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0000906318-13-000057.txt : 20130802 0000906318-13-000057.hdr.sgml : 20130802 20130802145409 ACCESSION NUMBER: 0000906318-13-000057 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 14 CONFORMED PERIOD OF REPORT: 20130801 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Completion of Acquisition or Disposition of Assets ITEM INFORMATION: Results of Operations and Financial Condition ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20130802 DATE AS OF CHANGE: 20130802 FILER: COMPANY DATA: COMPANY CONFORMED NAME: STANDARD REGISTER CO CENTRAL INDEX KEY: 0000093456 STANDARD INDUSTRIAL CLASSIFICATION: MANIFOLD BUSINESS FORMS [2761] IRS NUMBER: 310455440 STATE OF INCORPORATION: OH FISCAL YEAR END: 0103 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-11699 FILM NUMBER: 131006110 BUSINESS ADDRESS: STREET 1: 600 ALBANY ST CITY: DAYTON STATE: OH ZIP: 45401 BUSINESS PHONE: 5134341000 MAIL ADDRESS: STREET 1: 600 ALBANY STREET STREET 2: P O BOX 1167 CITY: DAYTON STATE: OH ZIP: 45401-1167 8-K 1 sr8k8113.htm FORM 8-K Converted by EDGARwiz

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report: August 1, 2013

THE STANDARD REGISTER COMPANY

(Exact name of Registrant as specified in its Charter)


Ohio	1-1097	59-2663954
(State or other jurisdiction of incorporation)	(Commission File No.)	(I.R.S. Employer Identification No.)


600 Albany Street, Dayton, Ohio	45417
(Address of principal executive offices)	(Zip Code)

Registrant’s telephone number, including area code: (937) 221-1000

N/A

(Former name or former address, if changed since last report)

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

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☒ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a -12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01

Entry into a Material Definitive Agreement.

Purchase Agreement

On August 1, 2013, The Standard Register Company, an Ohio corporation (“Standard Register” or the “Company”), entered into a Membership Interest Purchase Agreement (the “Purchase Agreement”), by and among the Company, WorkflowOne, LLC, a Delaware limited liability (“WorkflowOne”) and Workflow Holdings, LLC, a Delaware limited liability company (the “Seller”). Pursuant to the Purchase Agreement, the Company acquired from the Seller all of the outstanding membership interests of WorkflowOne for an aggregate purchase price of $1.00 (the “Acquisition”). WorkflowOne is headquartered in Dayton, Ohio and provides print and promotional marketing services to a range of industries. WorkflowOne generated approximately $460,000,000 of revenue for the 2012 fiscal year. The acquisition was completed on August 1, 2013 (the “Closing Date”) immediately following execution of the Purchase Agreement.

The Purchase Agreement contains customary representations, warranties and covenants. The Company has obtained an insurance policy with respect to breaches of the representations and warranties of WorkflowOne and the Seller under the Purchase Agreement. This insurance policy is the only remedy available to the Company for breaches of WorkflowOne’s and the Seller’s representations and warranties. In addition, the Purchase Agreement provides that for six years following the Closing Date, the Company will indemnify the directors, officers and managers of WorkflowOne, the Seller and its affiliates for any claims or liabilities arising out of their actions or omissions on or before the Closing Date.

The Purchase Agreement is filed as Exhibit 2.1 to this Current Report on Form 8-K and incorporated into this Item 1.01 by reference, and the foregoing summary of the Purchase Agreement is qualified in its entirety by reference to Exhibit 2.1.

Amendment and Restatement Agreement

On August 1, 2013, in connection with its purchase of WorkflowOne, the Company also entered into an Amendment and Restatement Agreement (the “Amendment and Restatement Agreement”), by and among the Company, WorkflowOne, the Seller, WorkflowOne’s first lien lenders (the “First Lien Lenders”), WorkflowOne’s second lien lenders (the “Second Lien Lenders”), Silver Point Capital, L.P., as the lenders’ representative (in such capacity, the “Lenders’ Representative”), and Silver Point Finance, LLC, as the administrative agent.

Pursuant to the Amendment and Restatement Agreement, the Company assumed WorkflowOne’s existing indebtedness under two secured credit facilities, as described below, and issued warrants (the “Warrants”) to the Second Lien Lenders that will be convertible into 2,645,952 shares in the aggregate of the Company’s common stock (“Common Stock”), par value $1.00 per share, subject to receipt of the approval of the Company’s shareholders as described below. The Warrants and the shares of Common Stock issuable upon conversion of the Warrants are subject to the terms and conditions of the Shareholders Agreement described below.

Under the Amendment and Restatement Agreement, the Company is required to convene a special meeting of the Company’s shareholders as soon as reasonably practicable to obtain the following approvals: (i) an amendment to the code of regulations of the Company authorizing the Board to change the number of directors and fill any director’s office created by an increase in the number of directors, in order to grant the Second Lien Lenders two Board designees pursuant to the Shareholders Agreement, as described below, which requires the affirmative vote of shares representing a majority of the outstanding voting power of the Company, (ii) approval of the conversion of the Warrants into shares of Common Stock, which requires the affirmative vote of shares representing a majority of the voting power present in person or represented by proxy at the special meeting and (iii) an amendment to the code of regulations of the Company to opt out of Section 1701.831 of the Ohio Revised Code, which requires the affirmative vote of shares representing a majority of the outstanding voting power of the Company.

As further described below, the John Q. Sherman Trust, William C. Sherman Trust and William C. Sherman Inter Vivos Trust (collectively, the “Majority Shareholders”) have entered into a Voting Agreement pursuant to which they have agreed to vote in favor of each of the approvals described above. The Voting Agreements represent sufficient voting power to obtain each of the approvals described above.

If the Company does not obtain the approvals set forth above before the earlier May 27, 2014, or the date of certain breaches of a Voting Agreement or the Amendment and Restatement Agreement, then WorkflowOne will be required to issue additional loans to the Second Lien Lenders in a principal amount of $25,000,000, which loans will constitute a third tranche of loans under the Second Lien Credit Facility.

The Amendment and Restatement Agreement contains customary representations, warranties and covenants. The representations and warranties do not survive the Closing Date. In addition, the Amendment and Restatement Agreement sets a target amount of $40,950,000 for WorkflowOne’s working capital. On the Closing Date, the Seller deposited $5,000,000 into an account for purposes of the working capital calculation, to be held in escrow for the Company pursuant to an escrow agreement. If the working capital of WorkflowOne as of the Closing Date is determined to be less than or equal to $35,950,000, then the $10,000,000 tranche of loans under the Second Lien Credit Facility (as defined below) denominated as “Tranche B Second Lien Term Loans” will be cancelled without consideration. If the working capital of WorkflowOne as of the Closing Date is determined to be greater than $35,950,000, then (i) the Company will be required to voluntarily prepay loans outstanding under the First Lien Credit Facility (as defined below) in an amount equal to the lesser of the excess working capital and $10,000,000 and (ii) the principal amount of the “Tranche B Second Lien Term Loans” under the Second Lien Credit Facility will only be cancelled in an amount equal to the excess, if any, of $10,000,000 over the principal amount of loans outstanding under the First Lien Credit Facility that were required to be prepaid. The working capital of WorkflowOne as of the Closing Date will be calculated within 40 business days and finalized in accordance with the Amendment and Restatement Agreement.

The Amendment and Restatement Agreement is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated into this Item 1.01 by reference, and the foregoing

summary of the Amendment and Restatement Agreement is qualified in its entirety by reference to Exhibit 10.1.

First Lien Credit Facility

Pursuant to the Amendment and Restatement Agreement, on August 1, 2013, the Company entered into a First Lien Credit Agreement (the “First Lien Credit Facility”), by and among the Company and WorkflowOne, as co-borrowers, the First Lien Lenders, Silver Point Finance, LLC, as administrative agent to the First Lien Lenders, and Standard Register International, Inc., Standard Register Technologies, Inc., iMedconsent, LLC and WorkflowOne of Puerto Rico Inc., as guarantors (collectively, the “Guarantors”).

Under the First Lien Credit Facility, the Company assumed, and the Guarantors guaranteed, the indebtedness outstanding under WorkflowOne’s previous first lien credit facility. Such indebtedness remains outstanding under the First Lien Credit Facility as first lien term loans of WorkflowOne and the Company, as co-borrowers, and will bear interest at an adjusted LIBOR plus 7.00%.

The Company is required to make an amortization payment of $2,500,000 in respect of the loans under the First Lien Credit Facility on the last business day of each March, June, September and December, commencing on September 30, 2014. The First Lien Credit Facility also includes mandatory prepayments of the loans with a percentage of excess cash flow and the proceeds of asset sales and casualty events, subject to exceptions and customary reinvestment rights. The Company is required to repay in full the unpaid principal amount of the loans under the First Lien Credit Facility on August 1, 2018.

As of August 1, 2013, the aggregate principal amount of loans outstanding under the First Lien Credit Facility was $123,753,259.62.

The obligations of the Company, WorkflowOne and the Guarantors under the First Lien Credit Facility, the Second Lien Credit Facility and the ABL Credit Facility (as defined below) are secured by liens on substantially all of the assets of such companies, with the priority of the liens among the facilities determined by intercreditor agreements.

The First Lien Credit Facility is filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated into this Item 1.01 by reference, and the foregoing summary of the First Lien Credit Facility is qualified in its entirety by reference to Exhibit 10.2.

Second Lien Credit Facility

Pursuant to the Amendment and Restatement Agreement, on August 1, 2013, the Company entered into a Second Lien Credit Agreement (the “Second Lien Credit Facility”), by and among the Company and WorkflowOne, as co-borrowers, the Second Lien Lenders, the Administrative Agent, as administrative agent to the Second Lien Lenders and the Guarantors.

Under the Second Lien Credit Facility, the Company assumed and the Guarantors guaranteed the remaining indebtedness outstanding under WorkflowOne’s previous second lien credit facility. Such indebtedness became “Tranche A Second Lien Term Loans” under the Second Lien Credit Facility and remains outstanding as second lien term loans of WorkflowOne and the Company, as co-borrowers. Such indebtedness will bear interest at an adjusted LIBOR plus 8.65%.

Upon the termination of the First Lien Credit Facility, the Second Lien Credit Facility requires mandatory prepayments of the loans with a percentage of excess cash flow and the proceeds of asset sales and casualty events, subject to exceptions and customary reinvestment rights. The Company is required to repay in full the unpaid principal amount of the loans under the Second Lien Credit Facility on February 1, 2020.

As of August 1, 2013, the aggregate principal amount of Tranche A Second Lien Term Loans outstanding under the Second Lien Credit Facility was $86,246,740.38. In addition, as of the Closing Date, pursuant to the Amendment and Restatement Agreement, the Company issued $10,000,000 of non-interest bearing “Tranche B Second Lien Term Loans” which will either be cancelled for no consideration or converted into Tranche A Second Lien Term Loans in connection with the working capital adjustment described above.

The Second Lien Credit Facility is filed as Exhibit 10.3 to this Current Report on Form 8-K and incorporated into this Item 1.01 by reference, and the foregoing summary of the Second Lien Credit Facility is qualified in its entirety by reference to Exhibit 10.3.

ABL Credit Facility

The Company entered into an Amended and Restated Loan and Security Agreement, dated August 1, 2013 (the “ABL Credit Facility”), by and among the Company, Workflow One, Standard Register International, Inc., Standard Register Technologies, Inc., iMedconsent, LLC and WorkflowOne of Puerto Rico Inc., as borrowers, the lenders party thereto and Bank of America, N.A., as administrative agent. The ABL Credit Facility amended and restated the terms and conditions of the Loan and Security Agreement (the “Existing ABL Credit Facility”), which was disclosed on the Company’s Current Report on Form 8-K dated April 1, 2010 and a copy of which was filed with Company’s Quarterly Report on Form 10-Q dated as Exhibit 4.2 thereto, each of which is incorporated herein by reference.

The ABL Credit Facility provides the Company and the other borrowers with a revolving credit facility in an aggregate principal amount of up to $125,000,000, which includes a subfacility of $25,000,000 for the issuance of letters of credit. Outstanding amounts under the ABL Credit Facility will bear interest at an adjusted LIBOR plus a spread ranging from 1.75% to 2.25% (or a base rate plus a spread ranging from 0.75% to 1.25%), determined by reference to the Company’s average liquidity over the previous fiscal quarter. Unused commitments under the ABL Credit Facility are subject to a monthly fee equal to 0.375% of the principal amount thereof, or if less than 50% of the commitments are unused at such time, 0.250%. The lenders’ commitment to make loans and issue letters of credit to the Company and the other borrowers

under the ABL Credit Facility will terminate on August 1, 2018, unless the ABL Credit Facility is terminated earlier in accordance with its terms.

As of August 1, 2013, the aggregate principal amount of loans outstanding under the ABL Credit Facility was $47,118,474.

The ABL Credit Facility is filed as Exhibit 10.4 to this Current Report on Form 8-K and incorporated into this Item 1.01 by reference, and the foregoing summary of the ABL Credit Facility is qualified in its entirety by reference to Exhibit 10.4.

Warrants

The Warrants are exercisable beginning on first business day after the date of obtaining the shareholders’ approval of the conversion of the Warrants into shares of Common Stock and ending on the date that is three months after the date of obtaining such approval. The per share exercise price of each Warrant is $0.00001. Each warrant may be exercised, either by payment of the exercise price or on a cashless basis, only after the receipt of the shareholders’ approval of the conversion of the Warrants and only in whole.

The form of the Warrants is filed as Exhibit 4.1 to this Current Report on Form 8-K and incorporated into this Item 1.01 by reference, and the foregoing summary of the Warrants is qualified in its entirety by reference to Exhibit 4.1.

Shareholders Agreement

On August 1, 2013, in connection with the transactions contemplated by the Purchase Agreement and the Amendment and Restatement Agreement, the Company entered into a Shareholders Agreement (the “Shareholders Agreement”), by and among the Company, the Majority Shareholders, the Second Lien Lenders, as holders of the Warrants and, as applicable, the shares of Common Stock issuable upon conversion of the Warrants and Silver Point Capital, L.P., as the representative of the Second Lien Lenders (in such capacity, the “Minority Shareholder Representative”).

Under the Shareholders Agreement, the Second Lien Lenders are entitled to nominate two directors to the Board so long as the Second Lien Lenders own at least 66% of the shares of Common Stock issuable upon conversion of the Warrants. If the Second Lien Lenders own less than 66% but more than 33% of the total Warrants and/or the shares of Common Stock issuable upon conversion of the Warrants, or own more than 10% of the outstanding equity securities of the Company, the Second Lien Lenders will be entitled to nominate one director to the Board. In each case, the Majority Shareholders have agreed to vote in favor of the directors nominated by the Second Lien Lenders pursuant to the Shareholders Agreement. On the Closing Date, the director designated by the Second Lien Lenders will be appointed as a non-voting observer to the Board, and upon receipt of the shareholder approval described above, the Company and the Majority Shareholders will cause the two directors designated by the Second Lien Lenders to be appointed to the Board.

Under the Shareholders Agreement, the Second Lien Lenders are prohibited from (i) acquiring additional equity securities of the Company, except for acquisitions that would result in the Second Lien Lenders owning in the aggregate less than 40% of the outstanding equity securities of the Company, (ii) entering into any merger or other transaction involving the Company that would involve the sale of substantially all of the Company’s assets or the transfer of the majority voting power or the ability to elect a majority of the Board (a “Change of Control Transaction”), (iii) calling a special meeting of the Company’s shareholders or participating in the solicitation of proxies, (iv) entering into a voting trust or voting agreement or (v) seeking the removal of directors or other changes to the composition of the Board, in each case except in accordance with the Shareholders Agreement. The Second Lien Lenders are also prohibited from transferring the Warrants or the shares of Common Stock issuable upon conversion of the Warrants to (i) any material competitor, as determined by the Board, (ii) any transferee that as a result would own more than 20% of the Company’s equity securities or (iii) any transferee that as a result would own more than 10% of the Company’s equity securities, unless such transferee agrees to be bound by the terms of the Shareholders Agreement.

Under the Shareholders Agreement, in the event that the Majority Shareholders seek to transfer any shares of the Common Stock or the Class A Common Stock of the Company pursuant to a Change of Control Transaction, the Second Lien Lenders will be entitled to include the shares of Common Stock issuable upon conversion of the Warrants in such transaction at the same per-share price and on the same terms as the Majority Shareholders.

The Shareholders Agreement also prohibits the Company from amending its articles of incorporation or code of regulations in a way that would materially and adversely affect the Second Lien Lenders or from engaging in certain transactions with affiliates outside of the ordinary course of business, except in each case with the prior written consent of the Second Lien Lenders.

The Shareholders Agreement is filed as Exhibit 10.5 to this Current Report on Form 8-K and incorporated into this Item 1.01 by reference, and the foregoing summary of the Shareholders Agreement is qualified in its entirety by reference to Exhibit 10.5.

Registration Rights Agreement

On August 1, 2013, in connection with the transactions contemplated by the Purchase Agreement and the Amendment and Restatement Agreement, the Company entered into a Registration Rights Agreement (the “Registration Rights Agreement”), by and among the Company, the Majority Shareholders, the Second Lien Lenders and the Minority Shareholder Representative pursuant to which the Second Lien Lenders and the Majority Shareholders are entitled to certain registration rights in respect of the shares of Common Stock issuable upon conversion of the Warrants. Under the terms of the Registration Rights Agreement, the Majority Shareholders and the Second Lien Lenders are entitled to (i) four demand registrations apiece, in each case limited to one demand registration in any six month period and provided that such demand must include either (a) at least 10% of the Common Stock, (b) a number of shares having an aggregate market value of at least $15,000,000 or (c) 75% of the shares of Common Stock issuable upon conversion of the Warrants held by the Second Lien Lenders at the time of

the demand, and (ii) unlimited piggyback registration rights with respect to primary public issuances of the Common Stock.

The Registration Rights Agreement is filed as Exhibit 10.6 to this Current Report on Form 8-K and incorporated into this Item 1.01 by reference, and the foregoing summary of the Registration Rights Agreement is qualified in its entirety by reference to Exhibit 10.6.

Voting Agreement

On August 1, 2013, in connection with the transactions contemplated by the Purchase Agreement and the Amendment and Restatement Agreement, the Company entered into Voting Agreements (the “Voting Agreements”), by and among the Company, the Lenders’ Representative and the Majority Shareholders, pursuant to which the Majority Shareholders agreed to vote in favor of obtaining the approval of shareholders described above. Prior to obtaining such approvals or the termination of the Warrants, the Voting Agreements provide that the Majority Shareholders will refrain from transferring their shares of the Common Stock or the Class A Common Stock, unless the transferee agrees to be bound by the Voting Agreement, or taking certain other actions inconsistent with obtaining the shareholder approvals described above. The Majority Shareholders exercise sufficient voting power to obtain each of the approvals described above at the special meeting.

The form of the Voting Agreement is filed as Exhibit 10.7 to this Current Report on Form 8-K and incorporated into this Item 1.01 by reference, and the foregoing summary of the Voting Agreement is qualified in its entirety by reference to Exhibit 10.7.

Item 2.01 Completion of Acquisition or Disposition of Assets.

The information related to the Purchase Agreement disclosed in Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 2.01 by reference.

Item 2.02 Results of Operations and Financial Condition.

The information in this Item 2.02 (including the exhibit referenced below) is being furnished and shall not be deemed “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that Section. The information in this Item 2.02 shall not be incorporated by reference into any registration statement or other document pursuant to the Securities Act of 1933, as amended.

On August 1, 2013, the Company issued an earnings release announcing its financial results for the second quarter 2013. A copy of the earnings press release is attached as Exhibit 99.1 and is furnished under this Item 2.02.

Item 2.03 Creation of a Direct Financial Obligation.

The information disclosed in Item 1.01 of this Current Report on Form 8-K related to the First Lien Credit Facility, the Second Lien Credit Facility and the ABL Credit Facility is incorporated into this Item 2.03 by reference.

Item 3.02 Unregistered Sales of Equity Securities.

The information related to the Warrants disclosed in Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 3.02 by reference.

The issuance and sale of the Warrants is exempt from the registration requirements of the Securities Act pursuant to Section 4(2) of the Securities Act and/or Regulation D promulgated under the Securities Act (“Regulation D”). Each of the Second Lien Lenders has represented to the Company that it is an “accredited investor” as defined in Regulation D and that the Warrants are being acquired for investment purposes. The Company has not engaged in general solicitation or advertising with regard to the issuance and sale of the Warrants and has not offered securities to the public in connection with this issuance and sale.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated into this item 5.02 by reference.

On July 31, 2013 the Board approved amendments to the executive severance agreements of Joseph P. Morgan, Jr., the Chief Executive Officer, and Robert M. Ginnan, the Chief Financial Officer, which became effective upon the Closing Date (the “Amended and Restated Executive Severance Agreements”). Subject to the terms and conditions of the Amended and Restated Executive Severance Agreements, Mr. Morgan and Mr. Ginnan will each receive a severance benefits term of two years. The form of each Amended and Restated Executive Severance Agreement is filed as Exhibit 5.1 to this Current Report on Form 8-K and incorporated into this item 5.02 by reference, and the foregoing summary of the Amended and Restated Executive Severance Agreements is qualified in its entirety by reference to Exhibit 5.1.

On July 31, 2013 the Board approved certain transaction related bonuses in connection with the closing of the transactions described above. Mr. Morgan will receive a maximum bonus of $900,000 and Mr. Ginnan will receive a maximum bonus of $325,000. One-half of these target bonuses were paid at the close of the transaction on August 1, 2013. The remaining amounts of the bonuses will be paid in the first quarter of 2014 based on certain performance-related thresholds.

On July 31, 2013 the Board approved certain equity grants in connection with the closing of the transactions described above. Mr. Morgan will receive 91,000 shares of performance related restricted stock and 39,000 shares of time-vested restricted stock, Mr. Ginnan will receive 24,500 shares of performance related restricted stock and 10,500 shares of time-vested restricted stock and William P. Lee, the President, Business Solutions, will receive 14,000 shares of performance related restricted stock and 6,000 shares of time-vested restricted stock. Such grants are being made pursuant to the Company’s 2011 Equity Incentive Plan and/or the Company’s Amended and Restated 2002 Equity Incentive Plan. The time vested restricted stock will cliff vest on the third anniversary of the date of grant. The performance-related restricted stock will

vest based on the achievement of certain performance goals over three years. In connection with the approval of the performance related restricted stock, the Board approved a new form of Performance Restricted Stock Grant Agreement. The form of the Performance Restricted Stock Grant Agreement is filed as Exhibit 5.2 to this Current Report on Form 8-K and incorporated into this item 5.02 by reference.

Item 8.01 Other Events.

On August 1, 2013, the Company issued a press release announcing that it had entered into the Purchase Agreement and the Amendment and Restatement Agreement, and had consummated the transactions contemplated thereby. The press release is attached as Exhibit 99.2 to this Current Report on Form 8-K.

Item 9.01 Financial Statements and Exhibits.

(a) Financial Statements of Business Acquired

The financial information required by this item is not being filed herewith. To the extent such information is required by this item, it will be filed by amendment to this Current Report on Form 8-K no later than October 14, 2013.

(b) Pro Forma Financial Information

The pro forma financial information required by this item for the acquired business is not being filed herewith. To the extent such information is required by this item, it will be filed by amendment to this Current Report on Form 8-K no later than October 14, 2013.

(d)

Exhibits


Exhibit	Description
2.1	Membership Interest Purchase Agreement, dated as of August 1, 2013, by and among The Standard Register Company, Workflow Holdings, LLC and WorkflowOne, LLC.
4.1	Form of Warrant.
5.1	Form of Amended and Restated Executive Severance Agreement.
5.2	Form of Performance Restricted Stock Grant Agreement.
10.1	Amendment and Restatement Agreement, dated as of August 1, 2013, by and among The Standard Register Company, Workflow Holdings, LLC, WorkflowOne, LLC, the subsidiary guarantors named therein, Silver Point Capital, L.P, Silver Point Finance, LLC and the lenders named therein.
10.2	First Lien Credit Agreement, dated as of August 1, 2013, by and among The Standard Register Company, WorkflowOne, LLC, the subsidiary guarantors named therein, Silver Point Finance, LLC, as administrative agent, and the lenders named therein.
10.3	Second Lien Credit Agreement, dated as of August 1, 2013, by and among The Standard Register Company, WorkflowOne, LLC, the subsidiary guarantors named therein, Silver Point Finance, LLC, as administrative agent, and the lenders named therein.
10.4	Amended and Restated Loan and Security Agreement, dated as of August 1, 2013, by and among The Standard Register Company, WorkflowOne, LLC, the subsidiary guarantors named therein, Bank of America, N.A., as administrative agent, and the lenders named therein.
10.5	Shareholders Agreement, dated as of August 1, 2013, by and among The Standard Register Company, the shareholders named therein and Silver Point Finance, L.P.
10.6	Registration Rights Agreement, dated as of August 1, 2013, by and among The Standard Register Company, the shareholders named therein and Silver Point Finance, L.P.
10.7	Form of Voting Agreement.
99.1	Press Release of The Standard Register Company, dated August 1, 2013.
99.2	Press Release of The Standard Register Company, dated August 1, 2013.

SIGNATURES

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

THE STANDARD REGISTER COMPANY

Date: August 1, 2013

By: /s/ Gerard D. Sowar

Gerard D. Sowar,

Vice President, General Counsel

and Secretary

EXHIBIT INDEX


Exhibit Number	Description
2.1	Membership Interest Purchase Agreement, dated as of August 1, 2013, by and among The Standard Register Company, Workflow Holdings, LLC and WorkflowOne, LLC.
4.1	Form of Warrant.
5.1	Form of Amended and Restated Executive Severance Agreement.
5.2	Form of Performance Restricted Stock Grant Agreement.
10.1	Amendment and Restatement Agreement, dated as of August 1, 2013, by and among The Standard Register Company, Workflow Holdings, LLC, WorkflowOne, LLC, the subsidiary guarantors named therein, Silver Point Capital, L.P, Silver Point Finance, LLC and the lenders named therein.
10.2	First Lien Credit Agreement, dated as of August 1, 2013, by and among The Standard Register Company, WorkflowOne, LLC, the subsidiary guarantors named therein, Silver Point Finance, LLC, as administrative agent, and the lenders named therein.


Exhibit Number	Description
10.3	Second Lien Credit Agreement, dated as of August 1, 2013, by and among The Standard Register Company, WorkflowOne, LLC, the subsidiary guarantors named therein, Silver Point Finance, LLC, as administrative agent, and the lenders named therein.
10.4	Amended and Restated Loan and Security Agreement, dated as of August 1, 2013, by and among The Standard Register Company, WorkflowOne, LLC, the subsidiary guarantors named therein, Bank of America, N.A., as administrative agent, and the lenders named therein.
10.5	Shareholders Agreement, dated as of August 1, 2013, by and among The Standard Register Company, the shareholders named therein and Silver Point Finance, L.P.
10.6	Registration Rights Agreement, dated as of August 1, 2013, by and among The Standard Register Company, the shareholders named therein and Silver Point Finance, L.P.
10.7	Form of Voting Agreement.
99.1	Press Release of The Standard Register Company, dated August 1, 2013.
99.2	Press Release of The Standard Register Company, dated August 1, 2013.

EX-2 2 ex21.htm EXHIBIT 2.1 Converted by EDGARwiz

Exhibit 2.1

EXECUTION VERSION

MEMBERSHIP INTEREST PURCHASE AGREEMENT

by and among

The Standard Register Company,

WorkflowOne LLC,

and

Workflow Holdings, LLC

Dated August 1, 2013

TABLE OF CONTENTS

ARTICLE I DEFINITIONS

Section 1.1

Certain Defined Terms

Section 1.2

Table of Definitions

ARTICLE II PURCHASE AND SALE

Section 2.1

Purchase and Sale of the Interests

Section 2.2

Closing

Section 2.3

Purchase Price Allocation

ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY 9

Section 3.1

Organization and Qualification

Section 3.2

Authority and Power

Section 3.3

No Conflict; Required Filings and Consents

Section 3.4

Interests

Section 3.5

Capitalization

Section 3.6

Equity Interests

Section 3.7

Financial Statements

Section 3.8

Absence of Undisclosed Liabilities; Indebtedness

Section 3.9

Absence of Certain Changes or Events

Section 3.10

Compliance with Law; Permits

Section 3.11

Litigation

Section 3.12

Employee Benefit Plans

Section 3.13

Labor and Employment Matters

Section 3.14

Title to, Sufficiency and Condition of Assets

Section 3.15

Real Property

Section 3.16

Intellectual Property

Section 3.17

Taxes

Section 3.18

Environmental Matters

Section 3.19

Company Material Contracts

Section 3.20

Affiliate Interests and Transactions

Section 3.21

Insurance

Section 3.22

Certain Payments

Section 3.23

Material Suppliers and Customers

Section 3.24

Inventory

Section 3.25

Accounts Receivable

Section 3.26

Accounts Payable

Section 3.27

Brokers

Section 3.28

Exclusivity of Representations

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER

Section 4.1

Organization and Qualification

Section 4.2

Authority and Power

Section 4.3

No Conflict; Required Filings and Consents

Section 4.4

Litigation

Section 4.5

Brokers

Section 4.6

No Other Seller or Company Representations or Warranties

Section 4.7

Exclusivity of Representations

ARTICLE V COVENANTS

Section 5.1

Covenants Regarding Information

Section 5.2

Further Assurances

Section 5.3

Confidentiality

Section 5.4

Public Announcements

Section 5.5

Directors’ and Officers’ Indemnification

Section 5.6

Company Names and Marks

ARTICLE VI TAX MATTERS

Section 6.1

Tax Returns

Section 6.2

Tax Indemnity

Section 6.3

Tax Allocation

Section 6.4

Tax Cooperation

Section 6.5

Tax Claims

Section 6.6

Article VI Survival

ARTICLE VII CLOSING DELIVERABLES

Section 7.1

Closing Deliverable of Buyer

Section 7.2

Closing Deliverables of Seller

ARTICLE VIII GENERAL PROVISIONS

Section 8.1

Amendment and Modification

Section 8.2

Waiver

Section 8.3

Notices

Section 8.4

Interpretation

Section 8.5

Entire Agreement

Section 8.6

No Third-Party Beneficiaries

Section 8.7

Governing Law

Section 8.8

Jurisdiction; WAIVER OF JURY TRIAL

Section 8.9

Assignment; Successors

Section 8.10

Specific Performance

Section 8.11

Severability

Section 8.12

Counterparts

iii

MEMBERSHIP INTEREST PURCHASE AGREEMENT, dated as of August 1, 2013 (this “Agreement”), by and among The Standard Register Company, an Ohio corporation (“Buyer”), WorkflowOne LLC, a Delaware limited liability company (the “Company”) and Workflow Holdings, LLC, a Delaware limited liability company (“Seller”).

WHEREAS, Seller owns 100% of the issued and outstanding membership interests (the “Interests”) of the Company and Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, the Interests;

WHEREAS, the Company is party to (i) the First Lien Credit Agreement, dated as of March 2, 2011 (the “First Lien Credit Agreement”), by and among the Company, the lenders named therein (the “First Lien Lenders”) and The Bank of New York Mellon, as agent (the “First Lien Agent”) and (ii) the Second Lien Credit Agreement, dated as of March 2, 2011 (the “Second Lien Credit Agreement”), by and among the Company, the lenders named therein (the “Second Lien Lenders” and together with the First Lien Lenders the “Lenders”) and Silver Point Finance, LLC, as agent (the “Second Lien Agent”);

WHEREAS, prior to the Closing, the Company and the Second Lien Lenders agreed to write-down a portion of the outstanding principal and interest on the Second Lien Credit Agreement (the “Write-Down”);

WHEREAS, immediately following the Closing, Buyer, the Company, the First Lien Lenders, the Second Lien Lenders, Silver Point Capital, LP, as representative to the Lenders and the Second Lien Agent to the Lenders have entered into an Amendment and Restatement Agreement (the “Amendment and Restatement Agreement”), pursuant to which Buyer will issue to the Second Lien Lenders Warrants of the Buyer in repayment of a portion of the debt held by the Second Lien Lenders;

WHEREAS, (i) the Board of Directors of Buyer has approved this Agreement, the Ancillary Agreements to which Buyer is a party and the transactions contemplated hereby and thereby and determined that this Agreement, such Ancillary Agreements and the transactions contemplated hereby and thereby are advisable and in the best interest of Buyer and its shareholders, (ii) Buyer has approved this Agreement, the Ancillary Agreements to which Buyer is a party and the transactions contemplated hereby and thereby, and (iii) the Board of Managers of Seller has approved this Agreement, the Ancillary Agreements to which Seller is a party and the transactions contemplated hereby and thereby and determined that this Agreement, such Ancillary Agreements and the transactions contemplated hereby and thereby are advisable and in the best interest of Seller and its stakeholders.

In consideration of the foregoing and the mutual covenants and agreements set forth in this Agreement, and intending to be legally bound, Buyer, Seller and the Company agree as follows:

ARTICLE I
DEFINITIONS

Section 1.1

Certain Defined Terms. For purposes of this Agreement:

“Action” means any claim, action, suit, inquiry, proceeding, audit or investigation by or before any Governmental Authority, or any other arbitration, mediation or similar proceeding.

“Ancillary Agreements” means all other agreements, documents and instruments required to be delivered by any party pursuant to this Agreement.

“Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in The City of New York.

“Buyer Material Adverse Effect” means any event, change, circumstance, occurrence, effect or state of facts that, individually or in the aggregate, would reasonably be expected to materially impair the ability of Buyer to consummate the transactions contemplated by this Agreement.

“Buyer Shareholder Approval” has the meaning ascribed to the defined term “Company Shareholder Approval” in the Amendment and Restatement Agreement.

“Closing Cash” means the aggregate amount of cash on hand of the Company and its Subsidiaries in bank or similar accounts that is readily available for use by the Company and its Subsidiaries as of the Closing Date, excluding (i) any “restricted cash” under GAAP and (ii) any outstanding checks, undeposited checks, checks deposited but not yet cleared, cash in transit and other lockbox items that have been deposited but not yet cleared.

“Code” means the United States Internal Revenue Code of 1986, as amended.

the financial or securities markets, including effects on such businesses, industries, economy or markets resulting from any regulatory and political conditions or developments in general, (B) natural disasters, calamities, national or international political or social conditions, including the outbreak or escalation of war or acts of terrorism, (C) any adoption, implementation, promulgation, proposal or repeal of, or change in Law or GAAP or any interpretation of Law or GAAP or (D) the failure, in and of itself, of the Company to meet any internal or published projections, forecasts, estimates or predictions with respect to revenues, earnings or other financial or operating metrics for any period (provided, that the underlying causes of such failures (subject to the other provisions of this definition) shall not be excluded); except, with respect to clauses (A), (B) and (C), only to the extent that such event, change, circumstance, occurrence, effect or state of facts has had a disproportionately adverse effect to the Company and its Subsidiaries, taken as a whole as compared to other Persons operating in the industries in which the Company and its Subsidiaries conduct their businesses.

“Contract” means any legally enforceable contract, agreement, arrangement or understanding, whether written or oral and whether express or implied.

“control”, including the terms “controlled by” and “under common control with”, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, as trustee or executor, as general partner or managing member, by Contract or otherwise, including the ownership, directly or indirectly, of securities having the power to elect a majority of the board of directors or similar body governing the affairs of such Person.

“Encumbrance” means any charge, claim, limitation, condition, equitable interest, mortgage, lien, option, pledge, security interest, easement, encroachment, right of first refusal, adverse claim or restriction of any kind, including any restriction on or transfer or other assignment, as security or otherwise, of or relating to use, quiet enjoyment, voting, transfer, receipt of income or exercise of any other attribute of ownership.

“ERISA Affiliate” means any trade or business, whether or not incorporated, under common control with the Company or any of its Subsidiaries and that, together with the Company or any of its Subsidiaries, is treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code.

“Escrow Amount” means $5,000,000.

“GAAP” means United States generally accepted accounting principles and practices as in effect on the date of this Agreement.

“Governmental Authority” means any United States or non-United States federal, national, supranational, state, provincial, local or similar government, governmental, legislative, executive, regulatory or administrative authority, branch, agency

or commission or any court, tribunal, or arbitral or judicial body (including any grand jury).

“Immediate Family” means, with respect to any specified Person, any other Person who is an “immediate family member” of such first Person as defined in the general commentary to Section 303A.02(b) of the Listed Company Manual of the New York Stock Exchange.

“Indebtedness” means, with respect to any Person, without duplication: (i) the principal, accreted value, accrued and unpaid interest, prepayment and redemption premiums or penalties (if any), unpaid fees or expenses and other monetary obligations in respect of (A) outstanding indebtedness of such Person for borrowed money and (B) outstanding indebtedness evidenced by notes, debentures, bonds, letters of credit or other similar instruments for the payment of which such Person is responsible or liable; (ii) all outstanding obligations of such Person issued or assumed as the deferred purchase price of property or services, all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement (but excluding trade accounts payable and other accrued current liabilities arising in the ordinary course of business (other than the current liability portion of any indebtedness for borrowed money)); (iii) all amounts required to be capitalized under GAAP as liabilities of such Person as lessee under capitalized leases; (iv) all outstanding obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction, whether contingent or matured; (v) all outstanding obligations of such Person under interest rate or currency swap or other hedging transactions or agreements (valued at the termination value thereof); (vi) all outstanding obligations of the type referred to in clauses (i) through (v) of any Persons for the payment of which such Person is responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise, including guarantees of such obligations; and (vii) all outstanding obligations of the type referred to in clauses (i) through (vi) of other Persons secured by (or for which the holder of such obligations has an existing right, contingent or otherwise, to be secured by) any Encumbrance on any property or asset of such Person (whether or not such obligation is assumed by such Person); provided, that “Indebtedness’ shall not include (A) Indebtedness owing from any such Person to any of its Subsidiaries or from any Subsidiary of any such Person to any such Person and (B) endorsements of negotiated instruments for collection in the ordinary course of business.

and any other information, in each case to the extent any of the foregoing derives economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use, excluding any Copyrights or Patents that may cover or protect any of the foregoing (collectively, “Trade Secrets”); and (v) moral rights, publicity rights, data base rights and any other proprietary or intellectual property rights of any kind or nature that do not comprise or are not protected by Marks, Patents, Copyrights or Trade Secrets.

“Knowledge” means, for an individual, with respect to any fact or matter in question, the actual knowledge of such fact or matter and such knowledge of such fact or matter following reasonable inquiry by such Person. Seller shall be deemed to have knowledge of a particular fact or other matter if Benjamin T. Cutting, Thomas J. Koenig or Timothy A. Tatman has knowledge of such particular fact or other subject matter. Buyer shall be deemed to have knowledge of a particular fact or other matter if Bob Ginnan, Joe Morgan, Gerry Sowar or Jim Vaughn has knowledge of such particular fact or other subject matter. The Company shall be deemed to have knowledge of a particular fact or other matter if Benjamin T. Cutting, Thomas J. Koenig or Timothy A. Tatman has knowledge of such particular fact or other subject matter.

“Law” means any statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or order of any Governmental Authority.

“Leased Real Property” means all real property and interests in real property leased, subleased or licensed to the Company or any of its Subsidiaries or which the Company or any of its Subsidiaries otherwise has a right or option to use or occupy, in each case as tenant, together with all structures, facilities, fixtures, systems, improvements and items of property previously or hereafter located thereon, or attached or appurtenant thereto, and all easements, rights and appurtenances relating to the foregoing.

“NYSE” means the New York Stock Exchange.

“Owned Real Property” means all real property and interests in real property owned by the Company or any of its Subsidiaries, together with all structures, facilities, fixtures, systems, improvements and items of property previously or hereafter located thereon, or attached or appurtenant thereto, and all easements, rights and appurtenances relating to the foregoing.

“Person” means an individual, corporation, partnership, limited liability company, limited liability partnership, syndicate, person, trust, association, organization or other entity, including any Governmental Authority, and including any successor, by merger or otherwise, of any of the foregoing.

that holds, individually or together with any Affiliate of such other Person and any member(s) of such Person’s Immediate Family, more than 5% of the outstanding equity or ownership interests of such specified Person.

“Representatives” means, with respect to any Person, the officers, directors, principals, employees, agents, auditors, attorneys, advisors, bankers and other representatives of such Person.

“Seller Material Adverse Effect” means any event, change, circumstance, occurrence, effect or state of facts that, individually or in the aggregate, would reasonably be expected to materially impair the ability of Seller to consummate the transactions contemplated by this Agreement.

“Seller Representative” means, for purposes of Section 6.4, Silver Point Capital, L.P.

“Straddle Period” means a taxable period of the Company or any of its Subsidiaries that begins on or before and ends after the Closing Date.

“Subsidiary” means, with respect to any Person, any other Person controlled by such first Person, directly or indirectly, through one or more intermediaries.

“Taxes” means: (i) all federal, state, local and foreign net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, registration, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes (including any amounts resulting from the failure to file any Tax Return), together with any interest and any penalties, additions to tax or additional amounts with respect thereto; (ii) any liability for payment of amounts described in clause (i) whether as a result of transferee liability, of being a member of an affiliated, consolidated, combined or unitary group for any period or otherwise through operation of law; and (iii) any liability for the payment of amounts described in clause (i) or (ii) as a result of any tax sharing, tax indemnity or tax allocation agreement or any other express or implied agreement to indemnify any other Person.

“Tax Return” means any return, declaration, report, statement, information statement and other document filed or required to be filed with respect to Taxes, including any claims for refunds of Taxes and any amendment or supplements of any of the foregoing.

“Transaction Expenses” means the aggregate amount of any and all fees and expenses incurred by or on behalf of, or paid or to be paid directly by, the Company or any of its Subsidiaries or any Person that the Company pays or reimburses or is otherwise legally obligated to pay or reimburse (including any such fees and expenses incurred by or on behalf of Seller) in connection with the process of selling the Company or the negotiation, preparation or execution of this Agreement or the Ancillary Agreements or the performance or consummation of the transactions contemplated hereby or thereby, including (i) all fees and expenses of counsel, advisors, consultants, investment bankers,

accountants, auditors and any other experts in connection with the transactions contemplated hereby (which for the avoidance of doubt will not include the payment by Seller of amounts owed pursuant to the insurance policy obtained by Buyer on the Closing Date with respect to breaches of the representations and warranties of Seller and the Company set forth in Article III); (ii) any fees or expenses associated with obtaining the release and termination of any Encumbrances in connection with the transactions contemplated hereby; (iii) any bonus or termination pay or similar payments (but not including any severance payments), including all amounts payable pursuant to the transaction bonus agreements set forth on Schedule 3.27 of the Seller Disclosure Schedules, to the extent contractually triggered by the transactions contemplated hereby or a change of control of the Company, and unpaid as of the Closing; and (iv) all brokers’, finders’ or similar fees in connection with the transactions contemplated hereby (which for the avoidance of doubt will not include the payment by Seller of amounts owed pursuant to the insurance policy obtained by Buyer on the Closing Date with respect to breaches of the representations and warranties of Seller and the Company set forth in Article III).

Section 1.2

Table of Definitions. The following terms have the meanings set forth in the Sections referenced below:

Definition

Location

Agreement

Preamble

Amendment and Restatement Agreement

Recitals

Asset Acquisition Statement

2.3

Buyer

Preamble

Buyer Disclosure Schedules

Article IV

Buyer SEC Documents

Article IV

CERCLA

3.18(h)(iii)

Closing

2.2

Closing Date

2.2

Company

Preamble

Company Certificate of Formation

3.1(b)

Company LLC Agreement

3.1(b)

Company Material Contracts

3.19(a)

Company Registered IP

3.16(e)

Confidential Information

5.3(a)

Controls

3.7(b)

Copyrights

1.1

Environmental Laws

3.18(h)(i)

Environmental Permits

3.18(h)(ii)

ERISA

3.12(a)(i)

Exchange Act

3.3(b)

Financial Statements

3.7(a)

First Lien Agent

Recitals

First Lien Credit Agreement

Recitals

First Lien Lenders

Recitals

Hazardous Substances

3.18(h)(iii)

Indemnified Party

5.5(a)

Intercompany Arrangements

3.20(b)

Interests

Recitals

Interim Financial Statements

3.7(a)

IRS

3.12(b)

Lenders

Recitals

Major Customer

3.23

Major Supplier

3.23

Marks

1.1

Multiemployer Plan

3.12(c)

Multiple Employer Plan

3.12(c)

Patents

1.1

Permits

3.10(b)

Permitted Encumbrances

3.14(a)

Plans

3.12(a)(ii)

Post-Closing Tax Period

Section 6.3

Pre-Closing Tax Period

Section 6.3

Purchase Price

2.1

Release

3.18(g)(iv)

Second Lien Agent

Recitals

Second Lien Credit Agreement

Recitals

Second Lien Lenders

Recitals

Securities Act

3.3(b)

Seller

Preamble

Seller Disclosure Schedules

Article III

Trade Secrets

1.1

ARTICLE II
PURCHASE AND SALE

Section 2.1

Purchase and Sale of the Interests. Upon the terms and subject to the conditions of this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and deliver to Buyer, free and clear of all Encumbrances, and Buyer shall purchase from Seller, the Interests. The aggregate purchase price shall be $1.00 (the “Purchase Price”).

Section 2.2

Closing. The closing of the sale and purchase of the Interests (the “Closing”) shall take place at the offices of Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166-0193, at 8:00 a.m., New York City time concurrently with the execution and delivery of this Agreement (the “Closing Date”).

Section 2.3

Purchase Price Allocation. The sale and purchase of the Interests shall be treated for income Tax purposes as the sale and purchase of the assets of the Company and no party hereto or any Affiliate thereof shall take any position inconsistent with such treatment. Seller and Buyer agree that the Purchase Price (and any assumed liabilities as determined for Tax purposes, including any liabilities for the Indebtedness

treated as assumed by Buyer for tax purposes under the First Lien Credit Agreement and the Second Lien Credit Agreement will be allocated among the assets of the Company for all income Tax purposes in a manner consistent with Section 1060 of the Code and the Treasury Regulations promulgated thereunder. No later than 90 days after the Closing Date, Buyer shall prepare and deliver to Seller for Seller’s review, a copy of the Form 8594 and any required exhibits thereto (the “Asset Acquisition Statement”) allocating the Purchase Price (and any assumed liabilities as determined for income Tax purposes) among the Company’s assets and shall prepare and deliver to Seller, from time to time, for Seller’s review, revised copes of the Asset Acquisition Statement so as to reflect any matters on the Asset Acquisition Statement that need updating (including purchase price adjustments, if any). Within 30 days of delivery of the Asset Acquisition Statement, as the case may be, Seller shall review such statements; and if Seller agrees on the allocation of the Purchase Price (and any assumed liabilities as determined for income Tax purposes) (which shall be evidenced by an Asset Acquisition Statement signed by each of Buyer and Seller), Buyer, Seller and their respective Affiliates shall file all Tax Returns and information reports in a manner consistent with such agreed allocation and shall take no position inconsistent therewith. In the event that Buyer and Seller are unable to agree on such allocation within 30 days after the delivery of the Asset Acquisition Statement, the parties shall negotiate in good faith to reach agreement. In the event that the parties cannot agree on the allocation as set forth in such Asset Acquisition Statement, then none of Buyer or Seller or any of their Affiliates shall be required pursuant hereto to file any Tax Returns or otherwise take any position consistent with such allocation. In the event that Buyer or Seller is unable to agree on the allocation of the final purchase price, then each party will in any event file a Form 8594. For purposes of the preceding, the parties intend that the issue price of the Second Lien Credit Agreement shall be equal to the face amount of the Second Lien Credit Agreement after the Write-Down; provided, for the avoidance of doubt, that the assumed liabilities for tax purposes with respect to the Indebtedness will generally be taken into account as the amount of the adjusted issue price of such liabilities and shall not take into account accrued interest that has not been deducted).

ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF SELLER AND THE COMPANY

Except as set forth in the corresponding sections or subsections of the Disclosure Schedules delivered to Buyer on the date of this Agreement (collectively, the “Seller Disclosure Schedules”) (each of which shall qualify the specifically identified sections or subsections hereof to which such Seller Disclosure Schedules relate or any other section or subsection hereof to which it is reasonably apparent on its face that such Seller Disclosure Schedules relate), Seller and the Company hereby represent and warrant to Buyer as follows:

3.1

Organization and Qualification.

(a)

Seller is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware in all material respects and has the full limited liability company power to own, lease and operate its properties and to

carry on its business as it is now being conducted in all material respects. Each of the Company and its Subsidiaries (i) is an entity duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization; (ii) has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as now being conducted; and (iii) is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership, leasing or operation of its properties makes such qualification or licensing necessary, except in the case of clauses (ii) and (iii), where the failure to have such corporate power or similar power (as applicable), be so qualified or licensed or in good standing, has not had and would not reasonably be expected to have a Company Material Adverse Effect.

(b)

Seller previously delivered to Buyer true and correct copies of Seller’s limited liability company agreement and certificate of formation, the Company’s limited liability company agreement (the “Company LLC Agreement”) and certificate of formation (the “Company Certificate of Formation”) and the certificate of incorporation and bylaws (or comparable organizational documents) of each of its Subsidiaries, in each case as amended to the date of this Agreement, and each as so delivered is in full force and effect. Except as would not have an adverse effect on the ability of Seller to consummate the transactions contemplated by this Agreement and the Ancillary Agreements, Seller is not in violation of any provision of its limited liability company operating agreement or certificate of formation. The Company is not in material violation of any provision of the Company LLC Agreement or the Company Certificate of Formation and no Subsidiary of the Company is in violation of any material provision of its certificate of incorporation or bylaws (or comparable organizational documents).

Section 3.2

Authority and Power. Seller and the Company have all necessary limited liability company power and authority to execute, deliver and perform their respective obligations under this Agreement, and each of Seller, the Company and each of its Subsidiaries has all necessary limited liability company authority to execute, deliver and perform its obligations under each Ancillary Agreement to which such party will be a party and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by Seller and the Company of this Agreement, and the execution, delivery and performance by Seller, the Company and each of its Subsidiaries of each of the Ancillary Agreements to which such party will be a party and the consummation by such party of the transactions contemplated hereby and thereby have been duly authorized by all necessary limited liability company or corporate action on the part of Seller, the Company and each of its Subsidiaries, as the case may be, and no other limited liability company or corporate proceedings on the part of Seller, the Company and the Company’s Subsidiaries are necessary to approve this Agreement, and no other limited liability company or corporate proceedings on the part of Seller, the Company or any of its Subsidiaries are necessary to approve each Ancillary Agreement to which such party will be a party, or to consummate the other transactions contemplated hereby or thereby. This Agreement has been, and upon their execution each of the Ancillary Agreements to which Seller, the Company or any of its Subsidiaries will be a party, will have been, duly executed and delivered by Seller, the Company or any of its Subsidiaries, as the case may be, and, assuming the due authorization, execution and delivery by each of the other parties

hereto and thereto, this Agreement constitutes, and upon their execution each of the Ancillary Agreements to which Seller, the Company or any of its Subsidiaries will be a party will constitute, the legal, valid and binding obligations of Seller, the Company or such Subsidiary, as the case may be, enforceable against Seller, the Company or such Subsidiary, as the case may be, in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or similar Laws affecting creditors’ rights generally or by general principles of equity (regardless of whether considered in a proceeding in equity or in law).

Section 3.3

No Conflict; Required Filings and Consents.

(a)

The execution, delivery and performance by Seller and the Company of this Agreement, and the execution, delivery and performance by Seller, the Company or any of its Subsidiaries of each of the Ancillary Agreements to which such party will be a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (i) conflict with or violate the certificate of incorporation or bylaws or equivalent organizational documents of Seller, the Company or any of its Subsidiaries; (ii) conflict with or violate any Law applicable to Seller, the Company or any of its Subsidiaries or by which any property or asset of Seller, the Company or any of its Subsidiaries is bound or affected; or (iii) result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would become a default) under, require any consent of or notice to any Person pursuant to, give to others any right of termination, amendment, modification, acceleration or cancellation of, allow the imposition of any fees or penalties, require the offering or making of any payment or redemption, give rise to any increased, guaranteed, accelerated or additional rights or entitlements of any Person or otherwise adversely affect any rights of Seller, the Company or any of its Subsidiaries under, or result in the creation of any Encumbrance on any property, asset or right of Seller, the Company or any of its Subsidiaries pursuant to, any note, bond, mortgage, indenture, agreement, lease, license, permit, franchise, instrument, obligation or other Contract (including, for the avoidance of doubt, any Company Material Contract) to which Seller, the Company or any of its Subsidiaries is a party or by which Seller, the Company or any of its Subsidiaries or any of its properties, assets or rights are bound or affected, except (A) in the case of clause (ii), as has not had and would not reasonably be expected to have a Seller Material Adverse Effect or (B) in the case of clause (iii) as has not had and would not reasonably be expected to have a Seller Material Adverse Effect or as would not be material, individually or in the aggregate, to the Company or its Subsidiaries, taken as a whole.

(b)

None of Seller, the Company or any of its Subsidiaries is required to file, seek or obtain any notice, authorization, approval, order, permit or consent of or with any Governmental Authority in connection with the execution, delivery and performance by Seller of this Agreement and each of the Ancillary Agreements to which Seller, the Company or any of its Subsidiaries will be a party or the consummation of the transactions contemplated hereby or thereby or in order to prevent the termination of any right, privilege, license or qualification of Seller, the Company or any of its Subsidiaries except for: (i) such filings and reports as may be required pursuant to the applicable requirements

of the Securities Act of 1933, as amended (the “Securities Act”), the Exchange Act of 1934, as amended (the “Exchange Act”) and any other applicable state or federal securities, takeover and “blue sky” laws; (ii) any filings and approvals required under the rules and regulations of the NYSE; (iii) any notice, authorization, approval, orders, permit or consent, in each case, that is not material and (iv) the approvals set forth in Section 3.3 of the Seller Disclosure Schedules.

(c)

No “fair price,” “interested shareholder,” “business combination” or similar provision of any state takeover Law is applicable to the transactions contemplated by this Agreement or the Ancillary Agreements.

