changes that do not materially adversely affect the interests of Agent or the Lenders in their capacities as such in connection with this Agreement.

(v) Agent and Lenders shall have received all documentation and instruments required by regulatory authorities with respect to Borrowers under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, that has been reasonably requested by Lenders in advance of the Closing Date.

(w) Agent shall have received evidence of payoff of that certain Senior Secured Super-Priority Debtor-in-Possession Credit Agreement, dated as of January 31, 2013, among Company and certain of its Subsidiaries party thereto, as borrowers, the guarantors party thereto, as guarantors, the lenders party thereto, as lenders, and Bayside Finance LLC, as administrative agent.

6.2 Conditions Precedent to All Credit Extensions . Agent, Issuing Bank and Lenders shall not be required to fund any Loans, arrange for issuance of any Letters of Credit or grant any other accommodation to or for the benefit of Borrowers, unless the following conditions are satisfied:

(a) No Default or Event of Default shall exist at the time of, or result from, such funding, issuance or grant;

(b) (i) with respect to any credit extension on the Closing Date, the representations and warranties of each Obligor in the Loan Documents shall be true and correct on the date of, and upon giving effect to, such funding, issuance or grant (except for representations and warranties that expressly relate to an earlier date) and (ii) with respect to any credit extension after the Closing Date, the representations and warranties of each Obligor in the Loan Documents shall be true and correct in all material respects (except to the extent already qualified by materiality, in which case it will be true and correct in all respects) on the date of, and upon giving effect to, such funding, issuance or grant (except for representations and warranties that expressly relate to an earlier date);

(c) No event shall have occurred or circumstance exist that has or could reasonably be expected to have a Material Adverse Effect; and

 

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(d) With respect to issuance of a Letter of Credit, the LC Conditions shall be satisfied.

Each request (or deemed request) by Borrowers for funding of a Loan, issuance of a Letter of Credit or grant of an accommodation shall constitute a representation by Borrowers that the foregoing conditions are satisfied on the date of such request and on the date of such funding, issuance or grant.

SECTION 7. COLLATERAL

7.1 Cash Collateral . Cash Collateral may be invested, at Agent’s discretion (and with the consent of Borrowers, as long as no Event of Default exists), but Agent shall have no duty to do so, regardless of any agreement or course of dealing with any Borrower, and shall have no responsibility for any investment or loss. As security for its Obligations, each Borrower hereby grants to Agent a security interest in and Lien upon all Cash Collateral held from time to time and all proceeds thereof, whether held in a Cash Collateral Account or otherwise. Agent may apply Cash Collateral to the payment of such Obligations as they become due, in such order as Agent may elect. Each Cash Collateral Account and all Cash Collateral shall be under the sole dominion and control of Agent, and no Borrower or other Person (subject to the terms of the Intercreditor Agreement) shall have any right to any Cash Collateral, until Full Payment of the Obligations.

7.2 [Reserved]. 7.2 Real Estate Collateral . The Obligations shall also be secured by Mortgages upon all Real Estate owned by Obligors set forth on Schedule 8.6.1 , which such Mortgages shall be delivered, along with the Related Real Estate Documents, within 90 days of the Closing Date (which period may be extended with the reasonable consent of Agent). The Mortgages shall be duly recorded, at Borrowers expense, in each office where such recording is required to constitute a fully perfected Lien on the Real Estate covered thereby, subject only to Permitted Liens, including, for the avoidance of doubt, the Lien in favor of the Term Loan Agent. If any Borrower acquires Real Estate hereafter having a fair market value in excess of $2,500,000, Borrowers shall, within 90 days (or such longer period as Agent may reasonably consent) of such acquisition, execute, deliver and record a Mortgage sufficient to create a fully perfected Lien in favor of Agent on such Real Estate, subject only to Permitted Liens, including, for the avoidance of doubt, the Lien in favor of the Term Loan Agent on such Real Estate under the Term Loan Documents, and shall deliver all Related Real Estate Documents; provided that so long as the Term Loan Facility is in effect Borrowers shall not be required to deliver any such Mortgages unless the Term Loan Agent has requested or required that Borrowers deliver such Mortgages.

7.3 Other Collateral .

7.3.1 Commercial Tort Claims . Borrowers shall promptly notify Agent in writing if any Borrower has a Commercial Tort Claim (other than, as long as no Event of Default exists, a Commercial Tort Claim for less than $500,000), shall promptly amend Schedule 9.1.16 to include such claim, and shall take such actions as Agent deems appropriate to subject such claim to a duly perfected, first priority Lien in favor of Agent (subject only to the Lien in favor of the Term Loan Agent and any other Permitted First Lien Debt on such claim).

7.3.2 Certain After-Acquired Collateral . Borrowers shall promptly notify Agent in writing if, after the Closing Date, any Borrower obtains any interest in any Collateral consisting of Deposit Accounts , Chattel Paper, Documents, Instruments , Intellectual Property , Investment Property or Letter-of-Credit Rights with a value in excess of $500,000 for any such item of Collateral and, upon Agent’s reasonable request, shall promptly take such actions as Agent deems appropriate to effect Agent’s duly perfected, first priority Lien upon such Collateral, including obtaining any appropriate possession or control agreement or Lien Waiver. Notwithstanding anything herein to the contrary, no Borrower shall take any action to perfect or record any security interest in any part of the Collateral under the laws of any jurisdiction outside of the United States of America. If any Collateral is in the possession of a third party, at Agent’s request, Borrowers shall use commercially reasonable efforts to obtain an acknowledgment that such third party holds the Collateral for the benefit of Agent.

 

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7.4 Limitations . The Lien on Collateral granted under any Loan Document is given as security only and shall not subject Agent or any Lender to, or in any way modify, any obligation or liability of Obligors relating to any Collateral. In no event shall the grant of any Lien under any Loan Document secure an Excluded Swap Obligation of the granting Obligor.

7.5 Further Assurances . All Liens granted to Agent under the Loan Documents are for the benefit of Secured Parties. Promptly upon Agent’s reasonable request, Obligors shall deliver such instruments and agreements, and shall take such actions, as Agent reasonably deems appropriate under Applicable Law to evidence or perfect its Lien on any Collateral, or otherwise to give effect to the intent of this Agreement. Each Obligor authorizes Agent to file any financing statement that describes the Collateral as “all assets” or “all personal property” of such Obligor, or words to similar effect, and ratifies any action taken by Agent before the Closing Date to effect or perfect its Lien on any Collateral.

SECTION 8. COLLATERAL ADMINISTRATION

8.1 Borrowing Base Certificates . By the 15th day of each month, Borrowers shall deliver to Agent (and Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate prepared as of the close of business of the previous month, and at such other times as Agent may request; provided that during any Reporting Trigger Period, Borrowers shall deliver a Borrowing Base Certificate within two Business Days after the end of each calendar week. All calculations of Availability in any Borrowing Base Certificate shall originally be made by Borrowers and certified by a Senior Officer, provided that Agent may from time to time review and adjust any such calculation (a) to reflect its reasonable estimate of declines in value of any Collateral, due to collections received in the Dominion Account or otherwise; (b) to adjust advance rates to reflect changes in dilution, quality, mix and other factors affecting Collateral; and (c) to the extent the calculation is not made in accordance with this Agreement or does not accurately reflect the Availability Reserve.

8.2 Administration of Accounts .

8.2.1 Records and Schedules of Accounts . Each Borrower shall keep accurate and complete records of its Accounts, including all payments and collections thereon, and shall submit to Agent sales, collection, reconciliation and other reports in form reasonably satisfactory to Agent, on such periodic basis as Agent may request. Each Borrower shall also provide to Agent, on or before the 15th day of each month, a detailed aged trial balance of all Accounts as of the end of the preceding month, specifying each Account’s Account Debtor name and address, amount, invoice date and due date, showing any discount, allowance, credit, authorized return or dispute, and including such proof of delivery, copies of invoices and invoice registers, copies of related documents, repayment histories, status reports and other information as Agent may reasonably request. If Accounts in an aggregate face amount of $750,000 or more cease to be Eligible Accounts, Borrowers shall notify Agent of such occurrence promptly (and in any event within one Business Day) after any Borrower has knowledge thereof.

8.2.2 Taxes . If an Account of any Borrower includes a charge for any Taxes, Agent is authorized, in its discretion, to pay the amount thereof to the proper taxing authority for the account of such Borrower and to charge Borrowers therefor; provided , however , that neither Agent nor Lenders shall be liable for any Taxes that may be due from Borrowers or with respect to any Collateral.

8.2.3 Account Verification . Whether or not a Default or Event of Default exists, Agent shall have the right at any time, in the name of Agent, any designee of Agent or any Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrowers by mail, telephone or otherwise. Borrowers shall cooperate fully with Agent in an effort to facilitate and promptly conclude any such verification process.

 

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8.2.4 Maintenance of Dominion Account . Obligors shall maintain Dominion Accounts pursuant to lockbox or other arrangements reasonably acceptable to Agent. Obligors shall obtain a Deposit Account Control Agreement or a Securities Account Control Agreement, in each case in form and substance reasonably satisfactory to Agent, from each lockbox servicer and Dominion Account bank, establishing Agent’s control over and first priority perfected Lien in the lockbox or Dominion Account, requiring the immediate deposit of all remittances received in any lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges. Prior to a Cash Dominion Period, Agent shall not deliver a notice of Exclusive Control with respect to any Dominion Account. During a Cash Dominion Trigger Period, each Obligor hereby irrevocably waives the right to direct the application of funds in a Dominion Account and agrees that Agent may and, upon the written direction of the Required Lenders given at any time during such Cash Dominion Trigger Period, shall deliver a notice of exclusive control (as described in each Deposit Account Control Agreement) to each Dominion bank for each Dominion Account, and thereafter require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. Agent and Lenders assume no responsibility to Borrowers for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank. Promptly following the commencement of any Cash Dominion Trigger Period, each Borrower shall give notice reasonably satisfactory to Agent to each credit card processor that processes its credit card receivables to require it to make daily transfers of the payments due from such processor to a Dominion Account.

8.2.5 Proceeds of Collateral . Borrowers shall request in writing and otherwise take all necessary steps to ensure that all payments on Accounts or otherwise relating to Collateral are made directly to a Dominion Account (or a lockbox relating to a Dominion Account). If any Borrower or Subsidiary receives cash or Payment Items with respect to any Collateral, it shall hold same in trust for Agent and promptly (not later than the next Business Day) deposit same into a Dominion Account. During any Cash Dominion Trigger Period, all amounts in any Dominion Account and all payments on Accounts or otherwise relating to ABL Priority Collateral shall be applied to the Obligations on each Business Day as provided in Section  5.6 .

8.3 Administration of Inventory .

8.3.1 Records and Reports of Inventory . Each Borrower shall keep accurate and complete records of its Inventory, including costs and daily withdrawals and additions, and shall submit to Agent inventory and reconciliation reports in form reasonably satisfactory to Agent, on such periodic basis as Agent may request. Each Borrower shall conduct periodic cycle counts consistent with historical practices, and shall provide to Agent a report based on each such inventory and count promptly upon completion thereof, together with such supporting information as Agent may request. Agent may participate in and observe each physical count.

8.3.2 Returns of Inventory . No Borrower shall return any Inventory to a supplier, vendor or other Person, whether for cash, credit or otherwise, unless (a) such return is in the Ordinary Course of Business; (b) no Default, Event of Default or Overadvance exists or would result therefrom; (c) Agent is promptly notified if the aggregate Value of all Inventory returned in any month exceeds $2,500,000; and (d) any payment received by a Borrower for a return is promptly remitted to Agent for application to the Obligations.

8.3.3 Acquisition, Sale and Maintenance . No Borrower shall acquire or accept any Inventory on consignment or approval, and shall take all steps to assure that all Inventory is produced in accordance with Applicable Law, including the FLSA. No Borrower shall sell any Inventory on consignment or approval or any other basis under which the customer may return or require a Borrower to repurchase such Inventory. Borrowers shall use, store and maintain all Inventory with reasonable care and caution, in accordance with applicable standards of any insurance and in conformity with all Applicable Law.

 

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8.4 Administration of Equipment .

8.4.1 Records and Schedules of Equipment . Each Borrower shall keep accurate and complete records of its Equipment, including kind, quality, quantity, cost, acquisitions and dispositions thereof, and shall submit to Agent, on such periodic basis as Agent may request, a current schedule thereof, in form satisfactory to Agent. Promptly upon request, Borrowers shall deliver to Agent evidence of their ownership or interests in any Equipment.

8.4.2 Dispositions of Equipment . No Borrower shall sell, lease or otherwise dispose of any Equipment, without the prior written consent of Agent, other than a Permitted Asset Disposition.

8.4.3 Condition of Equipment . The Equipment is in good operating condition and repair, and all necessary replacements and repairs have been made so that the value and operating efficiency of the Equipment is preserved at all times, reasonable wear and tear excepted except as could not reasonably be expected to result in a Material Adverse Effect. No Borrower shall permit any Equipment to become affixed to real Property unless any landlord or mortgagee delivers a Lien Waiver.

8.5 Administration of Deposit Accounts and Securities Accounts . As of the Amendment No. 3 Effective Date, Schedule 8.5 sets forth all Deposit Accounts and Securities Accounts maintained by Obligors, including all Dominion Accounts and all credit card processors or issuers of Borrowers of Obligors . Each Obligor shall obtain a Deposit Account Control Agreement or a Securities Account Control Agreement, in each case in form and substance satisfactory to Agent, from each lockbox servicer and each institution maintaining a Deposit Account or Securities Account, as applicable, establishing Agent’s control over each such Deposit Account and each such Securities Account (other than ( w)  the Excluded Accounts (as defined in the Guarantee and Collateral Agreement), ( x) an account exclusively used for payroll, payroll taxes or employee benefits, (y) a zero balance disbursement account, or (z) an account containing not more than $150,000 at any time, provided , however that amounts on deposit in all such accounts under this clause (z)  do not exceed $1,000,000 at any time). Each Obligor shall be the sole account holder of each Deposit Account and each Securities Account and shall not allow any other Person (other than Agent, and, solely to the extent provided for in the Intercreditor Agreement and each Deposit Account Control Agreement or Securities Account Control Agreement, Term Loan Agent) to have control over a Deposit Account, Securities Account or any Property deposited therein. During a Cash Dominion Trigger Period, each Obligor hereby agrees that Agent may and, upon the written direction of the Required Lenders given at any time during such Cash Dominion Trigger Period, shall deliver a notice of exclusive control (as described in each Deposit Account Control Agreement) to each institution maintaining a Deposit Account covered by a Deposit Account Control Agreement, and thereafter require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America; provided that unless the Term Loan Agent otherwise consents, Agent shall not deliver a notice of exclusive control with respect to the Term Priority Collateral Account unless the Discharge of Term Obligations (as defined in the Intercreditor Agreement) has occurred. Each Obligor shall promptly notify Agent of any opening or closing of a Deposit Account or Securities Account and, with the consent of Agent, will amend Schedule 8.5 to reflect same, which amendment shall be effective notwithstanding any other requirements set forth herein relating to the approval of amendments. Obligors will use commercially reasonable efforts to, by no later than February 28, 2014, maintain Agent as their principal depository bank, including for the maintenance of operating accounts, Deposit Accounts, lockbox administration, funds transfer, information reporting services and other treasury management services; provided that Agent’s fees and expenses in connection with such Bank Products shall be customary for current market conditions. In no event shall any proceeds of ABL Priority Collateral be deposited in a Deposit Account or Securities Account maintained with the Term Loan Agent or any lender under the Term Loan Facility unless such Person is Agent or is also a Lender hereunder.

 

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8.6 General Provisions .

8.6.1 Location of Collateral . All tangible items of Collateral, other than Inventory in transit, shall at all times be kept by Borrowers Obligors at the business locations set forth in Schedule 8.6.1 as of the Amendment No. 3 Effective Date , except that Borrowers Obligors may (a) make sales or other dispositions of Collateral in accordance with Section  10.2.6 ; and (b) move Collateral to another location in the United States, upon 20 Business Days prior written notice to Agent.

8.6.2 Insurance of Collateral; Condemnation Proceeds.

(a) Each Obligor shall maintain insurance with respect to the Collateral, covering casualty, hazard, theft, malicious mischief, flood and other risks, in amounts, with endorsements and with insurers (with a Best’s Financial Strength Rating of at least A+, unless otherwise approved by Agent in its discretion) reasonably satisfactory to Agent. Subject to the terms of the Intercreditor Agreement, all proceeds under each policy shall be payable to Agent. From time to time upon request, Obligors shall deliver to Agent the originals or certified copies of its insurance policies and updated flood plain searches. Unless Agent shall agree otherwise and except as provided in the Intercreditor Agreement, each policy shall include satisfactory endorsements (i) showing Agent as loss payee (as its interests may appear in accordance with the Intercreditor Agreement); (ii) requiring 30 days prior written notice to Agent in the event of cancellation of the policy for any reason whatsoever; and (iii) specifying that the interest of Agent shall not be impaired or invalidated by any act or neglect of any Obligor or the owner of the Property, nor by the occupation of the premises for purposes more hazardous than are permitted by the policy. If any Obligor fails to provide and pay for any insurance, Agent may, at its option, but shall not be required to, procure the insurance and charge Obligors therefor. Each Obligor agrees to deliver to Agent, promptly as rendered, copies of all reports made to insurance companies. While no Event of Default exists, Obligors may settle, adjust or compromise any insurance claim, as long as the proceeds are delivered to Agent. If an Event of Default exists, only Agent shall be authorized to settle, adjust and compromise such claims.

(b) Subject to the terms of the Intercreditor Agreement so long as the Term Loan Facility is in effect, (i) any proceeds of insurance (other than proceeds from workers’ compensation or D&O insurance) and any awards arising from condemnation of any Collateral shall be paid to Agent or Term Loan Agent and (ii) any such proceeds or awards that relate to Inventory shall be applied to payment of the Loans, and then to other Obligations. Subject to the Intercreditor Agreement so long as the Term Loan Facility is in effect, any proceeds or awards that arise from business interruption insurance or that relate to Equipment or Real Estate Term Loan Priority Collateral (as defined in the Intercreditor Agreement) (or any other property (other than Real Estate) that is not ABL Priority Collateral (as defined in the Intercreditor Agreement)) shall be applied in accordance with the Term Loan Facility, then to the Loans and then to other Obligations. So long as the Term Loan Facility is in effect, any proceeds or awards that relate to Real Estate shall be applied in accordance with the Term Loan Facility.

8.6.3 Protection of Collateral . All expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping any Collateral, all Taxes payable with respect to any Collateral (including any sale thereof), and all other payments required to be made by Agent to any Person to realize upon any Collateral, shall be borne and paid by Borrowers. Agent shall not be liable or responsible in any way for the safekeeping of any Collateral, for any loss or damage thereto (except for reasonable care in its custody while Collateral is in Agent’s actual possession), for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other Person whatsoever, but the same shall be at Borrowers’ sole risk.

 

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8.6.4 Defense of Title . Each Borrower shall defend its title to Collateral and Agent’s Liens therein against all Persons, claims and demands, except Permitted Liens.

8.6.5 Power of Attorney. Each Obligor hereby irrevocably constitutes and appoints Agent (and all Persons designated by Agent) as such Obligor’s true and lawful attorney (and agent-in-fact) for the purposes provided in this Section. Agent, or Agent’s designee, may, without notice and in either its or such Obligor’s name, but at the cost and expense of the Obligors:

(a) Endorse such Obligor’s name on any Payment Item or other proceeds of Collateral (including proceeds of insurance) that come into Agent’s possession or control; and

(b) During an Event of Default, ( i )  notify any Account Debtors of the assignment of their Accounts, demand and enforce payment of Accounts by legal proceedings or otherwise, and generally exercise any rights and remedies with respect to Accounts; (ii)  settle, adjust, modify, compromise, discharge or release any Accounts or other Collateral, or any legal proceedings brought to collect Accounts or Collateral; (iii)  sell or assign any Accounts and other Collateral upon such terms, for such amounts and at such times as Agent deems advisable; (iv)  collect, liquidate and receive balances in Deposit Accounts or investment accounts, and take control, in any manner, of proceeds of Collateral; (v)  prepare, file and sign such Obligor’s name to a proof of claim or other document in a bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien or similar document; (vi)  receive, open and dispose of mail addressed to such Obligor, and notify postal authorities to deliver any such mail to an address designated by Agent; (vii)  endorse any Chattel Paper, Document, Instrument, bill of lading, or other document or agreement relating to any Accounts, Inventory or other Collateral; (viii)  use such Obligor’s stationery and sign its name to verifications of Accounts and notices to Account Debtors; (ix)  use information contained in any data processing, electronic or information systems relating to Collateral; (x)  make and adjust claims under insurance policies; (xi)  take any action as may be necessary or appropriate to obtain payment under any letter of credit, banker’s acceptance or other instrument for which such Obligor is a beneficiary; and (xii)  take all other actions as Agent deems appropriate to fulfill such Obligor’s obligations under the Loan Documents.

SECTION 9. REPRESENTATIONS AND WARRANTIES

9.1 General Representations and Warranties . To induce Agent and Lenders to enter into this Agreement and to make available the Commitments, Loans and Letters of Credit, each Obligor (or, in the case of Section  9.1.6 , each Borrower) represents and warrants that:

9.1.1 Organization and Qualification . Each Obligor and its Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Each Obligor and its Subsidiaries is duly qualified, authorized to do business and in good standing as a foreign corporation in each jurisdiction where failure to be so qualified could reasonably be expected to have a Material Adverse Effect. No Obligor is an EEA Financial Institution.

9.1.2 Power and Authority . Each Obligor is duly authorized to execute, deliver and perform its obligations under the Loan Documents to which it is a party. The execution, delivery and performance of the Loan Documents to which such Obligor is a party have been duly authorized by all necessary action, and do not (a) require any consent or approval of any holders of Equity Interests of any Obligor, except those already obtained; (b) contravene the Organic Documents of any Obligor; (c) violate or cause a default under any Applicable Law or Material Contract; or (d) result in or require imposition of a Lien (other than Permitted Liens) on any Obligor’s Property.

9.1.3 Enforceability . Each Loan Document is a legal, valid and binding obligation of each Obligor party thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

 

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9.1.4 Capital Structure . As of the Amendment No. 3 Effective Date , Schedule 9.1.4 shows the Company’s legal name and jurisdiction of organization. Schedule 9.1.4 shows, as of the Amendment No. 3 Effective Date, for each Subsidiary of Company, its name, jurisdiction of organization, authorized and issued Equity Interests, holders of its Equity Interests, and agreements binding on such holders with respect to such Equity Interests. Except as disclosed on Schedule 9.1.4 as of the Amendment No. 3 Effective Date , in the five years preceding the Closing Amendment No. 3 Effective Date, no Obligor nor any of its Subsidiaries has acquired any substantial assets from any other Person nor been the surviving entity in a merger or combination. Each Obligor has good title to its Equity Interests in its Subsidiaries, subject only to Agent’s Lien and the Lien in favor of Term Loan Agent under the Term Loan Documents, and all such Equity Interests are duly issued, fully paid and non-assessable. There are no outstanding purchase options, warrants, subscription rights, agreements to issue or sell, convertible interests, phantom rights or powers of attorney relating to Equity Interests of any Subsidiaries or its Subsidiaries of Company .

9.1.5 Title to Properties; Priority of Liens . Each Obligor and its Subsidiaries has, in all material respects, good and marketable title to (or valid leasehold interests in) all of its material Real Estate, and good title to all of its material personal Property, including all Property reflected in any financial statements delivered to Agent or Lenders, in each case free of Liens except Permitted Liens , except in each case as could not reasonably be expected to have a Material Adverse Effect . Each Obligor and its Subsidiaries has paid and discharged or is being Properly Contested all lawful claims that, if unpaid, could become a Lien on its Properties, other than Permitted Liens. All Liens of Agent in the Collateral are duly perfected, first priority Liens, subject only to the Intercreditor Agreement and Permitted Liens that are expressly allowed to have priority over Agent’s Liens.

9.1.6 Accounts . Agent may rely, in determining which Accounts are Eligible Accounts, on all statements and representations made by Borrowers with respect thereto. Borrowers warrant, with respect to each Account at the time it is shown as an Eligible Account in a Borrowing Base Certificate, that:

(a) it is genuine and in all respects what it purports to be, and is not evidenced by a judgment;

(b) it arises out of a completed, bona fide sale and delivery of goods or rendition of services in the Ordinary Course of Business, and substantially in accordance with any purchase order, contract or other document relating thereto;

(c) it is for a sum certain, maturing as stated in the invoice covering such sale or rendition of services, a copy of which has been furnished or is available to Agent on request;

(d) it is not subject to any offset, Lien (other than Agent’s Lien and the Lien in favor of Term Loan Agent under the Term Loan Documents), deduction, defense, dispute, counterclaim or other adverse condition except as arising in the Ordinary Course of Business and disclosed to Agent; and it is absolutely owing by the Account Debtor, without contingency in any respect;

(e) the applicable Borrower is the sole payee or remittance party shown on the invoice for the Account;

(f) no extension, compromise, settlement, modification, credit, deduction or return has been authorized with respect to the Account, except discounts or allowances granted in the Ordinary Course of Business for prompt payment that are reflected on the face of the invoice related thereto and in the reports submitted to Agent hereunder; and

 

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(g) to the best of Borrowers’ knowledge, (i) there are no facts or circumstances that are reasonably likely to impair the enforceability or collectability of such Account; (ii) the Account Debtor had the capacity to contract when the Account arose, continues to meet the applicable Borrower’s customary credit standards, is Solvent, is not contemplating or subject to an Insolvency Proceeding, and has not failed, or suspended or ceased doing business; and (iii) there are no proceedings or actions threatened or pending against any Account Debtor that could reasonably be expected to have a material adverse effect on the Account Debtor’s financial condition.

9.1.7 Financial Statements . The consolidated and consolidating balance sheets, and related statements of income, cash flow and shareholders’ equity, of Company and its Subsidiaries that have been and are hereafter delivered to Agent and Lenders, are prepared in accordance with GAAP, and fairly present the financial positions and results of operations of Company and its Subsidiaries at the dates and for the periods indicated. All projections delivered from time to time to Agent and Lenders have been prepared in good faith, based on reasonable assumptions in light of the circumstances at such time. Since April 28, 2012, there has been no change in the condition, financial or otherwise, of any Borrower or Subsidiary that could reasonably be expected to have a Material Adverse Effect (excluding the Bankruptcy Proceedings and any historical events associated with the Bankruptcy Proceedings , and any events that customarily occur as part of a proceeding under Chapter 11 of the Bankruptcy Code ). No financial statement delivered to Agent or Lenders at any time contains any untrue statement of a material fact, nor fails to disclose any material fact necessary to make such statement not materially misleading. Company individually is, and Company and each of its Subsidiaries, on a consolidated basis, are Solvent.

9.1.8 Surety Obligations . No Obligor nor any of its Subsidiaries is obligated as surety or indemnitor under any bond or other contract that assures payment or performance of any obligation of any Person, except as permitted hereunder.

9.1.9 Taxes . Each Obligor and its Subsidiaries has filed all material federal, state and local tax returns and other reports that it is required by law to file, and has paid, or made provision for the payment of, all material Taxes upon it, its income and its Properties that are due and payable, except to the extent being Properly Contested. The provision for Taxes on the books of each Obligor and its Subsidiaries is adequate for all years not closed by applicable statutes, and for its current Fiscal Year.

9.1.10 Brokers . There are no brokerage commissions, finder’s fees or investment banking fees payable in connection with any transactions contemplated by the Loan Documents.

9.1.11 Intellectual Property . Each Obligor and its Subsidiaries owns or is licensed to use all Intellectual Property material to its respective business, and neither the use thereof nor the conduct of their respective businesses infringes, misappropriates or otherwise violates the Intellectual Property rights of any other Person, except for any such infringements, misappropriations and other violations that could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. Except as disclosed on Schedule 9.1.11, no Borrower or Subsidiary pays or owes in excess of $250,000 in any Fiscal Year any royalty or other compensation to any Person with respect to any Intellectual Property. All Intellectual Property registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office owned by any Obligor or Subsidiary is shown on Schedule 9.1.11.

9.1.12 Governmental Approvals . Each Obligor and its Subsidiaries has, is in compliance with, and is in good standing with respect to, all Governmental Approvals necessary to conduct its business and to own, lease and operate its Properties. All necessary import, export or other licenses, permits or certificates for the import or handling of any goods or other Collateral have been procured and are in effect, and Obligors and their Subsidiaries have complied with all foreign and domestic laws with respect to the shipment and importation of any goods or Collateral, except where noncompliance could not reasonably be expected to have a Material Adverse Effect.

 

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9.1.13 Compliance with Laws . Each Obligor and its Subsidiaries has duly complied, and its Properties and business operations are in compliance, in all material respects with all Applicable Law, except where noncompliance could not reasonably be expected to have a Material Adverse Effect. There have been no citations, notices or orders of material noncompliance issued to any Obligor or any of its Subsidiaries under any Applicable Law that could reasonably be expected to have a Material Adverse Effect. No Inventory has been produced in violation of the FLSA.

9.1.14 Compliance with Environmental Laws . Except as disclosed on Schedule 9.1.14 as of the Amendment No. 3 Effective Date or as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (i) no Obligor’s nor any of its Subsidiaries’ past or present operations, Real Estate or other Properties are subject to any federal, state or local investigation to determine whether any remedial action is needed to address any environmental pollution, hazardous material or environmental clean-up; (ii) no Obligor nor any of its Subsidiaries has received any Environmental Notice; and (iii) no Obligor nor any of its Subsidiaries has any contingent liability with respect to any Environmental Release, environmental pollution or hazardous material on any Real Estate now or previously owned, leased or operated by it.

