Bond Builders FirstSource, Inc. 6.75% ( USU08985AG56 ) in USD

Builders FirstSource, Inc.

102.255 % ⇌

United States

USU08985AG56 ( in USD )

6.75% per year ( payment 2 times a year)

31/05/2027

Prospectus brochure of the bond Builders Firstsource INC USU08985AG56 en USD 6.75%, maturity 31/05/2027

2 000 USD

475 000 000 USD

U08985AG5

BB+ ( Non-investment grade speculative )

N/A

01/12/2025 ( In 138 days )

Builders FirstSource, Inc. is a leading supplier and manufacturer of structural building products and components, serving residential and commercial markets primarily in the United States.

Builders FirstSource Inc. (CUSIP: U08985AG5, ISIN: USU08985AG56) issued a USD 475,000,000 6.75% bond maturing May 31, 2027, currently trading at 102.255% with a minimum purchase size of 2,000 bonds and a semi-annual coupon payment, rated BB+ by Standard & Poor's.

EX-10.1
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EX-10.1 2 d772644dex101.htm EX-10.1
Exhibit 10.1
EXECUTION VERSION
$75,000,000
Builders FirstSource, Inc.
6.750% Senior Secured Notes due 2027
Purchase Agreement
July 11, 2019
Credit Suisse Securities (USA) LLC
As Representative of the
several Initial Purchasers listed
in Schedule 1 hereto
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
Builders FirstSource, Inc., a Delaware corporation (the "Issuer"), proposes to issue and sell to the several initial purchasers listed in Schedule 1
hereto (the "Initial Purchasers"), for whom Credit Suisse Securities (USA) LLC is acting as representative (the "Representative"), $75,000,000 principal
amount of additional notes (the "Securities") of the same class as the Issuer's previously issued 6.750% Senior Secured Notes due 2027 (the "Existing
Securities").
The Securities are to be issued pursuant to that certain indenture, dated May 30, 2019 (the "Base Indenture"), among the Issuer, the guarantors
listed in Schedule 2 hereto (the "Guarantors") and Wilmington Trust, National Association, as trustee (the "Trustee") and as collateral agent (the
"Collateral Agent"), as supplemented by a supplemental indenture, to be dated as of the Closing Date (as defined below) (the "Supplemental
Indenture"), to be entered into among the Issuer, the Guarantors, the Trustee and the Collateral Agent. The Base Indenture, as supplemented by the
Supplemental Indenture, is herein referred to as the "Indenture". The Securities will constitute "Additional Notes" under the Base Indenture and, except
as described in the Time of Sale Information and the Offering Circular, will have terms identical to the Existing Securities and will be treated as a single
class of debt securities for all purposes under the Indenture.
The obligations of the Issuer in respect of the Securities will be fully, irrevocably and unconditionally guaranteed (the "Guarantees") on a senior
secured basis, jointly and severally, by (i) the Guarantors and (ii) any domestic subsidiary of the Issuer formed or acquired after the Closing Date that is
required to execute a supplemental indenture to provide a Guarantee in accordance with the terms of the Indenture, and their respective successors and
assigns. This Agreement is to confirm the agreement concerning the purchase of the Securities from the Issuer by the Initial Purchasers. In addition, the
Issuer, the Guarantors and the Collateral Agent are parties to a collateral agreement, dated as of May 30, 2019 (the "Notes Collateral Agreement").
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The Securities and the Guarantees will be secured by (i) a first-priority security interest (subject to Permitted Liens (as defined in the Base
Indenture)) in substantially all of the assets of the Issuer and the Guarantors other than the ABL Priority Collateral (as defined below) and other
Excluded Assets (as defined in the Time of Sale Information and the Offering Circular) (the "Notes Collateral") and (ii) a second-priority security
interest (subject to Permitted Liens) relative to the liens securing that certain asset-based facility (the "ABL Facility") under the Amended and Restated
Credit Agreement, dated as of July 31, 2015 (as amended by Amendment No. 1, dated as of March 22, 2017, Amendment No. 2, dated as of April 24,
2019, and as further amended, modified and supplemented from time to time, the "ABL Credit Agreement"), among, inter alios, the Issuer, as borrower,
the lending institutions from time to time party thereto and SunTrust Bank, as administrative agent and collateral agent (the "ABL Agent"), in the assets
of the Issuer and the Guarantors (the "ABL Priority Collateral" and, together with the Notes Collateral, the "Collateral") that secure the ABL Facility on
a first-priority basis (including, subject to certain exceptions, accounts receivable, inventory, certain other related assets and proceeds thereof), in each
case, as more particularly described in the Time of Sale Information and the Offering Circular. The Securities will rank pari passu in right of payment
with any existing and future senior indebtedness of the Issuer and the Guarantors, including the Existing Securities, the Issuer's 5.625% Senior Secured
Notes Due 2024 (the "Existing Secured Notes"), the ABL Facility, that certain term loan facility (the "Term Loan Facility" and, together with the ABL
Facility, the "Senior Credit Facilities") under the Second Amended and Restated Term Loan Credit Agreement, dated as of February 23, 2017 (as