Section 3.4

Interests. Seller is the record and beneficial owner of the Interests and has good title to such Interests, free and clear of any Encumbrance other than Encumbrances created by Buyer or transfer restrictions imposed under applicable securities Laws. Seller has the right, authority and power to sell, assign and transfer the Interests to Buyer. Except for this Agreement, Seller (i) is not a party to and has not granted to any other Person, any options, warrants, subscription rights, rights of first refusal or any other rights providing for the acquisition or disposition of the Interests or any other equity interest in the Company or any of its Subsidiaries, and (ii) is not a party to any voting agreement, voting trust, proxy or other agreement or understanding with respect to the voting of any of the Interests other than as listed on Section 3.4 of the Seller Disclosure Schedules. Upon delivery to Buyer of the Interests at the Closing and Buyer’s delivery of the Purchase Price to Seller, Buyer shall acquire good, valid and marketable title to the Interests, free and clear of any Encumbrance other than Encumbrances created by Buyer or transfer restrictions imposed under applicable securities Laws.

Section 3.5

Capitalization. Section 3.5 of the Seller Disclosure Schedules sets forth all of the issued and outstanding Interests of the Company, and for each Subsidiary of the Company, the amount of its authorized capital stock or other equity or ownership interests, and for the Company and for each Subsidiary of the Company, the record and beneficial owners of its outstanding membership interests, capital stock or other equity or ownership interests. Except for the Interests and except as set forth in Section 3.5 of the Seller Disclosure Schedules, neither the Company nor any of its Subsidiaries has issued or agreed to issue any: (i) units, interests, shares of capital stock or other equity or ownership interest; (ii) option, warrant or interest convertible into or exchangeable or exercisable for the purchase of Interests of capital stock or other equity or ownership interests; (iii) stock appreciation right, phantom stock, interest in the ownership or earnings of the Company or any of its Subsidiaries or other equity equivalent or equity-based award or right; or (iv) bond, debenture or other indebtedness having the right to vote or convertible or exchangeable for securities having the right to vote. Each outstanding unit, interest, share of capital stock or other equity or ownership interest of the Company and each of its Subsidiaries is duly authorized, validly issued, fully paid and nonassessable, and in the case of its Subsidiaries, each such unit, interest, share or other equity or ownership interest is owned by the Company or its Subsidiaries, free and clear of any Encumbrance, other than Encumbrances created by Buyer, transfer restrictions imposed under applicable Laws or Permitted Encumbrances. Except for rights granted to Buyer under this Agreement, there are no outstanding obligations of the Company or any of its Subsidiaries to issue, sell

or transfer or repurchase, redeem or otherwise acquire, or that relate to the holding, voting or disposition of or that restrict the transfer of, the issued or unissued capital stock or other equity or ownership interests of the Company or any of its Subsidiaries. No Interests, units, capital stock or other equity or ownership interests of the Company or any of its Subsidiaries have been issued in violation of any rights, agreements, arrangements or commitments under any provision of applicable Law, the Company LLC Agreement, the Company Certificate of Formation, the organizational documents of any Subsidiaries of the Company or any Contract to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound.

Section 3.6

Equity Interests. Except for the Subsidiaries listed in Section 3.5 of the Seller Disclosure Schedules, neither the Company nor any of its Subsidiaries directly or indirectly owns any equity, partnership, membership or similar interest in, or any interest convertible into, exercisable for the purchase of or exchangeable for any such equity, partnership, membership or similar interest, or is under any current or prospective obligation to form or participate in, provide funds to, make any loan, capital contribution or other investment in or assume any liability or obligation of, any Person.

Section 3.7

Financial Statements.

(a)

True and complete copies of the audited consolidated balance sheet of the Company and its Subsidiaries as of each of December 31, 2012 and December 31, 2011, and the related audited consolidated statements of operations and cash flows, together with all related notes, accompanied by the reports thereon of the Company’s independent auditors (collectively referred to as the “Financial Statements”) and the unaudited consolidated balance sheet of the Company and its Subsidiaries as of March 31, 2013 and June 30, 2013, and the related consolidated statements of operations and cash flows (collectively referred to as the “Interim Financial Statements”), are attached as Section 3.7(a) of the Seller Disclosure Schedules. Each of the Financial Statements and the Interim Financial Statements (i) have been prepared in accordance with the books and records of the Company and its Subsidiaries, (ii) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated and (iii) fairly present, in all material respects, the consolidated financial position, results of operations and cash flows of the Company and its Subsidiaries as at the respective dates thereof and for the respective periods indicated therein, except as otherwise noted therein and subject, in the case of the Interim Financial Statements, to the absence of footnote disclosure and normal and recurring year-end adjustments that will not, individually or in the aggregate, be material.

(b)

The Company has in place systems and processes (including the maintenance of proper books and records), which are in all material respects sufficient to: (i) provide reasonable assurances regarding the reliability of the Financial Statements and the Interim Financial Statements; and (ii) in a timely manner accumulate and communicate to the Company’s principal executive officer and principal financial officer the type of information that would be required to be disclosed in the Financial Statements and the Interim Financial Statements (such systems and processes are herein referred to as the “Controls”). Since March 2, 2011, there has been no written or, to the Knowledge of Seller

or the Company, oral complaint, assertion, claim or allegation of any material weakness or significant deficiency regarding the Controls, the Financial Statements or the Interim Financial Statements from a reliable source outside of the Company and its Subsidiaries or an employee of the Company and its Subsidiaries to a manager, director or officer of the Company or any of its Subsidiaries.

(c)

The books of account and financial records of the Company and its Subsidiaries are true and correct in all material respects and have been prepared and are maintained in accordance with GAAP applied on a consistent basis.

Section 3.8

Absence of Undisclosed Liabilities; Indebtedness.

(a)

The Company and its Subsidiaries have no liabilities or obligations of any nature, whether accrued, absolute, contingent or otherwise that are required by GAAP to be reflected in a consolidated balance sheet of the Company and its Subsidiaries or disclosed in the notes thereto, other than liabilities and obligations (i) that are adequately reflected or reserved against in the Financial Statements and the Interim Financial Statements, (ii) that have been incurred since December 31, 2012 in the ordinary course of business, or (iii) set forth on Section 3.8(a) of the Seller Disclosure Schedules.

(b)

Except as set forth in Section 3.8(b) of the Seller Disclosure Schedules, there is no Indebtedness of the Company or any Subsidiary of the Company other than Indebtedness that is, individually or in the aggregate, of a de minimis amount to the Company or its Subsidiaries, taken as a whole.

Section 3.9

Absence of Certain Changes or Events. Except as reflected on the Interim Financial Statements or in connection with the execution and delivery of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby, since January 1, 2013 to the date hereof (a) the Company and its Subsidiaries have conducted their businesses in all material respects in the ordinary course consistent with past practice; and (b) there has not been any change, event or development or prospective change, event or development that has had or is reasonably likely to have a Company Material Adverse Effect. Without limiting the generality of the foregoing, except as reflected on the Interim Financial Statements or in connection with the execution and delivery of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby, since January 1, 2013 to the date hereof, neither the Company nor any of its Subsidiaries has:

(a)

suffered any loss, damage, destruction or other casualty affecting any of its material properties or assets, whether or not covered by insurance;

(b)

amended or otherwise changed, or authorized or proposed to amend or otherwise change, its certificate of incorporation or bylaws or equivalent organizational documents;

(c)

incurred any Indebtedness or issued any debt securities or assumed, guaranteed or endorsed, or otherwise become responsible for, the obligations of any

Person, or made any loans or advances, except in the ordinary course of business consistent with past practice;

(d)

issued, sold, pledged, disposed of or otherwise subjected to any Encumbrance (A) any Interests or any other equity interests or capital stock of the Company or any of its Subsidiaries, or any options, profits interests, warrants, convertible securities or other rights of any kind to acquire any such Interests, or any other equity or ownership interest in the Company or any of its Subsidiaries or (B) any properties or assets of the Company or any of its Subsidiaries, other than sales or transfers of inventory in the ordinary course of business consistent with past practice;

(e)

declared, set aside, made or paid any non-cash dividend or other distribution on or with respect to any of its capital stock or other equity or ownership interest;

(f)

reclassified, combined, split, subdivided or redeemed, or purchased or otherwise acquired, directly or indirectly, any of its capital stock or other equity or ownership interest, or any options, warrants or rights to acquire any such equity or ownership interest, or made any other change with respect to its capital structure;

(g)

directly or indirectly acquired or agreed to acquire (A) by merging or consolidating with, purchasing a substantial equity interest in or a substantial portion of the assets of, making an investment in or loan or capital contribution to or in any other manner, any corporation, partnership, association or other business organization or division thereof or (B) any assets that are otherwise material to the Company and its Subsidiaries, other than inventory acquired and capital expenditures made in the ordinary course of business consistent with past practice;

(h)

adopted a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, or otherwise altered the Company’s or any such Subsidiary’s corporate structure; or

(i)

authorized any of, or committed, resolved or agreed to take any of, the foregoing actions.

Section 3.10

Compliance with Law; Permits.

(a)

Since March 2, 2011, each of the Company and its Subsidiaries is and has been in compliance in all material respects with all Laws applicable to it. None of the Company, any of its Subsidiaries or any of its or their executive officers has received since March 2, 2011, nor, to the Knowledge of Seller and the Company, is there any basis for, any notice, order, complaint or other communication from any Governmental Authority or any other Person that the Company or any of its Subsidiaries is not in compliance in any material respect with any Law applicable to it.

(b)

Each of the Company and its Subsidiaries is in possession of all permits, licenses, franchises, approvals, certificates, consents, waivers, concessions,

exemptions, orders, registrations, notices or other authorizations of any Governmental Authority necessary for each of the Company and its Subsidiaries to own, lease and operate its properties and to carry on its business in all material respects as currently conducted (the “Permits”), and each of the Company and its Subsidiaries is and has been in compliance in all material respects with all such Permits. To the Knowledge of Seller or the Company, no suspension, cancellation, modification, revocation or nonrenewal of any Permit is pending. Except as would not, individually or in the aggregate, be material to the Company and its Subsidiaries, taken as a whole, the Company and its Subsidiaries will continue to have the use and benefit of all Permits following consummation of the transactions contemplated hereby. No Permit is held in the name of Seller or any employee, officer, director, equityholder, agent or otherwise on behalf of the Company or any of its Subsidiaries.

Section 3.11

Litigation

. Except as set forth in Section 3.11 of the Seller Disclosure Schedules, there is no Action pending or, to the Knowledge of Seller or the Company, threatened against the Company or any of its Subsidiaries, or any material property or asset of the Company or any of its Subsidiaries, or any of the officers of the Company or any of its Subsidiaries in regards to their actions as such, nor is there any basis for any such Action. There is no Action pending or, to the Knowledge of Seller or the Company, threatened seeking to prevent, hinder, modify, delay or challenge the transactions contemplated by this Agreement or the Ancillary Agreements. There is no material outstanding order, writ, judgment, injunction, decree, determination or award of, or pending or, to the Knowledge of Seller or the Company, threatened investigation by, any Governmental Authority relating to the Company, any of its Subsidiaries, any of their respective properties or assets, any of their respective officers or directors, or the transactions contemplated by this Agreement or the Ancillary Agreements. There is no material Action by the Company or any of its Subsidiaries pending, or which Seller, the Company or any of its Subsidiaries has commenced preparations to initiate, against any other Person.

This Section 3.11 does not relate to any Actions with respect to Taxes, such Actions being the subject of Section 3.17.

Section 3.12

Employee Benefit Plans.

(a)

Section 3.12(a) of the Seller Disclosure Schedules sets forth a true and complete list of:

(i)

all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and all bonus, profits units, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all employment, termination, severance contracts or agreements to which the Company or any of its Subsidiaries is a party, which are maintained, contributed to or sponsored by the Company or any of its Subsidiaries for the benefit of any current or former employee, officer or director of the Company or any of

its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has or could have any obligation; and

(ii)

all Contracts between the Company or any of its Subsidiaries and any employee, officer or director of the Company or any of its Subsidiaries providing for compensation to such employee, officer or director, including any Contracts relating in any way to a sale of the Company or any of its Subsidiaries (clauses (i) and (ii) collectively, the “Plans”).

(b)

Each Plan referred to in Section 3.12(a) is in writing. Seller has furnished to Buyer a true and complete copy of each such Plan and has delivered to Buyer a true and complete copy of each material document, if any, prepared in connection with each such Plan, including (i) a true and complete copy of each trust or other funding arrangement, (ii) each summary plan description and summary of material modifications thereto, (iii) the two most recently filed Internal Revenue Service (“IRS”) Form 5500s, (iv) the most recently received IRS determination or opinion letter for each such Plan, and (v) the most recently prepared actuarial report and financial statement in connection with each such Plan.

(c)

The Company has no direct or contingent liability with respect to any plan subject to Title IV of ERISA that has not been satisfied in full. None of the Plans is subject to Section 412 or 430 of the Code or is a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA (a “Multiemployer Plan”) or a single employer pension plan within the meaning of Section 4001(a)(15) of ERISA for which the Company or any of its Subsidiaries could incur liability under Section 4063 or 4064 of ERISA (a “Multiple Employer Plan”). None of such Plans provides for or promises retiree medical, disability or life insurance benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries.

(d)

Each Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code. Each of the Company and its Subsidiaries has performed all material obligations required to be performed by it and is not in any material respect in default under or in violation under any Plan, nor does Seller have any Knowledge of any such default or violation by any other party to any Plan. No Action is pending or, to the Knowledge of Seller or the Company, threatened with respect to any Plan, other than claims for benefits in the ordinary course, and no fact or event exists that would reasonably be expected to give rise to any such Action. Each of the Plans is maintained in the United States and is subject only to the Laws of the United States or a political subdivision thereof.

(e)

Each Plan that is intended to be qualified under Section 401(a) or Section 401(k) of the Code has received a timely favorable determination or opinion letter from the IRS covering all of the provisions applicable to such Plan for which determination letters are currently available that such Plan is so qualified. No fact or event has occurred that would reasonably be expected to adversely affect the qualified status of any such Plan or the exempt status of any such trust, in each case that could not be corrected without material liability.

(f)

There has not been any non-exempt prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, with respect to any Plan. Neither the Company nor any of its Subsidiaries has incurred any liability under, arising out of or by operation of Title IV of ERISA that has not been satisfied in full, other than liability for premiums to the Pension Benefit Guaranty Corporation arising in the ordinary course, including any liability in connection with (i) the termination or reorganization of any employee benefit plan subject to Title IV of ERISA or (ii) the withdrawal from any Multiemployer Plan or Multiple Employer Plan, and no fact or event exists that would reasonably be expected to give rise to any such liability.

(g)

All material contributions, premiums or payments required to be made with respect to any Plan have been made on or before their due dates.

(h)

There are no Actions or claims (other than routine claims for benefits) pending or, to the Knowledge of Seller or the Company, threatened with respect to any Plan or any related trust or other funding medium thereunder or with respect to the Company or any ERISA Affiliate as the sponsor or fiduciary thereof or with respect to any other fiduciary thereof.

(i)

No Plan or any related trust or other funding medium thereunder or any fiduciary thereof is, to the Knowledge of Seller or the Company, the subject of an audit, investigation or examination by any Governmental Authority.

(j)

No “reportable event,” as such term is used in Section 4043 of ERISA, “accumulated funding deficiency,” as such term is used in Section 412 or 4971 of the Code or Section 302 of ERISA or application for or receipt of a waiver from the IRS of any minimum funding requirement under Section 412 of the Code has occurred with respect to any Plan in the past five years.

(k)

The Company and its ERISA Affiliates do not maintain any Plan that is a “group health plan,” as such term is defined in Section 5000(b)(1) of the Code, which has not been administered and operated in all material respects in compliance with the applicable requirements of Section 601 of ERISA, Section 4980B(b) of the Code and the applicable provisions of the Health Insurance Portability and Accountability Act of 1986.

(l)

Each Plan that is subject to the requirements of Section 409A of the Code has complied in form and operation with the requirements of Section 409A of the Code as in effect from time to time. The Company has no obligation to provide any “gross-up” of any tax, interest charge or other amount incurred by any individual pursuant to Section 409A or Section 4999 of the Code.

(m)

payment or vesting of any such benefits under any Plan, or (iv) limit the right to amend or terminate any Plan.

(n)

The Company is not obligated to make any payments, including under any Plan, that reasonably could be “excess parachute payments” under Section 280G of the Code directly or indirectly as a result of the consummation of the transactions contemplated by this Agreement.

Section 3.13

Labor and Employment Matters.

(a)

Neither the Company nor any of its Subsidiaries is a party to any labor or collective bargaining Contract that pertains to employees of the Company or any of its Subsidiaries. To the Knowledge of Seller and the Company, there are no, and, since March 2, 2011, there have been no, organizing activities or collective bargaining arrangements that could affect the Company or any of its Subsidiaries pending or under discussion with any labor organization or group of employees of the Company or any of its Subsidiaries. There are no, and since March 2, 2011, there have been no, labor dispute, strike, controversy, slowdown, work stoppage or lockout pending or, to the Knowledge of Seller or the Company, threatened against or affecting the Company or any of its Subsidiaries.

(b)

Since March 2, 2011, the Company has complied in all material respects with all applicable Laws respecting employment, including discrimination or harassment in employment, terms and conditions of employment, termination of employment, wages, overtime classification, hours, occupational safety and health, employee whistle-blowing, immigration, employee privacy, employment practices and classification of employees, consultants and independent contractors. The Company has not engaged in any unfair labor practice, as defined in the National Labor Relations Act or other applicable Laws. No unfair labor practice or labor charge or complaint is pending or, to the Knowledge of Seller or the Company, threatened with respect to the Company or any of its Subsidiaries before the National Labor Relations Board, the Equal Employment Opportunity Commission or any other Governmental Authority nor has there been any such charge or complaint since March 2, 2011.

(c)

Neither the Company nor any of its Subsidiaries is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Authority relating to employees or employment practices. Since March 2, 2011, none of the Company, any of its Subsidiaries or any of its or their executive officers has received any notice of intent by any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an investigation relating to the Company or any of its Subsidiaries and, to the Knowledge of Seller or the Company, no such investigation is in progress.

Section 3.14

Title to, Sufficiency and Condition of Assets.

(a)

The Company and its Subsidiaries have good and valid title to or a valid leasehold interest in all of their assets, including all of the assets reflected on the

Financial Statements or acquired in the ordinary course of business since December 31, 2012, except those sold or otherwise disposed of for fair value since December 31, 2012, in the ordinary course of business consistent with past practice. The assets owned or leased by the Company and its Subsidiaries constitute all of the assets necessary for the Company and its Subsidiaries to carry on their respective businesses as currently conducted in all material respects. None of the assets used by the Company or its Subsidiaries to carry on their respective business as currently conducted are owned or leased by Seller. None of the assets owned or leased by the Company or any of its Subsidiaries is subject to any Encumbrance, other than (i) liens for Taxes not yet past due or delinquent or the validity of which are being contested in good faith by appropriate proceedings and, in either case, for which adequate reserves have been established in accordance with GAAP, (ii) mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice relating to obligations as to which there is no default on the part of the Company or any of its Subsidiaries, (iii) Encumbrances that are not material, and (iv) Encumbrances set forth on Section 3.14(a) of the Seller Disclosure Schedules (collectively, “Permitted Encumbrances”).

(b)

All tangible assets owned or leased by the Company or its Subsidiaries have been maintained in all material respects in accordance with generally accepted industry practice, are in all material respects in good operating condition and repair, ordinary wear and tear excepted, and are adequate for the uses to which they are being put.

This Section 3.14 does not relate to real property or interests in real property, such items being the subject of Section 3.15, or to Intellectual Property, such items being the subject of Section 3.16.

Section 3.15

Real Property.

(a)

Section 3.15 of the Seller Disclosure Schedules sets forth a true and complete list in all material respects of all Owned Real Property and all Leased Real Property, including, (i) with respect to all Owned Real Property, the street address and the current record owner of each parcel of Owned Real Property, and (ii) with respect to all Leased Real Property, the street address and the identity of the lessor, lessee and current occupant (if different from lessee) of each such parcel of Leased Real Property. None of the Company or any of its Subsidiaries has owned any other real property or any interest therein since March 2, 2011. Copies of all leases and licenses that are true and complete in all material respects, including all material amendments and assignments thereto and all guaranties thereof, relating to all Leased Real Property, have been provided to Buyer. Each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Owned Real Property and (ii) a valid, binding and enforceable leasehold estate in all Leased Real Property, in each case, free and clear of all Encumbrances except Permitted Encumbrances. No parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the Knowledge of Seller or the Company, has any such condemnation,

expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect in all material respects, and there exists no material default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a material default thereunder by the Company, any of its Subsidiaries or any other party thereto. All leases of Leased Real Property shall remain valid and binding in all material respects in accordance with their terms following the Closing.

(b)

There are no contractual or legal restrictions that preclude or restrict the ability to use any Owned Real Property or Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such Owned Real Property or Leased Real Property. There are no material adverse physical conditions and, to the Knowledge of Seller or the Company, there are no material latent defects affecting any Owned Real Property or any Leased Real Property. Each of the Company and its Subsidiaries has title to, or a leasehold interest in, as applicable, all material personal property used in their respective businesses. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property and the Leased Real Property are adequately maintained and are in good operating condition and repair, ordinary wear and tear excepted, for the requirements of the business of the Company and its Subsidiaries as currently conducted.

(c)

Since March 2, 2011, none of the Company or any of its Subsidiaries has subleased, licensed or otherwise granted to any other Person the right to use or occupy the Owned Real Property or Leased Real Property or any portion thereof.

(d)

None of the Company or any of its Subsidiaries or, to the Knowledge of Seller or the Company, any other party to any lease or sublease applicable to the Leased Real Property, is in material breach or default under such lease or sublease, and, to the Knowledge of Seller or the Company, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a material breach or default, or permit the termination, modification or acceleration of rent under such leases or subleases. The Owned Real Property and Leased Real Property comprise all of the real property necessary for the operation of the businesses of the Company and its Subsidiaries in all material respects as currently conducted.

Section 3.16

Intellectual Property.

(a)

Section 3.16 of the Seller Disclosure Schedules sets forth a true and complete in all material respects list of all registered Marks, Patents and registered Copyrights, including any pending applications to register any of the foregoing, owned (in whole or in part) by, or exclusively licensed to, the Company or any of its Subsidiaries, identifying for each whether it is owned by or exclusively licensed to the Company or the relevant Subsidiary.

(b)

Except as set forth in Section 3.16 of the Seller Disclosure Schedules, no Intellectual Property identified therein is involved in any opposition,

cancellation, interference, reissue, reexamination or similar proceeding, and, to the Knowledge of Seller or the Company, no such proceeding is or has been threatened with respect to any of such Intellectual Property.

(c)

The Company or one of its Subsidiaries exclusively owns, free and clear of any and all Encumbrances, all Intellectual Property identified in Section 3.16 of the Seller Disclosure Schedules as being owned by the Company or such Subsidiary and all other material Intellectual Property that is purportedly owned by the Company or the relevant Subsidiary, including all material Intellectual Property created by employees or contractors of the Company or any of its Subsidiaries within the scope of their employment or engagement. Neither the Company nor any of its Subsidiaries has received any notice or claim challenging the Company’s or such Subsidiary’s ownership of any Intellectual Property owned or purportedly owned (in whole or in part) by the Company or any of its Subsidiaries.

(d)

Each of the Company and its Subsidiaries has taken all reasonable steps in accordance with standard industry practices to protect its rights in its material Intellectual Property and to maintain the confidentiality of all Trade Secrets of the Company or any of its Subsidiaries.

(e)

All registered Marks, issued Patents and registered Copyrights identified in Section 3.16 of the Seller Disclosure Schedules (the “Company Registered IP”) are in good standing and, to the Knowledge of Seller or the Company, valid and enforceable, and neither the Company nor any of its Subsidiaries has received any notice or claim in writing challenging the validity or enforceability of any Company Registered IP or alleging any misuse of such Company Registered IP. All pending applications identified in Section 3.16 of the Seller Disclosure Schedules have been filed in compliance with the provisions of applicable Law.

(f)

The development, manufacture, sale, distribution or other commercial exploitation of products, and the provision of any services, by the Company or any of its Subsidiaries, and all of the other activities or operations of the Company or any of its Subsidiaries have not infringed upon, misappropriated, violated or diluted, and do not infringe upon, misappropriate, violate or dilute, in any material respect, any Intellectual Property (other than Patents) and, to the Knowledge of the Company, Patents of any third party. Except as set forth in Section 3.16 of the Seller Disclosure Schedule, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice or claim asserting or suggesting that any such infringement, misappropriation, violation, dilution or unauthorized use has occurred or may be occurring. Except as set forth in Section 3.16 of the Seller Disclosure Schedule, no Intellectual Property owned by or licensed to the Company or any of its Subsidiaries is subject to any outstanding order, judgment, decree, or stipulation restricting the use or licensing thereof by the Company or its Subsidiaries. To the Knowledge of Seller or the Company, no third party is misappropriating, infringing, diluting or violating any Intellectual Property owned by or exclusively licensed to the Company or any of its Subsidiaries in a material manner.

(g)

Except as set forth in Section 3.16 of the Seller Disclosure Schedule, neither the Company nor any of its Subsidiaries has granted any exclusive license with respect to, any material Intellectual Property. Except as set forth in Section 3.16 of the Seller Disclosure Schedule, upon the consummation of the Closing, Buyer shall succeed to all of the material Intellectual Property rights necessary for the conduct of the Company’s and its Subsidiaries’ businesses as they are currently conducted and all of such rights shall be exercisable by Buyer to the same extent as by the Company and its Subsidiaries prior to the Closing.

(h)

Except as set forth in Section 3.16 of the Seller Disclosure Schedule, the execution, delivery and performance by Seller and the Company of this Agreement and the Ancillary Agreements, and the consummation of the transactions contemplated hereby and thereby, will not give rise to any right of any third party to terminate or re-price or otherwise modify any of the Company’s or any of its Subsidiaries’ rights or obligations under any agreement under which any right or license of or under any Intellectual Property is granted to or by the Company or any of its Subsidiaries.

(i)

The Company and each of its Subsidiaries (i) takes reasonable measures to ensure the confidentiality, privacy and security of customer, employee and other confidential information and (ii) complies with applicable data protection, privacy and similar Laws, directives and codes of practice in any jurisdiction relating to any data processed by the Company or any of its Subsidiaries in such jurisdiction.

(j)

Except as set forth in Section 3.16 of the Seller Disclosure Schedule, none of the Intellectual Property used in the business of the Company or any of its Subsidiaries as currently conducted is owned or controlled by Seller.

Section 3.17

Taxes.

(a)

The Seller is, and has been since formation, an entity treated as partnership (and not a publicly traded partnership) for U.S. federal and state income Tax purposes and has not engaged in any business or other activity other than ownership of the Interests and related activities. The Company is, and has been since formation, an entity that is disregarded for U.S. federal and corresponding state income Tax purposes. Neither the Seller nor the Company has made any filing with any Governmental Authority, including filing a Form 8832 with the Internal Revenue Service, to be treated as an association taxable as a corporation for U.S. income Tax purposes.

(b)

The Seller, the Company and each of its Subsidiaries (i) have timely filed, or caused to be timely filed, taking into account any extensions, all material Tax Returns that were required to be filed by or with respect to any of them and (ii) have timely paid, or caused to be timely paid, all material amounts of Taxes owed by them or with respect to any of them (whether or not shown thereon as due and owing) to the proper Governmental Authority. All Tax Returns of the Company and its Subsidiaries or with respect to any of them are true, correct and complete in all material respects.

(c)

The Seller, the Company and each of its Subsidiaries (i) have timely withheld, deducted or collected all material Taxes that the Company and each of its Subsidiaries have been required to withhold, deduct or collect (including material employment-related Taxes) and (ii) to the extent required when due, have timely paid such Taxes to the proper Governmental Authority.

(d)

There are no material written claims by any Governmental Authority in a jurisdiction where the Seller, the Company and/or its Subsidiaries does not file Tax Returns that the Company or any Subsidiary may be subject to taxation by that jurisdiction.

(e)

There are (i) no material asserted or proposed deficiencies or assessments of Taxes from any Governmental Authority with respect to the Seller, the Company or any Subsidiary, (ii) no ongoing Actions concerning any material Tax liability of the Seller, the Company or its Subsidiaries and no such Action is threatened in writing and (iii) the Seller, the Company and/or its Subsidiaries have not granted any request, agreements, or consents to waive or extend the statutory period of limitations applicable to the assessment of Taxes.

(f)

There are no material Tax liens on the assets of the Seller, the Company or its Subsidiaries other than Permitted Encumbrances.

(g)

None of the Seller, the Company or any Subsidiary (i) is a party to any agreement or arrangement providing for the allocation, indemnification or sharing of Taxes (including any advance pricing agreement or other similar agreement relating to Taxes with any Governmental Authority), (ii) is subject to any private letter ruling of the Internal Revenue Service or any comparable rulings of any other Governmental Authority, (iii) has been a member of an affiliated group filing a consolidated U.S. federal income Tax Return, (iv) has any liability for the Taxes of any other Person under Treasury Regulation Section 1.1502-6 (or any other comparable provision of state, local or non-U.S. Tax Law) as transferee or successor, by contract or otherwise, (v) is bound by, has agreed to or is required to make any adjustments pursuant to Section 481(a) of the Code or any similar provision of law or has any Knowledge that any Governmental Authority has proposed any such adjustment, or has any application pending with any Governmental Authority requesting permission for any changes in accounting methods that relate to the Company or any of its Subsidiaries, or (vi) has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision of Law.

(h)

Seller is not a “foreign person” as defined in Section 1445 of the Code.

Section 3.18

Environmental Matters.

(a)

Each of the Company and its Subsidiaries is, and, to the Knowledge of Seller, since March 2, 2011, has been, in compliance with all applicable Environmental Laws, in each case, in all material respects.

(b)

None of the Company, any of its Subsidiaries or any of its or their executive officers has received any written notice, communication or complaint from a

Governmental Authority or other Person alleging that the Company or any of its Subsidiaries has any material liability under any Environmental Law or is not in material compliance with any Environmental Law.

(c)

Except as disclosed in Section 3.18(c) of the Seller Disclosure Schedules, to the Knowledge of Seller, no Hazardous Substances are present, and there is and has been no Release or threatened Release of Hazardous Substances or any cleanup or corrective action of any kind relating thereto, in each case, that are reasonably likely to form the basis of any material Action against the Company or any of its Subsidiaries or impose material liability or other material obligations on the Company or any of its Subsidiaries under any Environmental Laws, (i) on, at, about, in or from any property (including any buildings, structures, improvements, soils and surface, subsurface and groundwaters thereof) currently or, to the Knowledge of Seller or the Company, formerly owned, leased or operated by the Company or any of its Subsidiaries or any respective predecessor in interest or (ii) at any location, to which the Company or any of its Subsidiaries has sent any Hazardous Substance.

(d)

There is no pending or, to the Knowledge of Seller or the Company, threatened material Action by any Governmental Authority or any other Person against the Company or any of its Subsidiaries relating to Hazardous Substances or otherwise pursuant to any Environmental Law.

(e)

Each of the Company and its Subsidiaries holds all Environmental Permits, is, and to the Knowledge of Seller, since March 2, 2011, has been, in material compliance therewith and has timely made all appropriate filings for issuance or renewal of such Environmental Permits. To the Knowledge of Seller, neither the execution, delivery or performance of this Agreement nor the consummation of the transactions contemplated hereby will (i) require pursuant to any applicable Environmental Law or Environmental Permit any material notice to or any material consent or approval of any Governmental Authority on or prior to the Closing Date or (ii) result in the modification or termination of any material Environmental Permit. For the purposes of this paragraph, “Knowledge of Seller” shall only mean the actual knowledge of Benjamin T. Cutting, Thomas J. Koenig or Timothy A. Tatman without regard to any duty of inquiry.

(f)

Except as disclosed in Section 3.18(f) of the Seller Disclosure Schedules, to the Knowledge of Seller or the Company, there are no active or abandoned underground storage tanks at any property currently or, to the Knowledge of the Company, formerly owned, operated or leased by the Company, its Subsidiaries or any of their respective predecessors in interest, with respect to which the Company or any Subsidiary of the Company has material investigation, remediation, retrofit, upgrade or removal obligations pursuant to Environmental Law.

(g)

Seller, the Company and its Subsidiaries have provided or made available to Buyer all “Phase I,” “Phase II” or other environmental assessment or environmental compliance audit reports or other documents, in each case relating to material compliance with or any material liability under Environmental Laws that are in their possession and pertain to any and all locations ever owned, operated or leased by the

Company or any of its Subsidiaries or off-site locations, which the Company or any of its Subsidiaries are actually or allegedly liable, except for such assessments, reports or other documents that were generated prior to 2011.

(h)

Seller, the Company and Buyer agree that the only representations and warranties of Seller and the Company made herein with respect to any matters arising under any Environmental Laws are those contained in Sections 3.13(b) and 3.18 of this Agreement.

(i)

For purposes of this Agreement:

(i)

“Environmental Laws” means any Laws of any Governmental Authority relating to (A) Releases or threatened Releases of Hazardous Substances or materials containing Hazardous Substances; (B) the manufacture, handling, transport, use, treatment, storage or disposal of Hazardous Substances or materials containing Hazardous Substances; or (C) pollution or protection of the environment, occupational health and safety or natural resources.

(ii)

“Environmental Permits” means all Permits required under any Environmental Law.

(iii)

“Hazardous Substances” means: (A) those substances defined in or regulated under the Hazardous Materials Transportation Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the Clean Water Act, the Safe Drinking Water Act, the Atomic Energy Act, the Toxic Substances Control Act, the Federal Insecticide, Fungicide, and Rodenticide Act and the Clean Air Act, the Occupational Safety and Health Act and their state counterparts, as each has been amended from time to time, and all regulations thereunder; (B) petroleum and petroleum products, including crude oil and any fractions thereof; (C) natural gas, synthetic gas, and any mixtures thereof; (D) lead, polychlorinated biphenyls, asbestos and radon; and (E) any substance, material or waste regulated as “hazardous,” “toxic,” “contaminant,” or “radioactive” or words of similar meaning or effect by any Governmental Authority pursuant to any Environmental Law.

(iv)

“Release” has the meaning set forth in Section 101(22) of CERCLA, but is not subject to the exceptions in Subsection (A) of 42 U.S.C. § 9601(22).

Section 3.19

Company Material Contracts.

(a)

Except as set forth in Section 3.19(a) of the Seller Disclosure Schedules, neither the Company nor any of its Subsidiaries is a party to or is bound by any Contract of the following nature (such Contracts as are required to be set forth in Section 3.19(a) of the Seller Disclosure Schedules being “Company Material Contracts”):

(i)

any broker, distributor, dealer, manufacturer’s representative, franchise, agency, continuing sales or purchase, sales promotion, market research, marketing, consulting or advertising Contract;

(ii)

any loan agreement, indenture, note, bond, debenture or any other Contract evidencing Indebtedness or a lien to any Person or any commitment to provide any of the foregoing, or any agreement of guaranty, indemnification or other similar commitment with respect to the liabilities of any other Person, except any such Contract with an aggregate outstanding principal amount not exceeding $250,000 individually or in the aggregate and that may be prepaid on not more than 30 days’ notice without the payment of any penalty;

(iii)

any Contract pursuant to which the Company or any of its Subsidiaries has provided funds to or made any loan, capital contribution or other investment in, or assumed any liability or obligation of, any Person, including take-or-pay Contracts or keepwell agreements;

(iv)

any Contract with any Governmental Authority;

(v)

(A) any Contract with any Related Party of Seller, the Company or any of the Company’s Subsidiaries, (B) any Contract from which any Related Party of Seller or the Company or any of the Company’s Subsidiaries derives any economic or financial benefit and (C) any Contract to which any Related Party of Seller or the Company or any of the Company’s Subsidiaries is a party from which the Company derives any economic or financial benefit;

(vi)

any employment or consulting Contract, other than Contracts for employment covered in subparagraph (v), that involves an aggregate future or potential liability in excess of $100,000;

(vii)

any Contract that limits, or purports to limit, the ability of the Company or any of its Subsidiaries (or, following the consummation of the transactions contemplated by this Agreement, would limit the ability of Buyer, or any of its Subsidiaries) to compete in any line of business or with any Person or in any geographic area or during any period of time, or that restricts the right of the Company and its Subsidiaries (or, following the consummation of the transactions contemplated by this Agreement, would limit the ability of Buyer, or any of its Subsidiaries) to sell to or purchase from any Person or to hire any Person, or that grants the other party or any third person “most favored nation” status or any type of special discount rights;

(viii)

any Contract pursuant to which the Company or any of its Subsidiaries is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than the Company or a Subsidiary thereof), (A) any real property or (B) any tangible personal property and, in the case of clause (B), that involves an aggregate future or potential liability or receivable, as the case may be, in excess of $250,000;

(ix)

any Contract for the sale or purchase of any real property, tangible personal property or services in an amount in excess of $250,000;

(x)

any Contract providing for indemnification to or from any Person with respect to liabilities relating to any current or former business of the Company, any of its Subsidiaries or any predecessor Person;

(xi)

any Contract pursuant to which the Company or any of its Subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in each case that could result in payments in excess of $250,000;

(xii)

(A) any Contract pursuant to which the Company or any of its Subsidiaries grants or is granted a license of any Intellectual Property, other than (1) non-exclusive licenses granted to customers in the ordinary course of business and (2) shrinkwrap, clickwrap, or other similar licenses under which commercially available “off-the-shelf” software is licensed to the Company or any of its Subsidiaries; and (B) any covenant not to sue, co-existence, or other agreement relating to Intellectual Property that is material to the Company’s or any of its Subsidiaries’ businesses;

(xiii)

any joint venture or partnership, merger, asset or stock purchase or divestiture Contract relating to the Company or any of its Subsidiaries;

(xiv)

any collective bargaining agreement or Contract with any labor union or providing for benefits under any Plan;

(xv)

any hedging, futures, options or other derivative Contract;

(xvi)

any Contract for the purchase of any debt or equity security or other ownership interest of any Person, or for the issuance of any debt or equity security or other ownership interest, or the conversion of any obligation, instrument or security into debt or equity securities or other ownership interests of, the Company or any of its Subsidiaries;

(xvii)

any Contract that contains restrictions with respect to the payment of dividends or any other distribution in respect of the Interests or shares of capital stock or equity interests of any Subsidiary of the Company, or for the disposition of any of the Company’s or any Subsidiaries of the Company’s assets or business (whether by merger, sale of stock or equity interests, sale of assets or otherwise);

(xviii)

any Contract under which the Company or any Subsidiary of the Company has agreed or committed to make a capital expenditure or to purchase a capital asset in excess of $250,000, individually by or on behalf of the Company or any Subsidiary of the Company;

(xix)

any Contract with: (A) a sole source supplier, pursuant to which any such supplier provides to the Company equipment, materials or services that are necessary or material for the sale, performance, manufacturing, or support of the Company business; (B) any Person, pursuant to which the Company is obligated to purchase all, or more than 50%, of its requirement for any product, good or service that is material to the Company’s business as currently conducted; and (C) a Major Supplier;

(xx)

any Contract relating to settlement of any administrative or judicial proceedings since March 2, 2011;

(xxi)

any Contract that results in any Person holding a power of attorney from the Company or any of its Subsidiaries that relates to the Company, any of its Subsidiaries or any of their respective businesses; and

(xxii)

any other Contract, whether or not made in the ordinary course of business that (A) involves a future or potential liability or receivable, as the case may be, in excess of $250,000 on an annual basis or in excess of $500,000 over the current Contract term, (B) has a term greater than one year and cannot be cancelled by the Company or a Subsidiary of the Company without penalty or further payment and without more than 30 days’ notice or (C) is material to the business, operations, assets, financial condition, results of operations or prospects of the Company and its Subsidiaries, taken as a whole.

(b)

Each Company Material Contract is a legal, valid, binding and enforceable agreement and is in full force and effect (except as such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting or relating to the enforcement of creditors’ rights generally or (ii) is subject to general principles of equity (regardless of whether considered in a proceeding in equity or at law)) and, except as set forth in Section 3.19(b) of the Seller Disclosure Schedules, will continue to be in full force and effect on identical terms immediately following the Closing Date. None of the Company or any of its Subsidiaries or, to the Knowledge of Seller or the Company, any other party, is in breach or violation of, or (with or without notice or lapse of time or both) default under, in any material respect, any Company Material Contract, nor has the Company or any of its Subsidiaries received any claim of any such breach, violation or default. Seller has delivered or made available to Buyer true and complete copies of all Company Material Contracts, including any amendments thereto.

Section 3.20

Affiliate Interests and Transactions.

(a)

Other than as disclosed in Section 3.20(a) of the Seller Disclosure Schedules, to the Knowledge of Seller or the Company, no Related Party of Seller, the Company or any of its Subsidiaries: (i) owns or has owned, directly or indirectly, any equity or other financial or voting interest in any competitor, supplier, licensor, lessor, distributor, independent contractor or customer of the Company or any of its Subsidiaries or their business; (ii) owns or has owned, directly or indirectly, or has or has had any material interest in any property (real or personal, tangible or intangible) that the Company or any of its Subsidiaries uses or has used in or pertaining to the business of the Company or any of its Subsidiaries; (iii) has or has had any business dealings or a financial interest in any transaction with the Company or any of its Subsidiaries or involving any assets or property of the Company or any of its Subsidiaries, other than business dealings or transactions conducted in the ordinary course of business at prevailing market prices and on prevailing market terms; or (iv) is or has been employed by the Company or any of its Subsidiaries.

(b)

Except as set forth in Section 3.20 of the Seller Disclosure Schedules, there are no Contracts by and between the Company or any of its Subsidiaries, on the one hand, and Seller or any Related Party of Seller, on the other hand

(“Intercompany Arrangements”). Subsequent to the Closing, the Company and its Subsidiaries will own or have a valid license to all assets, properties and rights currently used in the conduct or operation of their businesses.

(c)

Except for the First Lien Credit Agreement and Second Lien Credit Agreement, there are no outstanding notes payable to, accounts receivable from or advances by the Company or any of its Subsidiaries to, and neither the Company nor any of its Subsidiaries is otherwise a debtor or creditor of, or has any liability or other obligation of any nature to, any Related Party of Seller, the Company or any of its Subsidiaries. Since December 31, 2012, neither the Company nor any of its Subsidiaries has incurred any obligation or liability to, or entered into or agreed to enter into any transaction with or for the benefit of, any Related Party of Seller, the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement and the Ancillary Agreements.

Section 3.21

Insurance. Section 3.21 of the Seller Disclosure Schedules sets forth a true and complete list of all casualty, directors’ and officers’ liability, general liability, product liability and all other types of insurance policies maintained with respect to the Company or any of its Subsidiaries, together with the carriers and liability limits for each such policy. All such policies are in full force and effect and no application therefor included a material misstatement or omission. All premiums with respect thereto have been paid to the extent due. Neither Seller nor the Company has received notice of, nor to the Knowledge of Seller or the Company is there threatened, any cancellation, termination, reduction of coverage or material premium increases with respect to any such policy. No claim currently is pending under any such policy involving an amount in excess of $100,000. Section 3.21 of the Seller Disclosure Schedules identifies which insurance policies are “occurrence” based or “claims made” based and which Person is the policy holder. The types and amounts of coverage provided by such insurance policies are usual and customary in the context of the business and operations in which the Company and its Subsidiaries are engaged. The activities and operations of the Company and its Subsidiaries have been conducted in a manner so as to conform in all material respects to all applicable provisions of such insurance policies.

Section 3.22

Certain Payments. Since March 2, 2011, neither the Company nor any of its Subsidiaries (nor, to the Knowledge of Seller or the Company, any of their respective directors, executives, representatives, agents or employees) (a) has used or is using any corporate funds for any illegal contributions, gifts, entertainment or other unlawful expenses relating to political activity; (b) has used or is using any corporate funds for any direct or indirect unlawful payments to any foreign or domestic governmental officials or employees; (c) has violated or is violating any provision of the Foreign Corrupt Practices Act of 1977; (d) has established or maintained, or is maintaining, any unlawful fund of corporate monies or other properties; or (e) has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment of any nature.

Section 3.23

paid to such vendor or supplier during the 12-month period ended December 31, 2012); and (b) a “Major Customer” shall mean any of the 20 largest customers of the Company and its Subsidiaries, taken as a whole as measured by the aggregate amount paid by such customer to the Company or any Subsidiary of the Company during the 12-month period ended December 31, 2012. Each Major Supplier and Major Customer of the Company are listed on Section 3.23 of the Seller Disclosure Schedules. As of the date hereof, no Major Supplier or Major Customer has given Seller, the Company or any of its Subsidiaries written notice (nor does Seller, the Company or its Subsidiaries have any reason to believe) that it will or intends to terminate, limit or materially reduce its business relations with the Company or any of its Subsidiaries or adversely change in any material respect the terms on which it supplies merchandise to the Company or any of its Subsidiaries, or purchases products or services from the Company or any of its Subsidiaries.

Section 3.24

Inventory. The inventories of the Company and each of its Subsidiaries, whether reflected on the Financial Statements or subsequently acquired, are generally of a quality and quantity usable and/or salable at customary gross margins in the ordinary course of business, except for obsolete, damaged, defective or slow-moving items that have been written off or written down to fair market value or for which adequate reserves have been established in accordance with GAAP. The inventories of the Company and its Subsidiaries are reflected on the Financial Statements and in the books and records of the Company and its Subsidiaries in accordance with GAAP applied on a basis consistent with past practice. The inventory is adequate for the conduct of the business of the Company and its Subsidiaries.

Section 3.25

Accounts Receivable. All accounts receivable reflected on the Financial Statements represent or will represent bona fide and valid obligations arising from sales actually made or services actually performed in the ordinary course of business of the Company and its Subsidiaries. To the Knowledge of the Company, all accounts receivable of the Company and each of its Subsidiaries will be current and collectible net of the respective reserves shown on the Financial Statements (which reserves (a) are adequate and calculated consistent with past practice and (b) where established in accordance with GAAP. To the Knowledge of the Company, there is no contest, claim or right of set-off, other than returns in the ordinary course of business, under any Company Material Contract with any obligor of any accounts receivable related to the amount or validity of such accounts receivable, and no bankruptcy, insolvency or similar proceedings have been commenced by or against any such obligor.

Section 3.26

Accounts Payable. All accounts payable and notes payable by the Company and its Subsidiaries to third parties have arisen in the ordinary course of business and no such undisputed account payable or note payable is delinquent more than 90 days in its payment as of the date hereof.

Section 3.27

Brokers. Except for Perella Weinberg Partners, the fees and expenses of which will constitute Transaction Expenses and will be paid by Seller at Closing, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of Seller, the Company or any of its Subsidiaries.

Seller furnished to Buyer a true and complete copy of all agreements between Seller and Perella Weinberg Partners, pursuant to which such firm would be entitled to any payment relating to the transactions contemplated hereby. Schedule 3.27 of the Seller Disclosure Schedules sets forth an accurate list of (i) all Transaction Expenses that (A) have been paid prior to the Closing and (B) will be paid at the Closing and (ii) all Transaction Expenses that have been incurred, or for which the Company or its Subsidiaries is otherwise obligated to pay, but that will not yet have been paid as of the Closing Date (in the case of this clause (ii), the “Scheduled Post-Closing Transaction Expenses”).

Section 3.28

Exclusivity of Representations. The representations and warranties made by Seller and the Company in this Article III are the exclusive representations and warranties made by Seller and the Company in this Agreement. Each of Seller and the Company hereby disclaims any other express or implied representations or warranties with respect to itself.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER

Except as set forth in the corresponding sections or subsections of the Disclosure Schedules delivered to Seller on the date of this Agreement (collectively, the “Buyer Disclosure Schedules”) (each of which shall qualify the specifically identified sections or subsections hereof to which such Buyer Disclosure Schedules relate or any other section or subsection hereof to which it is reasonably apparent on its face that such Buyer Disclosure Schedules relate), and except as set forth in Buyer's forms, reports, schedules, statements and other documents required to be filed with or furnished to the Securities Exchange Commission by Buyer since January 1, 2011 (the “Buyer SEC Documents”) (excluding any disclosures set forth in any risk factor section thereof or in any section relating to forward-looking statements and any other disclosures contained or referenced therein relating to the information, factors or risks that are predictive, cautionary or forward looking in nature and only to the extent that the relevance of any disclosed event, item or occurrence in such Buyer SEC Documents to a matter covered by a representation or warranty set forth in this Article IV is reasonably apparent on its face to matters and items which are the subject of such representation or warranty), Buyer represents and warrants to Seller as follows:

Section 4.1

Organization and Qualification . Buyer (i) is a corporation duly organized, validly existing and in good standing under the Laws of Ohio, (ii) has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as now conducted and (iii) is duly qualified or licensed as a foreign limited liability company, corporation or limited partnership to do business, and is in good standing, in each jurisdiction where the character of the properties and assets occupied, owned, leased or operated by it or the nature of its business makes such qualification or licensing necessary, except, in the case of clauses (ii) and (iii), as has not had and would not reasonably be expected to have a Buyer Material Adverse Effect.

Section 4.2

Authority and Power. Buyer has the full corporate power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to

which Buyer is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, and the execution, delivery and performance by Buyer of this Agreement and each of the Ancillary Agreements to which it will be a party and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action and no other proceedings on the part of Buyer are necessary to approve this Agreement, any Ancillary Agreement to which Buyer is a party and the consummation of the transactions contemplated hereunder and thereunder, subject to receipt of Buyer Shareholder Approval. This Agreement has been, and upon their execution each of the Ancillary Agreements to which Buyer will be a party will have been, duly executed and delivered by Buyer and, assuming due execution and delivery by each of the other parties hereto and thereto, this Agreement constitutes, and upon their execution each of the Ancillary Agreements to which Buyer will be a party will constitute, the legal, valid and binding obligations of Buyer, enforceable against Buyer in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

Section 4.3

No Conflict; Required Filings and Consents.

(a)

The execution, delivery and performance by Buyer of this Agreement and each of the Ancillary Agreements to which Buyer will be a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (i) conflict with or violate the articles of incorporation or code of regulations or equivalent organizational documents of Buyer; (ii) conflict with or violate any Law applicable to Buyer or by which any property or asset of Buyer is bound or affected; or (iii) result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would become a default) under, require any consent of or notice to any Person pursuant to, give to others any right of termination, amendment, modification, acceleration or cancellation of, allow the imposition of any fees or penalties, require the offering or making of any payment or redemption, give rise to any increased, guaranteed, accelerated or additional rights or entitlements of any Person or otherwise adversely affect any rights of Buyer under, or result in the creation of any Encumbrance on any property, asset or right of Buyer pursuant to, any note, bond, mortgage, indenture, agreement, lease, license, permit, franchise, instrument, obligation or other Contract to which Buyer or any of its Subsidiaries is a party or by which Buyer or any of its Subsidiaries or any of their respective properties, assets or rights are bound or affected, except, in the case of clauses (ii) and (iii), as has not had and would not reasonably be expected to have a Buyer Material Adverse Effect.

(b)

Buyer is not required to file, seek or obtain any notice, authorization, approval, order, permit or consent of or with any Governmental Authority in connection with the execution, delivery and performance by Buyer of this Agreement and each of the Ancillary Agreements to which Buyer will be a party or the consummation of the transactions contemplated hereby or thereby or in order to prevent the termination of any right, privilege, license or qualification of Buyer, except for (i) such filings and reports

as may be required pursuant to the applicable requirements of the Securities Act, the Exchange Act and any other applicable state or federal securities, takeover and “blue sky” Laws; (ii) any filings and approvals required under the rules and regulations of the NYSE; and (iii) except as has not had and would not reasonably be expected to have a Buyer Material Adverse Effect.

Section 4.4

Litigation. There is no Action (or basis therefor) pending or, to the Knowledge of Buyer, threatened against or affecting Buyer or any of its Subsidiaries or any of their respective properties or assets, other than any Action that has not had and would not reasonably be expected to have a Buyer Material Adverse Effect. Neither Buyer nor any of its Subsidiaries nor any of their respective properties or assets is subject to any outstanding judgment, order, injunction, rule or decree of any Governmental Authority that has had or would reasonably be expected to have a Buyer Material Adverse Effect.

Section 4.5

Brokers. No broker, investment banker, financial advisor or other Person, other than Bank of America Merrill Lynch, the fees and expenses of which will be paid by Buyer, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Buyer.

Section 4.6

No Other Seller or Company Representations or Warranties.

(a)

Buyer acknowledges that it and its Representatives have received access to such books and records, contracts and other assets of the Company and its Subsidiary which it and its Representatives have desired or required to review. Buyer acknowledges that neither Seller, the Company, the Company’s Subsidiary nor any other person has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Company and its Subsidiary furnished or made available to Buyer and their respective Representatives except as expressly set forth in Article III (which includes the Seller Disclosure Schedules). Without limiting the foregoing, except as expressly set forth in this Agreement or the Ancillary Agreements, Seller, the Company and the Company’s Subsidiary makes no representation or warranty to Buyer with respect to Seller, the Company or its Subsidiaries or their respective Affiliates, business, operations, technology, assets, liabilities, results of operations, financial condition, prospects, projections, budgets, estimates or operational metrics, or as to the accuracy or completeness of any of the information (including any statement, document or agreement delivered pursuant to this Agreement or the Ancillary Agreements and any financial statements and any projections, estimates or other forward-looking information) provided (including in any management presentations, information or descriptive memorandum, certain “data rooms” maintained by Seller and the Company, supplemental information or other materials or information with respect to any of the above) or otherwise made available to Buyer or any of its Affiliates, shareholders or Representatives.

Section 4.7

Exclusivity of Representations. The representations and warranties made by Buyer in this Article IV are the exclusive representations and warranties made by

Buyer in this Agreement. Buyer hereby disclaims any other express or implied representations or warranties with respect to itself.

ARTICLE V
COVENANTS

Section 5.1

Covenants Regarding Information.

