Inotiv, Inc.

EX-10.1 · exhibit101-dipcreditagreem.htm

EX-10.1
 2
 exhibit101-dipcreditagreem.htm
 EX-10.1

 SUPERPRIORITY SECURED DEBTOR-IN-POSSESSION
 CREDIT AGREEMENT
 dated as of June 5, 2026,    
 among
 INOTIV, INC.,
 as the Borrower,
 THE OTHER GUARANTORS PARTY HERETO,
as Guarantors,
 THE LENDERS PARTY HERETO,
 and
 ACQUIOM AGENCY SERVICES LLC,
 as Administrative Agent and Collateral Agent

 TABLE OF CONTENTS
 Article I DEFINITIONS    1
 Section 1.01    Defined Terms    1
 Section 1.02    Classification of Loans and Borrowings    33
 Section 1.03    Terms Generally    33
 Section 1.04    Accounting Terms; GAAP    34
 Section 1.05    [Reserved]    34
 Section 1.06    Resolution of Drafting Ambiguities    34
 Section 1.07    Rounding    34
 Section 1.08    Currency Fluctuations    34
 Section 1.09    Divisions    35
 Article II THE CREDITS    35
 Section 2.01    Commitments    35
 Section 2.02    Loans    36
 Section 2.03    Borrowing Procedure    37
 Section 2.04    Evidence of Debt; Repayment of Loans    38
 Section 2.05    Premiums and Fees    38
 Section 2.06    Interest on Loans    39
 Section 2.07    Termination and Reduction of Commitments    40
 Section 2.08    Interest Elections    40
 Section 2.09    Repayment of Loans    41
 Section 2.10    Optional and Mandatory Prepayments of Loans    41
 Section 2.11    Alternate Rate of Interest    43
 Section 2.12    Increased Costs; Change in Legality    44
 Section 2.13    Breakage Payments    46
 Section 2.14    Payments Generally; Pro Rata Treatment; Sharing of Setoffs    46
 Section 2.15    Taxes    48
 Section 2.16    Mitigation Obligations; Replacement of Lenders    50
 Section 2.17    [Reserved]    53
 Section 2.18    [Reserved]    53
 Section 2.19    [Reserved]    53
 Section 2.20    [Reserved]    53
 Section 2.21    [Reserved]    53
 Section 2.22    Priority and Liens; No Discharge.    53
 Section 2.23    Exit Term Loan Facility Refinancing    54
 Article III REPRESENTATIONS AND WARRANTIES    55
 Section 3.01    Existence, Qualification and Power    55
 Section 3.02    Authorization; Enforceability    55
 Section 3.03    No Conflicts    55
 Section 3.04    Financial Statements; No Material Adverse Effect    55
 Section 3.05    Properties    56
 Section 3.06    Intellectual Property    57
 Section 3.07    Equity Interests and Subsidiaries    57
 Section 3.08    Litigation; Compliance with Laws    58
 Section 3.09    Federal Reserve Regulations    58
 Section 3.10    Investment Company Act    58
 Section 3.11    Use of Proceeds    58
 Section 3.12    Taxes    59
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 Section 3.13    No Material Misstatements    59
 Section 3.14    Labor Matters    59
 Section 3.15    [Reserved]    59
 Section 3.16    Employee Benefit Plans    59
 Section 3.17    Environmental Matters    60
 Section 3.18    Insurance    61
 Section 3.19    Security Documents    61
 Section 3.20    Sanctions    62
 Section 3.21    Anti-Terrorism Laws    62
 Section 3.22    Anti-Corruption    63
 Section 3.23    Animal Welfare Laws    63
 Section 3.24    Cybersecurity; Data Protection    63
 Section 3.25    Controls    64
 Section 3.26    Bankruptcy Matters.    64
 Article IV CONDITIONS TO CREDIT EXTENSIONS    65
 Section 4.01    Conditions to Initial Credit Extension    65
 Section 4.02    Conditions to the Initial Borrowing    67
 Section 4.03    Conditions to the Subsequent Borrowing    68
 Article V AFFIRMATIVE COVENANTS    68
 Section 5.01    Financial Statements, Reports, etc    69
 Section 5.02    Litigation and Other Notices    71
 Section 5.03    Existence; Businesses and Properties    71
 Section 5.04    Insurance    72
 Section 5.05    Obligations and Taxes    73
 Section 5.06    Employee Benefits    73
 Section 5.07    Maintaining Records; Access to Properties and Inspections    73
 Section 5.08    Use of Proceeds    74
 Section 5.09    Compliance with Environmental Laws    74
 Section 5.10    Additional Collateral; Additional Guarantors    75
 Section 5.11    Security Interests; Further Assurances    75
 Section 5.12    Information Regarding Collateral    76
 Section 5.13    [Reserved]    77
 Section 5.14    [Reserved]    77
 Section 5.15    Fiscal Year    77
 Section 5.16    Sanctions; Anti-Money Laundering; Anti-Corruption Compliance    77
 Section 5.17    Line of Business    77
 Section 5.18    Post-Closing Obligations    77
 Section 5.19    Beneficial Ownership Certifications    78
 Section 5.20    [Reserved]    78
 Section 5.21    Case Milestones    78
 Section 5.22    Bankruptcy Covenants.    78
 Article VI NEGATIVE COVENANTS    79
 Section 6.01    Indebtedness    79
 Section 6.02    Liens    82
 Section 6.03    Sale and Leaseback Transactions    84
 Section 6.04    Investments, Loans and Advances    84
 Section 6.05    Mergers and Consolidations    86
 Section 6.06    Asset Sales    86
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 Section 6.07    Dividends    87
 Section 6.08    Transactions with Affiliates    87
 Section 6.09    Prepayments of Other Indebtedness; Modifications of Organizational Documents, etc.    88
 Section 6.10    Limitation on Certain Restrictions on Subsidiaries    88
 Section 6.11    Business    89
 Section 6.12    [Reserved]    89
 Section 6.13    Fiscal Year    89
 Section 6.14    No Further Negative Pledge    89
 Section 6.15    Minimum Liquidity.    90
 Section 6.16    Anti-Terrorism Law; Anti-Money Laundering; Sanctions; Anti-Corruption Law    90
 Section 6.17    Sanctioned Persons    90
 Section 6.18    Variance    90
 Section 6.19    Additional Bankruptcy Matters.    90
 Article VII GUARANTEE    91
 Section 7.01    The Guarantee    91
 Section 7.02    Obligations Unconditional    92
 Section 7.03    Reinstatement    93
 Section 7.04    Subrogation; Subordination    93
 Section 7.05    Remedies    93
 Section 7.06    Instrument for the Payment of Money    93
 Section 7.07    Continuing Guarantee    94
 Section 7.08    General Limitation on Guarantee Obligations    94
 Section 7.09    Release of Guarantors    94
 Section 7.10    Right of Contribution    94
 Section 7.11    Keepwell    95
 Article VIII EVENTS OF DEFAULT    95
 Section 8.01    Events of Default    95
 Section 8.02    [Reserved]    101
 Section 8.03    [Reserved]    101
 Article IX APPLICATION OF COLLATERAL PROCEEDS    101
 Section 9.01    Collateral Account    101
 Section 9.02    Application of Proceeds    101
 Article X THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT    102
 Section 10.01    Appointment    102
 Section 10.02    Agent in Its Individual Capacity    103
 Section 10.03    Exculpatory Provisions; Agent Acting at Direction of Required Lenders    103
 Section 10.04    Reliance by Agent    105
 Section 10.05    Delegation of Duties    106
 Section 10.06    Successor Agent    106
 Section 10.07    Non-Reliance on Agent and Other Lenders    106
 Section 10.08    [Reserved]    107
 Section 10.09    Indemnification    107
 Section 10.10    Withholding Taxes    107
 Section 10.11    Lender’s Representations, Warranties and Acknowledgements    108
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 Section 10.12    Collateral Documents and Guarantee    108
 Section 10.13    Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim    110
 Section 10.14    Erroneous Payments    111
 Article XI MISCELLANEOUS    113
 Section 11.01    Notices    113
 Section 11.02    Waivers; Amendment    116
 Section 11.03    Expenses; Indemnity    119
 Section 11.04    Successors and Assigns    122
 Section 11.05    Survival of Agreement    126
 Section 11.06    Counterparts; Integration; Effectiveness    126
 Section 11.07    Severability    127
 Section 11.08    Right of Setoff    127
 Section 11.09    Governing Law; Jurisdiction; Consent to Service of Process    127
 Section 11.10    Waiver of Jury Trial    128
 Section 11.11    Headings; No Adverse Interpretation of Other Agreements    128
 Section 11.12    Confidentiality    128
 Section 11.13    Interest Rate Limitation    130
 Section 11.14    Assignment and Assumption    130
 Section 11.15    Obligations Absolute    130
 Section 11.16    Waiver of Defenses; Absence of Fiduciary Duties    130
 Section 11.17    Patriot Act    131
 Section 11.18    [Reserved]    131
 Section 11.19    Acknowledgement and Consent to Bail-In of EEA Financial Institutions    131
 Section 11.20    Acknowledgement Regarding Any Supported QFCs    132
 Section 11.21    Orders Control.                                132
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 ANNEXES
 Annex I    Lenders and Commitments

 SCHEDULES
 Schedule 1.01(a)    Pledgors
 Schedule 1.01(c)    Subsidiary Guarantors
 Schedule 2.10(f)    [Reserved]
Schedule 3.05(b)    Real Property
 Schedule 3.05(h)    Leases or Subleases of Owned Real Property
 Schedule 3.07(a)    Equity Interests and Subsidiaries
 Schedule 3.07(c)    Corporate Organizational Chart
 Schedule 3.18    Insurance
 Schedule 3.19(d)    UCC Filing Jurisdictions
 Schedule 5.18    Post-Closing Obligations
 Schedule 6.01(b)    Existing Indebtedness
 Schedule 6.02(c)    Existing Liens
 Schedule 6.04(a)    Existing Investments
 Schedule 6.08(g)    Transactions with Affiliates
 Schedule 6.14    No Further Negative Pledge

 EXHIBITS

 Exhibit A    Form of Assignment and Assumption
 Exhibit B    Form of Borrowing Request
 Exhibit C    Form of Compliance Certificate
 Exhibit D    Form of Interest Election Request
 Exhibit E-1    [Reserved]
 Exhibit E-2    [Reserved]
 Exhibit E-3    [Reserved]
 Exhibit F-1    Form of Perfection Certificate
 Exhibit F-2    Form of Perfection Certificate Supplement
 Exhibit G-1    Form of U.S. Tax Certificate (For Non-U.S. Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
 Exhibit G-2    Form of U.S. Tax Certificate (For Non-U.S. Participants that are not Partnerships for U.S. Federal Tax Purposes)
 Exhibit G-3    Form of U.S. Tax Certificate (For Non-U.S. Participants that are Partnerships for U.S. Federal Tax Purposes)
 Exhibit G-4    Form of U.S. Tax Certificate (For Non-U.S. Lenders that are Partnerships for U.S. Federal Tax Purposes)
 Exhibit H    [Reserved]
 Exhibit I    Form of Notice of Prepayment
 Exhibit J    Chapter 11 Plan
 Exhibit K    Interim Order
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 SUPERPRIORITY SECURED DEBTOR-IN-POSSESSION CREDIT AGREEMENT
 This SUPERPRIORITY SECURED DEBTOR-IN-POSSESSION CREDIT AGREEMENT (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “ Agreement ”), dated as of June 5, 2026, among INOTIV, INC., an Indiana corporation (the “ Borrower ”), the Subsidiary Guarantors (such term and each other capitalized term used but not defined herein having the meaning given to it in Article I ), the Lenders from time to time party hereto and Acquiom Agency Services LLC, as administrative agent for the Lenders (in such capacity, together with its successors and permitted assigns, the “ Administrative Agent ”) and as collateral agent for the Secured Parties (in such capacity, together with its successors and permitted assigns, the “ Collateral Agent ”).