amended, modified and supplemented from time to time, the "Term Loan Credit Agreement" and, together with the ABL Credit Agreement, the "Senior
Credit Agreements") among, the Issuer, as borrower, the lenders from time to time party thereto and Deutsche Bank AG New York Branch, as
administrative agent (the "Term Administrative Agent"). The rights of holders of the Securities to the Collateral will be documented by security
agreements, pledge agreements, share pledges, debentures and other instruments evidencing or creating or purporting to create a security interest in
favor of the Collateral Agent as described in the Time of Sale Information and the Offering Circular (collectively, the "Security Documents"), each in
favor of the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Securities.
The liens on the Collateral securing the Securities will be subject to (i) that certain ABL/Bond Intercreditor Agreement, dated as of May 29, 2013,
among, inter alios, the Issuer, the other grantors party thereto, the ABL Agent and the other parties thereto, as amended by that certain Lien Sharing and
Priority Confirmation Joinder, dated as of July 31, 2015, among the Issuer, the other grantors party thereto, the Term Administrative Agent, the ABL
Agent and the other parties thereto, as further amended by that certain Lien Sharing and Priority Confirmation Joinder, dated as of August 22, 2016
among the Issuer, the other grantors party thereto, the Term Administrative Agent, the ABL Agent and the other parties thereto, and as further amended
by that certain Lien Sharing and Priority Confirmation Joinder, dated as of May 30, 2019, among the Issuer, the other grantors party thereto, the
Collateral Agent, the Term Administrative Agent, the ABL Agent and the other parties thereto (the "Existing ABL/Bond Intercreditor Agreement" and,
as amended by the Joinder to the Existing ABL/Bond Intercreditor Agreement (as defined below), the "ABL/Bond Intercreditor Agreement") and
(ii) that certain Pari Passu Intercreditor
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Agreement, dated as of July 31, 2015, among the Issuer, the other grantors party thereto, the Term Administrative Agent and the other parties thereto, as
amended by that certain Additional Authorized Representative Agent Joinder Agreement No. 1, dated as of August 22, 2016, among the Issuer, the Term
Administrative Agent and the other parties thereto, and as further amended by that certain Additional Authorized Representative Agent Joinder
Agreement No. 2, dated as of May 30, 2019, among the Issuer, the Term Administrative Agent, the Collateral Agent and the other parties thereto (the
"Existing Pari Passu Intercreditor Agreement" and, as amended by the Joinder to the Existing Pari Passu Intercreditor Agreement (as defined below), the
"Pari Passu Intercreditor Agreement"; the Pari Passu Intercreditor Agreement and the ABL/Bond Intercreditor Agreement are collectively referred to as
the "Intercreditor Agreements"). On the Closing Date, the Collateral Agent will enter into a Lien Sharing and Priority Confirmation Joinder to the
Existing ABL/Bond Intercreditor Agreement (the "Joinder to the Existing ABL/Bond Intercreditor Agreement") and an Additional Authorized
Representative Agent Joinder Agreement to the Existing Pari Passu Intercreditor Agreement (the "Joinder to the Existing Pari Passu Intercreditor
Agreement" and, together with the Joinder to the Existing ABL/Bond Intercreditor Agreement, the "Joinders"). Upon execution of the Joinders and the
execution and delivery of the Intercreditor Agreement Officer's Certificates (as defined on Schedule 3 hereto), the liens on the Collateral securing the
Securities and the Guarantees will be subject to the Intercreditor Agreements.
For purposes of this Agreement, the term "Transactions" means (a) the issuance and sale of the Securities; (b) the redemption of the Existing
Secured Notes as set forth in the Time of Sale Information and the Offering Circular (the "Redemption"); and (c) the payment of all fees and expenses
related to any of the foregoing. For purposes of this Agreement (i) the term "Transaction Documents" means this Agreement, the Securities (including
the Guarantees), the Base Indenture, the Supplemental Indenture, the Intercreditor Agreements, the Joinders, the Notes Collateral Agreement and the
other Security Documents and (ii) the term "New Transaction Documents" means this Agreement, the Securities (including the Guarantees), the
Supplemental Indenture and the Joinders.
The Securities will be sold to the Initial Purchasers without being registered under the Securities Act of 1933, as amended (the "Securities Act"),
in reliance upon an exemption therefrom. The Issuer has prepared a preliminary offering circular dated July 11, 2019 (the "Preliminary Offering
Circular") and will prepare a final offering circular dated the date hereof (the "Offering Circular") setting forth information concerning the Issuer, the
Guarantors, the Securities, the Guarantees, the Collateral and the other Transaction Documents and Transactions. Copies of the Preliminary Offering
Circular have been, and copies of the Offering Circular will be, delivered by the Issuer to the Initial Purchasers pursuant to the terms of this Agreement.
The Issuer hereby confirms that it has authorized the use of the Preliminary Offering Circular, the other Time of Sale Information and the Offering