9.1.15 Burdensome Contracts . No Obligor nor any of its Subsidiaries is party or subject to any Restrictive Agreement, except as shown on Schedule 9.1.15 as of the Amendment No. 3 Effective Date and as set forth in the Term Loan Documents . No such Restrictive Agreement prohibits the execution, delivery or performance of any Loan Document by an Obligor.

9.1.16 Litigation . Except as shown on Schedule 9.1.16 as of the Amendment No. 3 Effective Date , there are no proceedings or investigations pending or, to any Obligor’s knowledge, threatened against any Obligor or any of its Subsidiaries, or any of their businesses, operations, Properties, prospects or conditions, that (a) relate to any Loan Documents or transactions contemplated thereby; or (b) could reasonably be expected to have a Material Adverse Effect if determined adversely to any Obligor or any of its Subsidiaries. Except as shown on such Schedule, no Obligor has a Commercial Tort Claim (other than, as long as no Default or Event of Default exists, a Commercial Tort Claim for less than $500,000). No Obligor nor any of its Subsidiaries is in default with respect to any order, injunction or judgment of any Governmental Authority, except where such violation or default could not reasonably be expected to result in a Material Adverse Effect.

9.1.17 No Defaults . No event or circumstance has occurred or exists that constitutes a Default or Event of Default. No Obligor nor any of its Subsidiaries is in default, and no event or circumstance has occurred or exists that with the passage of time or giving of notice would constitute a default, under any Material Contract.

9.1.18 ERISA . Except as disclosed on Schedule 9.1.18 9.1.18 as of the Amendment No. 3 Effective Date :

(a) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code, and other federal and state laws and (ii) each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the knowledge of Borrowers, nothing has occurred which would prevent, or cause the loss of, such qualification. Each Obligor and ERISA Affiliate has met in all material respects all applicable requirements under the Code, ERISA and the Pension Protection Act of 2006 with respect to each Plan, and no application for a waiver of the minimum funding standards or an extension of any amortization period has been made with respect to any Plan.

 

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(b) There are no pending or, to the knowledge of Borrowers, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted in or could reasonably be expected to have a Material Adverse Effect.

(c) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) no ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) no Obligor or ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (iv) no Obligor or ERISA Affiliate has engaged in a transaction that could reasonably be expected to be subject to Section 4069 or 4212(c) of ERISA.

(d) Except as would not reasonably be expected to have a Material Adverse Effect, with respect to any Foreign Plan, (i) all employer and employee contributions required by law or by the terms of the Foreign Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles; and (iii) it has been registered as required and has been maintained in good standing with applicable regulatory authorities.

9.1.19 Trade Relations . There exists no actual or threatened termination, limitation or modification of any business relationship between any Obligor or its Subsidiaries and any customer or supplier, or any group of customers or suppliers, who individually or in the aggregate are material to the business of such Obligor or Subsidiary. There exists no condition or circumstance that could reasonably be expected to impair the ability of any Borrower or Subsidiary to conduct its business at any time hereafter in substantially the same manner as conducted on the Closing Date.

9.1.20 Labor Relations . Except as described on Schedule 9.1.20 as of the Amendment No. 3 Effective Date , no Obligor nor any of its Subsidiaries is party to or bound by any collective bargaining agreement, management agreement or material consulting agreement. Except as could not reasonably be expected to result in a Material Adverse Effect, there are no material grievances, disputes or controversies with any union or other organization of any Borrower’s or Subsidiary’s employees, or, to any Borrower’s knowledge, any asserted or threatened strikes, work stoppages or demands for collective bargaining.

9.1.21 Payable Practices . No Obligor nor any of its Subsidiaries has made any material change in its historical accounts payable practices from those in effect on the Closing Date.

9.1.22 Not a Regulated Entity . No Obligor is (a) an “investment company” or a “person directly or indirectly controlled by or acting on behalf of an investment company” within the meaning of the Investment Company Act of 1940; or (b) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any public utilities code or any other Applicable Law regarding its authority to incur Indebtedness.

 

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9.1.23 Margin Stock . No Borrower or Subsidiary is engaged, principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No Loan proceeds or Letters of Credit will be used by Borrowers to purchase or carry, or to reduce or refinance any Indebtedness incurred to purchase or carry, any Margin Stock or for any related purpose governed by Regulations T, U or X of the Board of Governors.

9.1.24 OFAC ; Anti-Corruption Laws . No Obligor nor any of its Subsidiaries, nor to the knowledge of any Obligor or Subsidiary, any director, officer, employee, agent, affiliate or representative thereof, is an or is owned or controlled by any individual or entity that is currently the subject of any Sanctions. No Obligor nor any of its Subsidiaries or target of any Sanction or is located, organized or resident in a Designated Jurisdiction. Each Obligor and its Subsidiaries is in compliance with the Patriot Act. Each Borrower and Subsidiary has conducted its business in accordance with applicable anti-corruption laws and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws .

9.1.25 Use of Proceeds . The proceeds of Loans shall be used by Borrowers (a) to repay the DIP Facilities (specifically, all of the ABL DIP and part of the Ad-Hoc DIP), (b) to fund certain fees and expenses associated with the closing of this credit facility and the Transactions, (c) to repay certain costs and expenses required to be paid in connection with the emergence from chapter 11 of Borrowers and certain of their Subsidiaries (including, but not limited to, administrative costs, cure costs and potentially to fund cash out options for trade and other unsecured claims), (d) to provide for working capital and (e) for general corporate purposes (including, without limitation, for Permitted Acquisitions and Capital Expenditures).

9.1.26 Designation as Senior Debt . All Obligations are designated as “Designated Senior Indebtedness” or “Senior Debt” (or any other defined term having a similar purpose) under, and as defined in, any indenture or other agreement related to Subordinated Debt.

9.1.27 Security Documents . The Guarantee and Collateral Agreement is effective to create in favor of Agent, for the benefit of Lenders and other Secured Parties, a valid and enforceable security interest in the Collateral described therein and proceeds thereof, to the extent contemplated by the Guarantee and Collateral Agreement. Subject to Section  10.1.15 , all actions have been taken or will be taken promptly following the Closing Date which are necessary to cause the Guarantee and Collateral Agreement to constitute, to the extent contemplated by the Guarantee and Collateral Agreement and this Agreement, a fully perfected Lien on, and security interest in, all right, title and interest of Obligors in the Collateral and the proceeds thereof, as security for the Obligations, in each case prior and superior in right to any other Person, except in the case of (a) Permitted Liens, to the extent any such Permitted Liens would have priority over the Liens in favor of Agent pursuant to any applicable law, or as otherwise permitted by this Agreement and (b) Liens perfected only by possession or control (including possession of any certificate of title) to the extent Agent has not obtained or does not maintain possession or control of such Collateral.

9.1.28 Term Loan Documents . Agent has received true, correct and complete copies of the Term Loan Documents. None of the Term Loan Documents has been amended or supplemented, nor have any of the provisions thereof been waived, except pursuant to a written agreement or instrument which has heretofore been delivered to Agent .

9.2 Accuracy of Information, Etc . None of the information, report, financial statement, exhibit or schedule (excluding the projections, forecasts or other forward-looking information and financial information referred to below) furnished by or on behalf of Borrowers to Agent or any Lender in connection with the negotiation of any Loan Document or included therein or delivered pursuant thereto contained, contains or will contain as of the date the same was or is furnished any material misstatement of fact or omitted, omits or will omit to state any material fact necessary to make the statements therein,

 

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in the light of the circumstances under which they were, are or will be made, not materially misleading; provided that, to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, Borrowers represent and warrant only that such materials are based upon good faith estimates and assumptions believed by management to be reasonable at the time made, in light of the circumstances under which they were made and at the time furnished (and based upon accounting principles consistent with the historical audited financial statements of Borrowers), and due care in the preparation of such information, report, financial statement, exhibit or schedule (it being understood that forecasts and projections are subject to uncertainties and that there can be no assurance such results will be achieved).

SECTION 10. COVENANTS AND CONTINUING AGREEMENTS

10.1 Affirmative Covenants . As long as any Commitments or Obligations are outstanding, each Obligor shall, and shall cause each Subsidiary to:

10.1.1 Inspections; Appraisals; Maintenance of Books and Records .

(a) Permit Agent from time to time, subject (except when a Default or Event of Default exists) to reasonable prior notice and during normal business hours, to visit and inspect the Properties of any Obligor or Subsidiary, inspect, audit and make extracts from any Obligor’s or Subsidiary’s books and records, and discuss with its officers, employees, agents, advisors and independent accountants such Obligor’s or Subsidiary’s business, financial condition, assets, prospects and results of operations. Lenders may participate in any such visit or inspection, at their own expense. Neither Agent nor any Lender shall have any duty to any Obligor to make any inspection, nor to share any results of any inspection, appraisal or report with any Obligor. Obligors acknowledge that all inspections, appraisals and reports are prepared by Agent and Lenders for their purposes, and Obligors shall not be entitled to rely upon them. Notwithstanding the foregoing, all collateral field examinations and Inventory appraisals shall be subject to the limitations set forth in clause (b)  below.

(b) Agent shall be permitted to conduct, and shall be reimbursed by Borrowers for all reasonable and documented charges, costs and expenses in connection with (i) collateral field examinations or other examinations of any Obligor’s books and records or any other financial or Collateral matters as Agent deems appropriate, up to two times one time per Loan Year; and (ii) appraisals of Inventory up to one time per Loan Year; provided , however , that (x) during any Reporting Trigger Period, such limits shall be increased to add one additional collateral field examination and one additional appraisal of Inventory per Loan Year and (y) if an examination or appraisal is initiated during a Default or Event of Default, all reasonable and documented charges, costs and expenses therefor shall be reimbursed by Borrowers without regard to such limits. Borrowers agree to pay Agent’s then standard charges for examination activities, including the standard charges of Agent’s internal examination and appraisal groups, as well as the charges of any third party used for such purposes.

(c) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of Obligors and Subsidiaries.

10.1.2 Financial and Other Information . Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to Agent and Lenders:

(a) as soon as available, and in any event within 120 days after the end of the 2013 Fiscal Year and within 90 days after the close of each Fiscal Year thereafter , balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on consolidated and consolidating bases for Company and its Subsidiaries, which

 

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consolidated statements shall be audited and certified (without any “going concern” or like qualification or exception or any qualification or exception as to scope of audit) by a firm of independent certified public accountants of recognized standing selected by Company and acceptable to Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year and other information acceptable to Agent;

(b) as soon as available, and in any event within 60 days after the end of the first Fiscal Quarter of the 2014 Fiscal Year, and thereafter within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, unaudited balance sheets as of the end of such month and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Company and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;

(c) as soon as available, and in any event within 30 days after the end of each month (but within 60 days after the last month in a Fiscal Year), unaudited balance sheets as of the end of such month and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and consolidating bases for Company and its Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes;

(d) concurrently with delivery of financial statements under clauses (a) , (b) and (c)  above, or more frequently if requested by Agent while a Default or Event of Default exists, a Compliance Certificate executed by the chief financial officer of Borrower Agent;

(e) concurrently with delivery of financial statements under clause (a)  above, copies of all management letters and other material reports submitted to Borrowers by their accountants in connection with such financial statements;

(f) not later than 30 days after the end of each Fiscal Year, projections of Company’s consolidated balance sheets, results of operations, cash flow and Availability for the next Fiscal Year, month by month and for the next three Fiscal Years, year by year;

(g) at Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form reasonably satisfactory to Agent;

(h) promptly after the sending or filing thereof, copies of any proxy statements, financial statements or reports that any Borrower has made generally available to its shareholders; copies of any regular, periodic and special reports or registration statements or prospectuses that any Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; and copies of any press releases or other statements made available by a Borrower to the public concerning material changes to or developments in the business of such Borrower;

(i) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan; and

(j) promptly, and in any event within five (5)  Business Days after the execution thereof or receipt thereof, copies of any notices (including notices of default), amendments, waivers, consents, and forbearances delivered to, or received from, the Term Loan Agent under the Term Loan Agreement; and

 

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( j k ) such other reports and information (financial or otherwise) as Agent may reasonably request from time to time in connection with any Collateral or any Borrower’s, Subsidiary’s or other Obligor’s financial condition or business.

10.1.3 Notices . Notify Agent and Lenders in writing, promptly after any Senior Officer of any Borrower obtains knowledge thereof, of any of the following that affects an Obligor: (a) the threat or commencement of any proceeding or investigation, whether or not covered by insurance, if an adverse determination could reasonably be expected to have a Material Adverse Effect; (b) any pending or threatened labor dispute, strike or walkout, or the expiration of any material labor contract; (c) any default under or termination of a Material Contract; (d) the existence of any Default or Event of Default; (e) any judgment in an amount exceeding $1,000,000; (f) any t he assertion of any Intellectual Property Claim, if its resolution would reasonably be expected to have a Material Adverse Effect, (g) any violation or asserted violation of any Applicable Law (including ERISA, OSHA, FLSA, or any Environmental Laws), for which an adverse resolution could reasonably be expected to have a Material Adverse Effect; ( g h ) any Environmental Release by an Obligor or on any Property owned, leased or occupied by an Obligor; or receipt of any Environmental Notice; ( h i ) the occurrence of any ERISA Event; ( i j ) the discharge of or any withdrawal or resignation by Borrowers’ independent accountants; ( j k ) any opening of a new office or place of business, at least 30 days prior to such opening; or ( k l ) any other matter that could reasonably be expected to have a Material Adverse Effect. Each notice pursuant to this Section  10.1.3 shall be accompanied by a statement of a Senior Officer setting forth details of the occurrence referred to therein and stating what action Borrowers or the relevant Subsidiary proposes to take with respect thereto.

10.1.4 Landlord and Storage Agreements . Upon request, provide Agent with copies of all existing agreements, and promptly after execution thereof provide Agent with copies of all future agreements, between an Obligor and any landlord, warehouseman, processor, shipper, bailee or other Person that owns any premises at which any Collateral may be kept or that otherwise may possess or handle any Collateral.

10.1.5 Compliance with Laws . Comply with all Applicable Laws, including ERISA, Environmental Laws, FLSA, OSHA, Anti-Terrorism Laws, and laws regarding collection and payment of Taxes, and maintain all Governmental Approvals necessary to the ownership of its Properties or conduct of its business, unless failure to comply (other than failure to comply with Anti-Terrorism Laws) or maintain could not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, if any Environmental Release occurs at or on any Properties of any Obligor or Subsidiary, it shall act promptly and diligently to investigate and report to Agent and all appropriate Governmental Authorities the extent of, and to make appropriate remedial action to eliminate, such Environmental Release, all to the extent required by Environmental Laws, whether or not directed to do so by any Governmental Authority.

10.1.6 Taxes and Payment of Obligations . Pay and discharge (a) all Taxes prior to the date on which they become delinquent or penalties attach, unless such Taxes are being Properly Contested; (b) all lawful claims which, if unpaid, would by law become a Lien upon its Property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.

10.1.7 Insurance . In addition to the insurance required hereunder with respect to Collateral, maintain insurance with insurers (with a Best Rating of at least A7, unless otherwise approved by Agent) satisfactory to Agent, (a) with respect to the Properties and business of Obligors and Subsidiaries of such type (including product liability, workers’ compensation, larceny, embezzlement, or other criminal misappropriation insurance), in such amounts, and with such coverages and deductibles as are customary for companies similarly situated; and (b) business interruption insurance in an amount not less than $25,000,000, with deductibles and subject to an Insurance Assignment satisfactory to Agent.

 

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10.1.8 Licenses . Keep each License (other than as determined in its reasonable business judgment); at the end of each fiscal quarter Fiscal Quarter , notify Agent of any material proposed modification to, or termination (other than expiration by its terms) of, any such License, or entry into any new License.

10.1.9 Maintenance of Existence . (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Applicable Laws of the jurisdiction of its organization except in a transaction permitted by Section  10.2.6 or 10.2.9 ; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.

10.1.10 Maintenance of Properties . (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear and abandonment excepted; and (b) make all necessary repairs thereto and renewals and replacements thereof, in each case, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

10.1.11 Material Contracts . Perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material Contract in full force and effect, enforce each such Material Contract in accordance with its terms, take all such action to such end as may be from time to time requested by Agent and, upon request of Agent, make to each other party to each such Material Contract such demands and requests for information and reports or for action as any Obligor or Subsidiary is entitled to make under such Material Contract, and cause each of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

10.1.12 Designation as Senior Debt . Designate all Obligations as “Designated Senior Indebtedness” or “Senior Debt” (or any other defined term having a similar purpose) under, and as defined in, any indenture or other agreement related to Subordinated Debt.

10.1.13 Compliance with Terms of Leaseholds . Make all payments and otherwise perform all obligations in respect of all leases of real property to which any Obligor or Subsidiary is a party, keep such leases in full force and effect and not allow such leases to lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify Agent of any default by any party with respect to such leases and cooperate with Agent in all respects to cure any such default, and cause each of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect.

10.1.14 Future Subsidiaries .

(a) (i) Promptly notify Agent upon any Person becoming a Subsidiary and, if such Person is not a Foreign Subsidiary or an Excluded Subsidiary, cause it to guaranty the Obligations in a manner satisfactory to Agent, (x) upon any Person becoming a Subsidiary (other than an Excluded Subsidiary) or (y) if any Subsidiary that was an Excluded Subsidiary but, as of the end of the most recently ended Fiscal Quarter, has ceased to be an Excluded Subsidiary; and ( i ii ) cause (x) the Equity Interests of any such Subsidiary that is not a Foreign Subsidiary and is not described in clauses (e)  or (f) of the definition of Excluded Subsidiary to be pledged to Agent and 65% of the voting Equity Interests

 

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and 100% of the non-voting Equity Interests of any such Subsidiary that is a Foreign Subsidiary or any Subsidiary described in clause (f)  of the definition of Excluded Subsidiary that, in each case, is not directly or indirectly owned by a Foreign Subsidiary to be pledged to Agent; and (y) such Person to execute a Guarantee and Collateral Agreement Supplement in accordance with the Guarantee and Collateral Agreement, and to execute and deliver such documents, instruments and agreements and to take such other actions as Agent shall require to evidence and perfect a Lien in favor of Agent (for the benefit of Secured Parties) on all assets of such Person, including delivery of such legal opinions, in form and substance satisfactory to Agent, as it shall deem appropriate.

(b) In connection with any Permitted Acquisition or the creation of any Subsidiary, Borrowers may elect to have an acquired Subsidiary or any created Subsidiary become a Borrower so long as (i) the Asset Review and Approval Conditions shall have been satisfied and (ii) the acquired Subsidiary or any created Subsidiary shall have executed a joinder agreement, in form and substance reasonably satisfactory to Agent, and shall execute and deliver such documents, instruments and agreements and take such other actions as Agent shall reasonably require to evidence and perfect a Lien in favor of Agent (for the benefit of Secured Parties) on all assets of such Person, subject to exceptions the same or comparable to those herein, including delivery of such legal opinions as are reasonably satisfactory to Agent and provide all documentation and instruments required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

10.1.15 Post-Closing Matters .

(a) Borrowers shall satisfy the requirements set forth on Schedule  10.1.15 on or before the date specified for such requirement.

10.1.16 Prepetition Escrow Account . Keep the Prepetition Escrow Account funded at all times equal to an amount not less than 100% of the aggregate amount outstanding owed or claimed to be owed to the Prepetition Term Loan Secured Parties (as defined in the DIP Order) under the Prepetition Term Loan Documents (as defined in the DIP Order), including professional fees and expenses.

(b) No later than the date that is 90 days after the Amendment No.  3 Effective Date (or such later date as Agent shall agree in its sole discretion), Agent shall have received an inventory appraisal addressed or assigned to Agent and upon which Agent is entitled to rely and share with Lenders. Such inventory appraisal shall be from an appraiser and on terms satisfactory to Agent.

(c) No later than June  15, 2017 (or such later date as Agent shall agree in its sole discretion), Company shall have delivered to Agent a filed copy of an amendment to Company’s Amended and Restated Certificate of Incorporation, recently certified by the Secretary of State of Delaware and in form and substance reasonably acceptable to Agent, which deletes Article 7 thereof.

(d) No later than the date that is 30 days after the Amendment No.  3 Effective Date (or such later date as Agent shall agree in its sole discretion), Company shall have delivered to Agent evidence of the termination of all security interests (other than security interests in favor of Agent or Term Loan Agent) in any Intellectual Property registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office owned by any Obligor or Subsidiary.

(e) No later than the date that is 30 days after the Amendment No.  3 Effective Date (or such later date as Agent shall agree in its sole discretion), upon Agent’s request, each Obligor shall execute, deliver and file or authorize the filing of each Intellectual Property Filing (as defined in the Guarantee and Collateral Agreement), IP Assignments, Intellectual Property Security Agreements or other applicable documents, each in proper form for filing, as Agent deems reasonably necessary to evidence or perfect Agent’s Lien on Intellectual Property owned by such Obligor.

 

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10.1.16 [Reserved] .

10.1.17 Anti-Corruption Laws. Conduct its business in compliance with applicable anti-corruption laws and maintain policies and procedures designed to promote and achieve compliance with such laws .

10.2 Negative Covenants . As long as any Commitments or Obligations are outstanding (other than unasserted contingent obligations not yet due and payable), each Borrower shall not, and shall cause each Subsidiary not to:

10.2.1 Permitted Indebtedness . Create, incur, guarantee or suffer to exist any Indebtedness, except the following (collectively, “ Permitted Indebtedness ”):

(a) the Obligations;

(b) Subordinated Debt in an aggregate principal amount not to exceed $5,000,000 ;

(c) Permitted Purchase Money Debt and Capital Lease Obligations; provided that the aggregate amount of all Indebtedness incurred under this clause (c)  does not exceed $ 15 ,000,000 2,000,000 at any time;

(d) (i) Indebtedness outstanding on the Closing Amendment No.  3 Effective Date , and listed on Schedule 10.2.1 and not satisfied with proceeds of the initial Loans and (ii) Indebtedness under the Term Loan Facility (including any incremental facility thereunder), in the case of this clause (ii), in an aggregate principal amount not to exceed $187,000,000 the Maximum Term Principal Obligations (as defined in the Intercreditor Agreement) ;

(e) Indebtedness with respect to Bank Products ( i )  incurred in the Ordinary Course of Business and not for speculative purposes or (ii)  required under Section  5.12 of the Term Loan Agreement and not for speculative purposes or any corresponding provision under any Term Loan Facility that refinances the Term Loan Agreement ;

(f) (i) unsecured Indebtedness that is assumed or incurred by of an Obligor or Subsidiary in connection with that is incurred on the date of the consummation of a Permitted Acquisition or other acquisition of assets permitted hereunder or solely for the purpose of consummating such Permitted Acquisition or such other acquisition so long as (A)  no Event of Default has occurred and is continuing or would result therefrom , (B)  such unsecured Indebtedness is not incurred for working capital purposes, (C)  such unsecured Indebtedness does not mature prior to the date that is six (6)  months after the Maturity Date, (D)  such unsecured Indebtedness does not amortize until six (6)  months after the Maturity Date, (E)  such unsecured Indebtedness does not provide for the payment of interest thereon in cash or Cash Equivalents prior to the date that is six (6)  months after the Maturity Date, and (F)  such Indebtedness is subordinated in right of payment to the Obligations on terms and conditions reasonably satisfactory to Agent, (ii) Indebtedness that is in existence prior to the date when a Person becomes a Subsidiary or that is secured by an asset Equipment when acquired by a Borrower or Company or a Subsidiary, in each case, as part of a Permitted Acquisition, as long as such Indebtedness was not incurred in contemplation of such Person becoming a Subsidiary or such Permitted Acquisition; provided that for both clauses (i) and (ii), after giving effect to such Permitted Acquisition on a pro forma basis, the Net Total Senior Leverage Ratio is no greater than the Net Total Senior Leverage Ratio in effect immediately prior to such Permitted Acquisition;

(g) Permitted Contingent Obligations (excluding Permitted Surety Bonds);

(h) Indebtedness under Permitted Surety Bonds that does not exceed $ 30 ,000,000 20,000,000 in the aggregate at any time;

 

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( i ) [ reserved ;]

(j) [ reserved ;]

( i ) Permitted First Lien Debt in an amount not to exceed the greater of (x) $5,000,000 and (y)  an amount such that, at the time of incurrence the Net First Lien Leverage Ratio for the most recently ended four Fiscal Quarters for which financial statements have been delivered pursuant to clause (a)  or (b) of Section  10.1.2 immediately preceding the date on which such additional Indebtedness is incurred, determined on a pro forma basis, as if the additional Indebtedness had been incurred at the beginning of such period, is no greater than 3.07 to 1.00; provided that the Fixed Charge Coverage Ratio for the most recently ended trailing twelve month period for which financial statements have been delivered pursuant to Section  10.1.2 immediately preceding the date on which such additional Indebtedness is incurred is at least 1.00 to 1.00, determined on a pro forma basis, as if the additional Indebtedness had been incurred at the beginning of such period;

(j) Permitted Unsecured Debt so long as ( i )  at the time of incurrence the Net Total Leverage Ratio for the most recently ended four Fiscal Quarters for which financial statements have been delivered pursuant to Section  10.1.2 immediately preceding the date on which such additional Indebtedness is incurred is no greater than 3.75 to 1.00, determined on a pro forma basis, as if the additional Indebtedness had been incurred at the beginning of such period and (ii)  the Fixed Charge Coverage Ratio for the most recently ended trailing twelve month period for which financial statements have been delivered pursuant to Section  10.1.2 immediately preceding the date on which such additional Indebtedness is incurred is at least 1.00 to 1.00, determined on a pro forma basis, as if the additional Indebtedness had been incurred at the beginning of such period;

(k) Specified Unsecured Prepetition Debt in an aggregate principal amount not to exceed $ 60,000,000 so long as such Specified Unsecured Prepetition Debt does not mature, require mandatory prepayments (other than in connection with a change of control or to the extent required under Section V.I of the Plan of Reorganization) or require any payment of cash interest, in each case, prior to September  30, 2014 ; 24,500,000 ;

(l) the Comerica Letter of Credit and the JPM Letter of Credit [reserved ; ]

(m) Refinancing Debt as long as each Refinancing Condition is satisfied;

(n) Intercompany Indebtedness of Borrowers and the their Subsidiaries to the extent permitted by Section  10.2.5 ; provided that any such Indebtedness that is owed by an Obligor to a Subsidiary that is not an Obligor is subordinated to the Obligations pursuant to an Affiliate Subordination Agreement;

(o) financing of insurance premiums in the Ordinary Course of Business;

(p) Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”), or cash management services, netting services, overdraft protection, and other like services, in each case incurred in the Ordinary Course of Business;

(q) unsecured Indebtedness owing to former employees, officers or directors (or any spouses, ex-spouses, or estates of any of the foregoing) incurred in connection with the repurchase by Company of the Equity Interests of Company that have been issued to such Persons, so long as (i) no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness and (ii) the aggregate amount of all such Indebtedness outstanding at any one time does not exceed $500,000; provided that any such Indebtedness shall be treated as a Distribution and only be permitted to the extent permitted pursuant to Section  10.2.4 ;

 

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(r) accrual of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case on Indebtedness that otherwise constitutes Indebtedness permitted under this Section  10.2.1 ;

(s) Indebtedness incurred by Subsidiaries that are not Obligors in an aggregate principal amount not to exceed $2,500,000;

(t) to the extent constituting Indebtedness, customary purchase price adjustments, earn outs, indemnification obligations, unsecured guarantees thereof and similar items of Borrowers or any of their Subsidiaries in connection with Permitted Acquisitions, other acquisitions of assets permitted hereunder or Permitted Asset Dispositions;

(u) to the extent constituting Indebtedness, Indebtedness in respect of the Fee Claim Reserve Amounts, the Prepetition Escrowed Amounts and the Delayed Admin Claims [reserved] ;

(v) Borrowers and their Subsidiaries may enter into Hedging Agreements that are ( i )  required by the Term Loan Facility and not for speculative purposes or (ii)  entered into in the Ordinary Course of Business and not for speculative purposes; and

(w) Indebtedness that is not included in any of the preceding clauses of this Section  10.2.1 , is not secured by a Lien and does not exceed $5,000,000 in the aggregate at any time.