 WITNESSETH:
 WHEREAS, on June 3, 2026 (the “ Petition Date ”), the Borrower and certain Subsidiaries of the Borrower (collectively, and together with any other Affiliates that become debtors-in-possession in the Cases, the “ Debtors ”) filed voluntary petitions with the Bankruptcy Court initiating their respective cases that are pending under Chapter 11 of the Bankruptcy Code (each case of the Borrower and such Subsidiaries, a “ Case ” and, collectively, the “ Cases ”) and have continued in the possession of their assets and in the management of their businesses pursuant to Sections 1107 and 1108 of the Bankruptcy Code;
 WHEREAS, the Borrower has requested that the Lenders extend credit in the form of new money term loans in an aggregate principal amount of up to $25,000,000 and loans in an aggregate principal amount of $40,521,753.47 resulting from the roll-up of term loans under the Prepetition Credit Agreement (as defined below);
 WHEREAS, the Lenders are willing to extend (or be deemed to extend) such credit to the Borrower on the terms and subject to the conditions set forth herein;
 WHEREAS, the Loan Parties will derive substantial direct and indirect benefit from the making of extensions of credit under this Agreement;
 WHEREAS, priority of the Indebtedness with respect to the Collateral granted to secure the Loan Document Obligations shall be as set forth in the Interim Order and the Final Order, in each case upon entry thereof by the Bankruptcy Court, and in the Security Documents; and
 WHEREAS, all of the claims and the Liens granted under the Orders and the Loan Documents to the Administrative Agent and the Lenders in respect of the Loan Document Obligations shall be subject to the Carve Out.
 NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and in the other Loan Documents, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
 ARTICLE I
DEFINITIONS
 Defined Terms . As used in this Agreement, the following terms shall have the meanings specified below:
 “ 2024 Settlement” means, collectively, (i) that certain resolution agreement, to be entered into on or about June 3, 2024 (the “ Settlement Date ”), between the United States Attorney’s Office for the Western District of Virginia, the Environmental Crimes Section of the United States Department of Justice,
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 Environment and Natural Resources Division and the Borrower, and (ii) that certain plea agreement, to be entered into on or about the Settlement Date, between the United States Attorney’s Office for the Western District of Virginia, the Environmental Crimes Section of the United States Department of Justice, Environment and Natural Resources Division, Envigo RMS, LLC and Envigo Global Services, Inc.
 “ Acceptable Confirmation Order ” shall mean an order of the Bankruptcy Court confirming an Acceptable Plan, in form and substance reasonably satisfactory to the Required Lenders (as the same may be amended, supplemented, or modified from time to time after entry thereof with the consent of the Required Lenders).
 “ Acceptable Disclosure Statement ” shall mean the disclosure statement relating to an Acceptable Plan in form and substance reasonably acceptable to the Required Lenders in their sole discretion.
 “ Acceptable Plan ” shall mean a Chapter 11 Plan for each of the Cases, which Chapter 11 Plan is in all material respects consistent with the Restructuring Support Agreement and otherwise in a form and substance satisfactory to the Required Lenders in their sole discretion (as the same may be amended, supplemented, or modified from time to time after filing thereof with the consent of the Required Lenders). The Chapter 11 Plan attached hereto as Exhibit J shall be deemed an Acceptable Plan (as the same may be amended, supplemented, or modified from time to time after filing thereof with the consent of the Required Lenders).
 “ ABR ”, when used in reference to any Loan or Borrowing, is used when such Loan comprising such Borrowing is, or the Loans comprising such Borrowing are, bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II .
 “ ABR Borrowing ” shall mean a Borrowing comprised of ABR Loans.
 “ ABR Loan ” shall mean any ABR Term Loan.
 “ ABR Term Loan ” shall mean any Term Loan bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II .
 “ ABR Term SOFR Determination Day ” shall have the meaning specified in the definition of “Term SOFR”.
 “ Actual Non-Operating Disbursements ” shall mean the amount of actual disbursements of the Borrower and its Domestic Subsidiaries on a weekly basis and a cumulative basis for such Variance Testing Period of all such disbursements for all such line items which comprise “Non-Operating Disbursements” (each as set forth in the Budget).
 “ Actual Non-Recurring Costs ” shall mean the amount of actual disbursements of the Borrower and its Domestic Subsidiaries, on a line-item basis, on a weekly basis and a cumulative basis for such Variance Testing Period of all such disbursements for all such line items which comprise “Non-Recurring Costs” (each as set forth in the Budget).
 “ Actual Operating Disbursements ” shall mean the amount of actual operating disbursements made by the Borrower and its Domestic Subsidiaries, including transfers of cash to Foreign Subsidiaries on a weekly basis and a cumulative basis for such Variance Testing Period of all such disbursements for all such line items which comprise “Operating Disbursements” (each as set forth in the Budget).
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 “ Actual Operating Receipts ” shall mean the amount of actual receipts of the Borrower and its Domestic Subsidiaries, excluding any borrowings under this Agreement on a weekly basis and a cumulative basis for such Variance Testing Period of all such receipts for all such line items which comprise “Operating Receipts” (each as set forth in the Budget).
 “ Adjusted Term SOFR ” shall mean, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that, notwithstanding the foregoing, for all purposes under the Loan Documents, in no event shall Adjusted Term SOFR be less than the Floor.
 “ Administrative Agent ” shall have the meaning assigned to such term in the preamble hereto and includes each other person appointed as the successor administrative agent pursuant to Article X .
 “ Administrative Agent Fees ” shall have the meaning assigned to such term in Section 2.05(d) .
 “ Administrative Questionnaire ” shall mean an administrative questionnaire in the form supplied from time to time by the Administrative Agent.
 “ Advisors ” shall mean legal counsel (including foreign and local counsel, but excluding in-house counsel), auditors, engineers, accountants, consultants, appraisers or other advisors.
 “ Affected Financial Institution ” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.
 “ Affiliate ” shall mean, when used 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, however , that, (i) for purposes of Section 6.08 , the term “Affiliate” shall also include (a) any person that directly or indirectly owns more than 10% of any class of Equity Interests of the person specified and (b) any person that is an executive officer or director of the person specified and (ii) Jefferies LLC and its Affiliates shall be deemed to be Affiliates of Jefferies Finance LLC and its Affiliates.
 “ Agent Fee Letter ” shall mean that certain Agent Fee Letter, dated as of the date hereof, by and between the Borrower and the Administrative Agent.
 “ Agents ” shall mean the Administrative Agent and the Collateral Agent; and “ Agent ” shall mean any of them, as the context may require.
 “ Agreement ” shall have the meaning assigned to such term in the preamble hereto.
 “ Alternate Base Rate ” shall mean, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Effective Rate plus 1/2 of 1%, (b) the Prime Rate in effect for such day and (c) Adjusted Term SOFR for a one-month tenor in effect on such day plus 1.00%; provided that, notwithstanding the foregoing, in no event shall the Alternate Base Rate be less than 2.00% per annum. Any change in the Alternate Base Rate due to a change in the Federal Funds Effective Rate, the Prime Rate or Adjusted Term SOFR shall take effect at the opening of business on the day of such change.
 “ Animal Welfare Laws ” shall mean any applicable U.S. domestic state and federal civil and criminal laws relating to animal welfare or animal importation, including, without limitation, the Animal Welfare Act, codified in Title 7, United States Code, §§ 2131-2159, the Lacey Act, codified in Title 16,
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 United States Code, §§ 3372-3374, and the anti-smuggling laws, codified in Title 18, United States Code, § 545.
 “ Anti-Corruption Laws” shall have the meaning assigned to such term in Section 3.22(a) .
 “ Anti-Terrorism Laws ” shall have the meaning assigned to such term in Section 3.21(a) .
 “ Applicable Margin ” shall mean (x) for Term SOFR Loans, 11.50%, and (y) for ABR Loans, 10.50%.
 “ Approved Electronic Communications ” shall mean any notice, demand, communication, information, document or other material that any Loan Party provides to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Agents or the Lenders by means of electronic communications pursuant to Section 11.01(b) .
 “ Approved Fund ” shall mean any person (other than a natural person) 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 Sale ” shall mean (a) any Disposition of any Property by any Company (excluding sales and dispositions permitted by Section 6.06 (other than Section 6.06(b) ) and (b) any sale or other Disposition of any Equity Interests in a Subsidiary of the Borrower to any person other than a Loan Party.
 “ Assignment and Assumption ” shall mean an assignment and assumption entered into by a Lender, as assignor, and an assignee (with the consent of any party whose consent is required pursuant to Section 11.04 ), and acknowledged and accepted by the Administrative Agent, substantially in the form of Exhibit A , or such other form as shall be approved by the Administrative Agent from time to time.
 “ Automatic Stay ” means the automatic stay imposed under Section 362 of the Bankruptcy Code.
 “ Bail-In Action ” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
 “ Bail-In Legislation ” shall mean (a) 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, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
 “ Bankruptcy Code ” shall mean Title 11 of the United States Code.