Circular in connection with the offering and resale of the Securities by the Initial Purchasers in the manner contemplated by this Agreement. Capitalized
terms used but not defined herein shall have the meanings given to such terms in the Preliminary Offering Circular.
At the time when sales of the Securities were first made (the "Time of Sale"), or prior thereto, the Issuer had prepared the following information
(collectively, the "Time of Sale Information"): the Preliminary Offering Circular, as supplemented and amended by the written communications listed on
Annex A hereto.
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All references herein to the terms "Time of Sale Information" and "Offering Circular" shall be deemed to mean and include all information filed
under the Exchange Act prior to the Time of Sale and incorporated by reference in the Time of Sale Information (including the Preliminary Offering
Circular) or the Offering Circular (as the case may be), and all references herein to the terms "amend," "amendment" or "supplement" with respect to
the Offering Circular shall be deemed to mean and include all information filed under the Exchange Act after the Time of Sale and incorporated by
reference in the Offering Circular.
The Issuer and the Guarantors hereby confirm their agreement with the several Initial Purchasers concerning the purchase and resale of the
Securities, as follows:
1. Purchase and Resale of the Securities.
(a) The Issuer agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on
the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly,
to purchase from the Issuer the respective principal amount of Securities set forth opposite such Initial Purchaser's name in Schedule 1 hereto at a price
equal to 103.250% of the principal amount thereof plus accrued interest from May 30, 2019 to the Closing Date (the "Purchase Price"). The Issuer will
not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
(b) The Issuer understands that the Initial Purchasers intend to offer the Securities for resale on the terms set forth in the Time of Sale Information.
Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) it is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act (a "QIB") and an accredited investor within
the meaning of Rule 501(a) of Regulation D under the Securities Act ("Regulation D");
(ii) it has not, directly or indirectly, solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by
means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a
public offering within the meaning of Section 4(a)(2) of the Securities Act; and
(iii) it has not, directly or indirectly, solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities as part
of the initial offering except:
(A)
within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under the
Securities Act ("Rule 144A") and in connection with each such sale, it has taken or will take reasonable steps to ensure that
the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A;
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(B)
to persons inside the United States that are accredited investors (as defined in Rule 501(a)(1),(2), (3), (7) and (8) under the
Securities Act); or
(C)
in accordance with the restrictions set forth in Annex C hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Issuer and, for purposes of the "no registration" opinions to be delivered to the Initial
Purchasers pursuant to Sections 6(f) and 6(g), counsel for the Issuer and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of
the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph
(b) above (including Annex C hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Issuer acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser
and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser; provided that such offers and sales shall be
made in accordance with the provisions of this Agreement (including Annex C hereto).
(e) The Issuer and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm's length contractual
counterparty to the Issuer and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining
the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuer or the Guarantors or any other person in connection
therewith. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuer or the Guarantors or any other person as to any
legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuer and the Guarantors shall consult with their own advisors
concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby,
and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Issuer or the Guarantors with respect
thereto. Any review by the Representative or any Initial Purchaser of the Issuer, the Guarantors and the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall
not be on behalf of the Issuer, the Guarantors or any other person.
2. Payment and Delivery.
(a) Payment for and delivery of the Securities will be made at the offices of Cahill Gordon & Reindel LLP at 10:00 A.M., New York City time, on
July 25, 2019 or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representative and the
Issuer may agree upon in writing. The time and date of such payment and delivery is referred to herein as the "Closing Date" and the time of Closing on
the Closing Date is referred to herein as the "Closing."
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(b) Payment for the Securities shall be made by payment of the Purchase Price to the account or accounts specified by the Issuer by wire transfer