(a)

In order to facilitate the resolution of any claims made by or against or incurred by Buyer or the Company or any of its Subsidiaries after the Closing or for any other reasonable purpose, for a period of six years following the Closing, Seller shall, subject to applicable Law: (i) retain all books, documents, information, data, files and other records of Seller that relate to the Company and its Subsidiaries and their business and operations for periods prior to the Closing and which shall not otherwise have been delivered to Buyer or the Company or its Subsidiaries; (ii) upon reasonable notice, afford Buyer and the Company and its Subsidiaries and their respective Representatives reasonable access (including for inspection and copying, at Buyer’s expense), during normal business hours, to such books, documents, information, data, files and other records, including in connection with claims, proceedings, actions, investigations, audits and other regulatory or legal proceedings involving or relating to the Company or any of its Subsidiaries; and (iii) furnish Buyer and the Company and its Subsidiaries and their respective Representatives reasonable assistance (at Buyer’s expense), including access to personnel, in connection with any such claims and other proceedings; provided, that such access shall be granted until the later of six years following the Closing and the expiration date of the applicable statute of limitations with respect to tax matters. Seller shall permit, promptly upon reasonable request, Buyer and the Company and its Subsidiaries and their respective Representatives to use original copies of any such records for purposes of litigation; provided, that such records shall promptly be returned to Seller following such use. During such six year period, Seller shall not destroy any such books and records without providing Buyer with written notice, and providing Buyer with the opportunity to obtain copies of such books and records, at least 60 days prior to the destruction thereof.

(b)

In order to facilitate the resolution of any claims made by or against or incurred by Seller or the Company or any of its Subsidiaries after the Closing or for any other reasonable purpose, for a period of six years following the Closing, subject to applicable Law, Buyer and the Company shall, upon reasonable notice, afford Seller and its Representatives reasonable access (including for inspection and copying, at Seller’s expense), during normal business hours, to all books, documents, information, data, files and other records that relate to the Company and its Subsidiaries and their business and operations that shall not have been delivered by Seller to Buyer, including in connection with claims, proceedings, actions, investigations, audits and other regulatory or legal proceedings involving or relating to the Company or any of its Subsidiaries; provided, that such access shall be granted until the later of six years following the Closing and the expiration date of the applicable statute of limitations with respect to tax matters. Buyer and the Company and its Subsidiaries shall permit, promptly upon reasonable request, Seller and its Representatives to use original copies of any such records for purposes of litigation; provided, that such records shall promptly be returned to Buyer, the Company or

such Subsidiary of the Company (as applicable) following such use. During such six year period, Buyer and the Company and its Subsidiaries shall not destroy any such books and records without providing Seller with written notice, and providing Seller with the opportunity to obtain copies of such books and records, at least 60 days prior to the destruction thereof.

Section 5.2

Further Assurances. From time to time after the Closing, and for no further consideration, each of the parties shall, and shall cause its Subsidiaries to, execute, acknowledge and deliver such assignments, transfers, consents, assumptions and other documents and instruments and take such other actions as may be necessary to consummate and make effective the transactions contemplated by this Agreement.

Section 5.3

Confidentiality.

(a)

For a period of four years following the Closing Date, Seller shall not, and shall cause its controlled Affiliates and direct its other Affiliates and the respective Representatives of Seller and its Affiliates not to, use for its or their own benefit, or divulge or convey to any third party, any Confidential Information (as defined below); provided, however, that Seller or its Affiliates may furnish such portion (and only such portion) of the Confidential Information if: (i) it is requested or required, as advised by legal counsel (which may be in-house counsel), to disclose all or any part of the Confidential Information by or pursuant to applicable Law, the terms of a subpoena, civil investigative demand or order issued by a Governmental Authority or similar judicial or legal process, regulatory agency or stock exchange rule; and, to the extent legally permitted, (ii)(x) to the extent not inconsistent with such request or requirement, it notifies Buyer of the existence, terms and circumstances surrounding such request or requirement and consults with Buyer on the advisability of taking steps available under applicable Law to resist or narrow such request or requirement; and (y) it exercises its commercially reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information. For purposes of this Agreement, “Confidential Information” (x) with respect to Buyer, consists of all information and data relating to Buyer or its Subsidiaries and the Company or its Subsidiaries or the transactions contemplated hereby and (y) with respect to Seller, consists of all information and data relating solely to Seller and its members (and not the Company or any of its Subsidiaries) (in either case, other than data or information that (i) is or becomes available to the public other than as a result of a disclosure by Seller or Buyer, as applicable, and its Representatives and Affiliates in breach of this Section 5.3(a) or (ii) becomes lawfully available to Seller or Buyer, as applicable, or any of its Affiliates or the Representatives of Seller or Buyer, as applicable, and its Affiliates from and after the Closing from sources that are not under any confidentiality obligation to Buyer or the Company (in the case of Seller) or Seller (in the case of Buyer) in respect of such data or information).

(b)

For a period of two years following the Closing Date, Buyer shall not, and shall cause its controlled Affiliates and direct its other Affiliates and the respective Representatives of Buyer and its Affiliates not to, use for its or their own benefit, or divulge or convey to any third party, any Confidential Information; provided, however,

that Buyer or its Affiliates may furnish such portion (and only such portion) of the Confidential Information if: (i) it is requested or required, as advised by legal counsel (which may be in-house counsel), to disclose all or any part of the Confidential Information by or pursuant to applicable Law, the terms of a subpoena, civil investigative demand or order issued by a Governmental Authority or similar judicial or legal process, regulatory agency or stock exchange rule; and, to the extent legally permitted, (ii)(x) to the extent not inconsistent with such request or requirement, it notifies Seller of the existence, terms and circumstances surrounding such request or requirement and consults with Seller on the advisability of taking steps available under applicable Law to resist or narrow such request or requirement; and (y) it exercises its commercially reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.

(c)

Effective as of the Closing, Seller hereby assigns to Buyer all of Seller’s respective rights, title and interest in and to any confidentiality agreements entered into by Seller (or its Affiliates or Representatives) and each Person (other than Buyer and its Affiliates and Representatives) who entered into any such agreement or to whom Confidential Information was provided in connection with a business combination or acquisition involving the Company or its Affiliates. From and after the Closing, Seller will take all actions reasonably requested by Buyer in order to assist in enforcing the rights so assigned.

Section 5.4

Public Announcements. Buyer, on the one hand, and Seller, on the other hand, shall, to the extent reasonably practicable, consult with each other before issuing, and give each other a reasonable opportunity to review and comment upon, any press release or other public statements with respect to this Agreement and the transactions contemplated hereby and shall not issue any such press release or make any public announcement without the prior consent of the other, which consent shall not be unreasonably withheld, conditioned or delayed, except as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system. The initial press release of the parties announcing the execution of this Agreement shall be a joint press release of Buyer and Seller in a form that is mutually agreed upon.

Section 5.5

Directors’ and Officers’ Indemnification.

(a)

Buyer agrees that all rights to indemnification, advancement of expenses and exculpation by Seller, the Company and its Subsidiaries (as provided in the bylaws, certificate of formation or limited liability company agreement or comparable organizational documents of Seller, the Company or any of its Subsidiaries as in effect as of the date hereof or as provided in any indemnification agreements in effect as of the date hereof) now existing in favor of each Person who is now, or has been at any time prior to the date hereof an officer, director or manager of Seller, the Company or any of its Subsidiaries (each an “Indemnified Party”) shall be assumed by Buyer, without further action, at the Closing and survive the Closing and shall remain in full force and effect in accordance with their terms, and, in the event that any proceeding is pending or asserted or any claim made during such period, until the final disposition of such proceeding or claim.

(b)

For six years after the Closing, to the fullest extent permitted under applicable Law, Buyer shall indemnify, defend and hold harmless each Indemnified Party against all losses, claims, damages, liabilities, fees, expenses, judgments and fines arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Closing (including in connection with the transactions contemplated by this Agreement), and shall reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such losses, claims, damages, liabilities, fees, expenses, judgments and fines as such expenses are incurred, subject to Buyer’s receipt of an undertaking by such Indemnified Party to repay such legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party is not entitled to be indemnified under applicable Law; provided, however, that Buyer will not be liable for any settlement effected without Buyer’s prior written consent (which consent shall not be unreasonably withheld or delayed).

(c)

The obligations of Buyer under this Section 5.5 shall survive the Closing and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.5 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 5.5 applies shall be third-party beneficiaries of this Section 5.5, each of whom may enforce the provisions of this Section 5.5).

(d)

In the event that Buyer, the Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Buyer or the Company, as the case may be, shall assume all of the obligations set forth in this Section 5.5. The agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Indemnified Party is entitled.

Section 5.6

Company Names and Marks.

(a)

Seller hereby acknowledges that all right, title and interest in and to the names “Workflow,” when used as a source identifier for the goods and/or services of the Company, together with all confusingly similar variations thereof and all confusingly similar trademarks, service marks, domain names, trade names, trade dress, corporate names and other identifiers of source containing, incorporating or associated with any of the foregoing (the “Company Names and Marks”) are owned exclusively by Buyer and its Affiliates, and that, any and all right of Sellers to use the Company Names and Marks shall terminate as of the Closing.

(b)

As soon as reasonably practicable after the Closing Date, but in any event no later than five Business Days after the Closing Date, Seller shall take all necessary actions to legally change its corporate name so that it is in compliance with this Section 5.6.

ARTICLE VI
TAX MATTERS

Section 6.1

Tax Returns.

(a)

Buyer shall prepare and timely file, or cause to be prepared and timely filed all Tax Returns of the Company and its Subsidiaries required to be filed after the Closing Date. To the extent that any Tax Returns are to be filed by the Company or any of its Subsidiaries for any taxable period ending on or before the Closing Date, such Tax Returns shall be prepared in a manner consistent with past practice, except as otherwise required by applicable Law. Buyer shall provide Seller with copies of completed drafts of such Tax Returns no later than 30 days prior to the due date for filing thereof (including applicable extensions) for Seller’s review and approval. In the event that the Company or any Subsidiary is treated as a pass-through entity other than a disregarded entity for US federal income tax or for state income tax purpose for any taxable period or portion thereof ending on or prior to the Closing Date, Buyer shall make any revisions to such Tax Returns requested by Seller that relate to the Tax liability of Seller or a direct or indirect owner of an interest in Seller. Except as provided herein, Buyer shall be responsible for all Taxes of the Company and its Subsidiaries due and payable with respect to such Company and Subsidiary Tax Returns. Notwithstanding the foregoing, and for the avoidance of doubt, (i) Buyer shall not be required to pay or have any liability for any Taxes imposed on a direct or indirect owner of an interest in Seller on a pass-through basis as a result of its ownership of Seller and (ii) Buyer shall not be responsible or liable for or required to pay for any withholding Taxes imposed on the Seller, the Company and its Subsidiaries resulting from the Seller’s, the Company’s or its Subsidiaries’ status as a pass-through entity that relate to income Taxes of any indirect owner of an interest in Seller (including but not limited to any withholding Taxes due as a result of the non-resident status of a direct or indirect owner of Seller).

(b)

Seller and Buyer shall treat the Closing as a sale by Seller of the assets of the Company for U.S. federal income tax purposes and for all corresponding state income tax purposes. Seller shall prepare or cause to be prepared all Tax Returns of Seller. Pursuant to Section 6.4 Buyer, the Company and its Subsidiaries shall provide Seller with such information and materials as it needs to prepare such Tax Returns.

(c)

Buyer on the one hand and Seller on the other hand shall each be responsible for 50% of any and all excise, sales, use, stamp, transfer, documentary, filing, recordation, value added Taxes and other similar Taxes and fees, if any, that are actually incurred as a result of the purchase and sale of the Interests, together with any interest, additions or penalties with respect thereto (collectively, “Transfer Taxes”). Buyer and Seller agree to cooperate in the preparation and filing of any Tax Returns with respect to Transfer Taxes..

(d)

Not less than 60 days prior to the due date for the filing of any Tax Return (taking into account applicable extensions) for which the other party or parties have any liability, the filing party shall deliver a copy of such Tax Return to the other party or parties for their review and comment. The other party or parties shall pay directly to the

filing party or parties their portion of the Taxes due thereon (as determined pursuant to this Article VI) no later than five days prior to the due date for the filing of such Tax Return.

Section 6.2

Tax Indemnity.

(a)

Except as set forth herein, from and after the Closing Date, Buyer shall pay and be responsible for and shall indemnify and hold harmless Seller and any direct or indirect owner of an interest in Seller from and against any and all (i) Taxes of the Company and its Subsidiaries and (ii) Taxes of the Seller with respect to any Pre-Closing Tax Period; provided, however, that Seller agrees to reimburse Buyer for the amount of any Taxes of Seller with respect to any Pre-Closing Tax Period paid or borne by Buyer pursuant to this Section 6.2(a) and for the expenses of Sellers for which indemnification is provided in Sections 6.4(a) and 6.5(c), in a cumulative amount not to exceed $3,000,000. This obligation of Seller to reimburse Buyer shall terminate upon the earlier of the expiration of the applicable statute of limitation or upon the repayment in full of the Amended and Restated Second Lien Credit Agreement (as defined in the Amendment and Restatement Agreement) and any reimbursement payments made by Seller pursuant to this obligation shall be treated as adjustments to the Purchase Price to the extent permitted by applicable Law. Notwithstanding the forgoing and for the avoidance of doubt, (i) Buyer shall not be required to pay or have any liability for any Taxes of Seller with respect to a Post-Closing Tax Period or Taxes imposed on a direct or indirect owner of an interest in Seller on a pass-through basis as a result of its ownership of Seller and (iii) Buyer shall not be responsible or liable for or required to indemnify for any withholding Taxes imposed on Seller, the Company and its Subsidiaries resulting from Seller, the Company’s or its Subsidiaries’ status as a pass-through entity that relate to income Taxes of Seller or any indirect owner of an interest in Seller (including but not limited to any withholding Taxes due as a result of the non-resident status of a direct or indirect owner of Seller). Furthermore, for the avoidance of doubt, Buyer shall not indemnify and shall not be required to pay for any Taxes imposed on a direct or indirect owner of an interest in Seller on a pass through basis as a result of its ownership of Seller.

(b)

Seller shall indemnify and hold harmless Buyer, the Company and its Subsidiaries for any (i) Taxes of the Seller with respect to a Post-Closing Tax Period and (ii) withholding of Taxes imposed on the Company and its Subsidiaries resulting from the Company’s or its Subsidiaries’ status as a pass-through entity that relate to income Taxes of Seller or any indirect owner of an interest in Seller (including but not limited to any withholding Taxes due as a result of the non-resident status of a direct or indirect owner of Seller).

(c)

For purposes of this Article VI, in determining whether a Tax Return filing obligation or any Tax liability imposed by a Governmental Authority with respect to any specific type of Tax is an obligation or liability of Seller on the one hand, or the Company and its Subsidiaries on the other hand, the Tax Returns shall be filed and Tax liabilities shall be determined in accordance with past practice of Seller, the Company or the Subsidiary, as the case may be. For the avoidance of doubt, such past practice has been that all non income taxes imposed as a result of the operations and assets of the Company

and its subsidiaries (e.g., sales and use, employment and property taxes) have been filed and paid by the Company and its Subsidiaries.

Section 6.3

Tax Allocation. For purposes of this Article VI, Taxes of a Straddle Period shall be apportioned between the taxable periods or portions thereof ending on or prior to the Closing Date (the “Pre-Closing Tax Period”), on the one hand, and the taxable periods or portions thereof beginning after the Closing Date (the “Post-Closing Tax Period”), on the other hand. The amount of any Taxes based on or measured by income, gain, or receipts or other similar items shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period on a closing-of-the-books basis. The amount of other Taxes shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period as follows: (i) in the case of any Tax imposed in respect of property and that applies ratably to a Straddle Period, the amount of any such Tax allocable to a portion of the Straddle Period shall be the total amount of such Tax for the period in question multiplied by a fraction, the numerator of which is the total number of days in such portion of such Straddle Period and the denominator of which is the total number of days in such Straddle Period and (ii) in the case of sales, valued-added, withholding and similar transaction-based Taxes (other than Transfer Taxes) such Taxes shall be allocated to the portion of the Straddle Period in which the relevant transaction occurred.

Section 6.4

Tax Cooperation.

(a)

Buyer shall prepare or cause to be prepared drafts of all Tax Returns of Seller for all taxable periods ending on, prior to or including the Closing Date. Such Tax Returns shall be prepared in a manner consistent with past practice and Buyer shall cooperate and consult with Seller in connection with the preparation of such Tax Returns. Seller shall provide information to Buyer with respect to any activities or operations of Seller (if any) with respect to portions of periods beginning on or after the Closing Date. Such drafts shall be delivered to Seller no less than sixty days prior to the due date of such Tax Returns. Buyer shall provide such additional information, calculations and material as shall be reasonably requested in connection with such Tax Returns and shall cooperate and assist Seller as necessary for Seller and Seller’s accountants to finalize such draft Tax Returns. Buyer shall prepare such Tax Returns using its internal tax personnel and Seller shall hire any outside accountants required to finalize such Tax Returns. Sellers shall be liable for and shall indemnify Buyer and its Affiliates (including the Company and its Subsidiaries)in accordance with and subject to the limitations set forth in Section 6.1(a), for all costs incurred by such outside accountants and for any reasonable third-party costs incurred by Buyer in connection with Buyer’s obligations under this Section 6.4(a). Notwithstanding anything contained herein, Seller will be responsible for the information contained in the final Tax Returns, and Buyer shall have no liability for or any indemnification obligation to Seller or Seller’s direct or indirect owners with respect to such Tax Returns except for fraud, willful misconduct and gross negligence; provided that Buyer shall be liable for indemnification of Taxes of the Seller for Pre-Closing Periods pursuant to Section 6.2.

(b)

After the Closing Date, Seller, Buyer and their respective Affiliates shall cooperate, and shall cause their respective affiliates, officers, employees, agents,

auditors and representatives to cooperate as reasonably requested, in connection with the preparation and filing of all Tax Returns prepared and filed pursuant to this Article VI and with respect to any Tax Claim. The Company shall retain all Tax records related to the operations of the Company and Tax Returns completed by Seller. Buyer and Seller recognize that Seller may need access, from time to time, after the Closing Date, to certain accounting and Tax records and information held by the Company to the extent such records and information pertain to events occurring on or before the Closing Date; therefore, Buyer agrees that from and after the Closing Date, Buyer shall, and shall cause the Company, its affiliates and successors to (1) retain and maintain such records and information until one year after the expiration of the applicable statute of limitations and (2) allow Seller (and agents and representatives of Seller) to inspect, review and make copies of such records and information as Seller or any agent and representative of Seller may deem necessary or appropriate from time to time, provided that Seller or Seller Representative shall reimburse Buyer for all out of pocket costs in connection therewith. Buyer and Seller further agree, upon request, to use their commercially reasonable efforts to obtain any certificate or other document from any governmental authority or any other Person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed (including, but not limited to, with respect to the transactions contemplated hereby).

Section 6.5

Tax Claims.

(a)

If notice of any Action with respect to Tax Returns or Taxes of the Seller, the Company or any Subsidiary is received by Buyer or an Affiliate that may give rise to a liability for Taxes upon, or be reflected on the Tax Returns of, Seller or any direct or indirect owner of an interest in Seller (a “Tax Claim”), the notified party shall, as soon as reasonably practicable, notify Seller in writing of such Tax Claim. If Seller or any Affiliate of Seller receives a Tax Claim the notified party shall, as soon as reasonably practicable, notify Buyer in writing of such Company Tax Claim. Notwithstanding the foregoing, the failure to give such notice shall not relieve any party of its obligations under this Article VI, except to the extent that the other Party is prejudiced by such failure.

(b)

Buyer shall represent the interest of the Seller and Company and its Subsidiaries in any Tax Claim; provided that with respect to any Tax Claim that relates to the liability for Taxes upon the Seller or any direct or indirect owner of an interest in Seller or for which Seller or the owners of a direct or indirect interest in Seller could reasonably expect to be liable, (I) Seller may participate at its own expense in all aspects of such Company Tax Claim and (II) Buyer (a) shall keep Seller informed with respect to such Company Tax Claim; (b) shall provide Seller with copies of material correspondence, notices and other written materials related to such Company Tax Claim received from any Governmental Authority and shall keep Seller informed on significant developments; and (c) Buyer shall not settle such Company Tax Claim without the consent of Seller (such consent not to be unreasonably withheld, delayed or conditioned). Notwithstanding the forgoing, (x) with respect to a Tax Claim that relates solely to Seller or any direct or indirect owner of an interest in Seller and for which only any direct or indirect owners of an interest in Seller is liable on a pass through basis, Seller shall be permitted at its option to represent the interest of Seller and the direct or indirect owner of an interest in Seller provided that Buyer may participate at its own expense in all aspects of such Tax Claim

and Seller (a) shall keep Buyer informed with respect to such Tax Claim; and (b) shall provide Buyer with copies of all correspondence, notices and other written materials related to such Tax Claim received from any Governmental Authority and shall keep Buyer informed on significant developments and (c) Seller shall not settle such Tax Claim without notification of and consultation with Buyer and (y) with respect to a Tax Claim that relates to Seller or any direct or indirect owner of an interest in Seller and for which both any direct or indirect owners of an interest in Seller is liable on a pass through basis and the Company or Seller is liable on an entity basis, Seller shall be permitted at its option to represent the interest of Seller and the direct or indirect owner of an interest in Seller at its own expense in all aspects of such Tax Claim, provided that Buyer may take control at its own expense of all aspects of such Tax Claim that relate to entity level Taxes, and each Party (a) shall keep the other Party informed with respect to such Tax Claim; and (b) shall provide the other Party with copies of all correspondence, notices and other written materials related to such Tax Claim received from any Governmental Authority and shall keep the other Party informed on significant developments and (c) neither party shall settle such Tax Claim without consent of the other Party (such consent not to be unreasonably withheld).

(c)

With respect to any Tax Claim involving Seller, Buyer and Seller shall (i) cooperate with each other in all aspects of such Tax Claim and (ii) make all records and other materials of the Seller, the Company and its Subsidiaries relating to such claim available to each other. Buyer shall, at Seller’s, request and to the extent it does not conflict with Buyer’s reasonable position with respect to such Tax Claim, make such records available to the applicable Governmental Authority and communicate with the applicable Governmental Authority on behalf of Seller regarding positions taken on the Tax Returns at issue. In accordance with and subject to the limitations set forth in Section 6.1(a), Seller shall indemnify and hold Buyer and its Affiliates (including the Company and its Subsidiaries) harmless from any third-party costs associated with the performance of its obligations under this Section 6.5(c) that relate to Tax Returns of Seller.

Section 6.6

Article VI Survival. Seller shall not be liquidated or dissolved prior to December 31, 2014 and shall not take any action or engage in any business activity Post-Closing other than actions and activity related to the Interests, this Agreement any other agreements between the parties. The responsibilities of the Parties pursuant to this Article VI shall survive the Closing and shall survive the liquidation or dissolution of Seller. In the event of the liquidation or dissolution of Seller, SPCP Group LLC, the tax matters partner of Seller, shall be permitted to act on account of the interests of the members of Seller and shall be responsible for any consent and notification provisions under Article VI. In no event shall Buyer, the Company or its Subsidiaries be liable to Seller or its direct, or indirect owners for any action taken or not taken at the request of or with the approval of SPCP Group LLC after the liquidation of Seller.

ARTICLE VII
CLOSING DELIVERABLES

Section 7.1

Closing Deliverable of Buyer. At the Closing, Buyer shall deliver, or cause to be delivered, the Purchase Price; provided, that Seller may, in its sole discretion, waive in writing the receipt by Seller of the Purchase Price.

Section 7.2

Closing Deliverables of Seller. At the Closing, Seller shall deliver, or cause to be delivered, the following deliverables to Buyer or, in the case of Section 7.2(c), the Company; provided, that Buyer may, in its sole discretion, waive in writing the receipt by Buyer or the Company, as applicable, of any one or more of such deliverables:

(a)

Interest Certificate. A certificate representing the Interests, duly endorsed in blank or accompanied by unit powers duly endorsed in blank in proper form for transfer, with appropriate transfer stamps, if any, affixed.

(b)

Resignations. Letters of resignation, reasonably satisfactory to Buyer and dated as of the Closing Date, executed by each director of each Subsidiary of the Company, and to the extent reasonably requested by Buyer, executed by each officer of the Company or any Subsidiary of the Company.

(c)

Seller Release. A general release and discharge executed by Seller, for the benefit of the Company and each of its Subsidiaries and in form and substance reasonably satisfactory to Buyer, releasing and discharging the Company and each of its Subsidiaries from any and all obligations to pay or indemnify Seller, guarantee or secure its obligations or otherwise hold it harmless pursuant to any agreement or other arrangement entered into prior to the Closing other than pursuant to Section 6.2.

(d)

Intercompany Arrangements. Evidence, in form and substance reasonably satisfactory to Buyer, that all Intercompany Arrangements, including those set forth on Section 3.20 of the Seller Disclosure Schedules, shall have been terminated without any further liabilities or obligations.

(e)

Indebtedness. Evidence, in form and substance reasonably satisfactory to Buyer, that all Indebtedness, including that set forth on Section 3.8(b) of the Seller Disclosure Schedules, has been repaid, discharged and extinguished in full, including payoff letters, duly executed by each holder of Indebtedness, for all Indebtedness for which a payoff letter is customarily obtained (other than the First Lien Credit Agreement and the Second Lien Credit Agreement) pursuant to which such holder shall, inter alia, agree that: (i) all outstanding obligations of the Company and its Subsidiaries arising under or related to the applicable Indebtedness shall be repaid, discharged and extinguished in full; (ii) all Encumbrances in connection therewith shall be released; (iii) the holder shall take all actions reasonably requested by Buyer to evidence and record such discharge and release as promptly as practicable; and (iv) the holder shall return to the Company all instruments evidencing the applicable Indebtedness (including all notes) and all collateral securing the applicable Indebtedness.

(f)

Tax Certificate. A certificate of Seller certifying that Seller is not a foreign person, which certificate complies with the requirements of Section 1445 of the Code.

(g)

Closing Cash. Documentation, in form and substance reasonably satisfactory to Buyer, evidencing Closing Cash in an aggregate amount equal to the sum of (i) the Escrow Amount, to the extent such amount has not been delivered pursuant to Section 7.2(i), plus (ii) all Intercompany Arrangements, if any, plus (iii) all Indebtedness (other than Indebtedness under the First Lien Credit Agreement or the Second Lien Credit Agreement), if any, plus (iv) the aggregate amount of Scheduled Post-Closing Transaction Expenses.

(h)

Transferred Permits. Documentation, in form and substance reasonably satisfactory to Buyer, pursuant to which Seller shall have duly and validly transferred or cause to be transferred to the Company, without any consideration, all Permits that are held in the name of Seller or any of its Affiliates (other than the Company or any of its Subsidiaries) on behalf of the Company or any of its Subsidiaries and used in connection with the business of the Company and its Subsidiaries.

(i)

Escrow Amount. The Escrow Amount to an account designated by the Escrow Agent (as defined in the Amendment and Restatement Agreement) pursuant to the Escrow Agreement (as defined in the Amendment and Restatement Agreement) by wire transfer of same day funds.

ARTICLE VIII
GENERAL PROVISIONS

Section 8.1

Section 8.2

Waiver. No failure or delay of either party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder. Any agreement on the part of either party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such party.

Section 8.3

Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:

(i)

if to Seller or, prior to the Closing, the Company, to:

c/o Silver Point Capital, L.P.
Two Greenwich Plaza, 1st Floor

Greenwich, Connecticut 06830
Attention (Facsimile): Anthony DiNello ((203) 542-4312)
Attention (Facsimile): Taylor Montague ((203) 542-4311)

Attention (Facsimile): Brad Tobin ((203) 542-4536)

with a copy (which shall not constitute notice) to:

Fried, Frank, Harris, Shriver & Jacobson LLP

One New York Plaza

New York, New York 10004

Attention: Christopher Ewan

David L. Shaw
Facsimile: (212) 859-4000

(ii)

if to Buyer or, subsequent to the Closing, the Company, to:

The Standard Register Company

600 Albany Street

Dayton, Ohio 45417

Attention: General Counsel
Facsimile: (937) 271-7485

with a copy (which shall not constitute notice) to:

Gibson, Dunn & Crutcher LLP
200 Park Avenue

New York, New York 10166

Attention: Barbara L. Becker
Facsimile: (212) 351-6202

Section 8.4

Interpretation. When a reference is made in this Agreement to a Section, Article, Exhibit or Schedule, such reference shall be to a Section, Article, Exhibit or Schedule of this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement or in any Exhibit or Schedule are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of

this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Any capitalized terms used in any Exhibit or Schedule, but not otherwise defined therein, shall have the meaning as defined in this Agreement. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth herein. The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,” unless otherwise specified. All references to “dollars” or “$” or “US$” in this Agreement or any Ancillary Agreement refer to United States dollars, which is the currency used for all purposes in this Agreement and any Ancillary Agreement. Each of Buyer and Seller acknowledges that each party to this Agreement has been represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.

Section 8.5

Entire Agreement. This Agreement (including the Exhibits and Schedules), the Amendment and Restatement Agreement, the Shareholders Agreement (as defined in the Amendment and Restatement Agreement), the Registration Rights Agreement (as defined in the Amendment and Restatement Agreement), the Escrow Agreement (as defined in the Amendment and Restatement Agreement), the Warrant Agreements (as defined in the Amendment and Restatement Agreement), the Amended and Restated Credit Agreements (as defined in the Amendment and Restatement Agreement) and the other Ancillary Agreements constitute the entire agreement, and supersede all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings between the parties with respect to the subject matter hereof and thereof. Notwithstanding any oral agreement or course of conduct of the parties or their Representatives to the contrary, no party to this Agreement shall be under any legal obligation to enter into or complete the transactions contemplated hereby unless and until this Agreement shall have been executed and delivered by each of the parties.

Section 8.6

No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.

Section 8.7

Governing Law. This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of New York (other than Section 5-1401 of the New York General Obligations Law).

Section 8.8

Jurisdiction; WAIVER OF JURY TRIAL. Each of the parties irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement brought by the other party or its successors or assigns shall be brought and determined in any New York State or federal court sitting in the Borough of Manhattan in

The City of New York (or, if such court lacks subject matter jurisdiction, in any appropriate New York State or federal court), and each of the parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby. Each of the parties agrees not to commence any action, suit or proceeding relating thereto except in the courts described above in New York, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in New York as described herein. Each of the parties further agrees that notice as provided in Section 8.3 shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in New York as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (c) that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper, or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 8.9

Assignment; Successors. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by either party without the prior written consent of the other party, and any such assignment without such prior written consent shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

Section 8.10

Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each of the parties shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any New York State or federal court sitting in the Borough of Manhattan in The City of New York (or, if such court lacks subject matter jurisdiction, in any appropriate New York State or federal court), this being in addition to any other remedy to which such party is entitled at law or in equity. Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security as a prerequisite to obtaining equitable relief.

Section 8.11

Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

Section 8.12

Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party (including by facsimile or email delivery of pdf).

Section 8.13

Survival of Representations and Warranties.

None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Closing. For the avoidance of doubt, this Section 8.13 shall not in any way inhibit any of the parties to this Agreement from obtaining any remedies such parties may have against any insurer under the representation and warranty insurance policy described in the Amendment and Restatement Agreement for any breach of the representations and warranties in this Agreement.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date above first written.

The Standard Register Company

By: /s/ Joseph P. Morgan
Name: Joseph P. Morgan
Title: President & CEO

WorkflowOne LLC

By: /s/ Thomas J. Koenig
Name: Thomas J. Koenig
Title: Vice President and Chief Financial Officer

Workflow Holdings, LLC

By: /s/ Thomas J. Koenig
Name: Thomas J. Koenig
Title: Vice President and Chief Financial Officer

EX-4 3 ex41.htm EXHIBIT 4.1 Converted by EDGARwiz

Exhibit 4.1

FORM OF

WARRANT

August 1, 2013

THE STANDARD REGISTER COMPANY

WARRANT FOR THE PURCHASE OF SHARES OF

COMMON STOCK OF THE STANDARD REGISTER COMPANY


	Warrant to PurchaseShares

THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, DISTRIBUTED, TRANSFERRED OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY EXEMPTION FROM REGISTRATION UNDER SAID ACT, OR APPLICABLE U.S. FEDERAL OR STATE SECURITIES LAW, RELATING TO ANY SUCH DISPOSITION, INCLUDING RULE 144. THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, VOTING AND OTHER MATTERS AS SET FORTH IN THE SHAREHOLDERS AGREEMENT (AS HEREIN DEFINED), COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM THE COMPANY.

THIS WARRANT MAY NOT BE EXERCISED UNTIL THE DATE ON WHICH THE COMPANY RECEIVES THE COMPANY SHAREHOLDER APPROVAL (AS DEFINED HEREIN). THERE IS NO ASSURANCE THAT SUCH APPROVAL WILL BE RECEIVED AND, AS SUCH, THAT THIS WARRANT WILL EVER BECOME EXERCISABLE.

FOR VALUE RECEIVED, The Standard Register Company, an Ohio corporation (the “Company”), hereby certifies that [ ], its successor or permitted assigns (the “Holder”), is entitled, subject to the terms and conditions of this Warrant, to purchase from the Company, at the times specified herein, [ ] fully paid and nonassessable shares of Common Stock of the Company, par value $1.00 per share (the “Common Stock”), at a purchase price per share equal to the Exercise Price (as hereinafter defined). The number of shares of Common Stock to be received upon the exercise of this Warrant and the price to be paid for a share of Common Stock are subject to adjustment from time to time as set forth below.

Definitions.

(a) The following terms, as used herein, have the following meanings:

“Board of Directors” means the Board of Directors of the Company.

“Business Day” means any day that is not a Saturday, a Sunday or a day on which banks are required or authorized by law to be closed in The City of New York.

“Capital Stock ” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity.

“Class A Common Stock” means the Class A Common Stock, with a par value of $1.00, of the Company.

“Close of Business” shall mean 5:00 p.m., Eastern Time, on any Business Day.

“Company Shareholder Approval” has the meaning set forth in the Amendment and Restatement Agreement.

“Company Shareholder Meeting” means a special or annual meeting of the Company’s shareholders.

“Current Market Price Per Common Share” shall mean the average (weighted by daily trading volume) of the Daily Prices per share of the Common Stock for the 20 consecutive trading days immediately prior to such date.

“Daily Price” shall mean (i) if the shares of Common Stock are listed and traded on the New York Stock Exchange, Inc. (“NYSE”), the closing price on such day as reported on the NYSE Composite Transactions Tape; or (ii) if the shares of Common Stock are not listed and traded on the NYSE, the closing price on such day as reported by the principal national securities exchange on which the shares are listed and traded. If on any determination date the shares of Common Stock are not listed or traded by NYSE or any principal national securities exchange, the Current Market Price Per Common Share shall be the fair market value of such shares on such determination date as determined, in good faith, by the Board of Directors; provided, that if the Holder disagrees with such determination of the Current Market Price Per Common Share by the Board of Directors (and the Holder and the Company are unable to agree within a reasonable period of time (not to exceed 60 days from the Company’s receipt of the Warrant Exercise Notice), such fair market value shall be determined by a nationally recognized investment banking, accounting or valuation firm jointly selected by the Board of Directors and the Holder. The determination of such firm shall be final, conclusive and binding on the Company and the Holder. The costs of the determination of the Current Market Price Per Common Share by such firm, including the fees and expenses of such firm and of any enforcement of the determination thereof, shall be borne equally by the Holder and the Company.

“Exercise Price” means $0.00001 per Warrant Share.

“Expiration Date” means the earlier of Close of Business on (i) the twentieth year anniversary of the date hereof and (ii) the last day of the three month period following the date on which the Company Shareholder Approval has been obtained (provided, that if such day is not a Business Day, then “Expiration Date” means the next succeeding day that shall be a Business Day).

“Person” means any individual, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof.

“Record Date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of shareholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise).

“Shareholders Agreement” means the Shareholders Agreement dated as of the date hereof among the Company, Silver Point Capital, L.P., as Minority Shareholder Representative, and the shareholders listed on the signature pages thereto.

“Warrant” means this Warrant and all warrants issued upon division or combination of, or in substitution of this Warrant.

“Warrant Shares” means the shares of Common Stock deliverable upon exercise of this Warrant, as adjusted from time to time.

“Warrant Assignment Form” means an assignment agreement in the form annexed hereto as Annex C.

“Warrant Exercise Notice” means a notice in the form annexed hereto as Annex A.

“Warrant Exercise Subscription Form” means a subscription agreement in the form annexed hereto as Annex B.

(a)

Capitalized terms used, but not defined herein, shall have the meanings assigned to such terms in the Shareholders Agreement.

Exercise of Warrant; Termination of Warrant.

(a)

The Holder is entitled to exercise this warrant (the “Warrant”) on any Business Day after the Company obtains the Company Shareholder Approval until the Expiration Date. To exercise this Warrant, the Holder shall execute and deliver to the Company a Warrant Exercise Notice substantially in the form annexed hereto. Upon delivery of the Warrant Exercise Notice, the Holder shall deliver to the Company this Warrant, including the Warrant Exercise Subscription Form annexed hereto, duly executed by the Holder, together with payment of the applicable Exercise Price (subject to Section 2(e) below). Upon receipt by the Company of such delivery and payment, the Holder shall be deemed to be the holder of record of the Warrant

Shares, notwithstanding that the stock transfer books of the Company shall then be closed, or that certificates representing such Warrant Shares shall not then be actually delivered to the Holder.

(b)

The Exercise Price may be paid in cash, by certified, official bank check or bank cashier’s check payable to the order of the Company, by any combination of such cash or check or by reduction in the number of Shares that would otherwise be issued upon exercise pursuant to Section 2(e). The Company shall pay any and all documentary, stamp or similar issue, or transfer taxes or other governmental charges payable in respect of the issue or delivery of the Warrant Shares.

(c)

The Holder may only exercise this Warrant in full; a partial exercise of this Warrant shall not be permitted.

(d)

Upon surrender of this Warrant in conformity with the foregoing provisions, the Company shall, as soon as reasonably practicable, but in any case within two Business Days, transfer to the Holder appropriate evidence of ownership of the shares of Common Stock, or other securities or property (including any money) to which the Holder is entitled, registered or otherwise placed in, or payable to the order of, the name or names of the Holder, or such transferee as may be directed in writing by the Holder, and shall deliver such evidence of ownership and any other securities or property (including any money) to the Person or Persons entitled to receive the same, together with an amount, in cash, in lieu of any fraction of a share as provided in Section 5 below (to the extent the Company elects to pay such cash amount in lieu of any fraction of a share).

(e)

In lieu of making the cash payment required to exercise the Warrant pursuant to Section 2(a) (but in all other respects in accordance with the exercise procedure set forth in Section 2(a)), the Holder may elect to convert this Warrant (in whole) into shares of Common Stock via a cashless exercise, in which event the Company will issue to the Holder the number of shares of Common Stock equal to the result obtained by (a) subtracting B from A, (b) multiplying the difference by C and (c) dividing the product by A, as set forth in the following equation:

X = (A - B) x C where:

X =

the number of shares of Common Stock issuable upon exercise pursuant to this Section 2(e).

A =

the Current Market Price Per Common Share on the day immediately preceding the date on which the Holder delivers written notice to the Company pursuant to Section 2(a).

B =

the Exercise Price.

C =

the number of Warrant Shares issuable upon exercise of this Warrant.

If the foregoing calculation results in a negative number, then no shares of Common Stock shall be issued upon exercise pursuant to this Section 2(e).

(f)

To the extent this Warrant has not been, as of the Expiration Date, previously exercised, and both the Company Shareholder Approval has been obtained and the Current Market Price Per Common Share is greater than the applicable Exercise Price then in effect, this Warrant shall be deemed automatically exercised on a cashless basis pursuant to Section 2(e) (even if this Warrant is not surrendered pursuant to Section 2(a), provided that the Holder shall still be obligated to return this Warrant to the Company as soon as reasonably) on such Expiration Date. For purposes of such automatic exercise, the Current Market Price Per Common Share per share of the Common Stock on the date of such expiration (or the next succeeding Business Day if such date is not a Business Day) shall be used when calculating the Warrant Share amount in accordance with Section 2(e). To the extent this Warrant is deemed automatically exercised pursuant to this Section 2(f), the Company agrees to as soon as reasonably practical notify the Holder of the number of Warrant Shares, if any, the Holder is to receive by reason of such automatic exercise.

(g)

(h)

The Company and the Holder each agree to treat this Warrant as stock for US federal income tax purposes. Any exercise of this Warrant made pursuant to the provisions of this Section 2 is a tax-free recapitalization within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended (the “Code”) pursuant to a plan of reorganization within the meaning of Section 354 of the Code.

Restrictive Legend. Certificates representing shares of Common Stock issued pursuant to this Warrant shall bear a legend substantially in the form of the legend set forth on the first page of this Warrant to the extent that the Company, in good faith, deems it necessary (with any changes or modifications thereto that the Company deems appropriate).

Reservation of Shares. The Company hereby agrees that at all times there shall be reserved for issuance and delivery upon exercise of this Warrant such number of its authorized but unissued shares of Common Stock or other securities of the Company from time to time issuable upon exercise of this Warrant and all other outstanding warrants of the Company as will be sufficient to permit the exercise of this Warrant and any other warrants of the Company.

Fractional Shares. The Company may, in its sole and absolute discretion, issue fractional shares upon the exercise of this Warrant, or, in lieu of delivery of any such fractional share upon any exercise hereof, pay to the Holder an amount in cash equal to such fraction multiplied by the Current Market Price Per Common Share at the date of such exercise.

Exchange, Transfer of Warrant.

(a)

The Holder agrees that it will not transfer this Warrant or its rights hereunder; provided that, subject to compliance with all applicable securities laws, the Holder

may transfer this Warrant or its rights hereunder to the extent that such a transfer is permitted under the Shareholders Agreement (including Section 4.2 thereof); provided, further, that the Holder agrees that it will not transfer this Warrant or its rights hereunder to any Person that is not an Affiliate of the Holder during the period in which the Company is seeking to obtain the Company Shareholder Approval for the initial time, such restriction not to exceed six months. For the purpose of this Section 6(a), all references to “shares of Common Stock” in the Shareholders Agreement shall be treated as references to this Warrant or the Holder’s rights hereunder.

(b)

Each taker and holder of this Warrant, by taking or holding the same, consents and agrees that the registered holder hereof may be treated by the Company and all other Persons dealing with this Warrant as the absolute owner hereof for any purpose and as the Person entitled to exercise the rights represented hereby.

(c)

Subject to compliance with Section 6(a), upon surrender of this Warrant to the Company, together with the attached Warrant Assignment Form duly executed, the Company shall, without charge, execute and deliver a new Warrant in the name of the assignee or assignees named in such instrument of assignment and, if the Holder's entire interest is not being assigned, in the name of the Holder and this Warrant shall promptly be canceled.

(d)

In addition to the transfer restrictions set forth above, the Holder acknowledges that this Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, offer for sale, pledge, hypothecate, distribute, transfer or otherwise dispose of this Warrant or any Warrant Share issued upon its exercise in the absence of (i) an effective registration statement under the Securities Act as to this Warrant or such Warrant Shares and registration or qualification of this Warrant or such Warrant Shares under any applicable U.S. federal or state securities law then in effect or (ii) the availability of any exemption from registration under the Securities Act or applicable U.S. federal or state securities law, including the safe harbor provided for by Rule 144 promulgated under the Securities Act for the sale of such securities (subject to any volume or manner of sale restrictions under the Securities Act).

Loss or Destruction of Warrant. Upon receipt by the Company of evidence satisfactory to it (in the exercise of its reasonable discretion) of the loss, theft, destruction or mutilation of this Warrant, and (in the case of loss, theft or destruction) of reasonably satisfactory indemnification, and upon surrender and cancellation of this Warrant, if mutilated, the Company shall execute and deliver a new Warrant of like tenor and date.

Adjustments. The number of Warrant Shares that may be purchased upon the exercise of each Warrant (the “Exercise Rate”) will be subject to adjustment from time to time upon the occurrence of the events enumerated in this Section 8. For purposes of this Section 8, the “Common Stock” shall mean shares now or hereafter authorized of any class of common stock of the Company (including Class A Common Stock), however designated, that has the right (subject to any prior rights of any class or series of preferred stock) to participate in any distribution of the assets or earnings of the Company without limit as to per share amount.

(a)

Adjustments for Change in Common Stock. If at any time after the date of this Warrant the Company:

(i)

pays a dividend or makes a distribution on its Common Stock exclusively in shares of its Common Stock;

(ii)

subdivides its outstanding shares of Common Stock into a greater number of shares;

(iii)

combines its outstanding shares of Common Stock into a smaller number of shares;

(iv)

issues by reclassification of its Common Stock any Capital Stock of the Company; or

(v)

pays a dividend or makes a distribution on its Common Stock in shares of its Capital Stock other than Common Stock;

then the Exercise Rate in effect immediately prior to such action shall be proportionately adjusted upon occurrence of such event so that the Holder may receive the aggregate number and kind of shares of equity of the Company which the Holder would have owned immediately following such action if this Warrant had been exercised immediately prior to such action (or, in the case of a dividend or distribution of Common Stock, immediately prior to the Record Date therefor). An adjustment made pursuant to this Section 8(a) shall become effective immediately after the distribution date, retroactive to the Record Date therefor in the case of a dividend or distribution in shares of Common Stock or other shares of its equity, and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification. If upon exercise of this Warrant after an adjustment to the Exercise Rate pursuant to clauses (iv) or (v) of this Section 8(a), the Holder may receive shares of two or more classes or series of equity of the Company, the exercise rights and the Exercise Rate of each class of equity shall thereafter be subject to further adjustment on terms comparable to those applicable to the Common Stock in this Section 8. The adjustment pursuant to this Section 8(a) shall be made successively each time that any event listed in this Section 8(a) above shall occur.

(b)

Adjustment for Dividends and Other Distributions. In case the Company shall make a dividend or other distribution on the Common Stock (other than a distribution covered by Section 8(a)), the Holder shall be entitled to receive (and the Company shall pay and/or distribute) at such time the cash, or subject to shareholder approval (to the extent required by applicable law), stock or other securities or property to which the Holder would have been entitled by way of dividends and distributions if the Holder had exercised this Warrant immediately prior to the declaration of such dividend or the making of such distribution (or, if earlier, the Record Date therefor) so as to be entitled thereto.

(c)

Upon each adjustment in the number of Warrant Shares for which this Warrant is exercisable pursuant to this Section 8, the Exercise Price shall be adjusted to equal an amount per share of Common Stock equal to the Exercise Price before such adjustment multiplied by a fraction, of which the numerator is the number of Warrant Shares for which this

Warrant is exercisable immediately before giving effect to such adjustment and the denominator of which is the number of Warrant Shares for which this Warrant is exercisable immediately after giving effect to such adjustment.

Consolidation, Merger, Recapitalization or Sale of Assets. In case at any time, irrespective of whether the Company Shareholder Approval has been obtained, the Company shall be party to any transaction (including a consolidation, merger, sale or transfer of all or substantially all of the assets of the Company or recapitalization of the Common Stock not subject to adjustment under Sections 8(a) and (b)) in which previously outstanding Common Stock shall be converted or changed in to or exchanged for different securities of the Company or Common Stock or other securities of another corporation or interests in a non-corporate entity or other property (including cash) or any combination of the foregoing (each such transaction, a “Transaction”), lawful and adequate provisions shall be made so that Holder, upon exercise thereof at any time on or after the consummation of the Transaction, shall be entitled to receive, and this Warrant shall thereafter represent the right to receive, in lieu of the Common Stock issuable upon such conversion prior to such consummation, the securities, cash or other property to which the Holder would have been entitled upon consummation of the Transaction if the Holder had exercised this Warrant immediately prior thereto subject to the adjustments from and after the consummation date as nearly equivalent as possible to the adjustments provided for in Section 8. Subject to the next succeeding paragraph, effective provisions shall be made in the certificate or articles of incorporation of the resulting or surviving corporation, in any Transaction so that the provisions set forth herein for the protection of the rights of the Holder shall thereafter continue to be applicable and any such resulting or surviving corporation shall expressly assume the obligation to deliver, upon exercise, such shares of stock, other securities, cash and property. The provisions of this Section 9 shall similarly apply to successive consolidations, mergers, sales, leases, transfers and recapitalizations.

In the event of (i) a Transaction where consideration to all holders of the Capital Stock of the Company in exchange for their shares is payable solely in cash or (ii) the dissolution, liquidation or winding-up of the Company, the Holder shall only be entitled to receive, upon surrender of this Warrant, such cash distributions (or, in the case of in-kind distributions upon dissolution, liquidation or winding-up of the Company, such other consideration as is being so distributed) on an equal basis with the holders of Capital Stock, as if the Warrants had been exercised immediately prior to such event, less the Exercise Price.

10.

Representations and Warranties by the Company.

(a)

The Company has full corporate power and authority to execute and deliver this Warrant, to perform its obligations hereunder and to consummate the transactions contemplated hereby, including the authorization, issuance and delivery of the Warrant Shares. The execution, delivery and performance by the Company of this Warrant and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors. This Warrant has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights

generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(b)

The Warrant Shares to be issued hereunder, when issued, sold and delivered in accordance with the terms hereof for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under this Warrant and applicable state and federal securities laws and liens or encumbrances created by or imposed by the Holder.

11.

Representations and Warranties by the Holder.

(a)

The Holder has the full corporate power and authority to execute and deliver this Warrant, to perform its obligations hereunder, and the execution, delivery and performance by the Holder of this Warrant has been duly and validly authorized by all necessary corporate action and no other proceedings on the part of the Holder are necessary to execute and deliver this Warrant. This Warrant has been duly executed and delivered by the Holder and, assuming due execution and delivery by the Company, this Warrant constitutes the legal, valid and binding obligations of the Holder, enforceable against the Holder in accordance with the terms hereof, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(b)

The Holder is acquiring the this Warrant and the Warrant Shares(the “Securities”) for its own account not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and the Holder does not have any present intention of selling, granting any participation in, or otherwise distributing the same. The Holder does not presently have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third Person, with respect to any of the Securities. The Holder has not been formed for the specific purpose of acquiring the Securities.

(c)

The Holder understands that the Securities have not been, and will not be, registered under the Securities Act, and will be issued pursuant to an exemption from the registration provisions of the Securities Act. The Holder understands that the Securities are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Holder must hold the Securities indefinitely, unless they are registered with the SEC and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Holder acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Securities and requirements relating to the Company that are outside of the Holder’s control, and that the Company is under no obligation, and may not be able, to satisfy.

(d)

The Holder is (i) an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act or (ii) a sophisticated investor, experienced in investing in securities of companies similar to the Company, is able to fend for itself, can bear the economic risk of its investment and has such knowledge and experience in financial or

business matters that it is capable of evaluating the merits and risks of the investment in the Securities.

12.

Survival of Representations and Warranties. Unless otherwise set forth in this Warrant, the warranties, representations and covenants of the Company and the Holder contained in or made pursuant to this Warrant shall survive the execution and delivery of this Warrant.

13.

Successors and Assigns. The Holder may not assign (including by operation of law) this Warrant or any of its rights, interests or obligations in this Warrant without the prior written approval of the Company. Any purported assignment without such consent shall be void. Notwithstanding the foregoing, the Holder may, without such prior written approval of the Company, assign this Warrant and any of its rights, interests and obligations in this Warrant to any Person to whom the Holder transfers this Warrant in accordance with the Shareholders Agreement (including Section 4.2 thereof).

14.

Notices. All notices and other communications given hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile, upon written confirmation of receipt by facsimile, (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:

If to the Company:

The Standard Register Company600 Albany Street

Dayton, Ohio 45417Facsimile: (937) 221-3431Attention: General Counsel

with a copy (which shall not constitute notice) to:

Gibson, Dunn & Crutcher LLP200 Park AvenueNew York, New York 10166Facsimile: (212) 351-6202Attention: Barbara L. Becker

If to the Holder:

with a copy (which shall not constitute notice) to:

Fried, Frank, Harris, Shriver & Jacobson LLP

One New York Plaza

New York, New York 10004

Facsimile: (212) 859-4000

Attention: Christopher Ewan

David L. Shaw

15.

No Third-Party Beneficiaries. Nothing in this Warrant, express or implied, is intended to or shall confer upon any other Person other than the Holder, the Company and their respective successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature under or by reason of this Warrant.

16.

Rights of the Holder. Prior to the exercise of any Warrant, the Holder shall not, by virtue hereof, be entitled to any rights of a shareholder of the Company, including, without limitation, the right to vote, to receive dividends or other distributions, to exercise any preemptive right or to receive any notice of meetings of shareholders or any notice of any proceedings of the Company except as may be specifically provided for herein.

17.

Governing Law. This Warrant and all disputes or controversies arising out of or relating to this Warrant or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal Laws of the State of Ohio, without regard to the Laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of Ohio.

18.

Jurisdiction. Each of the parties irrevocably agrees that any legal action or proceeding arising out of or relating to this Warrant brought by any party or its Affiliates against any other party or its Affiliates shall be brought and determined in the courts of the State of Ohio. Each of the parties irrevocably submits to the jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Warrant and the transactions contemplated hereby. Each of the parties agrees not to commence any action, suit or proceeding relating thereto except in the courts of the State of Ohio, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by a court of the State of Ohio. Each of the parties further agrees that notice as provided herein shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Warrant or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts of the State of Ohio for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Warrant, or the subject matter hereof, may not be enforced in or by such courts.

19.

Waiver of Jury Trial. EACH OF THE PARTIES TO THIS WARRANT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS WARRANT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

20.

Amendments. No amendment, modification, supplement or waiver of any provision of this Warrant shall be effective unless it is in writing and signed by the Holder and the Company, and then only in the specific instance and for the specific purpose stated therein.

21.

Waivers. It is agreed that no delay or omission to exercise any right, power or remedy accruing to either party hereto, shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any breach, default or noncompliance of any action or omission to act of either party hereto. It is further agreed that any waiver, permit, consent or approval of any kind or character on the part of either party hereto of any breach, default or noncompliance under this Warrant or any waiver on such party's part of any provisions or conditions of this Warrant, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Warrant, by law, or otherwise afforded to any party, shall be cumulative and not alternative.

22.

Severability. Whenever possible, each provision or portion of any provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision of this Warrant is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Warrant shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

23.

Counterparts; Facsimile Signatures. This Warrant may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. This Warrant may be executed by facsimile signature and a facsimile signature shall constitute an original for all purposes.

24.

Interpretation. When a reference is made in this Warrant to a Section, such reference shall be to a Section of this Warrant unless otherwise indicated. All words used in this Warrant will be construed to be of such gender or number as the circumstances require. All documents annexed to this Warrant are incorporated in and made a part of this Warrant. The word “including” and words of similar import when used in this Warrant will mean “including, without limitation,” unless otherwise specified.