10.2.2 Permitted Liens . Create or suffer to exist any Lien upon any of its Property, except the following (collectively, “ Permitted Liens ”):

(a) Liens in favor of Agent;

(b) Purchase Money Liens securing Permitted Purchase Money Debt;

(c) Liens for Taxes not yet due and payable or being Properly Contested;

(d) statutory Liens (other than Liens for Taxes or imposed under ERISA) arising in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being Properly Contested, and (ii) such Liens do not materially impair the value or use of the Property or materially impair operation of the business of any Borrower or Subsidiary;

(e) Liens incurred or deposits made in the Ordinary Course of Business to secure the performance of government tenders, bids, contracts (other than Indebtedness), leases (other than Capital Leases), statutory obligations, surety and appeal bonds, performance bonds and other similar obligations, as long as such Liens are at all times junior to Agent’s Liens;

(f) Liens arising in the Ordinary Course of Business that are subject to Lien Waivers;

(g) judgment Liens securing judgments not constituting an Event of Default;

(h) zoning restrictions, easements, rights-of-way, restrictions on use of real property, minor defects or irregularities of title and other similar encumbrances that do not secure any monetary obligation incurred in the Ordinary Course of Business which do not interfere with the Ordinary Course of Business;

(i) any interest or title or right of a lessor or sub-lessor under any lease or sub-lease entered into in the Ordinary Course of Business and covering only the assets so leased;

 

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(j) normal and customary rights of setoff upon deposits in favor of depository institutions, and Liens of a collecting bank on Payment Items in the course of collection; and

(k) Liens on assets (other than Accounts and Inventory) acquired in a Permitted Acquisition, securing Indebtedness permitted by Section 10.2.1(f ) [ reserved] ;

(l) Liens securing Permitted First Lien Debt permitted by Section 10.2.1( i ) [ reserved] ;

(m) Liens on assets of an Excluded Subsidiary that secures Permitted Debt of such Excluded Subsidiary;

(n) Liens securing Indebtedness under the Term Loan Facility and Refinancing Debt in respect thereof, so long as the holders of such Indebtedness remain subject to the Intercreditor Agreement;

(o) Liens arising in connection with the cash collateralization of the Comerica Letter of Credit and the JPM Letter of Credit [ reserved ; ]

(p) existing Liens shown on Schedule 10.2.2 as of the Amendment No.  3 Effective Date and any extensions or renewals thereof in connection with any Refinancing Debt with respect to such Indebtedness secured by such Liens; and

(q) pledges and deposits made in the Ordinary Course of Business in compliance with workmen’s compensation, unemployment insurance and other social security laws and regulations;

(r) Liens securing Indebtedness permitted by Section 10.2.1(e) ( provided that Liens on any Hedge Agreement may be incurred under the Term Loan Facility or the Loan Documents, but not both) ;

(s) any license or sub-license entered into in the Ordinary Course of Business and not interfering with such Obligor’s or its Subsidiaries’ conduct of its respective business, and the interest of any non-exclusive licensors under license agreements (including, for the avoidance of doubt, relating to Intellectual Property);

(t) Liens arising from precautionary UCC financing statements filed in connection with operating leases;

(u) Liens on cash earnest money deposits made in connection with Permitted Acquisitions or other acquisitions of assets permitted hereunder;

(v) Liens on Equity Interests in joint ventures securing obligations of such entities, and options, put and call arrangements, rights of first refusal and similar rights related to Equity Interests in joint ventures [reserved] ;

(w) Liens in favor of Borrowers or any Subsidiary securing Indebtedness permitted under Section 10.2.1(n ) [ reserved] ;

(x) Liens granted in the Ordinary Course of Business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under Section 10.2.1(o) hereof;

 

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(y) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties not yet delinquent in connection with the importation of goods in the Ordinary Course of Business;

(z) Liens arising in connection with ( i )  the Prepetition Escrowed Amounts, (ii)  the Fee Claims Account and (iii)  the ABL DIP Cash Collateral Account [reserved] ; and

(aa) other Liens securing liabilities (other than Borrowed Money) in an aggregate amount not to exceed $5,000,000 at any time outstanding.

Notwithstanding the foregoing, no Obligor shall incur any Liens on any ABL Priority Collateral except (i) Permitted Liens that arise by operation of law and are junior to Agent’s Lien on ABL Priority Collateral securing the Obligations and (ii) other Permitted Liens that are junior to Agent’s Lien on any ABL Priority Collateral securing the Obligations pursuant to the Intercreditor Agreement or another intercreditor agreement satisfactory to Agent containing terms no less favorable to Lenders in all material respects, taken as a whole, as the terms in the Intercreditor Agreement.

10.2.3 Delayed Admin Claims . Make any payment (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any Delayed Admin Claim on or prior to August  31, 2013.

10.2.3 [Reserved].

10.2.4 Distributions; Upstream Payments . Declare or make any Distributions, except Upstream Payments; or create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, except for restrictions under the Loan Documents, under the Term Loan Documents, under Applicable Law or in effect on the Closing Amendment No. 3 Effective Date as shown on Schedule  9.1.15 .

10.2.5 Restricted Investments . Make any Restricted Investment.

10.2.6 Disposition of Assets . Make any Asset Disposition, except a Permitted Asset Disposition, a disposition of Equipment under Section  8.4.2 , or a transfer of Property by a Subsidiary or Obligor to a Borrower.

10.2.7 [ Reserved ].

10.2.8 Restrictions on Payment of Certain Debt . Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any Indebtedness, except:

(a) regularly scheduled payments of principal, interest and fees, but if such Indebtedness is Subordinated Debt, only to the extent permitted under any subordination agreement relating to such Indebtedness (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied);

(b) (i) any prepayment in respect of such Indebtedness on or after September 1, 2014 so long as the Payment Conditions are satisfied; (ii) any mandatory prepayments in respect of Indebtedness incurred under the Term Loan Facility or any Permitted First Lien Debt or any refinancing thereof so long as the Refinancing Conditions are satisfied with respect to such Refinancing Debt ; provided that no such mandatory prepayments based on Excess Cash Flow (as defined in the Term Loan Agreement, or any comparable definition with respect to such Refinancing Debt) shall be made unless Specified Availability on the date of such prepayment, both immediately before and after giving pro

 

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forma effect to such prepayment, is greater than or equal to 15% of the Commitments at such time ; and (iii) to the extent constituting Indebtedness, any mandatory prepayments in respect of Specified Unsecured Prepetition Debt to the extent required under the Plan of Reorganization in connection with a Restricted Payment described in clause (c)  of the definition of “Upstream Payment”;

(c) any prepayments in connection with any refinancing of Indebtedness otherwise permitted hereunder so long as the Refinancing Conditions are satisfied with respect to such Refinancing Debt; and

(d) any payments upon conversion of any such Indebtedness into common stock of Company made solely in common stock of Company, in each case in connection with such conversion ; and .

(e) to the extent constituting Indebtedness, the Delayed Admin Claims on or after September  1, 2013.

10.2.9 Fundamental Changes .

(a) Merge, combine or consolidate with any Person, or liquidate or wind up or dissolve itself (or suffer any liquidation or dissolution), or sell, lease, assign, transfer or otherwise dispose of, all or substantially all of its Property, business or assets, whether in a single transaction or in a series of related transactions, except for (i) mergers or consolidations of a wholly-owned Subsidiary with another wholly-owned Subsidiary; provided that if any party to any such transaction is a Borrower, the surviving entity of such transaction shall be a Borrower; and if any party to any such transaction is an Obligor that is not a Borrower, the surviving entity of such transaction shall be an Obligor; (ii) mergers or consolidations of a wholly-owned Subsidiary into a Borrower; (iii) sales, leases, transfers or other dispositions by a Subsidiary (the “ Transferring Subsidiary ”) of any or all of its assets (upon voluntary liquidation, winding up or dissolution (which shall be permitted so long as such Subsidiary’s assets are disposed of in accordance with this clause (iii) ) or otherwise) to any other Subsidiary; provided that if such Transferring Subsidiary is an Obligor that is not a Borrower, such sale, lease, transfer or disposition shall be to an Obligor and if such Transferring Subsidiary is a Subsidiary of a Borrower, such sale, lease, transfer or disposition shall be to such Borrower; and (iv) Permitted Acquisitions.

(b) Solely in the case of an Obligor, change its name or conduct business under any fictitious name; change its tax, charter or other organizational identification number; change its form or state of organization, except in each case under this clause (b)  if (I) such Obligor shall have given Agent ten (10) Business Days prior written notice thereof and (II) Agent shall have taken all steps reasonably deemed necessary by Agent to maintain the validity, enforceability, perfection and priority of Agent’s security interest in the Collateral of such Obligor, and Obligor shall have executed and delivered such documents, instruments and agreements requested by Agent in connection therewith.

10.2.10 Subsidiaries . Form or acquire any Subsidiary after the Closing Date, except in accordance with Sections 10.1.14 , 10.2.5 and 10.2.9 ; or permit any existing Subsidiary to issue any additional Equity Interests except directors’ qualifying shares.

10.2.11 Organic Documents . Amend, modify or otherwise change any of its Organic Documents, except ( i )  in connection with a transaction permitted under Section  10.2.9 or (ii)  changes that do not affect in any adverse way such Obligor s or Subsidiary s rights and obligations to enter into and perform the Loan Documents to which it is a party or to pay all of the Obligations, that do not affect or impair the perfection, priority or enforceability of any Liens granted by such Obligor or such Subsidiary pursuant to any Loan Documents, and that could not reasonably be expected to have a Material Adverse Effect. the deletion of Section 7 of the Amended and Restated Certificate of Incorporation of Company .

 

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10.2.12 Tax Consolidation . File or consent to the filing of any consolidated income tax return with any Person other than Company and Subsidiaries.

10.2.13 Accounting Changes . Make any material change in accounting treatment or reporting practices, except as required by GAAP and in accordance with Section  1.2 ; or change its Fiscal Year ; provided that, upon 30 days prior written notice by Borrower Agent to Agent, the fiscal year end of Borrowers and Subsidiaries for accounting and tax purposes may be changed to the last Saturday in December, in which case Agent will, and is hereby authorized by Lenders to, make any adjustments to this Agreement that are necessary in Agent’s reasonable discretion to reflect such change in Fiscal Year (subject, so long as no Default or Event of Default is then continuing, to Borrower’s consent, not to unreasonably withheld or delayed). Effective from the time of any such change in fiscal year, each reference to a month or calendar month in this Loan Agreement (excluding references with regard to any Interest Period, effectiveness of any change of interest rate, calculation or payment of fees and time periods with respect to Letters of Credit) shall, unless the context shall otherwise require, be deemed a reference to fiscal month . .

10.2.14 Restrictive Agreements . Become a party to any Restrictive Agreement, except a Restrictive Agreement (a) in effect on the Closing Date; (b) relating to secured Indebtedness permitted hereunder, as long as the restrictions apply only to collateral for such Indebtedness; (c) constituting customary restrictions on assignment in leases and other contracts; or (d) the Term Loan Documents (together with any refinancings, renewals, replacements or extensions thereof; provided that the Refinancing Conditions are satisfied and the restrictions contained in the Refinancing Debt are no more restrictive than those contained in the agreements governing the Indebtedness being refinanced).

10.2.15 Hedging Agreements . Enter into any Hedging Agreement, except to hedge risks arising in the Ordinary Course of Business and not for speculative purposes.

10.2.16 Conduct of Business . Engage in any business, other than its business as conducted on the Closing Date and any activities incidental thereto.

10.2.17 Affiliate Transactions . Enter into or be party to any transaction with an Affiliate, except (a) transactions expressly permitted by the Loan Documents; (b) payment of reasonable compensation to officers and employees for services actually rendered, and payment of customary directors’ fees and indemnities; (c) transactions solely among Obligors; (d) transactions with Affiliates consummated prior to the Closing Amendment No. 3 Effective Date, as shown on Schedule 10.2.17 ; or (e) transactions with Affiliates in the Ordinary Course of Business, upon fair and reasonable terms fully disclosed to Agent and no less favorable than would be obtained in a comparable arm’s-length transaction with a non-Affiliate ; or (f)  any transaction with a value (or series of related transactions with an aggregate value) of less than $1,000,000 .

10.2.18 Plans . Become party to any Multiemployer Plan or Foreign Plan, other than any in existence on the Closing Date or establish any defined benefit plan.

10.2.19 Amendments to Debt .

(a) Amend, supplement or otherwise modify any document, instrument or agreement relating to any Subordinated Debt, if such modification (i) increases the principal balance of such Indebtedness, or increases any required payment of principal or interest; (ii) accelerates the date on which any installment of principal or any interest is due, or adds any additional redemption, put or prepayment provisions; (iii) shortens the final maturity date or otherwise accelerates amortization; (iv) increases the interest rate; (v) increases or adds any fees or charges; (vi) modifies any covenant in a manner or adds any representation, covenant or default that is more onerous or restrictive in any material respect for any Borrower or Subsidiary, or that is otherwise materially adverse to any Borrower, any Subsidiary or

 

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Lenders; or (vii) results in the Obligations not constituting “Designated Senior Indebtedness” or “Senior Debt” (or any other defined term having a similar purpose) under, and as defined in, any indenture or other agreement related to such Subordinated Debt, or otherwise not being fully benefited by the subordination provisions thereof.

(b) Amend, supplement or otherwise modify the Term Loan Documents or Term Loan Facility, if such modification ( i )  shortens the final maturity or decreases the weighted average life; (ii)  increases any applicable interest rate margins by more than 3.00% per annum (exclusive, for the avoidance of doubt, of (x)  customary arranger fees, upfront fees and fees to market and (y)  increases in connection with the imposition of a default rate of interest in accordance with the terms of the Term Loan Documents, the application of pricing grid or the incurrence of incremental loans (as in effect on the date hereof or as permitted to be amended hereby) but inclusive of the effect of any LIBOR floor); or (iii)  is prohibited by the would contravene the provisions of the Intercreditor Agreement.

(c) Amend, supplement or otherwise modify any document, instrument or agreement relating to the Specified Unsecured Prepetition Debt, if such modification ( i )  provides for any mandatory prepayments (other than in connection with a change of control or to the extent required under Section V.I of the Plan of Reorganization) or requires any cash interest to be paid, in each case, prior to September  30, 2014 or (ii)  shortens the final maturity or decreases the weighted average life thereof.

10.2.20 Term Priority Collateral Account . Deposit any proceeds of ABL Priority Collateral in the Term Priority Collateral Account or deposit any proceeds of Term Priority Collateral in any Deposit Account other than the Term Priority Collateral Account.

10.3 Financial Covenant . As long as any Commitments or Obligations are outstanding, Borrowers shall maintain a Fixed Charge Coverage Ratio of at least 1.00 to 1.00 for each period of each period of twelve consecutive calendar months while a Covenant Trigger Period is in effect, commencing with the most recent period for which financial statements were, or were required to be, delivered hereunder prior to the commencement of the Covenant Trigger Period.

SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT

11.1 Events of Default . Each of the following shall be an “ Event of Default ” if it occurs for any reason whatsoever, whether voluntary or involuntary, by operation of law or otherwise:

(a) Any Borrower fails to pay its Obligations when due (whether at stated maturity, on demand, upon acceleration or otherwise);

(b) Any representation, warranty or other written statement of an Obligor made in connection with any Loan Documents or transactions contemplated thereby is incorrect or misleading in any material respect when given;

(c) An Obligor breaches or fail to perform any covenant contained in Section  8.1, 8.2.4, 8.2.5, 8.5, 8.6.2, 10.1.1, 10.1.2, 10.1.15, 10.2 or 10.3 ;

(d) An Obligor breaches or fails to perform any other covenant contained in any Loan Documents, and such breach or failure is not cured within 30 days (except that the cure period for any breach under Section  10.1.16 shall be only five (5)  Business Days) after a Senior Officer of such Obligor has knowledge thereof or receives written notice thereof from Agent, whichever is sooner; provided , however , that such notice and opportunity to cure shall not apply if the breach or failure to perform is not capable of being cured within such period or is a willful breach by an Obligor;

(e) A Guarantor repudiates, revokes or attempts to revoke its Guaranty; an Obligor or third party denies or contests the validity or enforceability of any Loan Documents or Obligations, or the perfection or priority of any Lien granted to Agent; or any Loan Document ceases to be in full force or effect for any reason (other than a waiver or release by Agent and Lenders);

 

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(f) Any breach or default of an Obligor occurs under (i) any Hedging Agreement with a net amount payable in excess of $2,500,000; (ii) any instrument or agreement to which it is a party or by which it or any of its Properties is bound, relating to any Indebtedness (other than the Obligations) in excess of $2,500,000, if the maturity of or any payment with respect to such Indebtedness may be accelerated or demanded due to such breach, in the case of clause (i) and (ii) after giving effect to any applicable grace periods; or (iii) any “Event of Default” under and as defined in the Term Loan Facility or any refinancing thereof;

(g) Any judgment or order for the payment of money is entered against an Obligor in an amount that exceeds, individually or cumulatively with all unsatisfied judgments or orders against all Obligors, $5,000,000 (net of insurance coverage therefor that has not been denied by the insurer), unless a stay of enforcement of such judgment or order is in effect, by reason of a pending appeal or otherwise;

(h) A loss, theft, damage or destruction occurs with respect to any ABL Priority Collateral if the amount not covered by insurance exceeds $2,500,000;

(i) An Obligor is enjoined, restrained or in any way prevented by any Governmental Authority from conducting any material part of its business; an Obligor suffers the loss, revocation or termination of any material license, permit, lease or agreement necessary to its business; there is a cessation of any material part of an Obligor’s business for a material period of time; any material Collateral or Property of an Obligor is taken or impaired through condemnation; an Obligor agrees to or commences any liquidation, dissolution or winding up of its affairs except as expressly permitted by Section  10.2.9 ;

(j) An Insolvency Proceeding is commenced by an Obligor; an Obligor makes an offer of settlement, extension or composition to its unsecured creditors generally; a trustee is appointed to take possession of any substantial Property of or to operate any of the business of an Obligor; or an Insolvency Proceeding is commenced against an Obligor and: such Obligor consents to institution of the proceeding, the petition commencing the proceeding is not timely contested by such Obligor, the petition is not dismissed within 30 days after filing, or an order for relief is entered in the proceeding;

(k) (A) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan; (B) an Obligor or ERISA Affiliate fails to pay when due any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan; or (C) any event similar to the foregoing occurs or exists with respect to a Foreign Plan, that in each of clauses (A)  through (C) , has resulted or would reasonably be expected to result in a Material Adverse Effect; or

(l) The Third Lien Subordination Agreement ceases to be in full force or effect for any reason unless as a result of the payment in full of the Junior Obligations (as defined therein) has occurred; or

( m l ) A Change of Control occurs.

11.2 Remedies upon Default . If an Event of Default described in Section 11.1(j) occurs with respect to any Borrower, then to the extent permitted by Applicable Law, all Obligations (other than Secured Bank Product Obligations) shall become automatically due and payable and all Commitments shall terminate, without any action by Agent or notice of any kind. In addition, or if any other Event of Default exists, Agent may in its discretion (and shall upon written direction of Required Lenders) do any one or more of the following from time to time:

 

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(a) declare any Obligations (other than Secured Bank Product Obligations) immediately due and payable, whereupon they shall be due and payable without diligence, presentment, demand, protest or notice of any kind, all of which are hereby waived by Borrowers to the fullest extent permitted by law;

(b) terminate, reduce or condition any Commitment, or make any adjustment to the Borrowing Base;

(c) require Obligors to Cash Collateralize their LC Obligations, Secured Bank Product Obligations and other Obligations that are contingent or not yet due and payable, and, if Obligors fail promptly to deposit such Cash Collateral, Agent may (and shall upon the direction of Required Lenders) advance the required Cash Collateral as Loans (whether or not an Overadvance exists or is created thereby, or the conditions in Section  6 are satisfied); and

(d) exercise any other rights or remedies afforded under any agreement, by law, at equity or otherwise, including the rights and remedies of a secured party under the UCC. Such rights and remedies include the rights to (i) take possession of any Collateral; (ii) require Borrowers to assemble Collateral, at Borrowers’ expense, and make it available to Agent at a place designated by Agent; (iii) enter any premises where Collateral is located and store Collateral on such premises until sold (and if the premises are owned or leased by a Borrower, Borrowers agree not to charge for such storage); and (iv) sell or otherwise dispose of any Collateral in its then condition, or after any further manufacturing or processing thereof, at public or private sale, with such notice as may be required by Applicable Law, in lots or in bulk, at such locations, all as Agent, in its discretion, deems advisable. Each Borrower agrees that 10 days’ notice of any proposed sale or other disposition of Collateral by Agent shall be reasonable and that any sale conducted on the internet or to a licensor of Intellectual Property shall be commercially reasonable. Agent may conduct sales on any Obligor’s premises, without charge, and any sale may be adjourned from time to time in accordance with Applicable Law. Agent shall have the right to sell, lease or otherwise dispose of any Collateral for cash, credit or any combination thereof, and Agent may purchase any Collateral at public or, if permitted by law, private sale and, in lieu of actual payment of the purchase price, may credit bid and set off the amount of such price against the Obligations.

11.3 License . For purpose of enabling Agent to exercise rights and remedies under this Agreement and the other Loan Documents at such time as Agent shall lawfully be entitled to exercise such rights and remedies, each Obligor hereby grants to Agent an irrevocable, non-exclusive license, sub-license or other right to use, license or sub-license and otherwise exploit (without payment of royalty or other compensation to any Person) any or all Intellectual Property owned by Borrowers; provided , however , that such license (i) shall be subject to those exclusive licenses granted by Borrowers in effect on the date hereof Closing Date and those granted by any Borrower hereafter, to the extent conflicting, (ii) may be exercised, at the option of Agent, only upon the occurrence and during the continuation of an Event of Default, provided , further , that any license, sublicense or other transaction entered into by Agent in accordance herewith shall be binding upon Borrowers notwithstanding any subsequent cure of an Event of Default and (iii) shall apply to the use of the trademarks or service marks in connection with goods and services of similar type and quality to those theretofore sold by such Borrower under such trademark or service mark. The foregoing license or sublicense shall include access to all media in which any of the licensed or sublicensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof, subject to and solely to the extent permitted by any existing licenses or agreements relating thereto.

11.4 Setoff . At any time during an Event of Default, Agent, Issuing Bank, Lenders, and any of their Affiliates are authorized, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by Agent, Issuing Bank, such Lender or such Affiliate to or for the credit or the account of an Obligor against its Obligations, whether

 

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or not Agent, Issuing Bank, such Lender or such Affiliate shall have made any demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or are owed to a branch or office of Agent, Issuing Bank, such Lender or such Affiliate different from the branch or office holding such deposit or obligated on such indebtedness. The rights of Agent, Issuing Bank, each Lender and each such Affiliate under this Section  11.4 are in addition to other rights and remedies (including other rights of setoff) that such Person may have.

11.5 Remedies Cumulative; No Waiver .

11.5.1 Cumulative Rights . All agreements, warranties, guaranties, indemnities and other undertakings of Obligors under the Loan Documents are cumulative and not in derogation of each other. The rights and remedies of Agent and Lenders under the Loan Documents are cumulative, may be exercised at any time and from time to time, concurrently or in any order, and are not exclusive of any other rights or remedies available by agreement, by law, at equity or otherwise. All such rights and remedies shall continue in full force and effect until Full Payment of all Obligations.

11.5.2 Waivers . No waiver or course of dealing shall be established by (a) the failure or delay of Agent or any Lender to require strict performance by any Obligor under any Loan Document, or to exercise any rights or remedies with respect to Collateral or otherwise; (b) the making of any Loan or issuance of any Letter of Credit during a Default, Event of Default or other failure to satisfy any conditions precedent; or (c) acceptance by Agent or any Lender of any payment or performance by an Obligor under any Loan Documents in a manner other than that specified therein. Any failure to satisfy a financial covenant on a measurement date shall not be cured or remedied by satisfaction of such covenant on a subsequent date.

SECTION 12. AGENT

12.1 Appointment, Authority and Duties of Agent .

12.1.1 Appointment and Authority . Each Secured Party appoints and designates Bank of America as Agent under all Loan Documents. Agent may, and each Secured Party authorizes Agent to, enter into all Loan Documents to which Agent is intended to be a party and accept all Security Documents. Any action taken by Agent in accordance with the provisions of the Loan Documents, and the exercise by Agent of any rights or remedies set forth therein, together with all other powers reasonably incidental thereto, shall be authorized by and binding upon all Secured Parties. Without limiting the generality of the foregoing, Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection with the Loan Documents; (b) execute and deliver as Agent each Loan Document, including the Intercreditor Agreement and any other intercreditor or subordination agreement, and accept delivery of each Loan Document; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) manage, supervise or otherwise deal with Collateral; and (e) take any Enforcement Action or otherwise exercise any rights or remedies with respect to any Collateral or under any Loan Documents, Applicable Law or otherwise. Agent alone shall be authorized to determine eligibility and applicable advance rates under the Borrowing Base, whether to impose or release any reserve, or whether any conditions to funding or issuance of a Letter of Credit have been satisfied, which determinations and judgments, if exercised in good faith, shall exonerate Agent from liability to any Secured Party or other Person for any error in judgment.

12.1.2 Duties . The title of “Agent” is used solely as a matter of market custom and the duties of Agent are administrative in nature only. Agent has no duties except those expressly set forth in the Loan Documents, and in no event does Agent have any agency, fiduciary or implied duty to or relationship with any Secured Party or other Person by reason of any Loan Document or related transaction. The conferral upon Agent of any right shall not imply a duty to exercise such right, unless instructed to do so by Lenders in accordance with this Agreement.

 

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12.1.3 Agent Professionals . Agent may perform its duties through agents and employees. Agent may consult with and employ Agent Professionals, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by an Agent Professional. Agent shall not be responsible for the negligence or misconduct of any agents, employees or Agent Professionals selected by it with reasonable care.

12.1.4 Instructions of Required Lenders . The rights and remedies conferred upon Agent under the Loan Documents may be exercised without the necessity of joining any other party, unless required by Applicable Law. In determining compliance with a condition for any action hereunder, including satisfaction of any condition in Section  6 , Agent may presume that the condition is satisfactory to a Secured Party unless Agent has received notice to the contrary from such Secured Party before Agent takes the action. Agent may request instructions from Required Lenders or other Secured Parties with respect to any act (including the failure to act) in connection with any Loan Documents or Collateral, and may seek assurances to its satisfaction from Secured Parties of their indemnification obligations against Claims that could be incurred by Agent. Agent may refrain from any act until it has received such instructions or assurances, and shall not incur liability to any Person by reason of so refraining. Instructions of Required Lenders shall be binding upon all Secured Parties, and no Secured Party shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting pursuant to instructions of Required Lenders. Notwithstanding the foregoing, instructions by and consent of specific parties shall be required to the extent provided in Section  14.1.1 . In no event shall Agent be required to take any action that it determines in its discretion is contrary to Applicable Law or any Loan Documents or could subject any Agent Indemnitee to liability.

12.2 Agreements Regarding Collateral and Borrower Materials .

12.2.1 Lien Releases; Care of Collateral . Secured Parties authorize Agent to release any Lien with respect to any Collateral (a) upon Full Payment of the Obligations; (b) that is the subject of a disposition or Lien that Borrowers certify in writing is a Permitted Asset Disposition or Permitted Lien entitled to priority over Agent’s Liens (and Agent may rely conclusively on any such certificate without further inquiry); (c) that does not constitute a material part of the Collateral; or (d) subject to Section  14.1 , with the consent of Required Lenders. Secured Parties authorize Agent to subordinate its Liens to any Purchase Money Lien or other Lien entitled to priority hereunder. Agent has no obligation to assure that any Collateral exists or is owned by an Obligor, or is cared for, protected or insured, nor to assure that Agent’s Liens have been properly created, perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care with respect to any Collateral.

12.2.2 Possession of Collateral . Agent and Secured Parties appoint each Lender as agent (for the benefit of Secured Parties) for the purpose of perfecting Liens in any Collateral held or controlled by such Lender, to the extent such Liens are perfected by possession or control. If any Lender obtains possession or control of any Collateral, it shall notify Agent thereof and, promptly upon Agent’s request, deliver such Collateral to Agent or otherwise deal with it in accordance with Agent’s instructions.

12.2.3 Reports . Agent shall promptly provide to Lenders, when complete, any field examination, audit or appraisal report prepared for Agent with respect to any Obligor or Collateral (“ Report ”). Reports and other Borrower Materials may be made available to Lenders by providing access to them on the Platform, but Agent shall not be responsible for system failures or access issues that may occur from time to time. Each Lender agrees (a) that Reports are not intended to be comprehensive audits or examinations, and that Agent or any other Person performing an audit or examination will inspect only limited information and will rely significantly upon Borrowers’ books, records and representations; (b) that Agent makes no representation or warranty as to the accuracy or completeness of any Borrower

 

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Materials and shall not be liable for any information contained in or omitted from any Borrower Materials, including any Report; and (c) to keep all Borrower Materials confidential and strictly for such Lender’s internal use, not to distribute any Report or other Borrower Materials (or the contents thereof) to any Person (except to such Lender’s Participants, attorneys and accountants), and to use all Borrower Materials solely for administration of the Obligations. Each Lender shall indemnify and hold harmless Agent and any other Person preparing a Report from any action such Lender may take as a result of or any conclusion it may draw from any Borrower Materials, as well as from any Claims arising as a direct or indirect result of Agent furnishing same to such Lender, via the Platform or otherwise.

12.3 Reliance By Agent . Agent shall be entitled to rely, and shall be fully protected in relying, upon any certification, notice or other communication (including those by telephone, telex, telegram, telecopy or , e-mail or other electronic means ) believed by it to be genuine and correct and to have been signed, sent or made by the proper Person. Agent shall have a reasonable and practicable amount of time to act upon any instruction, notice or other communication under any Loan Document, and shall not be liable for any delay in acting.

12.4 Action Upon Default . Agent shall not be deemed to have knowledge of any Default or Event of Default, or of any failure to satisfy any conditions in Section  6 , unless it has received written notice from a Borrower or Required Lenders specifying the occurrence and nature thereof. If any Lender acquires knowledge of a Default, Event of Default or failure of such conditions, it shall promptly notify Agent and the other Lenders thereof in writing. Each Secured Party agrees that, except as otherwise provided in any Loan Documents or with the written consent of Agent and Required Lenders, it will not take any Enforcement Action, accelerate Obligations (other than Secured Bank Product Obligations) or assert any rights relating to any Collateral.