 “ Bankruptcy Court ” shall mean the United States Bankruptcy Court for the Southern District of Texas or any other court having jurisdiction over the Cases from time to time.
 “ Bankruptcy Law ” shall mean each of (i) the Bankruptcy Code, (ii) any domestic or foreign law relating to liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, administration, insolvency, reorganization, debt adjustment, receivership or similar debtor relief from time to time in effect and affecting the rights of creditors generally (including without limitation
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 any plan of arrangement provisions of applicable corporation statutes), and (iii) any order made by a court of competent jurisdiction in respect of any of the foregoing.
 “ Beneficial Ownership Certification ” shall mean a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
 “ Beneficial Ownership Regulation ” shall mean 31 C.F.R § 1010.230
 “ Board ” shall mean the Board of Governors of the Federal Reserve System of the United States.
 “ Board of Directors ” shall mean, with respect to any person, (a) in the case of any corporation, the board of directors of such person, (b) in the case of any limited liability company, the board of managers or board of directors, as applicable, of such person, or if such limited liability company does not have a board of managers or board of directors, the functional equivalent of the foregoing, (c) in the case of any partnership, the board of directors or board of managers, as applicable, of the general partner of such person and (d) in any other case, the functional equivalent of the foregoing.
 “ Borrower ” shall have the meaning assigned to such term in the preamble hereto.
 “ Borrowing ” shall mean Loans of the same Class and Type, made (or deemed made), converted or continued on the same date and, in the case of Term SOFR Loans, as to which a single Interest Period is in effect.
 “ Borrowing Request ” shall mean a request by the Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit B , or such other form as shall be reasonably approved by the Administrative Agent from time to time.
 “ Bridge Facility Delayed Draw Term Loans ” shall mean the Bridge Facility Delayed Draw Term Loans as defined in, and outstanding under, the Prepetition Credit Agreement prior to the Petition Date.
 “ Budget ” shall mean a cash flow projection of the Borrower and its Domestic Subsidiaries, which includes line-item projections of cash, operating receipts, operating disbursements, non-operating disbursements and non-recurring costs, that is in form and substance acceptable to the Required Lenders, it being agreed that the cash flow projections delivered immediately prior to the Closing Date are in form and substance acceptable to the Required Lenders.
 “ Budget Variance Report ” shall mean a report (a) showing, on a line item by line item and cumulative basis, the variances to the Budget of Actual Operating Receipts, Actual Operating Disbursements, Actual Non-Operating Disbursements and Actual Non-Recurring Costs, noting therein (i) management commentary on the variances, on a line item by line item basis and a cumulative basis, for such preceding (x) one (1) week period and (y) cumulative period beginning with the first week of the Budget (such cumulative period constituting the “ Variance Testing Period ”) (b) certified by a Responsible Officer of the Borrower and (c) in form and substance, and which shall contain supporting information, either (x) reasonably consistent with the form provided to the Required Lenders prior to the Closing Date or (y) satisfactory to the Required Lenders in their sole discretion.
 “ Budget Variances ” shall have the meaning assigned to such term in Section 6.20 .
 “ Budgeted Non-Operating Disbursements ” shall mean, in respect of any Variance Testing Period, on a cumulative basis, the amounts that corresponds to the total under the heading “Non-Operating Disbursements” in the Budget.
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 “ Budgeted Non-Recurring Costs ” shall mean, in respect of any Variance Testing Period, on a line-item basis, the amounts that corresponds to the applicable line item under the heading “Non-Recurring Costs” in the Budget; provided that the line items in the Budget with the title “Professional Fees – Lender (4)”, “RCF Deferred Fee & Accrued Interest”, and “Bridge Facility Cash Interest” under the heading “Non-Recurring Costs” will not be tested.
 “ Budgeted Operating Disbursements ” shall mean, in respect of any Variance Testing Period, the amount that corresponds to the total under the heading “Operating Disbursements” in the Budget.
 “ Budgeted Operating Receipts ” shall mean, in respect of any Variance Testing Period, the amount that corresponds to the total under the heading “Operating Receipts” in the Budget.
 “ Business Day ” shall mean any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close.
 “ Capital Expenditures ” shall mean, without duplication, for any period (a) any expenditure or commitment to expend money made during such period for any purchase or other acquisition of any asset including capitalized leasehold improvements, which would be classified as a fixed or capital asset on a consolidated balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP and (b) Capital Lease Obligations incurred by such persons during such period with respect to real or personal Property acquired during such period, or Synthetic Lease Obligations incurred by such persons during such period, but in each case, excluding (i) [reserved], (ii) [reserved], (iii) expenditures to the extent reimbursed within such period or paid for by a person who is not a Company (or any Affiliates thereof) in the ordinary course of business (including tenant improvements paid or reimbursed by landlords), (iv) the purchase price of equipment or other fixed assets that are purchased in the ordinary course of business substantially contemporaneously with the trade-in of existing assets in the ordinary course of business to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such assets for the assets being traded-in at such time, (v) [reserved], (vi) [reserved], (vii) expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, substituted, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced.
 “ Capital Lease Obligations ” shall mean, as to any Person, the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal Property, or a combination thereof, which obligations are required to be classified and accounted for as financing leases on a balance sheet of such person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP; provided that, notwithstanding the foregoing, in no event will any lease that would have been categorized as an operating lease as determined in accordance with GAAP as of September 30, 2020 be considered a capitalized lease.
 “ Capital Requirements ” shall mean, as to any person, any matter, directly or indirectly, (a) regarding capital adequacy, capital ratios, capital requirements, the calculation of such person’s capital or similar matters, or (b) affecting the amount of capital required to be obtained or maintained by such person or any person controlling such person (including any direct or indirect holding company), or the manner in which such person or any person controlling such person (including any direct or indirect holding company), allocates capital to any of its contingent liabilities (including letters of credit), advances, acceptances, commitments, assets or liabilities.
 “ Carve-Out ” shall have the meaning set forth in the Interim Order or the Final Order, as applicable.
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 “ Case ” or “ Cases ” shall have the meaning assigned to such term in the Recitals herein.
 “ Case Milestones ” shall have the meaning assigned to such term in Section 5.21 .
 “ Cash Equivalents ” shall mean, as to any person, (a) marketable securities issued, or directly, unconditionally and fully guaranteed or insured, by the United States or any agency or instrumentality thereof ( provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition by such person, (b) time deposits and certificates of deposit of any Lender or any commercial bank having, or which is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia having, capital and surplus aggregating in excess of $500,000,000 and a rating of “A” (or such other similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) with maturities of not more than one year from the date of acquisition by such person, (c) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (a) above entered into with any person meeting the qualifications specified in clause (b) above, (d) commercial paper issued by any person incorporated in the United States having one of the two highest ratings obtainable from S&P or Moody’s, in each case maturing not more than one year after the date of acquisition by such person, (e) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (a) through (d) above and (f) demand deposit accounts maintained in the ordinary course of business with any bank meeting the qualifications specified in clause (b) above.
 “ Cash Flow Forecast ” shall have the meaning assigned to such term in Section 5.01(i) .
 “ Casualty Event ” shall mean any involuntary loss of title or any involuntary loss of or damage to or destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any Property of any Company. “Casualty Event” shall include any taking of all or any part of any Real Property of any person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Legal Requirement, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of any person or any part thereof by any Governmental Authority, or any settlement in lieu thereof.
 “ CERCLA ” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq .
 “ CFC ” shall mean a Foreign Subsidiary that is a controlled foreign corporation under Section 957 of the Code.
 “ Change in Control ” shall mean (a) an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or group or its respective subsidiaries, and any person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause such person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of Voting Stock of the Borrower representing more than 35% of the voting power of the total outstanding Voting Stock of the Borrower or (b) the occurrence of any “change of control” (or similar event, howsoever denominated) under any other Indebtedness with an aggregate principal amount equal to, or in excess of $2,000,000.
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 “ Change in Law ” shall mean (a) the adoption of, or taking effect of, any law, treaty, order, rule or regulation after the Closing Date, (b) any change in any law, treaty, order, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender (or for purposes of Section 2.12(b) , by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
 “ Charges ” shall have the meaning assigned to such term in Section 11.13 .
 “ Claims ” shall have the meaning assigned to such term in Section 11.03(b) .
 “ Closing Date ” shall mean the date of the initial Credit Extensions hereunder.
 “ Code ” shall mean the Internal Revenue Code of 1986, as amended.
 “ Collateral ” shall mean all of the “Collateral” referred to in the Security Documents (including the Orders) and all of the other assets and property that is or is intended to be subject to liens in favor of the Administrative Agent for the benefit of the Secured Parties.
 “ Collateral Account ” shall mean a collateral account or sub-account established and maintained from time to time by the Collateral Agent for the benefit of the Secured Parties, in accordance with the provisions of Section 9.01 .
 “ Collateral Agent ” shall have the meaning assigned to such term in the preamble hereto.
 “ Commodity Exchange Act ” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
 “ Communications ” shall have the meaning assigned to such term in Section 11.01(d) .
 “ Companies ” shall mean the Borrower and the Subsidiaries; and “ Company ” shall mean any one of them.
 “ Company Parties ” shall have the meaning assigned to such term in the Restructuring Support Agreement.
 “ Compliance Certificate ” shall mean a certificate of a Financial Officer of the Borrower substantially in the form of Exhibit C .
 “ Contingent Obligation ” shall mean, as to any person, any obligation, agreement, understanding or arrangement of such person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“ primary obligations ”) of any other person (the “ primary obligor ”) in any manner, whether directly or indirectly, including any obligation, agreement, understanding or arrangement of such person, whether or not contingent: (a) to purchase any such primary obligation or any Property constituting direct or indirect security therefor; (b) to advance or supply funds (i) for the purchase or payment of any
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 such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; (c) to purchase or lease Property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; (d) with respect to bankers’ acceptances, letters of credit and similar credit arrangements, until a reimbursement obligation arises (which reimbursement obligation shall constitute Indebtedness); or (e) otherwise to assure or hold harmless the holder of such primary obligation against loss (in whole or in part) in respect thereof; provided , however , that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or any product warranties or other contingent obligations (other than with respect to borrowed money or capital leases) incurred in the ordinary course of business, including indemnities. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such person may be liable, whether singly or jointly, pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such person is required to perform thereunder) as determined by such person in good faith.
 “ Contribution Share ” shall have the meaning assigned to such term in Section 7.10(a) .