IN WITNESS WHEREOF, the Company has duly caused this Warrant to be signed by its duly authorized officer and to be dated as of the date first written above.

THE STANDARD REGISTER COMPANY

By: ____________________________

Name:

Title:

Acknowledged and Agreed:

[HOLDER]

By: ____________________

Name:

Title:

WARRANT EXERCISE NOTICE

(To be delivered prior to exercise of the Warrant

by execution of the Warrant Exercise Subscription Form)

To:

The Standard Register Company

The undersigned hereby notifies you of its intention to exercise the Warrant to purchase shares of Common Stock, par value $1.00 per share, of The Standard Register Company. The undersigned intends to exercise the Warrant to purchase ___________ shares (the “Shares”) at $______ per Share (the Exercise Price currently in effect pursuant to the Warrant). As indicated below, the undersigned intends to pay the aggregate Exercise Price for the Shares in cash, certified or official bank or bank cashier's check (or a combination of cash and check) or by reduction in the number of Shares that would otherwise be issued upon exercise pursuant to Section 2(e) of the Warrant.

Date: _________________

__________________________________

(Signature of Owner)

__________________________________

(Street Address)

__________________________________

(City)

(State)

(Zip Code)

Payment:

[ ]

$_____________cash

[ ]

$_____________check

[ ]

Reduction in number of Shares

WARRANT EXERCISE SUBSCRIPTION FORM

(To be executed only upon exercise of the Warrant

after delivery of Warrant Exercise Notice)

To:

The Standard Register Company

The undersigned irrevocably exercises the Warrant for the purchase of ___________ shares (the “Shares”) of Common Stock, par value $1.00 per share, of The Standard Register Company (the “Company”) at $_____ per Share (the Exercise Price currently in effect pursuant to the Warrant) and herewith makes payment of $___________ (such payment being made as specified in the undersigned's previously delivered Warrant Exercise Notice), all on the terms and conditions specified in the within Warrant, surrenders this Warrant and all right, title and interest therein to the Company and directs that the Shares deliverable upon the exercise of this Warrant be registered or placed in the name and at the address specified below and delivered thereto.

Date: _________________

__________________________________

(Signature of Owner)

__________________________________

(Street Address)

__________________________________

(City)

(State)

(Zip Code)

Securities and/or check to be issued to:

________________________________

Please insert social security or identifying number:

________________________

Name:

____________________________________________________________

Street Address:

_____________________________________________________

City, State and Zip Code:

_____________________________________________

WARRANT ASSIGNMENT FORM

Dated ________________, _____

FOR VALUE RECEIVED, ______________________________ hereby sells, assigns

and transfers unto ____________________________________________ (the “Assignee”),

(please type or print in block letters)

____________________________________________________________________________

(insert address)

its right to purchase up to ___________ shares of Common Stock represented by this Warrant and does hereby irrevocably constitute and appoint ____________________________ Attorney, to transfer the same on the books of the Company, with full power of substitution in the premises.

Signature: ____________________________________

EX-5 4 ex51.htm EXHIBIT 5.1 Converted by EDGARwiz

Exhibit 5.1

FORM OF

AMENDED AND RESTATED EXECUTIVE SEVERANCE AGREEMENT

This Amended and Restated Agreement is made the 1st day of August, 2013 (the “Effective Date”) by and between The Standard Register Company, an Ohio corporation (the “Company”) and ____________________ (the “Executive”).

Background:

The Company recognizes that it is essential and in the best interest of the Company and its shareholders to retain the services of the Executive, and to ensure the Executive’s continued dedication to the Company, particularly during difficult business circumstances or in the event of a threat or the occurrence of a Change in Control (as defined below) or other significant event, and in order to induce the Executive to remain employed with the Company, the Company wishes to enter into this Agreement with the Executive.

Agreement:

Term of Agreement. This Agreement will begin on the date entered above and will continue in effect through December 31, 2013. On December 31, 2013, and on the anniversary date of each term thereafter (a “Renewal Date”), the term of this Agreement will be extended automatically for an additional one-year period unless, not later than 60 days prior to such Renewal Date, the Company gives written notice to the Executive that it has elected not to extend this Agreement. Notwithstanding the above, if a “Change in Control” (as defined herein) of the Company occurs during the term of this Agreement, the term of this Agreement will be irrevocably extended for 24 months beyond the end of the month in which any such Change in Control occurs.

Definitions. The following defined terms shall have the meanings set forth below, for purposes of this Agreement:

(a)

Base Annual Salary. “Base Annual Salary” means the highest annual rate of base salary in effect for the Executive during the 12 month period immediately prior to the time a Notice of Termination is given (or on the date employment is terminated if no Notice of Termination is required).

(b)

Board. The Company’s duly elected Board of Directors.

(c)

Cause. “Cause” means any of the following:

(i)

The Executive’s willful and continued failure to perform substantially the Executive’s material duties with the Company (other than any such failure resulting from the Executives’s incapacity as a result of physical or mental illness) and the Board shall have determined that such failure is materially harmful to the Company,

(ii)

The Executive engages in a material violation of any Company policy and the Board shall have determined that such act is materially harmful to the Company.

(iii)

The Executive is indicted for or convicted of (or plea of guilty or nolo contendere) to a felony or of any crime (whether or not a felony) involving moral turpitude.

(iv)

The Executive engages in an intentional act of gross misconduct, moral turpitude, fraud, embezzlement, or theft in connection with the Executive’s duties or in the course of the Executive’s employment with the Company and the Board shall have determined that such act is materially harmful to the Company; or

(v)

After being notified in writing by the Company to cease any particular Impermissible Activity (as defined herein), the Executive shall have continued such Impermissible Activity and the Board shall have determined that such act is materially harmful to the Company.

For purposes of this Agreement, no act or failure to act on the part of the Executive shall be deemed “intentional” if it was due primarily to an error in judgment or negligence, but shall be deemed “intentional” only if done or omitted to be done by the Executive not in good faith and without reasonable belief that the Executive’s action or omission was in the best interest of the Company.

(d)

“Change in Control” shall be deemed to have occurred if the conditions set forth in any one of the following paragraphs shall have been satisfied:

(i)

any person (as such term is used in Sections 13 (d) and 14 (d) of the Securities Exchange Act of 1934, as amended from time to time) (other than (A) a trustee or other fiduciary holding securities under an employee benefit plan of the Company, (B) a trustee under the John Q. Sherman Testamentary Trust, the William C. Sherman Testamentary Trust, or the William C. Sherman Intervivos Trust dated December 29, 1939, or (C) a corporation owned directly or indirectly by the common shareholders of the Company in substantially the same proportions as their ownership of stock of the Company), is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 35% or more of the combined voting power of the Company’s then outstanding securities; or

(ii)

during any period of two consecutive years (not including any period prior to the Effective Date), individuals who at the beginning of such period constitute the Board and any new director, whose election by the Board or nomination for election by the Company’s shareholders, was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or

(iii)

the consummation of (1) the sale or disposition of all or substantially all the Company’s assets; or (2) a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), at least 50% of the combined voting power of the voting securities of the Company (or such surviving entity) outstanding immediately after such merger or consolidation; or

(iv)

the shareholders of the Company approve a plan of complete liquidation of the Company.

However, in no event shall a Change in Control be deemed to have occurred, with respect to the Executive, if the Executive is part of a purchasing group which consummates the Change in Control transaction. The Executive shall be deemed “part of a purchasing group” for purposes of the preceding sentence if the Executive is an equity participant or has agreed to become an equity participant in the purchasing company or group (except for (i) passive ownership of less than 5% of the voting securities of the purchasing company or (ii) ownership of equity participation in the purchasing company or group which is otherwise not deemed to be significant, as determined prior to the Change in Control by a majority of the continuing members of the Board who are not also employees of the Company).

(e)

Code. “Code” means the Internal Revenue Code of 1986, as amended.

(f)

Equity Incentive Plans. “Equity Incentive Plans” means the Company’s 2002 Equity Incentive Plan, its 2011 Equity Incentive Plan or any successor plans providing for the grants of stock options, restricted stock, restricted stock units, stock appreciation rights or other awards related to the Company’s equity securities.

(g)

Good Reason. “Good Reason” means the occurrence of any one or more of the following:

(i)

A material diminution in the Executive’s authority, duties or responsibilities;

(ii)

A material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report, including a requirement that the Chief Executive Officer report to a corporate officer or employee instead of reporting directly to the Board of Directors;

(iii)

A material diminution in the budget over which the Executive retains authority;

(iv)

A material diminution by the Company in the Executive’s base salary, unless all Executives who have entered into an Executive Severance Agreement experience a material diminution in their base salaries;

(v)

A demand by the Company that the Executive make a material relocation in the geographic area from the location where the Executive is currently based, provided that such relocation increases the Executive’s commuting distance by more than fifty (50) miles;

(vi)

Any other action or inaction that constitutes a material breach by Company of any agreement under which the Executive provides services.

Notwithstanding the foregoing, no occurrence or action taken, or inaction, in connection with any restructuring of the Company approved by the Board prior to any Change in Control shall

constitute a “material diminution” for purposes of clauses (i), (ii), or (iii) of this definition or a “material breach” for purposes of clause (vi) hereof.

The existence of Good Reason shall not be affected by the Executive’s incapacity due to physical or mental illness. The Executive’s continued employment shall not constitute a waiver of the Executive’s rights with respect to any circumstance constituting Good Reason under this Agreement. The Executive must give notice to the Company within 90 days of the initial existence of the condition, and the Company shall have 30 days upon receipt of such notice to remedy the condition so as to eliminate “Good Reason.”

(h)

Impermissible Activity. “Impermissible Activity” means any act or omission of the Executive which constitutes a breach by the Executive of any written agreement between the Executive and the Company which provides for the executive’s non-solicitation of the Company employees or customers, non-competition with the Company, non-disclosure of confidential information of the Company, and/or non-disparagement of the Company.

(i)

Incentive Compensation Plan. “Incentive Compensation Plan” means the Company’s Management Incentive Compensation Plan or any successor plan which provides for potential annual cash incentive payments to the Executive and other management personnel of the Company.

(j)

Notice of Termination. “Notice of Termination” means a written notice indicating the specific termination provision in this Agreement relied upon and setting forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the employment under the provision so indicated.

(k)

Release. “Release” shall mean a general release that releases, waives, remises, and forever discharges the Company from any and all claims that the Executive has against the Company, including any claims arising under state or federal statute, including all state and federal employment discrimination laws including, but not limited to, Ohio Revised Code Chapter 4112 and Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act; the Employee Retirement Income Security Act; and any applicable state, local, or common laws of similar intent, without exception. For purposes of the Release, the “Company” includes the Company as it is defined in this Agreement and as further defined to include all of the Company’s past, present, and future assigns, successors, affiliates, parent and subsidiary organizations, divisions and Company’s, officers, directors, shareholders, employees, and agents of the same, as well as their heirs, executors, administrators, successors, assigns, and other personal representatives, individually and in their respective corporate and personal capacities.

(l)

Retirement Benefits. “Retirement Benefits” means the perquisites, benefits, and service credit for benefits as provided under any and all employee retirement income, plans, programs, or arrangements in which the Executive is entitled to participate, including without limitation any savings, pension, supplemental executive retirement, or other retirement income or deferred compensation that may now exist or any equivalent successor policies, plans, programs, or arrangements that may be adopted hereafter.

(m)

Separation from Service. “Separation from Service” means the termination of employment with the Company and all related employers under section 414(b) or

(c) of the Code. Whether a termination of employment has occurred shall be determined based on whether the facts and circumstances indicate that the Executive reasonably anticipates that no further services would be performed after a certain date or that the level of bona fide services would permanently decrease to no more than 20% of the average level of bona fide services performed over the immediately preceding 36-month period (or the full period of employment if the Executive has been employed less than 36 months). An Executive is not treated as having terminated employment while he is on military leave, sick leave or other bona fide leave of absence if the period of such leave does not exceed six months, or if longer, so long as the individual retains a right to reemployment under an applicable statute or by contract. The determination of whether a Separation of Service has occurred shall be based on applicable regulations and other applicable legal authority under section 409A of the Code.

(n)

Severance Benefits. “Severance Benefits” means the benefits described in Section 4 of this Agreement.

(o)

Severance Benefit Period. “Severance Benefit Period” means the 24 calendar months following the date of termination of the Executive’s employment.

(p)

Welfare Benefits. “Welfare Benefits” means any life insurance, health insurance, hospitalization, major medical, dental insurance, disability, employee assistance programs, or other employee welfare plans or benefits that may now exist or any equivalent successor policies, plans, programs or arrangements that may be adopted hereafter.

Eligibility for Severance Benefits. The Company or its successor shall pay or provide the Severance Benefits to the Executive if the Executive has a Separation from Service under the following circumstances:

(a)

Termination by the Company. Termination of the Executive’s employment is initiated by the Company for any reason except termination due to Cause.

(b)

Termination by the Executive. Termination of the Executive’s employment is initiated by the Executive for Good Reason.

Severance Benefits. The Executive, if eligible under Section 3, shall receive the following Severance Benefits (in addition to benefits under any Equity Incentive Plans, Retirement Benefits, or other employee benefits that the Executive is otherwise entitled to under the terms thereof):

(a)

Cash Payments. The Executive shall be entitled to an amount equal to 1.0 times his Base Annual Salary, payable in equal bi-weekly installments during the Severance Benefit Period.

(b)

Welfare Benefits. The Executive shall be entitled to receive Welfare Benefits which are substantially comparable to the Welfare Benefits he was entitled to receive immediately prior to the date of his termination for a period, in the case of each individual Welfare Benefit, equal to the shorter of the Severance Benefit Period or until such Welfare Benefit is obtained through other employment.

(c)

Outplacement Services. The Executive shall be entitled to receive outplacement services from a professional outplacement services firm selected by the Company and reasonably acceptable to the Executive at the Company’s cost, but not to exceed an aggregate cost of $15,000.

The foregoing Severance Benefits shall be payable for the entirety of the Severance Benefit Period notwithstanding the death of the Executive; in the event of the Executive’s death the remaining Severance Benefits shall be payable to the Executive’s beneficiary named on Exhibit B hereto (or if none, to the Executive’s estate).

Applicability of Dodd-Frank Act; Clawbacks Generally.

(a)

Dodd-Frank. The Executive hereby acknowledges the applicability of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”), as well as the applicability of any agency regulations or Company policies promulgated thereunder and recognizes that in the event of any accounting restatement by the Company due to the Company’s material noncompliance with any financial reporting requirement under applicable securities laws during the time of the Executive’s employment by the Company, the Company will be required to recover from the Executive amounts paid to the Executive as incentive-based compensation that exceed the compensation the Executive would otherwise have received from the Company if such accounting restatement had not occurred, regardless of the Executive’s personal involvement, if any, with such noncompliance or restatement. In such event, the Company shall have the right to effect any such recovery by offsetting (withholding) any amounts otherwise due hereunder against amounts to be recovered.

(b)

Impermissible Activities. In the event the Executive engages in any Impermissible Activity at any time, the Company may (i) refrain from making any further payments that would otherwise be payable hereunder during the Severance Period, and (ii) recover from the Executive any and all payments made hereunder prior to the Company’s discovery of the Executive’s engagement in Impermissible Activities.

Withholding of Taxes. The Company may withhold from any amounts payable under this Agreement all federal, state, city, or other taxes as required by law provided that any stock withheld will only be withheld at the minimum statutory rates.

General Release Agreement. As a condition of receiving the payments and benefits set forth in this Agreement, the Executive will be required to execute a Release in substantially the form of Exhibit B attached hereto. The Executive must deliver to the Company a fully executed and binding General Release Agreement, the Executive must not revoke the General Release Agreement, and the General Release Agreement must be irrevocable, not later than 60 business days following the Executive’s Separation from Service. Otherwise, the Executive will not be entitled to receive Severance Benefits under this Agreement.

Acknowledgement. The Company hereby acknowledges that it will be difficult and may be impossible for the Executive to find reasonably comparable employment, or to measure the amount of damages which the Executive may suffer as a result of termination of employment hereunder. Accordingly, the payment of the Severance Benefits by the Company to the Executive in accordance with the terms of this Agreement is hereby acknowledged by the

Company to be reasonable liquidated damages, and the Executive will not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor will any profits, income, earnings, or other benefits from any source whatsoever create any mitigation, offset, reduction, or any other obligation on the part of the Executive hereunder or otherwise, except for a reduction in Welfare Benefits as provided in Subsection 4(b). The Company shall not be entitled to set off or counterclaim against amounts payable hereunder with respect to any claim, debt, or obligation of the Executive except as expressly provided in Section 5 hereof.

Enforcement Costs; Interest. The Company is aware that, upon the occurrence of a Change in Control, the Board or a shareholder of the Company may then cause or attempt to cause the Company to refuse to comply with its obligations under this Agreement, or may cause or attempt to cause the Company to institute, or may institute, litigation, arbitration, or other legal action seeking to have this Agreement declared unenforceable, or may take, or attempt to take, other action to deny the Executive the benefits intended under this Agreement. In these circumstances, the purpose of this Agreement could be frustrated. It is the intent of the Company that the Executive not be required to incur the expenses associated with the enforcement of the Executive’s rights under this Agreement by litigation, arbitration, or other legal action nor be bound to negotiate any settlement of the Executive’s rights hereunder under threat of incurring such expenses because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Executive under this Agreement. Accordingly, if following a Change in Control it should appear to the Executive that the Company has failed to comply with any of its obligations under this Agreement, or in the event that the Company or any other person takes any action to declare this Agreement void or unenforceable, or institute any litigation or other legal action designed to deny, diminish, or to recover from the Executive, the benefits intended to be provided to the Executive hereunder, the Company irrevocably authorizes the Executive from time to time to retain counsel of the Executive’s choice at the expense of the Company as provided in this Section 9 to represent the Executive in connection with the initiation or defense of any litigation or other legal action, whether by or against the Company or any director, officer, stockholder, or other person affiliated with the Company. Notwithstanding any existing or prior attorney-client relationship between the Company and such counsel, the Company irrevocably consents to the Executive entering into an attorney-client relationship with such counsel, and in that connection the Company and the Executive agree that a confidential relationship shall exist between the Executive and such counsel. The reasonable fees and expenses of counsel selected from time to time by the Executive as provided in this Section 9 shall be paid or reimbursed to the Executive by the Company on a regular, periodic basis upon presentation by the Executive of a statement or statements prepared by such counsel in accordance with its customary practices. In all events, such amounts shall be paid on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred. In any action involving this Agreement, the Executive shall be entitled to prejudgment interest on any amounts found to be due him from the date such amounts would have been payable to the Executive pursuant to this Agreement at an annual rate of interest equal to the prime commercial rate published in the Wall Street Journal or its successor from time to time during the prejudgment period plus 4 percent.

10.

Indemnification. From and after the earliest to occur of a Change in Control or termination of employment, the Company shall indemnify and hold harmless the Executive, to

the fullest extent permitted or authorized by the law of the State of Ohio as it may from time to time be amended, if the Executive is (whether before or after the Change in Control) made or threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that the Executive is or was a director, officer, or employee of the Company, or is or was serving at the request of the Company as a director, trustee, officer, or employee of another Company, partnership, joint venture, trust, or other enterprise. The indemnification provided by this Section 10 shall not be deemed exclusive of any other rights to which the Executive may be entitled under the charter or bylaws of the Company, or any agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in the Executive’s official capacity and as to action in another capacity while holding such office, and shall continue as to the Executive after the Executive has ceased to be a director, trustee, officer, or employee and shall inure to the benefit of the heirs, executors, and administrators of the Executive.

11.

Arbitration. The initial method for resolving any dispute arising out of this Agreement shall be nonbinding arbitration in accordance with this Section 11. Except as provided otherwise in this Section, arbitration pursuant to this Section 11 shall be governed by the Commercial Arbitration Rules of the American Arbitration Association. A party wishing to obtain arbitration of an issue shall deliver written notice to the other party, including a description of the issue to be arbitrated. Within 15 days after either party demands arbitration, the Company and the Executive shall each appoint an arbitrator. Within 15 additional days, these two arbitrators shall appoint the third arbitrator by mutual agreement; if they fail to agree within this 15 day period, then the third arbitrator shall be selected promptly pursuant to the rules of the American Arbitration Association for Commercial Arbitration. The arbitration panel shall hold a hearing in Dayton, Ohio, within 90 days after the appointment of the third arbitrator. The fees and expenses of the arbitrator, and any American Arbitration Association fees, shall be paid by the Company. Both the Company and the Executive may be represented by counsel (legal and accounting) and may present testimony and other evidence at the hearing. Within 90 days after commencement of the hearing, the arbitration panel will issue a written decision; the majority vote of two of the three arbitrators shall control. The majority decision of the arbitrators shall not be binding on the parties, and the parties may pursue other available legal remedies if the parties are not satisfied with the majority decision of the arbitrator. The Executive shall be entitled to seek specific performances of the Executive’s rights under this Agreement during the pendency of any dispute or controversy arising under or in connection with this Agreement.

12.

Employment Rights. This Agreement sets forth the Severance Benefits payable to the Executive in the event the Executive’s employment with the Company is terminated under certain conditions specified in Section 3. This Agreement is not an employment contract nor shall it confer upon the Executive any right to continue in the employ of the Company and shall not in any way affect the right of the Company to dismiss or otherwise terminate the Executive’s employment at any time with or without Cause.

13.

Arrangements Not Exclusive. The specific benefit arrangements referred to in this Agreement are not intended to exclude the Executive from participation in or from other benefits available to executive personnel generally or to preclude the Executive’s right to other compensation or benefits as may be authorized by the Board at any time. The provisions of this Agreement and any payments provided for hereunder shall not reduce any amounts otherwise

payable, or in any way diminish the Executive’s existing rights, or rights which would accrue solely as the result of the passage of time under any compensation plan, benefit plan, incentive plan, stock option plan, employment agreement, or other contract, plan, or arrangement except as may be specified in such contract, plan, or arrangement.

14.

Successors; Binding Agreements. This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal and legal representatives, executors, administrators, successors, heirs, distributees, devisees, and legatees. The Executive’s rights and benefits under this Agreement may not be assigned, except that if the Executive dies while any amount would still be payable to the Executive hereunder if the Executive had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement, to the beneficiaries designated by the Executive to receive benefits under this Agreement in a writing on file with the Company at the time of the Executive’s death or, if there is no such beneficiary, to the Executive’s estate. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business and/or assets of the Company (or of any division or Subsidiary thereof employing the Executive) to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. Failure of the Company to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Executive to compensation from the Company in the same amount and on the same terms to which the Executive would be entitled hereunder if the Executive terminated employment for Good Reason following a Change in Control, on the first day after the Change in Control.

15.

No Vested Interest. Neither the Executive nor the Executive’s beneficiaries shall have any right, title, or interest in any benefit under this Agreement prior to the occurrence of the right to the payment of such benefit.

16.

Notice. For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered personally or mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the such addresses as each party may designate from time to time to the other party in writing in the manner provided herein. Unless designated otherwise notices to the Company should be sent to the Company at:

The Standard Register Company

P. O. Box 1167

600 Albany Street

Dayton, OH 45417-3405

Attn:

Gerard D. Sowar

Vice President, General Counsel and Secretary

Until designated otherwise, notices shall be sent to the Executive at the address indicated on the Beneficiary Designation and Notice form attached hereto as Exhibit A. If the parties by mutual agreement supply each other with telecopier numbers or email addresses for the purposes of providing notice by facsimile or email, such notice shall also be proper notice under this

Agreement. Notice sent by certified or registered mail shall be effective two days after deposit by delivery to the U.S. Post Office.

17.

Savings Clause. If any payments otherwise payable to the Executive under this Agreement are prohibited or limited by any statute or regulation in effect at the time the payments would otherwise be payable, including, without limitation, any regulation issued by the Securities and Exchange Commission or other agency under the Dodd-Frank Act, that limits executive compensation or other payments that can be made by the Company (any such limiting statute or regulation a “Limiting Rule”), the Executive will be entitled to elect to have apply, and therefore to receive benefits directly under, either (i) this Agreement (as limited by the Limiting Rule) or (ii) any generally applicable Company severance, separation pay, and/or salary continuation plan that may be in effect at the time of the Executive’s termination.

18.

Amendment; Waiver. The Company may amend, without the approval of the Executive, any provision of this Agreement to the extent necessary to comply with Section 409A of the Code (or to avoid the application of Section 409A of the Code) so as to avoid any penalty or excise tax from being levied on the Executive; provided, however, that the Company may not decrease the amount of any benefit the Executive is entitled to receive under this Agreement without the Executive’s consent. Regarding any other amendment, the Company may not amend or modify this Agreement, and no provision may be waived, unless such amendment, modification, or waiver is agreed to in writing and signed by the Executive and the Company.

19.

Validity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

20.

Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.

21.

Governing Law. Except as otherwise provided, this Agreement shall be governed by the laws of the State of Ohio, without giving effect to any conflict of law provisions.

22.

Section 409A Compliance. (a) This Agreement is intended to satisfy the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the “Code”) with respect to amounts subject thereto and shall be interpreted and construed and shall be performed by the parties consistent with such intent, and the Company shall not accelerate any payment or the provision of any benefits under this Agreement or to make or provide any such payment or benefits if such payment or provision of such benefits would, as a result, be subject to tax under Section 409A of the Code. As used in this Agreement, phrases such as “termination of employment” shall be interpreted to mean a “separation from service” using the default rules under Section 409A of the Code. If, in the good faith judgment of the Company, any provision of this Agreement could cause the Executive to be subject to adverse or unintended tax consequences under Section 409A of the Code, such provision shall be modified by the Company in its sole discretion to maintain, to the maximum extent practicable, the original intent of the applicable provision without violating the requirements of Section 409A of the Code.

(b) Except as expressly provided otherwise herein, no reimbursement payable to the Executive pursuant to any provisions of this Agreement or pursuant to any plan or arrangement of the Company covered by this Agreement shall be paid later than the last day of the calendar year following the calendar year in which the related expense was incurred, and no such reimbursement during any calendar year shall affect the amounts eligible for reimbursement in any other calendar year, except, in each case, to the extent that the right to reimbursement does not provide for a “deferral of compensation” within the meaning of Section 409A of the Code. To the extent providing for deferral of compensation within the meaning of Section 409A of the Code, any payments or benefits to which the Executive is entitled upon a termination of employment shall be paid no earlier than the date on which the Executive incurs a termination of employment.

(c) Notwithstanding anything herein to the contrary, to the extent necessary to prevent the Executive from being subject to tax under Section 409A of the Code, if the Executive is a “specified employee” for purposes of Section 409A of the Code on the date on which the Executive terminates employment, any payment hereunder (including any provision of continued benefits) that provides for the deferral of compensation within the meaning of Section 409A of the Code (the “Delayed Payment Amounts”) shall not be paid or commence to be paid on any date prior to the first business day after the date that is six (6) months following the Executive’s termination of employment; provided, however, that payment of the Delayed Payment Amounts shall commence within 30 days of the Executive’s death in the event of his death prior to the end of the six-month period.

IN WITNESS WHEREOF, the parties have signed this Agreement as of the day and year written above.

COMPANY:

EXECUTIVE:

THE STANDARD REGISTER COMPANY

By: _______________________________

__________________________________

Its: _______________________________

__________________________________

Date: _______________________________

__________________________________

Date:

EXHIBIT A

Beneficiary Designation and Notice Form

Beneficiary Designation

In the event of my death, I direct that any amounts due me under the Agreement to which this Beneficiary Designation is attached shall be distributed to the person designated below. If no beneficiary shall be living to receive such assets they shall be paid to the administrator or executor of my estate.

Notice

Until notified otherwise, pursuant to Section 16 of the Agreement, notices should be sent to me at the following address:

___________________________________

Street Address

___________________________________

City, State and Zip Code

___________________________________

Executive

___________________________________

Date

___________________________________

Beneficiary

___________________________________

Relationship to Executive

EXHIBIT B

GENERAL RELEASE AGREEMENT

THE EXECUTION OF THIS AGREEMENT between The Standard Register Company, an Ohio corporation, (the “Company”) and ____________________ (the “Executive”), is a condition to receiving the payments and benefits set forth in the Executive Severance Agreement signed by both parties.

In consideration of the mutual covenants contained herein, the sufficiency of which are hereby acknowledged, Executive and the Company, its predecessors, officers and directors agree as follows:

Your employment will end as of________________. If you comply with the terms and conditions of the Executive Severance Agreement and this Agreement, you will receive the payments and benefits set forth in the Executive Severance Agreement.

You acknowledge and confirm that you voluntarily executed a certain standard employee agreement with the Company dated __________, 20___ wherein you agreed to maintain the confidentiality of the Company’s Protected Information (as defined therein), to refrain from Unauthorized Use (as defined therein) of Protected Information, to refrain from soliciting Company employees or encouraging them to leave the Company’s employment, and to refrain from competing with the Company, for certain periods specified therein (the “Employee Agreement”). You acknowledge such agreement shall remain fully legally binding for the term(s) mentioned therein, and you further agree that in the event the period during which you will receive Severance Benefits (as specified in the Executive Severance Agreement) is longer than any of the periods specified in the Employee Agreement, the period(s) mentioned in the Employee Agreement shall be deemed to be amended to be the same as the period you receive Severance Benefits.

As additional consideration, Executive, on Executive’s behalf and on behalf of Executive’s heirs, executors, successors, and assigns hereby release the Company, as well as all of their officers, directors, executives, managers and employees, from any and all debts, claims, demands, rights, actions, causes of action, suits or damages, whatsoever and of every kind of nature, whether known or unknown (collectively the “Claims”), against the Company and the others released herein, which relate to or arose from Executive’s employment with or separation from the Company as contemplated herein except to the extent such Claims cannot be released under applicable law. Released claims include, without limitation, any and all claims arising under federal, state or local laws, including, without limitation, claims under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, as amended, the Equal Pay Act, any other federal, state or local law prohibiting employment discrimination or otherwise regulating wages, hours or working conditions, and any and all claims under the common law for breach of express or implied contract, violation of the covenant of good faith and fair dealing, violation of public policy, negligence, slander, defamation, invasion of privacy, false light, false imprisonment, trespass, breach of fiduciary duty, intentional interference, intentional or negligent infliction of emotional distress, intrusion, loss of consortium, retaliatory or wrongful termination,

punitive damages, and claims that you have or may have which may have arisen up to and including the date of this Agreement. Executive acknowledges and agrees that as a matter of public policy, Executive cannot waive any rights to file claims with the Equal Employment Opportunity Commission and/or any similar state agency, however, in the event such claim(s) is/are filed, Executive hereby expressly waives the right to receive any monetary damages as a result of such action(s) and expressly waives the right to receive any monetary damages in connection with such proceedings.

Executive and the Company agree that any action to enforce this Agreement may be brought in a state or federal court located in Montgomery County, Ohio. Executive and the Company hereby agree that such courts shall have jurisdiction and venue with respect to any such action.

Executive will not make any disparaging remarks concerning the Company or any of its employees to anyone at any time.

Executive agrees that apart from discussions with personal counsel and immediate family, whom Executive will ask not to divulge the terms of this Agreement, Executive will not at any time disclose, publicize or discuss either the terms of this Agreement or termination from the Company with anyone within or outside of the Company unless required by subpoena or any other legal compulsion, and will give immediate notice to the Company of the receipt of any subpoena or other legal document which might call upon you to disclose either any of the contents of this Agreement or your employment with and termination from the Company.

Executive represents and warrants that Executive has returned to the Company the original and any copies of all keys, identification cards, charge cards, equipment, papers, reports, memoranda or other items of Company property. You acknowledge that the Company has returned to you all items of your personal property.

Executive recognizes and agrees that nothing in this Agreement constitutes an admission of liability or wrongdoing by Executive or by the Company or any of the others released herein.

This Agreement will be governed by Ohio law.

In October 1990, the Older Workers Benefit Protection Act (“Act”) was enacted. The Act provides, among other things, that notice be given to you in writing and in a manner calculated to be understood by the average individual affected by this termination. As provided in the Act, you have a right to consider this Agreement for a period of 45 days. If you choose to accept it, you must sign it and return it to the Company on or before _________, 20 ___ (21 days from your receipt hereof). You will then have seven days after such acceptance to change your mind and revoke the Agreement. If you accept the Agreement and do not revoke it, payment will be made to you as provided in the Agreement. If you decide not to accept the Agreement or accept the Agreement but revoke acceptance within seven days, nothing will be paid to you under the Agreement and your employment will end on____________________. You are advised to consult with an attorney before acting on this Agreement.

Signed this ______ day of _________________, 20___.

Accepted and agreed to:

Witnessed and accepted:

EXECUTIVE:

THE STANDARD REGISTER COMPANY

___________________________________

BY: _______________________________

DATE: _____________________________

EX-5 5 ex52.htm EXHIBIT 5.2 Converted by EDGARwiz

Exhibit 5.2

FORM OF

PERFORMANCE RESTRICTED STOCK GRANT AGREEMENT

THIS AGREEMENT is made and entered into by and between THE STANDARD REGISTER COMPANY, an Ohio corporation (the “Company”), and ____________ (“Grantee”) on _____________, 20__.

Background:

The Company considers it desirable and in its best interest to provide Grantee with an added incentive to advance the interests of the Company through a grant of restricted stock of the Company, in accordance with the terms and conditions provided for herein and in The Standard Register Company 2011 Equity Incentive Plan, as amended (“Plan”).

NOW, THEREFORE, in consideration of the premises and of the mutual promises herein contained, the parties hereto agree as follows:

Restricted Stock Award.

(a)

Award. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby awards to Grantee shares of the Company’s Common Stock (the “Restricted Stock”) as follows:

Number of Shares:

___________ (“Target Award”)

Award Date:

___________

Stock Price as of Award Date:

____________

(i)

The certificate (or certificates) or book entry issued in respect of the shares of Restricted Stock shall be registered in the name of Grantee and shall be held by the Company subject to the terms of this Agreement. On and after the Award Date, Grantee will be considered a shareholder with respect to all of the shares of Restricted Stock; provided, however, that shareholder shall not have the right to vote the shares until they are earned and all dividends declared by the Company which would otherwise be payable with respect to outstanding shares of Restricted Stock that are ultimately earned shall be retained by the Company, sequestered in a separate account established for such purpose which shall be paid to the Grantee when and as the Restricted Stock becomes vested, or shall be forfeited when and as Restricted Stock is forfeited. If, as a result of any future adjustments to the shares of the Company’s stock, such as a stock split, Grantee, as owner of the shares of Restricted Stock, becomes entitled to new, additional or different shares

of stock or securities, then any such new, additional or different shares or securities shall be subject to the same rights and restrictions as this award of shares of Restricted Stock.

Vesting of Restricted Stock.

(a)

Vesting Provision. Grantee’s interest in the Restricted Stock shall vest in accordance with performance achievement, and certain holding periods as follows, and as adopted by the Company’s Compensation Committee of the Board of Directors:

(i)

Target performance goals and superior performance goals have been established for each of the twelve fiscal quarters of the Company, commencing with the Company’s fourth fiscal quarter of 2013, receipt of which is acknowledged by the Granttee. The target performance goal (“Quarterly Target Performance Goal”) and the superior performance goal (“Quarterly Superior Performance Goal”) for each such fiscal quarter have been established based on the leverage ratio covenant, as defined and set forth in the First Lien Credit Agreement (the “First Lien Credit Agreement”) dated as of August 1, 2013 among the Company, various financial institutions and other persons from time to time parties thereto, as Lenders, and Silver Point Finance, LLC, as the Administrative Agent.

(ii)

One twelfth of the Target Award (in each case, a “Quarterly Award”) will be subject to earning for each fiscal quarter, and will be earned if the Quarterly Target Performance Goal for such fiscal quarter is achieved. If earned, such Quarterly Award shall be earned following public announcement of the Company’s earnings with respect to such fiscal quarter end financial statements, and the approval of the Compensation Committee.

Subject to the provisions of Sections 2(a)(iv) through 2(a)(vi) of this Agreement, any Quarterly Award earned under this Agreement shall vest following public announcement of the Company’s earnings with respect to the third fiscal quarter of 2016 end financial statements, and the approval of the Compensation Committee.

(iii)

If for any fiscal quarter the Quarterly Target Performance Goal is not achieved, then the Quarterly Award for such fiscal quarter shall be immediately forfeited and canceled without any payment therefore following public announcement of the Company’s earnings with respect to such fiscal quarter end financial statements, and the approval of the Compensation Committee.

(iv)

Notwithstanding anything to the contrary contained in Section 2(a)(ii) above, if at any time the Company achieves the Quarterly Superior Performance Goal for four consecutive fiscal quarters, then all previously earned but unvested Quartery Awards shall vest following public announcement of the Company’s earnings with respect to the fourth consecutive fiscal quarter, and the approval of the Compensation Committee.

(v)

Notwithstanding anything to the contrary contained in Section 2(a)(ii) above, if the Company fails to meet the leverage ratio covenant under the First Lien Credit Agreement for any of the twelve fiscal quarters contemplated under this Agreement, the unvested shares of Restricted Stock granted to Grantee pursuant to this Agreement shall be immediately forfeited and canceled without any payment therefore.

(vi)

Notwithstanding anything to the contrary contained in this Agreement, in the event Grantee’s employment with the Company is terminated prior to any vesting date, the unvested shares of Restricted Stock granted to Grantee pursuant to this Agreement shall be immediately forfeited and canceled as of his date of termination without any payment therefore; provided, however, that if Grantee leaves the Company as a result of retirement in accordance with the Company’s normal retirement policy, after age 62 with ten years of service, or due to death or permanent and total disability, then all shares of Restricted Stock received by Grantee pursuant to this Agreement that have been earned as of such date, and have not been previously forfeited pursuant Section 2(a)(vi) above, shall be immediately vested.

(b) Notwithstanding anything to the contrary in this Agreement, in the event of a change in control of the Company, as described in the Plan, the Restricted Stock granted to Grantee pursuant to this Agreement shall vest in accordance with the terms and conditions contained in the Plan.

Restrictions on Restricted Stock. The Restricted Stock shall be subject to the following restrictions:

(a)

Nontransferable. Grantee shall not have the right to sell, transfer, assign, pledge, encumber, or otherwise convey his interest in the shares of Restricted Stock (whether or not such interest is nonforfeitable). Any attempt to transfer or assign the shares of Restricted Stock in violation of this transfer restriction shall not be recognized by the Company and shall be null and void. Following any vesting, Grantee may only trade or dispose of the vested Common Stock pursuant to a Registration Statement as may be required by the Securities Act of 1933 or other applicable state and federal law or pursuant to an opinion of the Company’s counsel that an exemption from registration is available and no Registration Statement is necessary.

(b)

Securities Act of 1933. The Restricted Stock will constitute restricted securities within the meaning of the Securities Act of 1933, and as such will be subject to restrictions and limitations on transferability, with which Grantee is familiar and to which he agrees.

(c)

Restrictive Legend. The share certificate(s) or book entry representing the shares of Restricted Stock shall have endorsed thereon a legend reflecting the restrictions of this Agreement and such certificate(s) or book entry shall be held by the Company until they become nonforfeitable, at which time they shall be transferred to Grantee.

Miscellaneous.

(a)

Tax. Grantee shall be responsible for all federal, state and local income taxes payable with respect to this award of Restricted Stock. Grantee shall have the right to make such elections under the tax laws as are available in connection with this award of Restricted Stock. The Company and Grantee agree to report the value of the Restricted Stock in a consistent manner for federal income tax purposes. The Company shall have the right to retain and withhold from any payment of Restricted Stock the amount of taxes required to be withheld with respect to such payment. In its discretion, the Company may require Grantee to reimburse the Company for any such taxes required to be withheld and may withhold any distribution in whole or in part until the Company is so reimbursed. In lieu thereof, the Company shall have the right to withhold from any other cash amounts due to Grantee an amount equal to the taxes required to be withheld or withhold and cancel (in whole or in part) a number of shares of Restricted Stock having a market value not less than the amount of such taxes, and Grantee consents to such withholding.

(b)

Securities. Grantee represents and warrants that he is acquiring the shares of Restricted Stock for investment purposes only, and not with a view to distribution thereof. Grantee is aware that the shares of Restricted Stock may not be registered under the federal or any state securities laws and that, in addition to the other restrictions on the shares, they may not be able to be transferred unless an exemption from registration is available. By making this award of Restricted Stock, the Company is not undertaking any obligation to register the shares of Restricted Stock under any federal or state securities laws.

(c)

Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, Grantee and his executors, representatives and assigns, and the Company and its successors and assigns.

(d)

Entire Agreement. It is expressly agreed by and between the parties hereto as a material consideration for the execution of this Agreement that there are and were no verbal or written representations, understandings, stipulations, agreements or promises pertaining to the subject matter of this Agreement not incorporated in writing in this Agreement and the Plan. This Agreement nor any of the provisions herein contained can be modified, terminated, superseded, waived or extended except by an appropriate written instrument executed by the parties hereto.

(e)

Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Ohio.

(f)

Severability. Each Paragraph and Subparagraph of this Agreement shall be deemed severable and if for any reason any Paragraph or Subparagraph hereof is invalid or contrary to any existing or future law, such invalidity shall not affect the applicability or validity of any such other provision of this Agreement.

(g)

No Assurances. This Agreement and the award of Restricted Stock shall not be construed as giving to Grantee the right to be retained as an employee of the Company.

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.

THE STANDARD REGISTER COMPANY

___________________________________

Joseph P. Morgan, Jr.

Chief Executive Officer

GRANTEE

____________________________________

EX-10 6 ex101.htm EXHIBIT 10.1 Converted by EDGARwiz

Exhibit 10.1

EXECUTION VERSION

AMENDMENT AND RESTATEMENT AGREEMENT

by and among

THE STANDARD REGISTER COMPANY,

WORKFLOW HOLDINGS, LLC,

the First Lien Lenders

listed on Annex A hereto,

the Second Lien Lenders

listed on Annex B hereto,

SILVER POINT CAPITAL, L.P.,

as Lenders’ Representative,

and

SILVER POINT FINANCE, LLC,

as Administrative Agent

Dated August 1, 2013

TABLE OF CONTENTS

ARTICLE I DEFINITIONS

Section 1.1

Certain Defined Terms

Section 1.2

Table of Definitions

ARTICLE II PURCHASE AND SALE

Section 2.1

Equity Issuance and Simultaneous Cancellation

Section 2.2

Execution and Delivery of Amended and Restated Credit Agreements

Section 2.3

Closing

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Section 3.1

Organization and Qualification

Section 3.2

Authority and Power

Section 3.3

No Conflict; Required Filings and Consents

Section 3.4

Capitalization

Section 3.5

Equity Interests

Section 3.6

SEC Reports; Financial Statements; Disclosure and Internal Controls

Section 3.7

Required Vote of Company Shareholders

Section 3.8

Absence of Undisclosed Liabilities; Indebtedness

Section 3.9

Absence of Certain Changes or Events

Section 3.10

Compliance with Law; Permits

Section 3.11

Litigation

Section 3.12

Employee Benefit Plans

Section 3.13

Labor and Employment Matters

Section 3.14

Title to, Sufficiency and Condition of Assets

Section 3.15

Real Property

Section 3.16

Intellectual Property

Section 3.17

Taxes

Section 3.18

Environmental Matters

Section 3.19

Company Material Contracts

Section 3.20

Affiliate Interests and Transactions

Section 3.21

Insurance

Section 3.22

Certain Payments

Section 3.23

Material Suppliers and Customers

Section 3.24

Inventory

Section 3.25

Accounts Receivable

Section 3.26

Accounts Payable

Section 3.27

Brokers

Section 3.28

Exclusivity of Representations

Section 3.29

Disclosure

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE LENDERS

Section 4.1

Organization and Qualification

Section 4.2

Authority and Power

Section 4.3

Investment Intent

Section 4.4

Securities

Section 4.5

Investor Status

Section 4.6

Brokers

Section 4.7

Exclusivity of Representations

ARTICLE V COVENANTS

Section 5.1

Proxy Statement; Company Shareholder Meeting

Section 5.2

Working Capital

Section 5.3

Additional Second Lien Debt Issuance

Section 5.4

Lenders’ Representative

Section 5.5

Further Assurances

Section 5.6

Public Announcements

ARTICLE VI CLOSING DELIVERABLES

Section 6.1

Closing Deliverables of the Company

Section 6.2

Closing Deliverable of the Second Lien Lenders

ARTICLE VII GENERAL PROVISIONS

Section 7.1

Amendment and Modification

Section 7.2

Waiver

Section 7.3

Notices

Section 7.4

Interpretation

Section 7.5

Entire Agreement

Section 7.6

No Third-Party Beneficiaries

Section 7.7

Governing Law

Section 7.8

Jurisdiction; WAIVER OF JURY TRIAL

Section 7.9

Assignment; Successors

Section 7.10

Specific Performance

Section 7.11

Severability

Section 7.12

Counterparts

THIS AMENDMENT AND RESTATEMENT AGREEMENT (this “Agreement”), dated as of August 1, 2013, by and among The Standard Register Company, an Ohio corporation (the “Company”), Workflow Holdings, LLC, a Delaware limited liability company (“Holdings”), the various financial institutions and other persons listed on Annex A hereto (the “First Lien Lenders”), the various financial institutions and other persons listed on Annex B hereto (the “Second Lien Lenders”), Silver Point Capital, L.P., as the Lenders’ Representative (in such capacity, the “Lenders’ Representative”) and Silver Point Finance, LLC, as the administrative agent (in such capacity, the “Administrative Agent”), for the First Lien Lenders and the Second Lien Lenders.

WHEREAS, WorkflowOne LLC, a Delaware limited liability company (“WorkflowOne”) is party to (i) the First Lien Credit Agreement, dated as of March 2, 2011, as amended (the “Existing First Lien Credit Agreement”), by and among WorkflowOne, the lenders named therein and The Bank of New York Mellon, as administrative agent and (ii) the Second Lien Credit Agreement, dated as of March 2, 2011, as amended (the “Existing Second Lien Credit Agreement”), by and among WorkflowOne, the lenders named therein and Silver Point Finance, LLC, as administrative agent;

WHEREAS, a significant portion of the indebtedness outstanding under the Existing Second Lien Credit Agreement will be cancelled by the Second Lien Lenders prior to the execution and delivery of the Purchase Agreement (as defined below) in connection with transactions contemplated by the Purchase Agreement, this Agreement and the Ancillary Agreements;

WHEREAS, immediately prior to the Closing, the Company, Holdings and WorkflowOne entered into that certain Membership Interest Purchase Agreement (the “Purchase Agreement”), dated as of the date hereof, pursuant to which Holdings sold 100% of its issued and outstanding member interests in WorkflowOne (the “WF Interests”) to the Company;

WHEREAS, concurrently with the execution and delivery of this Agreement, the Company, Holdings, and the Escrow Agent will enter into the Escrow Agreement, pursuant to which WorkflowOne will deposit the Escrow Amount an account designated by the Escrow Agent (“Escrow Account”) pending the determination of Final Working Capital;

WHEREAS, the Purchase Agreement contemplates, and the parties hereto desire that at the Closing, the Company will issue to the Second Lien Lenders Warrants pursuant to this Agreement in repayment of a portion of the debt held by the Second Lien Lenders;

WHEREAS, immediately after the Equity Issuance, the Company and WorkflowOne, each as co-obligors, the First Lien Lenders, the Administrative Agent, as administrative agent to the First Lien Lenders, and Standard Register International, Inc., Standard Register Technologies, Inc., Standard Register Holding Company, Standard Register Mexico Holding Company, iMedconsent, LLC and WorkflowOne of Puerto Rico Inc. (“WF PR”), each as guarantors (the “Guarantors”), will enter into the First Lien Credit Agreement (the “First Lien Credit Agreement”), in the form attached as Exhibit A hereto, pursuant to which the principal amount of all indebtedness of WorkflowOne outstanding under the Existing First Lien Credit

Agreement immediately prior to the Closing (i) will remain outstanding as first lien term loans of equal principal amount of WorkflowOne, (ii) will be assumed by the Company as co-obligor thereunder, (iii) will be guaranteed (or continued to be guaranteed in the case of WF PR) by each of the Guarantors and (iv) will be amended and restated to be on the terms set forth under the First Lien Credit Agreement pursuant to this Agreement (such agreement, as so amended and restated, the “Amended and Restated First Lien Credit Agreement” and the transactions referred to in clauses (i) through (iv), the “First Lien Amendment and Assumption”);

WHEREAS, immediately after the Equity Issuance, the Company and WorkflowOne, each as co-obligors, the Second Lien Lenders, the Administrative Agent, as administrative agent to the Second Lien Lenders, and the Guarantors, will enter into the Second Lien Credit Agreement (the “Second Lien Credit Agreement”), in the form attached as Exhibit B hereto, pursuant to which (i) the principal amount of all indebtedness of WorkflowOne outstanding under the Existing Second Lien Credit Agreement immediately prior to the Closing (the “Pre-Closing Second Lien Principal Amount”) will remain outstanding as an obligation of WorkflowOne of equal principal amount, provided that the lenders of indebtedness of WorkflowOne outstanding under the Existing Second Lien Credit Agreement will cancel (the “Simultaneous Cancellation”) a principal amount of indebtedness of WorkflowOne outstanding under the Existing Second Lien Credit Agreement in an amount equal to the Average Price multiplied by the total quantity of Newly Issued Equity (such principal amount, the “Cancelled Second Lien Principal Amount”), pro rata in accordance with the principal amount of the loans held by such lenders, in exchange for the Warrants issued to such lenders pursuant to this Agreement and (iii) an amount of indebtedness of WorkflowOne outstanding under the Existing Second Lien Credit Agreement equal to the Pre-Closing Second Lien Principal Amount less the Cancelled Second Lien Loan Principal Amount (x) will continue to be an obligation of WorkflowOne and will also be assumed by the Company as co-obligor thereunder, (y) will be guaranteed (or continued to be guaranteed in the case of WF PR) by each of the Guarantors, and (z) will be amended and restated to be on the terms set forth under the Second Lien Credit Agreement pursuant to this Agreement (such agreement, as so amended and restated, the “Amended and Restated Second Lien Credit Agreement” and, together with the Amended and Restated First Lien Credit Agreement, the “Amended and Restated Credit Agreements” and the transactions referred to in clauses (i) through (iii), the “Second Lien Amendment and Assumption”);

WHEREAS, pursuant to this Agreement, upon the Simultaneous Cancellation, the Company will issue to the Second Lien Lenders or its designees an aggregate amount of 2,645,952 Warrants issued pursuant to the Warrant Agreements (as defined below) (the “Newly Issued Equity”), free and clear of all Encumbrances, pro rata to each Second Lien Lender in the amount set forth opposite the name of each such Second Lien Lender on Annex B hereto;

WHEREAS, concurrently with the Closing, the Company and each of the Second Lien Lenders will enter into Warrant Agreements in the form attached as Exhibit C (“Warrant Agreements”) setting forth certain terms and conditions of the Warrants issued to the Second Lien Lenders pursuant to this Agreement;

WHEREAS, concurrently with the Closing, the Company, each of the Second Lien Lenders, Silver Point Capital, L.P., as a shareholder representative to the Second Lenders, and

certain of the shareholders of the Company will enter into a Shareholders Agreement (the “Shareholders Agreement”) in the form attached as Exhibit D, dated as of the date hereof, setting forth certain terms and conditions upon which the Warrants and the shares of Company Common Stock issued upon any conversion of the Warrants will be held by the Second Lien Lenders following the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements; and

WHEREAS, concurrently with the Closing, the Company and certain shareholders of the Company have entered into that certain Voting Agreement (the “Voting Agreement”), dated as of the date hereof, setting forth the terms and conditions by which such shareholders agree to vote their shares of Company Common Stock and Company Class A Stock in connection with the transactions contemplated by this Agreement and the Ancillary Agreements; and

Whereas, the Board of Directors of the Company has approved this Agreement and the Ancillary Agreements to which the Company is a party and the transactions contemplated hereby and thereby and determined that this Agreement, such Ancillary Agreements and the transactions contemplated hereby and thereby are advisable and in the best interest of the Company and its shareholders.

In consideration of the foregoing and the mutual covenants and agreements set forth in this Agreement, and intending to be legally bound, the Company, Holdings, the First Lien Lenders, the Second Lien Lenders and the Administrative Agent agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1

Certain Defined Terms. For purposes of this Agreement:

“Action” means any claim, action, suit, inquiry, proceeding, audit or investigation by or before any Governmental Authority, or any other arbitration, mediation or similar proceeding.

“Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For the avoidance of doubt, and notwithstanding anything to the contrary in the Agreement, prior to the Closing, the Affiliates of the Company shall not include Holdings, WorkflowOne or any of their respective Subsidiaries or Affiliates.

“Ancillary Agreements” means all other agreements, documents and instruments required to be delivered by any party pursuant to this Agreement, and any other agreements, documents or instruments entered into at or prior to the Closing in connection with this Agreement and the transactions contemplated by this Agreement.

“Average Price” means the average closing price of Company Common Stock on the NYSE for the three (3) trading days ending on the day prior to the Closing Date.

“Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in The City of New York.

“Company Class A Stock” means the shares of Class A Stock of the Company, par value $1.00 per share.

“Company Common Stock” means the shares of the Company’s common stock, par value $1.00 per share.

“Code” means the United States Internal Revenue Code of 1986, as amended.

“Company Material Adverse Effect” means any event, change, circumstance, occurrence, effect or state of facts that, individually or in the aggregate, (i) is or would reasonably be expected to be materially adverse to the business, assets, liabilities, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, or (ii) materially impairs the ability of the Company to consummate, or prevents or materially delays, any of the other transactions contemplated by this Agreement or the Ancillary Agreements or would reasonably be expected to do so; provided, however, that in the case of clause (i) only, “Company Material Adverse Effect” shall not include any event, change, circumstance, occurrence, effect or state of facts to the extent resulting from (A) changes or conditions generally affecting the businesses or industries in which the Company or its Subsidiaries is primarily engaged, the economy or the financial or securities markets, including effects on such businesses, industries, economy or markets resulting from any regulatory and political conditions or developments in general, (B) natural disasters, calamities, national or international political or social conditions, including the outbreak or escalation of war or acts of terrorism, (C) any adoption, implementation, promulgation, proposal or repeal of, or change in Law or GAAP or any interpretation of Law or GAAP, (D) the failure, in and of itself, of the Company to meet any internal or published projections, forecasts, estimates or predictions with respect to revenues, earnings or other financial or operating metrics for any period or (E) any changes or effects resulting from the execution, delivery, existence of or compliance by the Company and its Subsidiaries with this Agreement or the Ancillary Agreements or the announcement or consummation of the transactions contemplated hereby or thereby (provided, that the underlying causes of such failures (subject to the other provisions of this definition) shall not be excluded); except, with respect to clauses (A), (B) and (C), only to the extent that such event, change, circumstance, occurrence, effect or state of facts has had a disproportionately adverse effect to the Company and its Subsidiaries, taken as a whole as compared to other Persons operating in the industries in which the Company and its Subsidiaries conduct their businesses.