12.5 Ratable Sharing . If any Lender obtains any payment or reduction of any Obligation, whether through set-off or otherwise, in excess of its ratable share of such Obligation, such Lender shall forthwith purchase from Secured Parties participations in the affected Obligation as are necessary to share the excess payment or reduction on a Pro Rata basis or in accordance with Section  5.5.2 , as applicable. If any of such payment or reduction is thereafter recovered from the purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. Notwithstanding the foregoing, if a Defaulting Lender obtains a payment or reduction of any Obligation, it shall immediately turn over the full amount thereof to Agent for application under Section  4.2.2 and it shall provide a written statement to Agent describing the Obligation affected by such payment or reduction. No Lender shall set off against a Dominion Account without Agent’s prior consent.

12.6 Indemnification . EACH SECURED PARTY SHALL INDEMNIFY AND HOLD HARMLESS AGENT INDEMNITEES AND ISSUING BANK INDEMNITEES, TO THE EXTENT NOT REIMBURSED BY OBLIGORS, ON A PRO RATA BASIS, AGAINST ALL CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE; PROVIDED THAT ANY CLAIM AGAINST AN AGENT INDEMNITEE RELATES TO OR ARISES FROM ITS ACTING AS OR FOR AGENT (IN THE CAPACITY OF AGENT); PROVIDED FURTHER THAT NO SECURED PARTY SHALL HAVE ANY OBLIGATION TO INDEMNIFY ANY AGENT INDEMNITEE OR ISSUING BANK INDEMNITEE HEREUNDER TO THE EXTENT THAT SUCH CLAIM IS DETERMINED IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH AGENT INDEMNITEE OR ISSUING BANK INDEMNITEE. In Agent’s discretion, it may reserve for any Claims made against an Agent Indemnitee or Issuing Bank Indemnitee, and may satisfy any judgment, order or settlement relating thereto, from proceeds of Collateral prior to making any distribution of Collateral proceeds to Secured Parties. If Agent is sued by any receiver, trustee or other Person for any alleged preference or fraudulent transfer, then any monies paid by Agent in settlement or satisfaction of such proceeding, together with all interest, costs and expenses (including attorneys’ fees) incurred in the defense of same, shall be promptly reimbursed to Agent by each Secured Party to the extent of its Pro Rata share.

 

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12.7 Limitation on Responsibilities of Agent . Agent shall not be liable to any Secured Party for any action taken or omitted to be taken under the Loan Documents, except for losses directly and solely caused by Agent’s gross negligence or willful misconduct. Agent does not assume any responsibility for any failure or delay in performance or any breach by any Obligor, Lender or other Secured Party of any obligations under the Loan Documents. Agent does not make any express or implied representation, warranty or guarantee to Secured Parties with respect to any Obligations, Collateral, Liens, Loan Documents or Obligor. No Agent Indemnitee shall be responsible to Secured Parties for any recitals, statements, information, representations or warranties contained in any Loan Documents or Borrower Materials; the execution, validity, genuineness, effectiveness or enforceability of any Loan Documents; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Obligations; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor or Account Debtor. No Agent Indemnitee shall have any obligation to any Secured Party to ascertain or inquire into the existence of any Default or Event of Default, the observance by any Obligor of any terms of the Loan Documents, or the satisfaction of any conditions precedent contained in any Loan Documents.

12.8 Successor Agent and Co-Agents .

12.8.1 Resignation; Successor Agent . Agent may resign at any time by giving at least 30 days written notice thereof to Lenders and Borrowers. Required Lenders may appoint a successor to replace the resigning Agent, which successor shall be (a) a Lender or an Affiliate of a Lender; or (b) a financial institution reasonably acceptable to Required Lenders and ( provided no Default or Event of Default exists) Borrowers. If no successor agent is appointed prior to the effective date of Agent’s resignation, then Agent may appoint a successor agent that is a financial institution acceptable to it (which shall be a Lender unless no Lender accepts the role) or in the absence of such appointment, Required Lenders shall on such date assume all rights and duties of Agent hereunder. Upon acceptance by any successor Agent of its appointment hereunder, such successor Agent shall thereupon succeed to and become vested with all the powers and duties of the retiring Agent without further act. On the effective date of its resignation, the retiring Agent shall be discharged from its duties and obligations hereunder but shall continue to have all rights and protections under the Loan Documents with respect to actions taken or omitted to be taken by it while Agent , omissions, circumstances or Claims relating to or arising while it was acting or transferring responsibilities as Agent or holding any Collateral on behalf of Secured Parties , including the indemnification set forth in Sections 12.6 and 14.2 , and all rights and protections under this Section  12 . Any successor to Bank of America by merger or acquisition of stock or this loan shall continue to be Agent hereunder without further act on the part of any Secured Party or Obligor.

12.8.2 Co-Collateral Agent . If appropriate under Applicable Law, Agent may appoint a Person to serve as a co-collateral agent or separate collateral agent under any Loan Document. Each right, remedy and protection intended to be available to Agent under the Loan Documents shall also be vested in such agent. Secured Parties shall execute and deliver any instrument or agreement that Agent may request to effect such appointment. If any such agent shall die, dissolve, become incapable of acting, resign or be removed, then all the rights and remedies of the agent, to the extent permitted by Applicable Law, shall vest in and be exercised by Agent until appointment of a new agent.

12.9 Due Diligence and Non-Reliance . Each Lender acknowledges and agrees that it has, independently and without reliance upon Agent or any other Lenders, and based upon such documents, information and analyses as it has deemed appropriate, made its own credit analysis of each Obligor and its own decision to enter into this Agreement and to fund Loans and participate in LC Obligations hereunder. Each Secured Party has made such inquiries as it feels necessary concerning the Loan

 

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Documents, Collateral and Obligors. Each Secured Party acknowledges and agrees that the other Secured Parties have made no representations or warranties concerning any Obligor, any Collateral or the legality, validity, sufficiency or enforceability of any Loan Documents or Obligations. Each Secured Party will, independently and without reliance upon any other Secured Party, and based upon such financial statements, documents and information as it deems appropriate at the time, continue to make and rely upon its own credit decisions in making Loans and participating in LC Obligations, and in taking or refraining from any action under any Loan Documents. Except for notices, reports and other information expressly requested by a Lender, Agent shall have no duty or responsibility to provide any Secured Party with any notices, reports or certificates furnished to Agent by any Obligor or any credit or other information concerning the affairs, financial condition, business or Properties of any Obligor (or any of its Affiliates) which may come into possession of Agent or its Affiliates.

12.10 Remittance of Payments and Collections .

12.10.1 Remittances Generally . All payments by any Lender to Agent shall be made by the time and on the day set forth in this Agreement, in immediately available funds. If no time for payment is specified or if payment is due on demand by Agent and request for payment is made by Agent by 1:00 p.m. on a Business Day, payment shall be made by Lender not later than 3:00 p.m. on such day, and if request is made after 1:00 p.m., then payment shall be made by 11:00 a.m. on the next Business Day. Payment by Agent to any Secured Party shall be made by wire transfer, in the type of funds received by Agent. Any such payment shall be subject to Agent’s right of offset for any amounts due from such payee under the Loan Documents.

12.10.2 Failure to Pay . If any Secured Party fails to pay any amount when due by it to Agent pursuant to the terms hereof, such amount shall bear interest, from the due date until paid in full, at the rate determined by Agent as customary for interbank compensation for two Business Days and thereafter at the Default Rate for Base Rate Loans. In no event shall Borrowers be entitled to receive credit for any interest paid by a Secured Party to Agent, nor shall any Defaulting Lender be entitled to interest on any amounts held by Agent pursuant to Section  4.2 .

12.10.3 Recovery of Payments . If Agent pays an amount to a Secured Party in the expectation that a related payment will be received by Agent from an Obligor and such related payment is not received, then Agent may recover such amount from the Secured Party. If Agent determines that an amount received by it must be returned or paid to an Obligor or other Person pursuant to Applicable Law or otherwise, then Agent shall not be required to distribute such amount to any Secured Party. If any amounts received and applied by Agent to Obligations held by a Secured Party are later required to be returned by Agent pursuant to Applicable Law, such Secured Party shall pay to Agent, on demand, its share of the amounts required to be returned.

12.11 Individual Capacities . As a Lender, Bank of America shall have the same rights and remedies under the Loan Documents as any other Lender, and the terms “Lenders,” “Required Lenders” or any similar term shall include Bank of America in its capacity as a Lender. Agent, Lenders and their Affiliates may accept deposits from, lend money to, provide Bank Products to, act as financial or other advisor to, and generally engage in any kind of business with, Obligors and their Affiliates, as if they were not Agent or Lenders hereunder, without any duty to account therefor to any Secured Party. In their individual capacities, Agent, Lenders and their Affiliates may receive information regarding Obligors, their Affiliates and their Account Debtors (including information subject to confidentiality obligations), and shall have no obligation to provide such information to any Secured Party.

12.12 Titles . Each Lender, other than Bank of America, that is designated (on the cover page of this Agreement or otherwise) by Bank of America as an “Arranger,” “Bookrunner” or “Agent” of any type shall have no right, power or duty under any Loan Documents other than those applicable to all Lenders, and shall in no event have any fiduciary duty to any Secured Party.

 

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12.13 Bank Product Providers . Each Secured Bank Product Provider, by delivery of a notice to Agent of a Bank Product, agrees to be bound by the Loan Documents, including Sections 5.5, 14.3.3 and 12 . Each Secured Bank Product Provider shall indemnify and hold harmless Agent Indemnitees, to the extent not reimbursed by Obligors, against all Claims that may be incurred by or asserted against any Agent Indemnitee in connection with such provider’s Secured Bank Product Obligations.

12.14 No Third Party Beneficiaries . This Section  12 is an agreement solely among Secured Parties and Agent, and shall survive Full Payment of the Obligations. This Section  12 does not confer any rights or benefits upon Borrowers or any other Person. As between Borrowers and Agent, any action that Agent may take under any Loan Documents or with respect to any Obligations shall be conclusively presumed to have been authorized and directed by Secured Parties.

12.15 Intercreditor Agreement . Each Lender hereunder (a) consents to the subordination of Liens provided for in the Intercreditor Agreement; (b) agrees that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement; (c) authorizes and instructs Agent to enter into the Intercreditor Agreement as ABL Agent on behalf of such holder of “ABL Obligations” (as defined therein); and (d) acknowledges (or is deemed to acknowledge) that a copy of the Intercreditor Agreement was delivered, or made available, to such Lender. Each Lender hereby acknowledges that it has received and reviewed the Intercreditor Agreement.

SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS

13.1 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of Borrowers, Agent, Lenders, Secured Parties, and their respective successors and assigns, except that (a) no Borrower shall have the right to assign its rights or delegate its obligations under any Loan Documents; and (b) any assignment by a Lender must be made in compliance with Section  13.3 . Agent may treat the Person which made any Loan as the owner thereof for all purposes until such Person makes an assignment in accordance with Section  13.3 . Any authorization or consent of a Lender shall be conclusive and binding on any subsequent transferee or assignee of such Lender. The parties hereby agree that Merrill Lynch, Pierce, Fenner & Smith Incorporated may, without notice to any Obligor, assign its rights and obligations under this Agreement to any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement .

13.2 Participations .

13.2.1 Permitted Participants; Effect. Subject to Section  13.3.3 , any Lender may, sell to a financial institution (“ Participant ”) a participating interest in the rights and obligations of such Lender under any Loan Documents. Despite any sale by a Lender of participating interests to a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged, it shall remain solely responsible to the other parties hereto for performance of such obligations, it shall remain the holder of its Loans and Commitments for all purposes, all amounts payable by Borrowers shall be determined as if it had not sold such participating interests, and Borrowers and Agent shall continue to deal solely and directly with such Lender in connection with the Loan Documents. Each Lender shall be solely responsible for notifying its Participants of any matters under the Loan Documents, and Agent and the other Lenders shall not have any obligation or liability to any such Participant. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section  5.8 unless Borrowers agree otherwise in writing.

 

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13.2.2 Voting Rights . Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, waiver or other modification of a Loan Document other than that which forgives principal, interest or fees, reduces the stated interest rate or fees payable with respect to any Loan or Commitment in which such Participant has an interest, postpones the Commitment Termination Date or any date fixed for any regularly scheduled payment of principal, interest or fees on such Loan or Commitment, or releases any Borrower, Guarantor or substantially all Collateral.

13.2.3 Participant Register . Each Lender that sells a participation shall, acting solely for this purpose as an agent of Borrowers, maintain a register in which it enters the Participant’s name, address and interest in Commitments, Loans (and stated interest) and LC Obligations. Entries in the register shall be conclusive, absent manifest error, and such Lender shall treat each Person recorded in the register as the owner of the participation for all purposes, notwithstanding any notice to the contrary. No Lender shall have an obligation to disclose any information in such register except to the extent necessary to establish that a Participant’s interest is in registered form under the Code.

13.2.4 Benefit of Setoff . Borrowers agree that each Participant shall have a right of set-off in respect of its participating interest to the same extent as if such interest were owing directly to a Lender, and each Lender shall also retain the right of set-off with respect to any participating interests sold by it. By exercising any right of set-off, a Participant agrees to share with Lenders all amounts received through its set-off, in accordance with Section  12.5 as if such Participant were a Lender.

13.3 Assignments .

13.3.1 Permitted Assignments . A Lender may assign to an Eligible Assignee any of its rights and obligations under the Loan Documents, as long as (a) each assignment is of a constant, and not a varying, percentage of the transferor Lender’s rights and obligations under the Loan Documents and, in the case of a partial assignment, is in a minimum principal amount of $5,000,000 (unless otherwise agreed by Agent in its discretion) and integral multiples of $1,000,000 in excess of that amount; (b) except in the case of an assignment in whole of a Lender’s rights and obligations, the aggregate amount of the Commitments retained by the transferor Lender is at least $5,000,000 (unless otherwise agreed by Agent in its discretion); and (c) the parties to each such assignment shall execute and deliver to Agent, for its acceptance and recording, an Assignment and Acceptance. Nothing herein shall limit the right of a Lender to pledge or assign any rights under the Loan Documents to secure obligations of such Lender, including a pledge or assignment to a Federal Reserve Bank; provided , however , that no such pledge or assignment shall release the Lender from its obligations hereunder nor substitute the pledge or assignee for such Lender as a party hereto.

13.3.2 Effect; Effective Date . Upon delivery to Agent of an assignment notice in the form of Exhibit B and a processing fee of $3,500 (unless otherwise agreed by Agent in its discretion), the assignment shall become effective as specified in the notice, if it complies with this Section  13.3 . From such effective date, the Eligible Assignee shall for all purposes be a Lender under the Loan Documents, and shall have all rights and obligations of a Lender thereunder; provided , that such Eligible Assignee (for the avoidance of doubt, including any Eligible Assignee that is already a Lender hereunder at the time of assignment) shall not be entitled to receive any greater payment under Section  5.8 than that which its assignor would have been entitled to receive had no such assignment occurred, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after such assignment. Upon consummation of an assignment, the transferor Lender, Agent and Borrowers shall make appropriate arrangements for issuance of replacement and/or new notes, if applicable. The transferee Lender shall comply with Section  5.9 and deliver, upon request, an administrative questionnaire satisfactory to Agent.

13.3.3 Certain Assignees . No assignment or participation may be made to a Borrower, Affiliate of a Borrower, Defaulting Lender or natural person. Agent shall have no obligation to determine whether any assignment is permitted under the Loan Documents . Any assignment by a Defaulting Lender shall be effective only upon must be accompanied by satisfaction of its outstanding obligations under the Loan Documents in a manner satisfactory to Agent, including payment by the Eligible Assignee or

 

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Defaulting Lender to Agent of an aggregate amount sufficient , upon distribution (through direct payment, purchases of participations or other compensating actions as Agent deems appropriate methods acceptable to Agent in its discretion ), to satisfy all funding and payment liabilities then owing by of the Defaulting Lender hereunder . If an any assignment by a Defaulting Lender shall become effective under Applicable Law for any reason without compliance (by operation of law or otherwise) does not comply with the foregoing sentence , then the assignee shall be deemed a Defaulting Lender for all purposes until such compliance occurs.

13.3.4 Register . Agent, acting solely for this purpose as an agent of Borrowers, shall maintain (a) a copy (or electronic equivalent) of each Assignment and Acceptance delivered to it, and (b) a register for recordation of the names, addresses and Commitments of, and the Loans, interest and LC Obligations owing to, each Lender. Entries in the register shall be conclusive, absent manifest error, and Borrowers, Agent and Lenders shall treat each Person recorded in such register as a Lender for all purposes under the Loan Documents, notwithstanding any notice to the contrary. Agent may choose to show only one Borrower as the borrower in the register, without any effect on the liability of any Obligor with respect to the Obligations. The register shall be available for inspection by Borrowers or any Lender (with respect to any such Lender’s Loans), from time to time upon reasonable notice.

13.4 Replacement of Certain Lenders. If a Lender (a) within the last 120 days failed to give its consent to any amendment, waiver or action for which consent of all Lenders was required and Required Lenders consented, (b) is a Defaulting Lender, or (c) within the last 120 days gave a notice under Section  3.5 or requested payment or compensation under Section  3.7 or 5.8 (and has not designated a different Lending Office pursuant to Section  3.8 ), then Agent or Borrower Agent may, upon 10 days’ notice to such Lender, require it to assign its rights and obligations under the Loan Documents to Eligible Assignee(s), pursuant to appropriate Assignment and Acceptance(s), within 20 days after the notice. Agent is irrevocably appointed as attorney-in-fact to execute any such Assignment and Acceptance if the Lender fails to execute it. Such Lender shall be entitled to receive, in cash, concurrently with such assignment, all amounts owed to it under the Loan Documents through the date of assignment.

SECTION 14. MISCELLANEOUS

14.1 Consents, Amendments and Waivers .

14.1.1 Amendment . No modification of any Loan Document, including any extension or amendment of a Loan Document or any waiver of a Default or Event of Default, shall be effective without the prior written agreement of Agent (with the consent of Required Lenders) and each Obligor party to such Loan Document; provided , however , that

(a) without the prior written consent of Agent, no modification shall alter any provision in a Loan Document that relates to any rights, duties or discretion of Agent;

(b) without the prior written consent of Issuing Bank, no modification shall alter Section  2.2 or any other provision in a Loan Document that relates to Letters of Credit or any rights, duties or discretion of Issuing Bank;

(c) without the prior written consent of each affected Lender, including a Defaulting Lender, no modification shall (i) increase the Commitment of such Lender; (ii) reduce the amount of, or waive or delay payment of, any principal, interest or fees payable to such Lender (except as provided in Section  4.2 ); (iii) extend the Revolver Termination Date; or (iv) amend this clause (c) ;

(d) without the prior written consent of all Lenders (except any Defaulting Lender), no modification shall (i) alter Section  5.5.2 or 14.1.1 ; (ii) amend the definition of Applicable Margin (if the effect thereof is to lower the interest rate), Borrowing Base, Accounts Formula Amount, Credit Card

 

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Formula Amount, Inventory Formula Amount or Seasonal Formula Amount (or any defined term used in such definitions, if the effect of such amendment is to increase borrowing availability), Pro Rata or Required Lenders; (iii) release all or substantially all Collateral; (iv) except in connection with a merger, disposition or similar transaction expressly permitted hereby, release any Obligor from liability for any Obligations; or (v) waive any condition set forth in Section  6.1 ;

(e) without the prior written consent of each the Lead Arranger, modify or amend the fee letter described in clause (b)  of the definition of “Fee Letter”; and

(f) without the prior written consent of a Secured Bank Product Provider, no modification shall affect its relative payment priority under Section  5.5.2 .

(g) Agent and Borrower Agent may amend any Loan Document (i) to correct administrative errors or omissions, or to effect administrative changes that are not adverse to any Lender, (ii) to correct, amend, cure any ambiguity, inconsistency, defect or correct any typographical error or other manifest error in this Agreement or any other Loan Document, (iii) to comply with local law or advice of local counsel in respect of a Security Document or (iv) to cause a Security Document to be consistent with this Agreement and other Loan Documents. Notwithstanding anything to the contrary contained herein, such amendment shall become effective without any further consent of any other party to such Loan Document if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof.

14.1.2 Limitations . The agreement of Borrowers shall not be required for any modification of a Loan Document that deals solely with the rights and duties of Lenders, Agent and/or Issuing Bank as among themselves. Only the consent of the parties to any agreement relating to fees or a Bank Product shall be required for modification of such agreement, and no Bank Product provider (in such capacity) shall have any right to consent to modification of any Loan Document other than its Bank Product agreement. Any waiver or consent granted by Agent or Lenders hereunder shall be effective only if in writing and only for the matter specified.

14.1.3 Payment for Consents . No Borrower will, directly or indirectly, pay any remuneration or other thing of value, whether by way of additional interest, fee or otherwise, to any Lender (in its capacity as a Lender hereunder) as consideration for agreement by such Lender with any modification of any Loan Documents, unless such remuneration or value is concurrently paid, on the same terms, on a Pro Rata basis to all Lenders providing their consent.

14.2 Indemnity . EACH BORROWER SHALL INDEMNIFY AND HOLD HARMLESS THE INDEMNITEES AGAINST ANY CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE, INCLUDING CLAIMS ASSERTED BY ANY OBLIGOR OR OTHER PERSON OR ARISING FROM THE NEGLIGENCE OF AN INDEMNITEE. In no event shall any party to a Loan Document have any obligation thereunder to indemnify or hold harmless an Indemnitee with respect to a Claim that is determined in a final, non-appealable judgment by a court of competent jurisdiction to result from the gross negligence or willful misconduct of such Indemnitee.

14.3 Notices and Communications .

14.3.1 Notice Address . Subject to Section  4.1.4 , all notices and other communications by or to a party hereto shall be in writing and shall be given, if to any Borrower, to it at School Specialty, Inc., W6316 Design Drive; Greenville, WI 54942; Attn: Joseph M. Yorio Chief Financial Officer ; Telecopy (920) 882-5863 ; Email: joseph.yorio@schoolspecialty.com , and, if to any other Person, at its address shown on the signature pages hereof (or, in the case of a Person who becomes a Lender after the Closing Date, at the address shown on its Assignment and Acceptance), or at such other address as a party may hereafter specify by notice in accordance with this Section  14.3 . Each communication shall be

 

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effective only (a) if given by facsimile transmission, when transmitted to the applicable facsimile number, if confirmation of receipt is received; (b) if given by mail, three Business Days after deposit in the U.S. mail, with first-class postage pre-paid, addressed to the applicable address; or (c) if given by personal delivery, when duly delivered to the notice address with receipt acknowledged. Notwithstanding the foregoing, no notice to Agent pursuant to Section  2.1.4, 2.2, 3.1.2 or 4.1.1 shall be effective until actually received by the individual to whose attention at Agent such notice is required to be sent. Any written communication that is not sent in conformity with the foregoing provisions shall nevertheless be effective on the date actually received by the noticed party. Any notice received by Borrower Agent shall be deemed received by all Borrowers.

14.3.2 Electronic Communications; Voice Mail . Electronic mail and internet websites may be used only for routine communications, such as delivery of Borrower Materials, administrative matters, distribution of Loan Documents, and matters permitted under Section  4.1.4 . Agent and Lenders make no assurances as to the privacy and security of electronic communications. Electronic and voice mail may not be used as effective notice under the Loan Documents.

14.3.3 Platform . Borrower Materials shall be delivered pursuant to procedures approved by Agent, including electronic delivery (if possible) upon request by Agent to an electronic system maintained by Agent (“ Platform ”). Borrowers shall notify Agent of each posting of Borrower Materials on the Platform and the materials shall be deemed received by Agent only upon its receipt of such notice. Borrower Materials and other information relating to this credit facility may be made available to Secured Parties on the Platform, and Obligors and Secured Parties acknowledge that “public” information is not segregated from material non-public information on the Platform. The Platform is provided “as is” and “as available.” Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, and expressly disclaims liability for any errors or omissions in the Borrower Materials or any issues involving the Platform. 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 AGENT WITH RESPECT TO BORROWER MATERIALS OR THE PLATFORM. Secured Parties acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. No Agent Indemnitee shall have any liability to Borrowers, Secured Parties or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) relating to use by any Person of the Platform or delivery of Borrower Materials and other information through the Platform or over the internet.

14.3.4 Non-Conforming Communications . Agent and Lenders may rely upon any communications purportedly given by or on behalf of any Borrower even if they were not made in a manner specified herein, were incomplete or were not confirmed, or if the terms thereof, as understood by the recipient, varied from a later confirmation. Each Borrower shall indemnify and hold harmless each Indemnitee from any liabilities, losses, costs and expenses arising from any electronic or telephonic communication purportedly given by or on behalf of a Borrower.

14.4 Performance of Borrowers’ Obligations . Agent may, in its discretion at any time and from time to time, at Borrowers’ expense, pay any amount or do any act required of a Borrower under any Loan Documents or otherwise lawfully requested by Agent to (a) enforce any Loan Documents or collect any Obligations; (b) protect, insure, maintain or realize upon any Collateral; or (c) defend or maintain the validity or priority of Agent’s Liens in any Collateral, including any payment of a judgment, insurance premium, warehouse charge, finishing or processing charge, or landlord claim, or any discharge of a Lien. All payments, costs and expenses (including Extraordinary Expenses) of Agent under this Section  14.4 shall be reimbursed to Agent by Borrowers, on demand , with interest from the date incurred until paid in full at the Default Rate applicable to Base Rate Loans. Any payment made or action taken by Agent under this Section  14.4 shall be without prejudice to any right to assert an Event of Default or to exercise any other rights or remedies under the Loan Documents.

 

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14.5 Credit Inquiries . Agent and Lenders may (but shall have no obligation) to respond to usual and customary credit inquiries from third parties concerning any Obligor or Subsidiary.

14.6 Severability . Wherever possible, each provision of the Loan Documents shall be interpreted in such manner as to be valid under Applicable Law. If any provision is found to be invalid under Applicable Law, it shall be ineffective only to the extent of such invalidity and the remaining provisions of the Loan Documents shall remain in full force and effect.

14.7 Cumulative Effect; Conflict of Terms . The provisions of the Loan Documents are cumulative. The parties acknowledge that the Loan Documents may use several limitations or measurements to regulate similar matters, and they agree that these are cumulative and that each must be performed as provided. Except as otherwise provided in another Loan Document (by specific reference to the applicable provision of this Agreement), if any provision contained herein is in direct conflict with any provision in another Loan Document, the provision herein shall govern and control.

14.8 Counterparts; Execution . Any Loan Document may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement shall become effective when Agent has received counterparts bearing the signatures of all parties hereto. Delivery of a signature page of any Loan Document by telecopy or other electronic means shall be effective as delivery of a manually executed counterpart of such agreement. Any electronic signature, contract formation on an electronic platform and electronic record-keeping shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state law based on the Uniform Electronic Transactions Act.

14.9 Entire Agreement . Time is of the essence with respect to all Loan Documents and Obligations. The Loan Documents constitute the entire agreement, and supersede all prior understandings and agreements, among the parties relating to the subject matter thereof.

14.10 Relationship with Lenders . The obligations of each Lender hereunder are several, and no Lender shall be responsible for the obligations or Commitments of any other Lender. Amounts payable hereunder to each Lender shall be a separate and independent debt. It shall not be necessary for Agent or any other Lender to be joined as an additional party in any proceeding for such purposes. Nothing in this Agreement and no action of Agent, Lenders or any other Secured Party pursuant to the Loan Documents or otherwise shall be deemed to constitute Agent and any Secured Party to be a partnership, joint venture or similar arrangement, nor to constitute control of any Obligor.

14.11 No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated by any Loan Document, Borrowers acknowledge and agree that (a)(i) this credit facility and any arranging or other services by Agent, any Lender, any of their Affiliates or any arranger are arm’s-length commercial transactions between Borrowers and their Affiliates, on one hand, and Agent, any Lender, any of their Affiliates or any arranger, on the other hand; (ii) Borrowers have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate; and (iii) Borrowers are capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated by the Loan Documents; (b) each of Agent, Lenders, their Affiliates and any arranger 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 Borrowers, their Affiliates or any other Person, and has no obligation with respect to the transactions

 

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contemplated by the Loan Documents except as expressly set forth therein; and (c) Agent, Lenders, their Affiliates and any arranger may be engaged in a broad range of transactions that involve interests that differ from those of Borrowers and their Affiliates, and have no obligation to disclose any of such interests to Borrowers or their Affiliates. To the fullest extent permitted by Applicable Law, each Borrower hereby waives and releases any claims that it may have against Agent, Lenders, their Affiliates and any arranger with respect to any breach of agency or fiduciary duty in connection with any transaction contemplated by a Loan Document.