 “ Control ” shall mean 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 ownership of voting securities, by contract or otherwise, and the terms “ Controlling ” and “ Controlled ” shall have meanings correlative thereto.
 “ Covered Party ” shall have the meaning assigned to such term in Section 11.20 .
 “ Credit Extension ” shall mean the making of a Loan by a Lender.
 “ Debt Issuance ” shall mean the incurrence by any Company of any Indebtedness after the Closing Date (other than as permitted by Section 6.01 ).
 “ Debtor ” or “ Debtors ” shall have the meaning assigned to such term in the Recitals herein.
 “ Debtor Relief Laws ” shall mean the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
 “ Default ” shall mean any event, occurrence or condition which is, or upon notice, lapse of time or both would constitute, an Event of Default.
 “ Default Excess ” shall have the meaning assigned to such term in Section 2.16(c) .
 “ Default Period ” shall have the meaning assigned to such term in Section 2.16(c) .
 “ Default Rate ” shall have the meaning assigned to such term in Section 2.06(c) .
 “ Defaulted Loan ” shall have the meaning assigned to such term in the definition of Defaulting Lender.
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 “ Defaulting Lender ” shall mean any Lender that has (a) failed to fund its portion of any Borrowing on the date on which it shall have been required to fund the same (such Loan being a “ Defaulted Loan ”), unless the subject of a good faith dispute between the Borrower and such Lender related hereto, (b) notified the Borrower, the Administrative Agent or any other Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend credit generally, unless such notification or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such notification or public statement) cannot be satisfied, (c) failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans (unless the subject of a good faith dispute between the Borrower and such Lender); provided that any such Lender shall cease to be a Defaulting Lender under this clause (c) upon receipt of such confirmation by the Administrative Agent or the Borrower, (d) otherwise failed to pay over to the Borrower, the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due (unless such amount is subject to a good faith dispute), (e)(i) been adjudicated as, (or whose direct or indirect parent company has been adjudicated as), or determined by any Governmental Authority having regulatory authority over such person (or such person’s direct or indirect parent company) or its Properties or assets to be, insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, unless, in the case of any Lender referred to in this clause (e), the Borrower and the Administrative Agent shall be satisfied that such Lender intends, and has all approvals required to enable it, to continue to perform its obligations as a Lender hereunder. For the avoidance of doubt, a Lender shall not be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in such Lender or its parent by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender or (f) become, or has a direct or indirect parent company that has become, the subject of a Bail-in Action;   provided that, as of any date of determination, the determination of whether any Lender is a Defaulting Lender hereunder shall not take into account, and shall not otherwise impair, any amounts funded by such Lender which have been assigned by such Lender to an SPC pursuant to Section 11.04(i) . Any determination by the Administrative Agent and the Borrower that a Lender is a Defaulting Lender under any one or more of clauses (a) through (f) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Borrower and each Lender.
 “ DIP Lien ” has the meaning ascribed to such term in the Interim Order or, upon entry of the Final Order, in the Final Order, as applicable.
 “ Discharge of the Guaranteed Obligations ” shall mean and shall have occurred when (i) all Guaranteed Obligations shall have been paid in full in cash and all other obligations under the Loan Documents shall have been performed (other than (a) those expressly stated to survive termination and (b) contingent obligations as to which no claim has been asserted) and (ii) all Commitments shall have terminated or expired.
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 “ Disposition ” shall mean, with respect to any Property, any conveyance, sale, lease, sublease, assignment, transfer or other disposition (including by way of Sale and Leaseback Transaction) of such Property, and the terms “ Dispose ”, “ Disposed ” and “ Disposing ” shall have meanings correlative thereto.
 “ Disqualified Institution ” shall mean any Person (or its subsidiaries and affiliates) who is an operating competitor of the Borrower or its subsidiaries and that is separately identified by the Borrower to the Administrative Agent by name in writing prior to the Closing Date (which list of operating competitors may be supplemented by the Borrower after the Closing Date by means of a written notice to the Administrative Agent; provided that (i) such supplementation shall not apply retroactively to disqualify any persons that have previously acquired an assignment or participation in the Loans or commitments hereunder and (ii) such list and any supplement thereto may be posted by the Administrative Agent for the Lenders.
 “ Disqualified Stock ” shall mean any equity interest that, by its terms (or by the terms of any security or instrument into which it is convertible or for which it is exchangeable or exercisable), 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 (other than for shares of equity that are not Disqualified Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable (other than for shares of equity that are not Disqualified Stock) 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 (other than in shares of equity that are not Disqualified Stock) constituting a return of capital, in each case, on a date that is prior to 91 days after the maturity of the Prepetition Credit Agreement, or (b) is convertible into or exchangeable or exercisable for (i) debt securities or other indebtedness or (ii) any equity interest referred to in clause (a) above or (c) contains any repurchase or payment obligation (other than payments or dividends solely in shares of equity that are not Disqualified Stock).
 “ Dividend ” shall mean, with respect to any person, that such person has declared or paid a dividend or returned any equity capital to the holders of its Equity Interests or authorized or made any other distribution, payment or delivery of Property (other than common equity of such person) or cash to the holders of its Equity Interests as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for consideration any of its Equity Interests outstanding (or any options or warrants issued by such person with respect to its Equity Interests), or set aside or otherwise reserved, directly or indirectly, any funds for any of the foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for consideration any of the outstanding Equity Interests of such person (or any options or warrants issued by such person with respect to its Equity Interests). Without limiting the foregoing, “ Dividends ” with respect to any person shall also include all payments made or required to be made by such person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting aside of or otherwise reserving any funds for the foregoing purposes.
 “ Dollars ” or “ $ ” shall mean lawful money of the United States.
 “ Domestic Subsidiary ” shall mean any Subsidiary organized under the laws of any jurisdiction within the United States.
 “ EEA Financial Institution ” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
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 “ EEA Member Country ” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
 “ EEA Resolution Authority ” shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
 “ Employee Benefit Plan ” shall mean any Pension Plan and any other “employee benefit plan” as defined in Section 3(3) of ERISA (other than a Multiemployer Plan and other than a Foreign Plan) which is or was maintained, contributed to or required to be contributed to by any Company.
 “ Environment ” shall mean any surface or subsurface physical medium or natural resource, including air, land, soil, surface waters, ground waters, sediments (including stream and river sediments), biota and any indoor surface area, surface or physical medium, and any ecological systems and living organisms supported by these media.
 “ Environmental Claim ” shall mean any claim, notice, demand, Order, action, suit, investigation, proceeding, or other communication or legal proceeding alleging or asserting liability or obligations under Environmental Law, including liability or obligation for investigation, enforcement proceedings, governmental response, assessment, remediation, removal, cleanup, Response, corrective action, monitoring, post-remedial or post-closure studies, investigations, operations and maintenance, injury, damage, destruction or loss to natural resources, personal injury, medical monitoring, wrongful death, property damage, fines, penalties or other costs resulting from, related to or arising out of (a) the presence, Release or threatened Release of Hazardous Materials in, on, into, through or from the Environment at any location or (b) any violation of or non-compliance with Environmental Law, and shall include any claim, notice, demand, Order, action, suit or proceeding seeking damages (including the costs of remediation), contribution, indemnification, cost recovery, penalties, fines, indemnities, compensation or injunctive relief resulting from, related to or arising out of the presence, Release or threatened Release of Hazardous Material or alleged injury or threat of injury to human health and safety (as it relates to exposure to Hazardous Materials) or the Environment.
 “ Environmental Law ” shall mean any and all applicable Legal Requirements relating to or imposing liability or standards of conduct concerning human health and safety (as it relates to exposure to Hazardous Materials) or pollution, preservation, or protection of the Environment, the Release, threatened Release, or the generation, manufacture, use, labeling, treatment, storage, handling, or transportation of Hazardous Material, natural resources or natural resource damages, or occupational safety or health (as it relates to exposure to Hazardous Materials).
 “ Environmental Permit ” shall mean any permit, license, approval, consent, notifications, exemptions, registration or other authorization required by or from a Governmental Authority under any Environmental Law.
 “ Equity Interest ” shall mean, with respect to any person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such person, including, if such person is a partnership, partnership interests (whether general or limited), or if such person is a limited liability company, membership interests, and any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of Property of, such partnership, whether outstanding on the Closing Date or issued on or after the Closing Date.
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 “ Equity Issuance ” shall mean, without duplication, (a) any issuance or sale by the Borrower of any Equity Interests in the Borrower (including any Equity Interests issued upon exercise of any warrant or option or equity-based derivative) or any warrants or options or equity-based derivatives to purchase Equity Interests of the Borrower or (b) any contribution to the capital of the Borrower.
 “ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder by any Governmental Authority, as from time to time in effect.
 “ ERISA Affiliate ” shall mean, with respect to any person, any trade or business (whether or not incorporated) that, together with such person, is treated as a single employer under Section 414(b) or (c) of the Code or Section 4001 of ERISA, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
 “ ERISA Event ” shall mean (i) a “reportable event” within the meaning of Section 4043(c) of ERISA (other than any such event with respect to which the notice requirement has been waived) with respect to any Pension Plan; (ii) the failure of any Company or any ERISA Affiliate to meet the minimum funding standard of Section 412 or 430 of the Code or Section 302 or 303 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code) or the failure of any Company or any ERISA Affiliate to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure of any Company or any ERISA Affiliate to make any required contribution to a Multiemployer Plan, or the filing of any request for or receipt of a minimum funding waiver under Section 412 of the Code with respect to any Pension Plan; (iii) a determination that any Pension Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (iv) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such Pension Plan in a distress termination described in Section 4041(c) of ERISA, the termination of any Pension Plan under Section 4041(c) of ERISA or the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such Pension Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA; (v) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (vi) the withdrawal by any Company or any ERISA Affiliate from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability of any Company or any ERISA Affiliate pursuant to Section 4063 or 4064 of ERISA; (vii) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which could reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (viii) the imposition of liability on any Company or any ERISA Affiliate pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (ix) the complete or partial withdrawal of any Company or any ERISA Affiliate from any Multiemployer Plan (within the meaning of Sections 4203 and 4205 of ERISA) if there is any potential liability therefor, or the receipt by any Company or any ERISA Affiliate of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (x) the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; (xi) the imposition of a Lien pursuant to Section 430(k) of the Code or pursuant to ERISA or a violation of Section 436 of the Code with respect to any Pension Plan; or (xii) a Foreign Plan Event.