“Contract” means any legally enforceable contract, agreement, arrangement or understanding, whether written or oral and whether express or implied.

“Determination Date” means the earlier of (i) May 27, 2014, (ii) the date on which there has been a material breach by a Voting Shareholder of any covenant or agreement contained inthe Voting Agreement, and (iii) the date on which there has been a material breach by the Company of any covenant or agreement contained in Section 5.1 of this Agreement, provided, that in the case of (ii) and (iii), such breach is not cured within ten (10) days of the written notice of such breach from Holdings. The parties hereto acknowledge that any change in the Company Board Recommendation shall be deemed a material breach by the Company of the covenants and agreements contained in Section 5.1 of this Agreement.

“Escrow Agent” means U.S. Bank, N.A. or another bank or trust company selected by the Company and reasonably acceptable to Holdings.

“Escrow Agreement” means the Escrow Agreement to be entered into by the Company, Holdings and the Escrow Agent, in form and substance reasonably acceptable to the Company and Holdings.

“Escrow Amount” means $5,000,000.

“GAAP” means United States generally accepted accounting principles and practices as in effect from time to time.

sale obligations of such Person and all obligations of such Person under any title retention agreement (but excluding trade accounts payable and other accrued current liabilities arising in the ordinary course ofbusiness (other than the current liability portion of any indebtedness for borrowed money)); (iii) all amounts required to be capitalized under GAAP as liabilities of such Person as lessee under capitalized leases; (iv) all outstanding obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction, whether contingent or matured; (v) all outstanding obligations of such Person under interest rate or currency swap or other hedging transactions or agreements (valued at the termination value thereof); (vi) all outstanding obligations of the type referred to in clauses (i) through (v) of any Persons for the payment of which such Person is responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise, including guarantees of such obligations; and (vii) all outstanding obligations of the type referred to in clauses (i) through (vi) of other Persons secured by (or for which the holder of such obligations has an existing right, contingent or otherwise, to be secured by) any Encumbrance on any property or asset of such Person (whether or not such obligation is assumed by such Person); provided, that “Indebtedness’ shall not include (A) Indebtedness owing from any such Person to any of its Subsidiaries or from any Subsidiary of any such Person to any such Person and (B) endorsements of negotiated instruments for collection in the ordinary course of business.

“Intellectual Property” means all intellectual property rights arising from or associated with the following, whether protected, created or arising under the Laws of the United States or any other jurisdiction: (i) trade names, trademarks and service marks (registered and unregistered), domain names and other Internet addresses or identifiers, trade dress and similar rights, and applications (including intent to use applications and similar reservations of marks and all goodwill associated therewith) to register any of the foregoing (collectively, “Marks”); (ii) patents and patent applications (collectively, “Patents”); (iii) copyrights (registered and unregistered) and applications for registration (collectively, “Copyrights”); (iv) trade secrets, know-how, inventions, methods, processes and processing instructions, technical data, specifications, research and development information, technology including rights and licenses, product roadmaps, customer lists and any other information, in each case to the extent any of the foregoing derives economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use, excluding any Copyrights or Patents that may cover or protect any of the foregoing (collectively, “Trade Secrets”); and (v) moral rights, publicity rights, data base rights and any other proprietary or intellectual property rights of any kind or nature that do not comprise or are not protected by Marks, Patents, Copyrights or Trade Secrets.

“Law” means any statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or order of any Governmental Authority.

“Leased Real Property” means all real property and interests in real property leased, subleased or licensed to the Company or any of its Subsidiaries or which the Company or any of its Subsidiaries otherwise has a right or option to use or occupy, in each case as tenant, togetherwith all structures, facilities, fixtures, systems, improvements and items of property previously or hereafter located thereon, or attached or appurtenant thereto, and all easements, rights and appurtenances relating to the foregoing.

“Lender Material Adverse Effect” means any event, change, circumstance, occurrence, effect or state of facts that, individually or in the aggregate, is or would reasonably be expected to materially impair the ability of the Lenders to consummate the transactions contemplated by this Agreement.

“Lenders” means the First Lien Lenders and the Second Lien Lenders.

“NYSE” means the New York Stock Exchange.

“Related Party”, with respect to any specified Person, means: (i) any Affiliate of such specified Person, or any director, executive officer, general partner or managing member of such Affiliate; (ii) any Person who serves as a director, executive officer, partner, member or in a similar capacity of such specified Person; (iii) any Immediate Family member of a Person described in clause (ii); or (iv) any other Person that holds, individually or together with any Affiliate of such other Person and any member(s) of such Person’s Immediate Family, more than 5% of the outstanding equity or ownership interests of such specified Person.

“Representatives” means, with respect to any Person, the officers, directors, principals, employees, agents, auditors, attorneys, advisors, bankers and other representatives of such Person.

“Second Lien Term Loans” means the term loans outstanding at the Closing as obligations of WorkflowOne to the Second Lien Lenders and assumed by the Company at the Closing as co-obligor, and amended and restated as of the Closing to reflect the terms set forth in under the Amended and Restated Second Lien Credit Agreement, and denominated in the Amended and Restated Second Lien Credit Agreement in three separate tranches: (i) Second Lien Term Loans in the principal amount of $10,000,000 denominated as “Tranche B Second Lien Term Loans,” the principal amount of which is subject to adjustment following the determination of Final Working Capital pursuant to Section 5.2, which principal amount shall not, in accordance with the Amended and Restated Second Lien Credit Agreement, bear interest until the completion of such adjustments in the principal amount of such Tranche B Second Lien

Term Loans, (ii) if the Company does not obtain the Company Shareholder Approval in accordance with Section 5.3, the Second Lien Term Loans in the principal amount of $25,000,000 denominated as “Tranche C Second Lien Term Loans” and (iii) Second Lien TermLoans in the principal amount of the Pre-Closing Second Lien Principal Amount less the sum of $10,000,000 and the Cancelled Second Lien Principal Amount.

“Solvent” means, as to any Person, such Person (i) owns Property whose fair saleable value is greater than the amount required to pay all of such Person’s Indebtedness (including contingent Indebtedness), (ii) is able to pay all of its Indebtedness as such Indebtedness mature, (iii) has capital sufficient to carry on its business and transactions and all business and transactions in which it is about to engage, (iv) such Person has not incurred and does not intend to incur, or believe that it will incur, debts including current obligations beyond its ability to pay such debts as they become due (whether at maturity or otherwise) and (v) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code. For purposes of this definition, “Bankruptcy Code” means title 11 of the United States Code; and “Property” means any interest in any kind of property or asset, whether real, personal or mixed and whether tangible or intangible.

“Subsidiary” means, with respect to any Person, any other Person controlled by such first Person, directly or indirectly, through one or more intermediaries. For the avoidance of doubt, and notwithstanding anything to the contrary in the Agreement, prior to the Closing, the Subsidiaries of the Company shall not include Holdings, WorkflowOne or any of their respective Subsidiaries or Affiliates.

“Target Working Capital” means $40,950,000.

“Working Capital” means, without duplication, an amount (which may be positive or negative) equal to (i) the consolidated current assets of WorkflowOne and its Subsidiaries (excluding Closing Cash (as defined in the Purchase Agreement)) minus (ii) the consolidated current liabilities of WorkflowOne and its Subsidiaries (excluding the short term portion of long term indebtedness), in each case calculated as of the Closing Date in accordance with GAAP

applied on a consistent basis with the preparation of the Financial Statements (as defined in the Purchase Agreement) and the principles set forth on Exhibit E.

“Warrant” means each warrant of the Company to purchase Company Common Stock for a purchase price per share of $0.00001 issued to the Second Lien Lenders pursuant to this Agreement and subject to the terms and conditions set forth in the Warrant Agreements.

Section 1.2

Table of Definitions. The following terms have the meanings set forth in the Sections referenced below:

Definition

Location

Administrative Agent

Preamble

Agreement

Preamble

Amended and Restated Credit Agreements

Recitals

Amended and Restated First Lien Credit Agreement

Recitals

Amended and Restated Second Lien Credit Agreement

Recitals

Cancelled Second Lien Principal Amount

Recitals

CERCLA

3.18(h)(iii)

Closing

2.2

Closing Date

2.2

Company

Preamble

Company Charter

3.1(b)

Company Code

3.1(b)

Company Disclosure Schedules

Article III

Company Financial Advisor

3.16(c)

Company IP

3.16(c)

Company Material Contracts

3.19(a)

Company Registered IP

3.16(e)

Company SEC Documents

3.6

Company Shareholder Approval

3.7

Company Shareholder Meeting

5.1(a)

Copyrights

1.1

Covered Person

3.3(c)

Director Authorization Proposal

5.1(a)

Environmental Laws

3.18(h)(i)

Environmental Permits

3.18(h)(ii)

Equity Issuance

2.1

ERISA

3.12(a)(i)

Exchange Act

3.3(b)

Expense Account

5.4(e)

Existing First Lien Credit Agreement

Recitals

Existing Second Lien Credit Agreement

Recitals

Final Working Capital

5.2(c)

Financial Statements

3.7(a)

First Lien Amendment and Assumption

Recitals

First Lien Lenders

Preamble

Definition

Location

First Lien Credit Agreement

Recitals

Guarantors

Recitals

Hazardous Substances

3.18(h)(iii)

Holdings

Preamble

Independent Accounting Firm

5.2(c)

Intercompany Arrangements

3.20(b)

Issuance Proposal

5.1(a)

IRS

3.12(b)

Leases

3.15(a)

Definition

Location

Lenders’ Representative

Preamble

Major Customer

3.23

Major Supplier

3.23

Marks

1.1

Multiemployer Plan

3.12(c)

Newly Issued Equity

Recitals

Notice of Disagreement

5.2(b)

Opt-Out Proposal

5.1(a)

Patents

1.1

Pension Plan

3.12(c)

Permits

3.10(b)

Permitted Encumbrances

3.14(a)

Plans

3.12(a)(ii)

Pre-Closing Second Lien Principal Amount

Recitals

Proposals

5.1(a)

Proxy Statement

5.1(a)

Purchase Agreement

Recitals

Release

3.18(h)(iv)

SEC

3.6(a)

Second Lien Amendment and Assumption

Recitals

Second Lien Lenders

Preamble

Second Lien Credit Agreement

Recitals

Securities

4.3

Securities Act

3.3(b)

Shareholders Agreement

Recitals

Simultaneous Cancellation

Recitals

Stock Issuance

3.7

Trade Secrets

1.1

Tranche B Second Lien Term Loans

1.1

Tranche C Second Lien Term Loans

1.1

Voting Agreement

Recitals

Warrant Agreements

Recitals

WF PR

Recitals

WorkflowOne

Recitals

ARTICLE II

PURCHASE AND SALE

Section 2.1

Equity Issuance and Simultaneous Cancellation. Upon the terms and subject to the conditions of this Agreement, at the Closing, the Company shall issue to the Second Lien Lenders the Newly Issued Equity, with each such Second Lien Lenders receiving the number of Warrants to purchase the number of shares of Company Stock set forth opposite the name of such lender on Annex B (such issuance, the “Equity Issuance”), free and clear of all Encumbrances, in exchange for the consummation of the Simultaneous Cancellation with each Second Lien Lender surrendering to WorkflowOne the Cancelled Second Lien Principal Amount, pro rata in the principal amount set forth opposite the name of such Second Lien Lender on Annex B (and in a total principal amount equal to the Cancelled Second Lien Principal Amount), in each case, free and clear of all Encumbrances.

Section 2.2

Execution and Delivery of Amended and Restated Credit Agreements. Upon the terms and subject to the conditions of this Agreement, at the Closing one minute after the Equity Issuance the Company shall, and shall cause each of its Subsidiaries (including WorkflowOne and its Subsidiaries acquired pursuant to the Purchase Agreement) to, enter into and deliver each of the Amended and Restated Credit Agreements.

Section 2.3

Closing. The closing of transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166-0193, immediately following the execution and delivery of this Agreement, which shall occur immediately following and be conditioned upon (i) the satisfaction in full of the conditions to the consummation of the First Lien Amendment and Assumption and the Second Lien Amendment and Assumption under the Amended and Restated Credit Agreements and (ii) the execution and delivery of the Purchase Agreement(the “Closing Date”).

ARTICLE III

REPRESENTATIONS AND WARRANTIES

OF THE COMPANY

Except as contemplated by this Agreement, the Purchase Agreement or the Ancillary Agreements, or as set forth in the corresponding sections or subsections of the Disclosure Schedules delivered to the Lenders’ Representative on the date of this Agreement (collectively, the “Company Disclosure Schedules”) (each of which shall qualify the specifically identified sections or subsections hereof to which such Company Disclosure Schedules relate or any other section or subsection hereof to which it is reasonably apparent on its face that such Company Disclosure Schedules relate), and except as set forth in the Company SEC Documents (excluding any disclosures set forth in any risk factor section thereof or in any section relating to forward-looking statements and any other disclosures contained or referenced therein relating to the information, factors or risks that are predictive, cautionary or forward looking in nature), and then only to the extent that the relevance of any disclosed event, item or occurrence in such Company SEC Documents to a matter covered by a representation or warranty set forth in this Article III as is reasonably apparent on its face to matters and items which are the subject of such representation or warranty), the Company represents and warrants to the Lenders as follows:

Section 3.1

Organization and Qualification.

(a)

The Company is a corporation duly organized, validly existing and in good standing under the Laws of the State of Ohio and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where the failure to be in good standing and to have such corporate power has not had or would not reasonably be expected to have a Company Material Adverse Effect. Each of the Company and its Subsidiaries (i) is an entity duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization; (ii) has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as now being conducted; and (iii) is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership, leasing or operation of its properties makes such qualification or licensing necessary, except in the case of clauses (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.

(b)

The Company previously delivered to the Lenders true, correct and complete copies of the Company’s articles of incorporation, as amended (the “Company Charter”) and code of regulations (the “Company Code”) and the certificate of incorporation and bylaws (or comparable organizational documents) of each of its Subsidiaries, in each case as amended to the date of this Agreement, and each as so delivered is in full force and effect. Except as would not have an adverse effect on the ability of the Company to consummate the transactions contemplated by this Agreement and the Ancillary Agreements, the Company is not in violation of any provision of the Company Charter or the Company Code.

Section 3.2

Authority and Power. The Company has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement, and the Company and each of its Subsidiaries has all necessary corporate authority to execute, deliver and perform its obligations under each Ancillary Agreement to which such party will be a party and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by the Company of this Agreement, and the execution, delivery and performance by the Company and each of its Subsidiaries of each of the Ancillary Agreements to which such party will be a party and the consummation by such party of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company and each of its Subsidiaries, as the case may be, and no other corporate proceedings on the part of the Company and its Subsidiaries are necessary to approve this Agreement, and no other corporate proceedings on the part of the Company or any of its Subsidiaries are necessary to approve each Ancillary Agreement to which such party will be a party, or to consummate the other transactions contemplated hereby or thereby, except as set forth in Section 3.7. This Agreement has been, and upon their execution each of the Ancillary Agreements to which the Company or any of its Subsidiaries will be a party, will have been, duly executed and delivered by the Company or any of its Subsidiaries, as the case may be, and, assuming the due authorization, execution and delivery by each of the other parties hereto and thereto, this Agreement constitutes, and upon their execution each of the Ancillary Agreements to which the Company or any of its Subsidiaries will be a party will constitute, the legal, valid and binding obligations of the Company or such Subsidiary, as the case may be, enforceable against the Company or such Subsidiary, as the case may be, in accordance with their respective

terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or similar Laws affecting creditors’ rights generally or by general principles of equity (regardless of whether considered in a proceeding in equity or in law). The Board of Directors of the Company has, at a meeting duly called and held on or prior to the date hereof, (a) determined that this Agreement and the transactions contemplated hereby are advisable and in the best interest of the Company and its shareholders, (b) approved and adopted this Agreement and the transactions contemplated hereby, including the Ancillary Agreements and the transactions contemplated thereby, and (c) directed that the Proposals be submitted to the shareholders of the Company for approval.

Section 3.3

No Conflict; Required Filings and Consents.

(a)

The execution, delivery and performance by the Company, and the execution, delivery and performance by the Company or any of its Subsidiaries of each of the Ancillary Agreements to which such party will be a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (i) conflict with or violate the Company Charter, the Company Code or the certificate of incorporation or bylaws (or equivalent organizational documents of) any of its Subsidiaries; (ii) conflict with or violate any Law applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected; or (iii) result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would become a default) under, require any consent of or notice to any Person pursuant to, give to others any right of termination, amendment, modification, acceleration or cancellation of, allow the imposition of any fees or penalties, require the offering or making of any payment or redemption, give rise to any increased, guaranteed, accelerated or additional rights or entitlements of any Person or otherwise adversely affect any rights of the Company or any of its Subsidiaries under, or result in the creation of any Encumbrance on any property, asset or right of the Company or any of its Subsidiaries pursuant to, any note, bond, mortgage, indenture, agreement, lease, license, permit, franchise, instrument, obligation or other Contract (including for the avoidance of doubt, any Company Material Contract) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties, assets or rights are bound or affected, except, in the case of clauses (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.

(b)

None of the Company or any of its Subsidiaries is required to file, seek or obtain any notice, authorization, approval, order, permit or consent of or with any Governmental Authority in connection with the execution, delivery and performance by the Company of this Agreement and each of the Ancillary Agreements to which the Company or any of its Subsidiaries will be a party or the consummation of the transactions contemplated hereby or thereby or in order to prevent the termination of any right, privilege, license or qualification the Company or any of its Subsidiaries except for: (i) such filings and reports as may be required pursuant to the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), the Exchange Act of 1934, as amended (the “Exchange Act”) and any other applicable state or federal securities, takeover and “blue sky” laws; (ii) any filings and approvals required under the rules and regulations of the NYSE; (iii) except as has not had or would not be reasonable expected to have a Company Material Adverse Effect and (iv) the approvals set forth in Section 3.3 of the Company Disclosure Schedules.

(c)

Prior to the date hereof, the Board of Directors of the Company has approved, for the purposes of Chapter 1704 of the Ohio Revised Code, this Agreement, the Ancillary Agreements, the Stock Issuance and the other transactions contemplated hereby and thereby, and such approval is sufficient to render inapplicable the provisions of Section 1704.02 of the Ohio Revised Code to all such transactions and to all future transactions between any Second Lien Lender or any Affiliate or associate of any Second Lien Lender (each, a “Covered Person”), on the one hand, and the Company, on the other hand, if, as a result of the transactions contemplated hereby, any Covered Person becomes an “interested shareholder” (as defined in Section 1704.01 of the Ohio Revised Code), and in such event, until such time as such Covered Person is no longer an “interested shareholder” (as so defined). Except for Chapter 1704 of the Ohio Revised Code, and assuming the Company Shareholder Approval is obtained, no “fair price,” “interested shareholder,” “business combination” or similar provision of any state takeover Law is applicable to the transactions contemplated by the consummation of the transactions contemplated by this Agreement other than the exercise of the Warrants.

Section 3.4

Capitalization.

(a)

As of June 30, 2013, the authorized capital stock of the Company consists of 101,000,000 shares of Company Common Stock and 9,450,000 shares of Company Class A Stock. As of the date hereof, (i) 5,229,793 shares of Company Common Stock (excluding treasury shares) were issued and outstanding and 2,021,047 shares of Company Common Stock were held by the Company in its treasury, (ii) 944,996 shares of Company Class A Stock were issued and outstanding, and (iii) 2,594,477 shares of Company Common Stock were reserved for issuance pursuant to Company equity incentive plans (of which 651,456 shares were subject to outstanding options). Section 3.4(a) of the Company Disclosure Schedules sets forth, as of the date hereof, (A) the aggregate number of shares of capital stock of the Company subject to outstanding options, the weighted average exercise price of such options, and the number of vested and unvested shares of capital stock subject thereto and (B) the aggregate number of shares of capital stock of the Company subject to each of unvested time-vesting restricted shares and unvested performance-vesting restricted shares. All of the issued and outstanding shares of Company Common Stock and Company Class A Common Stock have been duly authorized and validly issued, are fully paid, nonassessable, are free of preemptive rights and have been issued in compliance with all applicable securities Laws. The shares of Company Common Stock to be issued pursuant to this Agreement and the shares of Company Common Stock underlying the Warrants to be issued upon exercise shall be validly issued, fully paid, non-assessable and free and clear of any Liens and shall not have been issued in violation of any preemptive rights.

(b)

Except for Company Common Stock and Company Class A Stock and except as set forth in Section 3.4(b) of the Company Disclosure Schedules, neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations having the right to vote (or convertible into, or exchangeable or exercisable for, securities having the right to vote) with the shareholders of the Company or such Subsidiary on any matter. Except as set forth above in this Section 3.4(b), as of the date hereof, there are no outstanding (i) shares of capital stock or other voting securities or equity interests of the Company, (ii) securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock of the Company or other voting securities or equity interests of the Company, (iii) stock appreciation rights, “phantom” stock rights, performance units, interests in or rights to the

ownership or earnings of the Company or other equity equivalent or equity-based awards or rights, (iv) subscriptions, options, warrants, calls, commitments, Contracts or other rights to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any shares of capital stock of the Company, voting securities, equity interests or securities convertible into or exchangeable or exercisable for capital stock or other voting securities or equity interests of the Company or rights or interests described in the preceding clause (iii) or (iv) obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, grant, deliver or sell, or cause to be issued, granted, delivered or sold, any such securities.

Section 3.5

Equity Interests. Except for the Subsidiaries listed in Section 3.5 of the Company Disclosure Schedules, neither the Company nor any of its Subsidiaries directly or indirectly owns any equity, partnership, membership or similar interest in, or any interest convertible into, exercisable for the purchase of or exchangeable for any such equity, partnership, membership or similar interest, or is under any current or prospective obligation to form or participate in, provide funds to, make any loan, capital contribution or other investment in or assume any liability or obligation of, any Person.

Section 3.6

SEC Reports; Financial Statements; Disclosure and Internal Controls.

(a)

The Company has timely filed with or furnished to the Securities and Exchange Commission (the “SEC”) all material forms, reports, schedules, statements and other documents required to be filed with or furnished to the SEC by the Company since January 1, 2011 (all such documents, together with all exhibits and schedules to the foregoing materials and all information incorporated therein by reference, the “Company SEC Documents”). As of their respective filing dates (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of the last such filing), the Company SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act of 2002, as amended, as the case may be, including, in each case, the rules and regulations promulgated thereunder, and none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries is required to file or furnish any forms, reports, schedules, statements or other documents with the SEC.

(b)

The consolidated financial statements (including the related notes and schedules thereto) included (or incorporated by reference) in the Company SEC Documents comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by Form 10Q of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Company and its Subsidiaries as of the dates thereof and their respective consolidated results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal and recurring year-end audit adjustments that were not, or are not expected to be, material in amount), all in accordance with GAAP and the applicable rules and regulations promulgated

bythe SEC. Such consolidated financial statements have been prepared from, and are in accordance with, the books and records of the Company and its Subsidiaries.

(c)

The books and records of the Company and its Subsidiaries are and have been since January 1, 2011, properly prepared and maintained in all material respect in form and substance adequate for preparing audited financial statements in accordance with GAAP, and fairly and accurately reflect in all material respects all of the assets and liabilities of the Company and its Subsidiaries and all contracts and transactions to which the Company or any of its Subsidiaries is or was a party or by which any of their respective assets were affected.

(d)

The Company has established, implemented and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act). Such disclosure controls and procedures are designed to ensure that information required to be disclosed in the Company’s periodic and current reports that it files and submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, including that such information is made known to the Company’s chief executive officer and its chief financial officer as appropriate to allow timely decisions regarding required disclosures as required under the Exchange Act. The chief executive officer and chief financial officer of the Company have evaluated the effectiveness of the Company’s disclosure controls and procedures and, to the extent required by applicable Law, presented and have made all certifications required by the Sarbanes-Oxley Act of 2002 and any related rules and regulations promulgated by the SEC in any applicable Company SEC Document that is a report on Form 10K or Form 10Q, or any amendment thereto, their conclusions about the effectiveness of the disclosure controls and procedures of Company as of the end of the period covered by such report or amendment based on such evaluation, and the statements contained in all such certifications were as of their respective dates made true, complete and correct.

(e)

The Company and its Subsidiaries have established and maintain a system of internal control over financial reporting (as defined in Rules 13a15(f) and 15d15(f) under the Exchange Act) which provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on its most recent evaluation of the Company’s internal control over financial reporting prior to the date hereof, to the Company’s auditors and audit committee (i) any significant deficiencies and material weaknesses in the design or operation of the Company’s internal control over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (ii) any fraud, whether or not material, which involves management or other employees who have a significant role in the Company’s internal control over financial reporting. A true, correct and complete summary of any such disclosures made by management to the Company’s auditors and audit committee is set forth in Section 3.6(e) of the Company Disclosure Schedules.

(f)

Since January 1, 2011, to the Knowledge of the Company, (i) neither the Company nor any of its Subsidiaries nor any of their respective directors or officers has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures,

methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (ii) no attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents to the Board of Directors of the Company or any committee thereof or to any director or officer of the Company.

(g)

The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of the NYSE.

Section 3.7

Required Vote of Company Shareholders. The only votes of holders of securities of the Company which are required to approve the consummation of the transactions contemplated by this Agreement, including the Stock Issuance, are (a) the affirmative vote of holders of record of shares entitling them to exercise a majority of the voting power of the Company to authorize and approve each of the Opt-Out Proposal and the Director Authorization Proposal, and (b) a majority of the outstanding Company Common Stock and Company Class A Stock present in person or represented by proxy at the Company Shareholder Meeting to approve and adopt the Issuance Proposal (collectively, the “Company Shareholder Approval”).

Section 3.8

Absence of Undisclosed Liabilities; Indebtedness.

(a)

The Company and its Subsidiaries have no liabilities or obligations of any nature, whether accrued, absolute, contingent or otherwise that are required by GAAP to be reflected in a consolidated balance sheet of the Company and its Subsidiaries or disclosed in the notes thereto, other than liabilities and obligations (i) that are reflected or reserved against in the most recent consolidated balance sheet of the Company included in the Company SEC Documents filed prior to the date hereof (including any notes thereto), (ii) that have been incurred since December 31, 2012 in the ordinary course of business or (iii) that have not had and would not reasonably be expected to have a Company Material Adverse Effect.

(b)

Except as set forth in Section 3.8(b) of the Company Disclosure Schedules, there is no Indebtedness of the Company or any Subsidiary of the Company. Except as would not reasonably be expected to have a Company Material Adverse Effect, none of the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party is in breach or violation of, or (with or without notice or lapse of time or both) default under, in any material respect, any Contract in respect of Indebtedness of the Company, nor has the Company or any of its Subsidiaries received any claim of any such breach, violation or default

Section 3.9

Absence of Certain Changes or Events. Except as contemplated by this Agreement or the Ancillary Agreements, the Purchase Agreement and the Ancillary Agreements, since March 31, 2013 (a) the Company and its Subsidiaries have conducted their businesses in all material respects in the ordinary course consistent with past practice; and (b) there has not been any change, event or development or prospective change, event or development that has had or is reasonably likely to have a Company Material Adverse Effect. Without limiting the generality

of the foregoing, except as reflected on the consolidated financial statements of the Company, in connection with any grants, issuances or redemptions made pursuant to the Company’s equity incentive plans or other compensation package or in connection with the execution and delivery of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby, since March 31, 2013 to the date hereof, neither the Company nor any of its Subsidiaries has:

(a)

(b)

declared, set aside, made or paid any non-cash dividend or other distribution on or with respect to any of its capital stock or other equity or ownership interest;

(c)

(d)

directly or indirectly acquired or agreed to acquire (A) by merging or consolidating with, purchasing a substantial equity interest in or a substantial portion of the assets of, making an investment in or loan or capital contribution to or in any other manner, any corporation, partnership, association or other business organization or division thereof or (B) any assets that are otherwise material to the Company and its Subsidiaries, other than inventory acquired in the ordinary course of business consistent with past practice;

(e)

(f)

authorized any of, or committed, resolved or agreed to take any of, the foregoing actions.

Section 3.10

Compliance with Law; Permits.

(a)

Except as would not be reasonably expected to have a Company Material Adverse Effect, (i) since January 1, 2011, each of the Company and its Subsidiaries is and has been in compliance with all Laws applicable to it and (ii) none of the Company, any of its Subsidiaries or any of its or their executive officers has received during the past five years, nor is there any basis for, any notice, order, complaint or other communication from any Governmental Authority or any other Person that the Company or any of its Subsidiaries is not in compliance in any material respect with any Law applicable to it.

(b)

Except as would not be reasonably expected to have a Company Material Adverse Effect, each of the Company and its Subsidiaries is in possession of all permits, licenses, franchises, approvals, certificates, consents, waivers, concessions, exemptions, orders, registrations, notices or other authorizations of any Governmental Authority necessary for each of the Company and its Subsidiaries to own, lease and operate its properties and to carry on its business as currently conducted (the “Permits”). Since January 1, 2011, each of the Company and its Subsidiaries is and has been in compliance with all such Permits other than such non-compliance that has not had and would not reasonably be expected to have a Company Material Adverse Effect. No suspension, cancellation, modification, revocation or nonrenewal of any Permit is pending or, to the Knowledge of the Company, threatened that has had or would be reasonably expected to have a Company Material Adverse Effect. The Company and its Subsidiaries will continue to have the use and benefit of all Permits following consummation of the transactions contemplated hereby, except as would not be reasonably expected to have a Company Material Adverse Effect. No Permit is held in the name of any employee, officer, director, shareholder, agent or otherwise on behalf of the Company or any of its Subsidiaries.

Section 3.11

Litigation. Except as set forth in Section 3.11 of the Company Disclosure Schedules, there is no Action pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, or any material property or asset of the Company or any of its Subsidiaries, or any of the officers of the Company or any of its Subsidiaries in regards to their actions as such, nor, to the Knowledge of the Company, is there any basis for any such Action, other than any Action that has not had and would not reasonably be expected to have a Company Material Adverse Effect. There is no Action pending or, to the Knowledge of the Company, threatened seeking to prevent, hinder, modify, delay or challenge the transactions contemplated by this Agreement or the Ancillary Agreements other than any Action that has not had and would not reasonably be expected to have a Company Material Adverse Effect. There is no outstanding order, writ, judgment, injunction, decree, determination or award of, or pending or, to the Knowledge of the Company, threatened investigation by, any Governmental Authority relating to the Company, any of its Subsidiaries, any of their respective properties or assets, any of their respective officers or directors, or the transactions contemplated by this Agreement or the Ancillary Agreements that has had or would reasonably be expected to have a Company Material Adverse Effect. There is no material Action by the Company or any of its Subsidiaries pending, or which the Company or any of its Subsidiaries has commenced preparations to initiate, against any other Person that has had or would reasonably be expected to have a Company Material Adverse Effect.

Section 3.12

Employee Benefit Plans.

(a)

Section 3.12(a) of the Company Disclosure Schedules sets forth a true and complete list of:

(i)

all material employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and all material bonus, profits units, stock option, stock purchase, restricted stock, change in control, retention, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all employment, termination, retention, severance contracts or agreements to which the Company or any of its Subsidiaries is a

party, which are maintained, contributed to or sponsored by the Company, any of its Subsidiaries or any ERISA Affiliate for the benefit of any current or former employee, officer or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has or could have any obligation; and

(ii)

all Contracts between the Company or any of its Subsidiaries and any employee, officer or director of the Company or any of its Subsidiaries, including any Contracts relating in any way to a sale of the Company or any of its Subsidiaries (clauses (i) and (ii) collectively, the “Plans”).

(b)

Each Plan referred to in Section 3.12(a) is in writing. The Company has furnished to the Lenders a true and complete copy of each such Plan and has delivered to the Lenders a true and complete copy of each material document, if any, prepared in connection with each such Plan, including (i) a true and complete copy of each trust or other funding arrangement, (ii) each summary plan description and summary of material modifications thereto, (iii) the two most recently filed Internal Revenue Service (“IRS”) Form 5500s, (iv) the most recently received IRS determination or opinion letter for each such Plan, and (v) the most recently prepared actuarial report and financial statement in connection with each such Plan.

(c)

Section 3.12(c) of the Company Disclosure Schedules lists each Plan that is subject to Title IV of ERISA or Section 412 or Section 430 of the Code (each, a “Pension Plan”). Except as otherwise disclosed on Section 3.12(c) of the Company Disclosure Schedules, (i) each Pension Plan is not in “at risk status” as defined in Section 430(i) of the Code; (ii) each Pension Plan satisfies the minimum funding standards under Sections 412 and 302 of the Code and ERISA, respectively, and no waiver of such funding has been sought or obtained in the past five years; (iii) no reportable event (as defined in Section 4043 of ERISA) has occurred or is reasonably expected to occur with respect to any Pension Plan; (iv) all premiums to the Pension Benefit Guaranty Corporation have been timely paid in full; (v) no liability or contingent liability (including liability pursuant to Section 4069 of ERISA) under Title IV of ERISA has been or is reasonably expected to be incurred by the Company, any of its Subsidiaries or any ERISA Affiliate; (vi) the Pension Benefit Guaranty Corporation has not instituted proceedings to terminate any Pension Plan and, to the Knowledge of the Company, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; and (vii) any Pension Plan that has been frozen or amended to reduce future benefit accruals has been so frozen or amended in accordance with all applicable laws and regulations including Section 204(h) of ERISA and the regulations under Section 4980F of the Code. No Plan is a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA (a “Multiemployer Plan”) and none of the Company and its Subsidiaries nor any of their respective ERISA Affiliates has incurred any liability with respect to any Multiemployer Plan, nor has any event occurred that could reasonably be expected to result in any liability with respect to any Multiemployer Plan. None of the Company and its Subsidiaries nor any of their respective ERISA affiliates has at any time during the last six (6) years, contributed to or been obligated to contribute to any Multiemployer Plan.

(d)

The Company is not a party to an agreement with any Person, including the Pension Benefit Guaranty Corporation, that would (i) affect the determination of minimum

funding contributions to any Pension Plan, (ii) require any contributions to any Pension Plan in excess of minimum required contributions or (iii) require the provision of security relating to contributions for unfunded liabilities under any Pension Plan.

(e)

The Company and its Subsidiaries have no liability for life, health, medical or other welfare benefits to former employees or beneficiaries or dependents thereof, except for health continuation coverage as required by Section 4980B of the Code or Part 6 of Title I of ERISA and at no expense to the Company and its Subsidiaries. No Plan is a “funded welfare plan” within the meaning of Section 419 of the Code.

(f)

Each Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code. Each of the Company and its Subsidiaries has performed all material obligations required to be performed by it and is not in any material respect in default under or in violation under any Plan, nor does the Company have any Knowledge of any such material default or violation by any other party to any Plan. No Action is pending or, to the Knowledge of the Company, threatened with respect to any Plan, other than claims for benefits in the ordinary course, and no fact or event exists that would reasonably be expected to give rise to any such Action that would reasonably be expected to have a Company Material Adverse Effect.

(g)

Each Plan that is intended to be qualified under Section 401(a) or Section 401(k) of the Code has received a timely favorable determination or opinion letter from the IRS covering all of the provisions applicable to such Plan for which determination letters are currently available that such Plan is so qualified. No fact or event has occurred that would reasonably be expected to adversely affect the qualified status of any such Plan or the exempt status of any such trust. There has not been any material non-exempt prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, with respect to any Plan.

(h)

All contributions, premiums or payments required to be made with respect to any Plan have been made on or before their due dates.

(i)

There are no Actions or claims (other than routine claims for benefits) pending or, to the Knowledge of the Company, threatened with respect to any Plan or any related trust or other funding medium thereunder or with respect to the Company or any ERISA Affiliate as the sponsor or fiduciary thereof or with respect to any other fiduciary thereof.

(j)

No Plan or any related trust or other funding medium thereunder or any fiduciary thereof is, to the Knowledge of the Company, the subject of an audit, investigation or examination by any Governmental Authority.

(k)

(l)

Each Plan that is subject to the requirements of Section 409A of the Code has complied in form and operation in all material respects with the requirements of Section 409A of the Code as in effect from time to time. The Company has no obligation to provide any “gross-up” of any tax, interest charge or other amount incurred by any individual pursuant to Section 409A or Section 4999 of the Code.

(m)

Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will, either directly or in combination with any other event: (i) result in any payment (including severance, change in control or otherwise) becoming due under any Plan, (ii) increase any benefits otherwise payable under any Plan, (iii) result in the acceleration of time of payment or vesting or funding of any benefits under any Plan, (iv) limit the right to amend or terminate any Plan, (v) result in any payment or benefit that will or may be made by the Company or its Subsidiaries that may be characterized as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code, or (vi) trigger an advance reporting filing obligation under Section 4043.61 of the PBGC regulations.

(n)

There has been no material adverse change in the aggregate funding status of the Plans that are defined benefit pension plans or that provide post-retirement health and welfare benefits from the funding status as of December 31, 2012 as disclosed on the Company’s Annual Report on Form 10-K for the fiscal year ended December 30, 2012 on file with the SEC.

Section 3.13

Labor and Employment Matters.

(a)

Neither the Company nor any of its Subsidiaries is a party to any labor or collective bargaining Contract that pertains to employees of the Company or any of its Subsidiaries. To the Knowledge of the Company, there are no, and since January 1, 2012 have been no, organizing activities or collective bargaining arrangements that could affect the Company or any of its Subsidiaries pending or under discussion with any labor organization or group of employees of the Company or any of its Subsidiaries. There is no, and since January 1, 2012, there has been no, labor dispute, strike, controversy, slowdown, work stoppage or lockout pending or, to the Knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries.

(b)

Except as would not reasonably be expected to have a Company Material Adverse Effect, the Company has complied in all material respects with all applicable Laws respecting employment, including discrimination or harassment in employment, terms and conditions of employment, termination of employment, wages, overtime classification, hours, occupational safety and health, employee whistle-blowing, immigration, employee privacy, employment practices and classification of employees, consultants and independent contractors. To the Knowledge of the Company, the Company has not engaged in any unfair labor practice, as defined in the National Labor Relations Act or other applicable Laws. No unfair labor practice or labor charge or complaint is pending or, to the Knowledge of the Company, threatened with respect to the Company or any of its Subsidiaries before the National Labor Relations Board, the Equal Employment Opportunity Commission or any other Governmental Authority nor has there been any such charge or complaint since January 1, 2012.

(c)

Neither the Company nor any of its Subsidiaries is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Authority relating to employees or employment practices. Since January 1, 2012, none of the Company, any of its Subsidiaries or any of its or their executive officers has received any notice of intent by any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an investigation relating to the Company or any of its Subsidiaries and, to the Knowledge of the Company, no such investigation is in progress.

Section 3.14

Title to, Sufficiency and Condition of Assets.

(a)

Except for matters as have had or would reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have good and valid title to or a valid leasehold interest in all of their assets, including all of the assets reflected on the financial statements of the Company or acquired in the ordinary course of business since March 31, 2013, except those sold or otherwise disposed of for fair value since March 31, 2013 in the ordinary course of business consistent with past practice. The assets owned or leased by the Company and its Subsidiaries constitute all of the assets necessary for the Company and its Subsidiaries to carry on their respective businesses as currently conducted other than the lack of any assets that has not had or would not reasonably be expected to have a Company Material Adverse Effect. None of the assets owned or leased by the Company or any of its Subsidiaries is subject to any Encumbrance, other than (i) liens for Taxes not yet past due or delinquent or the validity of which are being contested in good faith by appropriate proceedings and, in either case, for which adequate reserves have been established in accordance with GAAP, (ii) mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice relating to obligations as to which there is no default on the part of the Company or any of its Subsidiaries, (iii) Encumbrances set forth on Section 3.14(a) of the Company Disclosure Schedules, and (iv) Encumbrances that would not reasonably be expected to have a Company Material Adverse Effect (collectively, “Permitted Encumbrances”).

(b)

All tangible assets owned or leased by the Company or its Subsidiaries have been maintained in accordance with generally accepted industry practice, are in good operating condition and repair, ordinary wear and tear excepted, and are adequate for the uses to which they are being put, except where the failure of such assets to be adequate for the uses to which they are being put has not had and would not reasonably be expected to have a Company Material Adverse Effect.

This Section 3.14 does not relate to real property or any leases or other interests in real property, such items being the subject of Section 3.15, or to Intellectual Property, such items being the subject of Section 3.16.

Section 3.15

Real Property.

(a)

Section 3.15 of the Company Disclosure Schedules sets forth a true and complete list of all Owned Real Property and all Leased Real Property, including, (i) with respect to all Owned Real Property, the street address and the current record owner of each parcel of Owned Real Property, and (ii) with respect to all Leased Real Property, the street

address and the identity of the lessor, lessee and current occupant (if different from lessee) of each such parcel of Leased Real Property. True and complete copies of all leases and licenses, including all amendments and assignments thereto and all guaranties thereof (the “Leases”), relating to all Leased Real Property, have been provided to the Lenders. Each of the Company and its Subsidiaries has (x) good and marketable title in fee simple to all Owned Real Property and (y) a valid, binding and enforceable leasehold estate in all Leased Real Property, in each case, free and clear of all Encumbrances except Permitted Encumbrances and as has not and would not reasonably be expected to have a Company Material Adverse Effect. No parcel of Owned Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the Knowledge of the Company, has any such condemnation, expropriation or taking been proposed. All leases of Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto that has or would reasonably be expected to have a Company Material Adverse Effect. All leases of Leased Real Property shall remain valid and binding in accordance with their terms following the Closing, except where the failure to remain so valid and binding has not had and would not reasonably be expected to have a Company Material Adverse Effect.

(b)

There are no contractual or legal restrictions that preclude or restrict the ability to use any Owned Real Property or, to the Knowledge of the Company, any Leased Real Property by the Company or any of its Subsidiaries for the current or contemplated use of such Owned Real Property or Leased Real Property. Each of the Company and its Subsidiaries has title to, or a leasehold interest in, as applicable, all personal property used in their respective businesses, except where failure to have such title or leasehold interest has not had or would not reasonably be expected to have a Company Material Adverse Effect. All plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property and the Leased Real Property are adequately maintained and are in good operating condition and repair, ordinary wear and tear excepted, for the requirements of the business of the Company and its Subsidiaries as currently conducted, except as would reasonably be expected to have a Company Material Adverse Effect.

(c)

Since January 1, 2011, none of the Company or any of its Subsidiaries has subleased, licensed or otherwise granted to any other Person the right to use or occupy the Owned Real Property or Leased Real Property or any portion thereof.

(d)

None of the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party to any lease or sublease applicable to the Leased Real Property, is in breach or default under such lease or sublease, and, to the Knowledge of the Company, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such leases or subleases that has or would reasonably be expected to have a Company Material Adverse Effect. The Owned Real Property and Leased Real Property comprise all of the real property necessary for the operation of the businesses of the Company and its Subsidiaries in all material respects as currently conducted.

Section 3.16

Intellectual Property.

(a)

Section 3.16 of the Company Disclosure Schedules sets forth a true and complete list in all material respects of all registered Marks, Patents and registered Copyrights, including any pending applications to register any of the foregoing, owned (in whole or in part) by and material to the Company or any of its Subsidiaries.

(b)

Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) to the Knowledge of the Company, the Intellectual Property identified in Section 3.16 of the Company Disclosure Schedules (“Company Registered IP”) is valid, enforceable and in good standing with the Governmental Authority before which it is registered or pending, (ii) neither the Company nor any of its Subsidiaries has received any notice or claim in writing challenging the validity or enforceability of Intellectual Property identified in Section 3.16 of the Company Disclosure Schedules or alleging misuse of such Intellectual Property, (iii) no Intellectual Property identified in Section 3.16 of the Company Disclosure Schedules is involved in any opposition, cancellation, interference, reissue, reexamination or similar proceeding as of the date hereof, and (iv) to the Knowledge of the Company, no such proceeding is or has been threatened with respect to any of such Intellectual Property.

(c)

Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) the Company or one of its Subsidiaries own all right, title, and interest in and to, free of all Liens other than Permitted Liens, or have a right to use, all Intellectual Property necessary for the conduct of the Company’s and its Subsidiaries’ businesses taken as a whole as now being conducted (the “Company IP”) and (ii) neither the Company nor any of its Subsidiaries has received any notice or claim challenging the Company’s or such Subsidiary’s ownership of any of the Company IP owned or purportedly owned (in whole or in part) by the Company or any of its Subsidiaries.

(d)

The development, manufacture, sale, distribution or other commercial exploitation of products, and the provision of any services, by the Company or any of its Subsidiaries, and all of the other activities or operations of the Company or any of its Subsidiaries do not infringe upon, misappropriate, violate or dilute, any Intellectual Property of any third party, except where such infringement upon, misappropriation, violation or dilution would not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has received any notice or claim in writing asserting or suggesting that any such infringement, misappropriation, violation, dilution or unauthorized use is or may be occurring. No Company IP is subject to any outstanding order, judgment, decree, or stipulation restricting the use or licensing thereof by the Company or its Subsidiaries. To the Knowledge of the Company, no third party is misappropriating, infringing, diluting or violating any Company IP in a material manner, except where such misappropriation, infringement, dilution, or violation would not reasonably be expected to result in material liability for the Company or any of its Subsidiaries.

(e)

To the Knowledge of the Company, the execution, delivery and performance by the Company of this Agreement and the Ancillary Agreements, and the consummation of the transactions contemplated hereby and thereby, will not give rise to any right of any third party to terminate or re-price or otherwise modify any of the Company’s or any

of its Subsidiaries’ rights or obligations under any agreement under which any right or license of or under any Intellectual Property is granted to or by the Company or any of its Subsidiaries.

(f)

Except as would not reasonably be expected to have a Company Material Adverse Effect, the Company and each of its Subsidiaries (i) takes reasonable measures to ensure the confidentiality, privacy and security of customer, employee and other confidential information and (ii) complies with applicable data protection, privacy and similar Laws, directives and codes of practice in any jurisdiction relating to any data processed by the Company or any of its Subsidiaries in such jurisdiction.

Section 3.17

Taxes.

(a)

The Company and each if its Subsidiaries (i) have timely filed, or caused to be timely filed, taking into account any extensions, all material Tax Returns that were required to be filed by or with respect to any of them and (ii) have timely paid, or caused to be timely paid, all material amounts of Taxes owed by them or with respect to any of them (whether or not shown thereon as due and owing) to the proper Governmental Authority. All Tax Returns of the Company and its Subsidiaries or with respect to any of them are true, correct and complete in all material respects.

(b)

The Company and each of its Subsidiaries (i) have timely withheld, deducted or collected all material Taxes that the Company and each of its Subsidiaries have been required to withhold, deduct or collect (including material employment-related Taxes) and (ii) to the extent required when due, have timely paid such Taxes to the proper Governmental Authority.

(c)

There are no material written claims by any Governmental Authority in a jurisdiction where the Company and/or its Subsidiaries does not file Tax Returns that the Company or any Subsidiary may be subject to taxation by that jurisdiction.

(d)

There are (i) no material asserted or proposed deficiencies or assessments of Taxes from any Governmental Authority with respect to the Company or any Subsidiary, (ii) no ongoing Actions concerning any material Tax liability of the Company or its Subsidiaries and no such Action is threatened in writing and (iii) the Company and/or its Subsidiaries have not granted any request, agreements, or consents to waive or extend the statutory period of limitations applicable to the assessment of Taxes.

(e)

There are no Tax liens on the assets of the Company or its Subsidiaries other than Permitted Encumbrances.

(f)

Neither the Company nor any Subsidiary (i) is a party to any agreement or arrangement providing for the allocation, indemnification or sharing of Taxes (including any advance pricing agreement or other similar agreement relating to Taxes with any Governmental Authority), (ii) is subject to any private letter ruling of the Internal Revenue Service or any comparable rulings of any other Governmental Authority, (iii) has been a member of an affiliated group filing a consolidated U.S. federal income Tax Return (other than a group the common parent of which is the Company), (iv) has any liability for the Taxes of any other Person under Treasury Regulation Section 1.1502-6 (or any other comparable provision of state, local or non-

U.S. Tax Law) as transferee or successor, by contract or otherwise, (v) is bound by, has agreed to or is required to make any adjustments pursuant to Section 481(a) of the Code or any similar provision of law or has any Knowledge that any Governmental Authority has proposed any such adjustment, or has any application pending with any Governmental Authority requesting permission for any changes in accounting methods that relate to the Company or any of its Subsidiaries, or (vi) has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision of Law.

(g)

The Company has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(l)(A)(ii) of the Code.

Section 3.18

Environmental Matters.

(a)

Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each of the Company and its Subsidiaries is and, for the past three years, has been in compliance with all applicable Environmental Laws, and (ii) none of the Company, any of its Subsidiaries or any of its or their executive officers has received any written notice, communication or complaint from a Governmental Authority or other Person alleging that the Company or any of its Subsidiaries has any liability under any Environmental Law or is not in compliance with any Environmental Law.

(b)

Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Hazardous Substances are present, and there is and has been no Release or threatened Release of Hazardous Substances or any cleanup or corrective action of any kind relating thereto, in each case, that are reasonably likely to form the basis of any Action against the Company or any of its Subsidiaries or impose liability or other obligations on the Company or any of its Subsidiaries under any Environmental Laws, (i) on, at, about or in any property (including any buildings, structures, improvements, soils and surface, subsurface and ground waters thereof) currently or, to the Knowledge of the Company, formerly owned, leased or operated by the Company or any of its Subsidiaries or any respective predecessor in interest or (ii) at any location to which the Company or any of its Subsidiaries has sent any Hazardous Substance.

(c)

To the Knowledge of the Company, there are no active or abandoned underground storage tanks at any property currently or formerly owned, leased or operated by or for the Company or any of its Subsidiaries or any of their respective predecessors in interest, with respect to which the Company, any Subsidiary of the Company is required to upgrade, monitor, retrofit or remove or has material investigation or remediation obligations pursuant to Environmental Law.

(d)

There is no pending or, to the Knowledge of the Company, threatened Action by any Governmental Authority or any other Person against the Company or any of its Subsidiaries relating to Hazardous Substances or otherwise pursuant to any Environmental Law, except for such Action that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

(e)

Each of the Company and its Subsidiaries holds all material Environmental Permits, and is and, for the past three years, has been in material compliance therewith and has timely made all appropriate filings for issuance or renewal of such Environmental Permits. To the Knowledge of the Company, neither the execution, delivery, or performance of this Agreement nor the consummation of the transactions contemplated hereby will (i) require pursuant to any applicable Environmental Law or Environmental Permit any notice to or any material consent or approval of any Governmental Authority on or prior to the Closing Date or (ii) result in the modification or termination of any material Environmental Permit. In the event that the execution, delivery, or performance of this Agreement results in a requirement that the Company or its Subsidiaries to request any Governmental Authority to amend, modify, transfer, or re-issue any Environmental Permit, the Company or its Subsidiaries shall promptly request and take all actions necessary to obtain the amendment, modification, transfer or re-issuance of any Environmental Permit.

(f)

The Company and its Subsidiaries have provided or made available to the Lenders all material “Phase I,” “Phase II” or other environmental assessment or environmental compliance audit reports relating to compliance with or any liability under Environmental Laws in their possession and pertaining to any and all locations ever owned, operated or leased by the Company or any of its Subsidiaries, except for such reports or other documents that are not material or were generated prior to 2010.

(g)

To the Knowledge of the Company, the Company and its Subsidiaries have applied for registration of all pesticides or pesticidal products that the Company and its Subsidiaries have developed or sought to develop and have not sold or distributed any unregistered pesticides or pesticidal products in violation of any Environmental Law.

(h)

The Company and the Lenders agree that the only representations and warranties of the Company made herein with respect to any matters arising under any Environmental Laws are those contained in this Section 3.18.

(i)

For purposes of this Agreement:

(i)

Environmental Laws” means any Laws of any Governmental Authority relating to (A) Releases or threatened Releases of Hazardous Substances or materials containing Hazardous Substances; (B) the manufacture, handling, transport, use, treatment, storage or disposal of Hazardous Substances or materials containing Hazardous Substances; or (C) pollution or protection of the environment, occupational health and safety or natural resources.

(ii)

“Environmental Permits” means all Permits required under any Environmental Law.

(iii)

Clean Air Act, the Occupational Safety and Health Act and their state counterparts, as each has been amended from time to time, and all regulations thereunder; (B) petroleum and petroleum products, including crude oil and any fractions thereof; (C) natural gas, synthetic gas, and any mixtures thereof; (D) lead, polychlorinated biphenyls, asbestos and radon; and (E) any substance, material or waste regulated as “hazardous,” “toxic,” “contaminant,” or “radioactive” or words of similar meaning or effect by any Governmental Authority pursuant to any Environmental Law.

(iv)

“Release” has the meaning set forth in Section 101(22) of CERCLA, but not subject to the exceptions in Subsection (A) of 42 U.S.C. §9601(22).]

Section 3.19

Company Material Contracts.

(a)

Except as set forth in Section 3.19(a) of the Company Disclosure Schedules, neither the Company nor any of its Subsidiaries is a party to or is bound by any Contract of the following nature (such Contracts as are required to be set forth in Section 3.19(a) of the Company Disclosure Schedules being “Company Material Contracts”):

(i)

any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company and its Subsidiaries (other than compensatory contracts with, or which include as participants, any current or former director or officer of the Company or any of its Subsidiaries); and

(ii)

(A) any Contract with any Related Party of the Company or any of the Company’s Subsidiaries, (B) any Contract from which any Related Party of the Company or any of the Company’s Subsidiaries derives any economic or financial benefit and (C) any Contract to which any Related Party of the Company or any of the Company’s Subsidiaries is a Party from which the Company derives any economic or financial benefit.