14.12 Confidentiality . Each of Agent, Lenders and Issuing Bank shall maintain the confidentiality of all Information (as defined below), except that Information may be disclosed (a) to its Affiliates, and to its and their partners, directors, officers, employees, agents, advisors and representatives (provided they are informed of the confidential nature of the Information and instructed to keep it confidential); (b) to the extent requested by any governmental, regulatory or self-regulatory authority purporting to have jurisdiction over it or its Affiliates; (c) to the extent required by Applicable Law or by any subpoena or other legal process; (d) to any other party hereto; (e) in connection with any action or proceeding relating to any Loan Documents or Obligations; (f) subject to an agreement containing provisions substantially the same as this Section  14.12 , to any Transferee or any actual or prospective party (or its advisors) to any Bank Product or to any swap, derivative or other transaction under which payments are to be made by reference to an Obligor or Obligor’s obligations; (g) with the consent of Borrower Agent; or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section  14.12 or (ii) is available to Agent, any Lender, Issuing Bank or any of their Affiliates on a nonconfidential basis from a source other than Borrowers , or (i) on a confidential basis to a provider of a Platform . Notwithstanding the foregoing, Agent and Lenders may publish or disseminate general information concerning this credit facility for league table, tombstone and advertising purposes, and may use Borrowers’ logos, trademarks or product photographs in advertising materials. As used herein, “ Information ” means information received from an Obligor or Subsidiary relating to it or its business that is identified as confidential when delivered. A Person required to maintain the confidentiality of Information pursuant to this Section  14.12 shall be deemed to have complied if it exercises a degree of care similar to that accorded its own confidential information. Each of Agent, Lenders and Issuing Bank acknowledges that (i) Information may include material non-public information; (ii) it has developed compliance procedures regarding the use of such information; and (iii) it will handle the material non-public information in accordance with Applicable Law.

14.13 GOVERNING LAW . UNLESS EXPRESSLY PROVIDED IN ANY LOAN DOCUMENT, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ALL CLAIMS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES EXCEPT FEDERAL LAWS RELATING TO NATIONAL BANKS.

14.14 Consent to Forum ; Bail-In of EEA Financial Institutions .

14.14.1 Forum . EACH BORROWER HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING IN OR WITH JURISDICTION OVER NEW YORK, IN ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, AND AGREES THAT ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL CLAIMS, OBJECTIONS AND DEFENSES THAT IT MAY HAVE REGARDING ANY SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE OR INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 14.3.1 . A final judgment in any proceeding of any such court shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or any other manner provided by Applicable Law.

 

105


14.14.2 Other Jurisdictions . Nothing herein shall limit the right of Agent or any Lender to bring proceedings against any Obligor in any other court, nor limit the right of any party to serve process in any other manner permitted by Applicable Law. Nothing in this Agreement shall be deemed to preclude enforcement by Agent of any judgment or order obtained in any forum or jurisdiction.

14.14.3 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 the parties, each party hereto (including each Secured Party) acknowledges that any liability arising under a Loan Document of any Secured Party that is an EEA Financial Institution, 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 under any Loan Documents which may be payable to it by any Secured Party that is an EEA Financial Institution; and (b) the effects of any Bail-in Action on any such liability, including (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 any 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 .

14.15 Waivers by Borrowers . To the fullest extent permitted by Applicable Law, each Borrower waives (a)  the right to trial by jury (which Agent and each Lender hereby also waives) in any proceeding or dispute of any kind relating in any way to any Loan Documents, Obligations or Collateral; (b)  presentment, demand, protest, notice of presentment, default, non-payment, maturity, release, compromise, settlement, extension or renewal of any commercial paper, accounts, documents, instruments, chattel paper and guaranties at any time held by Agent on which a Borrower may in any way be liable, and hereby ratifies anything Agent may do in this regard; (c)  notice prior to taking possession or control of any Collateral; (d)  any bond or security that might be required by a court prior to allowing Agent to exercise any rights or remedies; (e)  the benefit of all valuation, appraisement and exemption laws; (f)  any claim against Agent, Issuing Bank or any Lender, on any theory of liability, for special, indirect, consequential, exemplary or punitive damages (as opposed to direct or actual damages) in any way relating to any Enforcement Action, Obligations, Loan Documents or transactions relating thereto; and (g)  notice of acceptance hereof. Each Borrower acknowledges that the foregoing waivers are a material inducement to Agent, Issuing Bank and Lenders entering into this Agreement and that they are relying upon the foregoing in their dealings with Borrowers. Each Borrower has reviewed the foregoing waivers with its legal counsel and has knowingly and voluntarily waived its jury trial and other rights following consultation with legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.

14.16 Patriot Act Notice . Agent and Lenders hereby notify Borrowers that pursuant to the Patriot Act, Agent and Lenders are required to obtain, verify and record information that identifies each Borrower, including its legal name, address, tax ID number and other information that will allow Agent and Lenders to identify it in accordance with the Patriot Act. Agent and Lenders will also require information regarding each personal guarantor, if any, and may require information regarding Borrowers’ management and owners, such as legal name, address, social security number and date of birth. Borrowers shall, promptly upon request, provide all documentation and other information as Agent, Issuing Bank or any Lender may request from time to time in order to comply with any obligations under any “know your customer,” anti-money laundering or other requirements of Applicable Law.

 

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14.17 NO ORAL AGREEMENT . THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.

14.18 Intercreditor Agreement Governs . As between Agent and the Secured Parties on the one hand and the agent and lenders under the Term Loan Facility on the other hand, in the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement with respect to the Collateral, the provisions of the Intercreditor Agreement shall govern.

[Remainder of page intentionally left blank; signatures begin on following page . ]

 

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Exhibit 10.4

The liens and security interests securing the obligations as evidenced hereby are subject to the provisions of the Intercreditor Agreement dated as of April 7, 2017 (as amended or modified from time to time), by and among Bank of America, N.A., as ABL Agent, and TCW Asset Management Company LLC, as Term Agent. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this agreement, the terms of the Intercreditor Agreement shall govern and control.

AMENDED AND RESTATED

GUARANTEE AND COLLATERAL AGREEMENT

dated as of

April 7, 2017

(amending and restating the Guarantee and Collateral Agreement, dated as of June

11, 2013)

among

SCHOOL SPECIALTY, INC.

THE GUARANTORS PARTY HERETO

and

BANK OF AMERICA, N.A.

as Agent

 


TABLE OF CONTENTS

 

  P AGE

SECTION 1 . Definitions

 

1

SECTION 2 . Guarantees by Guarantors

 

9

SECTION 3 . Grant of Transaction Liens

 

12

SECTION 4 . General Representations and Warranties

 

15

SECTION 5 . Further Assurances; General Covenants

 

17

SECTION 6 . Intellectual Property

 

19

SECTION 7 . Investment Property

 

22

SECTION 8 . Deposit Accounts

 

24

SECTION 9 . Commercial Tort Claims

 

25

SECTION 10 . Transfer of Record Ownership

 

25

SECTION 11 . Right to Vote Securities; Right to Proceeds of Insurance

 

26

SECTION 12 . Certain Cash Distributions

 

27

SECTION 13 . Remedies upon Event of Default

 

27

SECTION 14 . Application of Proceeds

 

29

SECTION 15 . Fees and Expenses; Indemnification

 

29

SECTION 16 . Authority to Administer Collateral

 

30

SECTION 17 . Limitation on Duty in Respect of Collateral

 

32

SECTION 18 . General Provisions Concerning the Agent

 

32

SECTION 19 . Termination of Transaction Liens; Release of Collateral

 

33

SECTION 20 . Additional Guarantors and Grantors

 

34

SECTION 21 . Notices

 

34

SECTION 22 . No Implied Waivers; Remedies Not Exclusive

 

34

SECTION 23 . Successors and Assigns

 

34

SECTION 24 . Amendments and Waivers

 

35

SECTION 25 . Choice of Law

 

35

SECTION 26 . Waiver of Jury Trial

 

35

SECTION 27 . Severability

 

35

SECTION 28 . Intercreditor Agreement

 

35


SCHEDULES:

 

  Schedule 1   

Equity Interests in Subsidiaries and Affiliates Owned by Original Grantors

 

  Schedule 2   

Other Investment Property Owned by Original Grantors

 

  Schedule 3    Material Commercial Tort Claims

EXHIBITS:

 

  Exhibit A    Security Agreement Supplement
  Exhibit B    Copyright Security Agreement
  Exhibit C    Patent Security Agreement
  Exhibit D    Trademark Security Agreement
  Exhibit E    Perfection Certificate
  Exhibit F    Issuer Control Agreement

 

 

ii


AMENDED AND RESTATED

GUARANTEE AND COLLATERAL AGREEMENT

This AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT, dated as of April 7, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “ Agreement ”),amends and restates the Existing Guarantee and Collateral Agreement (as defined below) and is entered into by and among SCHOOL SPECIALTY, INC., as a Borrower, the other BORROWERS and GUARANTORS party hereto and BANK OF AMERICA, N.A., as Agent.

WHEREAS, the Borrowers are, as of the date hereof, entering into that certain Third Amendment to Loan Agreement (the “Loan Amendment”) amending the Existing Credit Agreement (as defined below) (the Existing Credit Agreement, as amended by the Loan Amendment, the “Credit Agreement”);

WHEREAS, Borrowers, Guarantors and Agent are party to that certain Guarantee and Collateral Agreement, dated as of June 11, 2013 (the “Existing Guarantee and Collateral Agreement”), under which each Guarantor (i) granted Liens to the Agent and (ii) guaranteed each Borrower’s Obligations under the Existing Credit Agreement;

WHEREAS, it is a condition to the effectiveness of the Loan Amendment that Borrowers and Guarantors enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby amend and restate the Existing Guarantee and Collateral Agreement, and agree, as follows:

SECTION 1 . Definitions .

(a) Terms Defined in Credit Agreement . Terms defined in the Credit Agreement and not otherwise defined in subsection (b) or (c) of this Section have, as used herein, the respective meanings provided for therein. The rules of construction specified in Section 1.4 of the Credit Agreement also apply to this Agreement.

(b) Terms Defined in UCC . As used herein, each of the following terms has the meaning specified in the UCC:


Term

  

UCC

Account    9-102
Authenticate    9-102
Certificated Security    8-102
Chattel Paper    9-102
Commercial Tort Claim    9-102
Commodity Account    9-102
Commodity Customer    9-102
Deposit Account    9-102
Document    9-102
Entitlement Holder    8-102
Equipment    9-102
Financial Asset    8-102 & 103
General Intangibles    9-102
Instrument    9-102
Inventory    9-102
Investment Property    9-102
Letter-of-Credit Right    9-102
Money    1-201
Record    9-102
Securities Account    8-501
Securities Intermediary    8-102
Security    8-102 & 103
Security Entitlement    8-102
Supporting Obligations    9-102
Uncertificated Security    8-102

(c) Additional Definitions . The following additional terms, as used herein, have the following meanings:

Agent Professionals ” means attorneys, accountants, appraisers, auditors, business valuation experts, environmental engineers or consultants, turnaround consultants, and other professionals and experts retained by Agent.

Agreement ” has the meaning specified in the preamble hereto.

Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.

Cash Distributions ” means dividends, interest and other distributions and payments (including proceeds of liquidation, sale or other disposition) made or received in cash upon or with respect to any Collateral.

 

2


Collateral ” means all property, whether now owned or hereafter acquired, on which a Lien is granted or purports to be granted to the Agent pursuant to the Security Documents. When used with respect to a specific Grantor, the term “Collateral” means all its property on which such a Lien is granted or purports to be granted.

Collateral Accounts ” means the Controlled Deposit Accounts and the Controlled Securities Accounts.

Contingent Obligation ” means, at any time, any Obligation (or portion thereof) that is contingent in nature at such time, including any Obligation that is:

(i) an obligation under an agreement relating to Secured Bank Product Obligations to make payments that cannot be quantified at such time;

(ii) any other obligation (including any guarantee) that is contingent in nature at such time; or

(iii) an obligation to provide collateral to secure any of the foregoing types of obligations.

Control ” has the meaning specified in UCC Section 8-106, 9-104, 9-105, 9-106 or 9-107, as may be applicable to the relevant Collateral.

Controlled Deposit Account ” means a Deposit Account that is subject to a Deposit Account Control Agreement.

Controlled Securities Account ” means a Securities Account that (i) is maintained in the name of a Grantor at an office of a Securities Intermediary located in the United States and (ii) together with all Financial Assets credited thereto and all related Security Entitlements, is subject to a Securities Account Control Agreement among such Grantor, the Agent and such Securities Intermediary.

Copyright License ” means any agreement now or hereafter in existence granting to any Grantor, or pursuant to which any Grantor grants to any other Person, any right to use, copy, reproduce, distribute, prepare derivative works, display or publish any records or other materials on which a Copyright is in existence or may come into existence (excluding any Exclusive Copyright License).

 

3


Copyrights ” means all the following: (i) all copyrights under the laws of the United States or any other country (whether or not the underlying works of authorship have been published), all registrations and recordings thereof, all copyrightable works of authorship (whether or not published), and all applications for copyrights under the laws of the United States or any other country, including registrations, recordings and applications in the United States Copyright Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, including those described in Schedule 1 to any Copyright Security Agreement, (ii) all renewals of any of the foregoing, (iii) all claims for, and rights to sue for, past or future infringements of any of the foregoing, and (iv) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past or future infringements thereof.

Copyright Security Agreement ” means a Copyright Security Agreement, substantially in the form of Exhibit B (with any changes that the Agent and the Borrower shall have approved), executed and delivered by a Grantor in favor of the Agent for the benefit of the Secured Parties.

Existing Credit Agreement ” means the Loan Agreement dated as of June 11, 2013 (as amended, restated, supplemented, or otherwise modified from time to time prior to the Amendment No. 3 Effective Date) among School Specialty, Inc., the other Borrowers and Guarantors party thereto, the Lenders party thereto and Bank of America, N.A., as Agent.

Credit Parties ” means the Agent or any other Lender.

Depositary Bank ” means a bank at which a Controlled Deposit Account is maintained.

Domestic Subsidiary ” means any Subsidiary of any Borrower that is not a Foreign Subsidiary.

Equity Interest ” means, with respect to any Person, (a) the Capital Stock of such Person and (b) any Security Entitlement in respect of any Capital Stock of such Person.

Excluded Assets ” has the meaning specified in Section 3.

Excluded Equity Interests ” means (i) any Equity Interests of any Foreign Subsidiary other than a direct Foreign Subsidiary of the Company or a Domestic Subsidiary, (ii) any voting Equity Interests of a direct Foreign Subsidiary of the Company or a Domestic Subsidiary in excess of 65% of the Equity Interests of such Foreign Subsidiary and (iii) any Equity Interests of any Person that is not directly owned by the applicable Grantor.

Exclusive Copyright License ” means any material agreement now or hereafter in existence granting to any Grantor an exclusive right to use, copy, reproduce, distribute, prepare derivative works, display or publish any materials on which a United States Copyright is in existence or may come into existence.

 

4


Grantors ” means the Borrowers and the Guarantors.

Guarantors ” means the Borrowers and each Subsidiary listed on the signature pages hereof under the caption “Guarantors” and each Subsidiary that shall, at any time after the date hereof, become a “Guarantor” pursuant to Section 20.

Intellectual Property ” means all intellectual property and similar proprietary property of any Grantor of every kind and nature now owned or hereafter acquired by any Grantor, including inventions, designs, Patents, Copyrights, Licenses, Trademarks, service marks, trade names, trade secrets, confidential or proprietary technical and business information, customer lists, know-how, show-how or other data or information, software and databases and all embodiments or fixations thereof and related documentation, registrations, applications and franchises, and all additions, improvements and accessions to, licenses or other rights to use, and books and records describing or used in connection with, any of the foregoing.

Intellectual Property Filing ” means (i) with respect to any Patent or Trademark, the filing of the applicable Patent Security Agreement or Trademark Security Agreement with the United States Patent and Trademark Office, together with an appropriately completed recordation form, and (ii) with respect to any Copyright or Exclusive Copyright License, the filing of the applicable Copyright Security Agreement with the United States Copyright Office, together with an appropriately completed recordation form.

Intellectual Property Security Agreement ” means a Copyright Security Agreement, a Patent Security Agreement or a Trademark Security Agreement.

Issuer Control Agreement ” means an Issuer Control Agreement substantially in the form of Exhibit F (with any changes that the Agent and the Borrower Agent shall have approved).

License ” means any Patent License, Trademark License, Copyright License, Exclusive Copyright License or other license or sublicense agreement relating to Intellectual Property to which any Grantor is a party.

Material Commercial Tort Claim ” means a Commercial Tort Claim involving a claim for more than $500,000.

Non-Contingent Obligation ” means at any time any Obligation (or portion thereof) that is not a Contingent Obligation at such time.

 

5


Obligor ” means the obligor with respect to any Obligation.

Original Grantor ” means any Grantor that grants a Lien on any of its assets hereunder on the Closing Date.

own ” refers to the possession of sufficient rights in property to grant a security interest therein as contemplated by UCC Section 9-203, and “ acquire ” refers to the acquisition of any such rights.

Patent License ” means any agreement now or hereafter in existence granting to any Grantor, or pursuant to which any Grantor grants to any other Person, any right with respect to any Patent or any invention now or hereafter in existence, whether patentable or not, whether a patent or application for patent is in existence on such invention or not, and whether a patent or application for patent on such invention may come into existence or not.

Patent Security Agreement ” means a Patent Security Agreement, substantially in the form of Exhibit C (with any changes that the Agent and the Borrower shall have approved), executed and delivered by a Grantor in favor of the Agent for the benefit of the Secured Parties.

Patents ” means (i) all letters patent and design letters patent of the United States or any other country and all applications for letters patent or design letters patent of the United States or any other country, including applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, including those described in Schedule 1 to any Patent Security Agreement, (ii) all reissues, divisions, continuations, continuations in part, revisions and extensions of any of the foregoing, (iii) all claims for, and rights to sue for, past or future infringements of any of the foregoing and (iv) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past or future infringements thereof.

Perfection Certificate ” means, with respect to any Grantor, a certificate substantially in the form of Exhibit E (with any changes that the Agent and the Borrower Agent shall have approved), completed and supplemented with the schedules contemplated thereby to the satisfaction of the Agent, and signed by an officer of such Grantor.

Permitted Collateral Liens ” means with respect to (a) the Pledged Equity Interests, Liens imposed by law and Liens granted to the Term Loan Agent to secure the Term Loan Agreement that are subject to the Intercreditor Agreement; (b) ABL Priority Collateral, (i) Permitted Liens that arise by

 

6


operation of law and are junior to Agent’s Lien and (ii) other Permitted Liens that are junior to Agent’s Lien pursuant to the Intercreditor Agreement or another intercreditor agreement or subordination agreement satisfactory to Agent; and (c) all other Collateral, Permitted Liens.

Pledged ”, when used in conjunction with any type of asset, means at any time an asset of such type that is included (or that creates rights that are included) in the Collateral at such time. For example, “Pledged Equity Interest” means an Equity Interest that is included in the Collateral at such time.

Proceeds ” means all “proceeds” (as defined in Section 9-102 of the UCC) and including, in any event, all proceeds of, and all other profits, products, rents or receipts, in whatever form, arising from the collection, sale, lease, exchange, assignment, licensing or other disposition of, or other realization upon, any Collateral, including all claims of the relevant Grantor against third parties for loss of, damage to or destruction of, or for proceeds payable under, or unearned premiums with respect to, policies of insurance in respect of, any Collateral, and any condemnation or requisition payments with respect to any Collateral.

Recordable Intellectual Property ” means (i) any material Patent issued or applied for issuance with the United States Patent and Trademark Office, (ii) any material Trademark registered or applied for registration with the United States Patent and Trademark Office, (iii) any material Copyright registered or applied for registration with the United States Copyright Office, and (iv) any Exclusive Copyright License.

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

Release Conditions ” means the following conditions for releasing all the Secured Guarantees and terminating all the Transaction Liens:

(i) Full Payment of all Non-Contingent Obligations;

(ii) no Contingent Obligation (other than contingent indemnification and expense reimbursement obligations which are not due and payable and as to which no claim shall have been asserted) shall remain outstanding; and

(iii) receipt by Agent of Cash Collateral or a written agreement, in each case reasonably satisfactory to it, protecting Agent and Lenders from the dishonor or return of any Payment Items previously applied to the Obligations.

 

7


Secured Agreement ”, when used with respect to any Obligation secured hereby, refers collectively to each instrument, agreement or other document that sets forth obligations of the Borrowers, obligations of any Subsidiary and/or rights of the holder with respect to such Obligation.

Secured Guarantee ” means, with respect to each Guarantor, its guarantee of the Obligations under Section 2 hereof or Section 1 of a Security Agreement Supplement.

Secured Parties ” means the holders from time to time of the Obligations.

Security Agreement Supplement ” means a Security Agreement Supplement, substantially in the form of Exhibit A, signed and delivered to the Agent for the purpose of adding a Subsidiary as a party hereto pursuant to Section 20 and/or adding additional property to the Collateral.

Security Documents ” means this Agreement, the Security Agreement Supplements, the Deposit Account Control Agreements, the Issuer Control Agreements, the Securities Account Control Agreements, the Intellectual Property Security Agreements and all other supplemental or additional security agreements, control agreements or similar instruments now or hereafter securing (or given with the intent to secure) any Obligations.

Trademark License ” means any agreement now or hereafter in existence granting to any Grantor, or pursuant to which any Grantor grants to any other Person, any right to use any Trademark.

Trademark Security Agreement ” means a Trademark Security Agreement, substantially in the form of Exhibit D (with any changes that the Agent and the Borrower shall have approved), executed and delivered by a Grantor in favor of the Agent for the benefit of the Secured Parties.

Trademarks ” means: (i) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, brand names, trade dress, prints and labels on which any of the foregoing have appeared or appear, package and other designs, and all other source or business identifiers, and all general intangibles of like nature, and the rights in any of the foregoing which arise under applicable law, (ii) the goodwill of the business symbolized thereby or associated with each of them, (iii) all registrations and applications in connection therewith, including registrations and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, including those described in Schedule 1 to any

 

8


Trademark Security Agreement, (iv) all renewals of any of the foregoing, (v) all claims for, and rights to sue for, past or future infringements of any of the foregoing and (vi) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including damages and payments for past or future infringements thereof.

Transaction Liens ” means the Liens granted by the Grantors under the Security Documents.

UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any Transaction Lien on any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

SECTION 2 . Guarantees by Guarantors .

(a) Secured Guarantees. Each Guarantor unconditionally guarantees the full and punctual payment of each Obligation (other than the Obligations of such Guarantor) when due (whether at stated maturity, upon acceleration or otherwise), which guarantees shall constitute a continuing guarantee of payment and not of collection. If any Borrower or any other Obligor fails to pay any Obligation punctually when due, each other Guarantor agrees that it will forthwith on demand pay the amount not so paid at the place and in the manner specified in the relevant Secured Agreement.

(b) Secured Guarantees Unconditional . The obligations of each Guarantor under its Secured Guarantee shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:

(i) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of any Borrower, any other Guarantor or Obligor or any other Person under any Secured Agreement, by operation of law or otherwise (including by Agent or any Lender);

(ii) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any Obligations or any Secured Agreement, or any other document, instrument or agreement to which any Obligor is or may become a party or be bound;

 

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(iii) any release, impairment, non-perfection or invalidity of any direct or indirect security for any obligation of any Borrower, any other Guarantor or Obligor or any other Person under any Secured Agreement;

(iv) any change in the corporate existence, structure or ownership of any Borrower, any other Guarantor or Obligor or any other Person or any of their respective subsidiaries, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Borrower, any other Guarantor or Obligor or any other Person or any of their assets or any resulting release or discharge of any obligation of any Borrower, any other Guarantor or Obligor or any other Person under any Secured Agreement;

(v) the existence of any claim, set-off or other right that such Guarantor may have at any time against any Borrower, any other Guarantor or Obligor, any Secured Party or any other Person, whether in connection with the Loan Documents or any unrelated transactions, provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;

(vi) any invalidity or unenforceability relating to or against any Borrower, any other Guarantor or Obligor or any other Person for any reason of any Secured Agreement, or any provision of Applicable Law or applicable regulation purporting to prohibit the payment of any Obligation by any Borrower, any other Guarantor or Obligor or any other Person; or

(vii) any other act or omission to act or delay of any kind by any Borrower, any other Guarantor or Obligor, any other party to any Secured Agreement, any Secured Party or any other Person, or any other circumstance whatsoever that might, but for the provisions of this clause (vii), constitute a legal or equitable discharge of or defense of a surety or guarantor to any obligation of any Guarantor hereunder.

(c) Release of Secured Guarantees . (i) All Secured Guarantees will be released when all Release Conditions are satisfied. If at any time any payment of a Obligation is rescinded or must be otherwise restored or returned upon the insolvency or receivership of any Borrower, any other Obligor or otherwise, the Secured Guarantees shall be reinstated with respect thereto as though such payment had been due but not made at such time.

(ii) In addition, if any Borrower (other than the Company) or Subsidiary Guarantor shall (A) cease to be a Subsidiary of the Company or (B) become an Excluded Subsidiary, in each case as permitted under the Credit Agreement, the Agent, at the request of the Borrower Agent, shall release such Borrower or Subsidiary Guarantor from its Secured Guaranty and its other Obligations under the Loan Documents;

 

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(iii) Upon any termination of a Secured Guaranty, the Agent will, at the expense of the relevant Borrower or Subsidiary Guarantor, execute and deliver to the Borrower Agent such documents as it shall reasonably request to evidence the termination thereof.

(d) Waiver by Guarantors . Each Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against any Borrower, any other Guarantor or Obligor or any other Person. Each Guarantor expressly waives all rights that it may have now or in the future under any statute, at common law, in equity or otherwise, to compel Agent or Lenders to marshal assets or to proceed against any Obligor, other Person or security for the payment or performance of any Obligations before, or as a condition to, proceeding against such Guarantor. Each Guarantor waives all defenses available to a surety, guarantor or accommodation co-obligor other than Full Payment of all Obligations and waives, to the maximum extent permitted by law, any right to revoke any guaranty of any Obligations as long as it is a Guarantor.

(e) Subrogation . A Guarantor that makes a payment with respect to an Obligation hereunder shall be subrogated to the rights of the payee against the applicable Borrower or the applicable Obligor with respect to such payment; provided that no Guarantor shall enforce any payment by way of subrogation against the applicable Borrower or the applicable Obligor, or by reason of contribution against any other guarantor of such Obligation, until all the Release Conditions have been satisfied.

(f) Stay of Acceleration . If acceleration of the time for payment of any Obligation by the applicable Borrower or the applicable Obligor is stayed by reason of the insolvency or receivership of the applicable Borrower or the applicable Obligor or otherwise, all Obligations otherwise subject to acceleration under the terms of any Secured Agreement shall nonetheless be payable by the Guarantors hereunder forthwith on demand by the Agent.

(g) Right of Set-Off . In addition to any rights and remedies of the Secured Parties provided by law, each Secured Party shall have the right, upon any amount becoming due and payable by any Guarantor hereunder (whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or

 

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contingent, matured or unmatured at any time held or owing by such Secured Party or any branch or agency thereof to or for the credit or the account of such Guarantor. Each Secured Party agrees to promptly notify such Guarantor and the Agent after any such setoff and application made by such Secured Party; provided that the failure to give such notice shall not affect the validity of such setoff and application.

(h) Continuing Guarantee . Each Secured Guarantee is a continuing guarantee, shall be binding on the relevant Guarantor and its successors and assigns, and shall be enforceable by the Agent or the Secured Parties. If all or part of any Secured Party’s interest in any Obligation is assigned or otherwise transferred, the transferor’s rights under each Secured Guarantee, to the extent applicable to the obligation so transferred, shall automatically be transferred with such obligation.

(i) Limitation on Obligations of Guarantor. The obligations of each Guarantor under its Secured Guarantee shall be limited to an aggregate amount equal to the largest amount that would not render such Secured Guarantee subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of applicable law.

(j) Right of Contribution . Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment. Each Guarantor’s right of contribution shall be subject to the terms and conditions of Section 2(e) . The provisions of this Section 2(j) shall in no respect limit the obligations and liabilities of any Guarantor to the Agent and the Secured Parties, and each Guarantor shall remain liable to the Agent and the Secured Parties for the full amount guaranteed by such Guarantor hereunder.