in immediately available funds against delivery to the nominee of The Depository Trust Company ("DTC"), for the account of the Initial Purchasers, of
one or more global notes representing the Securities (collectively, the "Global Note"), with any transfer taxes payable in connection with the sale of the
Securities duly paid by the Issuer. The Global Note will be made available for inspection by the Representative not later than 1:00 P.M., New York City
time, on the business day prior to the Closing Date.
3. Representations and Warranties of the Issuer and the Guarantors. The Issuer and the Guarantors hereby, jointly and severally, represent and
warrant to each Initial Purchaser that, as of the Time of Sale and as of the Closing Date:
(a) Preliminary Offering Circular, Time of Sale Information and Offering Circular. The Time of Sale Information, at the Time of Sale, did not, and
at the Closing Date, will not, and the Offering Circular, as of its date and as of the Closing Date, will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance
upon and in conformity with information relating to any Initial Purchaser furnished to the Issuer in writing by or on behalf of such Initial Purchaser
through the Representative expressly for use in the Time of Sale Information or the Offering Circular (it being understood and agreed that the only such
information consists of the information described as such in Section 7(b)).
(b) Additional Written Communications. The Issuer and the Guarantors (including their respective agents and representatives, other than the Initial
Purchasers in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize,
approve or refer to any written communication that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication
by the Issuer and the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an "Issuer
Written Communication") other than (i) the Preliminary Offering Circular, (ii) the Offering Circular, (iii) the documents listed on Annex A hereto,
including the term sheet substantially in the form of Annex B hereto, which constitute part of the Time of Sale Information and (iv) any electronic road
show or other written communications, in each case used in accordance with Section 4(c) hereof. Each such Issuer Written Communication, when taken
together with the Time of Sale Information at the Time of Sale, did not, and at the Closing Date will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in each
such Issuer Written Communication in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Issuer in
writing by or on behalf of such Initial Purchaser through the Representative expressly for use in any Issuer Written Communication (it being understood
and agreed that the only such information consists of the information described as such in Section 7(b)). No Issuer Written Communication contains any
information that conflicts with the Time of Sale Information or the Offering Circular.
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(c) Financial Statements. The financial statements and the related notes thereto of the Issuer and its subsidiaries, included or incorporated by
reference in each of the Time of Sale Information and the Offering Circular present fairly in all material respects the financial position of the Issuer and
its subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods covered
thereby; the other financial information included or incorporated by reference in each of the Time of Sale Information and the Offering Circular has
been derived from the accounting records of the Issuer and its subsidiaries and presents fairly in all material respects the information shown thereby.
(d) No Material Adverse Change. Since the date of the most recent financial statements of the Issuer included or incorporated by reference in each
of the Time of Sale Information and the Offering Circular, there has not been any Material Adverse Effect (as defined below) or any change or
development that is reasonably likely to result in any Material Adverse Effect, the Issuer and the Guarantors have not incurred or become subject to any
material liabilities that have not been disclosed in the Time of Sale Information and the Offering Circular and no dividend or distribution of any kind has
been declared, paid or made by the Issuer, the Guarantors or their subsidiaries on any class of stock.
(e) Organization and Good Standing. Each of the Issuer and its subsidiaries (A) has been duly incorporated or formed and is validly existing as a
corporation or other entity in good standing under the laws of its jurisdiction of incorporation or formation, (B) has all requisite corporate or other power
and authority to carry on its business as it is currently being conducted and as described in the Time of Sale Information and the Offering Circular and to
own, lease and operate its properties and (C) is duly qualified and is in good standing as a foreign corporation or other entity authorized to do business in
each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except, in the case of each of
clauses (B) and (C), where the failure to be so qualified, in good standing or have such power of authority would not reasonably be expected to result,
individually or in the aggregate, in a material adverse effect on the business, results of operations or condition (financial or otherwise) of the Issuer or