(b)

Except as would not reasonably be expected to have a Company Material Adverse Effect, (a) each Company Material Contract is a legal, valid, binding and enforceable agreement and is in full force and effect (except as such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity (regardless of whether considered in a proceeding in equity or at law), (b) except as set forth in Section 3.19(b) of the Company Disclosure Schedules, will continue to be in full force and effect on identical terms immediately following the Closing Date and (c) none of the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party is in breach or violation of, or (with or without notice or lapse of time or both) default under, in any material respect, any Company Material Contract, nor has the Company or any of its Subsidiaries received any claim of any such breach, violation or default.

Section 3.20

Affiliate Interests and Transactions.

(a)

To the Knowledge of the Company, except for Contracts, transactions and other arrangements that are solely among the Company and its wholly owned Subsidiaries, or that relate solely to employee compensation and/or benefits in the ordinary course of business, no equityholder, officer or director of the Company or any of its Subsidiaries or, to the Knowledge of the Company, any Related Party of the Company or any of its Subsidiaries: (i)

owns or has owned, directly or indirectly, or has or has had any interest in any property (real or personal, tangible or intangible) that the Company or any of its Subsidiaries uses or has used in or pertaining to the business of the Company or any of its Subsidiaries; (iii) has or has had any business dealings or a financial interest in any transaction with the Company or any of its Subsidiaries or involving any assets or property of the Company or any of its Subsidiaries, other than business dealings or transactions conducted in the ordinary course of business at prevailing market prices and on prevailing market terms; or (iv) except in the case of the officers or directors of the Company or any of its Subsidiaries, is or has been employed by the Company or any of its Subsidiaries.

(b)

Except as set forth in Section 3.20 of the Company Disclosure Schedules, there are no Contracts by and between the Company or any of its Subsidiaries, on the one hand, and any equityholder, officer or director of the Company or any of its Subsidiaries or any Related Party of the Company, on the other hand (“Intercompany Arrangements”).

(c)

There are no outstanding notes payable to, accounts receivable from or advances by the Company or any of its Subsidiaries to, and neither the Company nor any of its Subsidiaries is otherwise a debtor or creditor of, or has any liability or other obligation of any nature to, any equityholder, officer or director of the Company or any of its Subsidiaries or any Related Party of the Company or any of its Subsidiaries.

Section 3.21

Insurance. Section 3.21 of the Company Disclosure Schedules sets forth a true and complete list of all material casualty, directors’ and officers’ liability, general liability, product liability and all other types of insurance policies maintained with respect to the Company or any of its Subsidiaries, together with the carriers and liability limits for each such policy. To the Knowledge of the Company, (a) all such policies are in full force and effect and (b) all premiums with respect thereto have been paid to the extent due. The Company has not received notice of, nor to the Knowledge of the Company is there threatened, any cancellation, termination, reduction of coverage or material premium increases with respect to any such policy.

Section 3.22

Certain Payments. To the Knowledge of the Company, neither the Company nor any of its Subsidiaries (nor, to the Knowledge of the Company, their respective directors, executives, representatives, agents, Affiliates or employees) (a) has used or is using any corporate funds for any illegal contributions, gifts, entertainment or other unlawful expenses relating to political activity; (b) has used or is using any corporate funds for any direct or indirect unlawful payments to any foreign or domestic governmental officials or employees; (c) has violated or is violating any provision of the Foreign Corrupt Practices Act of 1977; (d) has established or maintained, or is maintaining, any unlawful fund of corporate monies or other properties; or (e) has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment of any nature.

Section 3.23

Material Suppliers and Customers. For purposes of this Section 3.23, (a) a “Major Supplier” shall mean any of the 20 largest vendors or other suppliers of goods or services to the Company and its Subsidiaries (as measured by aggregate amounts paid to such vendor or supplier during the 12-month period ended December 31, 2012); and (b) a “Major Customer” shall mean any of the 20 largest customers of the Company and its Subsidiaries, taken as a whole

as measured by the aggregate amount paid by such customer to the Company or any Subsidiary of the Company during the 12-month period ended December 31, 2012. Each Material Supplier and Material Customer of the Company is listed on Section 3.23 of the Company Disclosure Schedule. As of the date hereof, to the Knowledge of the Company, no Major Supplier or Major Customer has given the Company or any of its Subsidiaries written notice that it will or intends to terminate, limit or materially reduce its business relations with the Company or any of its Subsidiaries or adversely change in any material respect the terms on which it supplies merchandise to the Company or any of its Subsidiaries, or purchases products or services from the Company or any of its Subsidiaries.

Section 3.24

Inventory. Except as would not reasonably be expected to have a Company Material Adverse Effect, the inventories of the Company and each of its Subsidiaries, whether reflected on the consolidated balance sheet of the Company and its Subsidiaries or subsequently acquired, (a) are generally of a quality and quantity usable and/or salable at customary gross margins in the ordinary course of business, except for obsolete, damaged, defective or slow moving items that have been written off or written down to fair market value or for which adequate reserves have been established in accordance with GAAP, (b) are reflected on the consolidated balance sheet of the Company and its Subsidiaries and in the books and records of the Company and its Subsidiaries in accordance with GAAP applied on a basis consistent with past practice (except as described in the notes to the consolidated balance sheet of the Company and its Subsidiaries) and (c) are adequate for the conduct of the business of the Company and its Subsidiaries and inventory levels are not in excess of normal operating requirements of the Company and its Subsidiaries.

Section 3.25

Accounts Receivable. Except as would not reasonably be expected to have a Company Material Adverse Effect, (a) all accounts receivable reflected on the consolidated balance sheet of the Company and its Subsidiaries represent or will represent bona fide and valid obligations arising from sales actually made or services actually performed in the ordinary course of business of the Company and its Subsidiaries, (b) all accounts receivable of the Company and each of its Subsidiaries will be current and collectible net of the respective reserves shown on the consolidated balance sheet of the Company and its Subsidiaries (which reserves (i) are adequate and calculated consistent with past practice, and (ii) were established in accordance with GAAP) and (c) there is no contest, claim or right of set-off, other than returns in the ordinary course of business, under any Contract with any obligor of any accounts receivable related to the amount or validity of such accounts receivable.

Section 3.26

Accounts Payable. Except as would not reasonably be expected to have a Company Material Adverse Effect, all accounts payable and notes payable by the Company and its Subsidiaries to third parties have arisen in the ordinary course of business and no such account payable or note payable is delinquent more than 90 days in its payment as of the date hereof.

Section 3.27

Solvent Financial Condition. The Company, after giving effect to the transactions contemplated by the Purchase Agreement, this Agreement, the Amended and Restated Credit Agreements and the Ancillary Agreements, is Solvent. The Company and its Subsidiaries on a consolidating basis, after giving effect to the transactions contemplated by the

Purchase Agreement, this Agreement, the Amended and Restated Credit Agreements and the Ancillary Agreements, are Solvent.

Section 3.28

Brokers. No broker, investment banker, financial advisor or other Person, other than Bank of America Merrill Lynch, the fees and expenses of which will be paid by the Company, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company.

Section 3.29

Exclusivity of Representations. The representations and warranties made by the Company in this Article III are the exclusive representations and warranties made by the Company in this Agreement. The Company hereby disclaims any other express or implied representations or warranties with respect to itself.

Section 3.30

Disclosure. None of the information supplied or to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the Proxy Statement will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, provided that no representation is made by the Company with respect to statements made or incorporated by reference in the Proxy Statement based on information supplied by the Lenders for inclusion or incorporation by reference therein.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE LENDERS

Each Lender represents and warrants to the Company as follows:

Section 4.1

Organization and Qualification. Each Lender (i) is duly organized, validly existing and in good standing under the jurisdiction of its organization, (ii) has all requisite legal power and authority to own, lease and operate its properties and assets and to carry on its business as now conducted and (iii) is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties and assets occupied, owned, leased or operated by it or the nature of its business makes such qualification or licensing necessary, except, in the case of clauses (ii) and (iii), as has not had and would not reasonably be expected to have a Lender Material Adverse Effect.

Section 4.2

Authority and Power. Each Lender has the full legal power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which such Lender is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, and the execution, delivery and performance by such Lender of this Agreement and each of the Ancillary Agreements to which it will be a party and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action and no other proceedings on the part of such Lender are necessary to approve this Agreement, any Ancillary Agreement to which such Lender is a party and the consummation of the transactions contemplated hereunder and thereunder. This Agreement has been, and upon their execution each of the Ancillary Agreements to which each

Lender will be a party will have been, duly executed and delivered by such Lender and, assuming due execution and delivery by each of the other parties hereto and thereto, this Agreement constitutes, and upon their execution each of the Ancillary Agreements to which such Lender will be a party will constitute, the legal, valid and binding obligations of such Lender, enforceable against such Lender in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

Section 4.3

Investment Intent. Each Lender is acquiring the Warrants and the shares of Company Common Stock issued upon any exercise of the Warrants (the “Securities”) for its own account not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and no Lender has any present intention of selling, granting any participation in, or otherwise distributing the same. No Lender presently has any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Securities. No Lender has been formed for the specific purpose of acquiring the Securities.

Section 4.4

Securities. Each Lender understands that the Securities have not been, and will not be (unless registered pursuant to the Registration Rights Agreement, but subject to the terms and conditions set forth therein), registered under the Securities Act, and will be issued pursuant to an exemption from the registration provisions of the Securities Act. Each Lender understands that the Securities are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, such Lender must hold the Securities indefinitely, unless they are registered with the SEC and qualified by state authorities, or an exemption from such registration and qualification requirements is available. Each Lender acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Securities and requirements relating to the Company that are outside of such Lender’s control, and that the Company is under no obligation, and may not be able, to satisfy. None of the information supplied or to be supplied by or on behalf of any Lender for inclusion or incorporation by reference in the Proxy Statement will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.

Section 4.5

Investor Status. Each Lender is (i) an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act or (ii) a sophisticated investor, experienced in investing in securities of companies similar to the Company, is able to fend for itself, can bear the economic risk of its investment and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Securities.

Section 4.6

Brokers. Except for Perella Weinberg Partners, the fees and expenses of which will constitute Transaction Expenses (as defined in the Purchase Agreement) and will be paid by the Lenders at Closing in accordance with the terms of the Purchase Agreement, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or

commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Lenders, WorkflowOne or any of its Subsidiaries.

Section 4.7

Exclusivity of Representations. The representations and warranties made by each Lender in this Article IV are the exclusive representations and warranties made by such Lender in this Agreement. Each Lender hereby disclaims any other express or implied representations or warranties with respect to itself.

ARTICLE V

COVENANTS

Section 5.1

Proxy Statement; Company Shareholder Meeting.

(a)

As promptly as practicable after the date of this Agreement, the Company shall (i) prepare (with the Lenders’ Representative’s reasonable cooperation, subject to the last sentence of this Section 5.1(a)) and file with the SEC a proxy statement (as amended or supplemented from time to time, the “Proxy Statement”) to be sent to the Company’s shareholders relating to the special meeting of the Company’s shareholders (the “Company Shareholder Meeting”) to be held to consider (A) an amendment to the Company Code to opt-out of the Ohio Control Share Acquisition Act (the “Opt-Out Proposal”), (B) an amendment to the Company Code to authorize the Board of Directors to change the number of directors and fill any director’s office created by an increase in the number of directors (the “Director Authorization Proposal”), and (C) approval of the contemplated issuance of shares of Company Common Stock to the Second Lien Lenders upon exercise of the warrants issued to the Second Lien Lenders pursuant to this Agreement (the “Stock Issuance”), as required by Section 312.03 of the NYSE Listed Company Manual to authorize and approve the Stock Issuance (the “Issuance Proposal,” and together with the Opt-Out Proposal and the Director Authorization Proposal, the “Proposals”), and (ii) in connection therewith, set a record date for the Company Shareholder Meeting and commence a broker search pursuant to Rule 14a-13 of the Exchange Act in connection therewith. No filing, or amendment or supplement to, the Proxy Statement will be made by the Company without providing the Lenders’ Representative and its Representatives the reasonable opportunity to review and comment thereon, which such comments shall be given reasonable and good faith consideration by the Company. The Proxy Statement shall include a statement to the effect that the Board of Directors of the Company unanimously recommends (the “Company Board Recommendation”) that the Company’s shareholders vote in favor of the Proposals at the Company Shareholder Meeting. Neither the Board of Directors of the Company nor any committee thereof shall withhold, withdraw, qualify, amend or modify, or publicly propose or resolve to withhold, withdraw, qualify, amend or modify in a manner adverse to Holdings, the Company Board Recommendation. The Company shall (i) notify the Lenders’ Representative promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply the Lenders’ Representative with copies of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement and (ii) provide the Lenders’ Representative with reasonable opportunity to review and comment on the Company’s response to any such comments from the SEC and its staff (to which reasonable and good faith consideration shall be given by the Company). The Company will advise the Lenders’

Representative promptly after it receives notice of the time when the SEC has cleared the Proxy Statement for mailing. If any time prior to the Company Shareholder Meeting any information in the Proxy Statement (other than information that is supplied in writing by or on behalf of the Lenders’ Representative specifically for inclusion in the Proxy Statement) should be discovered by the Company to contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company shall promptly notify the Lenders’ Representative and an appropriate amendment or supplement describing such information shall promptly be filed with the SEC and, to the extent required under applicable Law, disseminated to the Company’s shareholders. If any time prior to the Company Shareholder Meeting any information in the Proxy Statement is supplied in writing by or on behalf of the Lenders’ Representative specifically for inclusion in the Proxy Statement should be discovered by the Lenders’ Representative to contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Lenders’ Representative shall promptly notify the Company and the appropriate amendment or supplement describing such information shall promptly be filed by the Company with the SEC and, to the extent required under applicable Law, disseminated to the Company’s shareholders. Notwithstanding the foregoing, the delivery of any such notice by the Company or the Lenders’ Representative, as applicable, and the filing of any such amendment or supplement shall not affect or be deemed to modify any representation or warranty made by any party hereunder or otherwise affect the remedies available hereunder to any party. Notwithstanding anything else contained herein to the contrary, the Lenders’ Representative hereby covenants and agrees to use its reasonable best efforts to provide the Company as promptly as practicable, all information related to the Lenders’ Representative, Holdings and the Lenders requested by the Company to prepare the Proxy Statement and any subsequent proxy statement or related filing, to respond to any comments from the SEC and its staff and to comply with rules and regulations of the Exchange Act in connection with obtaining the Company Shareholder Approval, including Schedule 14A of the Exchange Act, including financial statements of WorkflowOne and its Subsidiaries and information necessary to prepare pro forma statements.

(b)

The Company shall, as soon as reasonably practicable following the date of this Agreement, duly call, give notice of, convene and hold the Company Shareholder Meeting for the purposes of seeking the Company Shareholder Approval. The Company shall engage a nationally recognized proxy solicitation firm for the purposes of seeking the Company Shareholder Approval and shall instruct such firm to solicit proxies in a manner that is designed to obtain such approval within a timely solicitation period, taking into account all relevant facts and circumstances. The Company shall use its commercially reasonable efforts to solicit from its shareholders proxies to secure the Company Shareholder Approval. The Company shall keep the Lenders’ Representative updated with respect to proxy solicitation results as requested by the Lenders’ Representative. Once the Company Shareholder Meeting has been called and noticed, the Company shall not postpone or adjourn the Company Shareholder Meeting without the Lenders’ Representative’s consent (other than (i) in order to obtain a quorum of its shareholders or (ii) as reasonably determined by the Company to comply with applicable Law). If the Company Shareholder Approval is not obtained at the initial Company Shareholder Meeting, the Company shall resubmit a proposal to obtain the Company Shareholder Approval the next three

consecutive meetings of the Company’s shareholders (be they annual or special meetings) if the Company Shareholder Approval is not earlier obtained.

(c)

The Lenders’ Representative agrees that neither it nor any of its Representatives or any other Person acting on such party’s behalf will engage in solicitation or offering activities in connection with the Company Shareholder Meeting or the Stock Issuance in connection with the transactions contemplated by this Agreement in violation of the Securities Act or the Exchange Act.

Section 5.2

Working Capital.

(a)

Within 40 Business Days following the Closing Date, the Company shall prepare and deliver to the Lenders’ Representative a written statement setting forth a calculation of Working Capital.

(b)

The calculation of Working Capital delivered by the Company pursuant to Section 5.2(a) shall become final and binding on the 10th Business Day following delivery thereof, unless, prior to the end of such period, the Lenders’ Representative delivers to the Company written notice of its disagreement specifying the nature and amount of any dispute as to the Company’s calculation of Working Capital (the “Notice of Disagreement”).

(c)

During the 30-day period following delivery of a Notice of Disagreement, the parties shall negotiate in good faith to resolve the items specified in the Notice of Disagreement. Any disputed items resolved in writing within such 30-day period shall be final and binding with respect to such items, and if the Lenders’ Representative and the Company agree in writing on the resolution of each disputed item specified in the Notice of Disagreement and the calculation of Working Capital, the amounts so determined shall be final and binding on the parties for all purposes hereunder. If the Lenders’ Representative and the Company have not resolved all such differences by the end of such 30-day period, the Lenders’ Representative and the Company shall submit, in writing, to an independent public accounting firm (the “Independent Accounting Firm”), their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the calculation of Working Capital, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the calculation of Working Capital, which determination shall be final and binding on the parties for all purposes hereunder. The Independent Accounting Firm shall consider only those items and amounts in the Company’s calculation of Working Capital that are identified as being items and amounts to which the Lenders’ Representative and the Company have been unable to agree. In resolving any disputed item, the Independent Accounting Firm may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Independent Accounting Firm shall be KPMG LLP or, if such firm is unable or unwilling to act, such other independent public accounting firm as shall be agreed to in writing by the Lenders’ Representative and the Company, each acting reasonably. The Lenders’ Representative and the Company shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 30 days following the submission thereof. Judgment may be entered upon the written determination of the Independent Accounting Firm in accordance with Section 7.8 (the final determination of Working Capital as of the Closing Date,

as so determined pursuant to this Section 5.2, the “Final Working Capital”). In acting under this Agreement, the Independent Accounting Firm will be entitled to the privileges and immunities of an arbitrator.

(d)

The costs of any dispute resolution pursuant to Section 5.2(c), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be borne by Holdings and the Company in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the Representatives of each party incurred in connection with reviewing the calculation of Working Capital and any Notice of Disagreement pursuant to this Section 5.2(d) shall be borne by such party.

(e)

The Company and Holdings will afford the other party and its Representatives reasonable access, during normal business hours and upon reasonable prior notice, to the personnel, properties, books and records of Workflow One and its Subsidiaries and to any other information reasonably requested for purposes of preparing and reviewing the calculations contemplated by this Section 5.2. Each party shall authorize its accountants to disclose work papers generated by such accountants in connection with preparing and reviewing the calculations of Working Capital; provided, that such accountants shall not be obligated to make any work papers available except in accordance with such accountants’ disclosure procedures and then only after the non-client party has signed an agreement relating to access to such work papers in form and substance acceptable to such accountants.

(f)

Within three Business Days following the determination of the Final Working Capital as provided herein:

(i)

if the Final Working Capital is less than or is equal to the difference of (I) Target Working Capital minus (II) the Escrow Amount, then (x) the Company shall not be required to effect a voluntary prepayment of the first lien term loans outstanding pursuant to Section 3.1.1(a) of the Amended and Restated First Lien Credit Agreement, and (y) the entire principal amount of the Tranche B Second Lien Term Loans shall be surrendered to WorkflowOne and the Company, as co-obligors, and cancelled without consideration; and

(ii)

if the Final Working Capital exceeds the difference of (I) Target Working Capital minus (II) the Escrow Amount, then (x) the Company shall effect a voluntary prepayment of the first lien term loans outstanding pursuant to Section 3.1.1(a) of the Amended and Restated First Lien Credit Agreement in a principal amount (together with all accrued and unpaid interest on the amount so prepaid) equal to the lesser of such excess and $10,000,000, and (y) Tranche B Second Lien Term Loans shall be surrendered to WorkflowOne and the Company, as co-obligors, and cancelled without consideration in a principal amount equal to the excess, if any, of $10,000,000 over the principal amount of first lien term loans required to be prepaid pursuant to clause (x) of this Section 5.2(f)(ii), and the balance, if any, of the Tranche B Second Lien Term Loans shall remain outstanding and shall thereafter accrue interest in accordance with the Amended and Restated Second Lien Credit Agreement; and

(iii)

The Lenders’ Representative and the Company shall deliver to the Escrow Agent a joint written notice instructing the Escrow Agent to release to the Company the Escrow Amount.

Section 5.3

Additional Second Lien Debt Issuance. If the Company does not obtain the Company Shareholder Approval by the Determination Date, then an additional principal amount of $25,000,000 of Second Lien Loans, denominated as Tranche C Second Lien Term Loans, shall be issued to the Second Lien Lenders by the Company and WorkflowOne under the Amended and Restated Second Lien Credit Agreement.

Section 5.4

Lenders’ Representative.

(a)

Each Lender, by its execution of this Agreement, has consented to the appointment of Silver Point Capital, L.P. as the Lenders’ Representative with full power of substitution to act on behalf of the Lenders to the extent and in the manner set forth in this Agreement. Each Lender, by its execution of this agreement, further agrees that such agency and proxy are coupled with an interest and are therefore irrevocable without the consent of the Lenders’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of such Lender. All decisions, actions, consents and instructions by the Lenders’ Representative in accordance with this Agreement shall be binding upon all of the Lenders, and the Lenders shall have no right to object to, dissent from, protest or otherwise contest the same. The Company shall be entitled to rely on any such decision, action, consent or instruction of the Lenders’ Representative as being the decision, action, consent or instruction of the Lenders.

(b)

The Lenders’ Representative may resign at any time and may be removed for any reason or no reason by the vote or written consent of a majority of the Lenders, provided that promptly upon such removal the Lenders shall appoint a new Lenders’ Representative. Notice of such vote or a copy of the written consent appointing such new Lenders’ Representative shall be sent to the Company, such appointment to be effective upon the later of the date indicated in such consent or the date such consent is received by the Company.

(c)

Each Lender by execution of this Agreement releases the Lenders’ Representative from, agrees that the Lenders’ Representative shall not be liable to any Lender for, and further agrees to indemnify, pro rata in accordance with the principal amount of the loans held by such lenders at the time of such claim, the Lenders’ Representative against, any liability for any action taken or not taken by the Lenders’ Representative in its capacity as such, except for any liability of the Lenders’ Representative to a Lender for losses which such Lender may suffer from fraud, willful misconduct or gross negligence of the Lenders’ Representative in carrying out its duties hereunder.

(d)

In addition to the other powers and duties set forth in this Agreement, the Lenders’ Representative shall be authorized to cause the maintenance or liquidation of Holdings, the preparation and filing of any Tax Returns of Holdings, and the payment of any Taxes of Holdings, and to represent or cause Holdings to be represented in any Tax audits with respect to Holdings.

(e)

The Lenders’ Representative shall receive no compensation for carrying out its duties hereunder. Notwithstanding the foregoing, it is understood that an amount of cash equal to $600,000 will be held back at Holdings (the “Expense Account”) for purposes of paying or reimbursing the reasonable out-of-pocket costs and expenses incurred by the Lenders’ Representative in carrying out its duties under this Agreement.

(f)

The parties hereto acknowledge that immediately after the Equity Issuance, Holdings will be released from all Encumbrances under the Existing First Lien Credit Agreement and the Existing Second Lien Credit Agreement. In connection with such release, Holdings agrees that it shall transfer any cash remaining in the Expense Account to the Second Lien Lenders (pro rata in accordance with the principal amount of the loans held by such lenders immediately prior to the Closing) after all out-of-pocket costs and expenses incurred, or reasonably expected to be incurred, by the Lenders’ Representative in carrying out its duties under this Agreement have been paid; provided, that any payment of remaining cash to the Second Lien Lenders shall not be made prior to the six month anniversary of the Closing Date.

Section 5.5

Further Assurances. From time to time after the Closing, and for no further consideration, each of the parties shall, and shall cause its Affiliates to, execute, acknowledge and deliver such documents and instruments and take such other actions as may be necessary or desirable to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements.

Section 5.6

Public Announcements. Except as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system, each of the parties shall (a) consult with each other before issuing, and give each other a reasonable opportunity to review and comment upon, any press release or other public statements with respect to this Agreement and the transactions contemplated hereby and (b) not issue any such press release or make any public announcement without the prior consent of the Lenders’ Representative (in the case of the Company ) or the Company (in the case of each of the other parties), which consent shall not be unreasonably withheld, conditioned or delayed, provided that the Company shall only be required to consult with the Lenders’ Representative. The initial press release of the parties announcing the execution of this Agreement shall be a joint press release of the Company and Holdings in a form that is mutually agreed upon.

Section 5.7

Post-Closing Transfer. Within a reasonable period following the Closing, the Company shall use commercially reasonable efforts to cause WorkflowOne to transfer all of its material assets and liabilities to the Company, in the Company’s sole discretion, through an asset transfer or merger. Notwithstanding the foregoing, nothing contained herein shall require WorkflowOne to assign any of its Contracts to the Company if an attempted assignment thereof, without the consent of a third party thereto, would constitute a breach or default thereof, cause or permit the acceleration or termination thereof or in any way materially and adversely affect the rights of WorkflowOne thereunder. In the event that any such Contract of WorkflowOne cannot be so assigned without the consent of a third party, then the Company and WorkflowOne shall use their commercially reasonable efforts to obtain such consent (which, for the avoidance of doubt, shall not require the payment of any fees or incurrence of any expenses).

Section 5.8

Pre-Closing Tax Liabilities of Holdings. Each Second Lien Lender, severally but not jointly, agrees to indemnify the Company, pro rata in accordance with the principal amount of the loans held by such lenders at the time of such claim, against any breach by Holdings of its obligations pursuant to Section 6.2(a) of the Purchase Agreement to reimburse the Company for all Taxes of Holdings with respect to Pre-Closing Tax Periods (as defined in the Purchase Agreement) in an aggregate amount not to exceed $3,000,000; provided, that each Second Lien Lender, may, at its option, satisfy such lenders portion of such indemnity by transferring Second Lien Term Loans in satisfaction of such obligations, such that each dollar of transferred principal amount and each dollar of any accrued and unpaid interest on such principal amount shall satisfy a dollar of such Second Lien Lender’s obligation under this Section 5.8. The Company hereby agrees to accept any such transfer of Second Lien Term Loans in satisfaction on a dollar for dollar basis of the obligation of Holdings pursuant to Section 6.2(a) of the Purchase Agreement. The Company hereby permits each Second Lien Lender to assign its obligation under this Section 5.8 to any person who purchases Second Lien Loans pro rata in proportion to the amount of such Second Lien Loans purchased by such Person.

ARTICLE VI

CLOSING DELIVERABLES

Section 6.1

Closing Deliverables of the Company. At the Closing, the Company shall deliver, or cause to be delivered, to the Second Lien Lenders Warrant Agreements for each of the Second Lien Lenders, duly executed by an authorized officer of the Company.

Section 6.2

Closing Deliverable of the Second Lien Lenders. At the Closing, each Second Lien Lender shall deliver, or cause to be delivered to the Company, its Warrant Agreements, duly executed by an authorized officer of such Second Lien Lender.

ARTICLE VII

GENERAL PROVISIONS

Section 7.1

Amendment and Modification. This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment to this Agreement duly executed and delivered by each party; provided, that any such amendment, modification or supplement shall be binding on, and effective with respect to, all of the Lenders if it is in writing and signed by the Lenders’ Representative, on behalf of the Lenders, so long as such amendment, modification or supplement does not specifically affect any individual Lender in a disproportionately adverse manner.

Section 7.2

Section 7.3

Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile, upon written confirmation of receipt by facsimile, (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier, or (c) on the earlier of confirmed receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below or, with respect to the Lenders, to the address for the applicable Lender as set forth on Annexes A and B (as applicable), or pursuant to such other instructions as may be designated in writing by the party to receive such notice:

(i)

if to Holdings, Lender Representative or, prior to the

Closing, WorkflowOne, to:

c/o Silver Point Capital, L.P.

Two Greenwich Plaza, 1st Floor

Greenwich, Connecticut 06830

Attention (Facsimile): Anthony DiNello ((203) 542-4312)

Attention (Facsimile): Taylor Montague ((203) 542-4311)

Attention (Facsimile): Brad Tobin ((203) 542-4536)

with a copy (which shall not constitute notice) to:

Fried, Frank, Harris, Shriver & Jacobson LLP

One New York Plaza

New York, New York 10004

Attention: Christopher Ewan

William Reindel

David L. Shaw

Facsimile: (212) 859-4000

(ii)

if to the Company or, subsequent to the Closing,

WorkflowOne, to:

The Standard Register Company

600 Albany Street

Dayton, Ohio 45417

Facsimile: (937) 221-3431

Attention: General Counsel

with a copy (which shall not constitute notice) to:

Gibson, Dunn & Crutcher LLP

200 Park Avenue

New York, New York 10166

Attention: Barbara L. Becker

Facsimile: (212) 351-6202

Section 7.4

Interpretation. When a reference is made in this Agreement to a Section, Annex, Article, Exhibit or Schedule, such reference shall be to a Section, Annex, Article, Exhibit or Schedule of this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement or in any Annex, Exhibit or Schedule are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Any capitalized terms used in any Annex, Exhibit or Schedule, but not otherwise defined therein, shall have the meaning as defined in this Agreement. All Annexes, Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth herein. The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,” unless otherwise specified. All references to “dollars” or “$” or “US$” in this Agreement or any Ancillary Agreement refer to United States dollars, which is the currency used for all purposes in this Agreement and any Ancillary Agreement. Each party to this agreement acknowledges that it has been represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.

Section 7.5

Entire Agreement. This Agreement (including the Exhibits and Schedules), the Purchase Agreement, the Shareholders Agreement, the Registration Rights Agreement, the Warrant Agreements, the Amended and Restated Credit Agreements and the other Ancillary Agreements constitute the entire agreement, and supersede all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings between the parties with respect to the subject matter hereof and thereof. Notwithstanding any oral agreement or course of conduct of the parties or their Representatives to the contrary, no party to this Agreement shall be under any legal obligation to enter into or complete the transactions contemplated hereby unless and until this Agreement shall have been executed and delivered by each of the parties.

Section 7.6

Section 7.7

Section 7.8

State or federal court sitting in the Borough of Manhattan in The City of New York (or, if such court lacks subject matter jurisdiction, in any appropriate New York State or federal court), and each of the parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby. Each of the parties agrees not to commence any action, suit or proceeding relating thereto except in the courts described above in New York, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in New York as described herein. Each of the parties further agrees that notice as provided in Section 8.3 shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in New York as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (c) that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper, or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 7.9

Assignment; Successors. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by any party without the prior written consent of the other parties, and any such assignment without such prior written consent shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

Section 7.10

Section 7.11

to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

Section 7.12

Section 7.13

Survival of Representations and Warranties. None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Closing.

Section 7.14

Expenses. Except as provided in the Purchase Agreement, all costs and expenses incurred in connection with the transactions contemplated by this Agreement and the Ancillary Agreements shall be paid by the party incurring or required to incur such expenses.

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date above first written.

THE STANDARD REGISTER COMPANY

By: _________________________________

Name:

Title:

WORKFLOW HOLDINGS, LLC

By: /s/ Thomas J. Koenig

Name: Thomas J. Koenig

Title: Vice President and Chief Financial Officer

SILVER POINT CAPITAL, L.P.

By: /s/ Michael A. Gatto

Name: Michael A. Gatto

Title: Authorized Signatory

SILVER POINT FINANCE, LLC

By: /s/ Michael A. Gatto

Name: Michael A. Gatto

Title: Authorized Signatory

SPCP GROUP III LLC

By: /s/ Michael A. Gatto

Name: Michael A. Gatto

Title: Authorized Signatory

SPF CDO I, LTD.

By: /s/ Michael A. Gatto

Name: Michael A. Gatto

Title: Authorized Signatory

DLJ INVESTMENT PARTNERS, L.P.

By: DLJ IP II, LLC, as Managing General Partner

By: /s/ Charles Harper

Name: Charles Harper

Title: Managing Director

DLJ INVESTMENT PARTNERS II, L.P.

by DLJ IP II, LLC, as General Partner

By: /s/ Charles Harper

Name: Charles Harper

Title: Managing Director

DLJIP II HOLDINGS, L.P.

By: DLJ IP II, LLC, as General Partner

By: /s/ Charles Harper

Name: Charles Harper

Title: Managing Director

SPCP GROUP, LLC

By: /s/ Michael A. Gatto

Name: Michael A. Gatto

Title: Authorized Signatory

SILVER POINT CAPITAL FUND, L.P.

By: /s/ Michael A. Gatto

Name: Michael A. Gatto

Title: Authorized Signatory

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH

By: /s/ Vipul Dhadda

Name: Vipul Dhadda

Title: Authorized Signatory

By: /s/ Michael D’Onofrio

Name: Michael D’Onofrio

Title: Authorized Signatory

CREDIT SUISSE LOAN FUNDING LLC

By: /s/ Michael Wotanowski

Name: Michael Wotanowski

Title: Authorized Signatory

By: /s/ Leigh Dworkin

Name: Leigh Dworkin

Title: Authorized Signatory

SARGAS CLO II LTD

By: Pangaea CLO Management, LLC its

Collateral Manager

By: /s/ Glenn P. Cummins

Name: Glenn P. Cummins

Title: Treasurer

WG Horizons CLO I

By: West Gate Horizons Advisors LLC, as Manager

By: /s/J. Joy Jacob

Name: J. Joy Jacob

Title: Senior Credit Analyst

SPCP GROUP III LLC

By:

Name:

Title:

SPCP GROUP, LLC

By:

Name:

Title:

SPF CDO I, LTD

By:

Name:

Title:

Annex A

First Lien Lenders

Name and Address

SPCP Group, LLC

Two Greenwich Plaza, 1st FloorGreenwich, CT 06830

SPF CDO I, LTD

Two Greenwich Plaza, 1st FloorGreenwich, CT 06830

SPCP Group III LLC

Two Greenwich Plaza, 1st FloorGreenwich, CT 06830

Credit Suisse AG, Cayman Island Branch

Sudhir Shrotri

Vipul Dhadda

Larcy NavalEleven Madison Avenue

New York, NY 10010

Credit Suisse Loan Funding LLC

Jeannette Crespo, Tonya Mitchell7033 Louis Stephens DrivePO Box 110047Research Triangle Park, NC 27709

Sargas CLO II Ltd.

David Sharpe

Fortress Investment Group LLC1345 Avenue of the Americas, 23rd Floor

New York, NY 10105

WG Horizons CLO I

c/o West Gate Horizons Advisors LLC633 West 5th Street, Suite #6600Los Angeles, CA 90071

Annex B

Second Lien Lenders


Name and Address	Cancelled Second Lien Principal Amount	Number of Warrants
SPCP Group III LLC Two Greenwich Plaza, 1st FloorGreenwich, CT 06830
SPF CDO I, Ltd. Two Greenwich Plaza, 1st FloorGreenwich, CT 06830
SPCP Group, LLC Two Greenwich Plaza, 1st FloorGreenwich, CT 06830
DLJ Investment Partners, L.P. Credit Suissec/o Charles Harper11 Madison Avenue, Floor 16New York, NY 10010
DLJ Investment Partners II, L.P. Credit Suissec/o Charles Harper11 Madison Avenue, Floor 16New York, NY 10010
DLJIP II Holdings, L.P. Credit Suissec/o Charles Harper11 Madison Avenue, Floor 16New York, NY 10010
Silver Point Capital Fund, L.P. Greenwich PlazaGreenwich, CT 06830

Exhibit A

First Lien Credit Agreement

Exhibit B

Second Lien Credit Agreement

Exhibit C

Warrant Agreement

Exhibit D

Shareholders Agreement

Exhibit E

Accounting Principles

Except as otherwise set forth in this Exhibit E to this Agreement (the modification, adjustments and other principles set forth herein, the “Accounting Principles”), Working Capital shall be calculated in accordance with GAAP applied consistently with the preparation of the Financial Statements (as defined in the Purchase Agreement) as of and for the year ended December 31, 2012, and as modified by any exceptions noted in the Accounting Principles. Working Capital shall not include any purchase accounting or other adjustment arising out of the consummation of the transactions contemplated by this Agreement or the Ancillary Agreements. Working Capital shall be calculated by applying accounting principles relating to inventory valuation, accounts receivable reserves and inventory obsolescence in a manner consistent with the methodology used to calculate the applicable balance as of December 31, 2012. Accounts receivable and account payable shall exclude certain components of the consolidated general ledger accounts 1220 and 2011 relating to the net accrued receivables & related net costs historically referred to as “J order accrual report” and “iSeries pending billing report” in the associated account reconciliations, which shall be calculated in accordance with Schedule 1 attached hereto, by estimating the balances in a manner consistent with past practice. Capitalized terms used but not otherwise defined in this Exhibit E will have the same meanings ascribed to such terms in this Agreement (except as otherwise noted herein).

Definitions

“Accrued Chapter 11 Priority Tax Claims” means the priority tax claims incurred in connection to the Chapter 11 cases of Workflow Management, Inc., WF Holdings, Inc. and certain of their affiliates under the Bankruptcy Code as reflected in the consolidated general ledger account 2715 relating to accrued tax priority claims.

“Accrued Transaction Expenses” means any and all Transaction Expenses (as defined in the Purchase Agreement) incurred, or to be incurred, and unpaid as of immediately after the Closing (as defined in the Purchase Agreement); provided, however, that “Accrued Transaction Expenses” shall not include Transfer Taxes (as defined in the Purchase Agreement).

“Closing Cash” has the meaning ascribed to it in the Purchase Agreement.

“Closing Cash Adjustment” means the amount, which may be positive or negative, calculated as the Closing Cash actually delivered to the Company at Closing less the amount of Closing Cash required by Section 7.2(g) of the Purchase Agreement.

“Closing Indebtedness” means the Indebtedness of WorkflowOne and its Subsidiaries as of the Closing.

“Consolidated Current Assets” means, as of the opening of business on the Closing Date, the sum of all current assets of WorkflowOne and its Subsidiaries as determined in accordance with the Accounting Principles, and to the extent not inconsistent with the Accounting Principles, GAAP applied consistently with the application thereof in the preparation of the Latest Balance

Sheet; provided, however, that “Consolidated Current Assets” shall not include, in whole or in part:

Closing Cash,

Prepaid Management Fees,

Shareholder Notes Receivable, or

Accounts receivable owed by WorkflowOne to its Subsidiary or by WorkflowOne’s Subsidiary to WorkflowOne (as long as there are offsetting accounts payable owed by WorkflowOne’s Subsidiary to WorkflowOne or by WorkflowOne to its Subsidiary, as applicable, with the same balance as the accounts receivable).

Notwithstanding anything to the contrary herein, and it being acknowledged that the following is inconsistent with past practice, to the extent excluded from Closing Cash, outstanding checks, undeposited checks, checks deposited but not yet cleared, cash in transit and other lockbox items shall be included for purposes of calculating Working Capital.

“Consolidated Current Liabilities” means, as of the opening of business on the Closing Date, the sum of all current liabilities of the WorkflowOne and its Subsidiaries as determined in accordance with the Accounting Principles and, to the extent not inconsistent with the Accounting Principles, GAAP applied consistently with the application thereof in the preparation of the Latest Balance Sheet; provided, however, that “Consolidated Current Liabilities” (A) shall include (i) Unpaid Rep and Warranty Insurance, (ii) Severance Amount and (iii) Post Closing Transaction Expenses and (B) shall not include, in whole or in part:

Accrued Transaction Expenses,

Scheduled Post-Closing Transaction Expenses,

Closing Indebtedness, including the current portion of Closing Indebtedness and accrued interest,

Accounts payable owed by WorkflowOne to its Subsidiary or by WorkflowOne’s Subsidiary to WorkflowOne (as long as there are offsetting accounts receivable owed by WorkflowOne’s Subsidiary to WorkflowOne or by WorkflowOne to its Subsidiary, as applicable, with the same balance as the accounts payable),

any Employee Payments,

Related Party Expenses, or

Accrued Chapter 11 Priority Tax Claims.

Notwithstanding the foregoing, if the inclusion of Unpaid Rep and Warranty Insurance in “Consolidated Current Liabilities” contributes to Final Working Capital being less than the

difference of (A) Target Working Capital minus (B) the Escrow Amount, by an amount in excess of $5,000,000, then Unpaid Rep and Warranty Insurance shall not be considered as part of Consolidated Current Liabilities to the extent it contributed to such excess. In such a case, the portion of Unpaid Rep and Warranty Insurance that is not considered Consolidated Current Liabilities shall become due and payable by Holdings to the Company.

“Employee Payments” means any amounts payable pursuant to the transaction bonus agreements set forth on Schedule 3.27 of the Seller Disclosure Schedules to the Purchase Agreement.

“Latest Balance Sheet” means the audited consolidated balance sheet of Holdings and its Subsidiaries as of December 31, 2012, set forth in Schedule 2 hereto.

“Post Closing Transaction Expenses” means any and all Transaction Expenses (as defined in the Purchase Agreement) not paid in cash prior to or at Closing; provided, however, that “Post Closing Transaction Expenses” shall not include Accrued Transaction Expenses, Scheduled Post-Closing Transaction Expenses and Transfer Taxes (as defined in the Purchase Agreement).

“Prepaid Management Fees” means the sum of all fees paid to (x) Silver Point Capital, L.P. pursuant to the Management Services Agreement, dated as of March 2, 2011, by and between Holdings and Silver Point Capital, L.P. and (y) Perseus Partners VII, L.L.C. and Perseus WF Investment Fund Manager, L.L.C. (collectively, “Perseus”) pursuant to the Management Services Agreement, dated as of March 2, 2011, by and between Holdings and Perseus and, in each case, recognized as a prepaid asset on the Latest Balance Sheet.

“Related Party Expenses” means any notes or accounts payable to, or other amounts otherwise payable, due or owing to any equityholder of Holdings or any other Related Party of WorkflowOne or any of its Subsidiaries.

“Severance Amount” means the lesser of (i) $250,000 and (ii) 50% of the aggregate severance payments that are paid, or payable, to those persons set forth on Schedule 3 hereto as of the 40th Business Day following the Closing Date.

“Shareholder Notes Receivable” means all amounts owed by the equityholders of Holdings to WorkflowOne and its Subsidiaries, and recognized as a prepaid asset on the Latest Balance Sheet.

“Unpaid Rep and Warranty Insurance” means the lesser of (a) $375,000 and (b) fifty percent of the total amount paid in cash by the Company for the procurement of an insurance policy with respect to breaches of the representations and warranties of WorkflowOne and Holdings set forth in Article III of the Purchase Agreement, provided that such insurance policy is actually obtained by the Company within 30 days of the Closing and, upon Holdings’ request, the Company provides reasonable evidence of such insurance policy.

“Working Capital” means Consolidated Current Assets minus Consolidated Current Liabilities plus the Closing Cash Adjustment.

Schedule 1

J Order Accrual Report and

iSeries Pending Billing Report



	12/31/12	3/31/13	6/30/13
J-Order	$1,000	$850	$800
I-Series Pending Billing	1,907	2,150	3,536
J&I Series Component of G/L 1220	$2,907	$3,000	$4,336

J-Order	$650	$553	$520
I-Series Pending Billing	1,323	1,537	2,538
J&I Series Component of G/L 2011	$1,973	$2,090	$3,058

Schedule 2

Latest Balance Sheet



	12/31/12	3/31/13	6/30/13
Cash	$18,833	$22,048	$19,939
A/R	59,208	57,396	57,799
Inventory	22,654	22,633	22,877
Prepaid Assets	9,258	8,237	8,885
Total Current Assets	$109,953	$110,315	$109,500
Less: Cash	(18,833)	(22,048)	(19,939)
Less: Prepaid Management Fees	--	--	--
Less: Shareholder Note Receivable	--	--	(281)
Less: J&I Series Component of G/L 1220	(2,907)	(3,000)	(4,336)
Adjusted Current Assets	$88,212	$85,266	$84,944

A/P	$27,853	$28,878	$29,246
Comp + Fringe	10,350	11,040	9,773
Other Current Liabilities	8,136	6,756	7,033
Accrued Interest	39	149	111
Taxes	3,357	3,401	3,006
Total Current Liabilities	$49,734	$50,224	$49,169
Less: Accrued Interest Expense	(39)	(149)	(111)
Less: Accrued Chapter 11 Priority Tax Claims	(651)	(737)	(643)
Less: Accrued Transaction Expenses	(500)	(200)	(179)
Less: J&I Series Component of G/L 2011	(1,973)	(2,090)	(3,058)
Adjusted Current Liabilities	$46,571	$47,048	$45,178

Working Capital	$41,641	$38,218	$39,766

Schedule 3

Severance Amount

 Thomas J. Koenig

 Timothy A. Tatman

EX-10 7 ex102.htm EXHIBIT 10.2 Converted by EDGARwiz

Exhibit 10.2
EXECUTION VERSION

FIRST LIEN CREDIT AGREEMENT,

dated as of August 1, 2013,

among

THE STANDARD REGISTER COMPANY,

as the New Borrower,

WORKFLOWONE LLC,

as the Existing Borrower,

THE SUBSIDIARY GUARANTORS FROM TIME TO TIME PARTIES HERETO,

as the Subsidiary Guarantors,

VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS FROM TIME TO TIME
PARTIES HERETO,

as the Lenders,

and

SILVER POINT FINANCE, LLC,
as the Administrative Agent.

TABLE OF CONTENTS

Page

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

1.1

Defined Terms

1.2

Use of Defined Terms

1.3

Cross-References

1.4

Accounting and Financial Determinations

ARTICLE II

LOANS, CLOSING RATE AND NOTES

2.1

Loans

2.2

Closing Rate

2.3

Continuation and Conversion Elections

2.4

Funding

2.5

ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES

3.1

Repayments and Prepayments; Application

3.1.1

Repayments and Prepayments

3.1.2

Application

3.2

Interest Provisions

3.2.1

Rates

3.2.2

Post-Default Rates.

3.2.3

Payment Dates

3.3

Fees

3.3.1

Administrative Agent’s Fee

3.4

Nature and Extent of Each Borrower’s Liability.

3.4.1

Joint and Several Liability

3.4.2

Unconditional Nature of Liability

3.4.3

Partial Release of Liability for Obligations

3.4.4

Postponement of Subrogation, etc

ARTICLE IV

CERTAIN LIBO RATE AND OTHER PROVISIONS

4.1

LIBO Rate Lending Unlawful

4.2

Deposits Unavailable

4.3

Increased LIBO Rate Loan Costs, etc

4.4

Funding Losses

4.5

Increased Capital Costs

TABLE OF CONTENTS

(continued)

Page

4.6

Taxes

4.7

Payments, Computations; Proceeds of Collateral, etc

4.8

Sharing of Payments

4.9

Setoff

4.10

Replacement of Lenders

4.11

Change in Lending Office

ARTICLE V

CONDITIONS TO TERM LOAN AMENDMENT AND ASSUMPTION

5.1

Resolutions, etc

5.2

Consummation of Transactions

5.3

Delivery of Notes

5.4

Guarantees

5.5

Security Agreements

5.6

Mortgages

5.7

Intellectual Property Security Agreements

5.8

Filing Agent, etc

5.9

Intercreditor Agreements

5.10

Patriot Act Disclosures

5.11

Compliance with Warranties, No Default, etc

5.12

Legal Opinions

5.13

Insurance

5.14

Fees

5.15

No Litigation

5.16

Closing Certificate; Third Party Consents

5.17

Solvency Certificate

5.18

Know Your Customer

ARTICLE VI

REPRESENTATIONS AND WARRANTIES

6.1

Organization and Qualification

6.2

Power and Authority

6.3

Legally Enforceable Agreement

6.4

Capital Structure

6.5

Corporate Names

6.6

Business Locations; Agent for Process

TABLE OF CONTENTS

(continued)

Page

6.7

Priority of Liens

6.8

Solvent Financial Condition

6.9

Brokers

6.10

Governmental Approvals

6.11

Compliance with Applicable Laws

6.12

Litigation

6.13

No Defaults

6.14

Investment Company Act

6.15

Margin Stock

6.16

Security Documents

ARTICLE VII

COVENANTS

7.1

Affirmative Covenants

7.1.1

Visits and Inspections

7.1.2

Notices

7.1.3

Financial and Other Reporting

7.1.4

Landlord and Storage Agreements

7.1.5

Projections

7.1.6

Taxes

7.1.7

Compliance with Applicable Laws

7.1.8

Insurance

7.1.9

[Reserved].

7.1.10

Payment of Obligations

7.1.11

Preservation of Existence, Etc

7.1.12

Maintenance of Properties

7.1.13

Compliance with Terms of Leaseholds

7.1.14

Lien Searches

7.1.15

Material Contracts

7.1.16

Books and Records

7.1.17

Future Subsidiary Guarantors, Security, etc

7.1.18

Further Mortgages and Insurance

7.1.19

Valuations

7.1.20

Post-Closing Condition

iii

TABLE OF CONTENTS

(continued)

Page

7.2

Negative Covenants

7.2.1

Fundamental Changes

7.2.2

Disposition of Assets

7.2.3

Tax Consolidation

7.2.4

Accounting Changes

7.2.5

Organizational Documents

7.2.6

Restrictive Agreements

7.2.7

Conduct of Business

7.2.8

Liens

7.2.9

Indebtedness

7.2.10

Restricted Investments

7.2.11

Loans

7.2.12

Distributions; Upstream Payments.

7.2.13

Affiliate Transactions

7.2.14

Restrictions on Payment of Junior Financing

7.2.15

Amendments to Subordinated Indebtedness

7.2.16

Sale-Leaseback and Pension Obligations

7.2.17

Financial Condition and Operations

ARTICLE VIII

EVENTS OF DEFAULT

8.1

Listing of Events of Default

8.1.1

Non-Payment of Obligations

8.1.2

Misrepresentations

8.1.3

Non-Performance of Certain Covenants and Obligations

8.1.4

Non-Performance of Other Covenants and Obligations

8.1.5

Default on Other Indebtedness

8.1.6

Judgments

8.1.7

Change in Control

8.1.8

Bankruptcy, Insolvency, etc

8.1.9

Impairment of Security, etc

8.1.10

ERISA

8.2

Action if Bankruptcy

8.3

Action if Other Event of Default

TABLE OF CONTENTS

(continued)

Page

ARTICLE IX

THE ADMINISTRATIVE AGENT

9.1

Actions.

9.2

Exculpation

9.3

Successor

9.4

Loans by the Administrative Agent

9.5

Credit Decisions

9.6

Copies, etc

9.7

Reliance by Administrative Agent

9.8

Defaults

9.9

Posting of Approved Electronic Communications.

9.10

Proofs of Claim

9.11

Appointment of Designated Term Loan Agent

ARTICLE X

MISCELLANEOUS PROVISIONS

10.1

Waivers, Amendments, etc

10.2

Notices; Time

10.3

Payment of Costs and Expenses

10.4

Indemnification

10.5

Survival

10.6

Severability

10.7

Headings

10.8

Execution in Counterparts, Effectiveness, etc

10.9

Governing Law; Entire Agreement

10.10

Successors and Assigns

10.11

Sale and Transfer of Loans; Participations in Loans; Notes

10.12

Other Transactions

10.13

Forum Selection and Consent to Jurisdiction

10.14

Waiver of Jury Trial

10.15

Confidentiality.

10.16

Counsel Representation

10.17

Patriot Act

10.18

Authorization of Administrative Agent

10.19

Excess Cash Flow Payments

TABLE OF CONTENTS

(continued)

Page

ARTICLE XI CERTAIN COLLATERAL ADMINISTRATION

11.1

Insurance of Collateral; Condemnation Proceeds

11.2

Protection of Collateral

11.3

Defense of Title to Collateral

SCHEDULE I

Disclosure Schedule

SCHEDULE II

Percentages and Amounts; LIBOR Office; Domestic Office

EXHIBIT A

Form of Note

EXHIBIT B

Form of Continuation/Conversion Notice

EXHIBIT C

Form of Lender Assignment Agreement

EXHIBIT D

Form of Compliance Certificate

EXHIBIT E

Form of Subsidiary Guaranty

EXHIBIT F

Form of Pledge and Security Agreement

EXHIBIT G

Form of Mortgage

EXHIBIT H

Form of Lien Waiver

FIRST LIEN CREDIT AGREEMENT

THIS FIRST LIEN CREDIT AGREEMENT, dated as of August 1, 2013 (this “Agreement”), is among THE STANDARD REGISTER COMPANY (the “New Borrower”), an Ohio corporation with its chief executive office and principal place of business at 600 Albany Street, Dayton, Ohio 45417, WORKFLOWONE LLC (the “Existing Borrower” and collectively with the New Borrower, the “Borrowers”), a Delaware limited liability company, STANDARD REGISTER INTERNATIONAL, INC., an Ohio corporation (“SRI”), STANDARD REGISTER TECHNOLOGIES, INC., an Ohio corporation (“SRT”), IMEDCONSENT, LLC, a Delaware limited liability company (“iMed”) and WORKFLOWONE OF PUERTO RICO INC., a Delaware corporation (“WorkflowOne PR”; and together with SRI, SRT and iMed, each an “Initial Guarantor” and collectively together with any additional Subsidiaries of the New Borrower who become a party hereto as Subsidiary Guarantors, the “Subsidiary Guarantors” and collectively with the Borrowers, the “Credit Parties”); the various financial institutions and other Persons from time to time parties hereto and listed on the signature pages hereto and their respective successors and assigns and permitted assigns which become "Lenders" as provided herein (the “Lenders”) and SILVER POINT FINANCE, LLC, as the administrative agent (in such capacity, the “Administrative Agent”), for the Lenders.