SECTION 3 . Grant of Transaction Liens . (a) Each Borrower, in order to secure all Obligations, and each Guarantor party hereto, in order to secure all Obligations, including its Obligations under its Secured Guarantee, grants to the Agent for the benefit of the Secured Parties a continuing security interest in all the following property of such Borrower or such Guarantor, as the case may be, whether now owned or existing or hereafter acquired or arising and regardless of where located:

(i) all Accounts;

(ii) all Chattel Paper, including electronic chattel paper;

 

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(iii) all Money, Deposit Accounts, Commodity Accounts and Security Accounts;

(iv) all Documents;

(v) all Goods, including Inventory, Equipment and fixtures;

(vi) all General Intangibles (including (x) any Equity Interests in other Persons that do not constitute Investment Property and (y) any Intellectual Property);

(vii) all Instruments;

(viii) all Investment Property;

(ix) all Commercial Tort Claims, including those described in Schedule 3;

(x) all Letter-of-Credit Rights;

(xi) all Supporting Obligations;

(xii) all monies, whether or not in the possession or under the control of Agent, a Lender or a bailee or Affiliate of Agent or a Lender, including any Cash Collateral;

(xiii) all accessions to, substitutions for, and all replacements, products, and cash and non-cash proceeds of the foregoing, including proceeds of and unearned premiums with respect to insurance policies, and claims against any Person for loss, damage or destruction of any Collateral;

(xiv) all vehicles and title documents with respect to vehicles;

(xv) all other personal property whether or not subject to the Code;

(xvi) all books and records (including customer lists, credit files, computer programs, printouts and other computer materials and records) of such Grantor pertaining to any of its Collateral; and

(xvii) all Proceeds of the Collateral described in the foregoing clauses (i) through (xvi);

 

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provided that the following property is excluded from the foregoing security interests (it being understood that such grant will be applicable at such time as any such property or assets ceases to constitute Excluded Assets): (A) Excluded Equity Interests, (B) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than any Borrower or Grantor) after giving effect to the applicable anti-assignment provisions of the UCC, (C) any properties and assets with respect to which the Agent determines in its good faith judgment that the costs or other consequences of granting or perfecting a security interest therein are excessive in view of the benefits to be obtained by the Secured Parties, (D) any United States intent-to-use Trademark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use Trademark applications under applicable federal law, (E) any real property, (F) any letter of credit rights to the extent any Grantor is required by applicable law to apply the proceeds of a drawing of such letter of credit for a specified purpose, (G) any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code, and (H) any property to the extent that the grant of a security interest therein is prohibited by any applicable law or regulation, requires a consent not obtained of any Governmental Authority pursuant to any applicable law or regulation, or is prohibited by, or would constitute a breach or default under or would result in the termination, invalidation or abandonment of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property or, in the case of any Investment Property, any applicable shareholder or similar agreement (the foregoing, collectively, the “ Excluded Assets ”), provided that the foregoing limitation in clause (I) shall not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any asset or right to the extent that Sections 9-406 and 9-408 of the Uniform Commercial Code as in effect on the date hereof would permit (and excuse any default or violation resulting therefrom) the creation of a security interest in such asset or right notwithstanding such law or regulation or the provision of such contract, license, agreement, instrument or other document or shareholder or similar agreement prohibiting the creation of a security interest therein or shall render such provision unenforceable. Each Grantor shall upon request of the Agent use commercially reasonable efforts to obtain any such required consent that is reasonably obtainable, it being understood and agreed that no Grantor shall be required to obtain any such consent if such Grantor reasonably determines in its good faith judgment that the costs of obtaining such consent is excessive in view of the benefits to be obtained by the Secured Parties thereby.

 

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(b) With respect to each right to payment or performance included in the Collateral from time to time, the Transaction Lien granted therein includes a continuing security interest in (i) any Supporting Obligation that supports such payment or performance and (ii) any Lien that (x) secures such right to payment or performance or (y) secures any such Supporting Obligation.

(c) The Transaction Liens are granted as security only and shall not subject the Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.

SECTION 4 . General Representations and Warranties . Each Grantor represents and warrants that:

(a) Such Grantor (a) is duly organized or formed, as the case may be, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, (b) has the requisite power and authority to own and operate its Property, to lease the Property it operates as lessee and to conduct the business in which it is currently engaged as it is currently conducted, (c) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership, lease or operation of Property or the conduct of its business requires such qualification except to the extent that the failure to so qualify could not, in the aggregate, reasonably be expected to have a Material Adverse Effect and (d) is in compliance with all Applicable Law except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b) With respect to each Original Grantor, Schedule 1 lists all Equity Interests owned by such Grantor as of the Closing Date. Such Grantor holds all such Equity Interests directly ( i.e. , not through a Subsidiary, a Securities Intermediary or any other Person).

(c) With respect to each Original Grantor, Schedule 2 lists, as of the Closing Date, (i) all Securities owned by such Grantor (except for Excluded Equity Interests and Securities evidencing Equity Interests in Subsidiaries and Affiliates of such Grantor) and (ii) all Securities Accounts (other than any one or more Securities Accounts comprising Financial Assets of less than $250,000 in the aggregate) to which Financial Assets are credited in respect of which such Grantor owns Security Entitlements.

(d) As of the Closing Date, such Grantor owns no Commodity Account in respect of which such Grantor is the Commodity Customer.

 

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(e) All Pledged Equity Interests owned by such Grantor are owned by it free and clear of any Lien other than (i) Permitted Collateral Liens and (ii) any liens imposed by law. All shares of capital stock included in such Pledged Equity Interests (including shares of capital stock in respect of which such Grantor owns a Security Entitlement) have been duly authorized and validly issued and are fully paid and non-assessable. None of such Pledged Equity Interests is subject to any option to purchase or similar right of any Person.

(f) Such Grantor has good and marketable title to all its Collateral (subject to exceptions that are, in the aggregate, not material), free and clear of any Lien other than Permitted Collateral Liens.

(g) Such Grantor has not performed any acts that are reasonably likely to prevent the Agent from enforcing any of the provisions of the Security Documents or that would limit the Agent in any such enforcement. No financing statement, security agreement, mortgage or similar or equivalent document or instrument covering all or part of the Collateral owned by such Grantor is on file or of record in any jurisdiction in which such filing or recording would be effective to perfect or record a Lien on such Collateral, except financing statements, mortgages or other similar or equivalent documents with respect to Permitted Collateral Liens. After the Closing Date, no Collateral owned by such Grantor will be in the possession or under the Control of any other Person having a claim thereto or security interest therein, other than a Permitted Collateral Lien.

(h) The Transaction Liens on all Collateral owned by such Grantor (i) have been validly created, (ii) will attach to each item of such Collateral on the Closing Date (or, if such Grantor first obtains rights thereto on a later date, on such later date) and (iii) when so attached, will secure all the Obligations, including the Obligations under its Secured Guarantee, as the case may be.

(i) Such Grantor has delivered a Perfection Certificate to the Agent. With respect to each Original Grantor, information set forth therein is correct and complete, in all material respects, as of the Closing Date.

(j) When UCC financing statements describing the Collateral as “all assets” or “all personal property now existing or hereinafter acquired” or other words to that effect have been filed in the offices specified in such Perfection Certificate, the Transaction Liens will constitute perfected security interests in the Collateral owned by such Grantor to the extent that a security interest therein may be perfected by filing pursuant to the UCC, prior to all Liens and rights of others therein except Permitted Collateral Liens. When, in addition to the filing of such UCC financing statements, the applicable Intellectual Property Filings have been made with respect to such Grantor’s Recordable Intellectual Property (including any future filings required pursuant to Sections 5(a) and 6(a)), the Transaction

 

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Liens will constitute perfected security interests in all right, title and interest of such Grantor in its Recordable Intellectual Property to the extent that security interests therein may be perfected by such filings, prior to all Liens and rights of others therein except Permitted Collateral Liens. Except for (x) the filing of such UCC financing statements, (y) such Intellectual Property Filings, and (z) additional Intellectual Property Filings that may be necessary to perfect the Transaction Liens with respect to such Grantor’s Patents, Trademarks and Copyrights that do not constitute Recordable Intellectual Property, no registration, recordation or filing with any governmental body, agency or official is required in connection with the execution or delivery of the Security Documents or is necessary for the validity or enforceability thereof or for the perfection (other than in respect of deposit accounts) or due recordation of the Transaction Liens or for the enforcement of the Transaction Liens. Notwithstanding anything herein to the contrary, no Grantor shall take any action to perfect any security interest in any part of the Collateral under the laws of any jurisdiction outside of the United States of America.

(k) Such Grantor has taken, and will continue to take, all actions necessary under the UCC to perfect its interest in any Accounts or Chattel Paper purchased or otherwise acquired by it, as against its assignors and creditors of its assignors, except with respect to actions not required to be taken until a specified period after the Closing Date.

SECTION 5. Further Assurances; General Covenants . Each Grantor covenants as follows:

(a) Such Grantor will, from time to time, at the Borrowers’ expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action (including any Intellectual Property Filing but solely with respect to Recordable Intellectual Property)) that from time to time may be necessary or desirable, or that the Agent may reasonably request, in order to:

(i) create, preserve, perfect, confirm or validate the Transaction Liens on such Grantor’s Collateral;

(ii) in the case of (a) Pledged Deposit Accounts, Pledged Investment Property and lockboxes associated with any Pledged Deposit Account or Pledged Securities Accounts, in each case, (x) to which Cash Collateral is deposited or (y) which is required to be maintained as a Dominion Account pursuant to Section 8.2.4 of the Credit Agreement and (b) upon the occurrence and during the continuance of an Event of Default, Pledged Letter-of-Credit Rights, cause the Agent to have Control thereof (or, solely in the case of lockboxes, control thereof);

 

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(iii) enable the Agent and the other Secured Parties to obtain the full benefits of the Security Documents; or

(iv) enable the Agent to exercise and enforce any of its rights, powers and remedies with respect to any of such Grantor’s Collateral.

Such Grantor authorizes the Agent to execute and file such financing statements or continuation statements in such jurisdictions with such descriptions of collateral (including “all assets” or “all personal property now existing or hereinafter acquired” or other words to that effect) and other information set forth therein as the Agent may deem necessary or desirable for the purposes set forth in the preceding sentence. Each Grantor also ratifies its authorization for the Agent to file in any such jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the security interests granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Agent as secured party. The Borrowers will pay the costs of, or reasonably incidental to, any Intellectual Property Filings and any recording or filing of any financing or continuation statements or other documents recorded or filed pursuant hereto.

(b) Such Grantor shall furnish to the Agent 10 Business Days (or such shorter period as Agent may agree) prior written notice of any change (1) in its name, (2) in its jurisdiction of organization or formation, (3) in its identity or corporate structure or (4) in its federal taxpayer identification number. Such Grantor agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral under the Loan Documents.

(c) If any of its Collateral is in the possession or control of a warehouseman, bailee or agent at any time, such Grantor will, upon the request of the Agent: (i) notify such warehouseman, bailee or agent of the relevant Transaction Liens, (ii) instruct such warehouseman, bailee or agent to hold all such Collateral for the Agent’s account subject to the Agent’s instructions (which shall permit such Collateral to be removed by such Grantor in the ordinary course of business until the Agent notifies such warehouseman, bailee or agent that an Event of Default has occurred and is continuing), (iii) cause such warehouseman, bailee or agent to Authenticate a Record acknowledging that it holds possession of such Collateral for the Agent’s benefit and (iv) make such Authenticated Record available to the Agent.

 

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(d) Such Grantor will promptly upon request, provide to the Agent all information and evidence concerning such Grantor’s Collateral that the Agent may reasonably request from time to time to enable it to enforce the provisions of the Security Documents.

(f) Except as permitted under the Credit Agreement, each Grantor shall defend its title to Collateral and the Agent’s Liens therein against all Persons, claims and demands, except Permitted Collateral Liens.

SECTION 6 . Intellectual Property . Each Grantor represents, warrants and covenants as follows:

(a) On the Closing Date (in the case of an Original Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Grantor), such Grantor will sign and deliver to the Agent Intellectual Property Security Agreements with respect to all Recordable Intellectual Property then owned by it. On each date on which a Compliance Certificate is to be delivered pursuant to Section 10.1.2(d) of the Credit Agreement (or, if an Event of Default has occurred and is continuing, more frequently if requested by Agent), it will sign and deliver to the Agent an appropriate Intellectual Property Security Agreement covering any Recordable Intellectual Property owned by it on such date that is not covered by any previous Intellectual Property Security Agreement so signed and delivered by it. In each case, it will, on each date on which a Compliance Certificate is to be delivered pursuant to Section 10.1.2(d) of the Credit Agreement (or, if an Event of Default has occurred and is continuing, more frequently if requested by Agent), make all Intellectual Property Filings necessary to record the Transaction Liens on such Recordable Intellectual Property.

(b) Such Grantor will notify the Agent within 45 days after the last day of the fiscal quarter in which it learns that any application or registration relating to any Intellectual Property owned by it may become abandoned, or of any adverse, final and non-appealable determination (including any final, non-appealable adverse determination in the United States Copyright Office, the United States Patent and Trademark Office or any court) regarding such Grantor’s ownership of such Intellectual Property, its right to register or patent the same, or its right to keep and maintain the same, in each case of the foregoing, except to the extent that the loss of such Intellectual Property would not reasonably be expected to have a Material Adverse Effect. If any of such Grantor’s rights to any Intellectual Property are materially infringed or misappropriated by a third party and such infringement or misappropriation would be reasonably expected to have a Material Adverse Effect, such Grantor will notify the Agent within 45 calendar days after it learns thereof and will, unless such Grantor shall reasonably determine that such action would be of negligible value, economic or otherwise, promptly take such actions as such Grantor shall reasonably deem appropriate under the circumstances to protect such Intellectual Property.

 

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(c) Upon the occurrence and during the continuance of an Event of Default, each Grantor shall, upon the request of the Agent therefor, use its commercially reasonable efforts to obtain all requisite consents or approvals by the licensor of each Exclusive Copyright License and each material Copyright License, Patent License and Trademark License under which such Grantor is the licensee to effect the assignment of all such Grantor’s right, title and interest thereunder to the Agent, for the ratable benefit of the Secured Parties, or its designee.

(d) On the Closing Date, all Recordable Intellectual Property owned by such Grantor is valid, in full force and effect, subsisting, unexpired and enforceable, and no Recordable Intellectual Property has been abandoned. No breach or default of any License shall be caused by any of the following, and none of the following shall limit or impair the ownership, use, validity or enforceability of, or any rights of such Grantor in, any Recordable Intellectual Property: (i) the consummation of the transactions contemplated by any Loan Document or (ii) any holding, decision, judgment or order rendered by any Governmental Authority prior to the date hereof. There are no pending (or, to the knowledge of such Grantor, threatened) actions, investigations, suits, proceedings, audits, claims, demands, orders or disputes challenging the ownership, use, validity, enforceability of, or such Grantor’s rights in, any Recordable Intellectual Property of such Grantor. To each Grantor’s knowledge, no Person has been or is infringing, misappropriating, diluting, violating or otherwise impairing any Recordable Intellectual Property of such Grantor. Each Grantor, and to such Grantor’s knowledge each other party thereto, is not in material breach or default of any License.

(e) Unless such Grantor shall reasonably determine that such action would be of negligible value, economic or otherwise, such Grantor shall (and shall cause all its licensees to) (i) (1) continue to use each Trademark included in the Intellectual Property in order to maintain such Trademark in full force and effect with respect to each class of goods for which such Trademark is currently used, free from any claim of abandonment for non-use, (2) maintain at least the same standards of quality of products and services offered under such Trademark as are currently maintained, (3) use such Trademark with the appropriate notice of registration and all other notices and legends required by applicable law, (4) not adopt or use any other Trademark that is confusingly similar or a colorable imitation of such Trademark unless Agent shall obtain a perfected security interest in such other Trademark pursuant to this Agreement and (ii) not do any act or omit to do any act whereby (w) such Trademark (or any goodwill associated therewith) may become destroyed, invalidated, impaired or harmed in

 

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any way, (x) any Patent included in the Intellectual Property may become forfeited, misused, unenforceable, abandoned or dedicated to the public, (y) any portion of the Copyrights included in the Intellectual Property may become invalidated, otherwise impaired or fall into the public domain or (z) any trade secret that is Intellectual Property may become publicly available or otherwise unprotectable.

(f) Such Grantor shall notify Agent immediately if it knows, or has reason to know, that any application or registration relating to any Recordable Intellectual Property may become forfeited, misused, unenforceable, abandoned or dedicated to the public, or of any adverse determination or development regarding the validity or enforceability or such Grantor’s ownership of, interest in, right to use, register, own or maintain any Recordable Intellectual Property (including the institution of, or any such determination or development in, any proceeding relating to the foregoing in the United States Patent and Trademark Office or the United States Copyright Office, as applicable). Such Grantor shall take all actions that are necessary or reasonably requested by Agent to maintain and pursue each application (and to obtain the relevant registration or recordation) and to maintain each registration and recordation included in the Intellectual Property, unless such Grantor shall reasonably determine that such action would be of negligible value, economic or otherwise.

(g) Such Grantor shall not knowingly infringe, misappropriate, dilute, violate or otherwise impair the Intellectual Property of any other Person. In the event that any Intellectual Property of such Grantor is or has been infringed, misappropriated, violated, diluted or otherwise impaired by a third party, such Grantor shall take such action as it reasonably deems appropriate under the circumstances in response thereto, including (if reasonably deemed appropriate by such Grantor) promptly bringing suit and recovering all damages therefor.

(h) Such Grantor shall execute and deliver to Agent in form and substance reasonably acceptable to Agent and suitable for (i) filing in the Applicable IP Office the short-form Intellectual Property Security Agreements in the form attached hereto as Exhibit B, C or D, as applicable, for all Copyrights, Trademarks, Patents and Licenses of such Grantor and (ii) recording with the appropriate Internet domain name registrar, a duly executed form of assignment for all Internet domain names of such Grantor (together with appropriate supporting documentation as may be requested by Agent).

 

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SECTION 7 . Investment Property. Each Grantor represents, warrants and covenants as follows:

(a) Certificated Securities. On the Closing Date (in the case of an Original Grantor) or the date on which it signs and delivers its first Security

Agreement Supplement (in the case of any other Grantor), such Grantor will deliver to the Agent as Collateral hereunder all certificates representing Pledged Certificated Securities then owned by such Grantor. Thereafter, whenever such Grantor acquires any other certificate representing a Pledged Certificated Security, such Grantor will promptly (and in any event within 10 Business Days) deliver such certificate to the Agent as Collateral hereunder. The provisions of this subsection are subject to the limitation in Section 7(j) in the case of voting Equity Interests in a Foreign Subsidiary.

(b) Uncertificated Securities . On the Closing Date (in the case of an Original Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Grantor), such Grantor will enter into (and cause the relevant issuer to enter into) an Issuer Control Agreement in respect of each Pledged Uncertificated Security then owned by such Grantor and deliver such Issuer Control Agreement to the Agent (which shall enter into the same). Thereafter, whenever such Grantor acquires any other Pledged Uncertificated Security, such Grantor will promptly (and in any event within 10 Business Days) enter into (and cause the relevant issuer to enter into) an Issuer Control Agreement in respect of such Pledged Uncertificated Security and deliver such Issuer Control Agreement to the Agent (which shall enter into the same). The provisions of this subsection are subject to the limitation in Section 7(j) in the case of voting Equity Interests in a Foreign Subsidiary.

(c) Security Entitlements . On the Closing Date (in the case of an Original Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Grantor), such Grantor will, with respect to each Security Entitlement then owned by it with respect to Financial Assets credited to either (i) a Securities Account containing Cash Collateral and (ii) any Securities Account which is required to be maintained as a Dominion Account pursuant to Section 8.2.4 of the Credit Agreement, enter into (and cause the relevant Securities Intermediary to enter into) a Securities Account Control Agreement in respect of such Security Entitlement and the Securities Account to which the underlying Financial Asset is credited and will deliver such Securities Account Control Agreement to the Agent (which shall enter into the same). Thereafter, whenever such Grantor acquires any other Security Entitlement with respect to Financial Assets credited to either (i) a Securities Account containing Cash Collateral or (ii) any Securities Account which is required to be maintained as a Dominion Account pursuant to Section 8.2.4 of the Credit Agreement, promptly (and in any event within 10 Business Days) cause the underlying Financial Asset to be credited to a Controlled Securities Account.

 

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(d) Perfection as to Certificated Securities. Subject to Section 28 hereof, when such Grantor delivers the certificate representing any Pledged Certificated Security owned by it to the Agent and complies with Section 7(h) in connection with such delivery, (i) the Transaction Lien on such Pledged Certificated Security will be perfected, subject to no prior Liens or rights of others (other than Permitted Collateral Liens), (ii) the Agent will have Control of such Pledged Certificated Security and (iii) assuming the Agent does not have notice of any adverse claim to such perfected Certificated Security (it being understood and agreed that as of the Closing Date, the Agent does not have notice of any adverse claim to such perfected Certificated Security other than Term Loan Agent’s claim under the Security Documents (as defined in the Term Loan Agreement)), the Agent will be a protected purchaser (within the meaning of UCC Section 8-303) thereof.

(e) Perfection as to Uncertificated Securities . When such Grantor, the Agent and the issuer of any Pledged Uncertificated Security owned by such Grantor enter into an Issuer Control Agreement with respect thereto, (i) the Transaction Lien on such Pledged Uncertificated Security will be perfected, subject to no prior Liens or rights of others (other than Permitted Collateral Liens), (ii) the Agent will have Control of such Pledged Uncertificated Security and (iii) assuming the Agent does not have notice of any adverse claim to such Pledged Uncertificated Security (it being understood and agreed that as of the Closing Date, the Agent does not have notice of any adverse claim to such Pledged Uncertificated Security other than the Term Loan Agent’s claim under the Security Documents (as defined in the Term Loan Agreement)), the Agent will be a protected purchaser (within the meaning of UCC Section 8-303) thereof.

(f) Perfection as to Security Entitlements . So long as the Financial Asset underlying any Security Entitlement owned by such Grantor is credited to a Controlled Securities Account, (i) the Transaction Lien on such Security Entitlement will be perfected, subject to no prior Liens or rights of others (except Liens and rights of the relevant Securities Intermediary that are Permitted Collateral Liens), (ii) the Agent will have Control of such Security Entitlement and (iii) assuming the Agent acquires its Security Entitlement with respect thereto without notice of any adverse claim thereto (it being understood and agreed that as of the Closing Date, the Agent does not have notice of any adverse claim to such Security Entitlement), no action based on an adverse claim to such Security Entitlement or such Financial Asset, whether framed in conversion, replevin, constructive trust, equitable lien or other theory, may be asserted against the Agent or any other Secured Party.

(g) Agreement as to Applicable Jurisdiction . In respect of all Security Entitlements owned by such Grantor, and all Pledged Securities Accounts to which the related Financial Assets are credited, the related Securities Account Control Agreement will provide that the Securities Intermediary’s jurisdiction (determined as provided in UCC Section 8-110(e)) will at all times be located in the United States.

 

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(h) Delivery of Pledged Certificates . All certificates representing Pledged Certificated Securities, when delivered to the Agent, will be in suitable form for transfer by delivery, or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance reasonably satisfactory to the Agent.

(i) Communications . Upon the reasonable request of the Agent, each Grantor will promptly give to the Agent copies of any notices and other communications received by it with respect to (i) Pledged Securities registered in the name of such Grantor or its nominee and (ii) Pledged Security Entitlements as to which such Grantor is the Entitlement Holder; provided that, with respect to any such notice or other communication that could reasonably be expected to adversely affect the security interest of the Agent in such Pledged Securities or Pledged Securities Entitlements granted hereunder or the perfection thereof, the Agent shall be deemed to have made such request on the last day of each fiscal quarter of the Company.

(j) Foreign Subsidiaries. A Grantor will not be obligated to comply with the provisions of this Section at any time with respect to any voting Equity Interest in a Foreign Subsidiary if and to the extent (but only to the extent) that such voting Equity Interest is excluded from the Transaction Liens at such time pursuant to the definition of “Excluded Equity Interests” and/or the comparable provisions of one or more Security Agreement Supplements.

(k) Certification of Limited Liability Company and Partnership Interests . Any limited liability company and any partnership controlled by any Grantor shall either (a) not include in its operative documents any provision that any Equity Interests in such limited liability company or such partnership be a “security” as defined under Article 8 of the Uniform Commercial Code, or (b) certificate any Equity Interests in any such limited liability company or such partnership. To the extent an interest in any limited liability company or partnership controlled by any Grantor and pledged hereunder is certificated or becomes certificated, each such certificate shall be delivered to the Agent pursuant to Section 7(a) and such Grantor shall fulfill all other requirements under Section 7 applicable in respect thereof.

SECTION 8 . Deposit Accounts . Each Grantor represents, warrants and covenants as follows:

(a) All cash owned by such Grantor shall be deposited, upon or promptly after receipt thereof, in one or more Controlled Deposit Accounts or an account that would be not be required to be maintained as a Dominion Account pursuant to Section 8.2.4 of the Credit Agreement immediately after such deposit.

 

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(b) In respect of each Controlled Deposit Account, the related Deposit Account Control Agreement will provide that the Depositary Bank’s jurisdiction (determined as provided in UCC Section 9-304) will at all times be a jurisdiction in which Article 9 of the Uniform Commercial Code is in effect.

(c) So long as the Agent has Control of a Controlled Deposit Account, the Transaction Lien on such Controlled Deposit Account will be perfected, subject to no prior Liens or rights of others (except (x) the Depositary Bank’s right to deduct its normal operating charges and any uncollected funds previously credited thereto, (y) Permitted Collateral Liens and (z) as provided in the Intercreditor Agreement).

(d) The Term Priority Collateral Account shall be a Controlled Deposit Account and in no event shall (i) any proceeds of ABL Priority Collateral be deposited in the Term Priority Collateral Account and (ii) any proceeds of Term Priority Collateral be deposited in any Deposit Account other than the Term Priority Collateral Account.

SECTION 9 . Commercial Tort Claims . Each Grantor represents, warrants and covenants as follows:

(a) In the case of an Original Grantor, Schedule 3 accurately describes, with the specificity required to satisfy Official Comment 5 to UCC Section 9-108, each Material Commercial Tort Claim with respect to which such Original Grantor is the claimant as of the Closing Date. In the case of any other Grantor, Schedule 3 to its first Security Agreement Supplement will accurately describe, with the specificity required to satisfy said Official Comment 5, each Material Commercial Tort Claim with respect to which such Grantor is the claimant as of the date on which it signs and delivers such Security Agreement Supplement.

(b) If any Grantor acquires a Material Commercial Tort Claim after the Closing Date (in the case of an Original Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Grantor), such Grantor will promptly (and in any event within 10 Business Days) sign and deliver to the Agent a Security Agreement Supplement granting a security interest in such Commercial Tort Claim (which shall be described therein with the specificity required to satisfy said Official Comment 5) to the Agent for the benefit of the Secured Parties.

SECTION 10 . Transfer of Record Ownership . At any time when an Event of Default shall have occurred and be continuing, the Agent may (and to the extent that action by it is required, the relevant Grantor, if directed to do so by the Agent, will as promptly as practicable) cause each of the Pledged Securities (or any portion thereof specified in such direction) to be transferred of record into the

 

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name of the Agent or its nominee. Each Grantor will take any and all actions reasonably requested by the Agent to facilitate compliance with this Section. If the provisions of this Section are implemented, Section 7(b) shall not thereafter apply to any Pledged Security that is registered in the name of the Agent or its nominee. The Agent will promptly give to the relevant Grantor copies of any notices and other communications received by the Agent with respect to Pledged Securities registered in the name of the Agent or its nominee.

SECTION 11 . Right to Vote Securities ; Right to Proceeds of Insurance . (a) Unless an Event of Default shall have occurred and be continuing, each Grantor shall have the right, from time to time, to vote and to give consents, ratifications and waivers with respect to any Pledged Security owned by it and the Financial Asset underlying any Pledged Security Entitlement owned by it, and the Agent will, upon receiving a written request from such Grantor, deliver to such Grantor or as specified in such request such proxies, powers of attorney, consents, ratifications and waivers in respect of any such Pledged Security that is registered in the name of the Agent or its nominee or any such Pledged Security Entitlement as to which the Agent or its nominee is the Entitlement Holder, in each case as shall be specified in such request and be in form and substance satisfactory to the Agent.

(b) If an Event of Default shall have occurred and be continuing, upon written notice thereof to the Borrower Agent, the Agent shall have the exclusive right to the extent permitted by law to vote, to give consents, ratifications and waivers and to take any other action with respect to the Pledged Investment Property, the other Pledged Equity Interests and the Financial Assets underlying the Pledged Security Entitlements, with the same force and effect as if the Agent were the absolute and sole owner thereof, and each Grantor shall take all such action as the Agent may reasonably request from time to time to give effect to such right.

(c) Each Grantor hereby grants to Agent an irrevocable proxy, coupled with an interest, to vote all or any part of the Pledged Security and to exercise all other rights, powers, privileges and remedies to which a holder of the Pledged Security would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any action (including any transfer of any Pledged Security on the record books of the issuer thereof) by any other person (including the issuer of such Pledged Security or any officer or agent thereof) during the continuance of an Event of Default and which proxy shall only terminate upon the payment in full of the Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted).

 

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SECTION 12 . Certain Cash Distributions. Cash Distributions with respect to assets held in a Collateral Account shall be deposited and held therein, or withdrawn therefrom, as provided herein and in the Credit Agreement. Funds held in any Collateral Account (other than any Cash Collateral Account) may, until withdrawn, be invested and reinvested in such Cash Equivalents as the relevant Grantor shall request from time to time; provided that if a Cash Dominion Trigger Period or an Event of Default shall have occurred and be continuing, the Agent may select such Cash Equivalents.

SECTION 13 . Remedies upon Event of Default . (a) If an Event of Default shall have occurred and be continuing, the Agent may exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Loan Documents.

(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Agent may exercise on behalf of the Secured Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) with respect to any Collateral and, in addition, the Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral. To the maximum extent permitted by applicable law, any Secured Party may be the purchaser of any or all of the Collateral at any such sale and the Agent (as administrative agent for and representative of the Secured Parties), for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, shall be entitled to use and apply all of any part of the Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Agent shall not be obliged to make any sale of Collateral regardless of notice of sale having been

 

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given. The Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Agent may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.

(c) If the Agent sells any of the Collateral upon credit, the Grantors will be credited only with payment actually made by the purchaser, received by the Agent and applied in accordance with Section 14 hereof. In the event the purchaser fails to pay for the Collateral, the Agent may resell the same, subject to the same rights and duties set forth herein.

(d) Notice of any such sale or other disposition shall be given as required by Applicable Law. Each Grantor hereby agrees that 10 days’ written notice of any proposed sale or other disposition of Collateral by Agent shall be reasonable.