 “ Erroneous Payment ” shall have the meaning assigned to it in Section 10.14(a) .
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 “ Erroneous Payment Deficiency Assignment ” shall have the meaning assigned to it in Section 10.14(d) .
 “ Erroneous Payment Impacted Class ” shall have the meaning assigned to it in Section 10.14(d) .
 “ Erroneous Payment Return Deficiency ” shall have the meaning assigned to it in Section 10.14(d) .
 “ Erroneous Payment Subrogation Rights ” shall have the meaning assigned to it in Section 10.14(d) .
 “ EU Bail-In Legislation Schedule ” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
 “ Event of Default ” shall have the meaning assigned to such term in Section 8.01 .
 “ Excess Amount ” shall have the meaning assigned to such term in Section 4.03(e) .
 “ Excess Payment ” shall have the meaning assigned to such term in Section 7.10(a) .
 “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended.
 “ Excluded Assets ” shall have the meaning assigned to such term in the Security Agreement.
 “ Excluded Subsidiary ” shall mean (i) any Subsidiary that is prohibited by applicable law at the time such Subsidiary becomes a Subsidiary from becoming a Guarantor, (ii) (A) any Subsidiary that is a CFC, and any and all direct or indirect subsidiaries of such excluded CFC or CFC Holding Company (as defined below) and (B) any Subsidiary that has no material assets other than equity (or equity and indebtedness) of excluded CFCs described in the foregoing clause (ii)(A) (a “ CFC Holding Company ”) and/or excluded CFC Holding Companies, in each case, to the extent making such subsidiary a Guarantor would result in material adverse tax consequences to the Borrower (as mutually determined by the Required Lenders and the Borrower), (iii) [reserved] and (iv) [reserved].
 “ Excluded Swap Obligation ” shall mean any obligation of any Guarantor to pay or perform under any agreement, contract, or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act (a “ Swap ”), if, and to the extent that, all or a portion of the guarantee by such Guarantor of, or the grant by such Guarantor or the Borrower of a security interest to secure, such Swap (or any guarantee thereof) 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) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder.
 “ Excluded Taxes ” shall mean, with respect to the Administrative Agent or any Lender, as applicable (each, a “ Recipient ”), of any payment to be made by or on account of any obligation of any Loan Party hereunder, or under any Loan Document, (a) Taxes imposed on (or measured by) its net income (however denominated), franchise Taxes, and branch profits Taxes, in each case (i) imposed by the jurisdiction under the laws of which such Recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b)  in the case of a Lender (other than an assignee pursuant to a request by Borrower under Section 2.16 ), any U.S. federal withholding Tax that (i) is imposed on amounts payable to such Recipient at the time such Recipient becomes a party to this Agreement (or designates a new lending office)
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 or (ii) is attributable to such Lender’s failure to comply with Section 2.15(e) , in each case except to the extent that such Recipient (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding Tax pursuant to Section 2.15(a) , and (c) any United States federal withholding Taxes imposed under FATCA.
 “ Executive Order ” shall have the meaning assigned to such term in Section 3.20(a) .
 “ Existing Lien ” shall have the meaning assigned to such term in Section 6.02(b) .
 “ Exit Premium ” shall have the meaning assigned to such term in Section 2.05(b) .
 “ Exit Term Loan Facility ” shall have the meaning assigned to it in the Acceptable Plan.
 “ Exit Term Loan Facility Agent ” shall mean the administrative agent under the Exit Term Loan Facility, which agent shall be acceptable to the Required Lenders.
 “ Exit Term Loans ” shall have the meaning assigned to such term in the Acceptable Plan.
 “ Extraordinary Receipts ” shall mean any cash received by the Borrower or any of its Subsidiaries not in the ordinary course of business (and not constituting Net Cash Proceeds subject to Section 2.10(c) ), including, without limitation, (i) judgments, proceeds of settlements, or other consideration of any kind in connection with any cause of action, (ii) indemnity payments (except to the extent used to pay related liabilities owing to third parties unaffiliated with the Loan Parties), (iii) proceeds of tax refunds or tax credits (including any Employee Retention Tax Credit under the CARES Act) and (iv) any purchase price adjustment, escrow payment or holdback amount or similar amount received in connection with any purchase agreement (other than a working capital adjustment).
 “ Fair Market Value ” shall mean, with respect to any asset (including any Equity Interests of any person), the price at which a willing buyer (that is not an Affiliate of the seller), and a willing seller who does not have to sell, would agree to purchase and sell such asset, as determined in good faith by the Board of Directors of the Borrower or, pursuant to a specific delegation of authority by such Board of Directors or a designated senior executive officer, of the Borrower (or the Subsidiary of the Borrower selling such asset).
 “ FATCA ” shall mean sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version to the extent such version is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, and any intergovernmental agreements or agreements implementing the foregoing entered into pursuant to Section 1471(b) of the Code.
 “ Federal Funds Effective Rate ” shall mean, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System of the United States arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary to the next 1/100th of 1%) of the quotations for the day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.
 “ Fees ” shall mean the Upfront Premium, the Administrative Agent Fees, the Exit Premium and the other fees referred to in Section 2.05 .
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 “ Final Borrowing Amount ” means $9,000,000.
 “ Final New Money Loan ” shall have the meaning assigned to such term in Section 2.01(a)(ii) .
 “ Final Order ” means an order of the Bankruptcy Court (as such order may be amended, supplemented or modified from time to time after entry thereof in accordance with the terms hereof, but only with the written consent of the Required Lenders and (solely with respect to any provision that affects its rights or duties) the Administrative Agent or the Collateral Agent) in substantially the form of the Interim Order and in form and substance acceptable to the Required Lenders in their sole discretion, which order shall authorize and approve, among other things on a final basis, (a) the Loan Document Obligations and extensions of credit hereunder including the incurrence by the Loan Parties of secured indebtedness in accordance with this Agreement, (b) the form of this Agreement and the other Loan Documents, (c) the granting of Liens and Superpriority Claims in favor of the Agents and Lenders and (d) the other obligations of the Loan Parties under this Agreement and the other Loan Documents, and which order shall not have been vacated or reversed, shall not be subject to any stay or appeal (and for which the time to appeal, petition for certiorari, or seek re-argument or rehearing has expired, or as to which any right to appeal, petition for certiorari or seek re-argument or rehearing has been waived in writing in a manner satisfactory to the parties in interest, or if a notice of appeal, petition for certiorari, or motion for re-argument or rehearing was timely filed, the order or judgment has been affirmed by the highest court to which the order or judgment was appealed or from which the re-argument or rehearing was sought, or a certiorari has been denied, and the time to file any further appeal or to petition for certiorari or to seek further re-argument has expired) and shall not have been modified or amended without the prior written consent of the Required Lenders and, if applicable, the Administrative Agent or the Collateral Agent.
 “ Financial Officer ” of any person shall mean any of the president, chief operating officer, chief financial officer, principal accounting officer, treasurer, or controller of such person.
 “ FIRREA ” shall mean the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended.
 “ First Day Orders ” shall mean the orders entered by the Bankruptcy Court in respect of first day motions and applications in respect of the Cases.
 “ Floor ” shall mean 2.50%.
 “ Foreign Lender ” shall mean any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
 “ Foreign Plan ” shall mean any employee pension benefit plan, fund, program, policy, arrangement, or agreement, or other similar program established, maintained or contributed to by any Company on behalf of (or for the benefit of) its employees, officers or directors employed, or otherwise engaged, outside the United States.
 “ Foreign Plan Event ” shall mean, with respect to any Foreign Plan, (i) the existence of unfunded liabilities in excess of the amount permitted under any applicable Legal Requirement, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (ii) the failure to make the required contributions or payments, under any applicable Legal Requirement, on or before the due date for such contributions or payments, (iii) the receipt of a notice from a Governmental Authority relating to the intention to terminate such Foreign Plan or to appoint a trustee or similar official to administer such Foreign Plan, or alleging the insolvency of such Foreign Plan, or (iv) the incurrence of any liability by any
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 Company under applicable Legal Requirements on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein.
 “ Foreign Subsidiary ” shall mean a Subsidiary that is not a Domestic Subsidiary.
 “ Funding Default ” shall have the meaning assigned to such term in Section 2.16(c) .
 “ GAAP ” shall mean generally accepted accounting principles in the United States applied on a consistent basis.
 “ Governmental Authority ” shall mean any federal, state, local or foreign (whether civil, administrative, criminal, military or otherwise) court, central bank or governmental agency, tribunal, authority, instrumentality or regulatory body or any subdivision thereof or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
 “ Granting Lender ” shall have the meaning assigned to such term in Section 11.04(i) .
 “ Guaranteed Obligations ” shall have the meaning assigned to such term in Section 7.01 .
 “ Guarantees ” shall mean the guarantees issued pursuant to Article VII by each of the Guarantors.
 “ Guarantors ” shall mean the Subsidiary Guarantors.
 “ Hazardous Materials ” shall mean any substances, chemicals, or wastes that are listed, regulated, or otherwise defined as hazardous, toxic, radioactive, a pollutant or a contaminant (or words of similar regulatory intent or meaning), under any Environmental Laws, or which could give rise to liability under any Environmental Law, including but not limited to, polychlorinated biphenyls (“ PCBs ”) or any substance or compound containing PCBs, asbestos or any asbestos-containing materials in any form or condition, lead-based paint, pesticides, radon or any other radioactive materials including any source, special nuclear or by-product material, petroleum, petroleum by-products, crude oil or any fraction thereof, toxic mold, or per- or polyfluoroalkyl substances (PFAS).
 “ Hedging Agreement ” shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, currency swap transactions, cross-currency rate swap transactions, currency options, cap transactions, floor transactions, collar transactions, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options or warrants to enter into any of the foregoing), whether or not any such transaction is governed by, or otherwise subject to, any master agreement or any netting agreement, and (b) any and all transactions or arrangements of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement (or similar documentation) published from time to time by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such agreement or documentation, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.
 “ Hedging Obligations ” shall mean obligations under or with respect to Hedging Agreements.
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 “ Historical Financial Statements ” shall mean (a) the audited consolidated balance sheet of the Borrower and certain of its Affiliates (as specified therein) as at the end of the fiscal years ended September 30, 2023, 2024 and 2025, and (b) the unaudited consolidated balance sheet of the Borrower and certain of its Affiliates (as specified therein) as at the end of the fiscal quarter ended March 31, 2026 and, in each case, the related consolidated statements of income or operations, changes in stockholders’ equity and cash flows for such fiscal periods, including the notes thereto.