W I T N E S S E T H:

WHEREAS, pursuant to that certain Membership Interest Purchase Agreement, dated as of August 1, 2013 (the “Purchase Agreement”), between the New Borrower, Workflow Holdings, LLC, a Delaware limited liability company (the “Seller”) and the Existing Borrower, the New Borrower is directly acquiring, concurrently with the date hereof (the “Acquisition”), 100% of the issued and outstanding membership interests of the Existing Borrower from the Seller on the terms and conditions set forth in the Purchase Agreement;

WHEREAS, the Existing Borrower has entered into that certain First Lien Credit Agreement, dated as of March 2, 2011 (as amended from time to time through the date hereof, the “Existing WorkflowOne First Lien Credit Agreement”), between the Existing Borrower, as borrower, the other obligors parties thereto, the various financial institutions and other Persons from time to time parties thereto in their capacities as lenders thereunder (the “Existing WorkflowOne First Lien Lenders”), and Silver Point Finance, LLC (as successor on the Closing Date to The Bank of New York Mellon), as administrative agent thereunder (the “Existing First Lien Agent”), pursuant to which, in accordance with the Plan (as defined therein), the Existing WorkflowOne First Lien Lenders received the loans described in Section 2.1 of the Existing WorkflowOne First Lien Credit Agreement by operation of the Plan and Confirmation Order described in the Existing WorkflowOne First Lien Credit Agreement (such loans, the “Existing First Lien Term Loans”);

WHEREAS, the Existing Borrower has also entered into that certain Second Lien Credit Agreement, dated as of March 2, 2011 (as amended from time to time through the date hereof, the “Existing WorkflowOne Second Lien Credit Agreement”), between the Existing Borrower, as borrower, the other obligors parties thereto, the various financial institutions and other Persons from time to time parties thereto in their capacities as lenders thereunder (the “Existing

WorkflowOne Second Lien Lenders”), and Silver Point Finance, LLC, as administrative agent thereunder (the “Existing Second Lien Agent” and, together with the Existing First Lien Agent, the “Existing Term Agents”), pursuant to which, in accordance with the Plan, the Existing WorkflowOne Second Lien Lenders received, among other consideration, the term A loans and term B loans described in Section 2.1 of the Existing WorkflowOne Second Lien Credit Agreement by operation of the Plan described in the Existing WorkflowOne Second Lien Credit Agreement (such loans, the “Existing Second Lien Term Loans”);

WHEREAS, immediately prior to the Acquisition, the Existing Workflow One Second Lien Lenders, as holders of the Existing Second Lien Term Loans of the Existing Borrower outstanding under the Existing WorkflowOne Second Lien Credit Agreement will, pursuant to the Initial Closing Date Second Lien Term Loan Amendment Agreement, dated as of the date hereof (the “Initial Closing Date Second Lien Term Loan Amendment Agreement”), cancel, for no consideration, a portion of the outstanding principal amount (including unpaid interest and capitalized interest thereon) of the Existing Second Lien Term Loans then outstanding as set forth in the Initial Closing Date Second Lien Term Loan Amendment Agreement (such cancellation pursuant to the Initial Closing Date Second Lien Term Loan Amendment, the “Initial Existing Second Lien Term Loan Cancellation”), pro rata in accordance with the principal amount of the loans held by the Existing Workflow One Second Lien Lenders;

WHEREAS, pursuant to that certain Amendment and Restatement Agreement, dated as of the date hereof (the “Term Loan Amendment Agreement”), between the Seller, the Existing WorkflowOne First Lien Lenders, the Existing WorkflowOne Second Lien Lenders, the New Borrower, Silver Point Capital, L.P., as representative of the Existing WorkflowOne First Lien Lenders and the Existing WorkflowOne Second Lien Lenders and the Existing Term Agents, the Existing Borrower will repay all accrued and unpaid interest and a portion of the principal amount of the Existing First Lien Term Loans outstanding under the Existing WorkflowOne First Lien Credit Agreement (such prepayment, the “Permitted Pre-Closing Existing First Lien Loan Prepayment”);

WHEREAS further pursuant to the Term Loan Amendment Agreement, immediately after the Acquisition, the Existing Workflow One Second Lien Lenders as holders of the Existing Second Lien Term Loans of the Existing Borrower remaining outstanding under the Existing WorkflowOne Second Lien Credit Agreement after the Initial Existing Second Lien Term Loan Cancellation will further cancel an additional portion of the principal amount of Existing Second Lien Term Loans of the Existing Borrower outstanding under the Existing WorkflowOne Second Lien Credit Agreement (such additional cancelled principal amount, the “Post Closing Cancelled Second Lien Principal Amount”), pro rata in accordance with the principal amount of such loans held by the Existing Workflow One Second Lien Lenders, in exchange for warrants issued to such Existing Workflow One Second Lien Lenders (such cancellation and issuance the “New Borrower Warrant Transfer”). The Post Closing Cancelled Second Lien Principal Amount will be equal to the average closing price of New Borrower common stock on the NYSE for the three trading days ending on the day prior to the Closing Date (as defined herein) multiplied by the total number of shares of New Borrower common stock underlying the warrants issued to the Existing Workflow One Second Lien Lenders pursuant to the Term Loan Amendment;

WHEREAS, further pursuant to the Term Loan Amendment Agreement, immediately following the New Borrower Warrant Transfer, the parties hereto will enter into this Agreement, pursuant to which the principal amount of the Existing First Lien Term Loans of the Existing Borrower remaining outstanding on the Closing Date under the Existing WorkflowOne First Lien Credit Agreement after the Permitted Pre-Closing Existing First Lien Loan Prepayment (i) will remain outstanding as first lien term loans of equal principal amount of the Existing Borrower, (ii) will be assumed by the New Borrower as co-obligor hereunder, (iii) will be guaranteed (or continued to be guaranteed in the case of WorkflowOne PR) by each of the Initial Guarantors pursuant to the Subsidiary Guaranty, and (iv) will be amended and restated to be on the terms set forth under this Agreement pursuant to the Term Loan Amendment Agreement. The transactions referred to in clauses (i) through (iv) are referred to herein as the “First Lien Amendment and Assumption”;

WHEREAS, further pursuant to the Term Loan Amendment Agreement, concurrently with the First Lien Amendment and Assumption, the Borrowers, the Subsidiary Guarantors, the various financial institutions listed on the signature pages thereto and their respective successors and assigns and permitted assigns which become Second Lien Lenders and Silver Point Finance, LLC, as the Second Lien Administrative Agent for the Second Lien Lenders will enter into a Second Lien Credit Agreement, dated the date hereof, pursuant to which the principal amount of the Existing Second Lien Term Loans of the Existing Borrower remaining outstanding on the Closing Date under the Existing WorkflowOne Second Lien Credit Agreement after the Initial Existing Second Lien Term Loan Cancellation and the New Borrower Warrant Transfer (i) will remain outstanding under the Second Lien Credit Agreement as second lien term loans of equal principal amount of the Existing Borrower, (ii) will be assumed by the New Borrower as co-obligor under the Second Lien Credit Agreement, (iii) will be guaranteed (or continued to be guaranteed in the case of WorkflowOne PR) by each of the Initial Guarantors pursuant to the Second Lien Loan Documents, and (iv) will be amended and restated to be on the terms set forth under the Second Lien Credit Agreement pursuant to the Term Loan Amendment Agreement. The transactions referred to in clauses (i) through (iv) are referred to herein as the “Second Lien Amendment and Assumption”). The First Lien Amendment and Assumption together with the Second Lien Amendment and Assumption are referred to herein as the “Term Loan Amendment and Assumption” and the consummation of the Term Loan Amendment and Assumption is referred to here as the “Closing”;

WHEREAS, the Existing Borrower, together with each Subsidiary Guarantor of the New Borrower, which is or hereafter becomes a party hereto as a Subsidiary Guarantor, is or will be affiliated, is or will be engaged in interrelated businesses, and is or will derive substantial direct and indirect benefit from extensions of credit to the New Borrowers pursuant to this Agreement.

NOW, THEREFORE, the parties hereto agree as follows.

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

1.1

Defined Terms. The following terms (whether or not underscored) when used in this Agreement, including its preamble and recitals, shall, except where the context otherwise

requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof):

“ABL Administrative Agent” means the administrative agent designated as such from time to time under the ABL Credit Agreement.

“ABL Availability” means on any date, the principal amount of loans that the New Borrower and its Subsidiaries are entitled to borrow on such date under the ABL Credit Agreement.

“ABL Bank Product Obligations” has the meaning ascribed to the term “Bank Product Obligations” (or such corresponding term) in the ABL Credit Agreement.

“ABL Claimholders” has the meaning ascribed to that term (or such corresponding term) as defined in the ABL/Term Loan Intercreditor Agreement.

“ABL Credit Agreement” means the Amended and Restated Loan and Security Agreement, dated as of August 1, 2013, between the Borrowers, the other Subsidiary Guarantors parties thereto in their capacities as borrowers under the ABL Credit Agreement, the lenders party thereto in their capacities as lenders thereunder and Bank of America, N.A., as administrative agent, as such agreement may in accordance herewith be amended, restated, amended and restated, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise, and whether provided under the ABL Credit Agreement or other customary asset based credit agreements or otherwise, unless such agreement or instrument expressly provides that it is not intended to be and is not an ABL Credit Agreement hereunder). Any reference to the ABL Credit Agreement hereunder shall be deemed a reference to any ABL Credit Agreement then in existence.

“ABL Documents” has the meaning ascribed to the term “Loan Documents” (or such corresponding term) as defined in the ABL Credit Agreement, as the same may be amended, restated, supplemented, waived, otherwise modified, extended, renewed, refinanced or replaced from time to time.

“ABL Facility” means the collective reference to the ABL Documents, any notes, guarantees, collateral documents and account control agreements, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings or refinancings thereof.

“ABL Lender” has the meaning ascribed to the term “Lender” (or such corresponding term) as defined under the ABL Credit Agreement.

“ABL Letters of Credit” has the meaning ascribed to the term “Letter of Credit” (or such corresponding term) as defined under the ABL Credit Agreement.

“ABL Loans” has the meaning ascribed to the term “Loans” (or such corresponding term) as defined in the ABL Credit Agreement.

“ABL Obligations” has the meaning ascribed to the term “Obligations” (or such corresponding term) as defined in the ABL Credit Agreement.

“ABL Priority Collateral” has the meaning set forth in the ABL/Term Loan Intercreditor Agreement.

“ABL/Term Loan Intercreditor Agreement” means the Intercreditor Agreement, dated the date hereof, executed and delivered by the Administrative Agent, the Second Lien Administrative Agent, the ABL Administrative Agent and the Credit Parties, pursuant to the terms of this Agreement, as amended, restated, supplemented, amended and restated, replaced or otherwise modified from time to time.

“Acquired Entity or Business” is defined in the definition of “Pro Forma Basis”.

“Acquisition” is defined in the recitals hereto.

“Additional Mortgage” means each mortgage, deed of hypothec, debenture, pledge, deed of trust or agreement executed and delivered by any Credit Party in favor of the Administrative Agent for the benefit of the Secured Parties pursuant to the requirements of this Agreement substantially in the form set forth in Exhibit G hereto (with such changes as are reasonably satisfactory to the Administrative Agent), under which a Lien is granted on the real property and fixtures described therein, in each case as amended, supplemented, amended and restated or otherwise modified from time to time.

“Adjusted Net Earnings” means, with respect to any fiscal period, the consolidated net income (or loss) for such fiscal period of the New Borrower, all as reflected on the financial statement of the New Borrower supplied to the Lenders pursuant to Section 7.1.3 hereof, but excluding:

(i)

any income or loss arising from the sale of capital assets outside the Ordinary Course of Business;

(ii)

any income arising from any write-up of assets during such period;

(iii)

income or loss of any Subsidiary accrued prior to the date it became a Subsidiary;

(iv)

income or loss of any Person, substantially all the assets of which have been acquired in any manner by the New Borrower, realized by such Person prior to the date of such acquisition;

(v)

income or loss of any entity (other than a Subsidiary Guarantor of the New Borrower) in which the New Borrower has an ownership interest unless such income has actually been received by the New Borrower in the form of cash Distributions;

(vi)

any portion of the income of any Subsidiary which for any reason is unavailable for payment of Distributions to a Borrower or a Subsidiary Guarantor;

(vii)

any income or loss arising from extraordinary items, all as determined in accordance with GAAP; and

(viii)

the non-cash effects of adjustments in New Borrower’s consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to the Acquisition.

Notwithstanding the foregoing, for purposes of calculating Adjusted Net Earnings, Inventory shall be accounted for on a first in, first out basis.

“Administrative Agent” is defined in the preamble and includes each other Person appointed as the successor Administrative Agent pursuant to Section 9.3.

“Affected Lender” is defined in Section 4.10.

“Affiliate” of any Person means any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person. “Control” of a Person means the power, directly or indirectly,

(a)

to vote 10% or more of the Capital Securities (on a fully diluted basis) of such Person having ordinary voting power for the election of directors, managing members or general partners (as applicable); or

(b)

to direct or cause the direction of the management and policies of such Person (whether by contract or otherwise).

“Agreement” means, on any date, this First Lien Credit Agreement as originally in effect on the Closing Date and as thereafter from time to time amended, supplemented, amended and restated or otherwise modified from time to time and in effect on such date.

“AHYDO Catch-Up Mandatory Payment” means a payment to the extent required to prevent indebtedness under the Second Lien Credit Agreement from being treated as an “applicable high-yield discount obligation” within the meaning of Section 163(i)(1) of the Code and so that such indebtedness shall be treated as not having “significant original issue discount” within the meaning of Section 163(i)(2) of the Code.

“All-In Yield” means, as to any Indebtedness, the yield thereof, whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors; provided that original issue discount and upfront fees shall be equated to interest rate assuming a four (4)-year life to maturity; provided further that the All-In Yield shall not include arrangement fees, structuring fees or other similar fees payable in connection therewith that are not shared generally with lenders of such Indebtedness.

“Allowed Acquisition Addbacks” means, with respect to any Permitted Acquisition, including the Acquisition, those expenses incurred by the New Borrower and/or the Target directly relating to the Permitted Acquisition, without duplication (e.g., legal, advisory fees, other non-recurring fees and expenses), as calculated in good faith by the chief financial officer of the New Borrower and approved by the Administrative Agent (such approval not to be

unreasonably withheld); provided that such expenses relating to the Acquisition are incurred with 180 days of the Closing Date.

“Allowed Integration Costs” means those expenses incurred by the New Borrower and its Subsidiaries (including the Existing Borrower) directly relating to (i) the consolidation of the respective businesses of the New Borrower and the Existing Borrower following the Acquisition, and (ii) any other business restructuring or integration initiative implemented by the New Borrower and unrelated to a Permitted Acquisition, in each case, including but not limited to severance costs, lease terminations and plant moving costs, all as calculated in good faith by the chief financial officer of the New Borrower.

“Alternate Base Rate” means, on any date and with respect to all Base Rate Loans, a fluctuating rate of interest per annum (rounded upward, if necessary, to the next highest 1/16 of 1%) equal to the higher of

(a)

the greater of (I) 1.50% per annum and (II) the greater of (x) the Base Rate in effect on such day and (y) the Federal Funds Rate in effect on such day plus ½ of 1%; and

(b)

the LIBO Rate (Reserve Adjusted) for an Interest Period of one (1) month plus 1.00%.

Changes in the rate of interest on that portion of any Loans maintained as Base Rate Loans will take effect simultaneously with each change in the Alternate Base Rate.

“Applicable Law” means, with respect to any Person, all laws, rules, regulations and legally binding governmental guidelines applicable to the Person and its Property, conduct, transaction, agreement or matter in question, including all applicable statutory law and common law, and all provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities (having the force of law) and such Person’s Organic Documents.

“Applicable Margin” means, with respect to (1) all Loans maintained as LIBO Rate Loans, 7.00%, and (2) all Loans maintained as Base Rate Loans, 6.00%.

“Approved Fund” means any Person (other than a natural Person) that (a) is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business, and (b) is administered or managed by a Lender, an Affiliate of a Lender or a Person or an Affiliate of a Person that administers or manages a Lender.

“Approved Insurer” means any independent insurer with a minimum general policyholder rating of “A” and a minimum financial rating of “7” published in Best’s Key Rating Guide and/or Best’s Insurance Reports issued by the A. M. Best Company or any successor nationally recognized rating organization.

owned by the New Borrower or a Subsidiary, including any sale of any Capital Securities of any Subsidiary). Notwithstanding the foregoing, the term “Asset Sale Prepayment Event” shall not include any (a) transaction permitted by Section 7.2.2, other than transactions permitted by Section 7.2.2(vii), or (b) the Disposition of ABL Priority Collateral (as defined in the ABL/Term Loan Intercreditor Agreement); provided, that this clause (b) shall only apply prior to a Discharge of ABL Obligations (as defined in the ABL/Term Loan Intercreditor Agreement).

“Assignee Lender” means each future Lender which signs a Lender Assignment Agreement pursuant to Section 10.11.

“Authorized Officer” means, relative to any Credit Party, those of its officers, general partners or managing members (as applicable) whose signatures and incumbency shall have been certified to the Administrative Agent pursuant to Section 5.1(b).

“Base Rate” means, at any time, an annual rate equal to the rate of interest in effect for such day as publicly announced from time to time by JPMorgan Chase as its “prime rate” for Dollars loaned in the United States. The “prime rate” is a rate set by JPMorgan Chase based upon various factors including JPMorgan Chase’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.

“Base Rate Loan” means a Loan bearing interest at a fluctuating rate determined by reference to the Alternate Base Rate.

“Borrowers” is defined in the preamble.

“Borrower’s Knowledge” means the knowledge of the Chief Financial Officer, Chief Executive Officer, Corporate Controller, or Senior Manager of Treasury Operations of the New Borrower.

“Business Day” means (a) any day which is neither a Saturday nor Sunday nor a legal holiday on which banks are authorized or required to be closed in New York, New York and (b) relative to the making, continuing, prepaying or repaying of any LIBO Rate Loans, any day which is a Business Day described in clause (a) above, and which is also a day on which dealings in Dollars are carried on in the London interbank Eurodollar market.

“Capital Expenditures” means, for any period, the aggregate amount of all expenditures of the New Borrower and its Subsidiaries for fixed or capital assets made during such period which, in accordance with GAAP, would have been (or in accordance with GAAP, should be) classified as capital expenditures, including the capitalized portion of any Capitalized Lease Liabilities (determined in accordance with GAAP) incurred by the New Borrower and its Subsidiaries during such period.

“Capital Securities” means, with respect to any Person, all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of such Person’s capital (including all capital stock, partnership, membership or other equity interests in such Person), whether now outstanding or issued after the Closing Date and whether or not certificated.

“Capitalized Lease Liabilities” means, with respect to any Person, all monetary obligations of such Person and its Subsidiaries under any leasing or similar arrangement which have been (or, in accordance with GAAP, should be) classified as capitalized leases, and for purposes of each Loan Document the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP, and the stated maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a premium or a penalty.

“Cash Equivalent Investment” means, at any time: (i) marketable direct obligations issued or unconditionally guaranteed by the United States government and backed by the full faith and credit of the United States government having maturities of not more than 12 months from the date of acquisition; (ii) domestic certificates of deposit and time deposits having maturities of not more than 12 months from the date of acquisition, bankers’ acceptances having maturities of not more than 12 months from the date of acquisition and overnight bank deposits, in each case issued by any commercial bank organized under the laws of the United States, any state thereof or the District of Columbia, which at the time of acquisition are rated A-1 (or better) by S&P or P-1 (or better) by Moody’s, and (unless issued by a Lender) not subject to offset rights in favor of such bank arising from any banking relationship with such bank; (iii) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (i) and (ii) entered into with any financial institution meeting the qualifications specified in clause (ii) above; and (iv) commercial paper having at the time of investment therein or a contractual commitment to invest therein a rating of A-1 (or better) by S&P or P-1 (or better) by Moody’s, and having a maturity within 9 months after the date of acquisition thereof.

“Casualty Event” means, with respect to any Collateral, any loss of or damage to, or any condemnation or other taking by a Governmental Authority of property for which such Collateral for which the New Borrower or any of its Subsidiaries receives insurance proceeds, or proceeds of a condemnation award or other compensation. Notwithstanding the foregoing, the term “Casualty Event” shall not include any transaction permitted by Section 7.2.2, other than transactions permitted by Section 7.2.2(vii).

“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.

“CFC Holdco” means a Subsidiary that has no material assets other than the stock of one or more Foreign Subsidiaries that are “controlled foreign corporations” within the meaning of Section 957(a) of the Code.

“Change in Control” means the occurrence of any of the following events after the date of this Agreement: (a) any Person or group (other than the Permitted Holders) shall own beneficially (as defined in Rule 13d-3 of the SEC under the Exchange Act or any successor provision thereto) more than 50% of the aggregate Voting Power of the New Borrower, (b) any “Change in Control” or similar event or circumstance, however defined or designated, under any agreement or document governing any Indebtedness with an aggregate principal amount in excess of $5,000,000 outstanding shall occur; (c) the first day on which a majority of the members of the Board of Directors of the New Borrower are not Continuing Directors; or (d) the

sale of all, or substantially all, the assets of the New Borrower (on a consolidated basis) to any other Persons.

“Closing” is defined in the recitals hereto.

“Closing Date” means the date of the consummation of the Acquisition pursuant to the Purchase Agreement.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Collateral” means all of the Property and interests in Property described in any of the Security Documents as security for the payment or performance of any of the Obligations, subject to the terms of the Intercreditor Agreements.

“Communications” is defined in clause (a) of Section 9.9.

“Compliance Certificate” means a certificate duly completed and executed by an Authorized Officer of the New Borrower, substantially in the form of Exhibit D hereto, together with such changes thereto as the Administrative Agent may (acting at the written request of the Required Lenders) from time to time request for the purpose of monitoring the New Borrower’s compliance with the financial covenants contained herein.

“Consolidated Total Debt” means as of any date of determination, the aggregate principal amount of Indebtedness of the New Borrower and its Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (in any event, to be determined without deducting original issue or other discount which would reduce the amount of Indebtedness on the consolidated balance sheet of the New Borrower), consisting of Indebtedness for borrowed money, Capitalized Lease Obligations and debt obligations evidenced by promissory notes or similar instruments, and including interest on any Indebtedness, including the Second Lien Loans which has been capitalized as principal thereto, but excluding, for avoidance of doubt, (i) the total current and long term accrued pension liability as reflected on the consolidated balance sheet of the New Borrower and its Subsidiaries (ii) the aggregate principal amount (including any capitalized interest) of Term C Second Lien Loans issued pursuant to Section 5.3 of the Term Loan Amendment Agreement and Section 2.1(b) of the Second Lien Credit Agreement and (iii) Indebtedness referred to under clause (f)(ii) of Section 7.2.9.

“Contingent Liability” means any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness (or, solely for purposes of the definition of Investment, other obligations) of any other Person (other than by endorsements of instruments in the course of collection), or guarantees the payment of dividends or other distributions upon the Capital Securities of any other Person. The amount of any Person’s obligation under any Contingent Liability shall (subject to any limitation set forth therein) be deemed to be the outstanding principal amount of the debt, obligation or other liability guaranteed thereby.

“Continuation/Conversion Notice” means a notice of continuation or conversion and certificate duly executed by an Authorized Officer of the New Borrower, substantially in the form of Exhibit B hereto.

“Continuing Director” means, at any date, an individual (a) who is a member of the Board of Directors of the New Borrower on the date hereof, (b) who, as at such date, has been a member of such Board of Directors for at least the twelve preceding months, or (c) who has been nominated to be a member of such Board of Directors by a majority of the other Continuing Directors then in office.

“Controlled Group” means all members of a controlled group of corporations and all members of a controlled group of trades or businesses (whether or not incorporated) under common control which, together with the New Borrower, are treated as a single employer under Section 414(b) or 414(c) of the Code or Section 4001 of ERISA.

“Covered Plans” is defined in the definition of “EBITDAP”.

“Copyright Security Agreement” means any Copyright Security Agreement executed and delivered by any Credit Party in substantially the form of Exhibit C to the Security Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time.

“Credit Parties” means the collective reference to the Borrowers and the Subsidiary Guarantors.

“Debt Incurrence Prepayment Event” means any issuance or incurrence by the New Borrower or any of its Subsidiaries of any Indebtedness (but excluding any Indebtedness permitted to be issued or incurred under Section 7.2.9).

“Default” means any Event of Default or any condition, occurrence or event which, after notice or lapse of time or both, would constitute an Event of Default.

“Deferred Net Cash Proceeds” is defined in the definition of “Net Cash Proceeds”.

“Deposit Accounts” means all of a Person’s demand, time, savings, passbook, money market or other depository accounts, and all certificates of deposit, maintained by such Person with any bank, savings and loan association, credit union or other depository institution.

“Designated Term Loan Agent” has the meaning ascribed to that term (or such corresponding term) as defined in the ABL/Term Loan Intercreditor Agreement.

“Disclosure Schedule” means the Disclosure Schedule attached hereto as Schedule I, as it may be amended, supplemented, amended and restated or otherwise modified from time to time by the New Borrower with the written consent of the Required Lenders.

(including accounts receivable and Capital Securities of Subsidiaries) to any other Person (other than to another Credit Party) in a single transaction or series of transactions.

“Disqualified Capital Securities” means any Capital Securities which, by its terms (or by the terms of any security or other Capital Securities into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change in control or asset sale so long as any right of the holders thereof upon the occurrence of a change in control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are then accrued and payable), in each case, prior to the date that is ninety-one (91) days after the Stated Maturity Date, (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, prior to the date that is ninety-one (91) days after the Stated Maturity Date, except as a result of a change in control or an asset sale or the death, disability, retirement, severance or termination of employment or service of a holder who is an employee or director of Holdings or a Subsidiary, in each case so long as any such right of the holder (1) is not effective during the continuance of an Event of Default and is not effective to the extent that such redemption would result in a Default or an Event of Default or (2) is subject to the prior repayment in full of the Loans and all other Obligations that are then accrued and payable, (c) requires the payment of any cash dividend or any other scheduled cash payment constituting a return of capital, in each case, prior to the date that is ninety-one (91) days after the Stated Maturity Date, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Securities, in each case, prior to the date that is ninety-one (91) days after the Stated Maturity Date; provided that if such Capital Stock is issued to any plan for the benefit of employees of the New Borrower or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute a Disqualified Capital Securities solely because it may be required to be repurchased by the New Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

“Distribution” means, in respect of any entity, (i) any payment of any dividends or other distributions on Capital Securities of the entity (except distributions in such Capital Securities) and (ii) any purchase, redemption or other acquisition or retirement for value of any Capital Securities of the entity or any Affiliate of the entity unless made contemporaneously from the net proceeds of the sale of Capital Securities.

“Dollar” and the sign “$” mean lawful money of the United States.

“Domestic Office” means the office of a Lender designated as its “Domestic Office” on Schedule II hereto or in a Lender Assignment Agreement, or such other office within the United States as may be designated from time to time by written notice from such Lender to the Administrative Agent and the Borrowers.

“EBITDAP” means, for any fiscal period of the New Borrower, an amount equal to:

(A)

the sum for such fiscal period of:

(i)

Adjusted Net Earnings, plus

(ii)

provision for taxes based on income and franchise taxes to the extent deducted in the calculation of Adjusted Net Earnings, plus

(iii)

interest expense, to the extent deducted in the calculation of Adjusted Net Earnings, plus

(iv)

depreciation and amortization expense, to the extent deducted in the calculation of Adjusted Net Earnings, plus

(v)

the total “net periodic benefit costs” attributable to the qualified and non-qualified defined benefit plans of the New Borrower and its Subsidiaries as such plans are in effect at the Closing Date to the extent covering the U.S. employees of the New Borrower and its Subsidiaries as of the Closing Date (the “Covered Plans”), to the extent such costs are deducted in accordance with GAAP in the calculation of Adjusted Net Earnings of the New Borrower on a basis consistent with the New Borrower’s consolidated financial statements for the fiscal year ended December 31, 2012, plus

(vi)

Allowed Acquisition Addbacks, to the extent the same are deducted in the calculation of Adjusted Net Earnings, plus,

(vii)

non-recurring non-cash losses, to the extent deducted in the calculation of Adjusted Net Earnings, plus,

(viii)

Allowed Integration Costs, to the extent deducted in the calculation of Adjusted Net Earnings, not to exceed on a cumulative basis beginning with the 2013 Fiscal Year (i) $21,911,000 through the end of the 2013 Fiscal Year, (ii) $38,310,000 through the end of the 2014 Fiscal Year, (iii) $48,411,000 through the end of the 2015 Fiscal Year. (iv) $53,005,000 through the end of the 2016 Fiscal Year, (v) $57,895,000 through the end of the 2017 Fiscal Year and (vi) $59,895,000 through the end of the 2018 Fiscal Year, provided that, the aggregate annual Allowed Integration Costs added back pursuant to this clause (viii) shall not exceed $7,500,000 for any of the 2016, 2017 and 2018 Fiscal Years, plus,

(ix)

non-cash stock compensation expenses, to the extent deducted in the calculation of Adjusted Net Earnings,

minus

(B)

the sum for such fiscal period of:

(i)

interest income (except to the extent deducted in determining interest expense); and

(ii)

non-recurring gains, to the extent added in the calculation of Adjusted Net Earnings,

provided, that, notwithstanding the foregoing provisions of this definition of EBITDAP, the consolidated EBITDAP of the New Borrower and its Subsidiaries (including the Existing Borrower and its Subsidiaries as if owned by the New Borrower since July 1, 2012) for each of the Fiscal Quarters ended on December 31, 2012, March 31, 2013 and June 30, 2013 shall be deemed $22,337,997, $20,614,881 and $17,318,440 respectively.

“Eligible Assignee” means any Person (other than an Ineligible Assignee).

“Eligible Cash” means the aggregate of cash balances on deposit in an account with the administrative or collateral agent under the ABL Credit Agreement to the extent constituting ABL Priority Collateral.

“Employee Benefit Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA that is maintained for employees of the New Borrower or any member of the New Borrower’s Controlled Group.

“Environmental Laws” means all applicable foreign, federal, state, provincial or local statutes, laws, ordinances, codes, rules and regulations (including consent decrees and administrative orders), now or hereafter in effect and relating to public health and safety and protection of the environment, including CERCLA.

“Equipment” means all of a Credit Party’s machinery, apparatus, equipment, fittings, furniture, fixtures, motor vehicles and other tangible personal Property (other than Inventory) of every kind and description, whether now owned or hereafter acquired by a Credit Party and wherever located, and all parts, accessories and special tools therefor, all accessions thereto, and all substitutions and replacements thereof.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto of similar import, together with the regulations thereunder, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections thereto.

“Event of Default” is defined in Section 8.1.

“Excess Cash Flow” means, for any Fiscal Year, the result of the following calculation:

(a)

EBITDAP for such period;

plus

(b)

the absolute value of any net decrease in Working Capital for such period;

plus

(c)

any non-recurring cash gains that reduce the amount of EBITDAP for such period pursuant to clause (B)(ii) of the definition of EBITDAP (other than any such gains that result in cash proceeds from a Prepayment Event and a resulting mandatory prepayment in accordance with Section 3.1.1(c));

less

(d)

the sum (without duplication) for such period of the following:

(i)

the aggregate amount of (A) all regularly scheduled or mandatorily repayable principal payments of Indebtedness (including the Loans) made during such Fiscal Year, (B) all optional prepayments of Indebtedness (excluding the Loans) permitted hereby during such Fiscal Year (including any call premiums paid in cash upon repayment of such Indebtedness), and (C) the portion of any regularly scheduled payments with respect to Capital Lease Liabilities allocable to principal; in each case under this subparagraph (i) to the extent paid in cash during such Fiscal Year and except to the extent funded with the proceeds of the issuance of Indebtedness (excluding Indebtedness incurred pursuant to the ABL Credit Agreement) or Capital Securities by the New Borrower or its Subsidiaries to Persons other than the New Borrower and its Subsidiaries (“Excluded Proceeds”);

(ii)

cash payments made with respect to Capital Expenditures (to the extent permitted hereunder and not funded with Excluded Proceeds);

(iii)

all federal, state, local and foreign income, franchise or other similar taxes to the extent paid by the New Borrower and its Subsidiaries in cash;

(iv)

interest expense to the extent paid in cash during such Fiscal Year;

(v)

the absolute value of any net increase in Working Capital for such period;

(vi)

cash payments to the extent (A) actually paid in cash during such period and (B) added back to EBITDAP for such period under clause (vii) of the definition of EBITDAP (and not funded with Excluded Proceeds);

(vii)

cash payments to the extent (A) actually paid in cash during such period and (B) added back to EBITDAP for such period or any prior period since the Closing Date pursuant to clause (viii) of the definition of EBITDAP in respect of restructuring and integration costs, without duplication (and not funded with Excluded Proceeds);

(viii)

cash payments made during such period to make the minimum required statutory pension contributions in such Fiscal Year with respect to the Covered Plans (and not funded with Excluded Proceeds), and

(ix)

cash payments made with respect Permitted Acquisitions (except to the extent funded with Excluded Proceeds).

period immediately preceding such Excess Cash Flow Payment Date is less than $30,000,000, then the Excess Cash Flow payment due on such Excess Cash Flow Payment Date shall be recalculated without giving effect to the addition to Excess Cash Flow due to clause (b) above.

“Excess Cash Flow Payment Date” is defined in Section 3.1.1(d).

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Excluded Deposit Account” means collectively, (i) Deposit Accounts established solely for the purpose of funding payroll, payroll taxes and other compensation and benefits to employees and (ii) an account containing not more than $500,000 at any time, provided, that all such accounts described in this subclause (ii) shall not have more than $1,000,000 in the aggregate on deposit therein at any time.

“Excluded Taxes” means any of the following taxes imposed, deducted or withheld with respect to any Secured Party on payments under this Agreement or any Loan Document: (i) net income and franchise taxes imposed by any Governmental Authority under the laws of which such Secured Party is organized, in which it maintains its principal office or its applicable lending office, or in which it is engaged in business (other than as a result of 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), (ii) any U.S. federal withholding tax imposed under FATCA, (iii) any branch profits tax imposed by the United States or any comparable tax imposed by any foreign jurisdiction, and (iv) any withholding taxes imposed by the United States except to the extent that such withholding taxes are imposed as a result of a change in any applicable statute, treaty, regulation or other Applicable Law or any official interpretation of any of the foregoing occurring after the Closing Date (or in the case of an Assignee Lender, after the date of the assignment, except to the extent that the applicable assigning lender was entitled to receive additional amounts with respect to such payment).

“Exemption Certificate” is defined in clause (e) of Section 4.6.

“Existing Borrower” is defined in the preamble.

“Existing First Lien Agent” is defined in the recitals hereto.

“Existing First Lien Term Loans” is defined in the recitals hereto.

“Existing Second Lien Agent” is defined in the recitals hereto.

“Existing Second Lien Term Loans” is defined in the recitals hereto.

“Existing Term Agents” is defined in the recitals hereto.

“Family Holders” means John Q. Sherman and William C. Sherman, founders of the New Borrower, and their descendants and trusts for their benefit.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to

(a)

the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York; or

(b)

if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

“Fee Letter” means the Administrative Agency Fee Letter - First Lien, dated as of the date hereof, between the Administrative Agent and the New Borrower.

“FEIN” means, with respect to any Person, the Federal Employer Identification Number of such Person.

“Filing Agent” is defined in Section 5.8.

“Filing Statements” is defined in Section 5.8.

“Final Working Capital” is defined in the Term Loan Amendment Agreement.

“First/Second Lien Intercreditor Agreement” means the Intercreditor Agreement, dated the date hereof, executed and delivered by the Administrative Agent, the Second Lien Administrative Agent and the Credit Parties, pursuant to the terms of this Agreement, as amended, restated, supplemented, amended and restated, replaced or otherwise modified from time to time.

“Fiscal Month” means any calendar month ending on the last day of such calendar month.

“Fiscal Quarter” means a quarter ending on the last day of March, June, September or December.

“Fiscal Year” means any period of twelve consecutive calendar months ending on December 31; references to a Fiscal Year with a number corresponding to any calendar year (e.g., the “2013 Fiscal Year”) refer to the Fiscal Year ending on December 31 of such calendar year.

“Fixed Charge Coverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio computed for the four Fiscal Quarter periods ending on the last day of such Fiscal Quarter of:

(a)

EBITDAP of the New Borrower for such period;

(b)

total Fixed Charges of the New Borrower for such period;

“Fixed Charges” means, for any applicable period, (a) the aggregate consolidated cash interest expense of the New Borrower and its Subsidiaries for such applicable period, including the portion of any payments made in respect of Capitalized Lease Liabilities allocable to interest expense but excluding (to the extent otherwise included in the definition of Fixed Charges) (i) amortization of deferred financing costs, and (ii) any cash interest expense paid during such period with respect to the Second Lien Loans, plus (b) scheduled principal payments of Indebtedness during such period, plus (c) consolidated cash taxes paid the New Borrower and its Subsidiaries during such period (including taxes based on income and franchise taxes), plus (d) cash payments made during such period to make the statutory pension contributions in such Fiscal Year with respect to the New Borrower’s and its Subsidiaries' qualified and non-qualified defined benefit cost covering the New Borrower’s U.S. employees paid by the New Borrower and its Subsidiaries during such period, plus (e) all dividends and distributions by the New Borrower in cash during such period; provided that if the Fixed Charge Ratio is computed on a Pro Forma Basis, the Fixed Charges for the applicable period shall be computed on a pro forma basis to give effect to the inclusion or exclusion of any of the Fixed Charges in clauses (a) through (e) attributable to the Acquired Entity or Business or the Sold Entity or Business, as the case may be, including the cash interest expense that would have been incurred or avoided had any Indebtedness incurred or repaid in such transaction been incurred or repaid, as the case may be, at the beginning of such period.

“FLSA” means the Fair Labor Standards Act of 1938.

“Foreign Pledge Agreement” means any supplemental pledge agreement governed by the laws of a jurisdiction other than the United States or a State thereof executed and delivered by the New Borrower or any of its Subsidiaries pursuant to the terms of this Agreement, in form and substance reasonably satisfactory to the Administrative Agent, as may be necessary or desirable under the laws of organization or incorporation of a Subsidiary to further protect or perfect the Lien on and security interest in any Collateral (as defined in the Security Agreement).

“Foreign Subsidiary” means any Subsidiary of the New Borrower that is not a U.S. Subsidiary.

“F.R.S. Board” means the Board of Governors of the Federal Reserve System or any successor thereto.

“GAAP” is defined in Section 1.4.

“Governmental Approvals” means all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and reports to, all Governmental Authorities.

“Governmental Authority” means the government of the United States, any other nation, or any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other Person exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

“Granting Lender” is defined in clause (g) of Section 10.11.

“Hazardous Material” means

(a)

any “hazardous substance”, as defined by CERCLA;

(b)

any “hazardous waste”, as defined by the RCRA; or

(c)

any pollutant or contaminant or hazardous, dangerous or toxic chemical, material or substance (including any petroleum product) within the meaning of any other applicable Environmental Law relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, all as amended.

“Hedge Agreements” means any and all agreements, or documents now existing or hereafter entered into by any Credit Party that provide for an interest rate, credit, commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency option, or any combination of, or option with respect to, these or similar transactions, for the purpose of hedging any Credit Party’s exposure to fluctuations in interest or exchange rates, loan, credit exchange, security or currency valuations or commodity prices and not entered into for speculative purposes.

“herein”, “hereof”, “hereto”, “hereunder” and similar terms contained in any Loan Document refer to such Loan Document as a whole and not to any particular Section, paragraph or provision of such Loan Document.

“including” and “include” means including without limiting the generality of any description preceding such term, and, for purposes of each Loan Document, the parties hereto agree that the rule of ejusdem generis shall not be applicable to limit a general statement, which is followed by or referable to an enumeration of specific matters, to matters similar to the matters specifically mentioned.

“Indebtedness” of any Person means:

(a)

all obligations of such Person for borrowed money or advances and all obligations of such Person evidenced by bonds, debentures, notes or similar instruments or upon which interest payments are customarily made;

(b)

all obligations, contingent or otherwise, relative to the face amount of all letters of credit, whether or not drawn, banker’s acceptances, performance, surety or appeal bonds (or similar obligations) issued for the account of such Person;

(c)

all Capitalized Lease Liabilities of such Person;

(d)

all reimbursement, payment or other obligations or liabilities of such Person created or arising under any conditional sale or title retention agreement with respect to property used or acquired by such Person;

(e)

net Hedging Obligations of such Person;

(f)

whether or not so included as liabilities in accordance with GAAP, all obligations of such Person to pay the deferred purchase price of property or services (including all reimbursement, payment or other obligations or liabilities of such Person created or arising under any conditional sale or title retention agreement with respect to property used or acquired by such Person) (excluding trade accounts payable in the Ordinary Course of Business and not outstanding for more than 120 days after such payable was due unless, if such payable is outstanding more than 120 days after such payable was due, they are being contested in good faith and by appropriate proceedings promptly initiated and diligently conducted) of the date of purchase of such goods and services (including all reimbursement, payment or other obligations or liabilities of such Person created or arising under any conditional sale or title retention agreement with respect to Property used or acquired by such Person), and indebtedness secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien on property owned or being acquired by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(g)

obligations arising under Synthetic Leases;

(h)

all Disqualified Capital Securities of such Person;

(i)

all Contingent Liabilities of such Person; and

(j)

all obligations referred to in clauses (a) through (i) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien upon property owned by such Person.

The Indebtedness of any Person shall include the Indebtedness of any other Person (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 Person, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

“Indemnified Liabilities” is defined in Section 10.4.

“Indemnified Parties” is defined in Section 10.4.

“Indemnified Taxes” means Taxes other than Excluded Taxes.

“Ineligible Assignee” means a natural Person, the New Borrower, any Subsidiary of the New Borrower and a Family Holder.

“Initial Closing Date Second Lien Term Loan Amendment Agreement” is defined in the recitals hereto.

“Initial Existing Second Lien Term Loan Cancellation” is defined in the recitals hereto.

“Intellectual Property” has the meaning set forth in the Security Agreement.

“Intellectual Property Claim” means the assertion by any Person of a claim (whether asserted in writing, by action, suit or proceeding or otherwise) that a Credit Party’s ownership, use, marketing, sale or distribution of any Inventory, Equipment, Intellectual Property or other Property is violative of any ownership or other right to use any Intellectual Property of such Person.

“Intercreditor Agreements” means each of (i) the First/Second Lien Intercreditor Agreement and (ii) the ABL/Term Loan Intercreditor Agreement.

“Interest Period” means, relative to any LIBO Rate Loan, the period beginning on (and including) the date on which such LIBO Rate Loan is made or continued as, or converted into, a LIBO Rate Loan pursuant to Sections 2.2 or 2.3 and shall end on (but exclude) the day which numerically corresponds to such date one, two or three months thereafter (or, if such month has no numerically corresponding day, on the last Business Day of such month), in either case as a Borrower may select in its relevant notice pursuant to Sections 2.2 or 2.3; provided, that,

(a)

a Borrower shall not be permitted to select Interest Periods to be in effect at any one time which have expiration dates occurring on more than ten (10) different dates;

(b)

if such Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next following Business Day (unless such next following Business Day is the first Business Day of a calendar month, in which case such Interest Period shall end on the Business Day next preceding such numerically corresponding day); and

(c)

no Interest Period for any Loan may end later than the Stated Maturity Date for such Loan.

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

“Investment” means any acquisition of all or substantially all assets of a Person; any acquisition of record or beneficial ownership of any Capital Securities of a Person; any advance or capital contribution to or other investment in a Person; or any Other Acquisition.

“Junior Financing” is defined in Section 7.2.14.

“Knowledge” means the actual knowledge of an individual engaging in the business of the Credit Parties in the Ordinary Course of Business, without special investigation or inquiry.

“Lender Assignment Agreement” means an assignment agreement substantially in the form of Exhibit C hereto.

“Lenders” is defined in the preamble.

“Lender’s Environmental Liability” means any and all losses, liabilities, obligations, penalties, claims, litigation, demands, defenses, costs, judgments, suits, proceedings, damages, (including consequential damages), disbursements or expenses of any kind or nature whatsoever (including reasonable attorneys’ fees and expenses at trial and appellate levels and experts’ fees and disbursements and expenses incurred in investigating, defending against or prosecuting any litigation, claim or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against the Administrative Agent or any Lender or any of such Person’s Affiliates, shareholders, directors, officers, employees, and agents in connection with or arising from:

(a)

any Hazardous Material on, in, under or migrating from all or any portion of any Property of the New Borrower or any of its Subsidiaries or the groundwater thereunder to the extent caused by Releases from the New Borrower’s or any of its Subsidiaries’ or any of their respective predecessors’ properties;

(b)

any misrepresentation, inaccuracy or breach of any warranty, contained or referred to in Section 7.1.7 (as relates to Environmental Laws and Releases);

(c)

any violation or claim of violation by the New Borrower or any of its Subsidiaries of any Environmental Laws; or

(d)

the imposition of any Lien for damages caused by, or the recovery of any costs with respect to, the cleanup, Release of Hazardous Material by the New Borrower or any of its Subsidiaries, or in connection with any property owned by the New Borrower or any of its Subsidiaries.

“LIBO Rate” means, relative to any Interest Period for LIBO Rate Loans, an annual rate equal to the greater of (i) 0.50% and (ii) the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two (2) Business Days prior to the beginning of the relevant Interest Period by reference to the British Bankers’ Association Interest Settlement Rates for deposits in Dollars (as set forth by the Bloomberg Information Service or any successor thereto or any other service selected by the Administrative Agent which has been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this clause (ii), the interest rate determined in accordance with this clause (ii) shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in Dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately

11:00 a.m. (London time) on the date that is two (2) Business Days prior to the beginning of such Interest Period.

“LIBO Rate Loan” means a Loan bearing interest, at all times during an Interest Period applicable to such Loan, at a rate of interest determined by reference to the LIBO Rate (Reserve Adjusted).

“LIBO Rate (Reserve Adjusted)” means, relative to any Loan to be made, continued or maintained as, or converted into, a LIBO Rate Loan for any Interest Period, a rate per annum determined pursuant to the following formula:


LIBO Rate	=	LIBO Rate
(Reserve Adjusted)	=	1.00 - LIBOR Reserve Percentage

The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans will be determined by the Administrative Agent on the basis of the LIBOR Reserve Percentage in effect two Business Days before the first day of such Interest Period.

“LIBOR Office” means the office of a Lender designated as its “LIBOR Office” on Schedule II hereto or in a Lender Assignment Agreement, or such other office designated from time to time by written notice from such Lender to the Borrowers and the Administrative Agent, whether or not outside the United States, which shall be making or maintaining the LIBO Rate Loans of such Lender.

“LIBOR Reserve Percentage” means, relative to any Interest Period for LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum aggregate reserve requirements (including all basic, emergency, supplemental, marginal and other reserves and taking into account any transitional adjustments or other scheduled changes in reserve requirements) specified under regulations issued from time to time by the F.R.S. Board and then applicable to assets or liabilities consisting of or including “Eurocurrency Liabilities”, as currently defined in Regulation D of the F.R.S. Board, having a term approximately equal or comparable to such Interest Period.

“Lien” means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or security interest in property, or other priority or preferential arrangement of any kind or nature whatsoever, including any conditional sale or title retention arrangement, any Capitalized Lease Liability and any assignment, deposit arrangement or financing lease intended as security.

“Lien Waiver” means an agreement, substantially in the form set forth in Exhibit H hereto (with such changes as are reasonably satisfactory to the Administrative Agent or, for purposes of clause (y) of Section 7.1.17, in substantially the form delivered pursuant to the ABL Credit Agreement), by which (i) for any material Collateral located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to permit the Administrative Agent to enter upon the premises and remove the Collateral or to use the premises to store or dispose of the Collateral; (ii) for any Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder, such Person waives or subordinates any

Lien it may have on the Collateral, agrees to hold any Documents in its possession relating to the Collateral as agent for the Administrative Agent, and agrees to deliver the Collateral to the Administrative Agent upon request; (iii) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges the Administrative Agent’s Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver the Collateral to the Administrative Agent upon request, and (iv) for any Collateral subject to a licensor’s Intellectual Property rights, the applicable licensor grants to the Administrative Agent the right, vis-à-vis such licensor, to enforce the Administrative Agent’s Liens with respect to the Collateral, including the right to dispose of it with the benefit of the Intellectual Property, whether or not a default exists under any applicable license.

“Liquidity” means, at any date, the sum of ABL Availability plus Eligible Cash.

“Loan Documents” means, collectively, this Agreement, the Notes, the Fee Letter, each agreement pursuant to which the Administrative Agent is granted a Lien to secure all or any part of the Obligations, each Subsidiary Guaranty, the Intercreditor Agreements and each other agreement, certificate, document or instrument delivered in connection with any Loan Document, whether or not specifically mentioned herein or therein.

“Loans” is defined in Section 2.1.

“Margin Stock” shall have the meaning ascribed to it in Regulation U of the Board of Governors of the Federal Reserve System.

“Material Adverse Effect” means a material adverse effect on (a) the business, condition (financial or otherwise), operations, performance or properties of the New Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies of any Secured Party under any Loan Document, (c) the ability of any Credit Party to perform its Obligations under any Loan Document, (d) the legality, validity or enforceability of this Agreement or any other Loan Document or (e) the validity, perfection or priority of Liens with respect to any material portion of the collateral in favor of the Administrative Agent for the benefit of the Secured Parties (it being understood and agreed that a delisting of the publicly traded equity securities of the New Borrower shall not, in and of itself, constitute a Material Adverse Effect).

“Material Contract” means an agreement to which a Credit Party is a party (other than the Loan Documents) (i) which is deemed to be a material contract as provided in Regulation S-K promulgated by the SEC under the Securities Act of 1933 or (ii) for which breach, termination, cancellation, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect.

Lease Liability; (iv) reimbursement obligations with respect to letters of credit or guaranties of letters of credit and (v) Indebtedness of such Person under any guaranty of obligations that would constitute Indebtedness for Money Borrowed under clauses (i) through (iii) hereof, if owed directly by such Person.

“Moody’s” means Moody’s Investors Service, Inc.

“Mortgage” means (a) each mortgage, deed of hypothec, debenture, pledge, deed of trust or agreement executed and delivered by any Credit Party in favor of the Administrative Agent for the benefit of the Secured Parties pursuant to the requirements of this Agreement substantially in the form set forth in Exhibit G hereto (with such changes as are reasonably satisfactory to the Administrative Agent), under which a Lien is granted on the real property and fixtures described therein, in each case as amended, supplemented, amended and restated or otherwise modified from time to time, and (b) each Additional Mortgage delivered pursuant hereto.

“Multiemployer Plan” has the meaning set forth in Section 4001(a)(3) of ERISA.

“Net Cash Proceeds” means, with respect to any Prepayment Event, (a) the gross cash proceeds (including payments from time to time in respect of installment obligations, if applicable) received by or on behalf of the New Borrower or any of its Subsidiaries in respect of such Prepayment Event or issuance, as the case may be, less (b) the sum of:

(i)

the amount, if any, of all taxes paid or estimated to be payable by the New Borrower or any of its Subsidiaries in connection with such Prepayment Event,

(ii)

the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant to clause (i) above) (x) associated with the assets that are the subject of such Prepayment Event and (y) retained by the New Borrower or any of its Subsidiaries, provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event occurring on the date of such reduction;

(iii)

the amount of any Indebtedness secured by a Lien on the assets that are the subject of such Prepayment Event to the extent that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consummation of such Prepayment Event;

(iv)

in the case of any Asset Sale Prepayment Event or Casualty Event, the amount of any proceeds of such Prepayment Event that the New Borrower or any Subsidiary has reinvested in the business of the New Borrower or any of its Subsidiaries (subject to Section 10.09), provided that up to $5,000,000 of such Proceeds since the Closing Date may be subject to reinvestment so long as to the extent the aggregate such proceeds pending reinvestment at any time exceed $1,000,000 such Proceeds are deposited in accounts constituting Term Loan Priority Collateral under the ABL/Term Loan Intercreditor Agreement during one or more Reinvestment Periods after the Closing (with respect to all such Prepayment Events, the “Deferred Net Cash Proceeds”) and shall

be deemed to be Net Cash Proceeds of an Asset Sale Prepayment Event or Casualty Event occurring on the last day of the applicable Reinvestment Period, and (y) be applied to the repayment of Loans in accordance with Section 3.1.2; and

(v)

reasonable and customary fees.

“New Borrower” is defined in the preamble.

“New Borrower Warrant Transfer” is defined in the recitals hereto.

“Non-U.S. Lender” means any Lender that is not a “United States person”, as defined under Section 7701(a)(30) of the Code.

“Note” means a promissory note of the Borrowers payable to any Lender, in the form of Exhibit A hereto (as such promissory note may be amended, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrowers to such Lender resulting from outstanding Loans, and also means all other promissory notes accepted from time to time in substitution therefor or renewal thereof.

“Obligations” means all obligations (monetary or otherwise, whether absolute or contingent, matured or unmatured) of the Borrowers and each other Credit Party to the Secured Parties arising under or in connection with a Loan Document, including, but not limited to, the principal of and premium, if any, and interest (including interest accruing (or which would have accrued) during the pendency of any proceeding of the type described in Section 8.1.8, whether or not allowed in such proceeding) on the Loans as well as all fees and expenses (including attorneys’ fees and expenses) and indemnity payable to the Secured Parties hereunder.

“Ordinary Course of Business” means, with respect to any transaction involving any Person, the ordinary course of such Person’s business, as conducted by such Person in accordance with past practices and undertaken by such Person in good faith and not for the purpose of evading any covenant or restriction in any Loan Document.

“Organic Document” means, relative to any Credit Party, as applicable, its certificate or articles of incorporation, articles and memorandum of association, by-laws, certificate of partnership, partnership agreement, certificate of formation, limited liability agreement, operating agreement and all shareholder agreements, voting trusts and similar arrangements applicable to any of such Credit Party’s Capital Securities.

“OSHA” means the Occupational Safety and Hazard Act of 1970.

“Other Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (i) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (ii) the acquisition of in excess of 50% of the Capital Securities of any Person, or otherwise causing any Person to become a Subsidiary or (iii) a merger or consolidation or any other combination with another Person (other than with a Person that is a Subsidiary); provided that a Credit Party is the surviving entity.

“Other Taxes” means any and all present or future stamp, documentary or similar Taxes, or any other excise or property Taxes or similar levies that arise on account of any payment made or required to be made under any Loan Document or from the execution, delivery, registration, recording or enforcement of, or otherwise with respect to, any Loan Document, but excluding, for the avoidance of doubt, any Taxes arising in connection with any transfer, assignment or participation of any rights or obligations under this Agreement, or any change in lending office by any Lender, except if such transfer, assignment, participation or change in lending office is done at the request of a Borrower.

“Participant” is defined in clause (d) of Section 10.11.