(e) For the purpose of enabling the Agent to exercise rights and remedies under this Agreement (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, convey, transfer or grant options to purchase any Collateral) at such time as the Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Agent, for the benefit of the Secured Parties, an irrevocable, nonexclusive, worldwide license (exercisable without payment of royalty or other compensation to the Grantors and subject to any prior rights granted by such Grantor to third parties), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs (solely to the extent permitted by the relevant licenses therefor) used for the compilation or printout thereof; provided , however , that any trademarks or service marks licensed pursuant to the foregoing may be used only in connection with goods and services of similar type and similar or greater quality than those theretofore sold by such Grantor under such trademark or service mark. The use of such license by the Agent may be exercised only upon the occurrence and during the continuation of an Event of Default; provided , however , that any license or sublicense entered into by the Agent in accordance herewith shall be binding upon each Grantor notwithstanding any subsequent cure of an Event of Default.

 

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(f) For the purpose of enabling the Agent to exercise rights and remedies under this Agreement (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, convey, transfer or grant options to purchase any Collateral) at such time as the Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Agent, for the benefit of the Secured Parties, an irrevocable license (without payment of rent or other compensation to such Grantor) to use, operate and occupy all real Property owned, operated, leased, subleased or otherwise occupied by such Grantor.

SECTION 14 . Application of Proceeds . Subject to the terms of the Intercreditor Agreement, (a)  if an Event of Default shall have occurred and be continuing, the Agent may apply (i) any cash held in the Collateral Accounts and (ii) the proceeds of any sale or other disposition of all or any part of the Collateral to the Obligations, which application shall be made in accordance with Section 5.5.2 of the Credit Agreement.

(b) In making the payments and allocations required by this Section, the Agent may rely upon information supplied to it pursuant to Section 18(c). All distributions made by the Agent pursuant to this Section shall be final (except in the event of manifest error) and the Agent shall have no duty to inquire as to the application by any Secured Party of any amount distributed to it.

SECTION 15 . Fees and Expenses; Indemnification . (a) All expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping any Collateral, all Taxes payable with respect to any Collateral (including any sale thereof), and all other payments required to be made by Agent to any Person to realize upon any Collateral, shall be borne and paid by the Grantors. The Borrowers will forthwith upon demand pay to the Agent:

(i) the amount of any taxes that the Agent may have been required to pay by reason of the Transaction Liens or to free any Collateral from any other Lien thereon;

(ii) the amount of any reasonable and documented out-of-pocket costs and expenses incurred in connection with the development, preparation, execution and administration of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the Transactions, including, without limitation, the reasonable fees, charges and

 

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disbursements of a single counsel to the Agent and Lenders (which shall be selected by the Agent) and, if applicable, one special or local counsel in each applicable jurisdiction, as appropriate and, in the case of a conflict of interest, Secured Parties may engage and be reimbursed for additional counsel; and

(iii) the amount required to pay or reimburse each Secured Party, the Agent and each Lead Arranger for all its reasonable costs and expenses incurred in connection with the enforcement of any rights under this Agreement, the other Loan Documents and any such other documents, including, without limitation, the fees and disbursements of one counsel selected by the Agent and, at any time after and during the continuance of an Event of Default, of one counsel to the Lenders and, if applicable, special or local counsel in each applicable jurisdiction, as appropriate, and, in the case of a conflict of interest, Secured Parties may engage and be reimbursed for additional counsel, as appropriate.

Any such amount not paid to the Agent on demand will bear interest for each day thereafter until paid at the Default Rate.

(b) If any transfer tax, documentary stamp tax or other tax is payable in connection with any transfer or other transaction provided for in the Security Documents, the Borrowers will pay such tax and provide any required tax stamps to the Agent or as otherwise required by law.

(c) The Borrowers shall indemnify each of the Secured Parties, their respective affiliates and the respective directors, officers, agents and employees of the foregoing (each an “ Indemnitee ”) in accordance with Section 14.2 of the Credit Agreement.

SECTION 16 . Authority to Administer Collateral . Each Grantor irrevocably appoints the Agent (and all Persons designated by the Agent) as its true and lawful attorney (and agent in fact), with full power of substitution, in its name or in the name of such Grantor, any Secured Party or otherwise, for the sole use and benefit of the Secured Parties, but at the Borrowers’ sole cost and expense, to the extent permitted by law and without notice, to exercise, at any time and from time to time, all or any of the following powers with respect to all or any of such Grantor’s Collateral:

(i) endorse a Grantor’s name on any proceeds of Collateral (including proceeds of insurance) that come into Agent’s possession or control; or

(ii) during the continuance of any Event of Default:

 

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(A) notify any Account Debtors of the assignment of their Accounts, demand and enforce payment of Accounts by legal proceedings or otherwise, and generally exercise any rights and remedies with respect to Accounts;

(B) demand, sue for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof,

(C) settle, adjust, modify, compromise, compound, discharge, release, prosecute or defend any Accounts or other Collateral or any action or proceeding with respect thereto,

(D) collect, liquidate and receive balances in Pledged Deposit Accounts or Pledged Securities Accounts, and take control, in any manner, of proceeds of Collateral;

(E) prepare, file and sign a Grantor’s name to a proof of claim or other document in a bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien or similar document;

(F) receive, open and dispose of mail addressed to a Grantor, and notify postal authorities to deliver any such mail to an address designated by Agent;

(G) endorse any Chattel Paper, Document, Instrument, bill of lading, or other document or agreement relating to any Accounts, Inventory or other Collateral;

(H) use a Grantor’s stationery and sign its name to verifications of Accounts and notices to Account Debtors;

(I) use information contained in any data processing, electronic or information systems relating to Collateral;

(J) make and adjust claims under insurance policies;

(K) take any action as may be necessary or appropriate to obtain payment under any letter of credit, banker’s acceptance or other instrument for which a Grantor is a beneficiary;

(L) sell, lease, license or otherwise dispose of the same or the proceeds or avails thereof, as fully and effectually as if the Agent were the absolute owner thereof,

 

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(M) extend the time of payment of any or all thereof and to make any allowance or other adjustment with reference thereto; and

(N) take all other actions as Agent deems appropriate to fulfill any Grantor’s obligations under the Loan Documents.

SECTION 17 . Limitation on Duty in Respect of Collateral . Beyond the exercise of reasonable care in the custody and preservation thereof, the Agent will have no duty as to any Collateral in its possession or control or in the possession or control of any sub-agent or bailee or any income therefrom or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Agent will be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession or control if such Collateral is accorded treatment substantially equal to that which it accords its own property, and will not be liable or responsible for any loss or damage to any Collateral, or for any diminution in the value thereof, by reason of any act or omission of any sub-agent or bailee selected by the Agent in good faith, except to the extent that such liability arises from the Agent’s gross negligence or willful misconduct.

SECTION 18 . General Provisions Concerning the Agent .

(a) The Agent. The provisions of Section 12 of the Credit Agreement shall inure to the benefit of the Agent, and shall be binding upon all Grantors and all Secured Parties, in connection with this Agreement and the other Security Documents. Without limiting the generality of the foregoing, (i) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, (ii) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Security Documents that the Agent is required in writing to exercise by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 14.1 of the Credit Agreement), and (iii) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for any failure to disclose, any information relating to any Grantor that is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be responsible for the existence, genuineness or value of any Collateral or for the validity, perfection, priority or enforceability of any Transaction Lien, whether impaired by operation of law or by reason of any action or omission to act on its part under the Security Documents. The 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 under the circumstances as provided in Section 14.1 of the Credit Agreement) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to the Agent by the Borrowers or a Secured Party.

 

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(b) Sub-Agents and Related Parties. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more employees and sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. Agent may consult with and employ Agent Professionals, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by an Agent Professional. The exculpatory provisions of Section 17 and this Section shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities as well as activities of the Agent. Agent shall not be responsible for the negligence or misconduct of any agents, employees or Agent Professionals selected by it with reasonable care.

(c) Information as to Obligations and Actions by Secured Parties. For all purposes of the Security Documents, including determining the amounts of the Obligations and whether an Obligation is a Contingent Obligation or not, or whether any action has been taken under any Secured Agreement, the Agent will be entitled to rely on information from (i) its own records for information as to the Credit Parties, their Obligations and actions taken by them, (ii) any Secured Party for information as to its Obligations and actions taken by it, to the extent that the Agent has not obtained such information from its own records, and (iii) the Borrowers, to the extent that the Agent has not obtained information from the foregoing sources.

(d) Refusal to Act . The Agent may refuse to act on any notice, consent, direction or instruction from any Secured Parties or any agent, trustee or similar representative thereof that, in the Agent’s opinion, (i) is contrary to law or the provisions of any Security Document, (ii) may expose the Agent to personal liability or (iii) is unduly prejudicial to Secured Parties not joining in such notice, consent, direction or instruction.

SECTION 19 . Termination of Transaction Liens; Release of Collateral . (a) The Transaction Liens granted by each Guarantor shall terminate when its Secured Guarantee is released pursuant to Section 2(c).

(b) The Transaction Liens granted by the Borrowers shall terminate when all the Release Conditions are satisfied.

 

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(c) Notwithstanding the foregoing, the Transaction Liens with respect to property of the Company or any Guarantor securing the Obligations will be automatically released, in whole or in part, to the extent permitted in Section 12.2.1 of the Credit Agreement.

(d) Upon any termination of a Transaction Lien or release of Collateral, the Agent will, at the expense of the relevant Grantor, execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence the termination of such Transaction Lien or the release of such Collateral, as the case may be, and will duly assign and transfer to such Grantor any such Collateral that may be in the possession of the Agent and has not theretofore been sold or otherwise applied or released pursuant to this Agreement.

SECTION 20 . Additional Guarantors and Grantors . Any Subsidiary may and to the extent required by Section 10.1.14 of the Credit Agreement, shall become a party hereto by signing and delivering to the Agent a Security Agreement Supplement, whereupon such Subsidiary shall become a “Guarantor” and a “Grantor” as defined herein.

SECTION 21 . Notices . Each notice, request or other communication given to any party hereunder shall be given in accordance with subsection 14.3 of the Credit Agreement, and in the case of any such notice, request or other communication to a Grantor other than the Borrowers, shall be given to it in care of the Borrowers.

SECTION 22 . No Implied Waivers; Remedies Not Exclusive . No failure to exercise and no delay in exercising, on the part of any party hereto, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Without limiting the generality of the foregoing, the making of the Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

SECTION 23 . Successors and Assigns . This Agreement is for the benefit of the Agent and the Secured Parties. If all or any part of any Secured Party’s interest in any Obligation is assigned or otherwise transferred, the transferor’s rights hereunder, to the extent applicable to the obligation so transferred, shall be automatically transferred with such obligation. This Agreement shall be binding on the Grantors and their respective successors and assigns.

 

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SECTION 24 . Amendments and Waivers. Neither this Agreement nor any provision hereof may be waived, amended, modified or terminated except pursuant to an agreement or agreements in writing entered into by the Agent, with the consent of such Lenders as are required to consent thereto under subsection 14.1 of the Credit Agreement. No such waiver, amendment or modification shall (i) be binding upon any Grantor, except with its written consent, or (ii) affect the rights of a Secured Party (other than a Lender) hereunder more adversely than it affects the comparable rights of the Lenders hereunder, without the consent of such Secured Party.

SECTION 25 . Choice of Law . This Agreement and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the Transactions shall be construed in accordance with and governed by the law of the State of New York, without giving effect to any conflict of law principles that result in the application of laws of another jurisdiction.

SECTION 26 . 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 SECURITY 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 27 . Severability . Any provision of any Security Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

SECTION 28 . Intercreditor Agreement . Notwithstanding anything herein to the contrary, the Liens and security interests granted to the Agent pursuant to this Agreement and the exercise of any right or remedy by the Agent hereunder, in each case, with respect to the Collateral are subject to the limitations and provisions of the Intercreditor Agreement. In the event of any conflict between

 

35


the terms of the Intercreditor Agreement and the terms of this Agreement with respect to the Collateral, the terms of the Intercreditor Agreement shall govern and control; provided that the Intercreditor Agreement shall not be construed, by its terms, to modify any security interest granted pursuant to Section 3 hereof. To the extent that any Term Priority Collateral is required pursuant to the terms of this Agreement to be delivered to the Agent, so long as the Intercreditor Agreement is in effect, delivery of such Term Priority Collateral to the Term Loan Agent shall be deemed to satisfy such requirement.

SECTION 29. Effect of Amendment and Restatement . On the Amendment No. 3 Effective Date, the Existing Guarantee and Collateral Agreement shall be amended and restated in its entirety by this Agreement, and the Existing Guarantee and Collateral Agreement shall thereafter be of no further force and effect and shall be deemed replaced and superseded in all respects by this Agreement. The parties hereto acknowledge and agree that (1) this Agreement and the other Loan Documents, whether executed and delivered in connection herewith or otherwise, do not constitute a novation or termination of the Obligations under the Existing Guarantee and Collateral Agreement or the other Loan Documents as in effect prior to the Amendment No. 3 Effective Date and which remain outstanding as of the Amendment No. 3 Effective Date, (2) the Obligations under the Existing Guarantee and Collateral Agreement and the other Loan Documents are in all respects continuing (as amended and restated hereby and which are in all respects hereafter subject to the terms herein) and (3) the Liens and security interests as granted under the applicable Loan Documents securing payment of such Obligations are in all respects continuing and in full force and effect and are reaffirmed hereby.

SECTION 30. Reaffirmation and Grant of Security Interest . Each Grantor hereby (i) expressly acknowledges the terms of this Agreement, (ii) ratifies and affirms its obligations under the Security Documents executed by such Grantor, as amended and restated on the date hereof, as applicable and (iii) acknowledges, renews and extends its continued liability under all such Loan Documents and agrees that such Loan Documents remain in full force and effect, including with respect to the obligations of the Grantors as modified by this Agreement. Each Grantor further acknowledges and agrees that after giving effect to this Agreement, neither the modification of the Existing Guarantee and Collateral Agreement effected pursuant to this Agreement, nor the execution, delivery, performance or effectiveness of the Loan Amendment and this Agreement, as applicable (a) impairs the validity, effectiveness or priority of the Liens granted pursuant to any Loan Document (as such term is defined in the Existing Credit Agreement), and such Liens continue unimpaired with the same priority to secure repayment of all Obligations, whether heretofore or hereafter incurred; or (b) requires that any new filings be made or other action taken to perfect or to maintain the perfection of such Liens.

 

36


[SIGNATURES FOLLOW]

 

37


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.

 

SCHOOL SPECIALTY, INC.
By:   /s/ Kevin L. Baehler
  Name: Kevin L. Baehler  
  Title: Chief Accounting Officer  
CALIFONE INTERNATIONAL, LLC
By:   School Specialty, Inc., its sole member  
By:   /s/ Kevin L. Baehler    
  Name: Kevin L. Baehler  
  Title: Chief Accounting Officer  
CLASSROOMDIRECT.COM, LLC
By:   School Specialty, Inc., its sole member  
By:   /s/ Kevin L. Baehler    
  Name: Kevin L. Baehler  
  Title: Chief Accounting Officer  
CHILDCRAFT EDUCATION, LLC.
By:   School Specialty, Inc., its sole member  
By:   /s/ Kevin L. Baehler    
  Name: Kevin L. Baehler  
  Title: Chief Accounting Officer  
DELTA EDUCATION, LLC
By:   School Specialty, Inc., its sole member  
By:   /s/ Kevin L. Baehler    
  Name: Kevin L. Baehler  
  Title: Chief Accounting Officer  

 

38


SPORTIME, LLC
By:  

School Specialty, Inc., its sole member

By:  

/s/ Kevin L. Baehler

  Name: Kevin L. Baehler
  Title: Chief Accounting Officer
PREMIER AGENDAS, LLC
By:  

School Specialty, Inc., its sole member

By:  

/s/ Kevin L. Baehler

  Name: Kevin L. Baehler
  Title: Chief Accounting Officer
BIRD-IN-HAND WOODWORKS, LLC
By:  

School Specialty, Inc., sole member of Childcraft Education, LLC, its sole member

By:  

/s/ Kevin L. Baehler

  Name: Kevin L. Baehler
  Title: Chief Accounting Officer
SSI GUARDIAN, LLC
By:  

School Specialty, Inc., its sole member

By:  

/s/ Kevin L. Baehler

  Name: Kevin L. Baehler
  Title: Chief Accounting Officer
BANK OF AMERICA, N.A., as Agent
By:  

/s/ Brad H. Breidenbach

  Name: Brad H. Breidenbach
  Title: Senior Vice President

 

39


SCHEDULE 1

EQUITY INTERESTS IN SUBSIDIARIES AND AFFILIATES

OWNED BY ORIGINAL GRANTORS

(as of the Closing Date)

 

Issuer   

Jurisdiction of

Organization

  

Owner of

Equity Interest

  

Percentage

Owned

  

Number of

Shares or Units

Califone International, LLC

Childcraft Education, LLC

ClassroomDirect.com, LLC

Delta Education, LLC

Frey Scientific, LLC

Premier Agendas, LLC

Sax Arts & Crafts, LLC

Sportime, LLC

Premier School Agendas, Ltd.

Select Agendas, Corp.

Bird-In-Hand Woodworks, LLC

SSI Guardian, LLC

  

Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

Delaware

  

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

School Specialty, Inc.

Childcraft Education, LLC

School Specialty, Inc.

  

100%

100%

100%

100%

100%

100%

100%

100%

100%

100%

100%

100%

  

N/A

N/A

1

100

N/A

N/A

N/A

100

N/A

N/A

N/A

N/A

 

S-1-1


SCHEDULE 2

INVESTMENT PROPERTY

(other than Equity Interests in Subsidiaries and Affiliates)

OWNED BY ORIGINAL GRANTORS

(as of the Closing Date)

PART 1 — Securities

 

Issuer

  

Jurisdiction of

Organization

  

Owner of Securities

  

Amount

Owned

  

Type of

Security

None.

           

PART 2 — Securities Accounts

The Original Grantors own Security Entitlements with respect to Financial Assets credited to the following Securities Accounts:

 

Owner

  

Securities Intermediary

  

Account Number

None.

     

 

S-2-1


SCHEDULE 3

MATERIAL COMMERCIAL TORT CLAIMS

Describe each existing Material Commercial Tort Claim with the specificity required to satisfy Official Comment 5 to UCC Section 9-108.

None.

 

S-3-1


EXHIBIT A

to Security Agreement

SECURITY AGREEMENT SUPPLEMENT

SECURITY AGREEMENT SUPPLEMENT dated as of             ,             , between [NAME OF GRANTOR] (the “ Grantor ”) and BANK OF AMERICA, N.A., as Agent.

WHEREAS, School Specialty, Inc. (the “ Company ”), the subsidiaries of Company party thereto as Borrowers (together with Company, collectively, the “ Borrowers ”), the other Guarantors party thereto and Bank of America, N.A., as Agent are parties to an Amended and Restated Guarantee and Collateral Agreement dated as of April [•], 2017 (as heretofore amended and/or supplemented, the “ Security Agreement ”) under which each Borrower secures all Obligations (as defined therein) and the Guarantors guarantee the Obligations and secure their respective guarantees thereof;

WHEREAS, [name of Grantor] desires to become [is] a party to the Security Agreement as a Guarantor and Grantor thereunder; and

WHEREAS, terms defined in the Security Agreement (or whose definitions are incorporated by reference in Section 1 of the Security Agreement) and not otherwise defined herein have, as used herein, the respective meanings provided for therein;

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Secured Guarantee. 1 The Grantor unconditionally guarantees the full and punctual payment of each Obligation when due (whether at stated maturity, upon acceleration or otherwise). The Grantor acknowledges that, by signing this Security Agreement Supplement and delivering it to the Agent, the Grantor becomes a “Guarantor” and “Grantor” for all purposes of the Security Agreement and that its obligations under the foregoing Secured Guarantee are subject to all the provisions of the Security Agreement (including those set forth in Section 2 thereof) applicable to the obligations of a Guarantor thereunder.

 

1   Delete this Section if the Grantor is a Borrower or a Guarantor that is already a party to the Security Agreement.

 

A-1


2. Grant of Transaction Liens . (a) In order to secure Obligations, including the Obligations under the Secured Guarantee, as applicable, the Grantor grants to the Agent for the benefit of the Secured Parties a continuing security interest in all the following property of the Grantor, whether now owned or existing or hereafter acquired or arising and regardless of where located (the “ New Collateral ”):

[describe property being added to the Collateral] 2

(b) With respect to each right to payment or performance included in the Collateral from time to time, the Transaction Lien granted therein includes a continuing security interest in (i) any Supporting Obligation that supports such payment or performance and (ii) any Lien that (x) secures such right to payment or performance or (y) secures any such Supporting Obligation.

(c) The foregoing Transaction Liens are granted as security only and shall not subject the Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of the Grantor with respect to any of the New Collateral or any transaction in connection therewith.

3. Delivery of Collateral . Concurrently with delivering this Security Agreement Supplement to the Agent, the Grantor is complying with the provisions of Section 7 of the Security Agreement with respect to Investment Property, in each case if and to the extent included in the New Collateral at such time.

4. Party to Security Agreement . Upon delivering this Security Agreement Supplement to the Agent, the Grantor will become a party to the Security Agreement and will thereafter have all the rights and obligations of a Guarantor and a Grantor thereunder and be bound by all the provisions thereof as fully as if the Grantor were one of the original parties thereto.

 

 

2   If the Grantor is not already a party to the Security Agreement, clauses (i) through (xiii) of, and the proviso to, Section 3(a) of the Security Agreement may be appropriate.

 

A-2


5. Representations and Warranties . (a) The Grantor (a) is duly organized or formed, as the case may be, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, (b) has the requisite power and authority to own and operate its Property, to lease the Property it operates as lessee and to conduct the business in which it is currently engaged as it is currently conducted, (c) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership, lease or operation of Property or the conduct of its business requires such qualification except to the extent that the failure to so qualify could not, in the aggregate, reasonably be expected to have a Material Adverse Effect and (d) is in compliance with all Applicable Law except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b) The Grantor has delivered a Perfection Certificate to the Agent. The information set forth therein is correct and complete as of the date hereof.

(c) The execution and delivery of this Security Agreement Supplement by the Grantor and the performance by it of its obligations under the Security Agreement as supplemented hereby are within its corporate or other powers, have been duly authorized by all necessary corporate or other action, require no action by or in respect of, or filing with, any governmental body, agency or official and do not contravene, or constitute a default under, any provision of applicable law or regulation or of its organizational documents, or of any agreement, judgment, injunction, order, decree or other instrument binding upon it or result in the creation or imposition of any Lien (except a Transaction Lien) on any of its assets.

(d) The Security Agreement as supplemented hereby constitutes a valid and binding agreement of the Grantor, enforceable in accordance with its terms, except as limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting creditors’ rights generally and (ii) general principles of equity.

(e) Each of the representations and warranties set forth in Sections 4 through 10 of the Security Agreement is true as applied to the Grantor and the New Collateral. For purposes of the foregoing sentence, references in said Sections to a “Grantor” shall be deemed to refer to the Grantor, references to “Schedules” to the Security Agreement shall be deemed to refer to the corresponding Schedules to this Security Agreement Supplement, references to “Collateral” shall be deemed to refer to the New Collateral, and references to the “Closing Date” shall be deemed to refer to the date on which the Grantor signs and delivers this Security Agreement Supplement.

 

A-3


6. Governing Law . This Security Agreement Supplement and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Security Agreement Supplement and the Transactions shall be construed in accordance with and governed by the law of the State of New York, without giving effect to any conflict of law principles that result in the application of laws of another jurisdiction.

[The remainder of this page has been intentionally left blank.]

 

A-4


IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement Supplement to be duly executed by their respective authorized officers as of the day and year first above written.

 

[NAME OF GRANTOR]
By:  

 

  Name:
  Title:
BANK OF AMERICA, N.A., as Agent
By:  

 

  Name:
  Title:

 

A-5


Schedule 1

to Security Agreement

Supplement

EQUITY INTERESTS IN SUBSIDIARIES AND AFFILIATES

OWNED BY GRANTOR

 

Issuer

 

Jurisdiction

of

Organization

 

Percentage

Owned

  

Number of

Shares or Units

 

A-6


Schedule 2

to Security Agreement

Supplement

INVESTMENT PROPERTY

(other than Equity Interests in Subsidiaries and Affiliates)

OWNED BY GRANTOR

PART 1 — Securities

 

Issuer

 

Jurisdiction

of

Organization

 

Amount

Owned

  

Type of Security

PART 2 — Securities Accounts

The Grantor owns Security Entitlements with respect to Financial Assets credited to the following Securities Accounts:

 

Securities Intermediary

 

Account Number

 

A-7


EXHIBIT B

to Security Agreement

COPYRIGHT SECURITY AGREEMENT

This COPYRIGHT SECURITY AGREEMENT (this “ Copyright Security Agreement ”) is made this          day of April, 2017, by and among the grantors listed on the signature pages hereof (collectively, jointly and severally, “Grantors” and each individually “Grantor”), and Bank of America, N.A., in its capacity as agent for each Lender (in such capacity, together with its successors and assigns in such capacity, “ Agent ”).

W I T N E S S E T H :

WHEREAS, pursuant to that certain Loan Agreement dated as of June 11, 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Loan Agreement ”) by and among SCHOOL SPECIALTY, INC., a Delaware corporation (“ Company ”), the subsidiaries of Company party thereto as Borrowers (together with Company, collectively the “ Borrowers ”), the other Guarantors party thereto, the financial institutions from time to time party thereto (each a “ Lender ” and, collectively, the “ Lenders ”) and Agent, the Lenders have agreed to make certain financial accommodations available to the Borrowers from time to time pursuant to the terms and conditions thereof; and

WHEREAS, Lenders are willing to make the financial accommodations to the Borrowers as provided for in the Loan Agreement and the other Loan Documents, but only upon the condition, among others, that Grantors shall have executed and delivered to Agent, for the benefit of the Lenders, that certain Amended and Restated Guarantee and Collateral Agreement, dated as of April __, 2017 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “ Guarantee and Collateral Agreement ”); and

WHEREAS, pursuant to the Guarantee and Collateral Agreement, Grantors are required to execute and deliver to Agent, for the benefit of the Lenders, this Copyright Security Agreement;

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantors hereby agree as follows:

 

B-1


1. DEFINED TERMS . All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Guarantee and Collateral Agreement or, if not defined therein, in the Loan Agreement, and this Copyright Security Agreement shall be subject to the rules of construction set forth in Section 1.4 of the Loan Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis .

2. GRANT OF SECURITY INTEREST IN COPYRIGHT COLLATERAL . Each Grantor hereby unconditionally grants, assigns, and pledges to Agent, for the benefit each Lender, to secure the Obligations, a continuing security interest (referred to in this Copyright Security Agreement as the “ Security Interest ”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (excluding any Excluded Assets, collectively, the “ Copyright Collateral ”):

(a) all of such Grantor’s Copyrights and Copyright Intellectual Property Licenses to which it is a party including those referred to on Schedule I ;

(b) all renewals or extensions of the foregoing; and

(c) all products and proceeds of the foregoing, including any claim by such Grantor against third parties for past, present or future infringement of any Copyright or any Copyright exclusively licensed under any Intellectual Property License, including the right to receive damages, or the right to receive license fees, royalties, and other compensation under any Copyright Intellectual Property License, to the extent provided for in the license.

3. SECURITY FOR OBLIGATIONS . This Copyright Security Agreement and the Security Interest created hereby secures the payment and performance of the Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Copyright Security Agreement secures the payment of all amounts which constitute part of the Obligations and would be owed by Grantors, or any of them, to Agent, the Lenders or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

4. SECURITY AGREEMENT . The Security Interest granted pursuant to this Copyright Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Lenders, pursuant to the Guarantee and Collateral Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the Security Interest in the Copyright Collateral made and granted hereby are more fully set forth in the Guarantee and Collateral Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any inconsistency between this Copyright Security Agreement and the Guarantee and Collateral Agreement, the Guarantee and Collateral Agreement shall control.

 

B-2


5. AUTHORIZATION TO SUPPLEMENT . Grantors shall give Agent notice in writing of any additional copyright registrations granted after the date hereof pursuant to Section 6(a) of the Guarantee and Collateral Agreement. Without limiting Grantors’ obligations under this Section, Grantors hereby authorize Agent unilaterally to modify this Copyright Security Agreement by amending Schedule I to include any future United States registered copyrights or applications therefor of each Grantor. Notwithstanding the foregoing, no failure to so modify this Copyright Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I .

6. COUNTERPARTS . This Copyright Security Agreement is a Loan Document. This Copyright Security Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Copyright Security Agreement. Delivery of an executed counterpart of this Copyright Security Agreement by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Copyright Security Agreement. Any party delivering an executed counterpart of this Copyright Security Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Copyright Security Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Copyright Security Agreement.

7. CHOICE OF LAW AND VENUE AND JURY TRIAL WAIVER . THIS COPYRIGHT SECURITY AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE AND JURY TRIAL WAIVER SET FORTH IN SECTION 14 OF THE LOAN AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS .

[signature page follows]

 

B-3


IN WITNESS WHEREOF, the parties hereto have caused this Copyright Security Agreement to be executed and delivered as of the day and year first above written.

 

GRANTORS:    

 

    By:                                                                                                         
    Name:                                                                                                    
    Title:                                                                                                      
   

 

    By:                                                                                                         
    Name:                                                                                                    
    Title:                                                                                                      
AGENT:     ACCEPTED AND ACKNOWLEDGED BY:
    Bank of America, N.A.
    By:                                                                                                         
    Name:                                                                                                    
    Title:                                                                                                      


SCHEDULE I

to

COPYRIGHT SECURITY AGREEMENT

Copyright Registrations

 

Grantor

 

Country

 

Copyright

  

Registration No.