 “ Improvements ” shall have the meaning assigned to such term in Section 3.05(i) .
 “ Indebtedness ” of any person shall mean, without duplication, (a) all obligations of such person for borrowed money or advances (including unreimbursed amounts outstanding under letters of credit); (b) all obligations of such person evidenced by loan agreements, bonds, debentures, notes or similar instruments; (c) all obligations of such person under conditional sale or other title retention agreements relating to Property purchased by such person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property); (d) all obligations of such person issued or assumed as part of the deferred purchase price of Property or services (excluding (w) trade accounts payable and accrued obligations incurred in the ordinary course of business on normal trade terms, (x) deferred rent obligations, (y) customary obligations under employment arrangements and (z) purchase price adjustments or earn-outs that have not yet become liabilities on the balance sheet of such person in accordance with GAAP); (e) all Indebtedness of others secured by any Lien on Property owned or acquired by such person, whether or not the obligations secured thereby have been assumed, but limited to the lower of (i) the Fair Market Value of such Property and (ii) the amount of the Indebtedness secured; (f) all Capital Lease Obligations, Purchase Money Obligations and Off-Balance Sheet Obligations of such person; (g) the amount of all obligations of such person with respect to the redemption, repayment or other repurchase of Disqualified Stock; (h) all Hedging Obligations to the extent required to be reflected on a balance sheet of such person; (i) all obligations of such person for the reimbursement of any obligor in respect of letters of credit (but only to the extent of drawn but unreimbursed amounts thereunder), letters of guaranty, bankers’ acceptances and similar credit transactions; and (j) all Contingent Obligations of such person in respect of Indebtedness or obligations of others of the kinds referred to in clauses (a) through (i) above. The Indebtedness of any person shall include the Indebtedness of any other entity (including any partnership in which such person is a general partner) to the extent such person is liable therefor as a result of such person’s ownership interest in or other relationship with such entity, except (other than in the case of general partner liability) to the extent that terms of such Indebtedness expressly provide that such person is not liable therefor; provided that Indebtedness shall not include accrued expenses, deferred revenue, deferred rent, deferred taxes and deferred compensation and customary obligations under employment arrangements; provided , further , that for the avoidance of doubt, any due and payable amounts attributable or related to the 2024 Settlement shall not be considered Indebtedness.
 “ Indemnified Taxes ” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
 “ Indemnitee ” shall have the meaning assigned to such term in Section 11.03(b) .
 “ Information ” shall have the meaning assigned to such term in Section 11.12 .
 “ Initial Borrowing ” shall have the meaning assigned to such term in Section 2.01(a)(i) .
 “ Initial Borrowing Amount ” shall mean $16,000,000.
 “ Initial New Money Loan ” shall have the meaning assigned to such term in Section 2.01(a)(i) .
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 “ Insolvency Law ” shall mean the Bankruptcy Code of the United States, and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
 “ Insurance Policies ” shall mean the insurance policies and coverages required to be maintained by each Loan Party that is an owner or lessee of Mortgaged Property with respect to the applicable Mortgaged Property pursuant to Section 5.04 and all renewals and extensions thereof.
 “ Insurance Requirements ” shall mean, collectively, all material provisions of the Insurance Policies, all material requirements of the issuer of any of the Insurance Policies and all material Orders, rules, regulations and any other requirements of the National Board of Fire Underwriters (or any other body exercising similar functions) binding upon any Loan Party that is an owner of Mortgaged Property and applicable to the Mortgaged Property or any use or condition thereof.
 “ Intellectual Property ” shall have the meaning assigned to such term in Section 3.06(a) .
 “ Interim Order ” means an interim order of the Bankruptcy Court (as such order may be amended, supplemented, or modified from time to time after entry thereof in accordance with the terms hereof, but only with the written consent of the Required Lenders and (solely with respect to any provision that affects its rights or duties) the Administrative Agent or the Collateral Agent) in the form set forth as Exhibit K (with changes to such form only as are satisfactory to the Required Lenders, and solely with respect to any provision that affects the rights or duties of the Administrative Agent in its sole discretion), which order shall authorize and approve, on an interim basis, among other things, (a) the Loan Document Obligations and extensions of credit hereunder (including the Roll-Up Loans) including the incurrence by the Loan Parties of secured indebtedness in accordance with this Agreement, (b) the form of this Agreement and the other Loan Documents, (c) the granting of Liens and Superpriority Claims in favor of the Administrative Agent and Lenders, (d) the payment by the Loan Parties of the reasonable and documented fees contemplated by this Agreement, (e) the provision of adequate protection to the Secured Parties under and as defined in each of the Prepetition Secured Documents in a manner satisfactory to the Required Lenders in their sole discretion, and (f) such other matters as are usual and customary for orders of this kind, and which order shall not have been vacated or reversed, shall not be subject to any stay or appeal and shall not have been modified or amended without the prior written consent of the Required Lenders and, if applicable, the Administrative Agent or the Collateral Agent.
 “ Interest Election Request ” shall mean a request by Borrower to convert or continue a SOFR Borrowing in accordance with Section 2.08(b) , substantially in the form of Exhibit D .
 “ Interest Payment Date ” shall mean (a) with respect to any ABR Loan, the last Business Day of each calendar month to occur during any period in which such Loan is outstanding, and (b) with respect to any Term SOFR Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part.
 “ Interest Period ” shall mean, with respect to any SOFR Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one month thereafter; provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the immediately preceding Business Day and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest
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 Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
 “ Investments ” shall have the meaning assigned to such term in Section 6.04 .
 “ IT Systems ” shall have the meaning assigned to such term in Section 3.24 .
 “ Joinder Agreement ” shall mean a joinder agreement substantially in the form of Exhibit 3 to the Security Agreement.
 “ Junior Indebtedness ” shall mean any Indebtedness of any Company that is (x) secured by a Lien that is junior in priority to the Lien securing the Obligations, (y) by its terms subordinated in right of payment to all or any portion of the Obligations or (z) unsecured.
 “ Leases ” shall mean any and all leases, subleases, tenancies, options, concession agreements, rental agreements, occupancy agreements, franchise agreements, access agreements and any other agreements (including all amendments, extensions, replacements, renewals, modifications and/or guarantees thereof), whether or not of record and whether now in existence or hereafter entered into, affecting the use or occupancy of all or any portion of any Real Property.
 “ Legal Requirements ” shall mean, as to any person, the Organizational Documents of such person, and any treaty, law (including the common law), statute, ordinance, code, rule, regulation, license, permit, guidelines, decrees, requirement, Order or determination of an arbitrator or a court or other Governmental Authority, or other legally binding requirements, in each case would reasonably be interpreted to be applicable to or binding upon such person or any of its Property or to which such person or any of its Property would reasonably be interpreted to be subject.
 “ Lenders ” shall mean (a) each New Money Lender and each Roll-Up Lender, and (b) each financial institution or other person that becomes a party hereto pursuant to an Assignment and Assumption (including pursuant to Section 2.19 and Section 2.20 ), other than, in each case, any such financial institution or person that has ceased to be a party hereto pursuant to an Assignment and Assumption.
 “ Lien ” shall mean, with respect to any Property, (a) any mortgage, deed of trust, lien (statutory or otherwise), pledge, encumbrance, claim, charge, assignment, hypothecation, security interest or encumbrance of any kind, including any easement, right-of-way or other encumbrance on title to Real Property, in each of the foregoing cases whether voluntary or imposed by law, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such Property, and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities; provided , that in no event shall an operating lease be deemed to constitute a Lien.
 “ Liquidity ” shall mean, at any date, the sum of (x) the aggregate amount of cash and Cash Equivalents of the Borrower and its Subsidiaries as of such date, plus (y) the aggregate amount of New Money Commitments not yet drawn (but assuming that the original amount of the New Money Commitments was $20,000,000), minus (z) the aggregate amount of trade payables more than 90 days overdue as of such date.
 “ Liquidity Test Date ” shall have the meaning assigned to such term in Section 6.15 .
 “ Loan ” or “ Loans ” shall mean the New Money Loans and the Roll-Up Loans.
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 “ Loan Documents ” shall mean this Agreement, the Security Documents, the Agent Fee Letter and all other agreements, instruments, certificates and documents, to which the Borrower or another Loan Party is a party, from time to time delivered in connection herewith and to the extent designated as a “Loan Document” therein, in each case, as any or all of the foregoing may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof. Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.
 “ Loan Parties ” shall mean the Borrower and the Subsidiary Guarantors.
 “ Margin Stock ” shall have the meaning assigned to such term in Regulation U.
 “ Material Adverse Effect ” shall mean, any event, change or condition that, individually or in the aggregate, has had, or could reasonably be expected to have (a) a material adverse effect on the business, operations or financial condition of the Borrower and its Subsidiaries, taken as a whole (other than by virtue of the commencement of the Cases and the events and circumstances giving rise thereto), (b) a material and adverse effect on the rights and remedies of the Administrative Agent under this Agreement or the other Loan Documents (other than solely due to the extent of the action or inaction of the Administrative Agent, or any of the Lenders), or (c) a material and adverse effect on the ability of the Borrower and Guarantors to perform their payment obligations under this Agreement and the other Loan Documents.
 “ Maximum Rate ” shall have the meaning assigned to such term in Section 11.13 .
 “ Minimum Liquidity Covenant ” shall have the meaning assigned to such term in Section 6.15 .
 “ Moody’s ” shall mean Moody’s Investors Service, Inc. and any successor thereto.
 “ Mortgage ” shall mean an agreement, including a mortgage, deed of trust or any other document, creating and evidencing a first priority Lien in favor of the Collateral Agent on Mortgaged Property in a form reasonably satisfactory to the Collateral Agent (including with respect to requirements for title, flood and other insurance and surveys), with such schedules and including such provisions as shall be necessary to conform such document to applicable local or foreign law or as shall be customary under applicable local or foreign Legal Requirements.
 “ Mortgaged Property ” shall mean each Real Property that is (or shall be) subject to a Mortgage delivered on the Closing Date or after the Closing Date pursuant to Section 4.01(o) , Section 5.18 or Section 5.10(d) .
 “ Multiemployer Plan ” shall mean a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA to which any Company or any ERISA Affiliate has an obligation to contribute or with respect to which any Company or ERISA Affiliate has incurred any undischarged liability or could reasonably be expected to incur any liability (whether contingent or otherwise).
