6. Lien Subordination.
Notwithstanding anything to the contrary in the Notes or the Purchase Agreement, any and all obligations of the Company to make any payments under or with respect to the Notes and the indebtedness of the Company hereunder or evidenced hereby or thereby shall be subject to (i) the First Lien/Second Lien Intercreditor Agreement, dated as of the Issuance Date (as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among the First Lien ABL Administrative Agent, the First Lien ABL Collateral Agents, the First Lien Term Loan Agent, and the Representative, and acknowledged and agreed to by the Company, Holdings and the other “Guarantors” from time to time party thereto, and, as set forth therein, subordinated in respect of liens to the obligations arising under that certain First Lien Term Loan Credit Agreement (as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “First Lien Term Loan Credit Agreement”), dated as of November 17, 2023, by and among the Company, Holdings, the other “Guarantors” from time to time party thereto, the financial institutions party thereto from time to time as lenders (the “First Lien Term Lenders”), and JEFFERIES FINANCE LLC, as administrative agent and as collateral agent (the “First Lien Term Loan Agent”) and that certain Credit Agreement (as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “First Lien ABL Credit Agreement”), dated as of May 22, 2023, by and among the Company, Holdings, the other “Guarantors” from time to time party thereto, the financial institutions and issuing banks party from time to time thereto as lenders (“First Lien ABL Lenders”), CITIBANK, N.A. (“Citi”), as administrative agent (“First Lien ABL Administrative Agent”), and Citi and PNC Bank, National Association as co-collateral agents (“First Lien ABL Collateral Agents”) and (ii) the ABL Increditor Agreement.
7. Incorporation by Reference.
Article III (Representations and Warranties), Article V (Affirmative Covenants), Article VI (Negative Covenants), Article VII (Holdings Covenant), and the definition of “Disqualified Institution”, in each case, of the First Lien Term Loan Credit Agreement (as in effect on the Issuance Date) are incorporated herein mutatis mutandis which shall mean, for the avoidance of doubt, that (I) among other necessary conforming changes having been made to such provisions and the constituent definitions thereof, (1) “Term Facilities” and “Loans” shall refer to the Loans made pursuant to the terms of the Notes hereunder, (2) “Administrative Agent” and “Collateral Agent” shall mean the Representative, (3) “Required Lenders” shall mean the Majority Holders referred to herein, (4) “Lead Arrangers” and “Lenders” shall mean the Representative, the Payee and each of their permitted successors and assigns hereunder (subject to the terms of the Note Documents) and (5) “Loan Documents” shall mean Note Documents hereunder and (II) actions not prohibited and the usage of any baskets and/or exceptions permitted, in each case, under the First Lien Term Loan Credit Agreement shall permit such actions and usage hereunder notwithstanding differences between the closing date thereunder and the Issuance Date hereunder and the difference in grantors and/or guarantors thereunder and hereunder. The Company and Holdings hereby acknowledge, agree and confirm that, by its execution of the Notes, the Company (a) as of the Issuance Date makes to the Payee the representations and warranties set forth in Article III of the First Lien Term Loan Credit Agreement (as in effect on the Issuance Date) applicable to it and confirms that such representations and warranties are true and correct in all material respects on the Issuance Date (without duplication of any materiality qualifiers), except to the extent that such representations and warranties expressly related to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date), and (b) shall be bound by all of the requirements, covenants, terms, provisions, and conditions contained in Article V (Affirmative Covenants), Article VI (Negative Covenants), and Article VII (Holdings Covenant) of the First Lien Term Loan Credit Agreement (as in effect on the Issuance Date), which are valid and binding agreements of Holdings and the Company, enforceable by the Representative against Holdings and the Company, subject to: (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered a proceeding in equity or at law), (iii) implied covenants of good faith and fair dealing, (iv) any foreign laws, rules and regulations as they relate to pledges of Equity Interests in Foreign Subsidiaries and (v) the Legal Reservations.
8. Events of Default.
The occurrence and continuation of any of the following shall constitute an “Event of Default” under the Notes:
(a) Failure to Pay Principal. Default is made in the payment of any principal of the Loan under any Note when and as the same becomes due and payable, whether at the due date thereof, at a date fixed for prepayment thereof, by acceleration thereof or otherwise;
(b) Voluntary Bankruptcy or Insolvency Proceedings. Holdings, the Company or any Guarantor:
(i) voluntarily commences any proceeding or files any petition seeking relief under any Debtor Relief Law;
(ii) consents to the institution of, or fails to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in subsection (c) of this Section 8;
(iii) applies for or consents to the appointment of a receiver, interim receiver, administrative receiver, monitor, compulsory manager, compulsory administrator, trustee, custodian, sequestrator, conservator or similar official for Holdings, the Company or any Guarantor or for a substantial part of the property or assets of Holdings, the Company or any Guarantor;
(iv) files an answer admitting the material allegations of a petition filed against it in any such proceeding;
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