  

Registration Date

Copyright Licenses


EXHIBIT C

to Security Agreement

PATENT SECURITY AGREEMENT

This PATENT SECURITY AGREEMENT (this “ Patent Security Agreement ”) is made this          day of April, 2017, by and among the grantors listed on the signature pages hereof (collectively, jointly and severally, “ Grantors ” and each individually “ Grantor ”), and Bank of America, N.A., in its capacity as agent for each Lender (in such capacity, together with its successors and assigns in such capacity, “ Agent ”).

W I T N E S S E T H :

WHEREAS, pursuant to that certain Loan Agreement dated as of June 11, 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Loan Agreement ”) by and among SCHOOL SPECIALTY, INC., a Delaware corporation (“ Company ”), the subsidiaries of Company party thereto as Borrowers (together with Company, collectively the “ Borrowers ”), the other Guarantors party thereto, the financial institutions from time to time party thereto (each a “ Lender ” and, collectively, the “ Lenders ”) and Agent, the Lenders have agreed to make certain financial accommodations available to the Borrowers from time to time pursuant to the terms and conditions thereof; and

WHEREAS, Lenders are willing to make the financial accommodations to the Borrowers as provided for in the Loan Agreement and the other Loan Documents, but only upon the condition, among others, that Grantors shall have executed and delivered to Agent, for the benefit of the Lenders, that certain Amended and Restated Guarantee and Collateral Agreement, dated as of April __, 2017 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “ Guarantee and Collateral Agreement ”); and

WHEREAS, pursuant to the Guarantee and Collateral Agreement, Grantors are required to execute and deliver to Agent, for the benefit of the Lenders, this Patent Security Agreement;

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor hereby agrees as follows:

 

C-1


1. DEFINED TERMS . All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Guarantee and Collateral Agreement or, if not defined therein, in the Loan Agreement, and this Patent Security Agreement shall be subject to the rules of construction set forth in Section 1.4 of the Loan Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis .

2. GRANT OF SECURITY INTEREST IN PATENT COLLATERAL . Each Grantor hereby unconditionally grants, assigns, and pledges to Agent, for the benefit each Lender, to secure the Obligations, a continuing security interest (referred to in this Patent Security Agreement as the “ Security Interest ”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (excluding any Excluded Assets, collectively, the “ Patent Collateral ”):

(a) all of its Patents and Patent Intellectual Property Licenses to which it is a party including those referred to on Schedule I ;

(b) all divisionals, continuations, continuations-in-part, reissues, reexaminations, or extensions of the foregoing; and

(c) all products and proceeds of the foregoing, including any claim by such Grantor against third parties for past, present or future infringement of any Patent or any Patent exclusively licensed under any Intellectual Property License, including the right to receive damages, or right to receive license fees, royalties, and other compensation under any Patent Intellectual Property License, to the extent permitted in the license.

3. SECURITY FOR OBLIGATIONS . This Patent Security Agreement and the Security Interest created hereby secures the payment and performance of the Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Patent Security Agreement secures the payment of all amounts which constitute part of the Obligations and would be owed by Grantors, or any of them, to Agent, the Lenders or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

4. SECURITY AGREEMENT . The Security Interest granted pursuant to this Patent Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Lenders, pursuant to the Guarantee and Collateral Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the Security Interest in the Patent Collateral made and granted hereby are more fully set forth in the


Guarantee and Collateral Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any inconsistency between this Patent Security Agreement and the Guarantee and Collateral Agreement, the Guarantee and Collateral Agreement shall control.

5. AUTHORIZATION TO SUPPLEMENT . If any Grantor shall obtain rights to any new patent application or issued patent or become entitled to the benefit of any patent application or patent for any divisional, continuation, continuation-in-part, reissue, or reexamination of any existing patent or patent application, the provisions of this Patent Security Agreement shall automatically apply thereto. Grantors shall give prompt notice in writing to Agent with respect to any such new patent rights. Without limiting Grantors’ obligations under this Section, Grantors hereby authorize Agent unilaterally to modify this Patent Security Agreement by amending Schedule I to include any such new patent rights of each Grantor. Notwithstanding the foregoing, no failure to so modify this Patent Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I .

6. COUNTERPARTS . This Patent Security Agreement is a Loan Document. This Patent Security Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Patent Security Agreement. Delivery of an executed counterpart of this Patent Security Agreement by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Patent Security Agreement. Any party delivering an executed counterpart of this Patent Security Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Patent Security Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Patent Security Agreement.

7. CHOICE OF LAW AND VENUE AND JURY TRIAL WAIVER . THIS PATENT SECURITY AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE AND JURY TRIAL WAIVER SET FORTH IN SECTION 14 OF THE LOAN AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS .

[signature page follows]


IN WITNESS WHEREOF, the parties hereto have caused this Patent Security Agreement to be executed and delivered as of the day and year first above written.

 

GRANTORS:    

 

    By:                                                                                                         
    Name:                                                                                                    
    Title:                                                                                                      
   

 

    By:                                                                                                         
    Name:                                                                                                    
    Title:                                                                                                      
    ACCEPTED AND ACKNOWLEDGED BY:
AGENT:     Bank of America, N.A.
    By:                                                                                                         
    Name:                                                                                                    
    Title:                                                                                                      


SCHEDULE I

to

PATENT SECURITY AGREEMENT

Patents

 

Grantor

 

Country

 

Patent

  

Application/

Patent No.

  

Filing Date

Patent Licenses


EXHIBIT D

to Security Agreement

TRADEMARK SECURITY AGREEMENT

This TRADEMARK SECURITY AGREEMENT (this “ Trademark Security Agreement ”) is made this          day of April, 2017, by and among the grantors listed on the signature pages hereof (collectively, jointly and severally, “ Grantors ” and each individually “ Grantor ”), and Bank of America, N.A., in its capacity as agent for each Lender (in such capacity, together with its successors and assigns in such capacity, “ Agent ”).

W I T N E S S E T H :

WHEREAS, pursuant to that certain Loan Agreement dated as of June 11, 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Loan Agreement ”) by and among SCHOOL SPECIALTY, INC., a Delaware corporation (“ Company ”), the subsidiaries of Company party thereto as Borrowers (together with Company, collectively the “ Borrowers ”), the other Guarantors party thereto, the financial institutions from time to time party thereto (each a “ Lender ” and, collectively, the “ Lenders ”) and Agent, the Lenders have agreed to make certain financial accommodations available to the Borrowers from time to time pursuant to the terms and conditions thereof; and

WHEREAS, Lenders are willing to make the financial accommodations to the Borrowers as provided for in the Loan Agreement and the other Loan Documents, but only upon the condition, among others, that Grantors shall have executed and delivered to Agent, for the benefit of the Lenders, that certain Amended and Restated Guarantee and Collateral Agreement, dated as of April __, 2017 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “ Guarantee and Collateral Agreement ”); and

WHEREAS, pursuant to the Guarantee and Collateral Agreement, Grantors are required to execute and deliver to Agent, for the benefit of the Lenders, this Trademark Security Agreement;

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor hereby agrees as follows:

 

D-1


1. DEFINED TERMS . All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Guarantee and Collateral Agreement or, if not defined therein, in the Loan Agreement, and this Trademark Security Agreement shall be subject to the rules of construction set forth in Section  1.4 of the Loan Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis .

2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL . Each Grantor hereby unconditionally grants, assigns, and pledges to Agent, for the benefit each Lender, to secure the Obligations, a continuing security interest (referred to in this Trademark Security Agreement as the “ Security Interest ”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (excluding any Excluded Assets, collectively, the “ Trademark Collateral ”):

(a) all of its Trademarks and Trademark Intellectual Property Licenses to which it is a party including those referred to on Schedule I ;

(b) all goodwill of the business not inuring to the licensor, connected with the use of, and symbolized by, each Trademark and each Trademark Intellectual Property License; and

(c) all products and proceeds (as that term is defined in the Code) of the foregoing, including any claim by such Grantor against third parties for past, present or future (i) infringement or dilution of any Trademark or any Trademarks exclusively licensed under any Intellectual Property License, including right to receive any damages, to the extent permitted by such license, (ii) injury to the goodwill associated with any Trademark, or (iii) right to receive license fees, royalties, and other compensation under any Trademark Intellectual Property License, to the extent permitted by such license.

3. SECURITY FOR OBLIGATIONS . This Trademark Security Agreement and the Security Interest created hereby secures the payment and performance of the Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Trademark Security Agreement secures the payment of all amounts which constitute part of the Obligations and would be owed by Grantors, or any of them, to Agent, the Lenders or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

4. SECURITY AGREEMENT . The Security Interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Lenders, pursuant to the Guarantee and Collateral Agreement. Each Grantor hereby acknowledges and

 

D-2


affirms that the rights and remedies of Agent with respect to the Security Interest in the Trademark Collateral made and granted hereby are more fully set forth in the Guarantee and Collateral Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any inconsistency between this Trademark Security Agreement and the Guarantee and Collateral Agreement, the Guarantee and Collateral Agreement shall control.

5. AUTHORIZATION TO SUPPLEMENT . If any Grantor shall obtain rights to any new trademarks, the provisions of this Trademark Security Agreement shall automatically apply thereto. Grantors shall give prompt notice in writing to Agent with respect to any such new trademarks or renewal or extension of any trademark registration. Without limiting Grantors’ obligations under this Section, Grantors hereby authorize Agent unilaterally to modify this Trademark Security Agreement by amending Schedule I to include any such new trademark rights of each Grantor. Notwithstanding the foregoing, no failure to so modify this Trademark Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I .

6. COUNTERPARTS . This Trademark Security Agreement is a Loan Document. This Trademark Security Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Trademark Security Agreement. Delivery of an executed counterpart of this Trademark Security Agreement by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Trademark Security Agreement. Any party delivering an executed counterpart of this Trademark Security Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Trademark Security Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Trademark Security Agreement.

7. CHOICE OF LAW AND VENUE AND JURY TRIAL WAIVER . THIS TRADEMARK SECURITY AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE AND JURY TRIAL WAIVER SET FORTH IN SECTION 14 OF THE LOAN AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS .

[signature page follows]

 

D-3


IN WITNESS WHEREOF, the parties hereto have caused this Trademark Security Agreement to be executed and delivered as of the day and year first above written.

 

GRANTORS:    

 

    By:                                                                                                         
    Name:                                                                                                    
    Title:                                                                                                      
   

 

    By:                                                                                                         
    Name:                                                                                                    
    Title:                                                                                                      
    ACCEPTED AND ACKNOWLEDGED BY:
AGENT:     Bank of America, N.A.
    By:                                                                                                         
    Name:                                                                                                    
    Title:                                                                                                      


SCHEDULE I

to

TRADEMARK SECURITY AGREEMENT

Trademark Registrations/Applications

 

Grantor

 

Country

 

Mark

  

Application/

Registration No.

  

App/Reg Date

Material Trade Names

Material Common Law Trademarks

Trademark Licenses


EXHIBIT E

to Security Agreement

PERFECTION CERTIFICATE

April [     ], 2017

Reference is hereby made to that certain Amended and Restated Guarantee and Collateral Agreement, dated as of the date hereof (the “ Security Agreement ”), among SCHOOL SPECIALTY, INC., a Delaware corporation (“ Parent ”), as a borrower, the subsidiaries of Parent party thereto as borrowers, the other guarantors party thereto and BANK OF AMERICA, N.A., as agent (the “ Agent ”). Capitalized terms used but not defined herein have the meanings assigned in each applicable Security Agreement.

As used herein, the term “ Companies ” means each Grantor (as defined in the Security Agreement).

The undersigned hereby certify to each Agent as follows:

1. Names . (a)The exact legal name of each Company, as such name appears in its respective certificate of incorporation or any other organizational document, is set forth in Schedule 1(a) . Each Company is (i) the type of entity disclosed next to its name in Schedule 1(a) and (ii) a registered organization except to the extent disclosed in Schedule 1(a) . Also set forth in Schedule 1(a) is the organizational identification number, if any, of each Company that is a registered organization, the federal taxpayer identification number of each Company and the jurisdiction of formation of each Company.

(b) Set forth in Schedule 1(b) hereto is any other corporate or organizational names each Company has had in the past five years, together with the date of the relevant change.

(c) Set forth in Schedule 1(c) is a list of all other names (including trade names or similar appellations) used by each Company, or any other business or organization to which each Company became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, at any time in the past five years. Also set forth in Schedule  1(c) is the information required by Section 1 of this certificate for any other business or organization to which each Company became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, at any time in the past five years. Except as set forth in Schedule 1(c) , no Company has changed its jurisdiction of organization at any time during the past twelve months.

2. Current Locations . (a)The chief executive office of each Company is located at the address set forth in Schedule 2(a) hereto.


(b) Set forth in Schedule 2(b) are all locations where each Company maintains any books or records relating to any Account.

(c) Set forth in Schedule 2(c) hereto are all other locations where each Company maintains any of the Collateral consisting of inventory or equipment, in each case with an aggregate value in excess of $250,000 at any one location.

(d) Set forth in Schedule 2(d) hereto are the names and addresses of all persons or entities other than each Company, such as lessees, consignees, warehousemen or purchasers of chattel paper, which have possession or are intended to have possession of any of the Collateral consisting of instruments, chattel paper, inventory or equipment, in each case with an aggregate value in excess of $250,000 at any one location.

3. Prior Locations . (a)Set forth in Schedule 3(a) is the information required by Schedule 2(a) or Schedule 2(b) with respect to each location or place of business previously maintained by any Company at any time during the past four months.

(b) Set forth in Schedule 3(b) is the information required by Schedule 2(c) or Schedule 2(d) with respect to each other location at which, or other person or entity with which, any of the Collateral consisting of inventory or equipment has been previously held at any time during the past twelve months.

4. UCC Filings . Financing statements attached as Schedule 4 have been prepared for filing in the proper Uniform Commercial Code filing offices in the jurisdictions identified in Schedule 5 hereof.

5. Schedule of Filings . Attached hereto as Schedule  5 is a schedule of the appropriate filing offices for the Uniform Commercial Code financing statements attached hereto as Schedule 4 .

6. Termination Statements . Attached hereto as Schedule 6(a) are the termination statements in the appropriate form for filing in each applicable jurisdiction identified in Schedule 6(b) hereto with respect to each Lien described therein.

7. Stock Ownership and Other Equity Interests . Attached hereto as Schedule 7 is a true and correct list of each of all of the authorized, and the issued and outstanding, stock, partnership interests, limited liability company membership interests or other equity interest of each Company (other than Parent) and its respective Subsidiaries and the record and beneficial owners of such stock, partnership interests, membership interests or other equity interests.

8. Instruments and Tangible Chattel Paper . Attached hereto as Schedule 8 is a true and correct list of all promissory notes, instruments (other than checks to be deposited in the ordinary course of business), tangible chattel paper, electronic chattel paper and other evidence of indebtedness, in each case in excess of $250,000 on an individual basis, held by each Company as of the closing date, including all intercompany notes between or among any two or more Companies.


9. Intellectual Property . (a)Attached hereto as Schedule 9(a) is a schedule setting forth all of each Company’s Patents and Trademarks (each as defined in the Security Agreement) registered with the United States Patent and Trademark Office, including the name of the registered owner and the registration number of each such Patent and Trademark owned by each Company.

(b) Attached hereto as Schedule 9(b) is a schedule setting forth all titles of each Company’s material (in the aggregate) United States registered Copyrights (as defined in the Security Agreement), including the name of the registered owner and the registration number of each such Copyright.

(c) [Attached hereto as Schedule 9(c) is a schedule setting forth all of each Company’s material Exclusive Copyright Licenses (as defined in the Security Agreement) including in each case (i) the name and date of and the parties to such Exclusive Copyright License and (ii) to the extent referenced in such Exclusive Copyright License, the titles and the United States Copyright registration numbers, of all works of authorship or copyrights that are the subject of such Exclusive Copyright License.] 3

10. Commercial Tort Claims . Attached hereto as Schedule 10 is a true and correct list of all Commercial Tort Claims (as defined in the Security Agreement) held by each Company, with a value reasonably estimated to exceed $250,000 on an individual basis, including a brief description thereof.

11. Deposit Accounts, Securities Accounts and Commodity Accounts . Attached hereto as Schedule 11 is a true and complete list of all Deposit Accounts, Securities Accounts and Commodity Accounts (each as defined in the Security Agreement) maintained by each Company (excluding any bankruptcy reserve and distribution accounts established in connection with the Plan of Reorganization ), including the name of each institution where each such account is held, the type of each such account and the name of each entity that holds each account.

12. Letter-of-Credit Rights . Attached hereto as Schedule 12 is a true and correct list of all Letters of Credit issued in favor of each Company, as beneficiary thereunder, in each case with a face amount in excess of $250,000.

[The Remainder of this Page has been intentionally left blank]

 

3   Not required to be included in the Perfection Certificate delivered at Closing.


IN WITNESS WHEREOF, we have hereunto signed this Perfection Certificate as of the date first written above.

 

[GRANTOR]
By:  

 

  Name:
  Title:

 

E-4


EXHIBIT F

to Security Agreement

ISSUER CONTROL AGREEMENT

ISSUER CONTROL AGREEMENT dated as of             ,              among                      (the “ Grantor ”), TCW ASSET MANAGEMENT COMPANY, LLC, as Agent under the Guarantee and Collateral Agreement, dated as of April     , 2017, among the Grantor, TCW ASSET MANAGEMENT COMPANY, LLC and the other parties thereto (as amended, restated, supplemented or otherwise modified from time to time, the “ First Lien Security Agreement ”) (in such capacity, the “ First Lien Agent ”), BANK OF AMERICA, N.A., as Agent under the Amended and Restated Guarantee and Collateral Agreement, dated as of April     , 2017, among the Grantor, BANK OF AMERICA, N.A. and the other parties thereto (as amended, restated, supplemented or otherwise modified from time to time, the “ Second Lien Security Agreement ” and, together with the First Lien Security Agreement, the “ Security Agreements ”) (in such capacity, the “ Second Lien Agent ”, and together with the First Lien Agent, the “ Agents ”, and each, an “ Agent ”) and                      (the “ Issuer ”). All references herein to the “ UCC ” refer to the Uniform Commercial Code as in effect from time to time in [Issuer’s jurisdiction of incorporation].

W I T N E S S E T H :

WHEREAS, the Grantor is the registered holder of [specify Pledged Uncertificated Securities issued by the Issuer] issued by the Issuer (the “ Securities ”);

WHEREAS, pursuant to the Security Agreements, the Grantor has granted to the Agents a continuing security interest (the “ Transaction Lien ”) in all right, title and interest of the Grantor in, to and under the Securities, whether now existing or hereafter arising; and

WHEREAS, the parties hereto are entering into this Agreement in order to perfect the Transaction Lien on the Securities;

NOW, THEREFORE, the parties hereto agree as follows:

Section 1. Nature of Securities . The Issuer confirms that (i) the Securities are “uncertificated securities” (as defined in Section 8-102 of the UCC) and (ii) the Grantor is registered on the books of the Issuer as the registered holder of the Securities.

Section 2. Instructions . (i) The Issuer agrees to comply with any “instruction” (as defined in Section 8-102 of the UCC) originated by the Controlling Secured Party and relating to the Securities without further consent by the Grantor or any other person; provided that notwithstanding the foregoing provisions of this Section 2 or any provisions herein to the contrary, prior to the Issuer’s receipt of a Notice of Termination (defined below) from the First Lien Agent, the Issuer shall not comply with any such instructions from the Second Lien Agent unless such instructions are accompanied by a written approval thereof of the First Lien Agent. The Grantor consents to the foregoing agreement by the Issuer.

 

5


(ii) As used herein, the term “ Controlling Secured Party ” means the First Lien Agent until such time as the Issuer has received written notice, in substantially the form attached as Annex A hereto (a “ Notice of Termination ”), from the First Lien Agent stating in substance that henceforth the Second Lien Agent will be the Controlling Secured Party, and has had a reasonable time (not to exceed one (1) Business Day) to act thereon, at which time the Second Lien Agent will replace the First Lien Agent as the Controlling Secured Party for purposes of this Agreement and the First Lien Agent shall have no further rights (including, without limitation, ability to give instructions pursuant to Section 2(i)) or obligations under this Agreement, other than obligations which arose or which derive from events which occurred while the First Lien Agent was the Controlling Secured Party. Until the First Lien Agent has delivered a Notice of Termination, the Second Lien Agent irrevocably instructs the Issuer to adhere to the instructions of the First Lien Agent.

Section 3. Conflicting Orders or Instructions . Notwithstanding anything to the contrary contained herein, if at any time the Issuer shall receive conflicting orders or instructions from the Grantor and either Agent, the Issuer shall follow the orders or instructions of such Agent, not the Grantor.

Section 4. Waiver of Lien; Waiver of Set-off . The Issuer waives any security interest, lien or right of set-off that it may now have or hereafter acquire in or with respect to the Securities. The Issuer’s obligations in respect of the Securities will not be subject to deduction, set-off or any other right in favor of any person other than the Agents.

Section 5. Choice of Law . This Agreement shall be governed by the laws of [Issuer’s jurisdiction of incorporation].

Section 6. Conflict with Other Agreements . There is no agreement (except this Agreement) between the Issuer and the Grantor with respect to the Securities [except for [identify any other existing agreements] (the “ Existing Other Agreements ”)]. In the event of any conflict between this Agreement (or any portion hereof) and any other agreement [(including any Existing Other Agreement)] between the Issuer and the Grantor with respect to the Securities, whether now existing or hereafter entered into, the terms of this Agreement shall prevail.

Section 7. Amendments . No amendment or modification of this Agreement or waiver of any right hereunder shall be binding on any party hereto unless it is in writing and is signed by all the parties hereto.

Section 8. Notice of Adverse Claims . Except for the claims and interests of the Agents and the Grantor in the Securities, the Issuer does not know of any claim to, or interest in, the Securities. If any person asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, attachment, execution or similar process) against the Securities, the Issuer will promptly notify the Secured Party and the Grantor thereof.

Section 9. Maintenance of Securities . In addition to, and not in lieu of, the obligation of the Issuer to honor instructions as agreed in Section 2 hereof, the Issuer agrees as follows:

 

6


(i) Grantor Instructions; Notice of Exclusive Control. So long as the Issuer has not received a Notice of Exclusive Control (as defined below), the Issuer may comply with instructions of the Grantor or any duly authorized agent of the Grantor in respect of the Securities. After the Issuer receives a written notice from the Controlling Secured Party that it is exercising exclusive control over the Securities (a “ Notice of Exclusive Control ”), the Issuer will cease complying with instructions of the Grantor or any of its agents. 2

(ii) Non-Cash Dividends and Distributions. The Issuer shall deliver to the Controlling Secured Party all non-cash dividends, interest and other non-cash distributions paid or made upon or with respect to the Securities.

(iii) Voting Rights. Until the Issuer receives a Notice of Exclusive Control, the Grantor shall be entitled to direct the Issuer with respect to voting the Securities.

(iv) Statements and Confirmations. The Issuer will promptly send copies of all statements and other correspondence concerning the Securities simultaneously to each of the Grantor and the Agents at their respective addresses specified in Section 12 hereof.

(v) Tax Reporting. All items of income, gain, expense and loss recognized in respect of the Securities shall be reported to the Internal Revenue Service and all state and local taxing authorities under the name and taxpayer identification number of the Grantor.

Section 10. Representations, Warranties and Covenants of the Issuer . The Issuer makes the following representations, warranties and covenants:

(i) This Agreement is a valid and binding agreement of the Issuer enforceable in accordance with its terms.

(ii) The Issuer has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other person relating to the Securities pursuant to which it has agreed, or will agree, to comply with instructions (as defined in Section 8-102 of the UCC) of such person. The Issuer has not entered into any other agreement with the Grantor or either Agent to limit or condition the obligation of the Issuer to comply with instructions as agreed in Section 2 hereof.

Section 11. Successors . This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.

 

 

2   Delete subsection (i) if the Grantor will not be permitted to sell the Securities.

 

7


Section 12. Notices. Each notice, request or other communication given to any party hereunder shall be in writing (which term includes facsimile or other electronic transmission) and shall be effective (i) when delivered to such party at its address specified below, (ii) when sent to such party by facsimile or other electronic transmission, addressed to it at its facsimile number or electronic address specified below, and such party sends back an electronic confirmation of receipt or (iii) ten days after being sent to such party by certified or registered United States mail, addressed to it at its address specified below, with first class or airmail postage prepaid:

Grantor:

First Lien Agent:

Second Lien Agent:

Issuer:

Any party may change its address, facsimile number and/or e-mail address for purposes of this Section by giving notice of such change to the other parties in the manner specified above.

Section 13. Termination . The rights and powers granted herein to the Agents (i) have been granted in order to perfect the Transaction Lien, (ii) are powers coupled with an interest and (iii) will not be affected by any bankruptcy of the Grantor or any lapse of time. The obligations of the Issuer to the First Lien Agent hereunder shall continue in effect until the security interest of the First Lien Agent in the Securities has been terminated pursuant to the terms of the First Lien Security Agreement and the First Lien Agent has notified the Issuer of such termination by delivering to the Issuer a Notice of Termination. The obligations of the Issuer to the Second Lien Agent pursuant to this Agreement shall continue in effect until the security interest of the Second Lien Agent in the Securities has been terminated pursuant to the terms of the Second Lien Security Agreement and the Second Lien Agent has notified the Issuer of such termination by delivering to the Issuer a Notice of Termination. Each Agent agrees to provide a Notice of Termination in substantially the form of Annex B hereto to the Issuer, with a copy to the Grantor, upon the request of the Grantor on or after the termination of such Agent’s security interest in the Securities pursuant to the terms of the applicable Security Agreement.

Section 14. Counterparts . This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Agreement by signing and delivering one or more counterparts.

(remainder of page intentionally blank; signature pages follow)

 

8


[NAME OF GRANTOR]
By:  

 

  Name:    
  Title:    
TCW ASSET MANAGEMENT COMPANY, LLC, as First Lien Agent
By:  

 

  Name:    
  Title:    
By:  

 

  Name:    
  Title:    

BANK OF AMERICA, N.A.,

as Second Lien Agent

By:  

 

  Name:    
  Title:    
[NAME OF ISSUER]
By:  

 

  Name:    
  Title:    

 

9


Exhibit A

[Letterhead of Controlling Secured Party]

[Date]

[Name and Address of Issuer]

Attention:                                         

Re:   Notice of Exclusive Control

Ladies and Gentlemen:

As referenced in the Issuer Control Agreement dated as of             ,              among [name of Grantor], BANK OF AMERICA, N.A., TCW ASSET MANAGEMENT COMPANY, LLC and you (a copy of which is attached), we notify you that we will hereafter exercise exclusive control over [specify Pledged Uncertificated Securities] registered in the name of [name of Grantor] (the “ Securities ”). You are instructed not to accept any directions or instructions with respect to the Securities from any person other than the undersigned unless otherwise ordered by a court of competent jurisdiction.

You are instructed to deliver a copy of this notice by facsimile transmission to [name of Grantor].

Very truly yours,

 

[CONTROLLING SECURED PARTY],

as Controlling Secured Party

By:  

 

  Name:
  Title:

cc: [name of Grantor]

 

10


ANNEX A

TO ISSUER ACCOUNT CONTROL AGREEMENT

[Letterhead of the applicable Agent]

[Date]

[Name and Address of Issuer]

Attention:

Re:   Notice of Termination of Issuer Control Agreement

This letter serves as notice to the Issuer in accordance with Section 13 of the Issuer Control Agreement dated as of                 ,              (the “ Agreement ”) among [name of Grantor], you, BANK OF AMERICA, N.A. and TCW ASSET MANAGEMENT COMPANY, LLC (a copy of which is attached) (capitalized terms used but not defined herein shall have the meaning assigned thereto in the Agreement) that [each Agent][the First Lien Agent][the Second Lien Agent] is hereby permanently releasing its control over the Securities and releases the Issuer from any further obligation to comply with instructions originated by [each Agent][the First Lien Agent][the Second Lien Agent] with respect to the Securities. [[The Agreement is terminated and you have no further obligations to the Agents pursuant to the Agreement.] 4 [The Agreement is terminated and you have no further obligations to the [First Lien Agent][Second Lien Agent] pursuant to the Agreement.] 5 Notwithstanding any previous instructions to you, you are hereby instructed to accept all future directions with respect to the Securities from [name of Grantor]] 6

 

4   Use if from both Agents.
5   Use if from one agent, and the other Agent has previously delivered a Notice of Termination to the Financial Institution.
6  

Use if from both Agents, or if the other Agent has previously delivered a Notice of Termination to the Financial Institution.

 

F-1


[The Agreement shall remain in effect until you are in receipt of notices in the form of this letter from both the First Lien Agent and the Second Lien Agent. You have no further obligations to the [First Lien Agent][Second Lien Agent]] 7 . This notice terminates any obligations you may have to the undersigned with respect to the Securities, however nothing contained in this notice shall alter any obligations which you may otherwise owe to [name of Grantor] pursuant to any other agreement.

 

Very truly yours,

[TCW ASSET MANAGEMENT

COMPANY, LLC, as First Lien Agent

By:                                                                                                   
Name:
Title:]
[BANK OF AMERICA, N.A., as Second Lien Agent
By:                                                                                                   
Name:
Title:]

 

 

7   Use if from one Agent, and the other Agent has not delivered a Notice of Termination to the Financial Institution.

 

F-2