 “ Net Cash Proceeds ” shall mean:
 (a)    with respect to any Debt Issuance or any issuance or sale of Equity Interests by the Borrower or any of its Subsidiaries that is not an Equity Issuance, the cash proceeds thereof received by, or on behalf of, any Company, net of fees, commissions, costs and other expenses incurred in connection therewith; and
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 (b)    with respect to any Casualty Event, the cash insurance proceeds, condemnation awards and other compensation received by, or on behalf of, any Company in respect thereof, net of all costs and expenses incurred in connection with the collection of such proceeds, awards or other compensation in respect of such Casualty Event (including, in respect of any such Casualty Event, transfer and similar taxes and the Borrower’s good faith estimate of income taxes paid or payable in connection with such sale (after taking into account any available tax credits or deductions and any tax sharing arrangements) ( provided that, to the extent and at the time that any such taxes are no longer required to be paid or payable, such amounts shall then constitute Net Cash Proceeds)).
 “ New Money Commitment ” shall mean, with respect to any New Money Lender, such New Money Lender’s commitment to make New Money Loans, to the Borrower pursuant to  Section 2.01  in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on  Annex I  under the caption “New Money Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such New Money Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate New Money Commitment of all the New Money Lenders shall be $25,000,000 on the Closing Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement.
 “ New Money Lender ” shall mean at any time, Lenders holding New Money Loans or unused New Money Commitments and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption in respect of any New Money Loans, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
 “ New Money Loan ” shall mean the term loans made to the Borrower pursuant to Section 2.01(a) .
 “ Non-Guarantor Subsidiary ” shall mean any Subsidiary of the Borrower that is not a Subsidiary Guarantor.
 “ Non-Public Information ” shall mean material non-public information (within the meaning of United States federal, state or other applicable securities laws) with respect to the Borrower or its Subsidiaries or their respective securities.
 “ Notice of Prepayment ” shall have the meaning assigned to such term in Section 2(h) .
 “ Obligations ” shall mean (a) all obligations and guarantees thereof of the Borrower and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest (including any interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Borrower and the other Loan Parties under this Agreement and the other Loan Documents and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower and the other Loan Parties under or pursuant to this Agreement and the other Loan Documents, in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising.
 “ OFAC ” shall mean the Office of Foreign Asset Control of the Department of Treasury of the United States of America.
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 “ Off-Balance Sheet Obligations ” of a person shall mean, without duplication, (a) any repurchase obligation or liability of such person with respect to accounts or notes receivable sold by such person, (b) any Synthetic Lease Obligations of such person, or (c) any indebtedness, liability or obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheets of such person (other than operating leases).
 “ Officers’ Certificate ” shall mean a certificate executed by (a) the chairman of the Board of Directors (if an officer), the chief executive officer, the president or the chief operating officer or (b) one of the Financial Officers, each in his or her official (and not individual) capacity.
 “ Order ” shall mean any judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction.
 “ Organizational Documents ” shall mean, collectively, with respect to any person, (a) in the case of any corporation, the certificate of incorporation and by-laws (or similar constitutive documents) of such person, (b) in the case of any limited liability company, the certificate of formation and operating agreement (or similar constitutive documents) of such person, (c) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar constitutive documents) of such person, (d) in the case of any general partnership, the partnership agreement (or similar constitutive document) of such person, (e) in any other case, the functional equivalent of the foregoing, and (f) any shareholder, voting trust or similar agreement between or among any holders of Equity Interests of such person.
 “ Other Connection Taxes ” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
 “ Other Taxes ” shall mean any and all present or future stamp, court, intangible, recording, property, filing or documentary Taxes or any similar Taxes, charges or levies arising from any payment made or required to be made under any Loan Document or from the execution, delivery, performance, registration or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document.
 “ Participant ” shall have the meaning assigned to such term in Section 11.04(f) .
 “ Participant Register ” shall have the meaning assigned to such term in Section 11.04(f) .
 “ Patriot Act ” shall have the meaning assigned to such term in Section 3.21(a) .
 “ Payment Recipient ” shall have the meaning assigned to it in Section 10.14(a) .
 “ PBGC ” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
 “ Pension Plan ” shall mean any “employee pension benefit plan” (as defined in Section 3(2) of ERISA) (other than a Multiemployer Plan and other than a Foreign Plan) subject to the provisions of Title IV of ERISA or Section 412 or 430 of the Code or Section 302 of ERISA (a) which is maintained, sponsored, contributed to or required to be contributed to by any Company or any ERISA Affiliate or (b) with respect to which any Company or ERISA Affiliate has incurred any undischarged liability or could
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 reasonably be expected to incur any liability (whether contingent or otherwise) including under Section 4062 or Section 4069 of ERISA.
 “ Perfection Certificate ” shall mean a perfection certificate in the form of Exhibit F-1 or any other form approved by the Collateral Agent, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.
 “ Perfection Certificate Supplement ” shall mean a perfection certificate supplement in the form of Exhibit F-2 or any other form approved by the Required Lenders.
 “ Periodic Term SOFR Determination Day ” shall have the meaning specified in the definition of “Term SOFR.”
 “ Permitted Liens ” shall have the meaning assigned to such term in Section 6.02 .
 “ Permitted Priority Liens ” means “Prepetition Permitted Prior Liens” as defined in the Orders.
 “ Permitted Refinancing ” shall have the meaning assigned to such term in Section 6.01(k) .
 “ Permitted Variance ” shall mean:
 (a)    in respect of Actual Operating Receipts, on a cumulative basis, for each Variance Testing Period, 30%;
 (b)    in respect of Actual Operating Disbursements, on a cumulative basis, for each Variance Testing Period, 20%;
 (c)    in respect of Actual Non-Operating Disbursements, on a cumulative basis, for such Variance Testing Period, 20%; and
 (d)    in respect of each Actual Non-Recurring Costs, on a line-item basis, for each Variance Testing Period, 5%.
 “ Person ” shall mean any natural person, corporation, business trust, joint venture, association, company (whether limited in liability or otherwise), partnership (whether limited in liability or otherwise) or Governmental Authority, or any other entity, in any case, whether acting in a personal, fiduciary or other capacity.
 “ Petition Date ” shall have the meaning assigned to such term in the Recitals herein.
 “ Plan Effective Date ” means the effective date of the Acceptable Plan, pursuant to which substantial consummation (as defined in section 1101 of the Bankruptcy Code) of the Acceptable Plan shall have occurred.
 “ Platform ” shall mean IntraLinks, SyndTrak or a substantially similar electronic transmission system.
 “ Pledgor ” shall mean each Company listed on Schedule 1.01(a) , and each other Subsidiary of any Company that is or becomes a party to this Agreement (in its capacity as a Subsidiary Guarantor) and the Security Documents pursuant to Section 5.10 .
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 “ Prepetition Convertible Notes ” shall mean that certain Indebtedness set forth on Schedule 6.01(b) .
 “ Prepetition Credit Agreement ” shall mean that certain Credit Agreement, dated as of November 5, 2021 (as amended by that certain First Amendment to Credit Agreement, dated as of January 27, 2022, that certain Second Amendment to Credit Agreement, dated as of December 29, 2022, that certain Third Amendment to Credit Agreement, dated as of January 9, 2023, that certain Fourth Amendment to Credit Agreement, dated as of May 14, 2024, that certain Fifth Amendment to Credit Agreement, dated as of June 2, 2024, that certain Sixth Amendment to Credit Agreement, dated as of August 7, 2024, that certain Seventh Amendment to Credit Agreement, dated as of September 13, 2024, that certain Eighth Amendment to Credit Agreement, dated as of February 7, 2026, that certain Limited Waiver to Credit Agreement, dated as of March 9, 2026, that certain Limited Waiver to Credit Agreement, dated as of March 23, 2026, that certain Limited Waiver to Credit Agreement, dated as of April 6, 2026, that certain Limited Waiver to Credit Agreement, dated as of April 20, 2026, that certain Limited Waiver to Credit Agreement, dated as of May 3, 2026, that certain Limited Waiver to Credit Agreement, dated as of May 11, 2026, that certain Ninth Amendment to Credit Agreement, dated as of May 14, 2026), among the Borrower, the Subsidiary Guarantors party thereto, the Lenders party thereto, the Administrative Agent and the Collateral Agent.
 “ Prepetition Indebtedness ” shall mean the Prepetition Secured Indebtedness and the Prepetition Convertible Notes.
 “ Prepetition Indenture ” shall mean that certain Indenture, dated as of September 13, 2024, by and among the Borrower, the guarantors party thereto from time to time and U.S. Bank Trust Company, National Association, a national banking association, as Trustee and Notes Collateral Agent (each as defined therein).
 “ Prepetition Secured Documents ” shall mean, collectively, the Prepetition Credit Agreement and the Prepetition Indenture.
 “ Prepetition Secured Indebtedness ” shall mean collectively the Indebtedness under the Prepetition Secured Documents.
 “ Prepetition Secured Parties ” shall mean the “Secured Parties” under and as defined in the Prepetition Secured Documents.
 “ Prepetition Term Lender ” shall mean a lender under the Prepetition Credit Agreement.
 “ Prepetition Term Loans ” shall mean term loans under the Prepetition Credit Agreement.
 “Prime Rate” shall mean the rate of interest which is identified as the “Prime Rate” and normally published in the Money Rates section of The Wall Street Journal (or, if such rate ceases to be so published, 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 the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent)); each change in the Prime Rate shall be effective from the date such change is announced as being effective.
 “ Pro Rata Share ” shall have the meaning assigned to such term in Section 7.10(a) .
 “ Property ” shall mean any right, title or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible and including Equity Interests of any
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 person and whether now in existence or owned or hereafter entered into or acquired, including all Real Property, cash, securities, accounts, revenues and contract rights.
 “ Public Filings ” shall mean the Borrower’s filings and submissions to the SEC, including, without limitation, all information filed or furnished pursuant to the Exchange Act.
 “ Public Lenders ” shall mean any Lender that does not wish to receive Non-Public Information with respect to the Borrower or its Subsidiaries or their respective securities.
 “ Public Official ” shall mean (i) any officer, employee or representative of any regional, federal, state, provincial, county or municipal government or government department, agency, or other division; (ii) any officer, employee or representative of any commercial enterprise that is owned or controlled by a government, including any state-owned or controlled veterinary or medical facility; (iii) any officer, employee or representative of any public international organization, such as the African Union, the International Monetary Fund, the United Nations or the World Bank; (iv) any person acting in an official capacity for any government or government entity, enterprise, or organization identified above; and (v) any political party, party official or candidate for political office.