any of its subsidiaries, taken as a whole, or materially and adversely affect the ability of the Issuer and the Guarantors to perform their obligations under
the Transaction Documents (a "Material Adverse Effect"). The only material subsidiaries the Issuer owns or controls, directly or indirectly, are listed in
Schedule 3 to this Agreement.
(f) Capitalization. All of the outstanding shares of capital stock of each subsidiary of the Issuer are owned, directly or indirectly, by the Issuer free
and clear of any security interest, claim, lien, limitation on voting rights or encumbrance (collectively, "Liens") (other than pursuant to the Senior Credit
Agreements (as described in each of the Time of Sale Information and the Offering Circular), the Indenture (as described in each of the Time of Sale
Information and the Offering Circular), the Security Documents and pursuant to the indenture and the security documents governing the Existing
Secured Notes); and all such securities have been duly authorized, validly issued and are fully paid and nonassessable and were not issued in violation of
any preemptive or similar rights.
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The Issuer has the capitalization as set forth in each of the Time of Sale Information and the Offering Circular under the heading "Capitalization."
(g) Due Authorization. The Issuer and the Guarantors have all requisite corporate or other power and authority to execute and deliver the New
Transaction Documents and perform their obligations under the Transaction Documents, in each case to the extent a party thereto, including granting the
Liens and security interests to be granted by it pursuant to the Indenture and the Security Documents, and to perform their respective obligations
hereunder and thereunder and all action required to be taken for the due and proper authorization, execution and delivery of each of the New Transaction
Documents and the consummation of the transactions contemplated by the Transaction Documents has been, or will be by the Closing, duly and validly
taken.
(h) The Indenture. The Base Indenture has been duly authorized, executed and delivered by the Issuer and the Guarantors and, assuming the due
authorization, execution and delivery thereof by the Trustee and the Collateral Agent, constitutes the valid and binding agreement of the Issuer and the
Guarantors, enforceable against each of them in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting the rights of creditors generally and subject to general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) (collectively, the "Enforceability Exceptions"). The Supplemental Indenture will, as of
the Closing Date, be duly authorized by the Issuer and the Guarantors and, assuming the due authorization, execution and delivery thereof by the Trustee
and the Collateral Agent, when executed and delivered by the Issuer and the Guarantors, will be the valid and binding agreement of the Issuer and the
Guarantors, enforceable against each of them in accordance with its terms, subject to the Enforceability Exceptions.
(i) The Securities and the Guarantees. (i) The Securities will, as of the Closing Date, be duly authorized by the Issuer and, when duly executed,
authenticated, issued and delivered as provided in the Indenture and paid for as provided herein (assuming the due execution, authentication and
delivery of the Indenture and the Securities by the Trustee in accordance with the terms of the Indenture), will be validly issued and delivered and will
constitute valid and legally binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to the Enforceability
Exceptions, and will be entitled to the benefits of the Indenture; and (ii) the Guarantees will, as of the Closing Date, be duly authorized by the
Guarantors and, when the Indenture is duly executed and delivered by the Guarantors in accordance with its terms and upon execution, authentication
and delivery of the Securities in accordance with the Indenture (assuming due execution, authentication and delivery of the Indenture and the Securities
by the Trustee in accordance with the terms of the Indenture) and the issuance of the Securities in connection with the sale of the Securities to the Initial
Purchasers pursuant to this Agreement, will be validly issued and will constitute legally binding instruments of the Guarantors and will be entitled to the
benefits provided by the Indenture.
(j) Purchase Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Issuer and the Guarantors.
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(k) Descriptions of the Transaction Documents; Collateral. Each Transaction Document conforms in all material respects to the description
thereof contained in each of the Time of Sale Information and the Offering Circular (to the extent described therein). The Collateral conforms in all
material respects to the description thereof contained in each of the Time of Sale Information and the Offering Circular.
(l) No Violation or Default. Neither the Issuer nor any of its subsidiaries is (i) in violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Issuer or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any property or asset of the
Issuer or any of its subsidiaries is subject (including, without limitation, the Base Indenture and the Existing Securities); or (iii) in violation of any law
or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses
(ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(m) No Conflicts. The execution and delivery of the New Transaction Documents and performance by the Issuer and each of the Guarantors of
each of the Transaction Documents to which each is a party (including, but not limited to, the filing of any applicable financing statements or intellectual
property filings pursuant to the Security Documents), the issuance and sale of the Securities and the issuance of the Guarantees, the grant and perfection
of liens and security interests in the Collateral pursuant to the Security Documents and compliance by the Issuer and each of the Guarantors with the
terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance
upon any property or asset of the Issuer or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Issuer or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any property or
asset of the Issuer or any of its subsidiaries is subject (other than any lien or encumbrance created or imposed pursuant to the indenture and the security
documents governing the Existing Secured Notes, the Indenture, the Security Documents and the Senior Credit Agreements), (ii) result in any violation
of the provisions of the charter or by-laws or similar organizational documents of the Issuer or any of its subsidiaries or (iii) result in the violation of any
applicable law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case
of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(n) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is required for the execution and delivery of the New Transaction Documents or the performance by the Issuer and
each of the Guarantors of each of the Transaction Documents to which each is a party (including, but not limited to, the filing of any applicable
financing statements or intellectual property filings pursuant to the Security Documents), the issuance and sale of the Securities and the issuance of the
Guarantees, the grant and perfection of liens and security interests in the Collateral
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pursuant to the Security Documents and compliance by the Issuer and each of the Guarantors with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for such consents, approvals, authorizations, orders and registrations or qualifications
as may be required under applicable state securities laws in connection with the purchase and resale of the Securities by the Initial Purchasers, except
where the failure to obtain such authorization, approval, consent, order, registration, qualification or license or to make any such filing would not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the consummation of the transactions contemplated by, or
the fulfilment of the terms of, the Transaction Documents.
(o) Legal Proceedings. There are no legal, governmental or regulatory investigations, actions, suits or proceedings pending or, to the knowledge of
the Issuer, threatened or contemplated, to which the Issuer or any of its subsidiaries is or may be a party or to which any property of the Issuer or any of
its subsidiaries is or may be subject that, individually or in the aggregate, if determined adversely to the Issuer or any of its subsidiaries, would
reasonably be expected to have a Material Adverse Effect.
(p) Independent Accountants. PricewaterhouseCoopers LLP, who have certified certain financial statements of the Issuer and its subsidiaries, are
independent public accountants with respect to the Issuer and its subsidiaries, within the applicable rules and regulations adopted by the U.S. Securities
and Exchange Commission (the "Commission") and the Public Company Accounting Oversight Board (United States) and as required by the Securities
Act.
(q) Title to Property. Each of the Issuer, the Guarantors and their respective subsidiaries have good and marketable title in fee simple to, or have
valid leasehold interests in or have valid rights to lease or otherwise use, all items of real and personal property that are material to the respective
businesses of the Issuer, the Guarantors and their respective subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and
imperfections of title except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Issuer, the
Guarantors and their respective subsidiaries, (ii) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect,
(iii) are created pursuant to the Senior Credit Agreements and the documentation governing the Existing Secured Notes or (iv) are created pursuant to
the Indenture, the Notes Collateral Agreement and the Security Documents.
(r) Intellectual Property. Each of the Issuer, the Guarantors and their respective subsidiaries owns, possesses or has the right to employ all patents,
patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, software, systems or procedures), trademarks, service marks and trade names, computer programs, technical data and information
(collectively, the "Intellectual Property") necessary to conduct the business now operated by them except where the failure to own or possess such
intellectual property rights would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The use of the
Intellectual Property in connection with the business and operations of the Issuer, the Guarantors and their respective subsidiaries does not infringe on
the rights of any person, except such infringements as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
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