 “ Purchase Money Obligation ” shall mean, for any person, the obligations of such person in respect of Indebtedness (including Capital Lease Obligations) incurred for the purpose of financing all or any part of the purchase price of any fixed or capital assets (including Equity Interests of any person owning fixed or capital assets) or the cost of installation, construction or improvement of any fixed or capital assets (including capitalized leasehold improvements); provided , however , that (a) such Indebtedness is incurred prior to or within 90 days after such acquisition, installation, construction or improvement of such fixed or capital assets by such person and (b) the amount of such Indebtedness does not exceed 100% of the cost of such acquisition, installation, construction or improvement, as the case may be.
 “ QFC Credit Support ” shall have the meaning assigned to such term in Section 11.20 .
 “ Qualified ECP Guarantor” shall mean, in respect of any Swap Obligations, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
 “ Real Property ” shall mean, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned, leased or operated by any person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other Property and rights incidental to the ownership, lease or operation thereof.
 “ Real Property Leases ” shall have the meaning assigned to such term in Section 3.05(b) .
 “ Register ” shall have the meaning assigned to such term in Section 11.04(d) .
 “ Regulation T ” shall mean Regulation T of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
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 “ Regulation U ” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
 “ Regulation X ” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
 “ Related Person ” shall mean, with respect to any person, (a) each Affiliate of such person and each of the officers, directors, partners, trustees, employees, affiliates, shareholders, Advisors, agents, administrators, managers, representatives, attorneys-in-fact and Controlling persons of each of the foregoing, and (b) if such person is an Agent, each other person designated, nominated or otherwise mandated by or assisting such Agent pursuant to Section 10.05 or any comparable provision of any Loan Document.
 “ Release ” shall mean any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, depositing, dispersing, migrating, dumping or disposing in, on, into, through or from the Environment or any Real Property (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material).
 “ Relevant Responsible Officers ” shall have the meaning assigned to such term in Section 3.23 .
 “ Required Lenders ” shall mean, at any date of determination, Lenders (other than Defaulting Lenders) holding Loans and New Money Commitments representing more than 50.0% of the sum of (i) the aggregate outstanding Loans at such time and (ii) the New Money Commitments then in effect; provided that if, at any date of determination, there are three (3) or more Unaffiliated Lenders, “Required Lenders” shall include at least three (3) such Unaffiliated Lenders.
 “ Resolution Authority ” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
 “ Response ” shall mean (a) “response” as such term is defined in CERCLA, 42 U.S.C. § 9601(25) or any other applicable Environmental Law, or (b) all other actions required pursuant to Environmental Law to (i) clean up, remove, treat, abate, monitor or in any other way address any Release or presence of Hazardous Materials at, in, on, under or from any Real Property, or otherwise in the Environment, (ii) prevent the Release or threat of Release, or minimize the further Release, of any Hazardous Material, or (iii) perform studies and investigations in connection with, or as a precondition to, clause (i) or (ii) above.
 “ Responsible Officer ” of any person shall mean any executive officer, any executive vice president or Financial Officer of such person.
 “ Restructuring Support Agreement ” shall mean that certain Restructuring Support Agreement, dated as of June 2, 2026, by and among the Borrower, the other Company Parties party thereto and the “Consenting Stakeholders” party thereto, including the exhibits, schedules and other attachments thereto (as amended, supplemented or otherwise modified from time to time in accordance with its terms).
 “ Roll-Up Lenders ” shall have the meaning set forth in Section 2.01(b)(i) .
 “ Roll-Up Loans ” shall mean the roll-up loans deemed made on the Closing Date pursuant to Section 2.01(b)(i) .
 “ Rolled-Up Loans ” shall have the meaning assigned to such term in Section 2.01(b)(i) .
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 “ S&P ” shall mean Standard & Poor’s Ratings Services, a division of the McGraw-Hill Companies, Inc., and any successor thereto.
 “ Sale and Leaseback Transaction ” shall have the meaning assigned to such term in Section 6.03 .
 “ Sanctioned Country ” shall mean, at any time, a country or territory which is itself the subject or target of comprehensive Sanctions (as of the date of this Agreement, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic).
 “ Sanctioned Person ” shall mean, at any time, any Person that is the target of Sanctions, including (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, or by the United Nations Security Council, the European Union, any European Union member state or the United Kingdom, (b) any Person operating, organized or resident in a Sanctioned Country, (c) the government of a Sanctioned Country or the Government of Venezuela, or (d) any Person 50% or more owned or controlled by any such Person or Persons or acting for or on behalf of such Person or Persons as described in the foregoing clauses (a), (b), or (c).
 “ Sanctions ” shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or the United Kingdom (including His Majesty’s Treasury).
 “ Sarbanes-Oxley Act ” shall mean the United States Sarbanes-Oxley Act of 2002, as amended, and all rules and regulations promulgated thereunder.
 “ Scheduled Unavailability Date ” shall have the meaning assigned to such term in Section 2.11(b)(ii) .
 “ SEC ” shall mean the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.
 “ Secured Obligations ” shall mean (a) the Obligations and (b) Erroneous Payment Subrogation Rights.
 “ Secured Parties ” shall mean, collectively, the Administrative Agent, the Collateral Agent, each other Agent and the Lenders.
 “ Securities Act ” shall mean the Securities Act of 1933, as amended.
 “ Securities Collateral ” shall have the meaning assigned to such term in the Security Agreement.
 “ Security Agreement ” shall mean that certain Security Agreement, dated as of the date hereof, among the Loan Parties and the Collateral Agent for the benefit of the Secured Parties, as amended, restated, amended and restated, supplemented or otherwise modified from time to time by one or more Joinder Agreements, or otherwise, in accordance with the terms hereof and thereof.
 “ Security Agreement Collateral ” shall mean all Property pledged or granted as collateral pursuant to the Security Agreement delivered on the Closing Date or thereafter pursuant to Section 5.18 or Section 5.10 .
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 “ Security Documents ” shall mean, collectively, the Security Agreement, the Orders, and each other security document or pledge agreement delivered in accordance with applicable local or foreign Legal Requirements to grant a valid, enforceable, perfected security interest (with the priority required under the Loan Documents) in any Property as collateral for the Secured Obligations, and all UCC or other financing statements or instruments of perfection required by this Agreement, the Security Agreement, the Orders, or any other such security document or pledge agreement to be filed with respect to the security interests in Property created pursuant to the Security Agreement, the Orders, and any other document or instrument utilized to pledge any Property as collateral for all (or any of) the Secured Obligations.
 “ SOFR ” shall mean a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
 “ SOFR Administrator ” shall mean the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
 “ SOFR Borrowing ” shall mean a Borrowing comprised of Term SOFR Loans.
 “ SOFR Screen Rate ” shall mean the SOFR quote on the applicable screen page the Administrative Agent designates to determine SOFR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
 “ SOFR Successor Rate ” shall have the meaning assigned to such term in Section 2.11(b) .
 “ SOFR Successor Rate Conforming Changes ” shall mean, with respect to any proposed SOFR Successor Rate, any conforming changes to the definition of “Alternate Base Rate”, “SOFR” or “Interest Period”, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption of such SOFR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such SOFR Successor Rate exists, in such other manner of administration as the Administrative Agent determines in consultation with the Borrower).
 “ SPC ” shall have the meaning assigned to such term in Section 11.04(i) .
 “ Specified Guarantor Release Provision ” shall have the meaning assigned to such term in Section 10.12(c) .
 “ Stated Maturity Date ” shall mean the date that is 60 days after the date hereof; provided , however, that if such date is not a Business Day, the Stated Maturity Date shall be the immediately preceding Business Day; provided , further, that such date may be extended by 30 days with the written consent of the Required Lenders.
 “ Subsequent Borrowing ” shall have the meaning assigned to such term in Section 2.01(a)(ii) .
 “ Subsequent Funding Date ” shall mean any date of funding of any Subsequent Borrowing.
 “ Subsidiary ” shall mean, with respect to any person (the “ parent ”) at any date, (a) any person the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, (b) any other corporation, limited liability company, association or other business entity of which securities or other
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 ownership interests representing more than 50% of the voting power of all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors (or similar governing body) thereof are, as of such date, owned, controlled or held by the parent and/or one or more subsidiaries of the parent, (c) any partnership (i) the sole general partner or the managing general partner of which is the parent and/or one or more subsidiaries of the parent or (ii) the only general partners of which are the parent and/or one or more subsidiaries of the parent and (d) any other person that is otherwise Controlled by the parent and/or one or more subsidiaries of the parent. Unless the context requires otherwise, “ Subsidiary ” refers to a Subsidiary of the Borrower.
 “ Subsidiary Guarantor ” shall mean each Subsidiary of any Loan Party that (i) is a Domestic Subsidiary and (ii) is or becomes a party to this Agreement and the Security Documents pursuant to and in compliance with all the requirements set forth in Section 5.10 , including the Subsidiaries listed on Schedule 1.01(c) and specified on such schedule as a Subsidiary Guarantor.
 “ Superpriority Claim ” or “ Superpriority Claims ” shall mean superpriority administrative expense claims against the Loan Parties on a joint and several basis with priority over any and all claims against the Debtors, now existing or hereafter arising, of any kind whatsoever, including, without limitation, all administrative expenses of the kind specified in sections 503(b) and 507(b) of the Bankruptcy Code, or specified in or ordered pursuant to sections 105, 326, 327, 328, 330, 331, 361, 362, 363, 364, 365, 503, 506, 507(a), 507(b), 546, 552, 726, 1113 or 1114 of the Bankruptcy Code.
 “ Supported QFC ” shall have the meaning assigned to such term in Section 11.20 .
 “ Swap Obligation ” shall mean, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
 “ Synthetic Lease ” shall mean, as to any person, any lease (including leases that may be terminated by the lessee at any time) of any Property (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the Property so leased for U.S. federal income tax purposes, other than any such lease under which such person is the lessor.
 “ Synthetic Lease Obligations ” shall mean, as to any person, an amount equal to the capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a balance sheet of such person in accordance with GAAP if such obligations were accounted for as Capital Lease Obligations.
 “ Tax Returns ” shall mean all returns, statements, filings, attachments and other documents or certifications required to be filed in respect of Taxes.
 “ Taxes ” shall mean any and all present or future taxes, duties, levies, imposts, assessments, fees, deductions, withholdings (including backup withholding) or other similar charges, whether com…