“Participant Register” is defined in clause (d) of Section 10.11.

“Patent Security Agreement” means any Patent Security Agreement executed and delivered by any Credit Party in substantially the form of Exhibit A to the Security Agreement, as amended, supplemented, amended and restated or otherwise modified.

“Patriot Act” means the USA PATRIOT ACT (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended and supplemented from time to time.

“Payment Items” means all checks, drafts, or other items of payment payable to the New Borrower, including proceeds of any of the Collateral.

“Pension Plan” means a “pension plan”, as such term is defined in Section 3(2) of ERISA, which is subject to Title IV of ERISA, and to which the New Borrower or any corporation, trade or business that is, along with the New Borrower, a member of a Controlled Group, may have liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five years, or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.

“Percentage” means, relative to any Lender, the percentage set forth opposite its name on Schedule II hereto or set forth in a Lender Assignment Agreement, as such percentage may be adjusted from time to time (x) in accordance with Section 4.8 or (y) pursuant to Lender Assignment Agreements executed by such Lender and its Assignee Lender and delivered pursuant to Section 10.11.

New Borrower, (C) within sixty (60) days (or such later date as may be agreed by the Administrative Agent in its sole discretion) following the consummation of such acquisition, all actions shall be taken, and the Administrative Agent shall receive all items necessary and required (including appropriate UCC, tax and judgment lien searches), to grant to the Administrative Agent, for the benefit of the Lenders, a first priority, perfected security interest (subject to Permitted Liens) in the assets acquired pursuant to such acquisition (including, in the case of a new U.S. Subsidiary formed or acquired in connection with such acquisition, a supplement to the Subsidiary Guaranty (in the form of Annex 1 thereto) or other applicable Security Document required to make such entity a Subsidiary Guarantor, together with customary corporate documents, certificates, resolutions, legal opinions and, if necessary, lien releases), in each case subject to the terms and conditions of the applicable Security Documents, (D) such acquisition is not consummated pursuant to a hostile offer, and (E) the Administrative Agent shall have received on or prior to the proposed closing date of any such acquisition, the final, execution version of the applicable purchase agreement (including schedules and exhibits) and such other information regarding the person or assets to be acquired as may be reasonably requested by the Administrative Agent (including, if real property is to be acquired, environmental reports), together with a certificate of an Authorized Officer of the New Borrower certifying that such agreement is in final form.

“Permitted Contingent Obligations” means Contingent Liabilities (i) arising from endorsements of Payment Items for collection or deposit in the Ordinary Course of Business; (ii) arising from Hedge Agreements permitted hereunder; (iii) existing on the Closing Date, and any extension or renewal thereof that does not increase the amount of such Contingent Obligation when extended or renewed; (iv) incurred in the Ordinary Course of Business with respect to surety, appeal or performance bonds, or other similar obligations; (v) arising from customary indemnification obligations in favor of purchasers in connection with dispositions of Collateral permitted hereunder; (vi) arising under the Loan Documents; (vii) incurred by any Credit Party in respect of Indebtedness of any Credit Party otherwise permitted hereunder; provided that (A) no Contingent Liability of the ABL Obligations, Second Lien Loans or any Subordinated Indebtedness shall be permitted unless such party providing such Contingent Liability shall have also provided a Contingent Liability of the Obligations on the terms set forth herein, and (B) if the Indebtedness benefitting from the Contingent Liability is subordinated to the Obligations, such Contingent Liability shall be subordinated to the Subsidiary Guaranty of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness; or (vii) in an aggregate amount of $5,000,000 or less at any time.

“Permitted Holders” means (i) the Family Holders and (ii) Silver Point Finance, LLC and any of its Affiliates.

“Permitted Liens” means:

(a)

(i) Liens existing on the date hereof and listed on Part 1.1 of the Disclosure Schedule and (ii) any Liens of the Existing Borrower and its Subsidiaries outstanding on the date hereof immediately prior to the Acquisition not listed in the Disclosure Schedule, other than Liens referred to in clause (c) of this definition;

(b)

subject to the ABL/Term Loan Intercreditor Agreement, Liens securing ABL Obligations (as defined in the ABL/Term Loan Intercreditor Agreement);

(c)

subject to the Intercreditor Agreements, Liens securing Indebtedness of the type permitted under clause (a) and clause (c) of Section 7.2.9;

(d)

Liens securing Indebtedness of the type permitted under clause (e) of Section 7.2.9;

(e)

Liens for Taxes not yet due or being Properly Contested;

(f)

statutory Liens (other than Liens for Taxes or imposed under ERISA) arising in the Ordinary Course of Business, but only if payment of the obligations secured thereby is not yet due or is being Properly Contested;

(g) Liens incurred or deposits made in the Ordinary Course of Business to secure the performance of tenders, bids, leases, contracts (except those relating to Indebtedness for borrowed money), statutory obligations and other similar obligations, or arising as a result of progress payments under government contracts, as long as such Liens are at all times junior to Liens granted under the Security Documents;

(h)

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

(i)

easements, rights-of-way, restrictions, covenants or other agreements of record, and other similar charges or encumbrances on real property, that do not secure any monetary obligation and do not interfere with the Ordinary Course of Business;

(j)

bankers’ Liens with respect to depository account arrangements entered into in the Ordinary Course of Business securing obligations not past due; and

(k)

Liens arising from judgments, judicial orders, or other judicial awards not constituting an Event of Default.

“Permitted Pre-Closing Existing First Lien Loan Prepayment” is defined in the recitals hereto.

“Permitted Purchase Money Indebtedness” means Purchase Money Indebtedness of the Credit Parties and their Subsidiaries, as long as the aggregate amount does not exceed $15,000,000 at any time.

extension and by an amount equal to any existing commitments unutilized under the Refinanced Debt, (b) such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Refinanced Debt, (c) at the time thereof, no Event of Default shall have occurred and be continuing, (d) to the extent Refinanced Debt is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Refinanced Debt, (e) such modification, refinancing, refunding, renewal, replacement or extension is incurred by the Person who is the obligor of the Refinanced Debt, (f) if the Refinanced Debt was subject to an intercreditor agreement, the holders of such modified, refinanced, refunded, renewed, replaced or extended Indebtedness (if such Indebtedness is secured) or their representative on their behalf shall become party to such intercreditor agreement (or a replacement thereof on substantially similar terms, or otherwise reasonably acceptable to the Administrative Agent), and (g) to the extent such Indebtedness is secured, any such Permitted Refinancing shall be secured by no assets that did not secure the Refinanced Debt (except to the extent of after-acquired assets or proceeds of assets that would have secured such Indebtedness), and, if applicable, will be secured with no greater rights or priority, vis-a-vis the Obligations than such Indebtedness, pursuant to intercreditor documentation reasonably satisfactory to the Administrative Agent.

“Person” means any natural person, corporation, limited liability company, partnership, joint venture, association, trust or unincorporated organization, Governmental Authority or any other legal entity, whether acting in an individual, fiduciary or other capacity.

“Platform” is defined in Section 7.1.3.

“Post-Closing Cancelled Second Lien Principal Amount” is defined in the recitals hereto.

“Prepayment Event” means any Asset Sale Prepayment Event, Casualty Event or Debt Incurrence Prepayment Event.

first day of such Reference Period (provided, that the pro forma EBITDAP of the New Borrower for each of the Fiscal Quarters ended on December 31, 2012, March 31, 2013 and June 30, 2013 shall be deemed to be the amounts for such Fiscal Quarters set forth at the end of the definition of “EBITDAP”), and (b) Consolidated Total Debt for any Reference Period, Consolidated Total Debt shall be calculated as of the last day of the applicable Reference Period after giving effect to any Consolidated Total Debt incurred or repaid on the last day of such Reference Period or in the case of calculations made for purposes other than determining compliance with Section 7.2.17, after such Reference Period and through the applicable date of measurement or determination. The term “Disposition” in this definition shall not include dispositions of inventory and other ordinary course dispositions of property.

“Properly Contested” means in the case of any Indebtedness of a Credit Party (including any Taxes) that is not paid as and when due or payable by reason of such Credit Party’s bona fide dispute concerning its liability to pay same or concerning the amount thereof, (i) such Indebtedness is being properly contested in good faith by appropriate proceedings promptly instituted and diligently conducted; (ii) such Credit Party has established appropriate reserves as shall be required in conformity with GAAP, (iii) the non-payment of such Indebtedness will not have a Material Adverse Effect and will not result in a forfeiture of any assets of such Credit Party; (iv) no Lien is imposed upon any of such Credit Party’s assets with respect to such Indebtedness unless such Lien is at all times junior and subordinate in priority to the Liens in favor of the Administrative Agent (except only with respect to property taxes that have priority as a matter of applicable state law) and enforcement of such Lien is stayed during the period prior to the final resolution or disposition of such dispute; (v) if the Indebtedness results from, or is determined by the entry, rendition or issuance against a Credit Party or any of its assets of a judgment, writ, order or decree, enforcement of such judgment, writ, order or decree is stayed pending a timely appeal or other judicial review; and (vi) if such contest is abandoned, settled or determined adversely (in whole or in part) to such Credit Party, such Credit Party forthwith pays such Indebtedness and all penalties, interest and other amounts due in connection therewith.

“Property” means any interest in any kind of property or asset, whether real, personal or mixed and whether tangible or intangible.

“Public Lender” is defined in Section 7.1.3.

“Purchase Agreement” is defined in the recitals hereto.

“Purchase Money Indebtedness” means (i) Indebtedness (other than the Obligations) for payment of any of the purchase price of fixed assets; (ii) Indebtedness (other than the Obligations) incurred within 90 days before or after acquisition of any fixed assets, for the purpose of financing any of the purchase price thereof; (iii) Capitalized Lease Liabilities and (iv) any renewals, extensions or refinancings (but not increases) thereof.

“Qualified Equity Interests” means any Capital Securities that are not a Disqualified Capital Securities.

“Quarterly Payment Date” means the last Business Day of March, June, September and December.

“RCRA” means the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.

“Reference Period” is defined in the definition of “Pro Forma Basis”.

“Register” is defined in clause (a) of Section 2.5.

“Reinvestment Period” means 180 days following the date of an Asset Sale Prepayment Event or Casualty Event.

“Release” means a “release”, as such term is defined in CERCLA or any release, threatened release, spill, emission, leaking, pumping, pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Material in the indoor or outdoor environment, including the movement of Hazardous Material through or in the air, soil, surface water, ground water or property.

“Replacement Lender” is defined in Section 4.10.

“Replacement Notice” is defined in Section 4.10.

“Reportable Event” means any of the events set forth in Section 4043(b) of ERISA.

“Required Lenders” means, at any time, Lenders holding more than 50% of the aggregate principal amount of the then outstanding Loans.

“Restricted Investment” means any Investment by a Credit Party or Subsidiary, other than (i) Investments in the Existing Borrower and Subsidiary Guarantors formed or acquired after the Closing Date; (ii) Cash Equivalents that are pledged as Collateral; (iii) loans and advances permitted under Section 7.2.11(i), (ii), (iii) and (iv); (iv) Investments in an aggregate amount not to exceed $3,000,000 in any Fiscal Year (provided, that not more than $1,000,000 of such amount shall be used for Investments in Subsidiaries that are not wholly-owned Subsidiaries and provided further that the aggregate Investments from and after the Closing Date made pursuant to this clause (iv) in Subsidiaries that are not Credit Parties or were Subsidiary Guarantors as of the Closing Date, shall not exceed (net of returns of such Investments) $7,500,000 at any one time outstanding; (v) Investments constituting Permitted Acquisitions provided, that (a) the aggregate amount of consideration for Permitted Acquisitions does not exceed, for any Fiscal Year, the amount by which $30,000,000 exceeds the amount of Capital Expenditures made by the New Borrower and its Subsidiaries for such Fiscal Year (the “Base Acquisition Basket”), provided, that the Base Acquisition Basket shall not exceed $15,000,000 for any Fiscal Year, provided further that the portion of the Base Acquisition Basket for any fiscal year which is unused (up to a maximum of $10,000,000) may be carried forward to the next Fiscal Year only (the “Carryforward Amount”) and, provided further that the sum of the Base Acquisition Basket and the Carryforward Amount cannot exceed $25,000,000 for any Fiscal Year (provided, that each of the foregoing dollar amounts with respect to the 6 month period ending December 31, 2013 shall be $15,000,000, $7,500,000 and $5,000,000, respectively); (b) no Default or Event of Default shall have occurred or be continuing, and (c) after giving pro forma effect to any such Permitted Acquisition (with pro forma EBITDAP to be calculated as set forth in the last paragraph of the definition of EBITDAP), (A) the New

Borrower would be in compliance on a Pro Forma Basis with all financial covenants set forth in Section 7.2.17 as of the most recent four Fiscal Quarter Period ended prior to the Permitted Acquisition for which financial statements are required to be delivered under Section 7.1.3(a) or (b), as applicable and (B) the Total Leverage Ratio on a Pro Forma Basis is not greater than 4.00:1.00; and (vi) additional Investments in Foreign Subsidiaries consisting of obsolete, worn-out or surplus Equipment no longer used or usable in the business of the Credit Parties.

“Restrictive Agreement” means an agreement (other than any of the Loan Documents) that, if and for so long as a Credit Party or any Subsidiary of such Credit Party is a party thereto, would prohibit, condition or restrict such Credit Party’s or Subsidiary’s right to incur or repay Indebtedness for Money Borrowed (including any of the Obligations); grant Liens upon any of such Credit Party’s or Subsidiary’s assets (including Liens granted in favor of the Administrative Agent pursuant to the Loan Documents); declare or make Distributions; amend, modify, extend or renew any agreement evidencing Indebtedness for Money Borrowed (including any of the Loan Documents); or repay any Indebtedness owed to any Credit Party.

“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.

“SEC” means the Securities and Exchange Commission.

“Second Lien Administrative Agent” means the “Administrative Agent” as defined in the Second Lien Credit Agreement (or such corresponding term in the event the Second Lien Credit Agreement is refinanced in accordance with the terms hereof).

“Second Lien Credit Agreement” means the Second Lien Credit Agreement, dated as of the date hereof, among the Borrowers, the various financial institutions and other Persons from time to time party thereto as lenders, Silver Point, as the administrative agent and the other Persons party thereto as agents, as amended, supplemented, amended and restated, refinanced or otherwise modified from time to time in accordance with Section 7.2.15.

“Second Lien Lender” means each “Lender” as defined in the Second Lien Credit Agreement (or such corresponding term in the event the Second Lien Credit Agreement is refinanced in accordance with the terms hereof).

“Second Lien Loan Documents” means the “Loan Documents” as defined in the Second Lien Credit Agreement (or such corresponding term in the event the Second Lien Credit Agreement is refinanced in accordance with the terms hereof).

“Second Lien Loans” means the “Loans” as defined in the Second Lien Credit Agreement (or such corresponding term in the event the Second Lien Credit Agreement is refinanced in accordance with the terms hereof) and references herein to “Term A Second Lien Loan”, “Term B Second Lien Loan” and “Term C Second Lien Loan” shall mean “Term A Loan”, “Term B Loan” and “Term C Loan” as defined in the Second Lien Credit Agreement as of the date hereof.

“Secured Parties” means, collectively, the Lenders, the Administrative Agent and (in each case) each of their respective successors, transferees and assigns.

“Security Agreement” means the Pledge and Security Agreement executed and delivered by an Authorized Officer of the New Borrower and its Subsidiaries, substantially in the form of Exhibit F hereto, together with any supplemental Foreign Pledge Agreement delivered pursuant to the terms of this Agreement, in each case as amended, supplemented, amended and restated or otherwise modified from time to time.

“Security Documents” means, collectively, (a) the Subsidiary Guaranty, (b) the Security Agreement, (c) the Intercreditor Agreements, (d) each Mortgage and Additional Mortgage, (e) the Copyright Security Agreement, (f) the Patent Security Agreement, (g) the Trademark Security Agreement and (h) each other security agreement or other interest or document executed and delivered pursuant to Section 7.1.7 or any of the Security Documents to secure any of the Obligations.

“Silver Point” means Silver Point Finance, LLC.

“Sold Entity or Business” is defined in the definition of “Pro Forma Basis”.

“Solvent” means, with respect to any Person, that as of the Closing Date, both (a) (i) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (ii) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date; and (iii) such Person has not incurred and does not intend to incur, or believe that it will incur, debts including current obligations beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (b) such Person is “solvent” within the meaning given that term and similar terms under Applicable Laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).

“SPC” is defined in clause (g) of Section 10.11.

“Stated Maturity Date” means the date that is five (5) years after the Closing Date, or, if such date is not a Business Day, the next preceding Business Day.

“Subordinated Indebtedness” means Indebtedness incurred by a Credit Party that (i) is expressly subordinate and junior in right of payment to full payment of all Obligations, (ii) has a stated maturity at least one year after the stated maturity date of the Second Lien Loans, (iii) does not provide for payment of interest in cash or otherwise than through the capitalization thereof, and (iv) is otherwise on terms satisfactory to the Administrative Agent.

“Subsidiary” means, with respect to any Person, any other Person of which more than 50% of the outstanding Voting Securities of such other Person (irrespective of whether at the time Capital Securities of any other class or classes of such other Person shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more other Subsidiaries of such Person,

or by one or more other Subsidiaries of such Person. Unless the context otherwise specifically requires, the term “Subsidiary” shall be a reference to a Subsidiary of the New Borrower.

“Subsidiary Guarantor” means the Initial Guarantors and each other U.S. Subsidiary of the New Borrower (excluding the Existing Borrower) that has executed and delivered to the Administrative Agent the Subsidiary Guaranty (including by means of a delivery of a supplement thereto).

“Subsidiary Guaranty” means the subsidiary guaranty executed and delivered by an Authorized Officer of each U.S. Subsidiary pursuant to the terms of this Agreement, substantially in the form of Exhibit E hereto, as amended, supplemented, amended and restated or otherwise modified from time to time.

“Synthetic Lease” means, as applied to any Person, any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that is not a capital lease in accordance with GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased for federal income tax purposes, other than any such lease under which that Person is the lessor.

“Target” is defined in the definition of “Permitted Acquisition”.

“Taxes” means all taxes, duties, levies, imposts, charges, assessments, fees, deductions or withholdings (including backup withholdings), now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, and all interest, penalties or similar liabilities with respect thereto.

“Termination Date” means the date on which all Obligations have been paid in full in cash.

“Term Loan Amendment Agreement” is defined in the recitals hereto.

“Term Loan Amendment and Assumption” is defined in the recitals hereto.

“Term Loan Claimholders” has the meaning ascribed to that term (or such corresponding term) as defined in the First/Second Lien Intercreditor Agreement.

“Term Loan Priority Collateral” is defined in the ABL/Term Loan Intercreditor Agreement.

“Terrorism Laws” means any of the following (a) Executive Order 13224 issued by the President of the United States, (b) the Terrorism Sanctions Regulations (Title 31 Part 595 of the U.S. Code of Federal Regulations), (c) the Terrorism List Governments Sanctions Regulations (Title 31 Part 596 of the U.S. Code of Federal Regulations), (d) the Foreign Terrorist Organizations Sanctions Regulations (Title 31 Part 597 of the U.S. Code of Federal Regulations), (e) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (as it may be subsequently codified), (f) all other present and future legal requirements of any Governmental Authority addressing, relating to, or attempting to eliminate, terrorist acts and acts of war and (g) any

regulations promulgated pursuant thereto or pursuant to any legal requirements of any Governmental Authority governing terrorist acts or acts of war.

“Total Leverage Ratio” means, as of the day of determination, the ratio of

(a)

Consolidated Total Debt outstanding on day of determination,

(b)

EBITDAP computed for the four Fiscal Quarter period ending on (a) for purposes of Section 7.2.17, the last day of the Fiscal Quarter as of which the determination is being made, and (ii) for purposes of the definition of Permitted Acquisition, the last day of the most recent Fiscal Quarter for which financial statements of the New Borrower are required to have been delivered under Section 7.1.3(a) or (b), as applicable.

“Trademark Security Agreement” means any Trademark Security Agreement executed and delivered by any Credit Party substantially in the form of Exhibit B to the Security Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time.

“Transactions” means, collectively, (a) the entering into of the Purchase Agreement, the Initial Closing Date Second Lien Term Loan Amendment Agreement and the Term Loan Amendment Agreement, the consummation of the transactions contemplated by the Purchase Agreement, the Initial Closing Date Second Lien Term Loan Amendment Agreement and the Term Loan Amendment Agreement to be consummated on the Closing Date, (b) the entering into by the Credit Parties of the Loan Documents and the Second Lien Loan Documents to which they are intended to be a party, (c) the amendment and restatement of the ABL Credit Agreement, (d) the satisfaction of all Indebtedness required to be paid pursuant to the Initial Closing Date Second Lien Term Loan Amendment Agreement and the Term Loan Amendment Agreement, and (e) the payment of the fees and expenses incurred in connection with the consummation of the foregoing that are required to be paid on the Closing Date.

“Transaction Documents” means, collectively, the Loan Documents, Second Lien Loan Documents, the Purchase Agreement, the Initial Closing Date Second Lien Term Loan Amendment Agreement, the Term Loan Amendment Agreement, the ABL Credit Agreement and each other document delivered in connection therewith, whether or not specifically mentioned herein or therein, in each case as amended, supplemented, amended and restated or otherwise modified from time to time.

“type” means, relative to any Loan, the portion thereof, if any, being maintained as a Base Rate Loan or a LIBO Rate Loan.

“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, if, with respect to any Filing Statement or by reason of any provisions of law, the perfection or the effect of perfection or non-perfection of the security interests granted to the Administrative Agent pursuant to the applicable Loan Document is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States

other than New York, then “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of each Loan Document and any Filing Statement relating to such perfection or effect of perfection or non-perfection.

“United States” or “U.S.” means the United States of America, its fifty states and the District of Columbia.

“Upstream Payment” means a Distribution by a Subsidiary of a Credit Party to such Credit Party.

“U.S. Subsidiary” means any Subsidiary of the New Borrower (other than any CFC Holdco) that is incorporated or organized under the laws of the United States, a state thereof or the District of Columbia.

“Voting Power” means, with respect to any Person, the power ordinarily (without the occurrence of a contingency) to elect the members of the Board of Directors (or Persons performing similar functions) of such Person.

“Voting Securities” means, with respect to any Person, Capital Securities of any class or kind ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person.

“Working Capital” means (without duplication), at any date of determination, the difference of (a) consolidated current assets of the New Borrower and its Subsidiaries on such date in the nature of ordinary course trade accounts receivable, inventory and similar current assets (other than cash and Cash Equivalents), less (b) consolidated current liabilities of the New Borrower and its Subsidiaries on such date in the nature of ordinary course trade accounts payable and similar current liabilities, but excluding, without limitation, the current portion of Consolidated Total Debt to the extent included in the computation of current liabilities and, without duplication, all Indebtedness consisting of Loans (including accrued interest with respect to such Loans) to the extent otherwise included therein, excluding in each case the non-cash effects on consolidated current assets or consolidated current liabilities pursuant to GAAP resulting from the application of purchase accounting in relation to the Acquisition.

“wholly owned Subsidiary” means any Subsidiary all of the outstanding Capital Securities of which (other than any director’s qualifying shares or investments by foreign nationals mandated by Applicable Laws) is owned directly or indirectly by the New Borrower.

1.2

Use of Defined Terms. Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Agreement shall have such meanings when used in each other Loan Document and the Disclosure Schedule.

1.3

Cross-References. Unless otherwise specified, references in a Loan Document to any Article or Section are references to such Article or Section of such Loan Document, and references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition.

1.4

Accounting and Financial Determinations. Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations and computations thereunder (including under Section 7.2.17 and the definitions used in such calculations) shall be made, in accordance with those generally accepted accounting principles in effect in the United States (“GAAP”). Unless otherwise expressly provided, all financial covenants and defined financial terms shall be computed on a consolidated basis for the New Borrower and its Subsidiaries (and, to the extent applicable and unless otherwise specified, any predecessor company), in each case without duplication.

ARTICLE II

LOANS, CLOSING RATE AND NOTES

2.1

Loans. Each of the parties hereto acknowledges and agrees that on the Closing Date (which shall be a Business Day), the Term Loan Amendment and Assumption shall occur, pursuant to which each Lender will be deemed to have made Loans to the Borrowers (as co-obligors) under this Agreement (relative to such Lender, its “Loans”), with the principal amount of each Loan as of the Closing Date being the principal amount, and in the Lender’s Percentage, in each case set forth opposite the name of such Lender on Schedule II hereto. Each of the Lenders on the Closing Date, by operation of the Term Loan Amendment Agreement, shall be deemed to have agreed to, and shall be bound by, the terms and conditions hereof, without any further action or consent on the part of such Lender. No amounts paid or prepaid with respect to the Loans may be reborrowed.

2.2

Closing Rate. On the Closing Date, all of the Loans shall be LIBO Rate Loans with an Interest Period of one (1) month.

2.3

Continuation and Conversion Elections. By delivering a Continuation/Conversion Notice to the Administrative Agent on or before 1:00 p.m., New York time, on a Business Day, a Borrower may from time to time irrevocably elect, on not less than one (1) Business Day’s notice in the case of Base Rate Loans, or three (3) Business Days’ notice in the case of LIBO Rate Loans, and in either case not more than five (5) Business Days’ notice, that all, or any portion in an aggregate minimum amount of $1,000,000 and an integral multiple of $250,000 be, in the case of Base Rate Loans, converted into LIBO Rate Loans, or in the case of LIBO Rate Loans, converted into Base Rate Loans or continued as LIBO Rate Loans (in the absence of delivery of a Continuation/Conversion Notice with respect to any LIBO Rate Loan at least three (3) Business Days (but not more than five (5) Business Days) before the last day of the then current Interest Period with respect thereto, such LIBO Rate Loan shall, on such last day, automatically convert to a Base Rate Loan); provided that, (i) each such conversion or continuation shall be pro rated among the applicable outstanding Loans of all Lenders that have made such Loans, and (ii) no portion of the outstanding principal amount of any Loans may be continued as, or be converted into, LIBO Rate Loans when any Default has occurred and is continuing. Each such irrevocable request may be made by telephone confirmed promptly by facsimile to the Administrative Agent of the applicable Continuation/Conversion Notice. The conversion of a Base Rate Loan into a LIBO Rate Loan or a LIBO Rate Loan into a Base Rate Loan shall not effect a novation of the Loan so converted.

2.4

Funding. Each Lender may, if it so elects, fulfill its obligation to continue or convert LIBO Rate Loans hereunder by causing one of its foreign branches or Affiliates (or an international banking facility created by such Lender) to make or maintain such LIBO Rate Loan; provided that, such LIBO Rate Loan shall nonetheless be deemed to have been made and to be held by such Lender, and the obligation of the Borrowers to repay such LIBO Rate Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or international banking facility. In addition, the Borrowers hereby consent and agree that, for purposes of any determination to be made for purposes of Sections 4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed that each Lender elected to fund all LIBO Rate Loans by purchasing Dollar deposits in its LIBOR Office’s interbank Eurodollar market.

2.5

(a)

The Borrowers hereby designate the Administrative Agent to serve as the Borrowers’ agent, solely for the purpose of this clause, to maintain a register (the “Register”) on which the Administrative Agent will record the Loans issued by the Borrowers hereunder and held by each Lender (and SPC), each repayment in respect of the principal amount of the Loans, and each assignment or transfer of an interest in any Loan made pursuant to Section 10.11, annexed to which the Administrative Agent shall retain a copy of each Lender Assignment Agreement delivered to the Administrative Agent pursuant to Section 10.11. Failure to make any recordation, or any error in such recordation, shall not affect any Credit Party’s Obligations. The entries in the Register shall be conclusive and binding in the absence of manifest error, and the Borrowers, the Administrative Agent, and the Lenders (including any SPC) shall treat each Person in whose name a Loan is registered as the owner thereof for the purposes of all Loan Documents, notwithstanding notice or any provision herein to the contrary. Any assignment or transfer of the Loans made pursuant hereto shall be registered in the Register only upon delivery to the Administrative Agent of a Lender Assignment Agreement that has been executed by the requisite parties pursuant to Section 10.11. No assignment or transfer of a Lender’s (or SPC’s) Loans shall be effective unless such assignment or transfer shall have been recorded in the Register by the Administrative Agent as provided in this Section.

(b)

Upon the request of any Lender made through the Administrative Agent, the Borrowers shall execute and deliver to each Lender a Note evidencing the Loans held by, and payable to the order of, such Lender in a maximum principal amount equal to such Lender’s Percentage of the Loan. The Borrowers hereby irrevocably authorize each Lender to make (or cause to be made) appropriate notations on the grid attached to such Lender’s Note (or on any continuation of such grid), which notations, if made, shall evidence, inter alia, the date of, the outstanding principal amount of, and the interest rate and Interest Period applicable to the Loans evidenced thereby. Such notations shall, to the extent not inconsistent with notations made by the Administrative Agent in the Register, be conclusive and binding on each Credit Party absent manifest error; provided that, the failure of any Lender to make any such notations shall not limit or otherwise affect any Obligations of any Credit Party.

ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES

3.1

Repayments and Prepayments; Application. The Borrowers agree that the Loans shall be repaid and prepaid pursuant to the following terms.

3.1.1

Repayments and Prepayments. The Borrowers shall repay in full the unpaid principal amount of each Loan on the Stated Maturity Date. Prior thereto, payments and prepayments of the Loans shall or may be made as set forth below.

(a)

From time to time on any Business Day, the Borrowers may make a voluntary prepayment, in whole or in part, of the outstanding principal amount of any Loans; provided that, (i) all such voluntary prepayments shall require, in the case of Base Rate Loans at least the same Business Day’s prior notice (such notice to be delivered before noon New York time on such day), and in the case of LIBO Rate Loans at least three (3) Business Days’ prior notice (such notice to be delivered before noon New York time on such day), and in either case not more than five (5) Business Days’ prior irrevocable notice to the Administrative Agent (which notice may be telephonic so long as such notice is confirmed in writing within 24 hours thereafter and such notice to be delivered before noon New York time on such day); and (ii) all such voluntary partial prepayments shall be, in the case of LIBO Rate Loans, in an aggregate minimum amount of $500,000 and an integral multiple of $500,000 and, in the case of Base Rate Loans, in an aggregate minimum amount of $500,000 and an integral multiple of $100,000. Each notice of prepayment sent pursuant to this clause shall specify the prepayment date and the principal amount of each Loan (or portion thereof) to be prepaid. Each such notice shall be irrevocable and shall commit the Borrowers to prepay such Loan (or portion thereof) by the amount stated therein on the date stated therein; provided that a notice of prepayment may state that such notice is conditioned upon the effectiveness of other credit facilities or the occurrence of an event specified in such notice, in which case such notice may be revoked by the Borrowers (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. All prepayments under this clause shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.

(b)

On the Stated Maturity Date and on each Quarterly Payment Date occurring during any period set forth below, the Borrowers shall make a scheduled repayment of the aggregate outstanding principal amount, if any, of all Loans in an amount equal to the amount set forth below opposite the Stated Maturity Date or such Quarterly Payment Date, as applicable, and the Lenders agree that any reduction in the amount of any required amortization payments set forth in this clause, or any extension of any of the dates for payment set forth in this clause, shall in each case require the consent of all Lenders.


Payment Date	Amount of Required Principal Repayment
Each Quarterly Payment Date commencing on September 30, 2014 through March 31, 2018	$2,500,000
The Stated Maturity Date	The then outstanding amount of Loans

(c)

On each occasion that a Prepayment Event occurs, the Borrowers shall, within one (1) Business Day after the occurrence of a Debt Incurrence Prepayment Event and within five (5) Business Days after the occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within five (5) Business Days after the Reinvestment Period relating to such Prepayment Event or 180 days thereafter, as applicable), prepay, in accordance with Section 3.1.2 below, the principal amount of Loans in an amount equal to 100% of the Net Cash Proceeds from such Prepayment Event. If all or substantially all of the Capital Securities of any Credit Party are sold or any Credit Party is sold as a going concern on any date, the sale proceeds shall be allocated as follows: (x) that portion of the sale proceeds equal to the aggregate value of “Accounts” and “Cost” of “Inventory” (in each case, as defined in the ABL Credit Agreement as at the date hereof) shall be allocated to the ABL Collateral (as defined in the ABL/Term Loan Intercreditor Agreement) of the Credit Parties so sold and shall be deemed to be proceeds thereof and (y) the balance of sale proceeds shall be allocated to the Collateral of the Credit Parties so sold and shall be deemed to be proceeds thereof and applied pursuant to the foregoing sentence. Notwithstanding the foregoing, in the event of a Casualty Event occurring with respect to the ABL Collateral (as defined in the ABL/Term Loan Intercreditor Agreement), the insurance proceeds thereof shall be applied to the ABL Obligations (as defined in the ABL/Term Loan Intercreditor Agreement) to the extent required under the Intercreditor Agreements and subsequent to the Discharge of ABL Obligations (as defined in the ABL/Term Loan Intercreditor Agreement), shall be applied in accordance with this Section 3.1.1(c).

(d)

Within 90 days after the close of each Fiscal Year (beginning with the close of the 2014 Fiscal Year) (such date within such 90 day period, the “Excess Cash Flow Payment Date”) the Borrowers shall make a mandatory prepayment of the Loans in an amount equal to 75% of Excess Cash Flow (if any) for such Fiscal Year, which shall be reduced to 50% of Excess Cash Flow for such Fiscal Year if the Total Leverage Ratio as of the last day of the immediately preceding Fiscal Year is no greater than 1.00:1.00; provided that, (i) the amount due on any Excess Cash Flow Payment Date shall be reduced by the amount of any voluntary prepayments of the Loans pursuant to Section 3.1.1(a) during such period and (ii) on one occasion during the term of the Loans, the amount due on any Excess Cash Flow Payment Date may, at the New Borrower’s election, be reduced by an amount not to exceed $7,500,000 to make the minimum required statutory pension contributions in the immediately succeeding Fiscal Year with respect to the Covered Plans (provided further that, any amount so deducted from Excess Cash Flow for the current Fiscal Year under this clause (ii) shall not be deducted in computing Excess Cash Flow for the next Fiscal Year pursuant to clause (ix) of the definition of Excess Cash Flow); and

(e)

Immediately upon any acceleration of the Stated Maturity Date of any Loans pursuant to Section 8.2 or Section 8.3, the Borrowers shall repay all the Loans, unless, pursuant to Section 8.3, only a portion of all the Loans is so accelerated (in which case the portion so accelerated shall be so repaid).

Each prepayment of any Loans made pursuant to this Section shall be without premium or penalty, except as may be required by Section 4.4.

3.1.2

Application. Amounts prepaid pursuant to Section 3.1.1 shall be applied as set forth in this Section.

(a)

Subject to clause (b), each prepayment or repayment of the principal of the Loans shall be applied, to the extent of such prepayment or repayment, first, to the principal amount thereof being maintained as Base Rate Loans, and second, subject to the terms of Section 4.4, to the principal amount thereof being maintained as LIBO Rate Loans, in each case in a manner that minimizes the amount of any payments required to be made by the Borrowers pursuant to Section 4.4.

(b)

Each prepayment of the Loans made pursuant to clause (a) of Section 3.1.1 shall be applied (A) to the next four (4) scheduled Loan amortization payments in direct order of maturity of such amortization payments, and (B) thereafter, pro rata to the remaining scheduled Loan amortization payments (but in each case and in all events, on a pro rata basis among all Lenders holding such Loans). Each prepayment of the Loans made pursuant to clauses (c) and (d) of Section 3.1.1 shall be applied pro rata to the remaining scheduled Loan amortization payments. Once all Loans have been repaid in full, proceeds of mandatory prepayments will be applied to repay outstanding Second Lien Loans until repaid in full (as set forth in the Second Lien Credit Agreement). Amounts in excess thereof shall be retained by the Borrowers. Notwithstanding the foregoing, any AHYDO Catch-Up Mandatory Payment will be applied solely to the Second Lien Loans.

3.2

Interest Provisions. Interest on the outstanding principal amount of the Loans shall accrue and be payable in accordance with the terms set forth below.

3.2.1

Rates. Subject to Section 2.3, pursuant to an appropriately delivered Continuation/Conversion Notice, the Borrowers may elect that the Loans accrue interest at a rate per annum:

(a)

on that portion maintained from time to time as a Base Rate Loan, equal to the sum of the Alternate Base Rate, from time to time in effect plus the Applicable Margin; and

(b)

on that portion maintained as a LIBO Rate Loan, during each Interest Period applicable thereto, equal to the sum of the LIBO Rate (Reserve Adjusted) for such Interest Period plus the Applicable Margin.

All LIBO Rate Loans shall bear interest from and including the first day of the applicable Interest Period to (but not including) the last day of such Interest Period at the interest rate determined as applicable to such LIBO Rate Loan.

3.2.2

Post-Default Rates.

(a)

If any amount of principal of any Loan is not paid when due (without regard to applicable grace periods), whether at stated maturity, by acceleration, or otherwise, then such amount shall bear interest (after as well as before judgment) at a rate per annum at all times equal to the rate of interest that otherwise would be applicable to such Loan plus 2% per annum, to the fullest extent permitted by law;

(b)

If any amount (other than principal of any Loan) payable by the Borrowers under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then such amount shall bear interest (after as well as before judgment) at a rate per annum at all times equal to the Base Rate from time to time in effect, plus the Applicable Margin for Loans accruing interest at the Base Rate, plus a margin of 2% per annum, to the fullest extent permitted by law;

(c)

After the date that any Event of Default has occurred under Section 8.1.8, the Borrowers shall pay interest (after as well as before judgment) on all outstanding Obligations at a rate per annum equal to (a) in the case of principal on any Loan, the rate of interest that otherwise would be applicable to such Loan plus 2% per annum; and (b) in the case of overdue interest, fees, and other monetary Obligations, the Base Rate from time to time in effect, plus the Applicable Margin for Loans accruing interest at the Base Rate, plus a margin of 2% per annum, in each case, to the fullest extent permitted by law; and

(d)

After the date that any other Event of Default has occurred for any reason, whether voluntary or involuntary, and be continuing, the Administrative Agent, on the direction of the Required Lenders, may direct that the Borrowers shall pay interest (after as well as before judgment) on all outstanding Obligations at a rate per annum equal to (a) in the case of principal on any Loan, the rate of interest that otherwise would be applicable to such Loan plus 2% per annum; and (b) in the case of overdue interest, fees, and other monetary Obligations, the Base Rate from time to time in effect, plus the Applicable Margin for Loans accruing interest at the Base Rate, plus a margin of 2% per annum, in each case, to the fullest extent permitted by law.

3.2.3

Payment Dates. Interest accrued on each Loan shall be payable, without duplication:

(a)

on the Stated Maturity Date therefor;

(b)

except as set forth in clause (c) below, on the date of any payment or prepayment, in whole or in part, of principal outstanding on such Loan on the principal amount so paid or prepaid;

(c)

with respect to Base Rate Loans, on each Quarterly Payment Date occurring after the Closing Date;

(d)

with respect to LIBO Rate Loans, on the last day of each applicable Interest Period;

(e)

with respect to any Base Rate Loans converted into LIBO Rate Loans on a day when interest would not otherwise have been payable pursuant to clause (c), on the date of such conversion; and

(f)

on that portion of any Loans the Stated Maturity Date of which is accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration.

Interest accrued on Loans or other monetary Obligations after the date such amount is due and payable (whether on the Stated Maturity Date, upon acceleration or otherwise) shall be payable upon demand.

3.3

Fees. The Borrowers agree to pay the fees set forth below. All such fees shall be non-refundable.

3.3.1

Administrative Agent’s Fee. The Borrowers agree to pay to the Administrative Agent, for its own account, the fees and expenses (including documented, reasonable attorney’s fees and expenses) in the amounts and on the dates set forth in the Fee Letter.

3.4

Nature and Extent of Each Borrower’s Liability.

3.4.1

Joint and Several Liability. Each Borrower shall be liable for, on a joint and several basis, and hereby jointly and severally, absolutely, unconditionally and irrevocably guarantees the full and punctual payment when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all Obligations of each other Borrower now or hereafter existing, whether for principal, interest (including interest accruing at the then applicable rate provided after the occurrence of any Event of Default set forth in Section 8.1.8, whether or not a claim for post-filing or post-petition interest is allowed under Applicable Law following the institution of a proceeding under bankruptcy, insolvency or similar laws), fees, expenses or otherwise (including all such amounts which would become due but for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)), regardless of which Borrower actually may have received the proceeds of any Loans or other extensions of credit hereunder or the amount of such Loans received or the manner in which Administrative Agent or any Lender accounts for such Loans or other extensions of credit on its books and records, it being acknowledged and agreed that Loans to any Borrower inure to the mutual benefit of all Borrowers and that Administrative Agent and the Lenders are relying on the joint and several liability of the Borrowers in extending the Loans and other financial accommodations hereunder.

3.4.2

or in any other term of, all or any part of the Obligations, or any other extension, compromise or renewal of any Obligation, (iv) any reduction, limitation, impairment or termination of any Obligations (except in the case of the occurrence of the Termination Date) for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and each Borrower hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, any Obligations or otherwise, (v) any amendment to, rescission, waiver, or other modification of, or any consent to or departure from, any of the terms of any Loan Document, (vi) any addition, exchange or release of any collateral or of any Person that is (or will become) a borrower (including a Borrower hereunder) of the Obligations, or any surrender or non-perfection of any collateral, or any amendment to or waiver or release or addition to, or consent to or departure from, any other guaranty held by any Secured Party securing any of the Obligations; or (vii) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, any Borrower, any surety or any guarantor.

3.4.3

Partial Release of Liability for Obligations. No payment or payments made by an Credit Party or received or collected by the Administrative Agent from a Borrower or any other Person by virtue of any action or proceeding or any setoff or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Borrower for the balance of Obligations remaining due under this Agreement, and each Borrower shall remain jointly and severally liable for the payment and performance of all Obligations until the Termination Date.

3.4.4

Postponement of Subrogation, etc. Each Borrower agrees that it will not exercise any rights which it may acquire by way of rights of subrogation under any Loan Document to which it is a party, nor shall any Borrower seek or be entitled to seek any contribution or reimbursement from any Credit Party, in respect of any payment made under any Loan Document or otherwise, until following the Termination Date. Any amount paid to any Borrower on account of any such subrogation rights prior to the Termination Date shall be held in trust for the benefit of the Secured Parties and shall immediately be paid and turned over to the Administrative Agent for the benefit of the Secured Parties in the exact form received by such Borrower (duly endorsed in favor of the Administrative Agent, if required), to be credited and applied against the Obligations, whether matured or unmatured, in accordance with the terms of this Agreement; provided, however, that if any Borrower has made payment to the Secured Parties of all or any part of the Obligations and the Termination Date has occurred, then at such Borrower’s written request, the Administrative Agent (on behalf of the Secured Parties) will, at the expense of such Borrower, execute and deliver to such Borrower appropriate documents (in form and substance satisfactory to the Administrative Agent and without recourse and without representation or warranty) necessary to evidence the transfer by subrogation to such Borrower of an interest in the Obligations resulting from such payment. In furtherance of the foregoing, at all times prior to the Termination Date, each Borrower shall refrain from taking any action or commencing any proceeding against any Credit Party (or its successors or assigns, whether in connection with a bankruptcy proceeding or otherwise) to recover any amounts in respect of payments made under Section 3.4.1 to any Secured Party.

ARTICLE IV

CERTAIN LIBO RATE AND OTHER PROVISIONS

4.1

LIBO Rate Lending Unlawful. If any Lender shall determine (which determination shall, upon notice thereof to the Borrowers and the Administrative Agent, be conclusive and binding on the Borrowers) that the introduction of or any change in or in the interpretation of any law makes it unlawful, or any Governmental Authority asserts that it is unlawful, for such Lender to make or continue any Loan as, or to convert any Loan into, a LIBO Rate Loan, the obligations of such Lender to make, continue or convert any such LIBO Rate Loan shall, upon such determination, forthwith be suspended until such Lender shall notify the Administrative Agent that the circumstances causing such suspension no longer exist, and all outstanding LIBO Rate Loans payable to such Lender shall automatically convert into Base Rate Loans at the end of the then current Interest Periods with respect thereto or sooner, if required by such law or assertion.

4.2

Deposits Unavailable. If the Administrative Agent shall have determined that (a) Dollar deposits in the relevant amount and for the relevant Interest Period are not available to it in its relevant market; or (b) by reason of circumstances affecting its relevant market, adequate means do not exist for ascertaining the interest rate applicable hereunder to LIBO Rate Loans; then, upon notice from the Administrative Agent to the Borrowers and the Lenders, the obligations of all Lenders under Section 2.3 and Section 2.4 to make or continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall forthwith be suspended until the Administrative Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist.

4.3

Increased LIBO Rate Loan Costs, etc. The Borrowers agree to reimburse each Secured Party for any increase in the cost to such Secured Party of, or any reduction in the amount of any sum receivable by such Secured Party in respect of, such Secured Party’s Loans hereunder (including the making, continuing or maintaining (or of its obligation to make or continue) any Loans as, or of converting (or of its obligation to convert) any Loans into, LIBO Rate Loans) that arise in connection with any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase in after the Closing Date of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any Governmental Authority, except for such changes with respect to increased capital costs (which are governed by Section 4.5), any Indemnified Taxes or any Excluded Taxes. Each affected Secured Party shall promptly notify the Administrative Agent and the Borrowers in writing of the occurrence of any such event, stating the reasons therefor and the additional amount required fully to compensate such Secured Party for such increased cost or reduced amount. Such additional amounts shall be payable by the Borrowers directly to such Secured Party within five days of its receipt of such notice, and such notice shall, in the absence of manifest error, be conclusive and binding on the Borrowers.

4.4

Funding Losses. In the event any Lender shall incur any loss or expense (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to make or continue any portion of the principal amount of any Loan as, or to convert any portion of the principal amount of any Loan into, a LIBO Rate Loan) as a result of:

(a)

any conversion or repayment or prepayment of the principal amount of any LIBO Rate Loan on a date other than the scheduled last day of the Interest Period applicable thereto, whether pursuant to Article III or otherwise;

(b)

any Loans not being continued as, or converted into, LIBO Rate Loans in accordance with the Continuation/Conversion Notice therefor; or

(c)

any LIBO Rate Loans not being prepaid in accordance with any notice delivered pursuant to clause (a) of Section 3.1.1 (as a result of a revocation of such notice or as a result of such payment not being made);

but in each case other than due to such Lender’s failure to fulfill its obligations hereunder then, upon the written notice of such Lender to the Borrowers, the Borrowers shall, within ten (10) days of its receipt thereof, pay directly to such Lender such amount as will (in the reasonable determination of such Lender) reimburse such Lender for such loss or expense. Such written notice shall, in the absence of manifest error, be conclusive and binding on the Borrowers.

4.5

Increased Capital Costs. If any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any Governmental Authority (provided that, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “change in law” for the purposes of the foregoing, regardless of the date enacted, adopted or issued) affects or would affect the amount of capital required or expected to be maintained by any Secured Party or any Person controlling such Secured Party, and such Secured Party determines (in good faith but in its sole and absolute discretion) that the rate of return on its or such controlling Person’s capital as a consequence of the Loans held by such Secured Party is reduced to a level below that which such Secured Party or such controlling Person could have achieved but for the occurrence of any such circumstance, then upon notice from time to time by such Secured Party to the Borrowers, the Borrowers shall within five days following receipt of such notice pay directly to such Secured Party additional amounts sufficient to compensate such Secured Party or such controlling Person for such reduction in rate of return. A statement of such Secured Party as to any such additional amount or amounts shall, in the absence of manifest error, be conclusive and binding on the Borrowers. In determining such amount, such Secured Party may use any method of averaging and attribution that it (in its sole and absolute discretion) shall deem applicable.

4.6

Taxes. The Borrowers covenant and agree as follows with respect to Taxes.

(a)

Any and all payments by or on account of the Borrowers or any other Credit Party under any Loan Document shall be made without setoff, counterclaim or other defense, and free and clear of, and without deduction or withholding for or on account of, any Taxes except to the extent that deduction or withholding of such Taxes is required by Applicable Law. In the event that any such Taxes are required by Applicable Law to be deducted or withheld from any

payment required to be made to or on behalf of the Borrowers or any other Credit Party under any Loan Document, then:

(i)

subject to clause (f), if such Taxes are Indemnified Taxes or Other Taxes, the Borrowers and each Credit Party shall increase the amount of such payment so that each Secured Party receives an amount equal to the amount it would have received had no such deduction or withholding been made; and

(ii)

the Borrowers or the Administrative Agent (as applicable) shall withhold the full amount of such Taxes from such payment (as increased pursuant to clause (a)(i)) and shall pay such amount to the Governmental Authority imposing such Taxes in accordance with Applicable Law.

(b)

In addition, the Borrowers shall pay all Other Taxes imposed to the relevant Governmental Authority imposing such Other Taxes in accordance with Applicable Law, or at the option of the Administrative Agent, timely reimburse it for the payment of Other Taxes.

(c)

The Borrowers shall furnish to the Administrative Agent, as promptly as reasonably practicable after any such payment is made, an official receipt (or a certified copy thereof) or other proof of payment satisfactory to the Administrative Agent, acting reasonably, evidencing the payment of such Taxes or Other Taxes. The Administrative Agent shall make copies thereof available to any Lender upon request therefor.

(d)

Subject to clause (f), the Borrowers shall indemnify each Secured Party for any Indemnified Taxes and Other Taxes (including Indemnified Taxes and Other Taxes imposed or asserted on, or attributable to, amounts payable under this Section 4.6) paid by such Secured Party, whether or not such Indemnified Taxes or Other Taxes were correctly or legally asserted by the relevant Governmental Authority. With respect to the indemnification provided in this Section 4.6(d), such indemnification shall be made within 10 days after the date such Secured Party makes written demand therefor.

(e)

documentation as is reasonably requested by the Borrowers or the Administrative Agent to comply with FATCA. The Administrative Agent shall deliver to the Borrowers such IRS forms as are required to ensure that payments made to the Administrative Agent are not subject to withholding, but only to the extent that the Administrative Agent is legally entitled to do so. Each Lender agrees to promptly notify the Borrowers and the Administrative Agent in writing of any change in circumstances which would modify or render invalid any claimed exemption or reduction. In addition, each Lender shall timely deliver to the Borrowers and the Administrative Agent two further copies of such Form W-8BEN, W-8IMY, W-8ECI or W-9 or successor forms on or before the date that any previously executed form expires or becomes obsolete, or after the occurrence of any event requiring a change in the most recent form delivered by such Person to the Borrowers.

(f)

The Borrowers shall not be obligated to pay any additional amounts to any Secured Party pursuant to clause (a)(i), or to indemnify any Secured Party pursuant to clause (d), in respect of United States federal withholding taxes to the extent imposed as a result of (i) the failure, inability or ineligibility of such Secured Party to deliver to the Borrowers the form or forms and/or an Exemption Certificate, as applicable to such Secured Party, pursuant to clause (e), (ii) such form or forms and/or Exemption Certificate not establishing a complete exemption from U.S. federal withholding tax or the information or certifications made therein by the Secured Party being untrue or inaccurate on the date delivered in any material respect, or (iii) the Secured Party designating a successor lending office at which it maintains its Loans which has the effect of causing such Secured Party to become obligated for tax payments in excess of those in effect immediately prior to such designation; provided that, the Borrowers shall be obligated to pay additional amounts to any such Secured Party pursuant to clause (a)(i), and to indemnify any such Secured Party pursuant to clause (d), in respect of United States federal withholding taxes if (i) any such failure to deliver a form or forms or an Exemption Certificate or the failure of such form or forms or Exemption Certificate to establish a complete exemption from U.S. federal withholding tax resulted from a change in any applicable statute, treaty, regulation or other Applicable Law or any official interpretation of any of the foregoing occurring after the Closing Date (or in the case of an Assignee Lender, after the date of the assignment, except to the extent that the applicable assigning lender was entitled to receive additional amounts with respect to such payment), which change rendered such Secured Party no longer legally entitled to deliver such form or forms or Exemption Certificate or otherwise ineligible for a complete exemption from U.S. federal withholding tax, (ii) the redesignation of the Secured Party’s lending office was made at the request of the Borrowers or (iii) the obligation to pay any additional amounts to any such Secured Party pursuant to clause (a)(i) or to indemnify any such Secured Party pursuant to clause (d) is with respect to an Assignee Lender that becomes an Assignee Lender as a result of an assignment made at the request of the Borrowers.

(g)

pocket expenses (including Taxes) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund or credit in lieu of such refund); provided, that the Borrowers, upon request of the Lender or the Administrative Agent, shall repay to the Lender or the Administrative Agent the amount paid over pursuant to this clause (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that the Lender or the Administrative Agent is required to repay such refund or credit in lieu of such refund to such Governmental Authority and, provided further, that in no event will the Lender or the Administrative Agent be required to pay any amount pursuant to this clause (g) the payment of which would place the Lender or Administrative Agent in a less favorable net after-Tax position than it would have been if the Indemnified Taxes or Other Taxes had not been imposed and the corresponding additional amounts or indemnification payment not been made. Neither the Lenders nor the Administrative Agent shall be obligated to disclose information regarding its tax affairs or computations to the Borrowers in connection with this clause (g) or any other provision of this Section that such Lender or the Administrative Agent reasonably deems confidential.

4.7

Payments, Computations; Proceeds of Collateral, etc. (a) Unless otherwise expressly provided in a Loan Document, all payments by the Borrowers pursuant to each Loan Document shall be made by the Borrowers to the Administrative Agent for the pro rata account of the Secured Parties entitled to receive such payment. All payments shall be made without setoff, deduction or counterclaim not later than 11:00 a.m. New York time on the date due in same day or immediately available funds to such account as the Administrative Agent shall specify from time to time by notice to the Borrowers. Funds received after that time shall be deemed to have been received by the Administrative Agent on the next succeeding Business Day. The Administrative Agent shall promptly remit in same day funds to each Secured Party its share, if any, of such payments received by the Administrative Agent for the account of such Secured Party. All interest (including interest on LIBO Rate Loans) and fees shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period for which such interest or fee is payable over a year comprised of 360 days (or, in the case of interest on a Base Rate Loan (calculated at other than the Federal Funds Rate), 365 days or, if appropriate, 366 days). Payments due on other than a Business Day shall (except as otherwise required by clause (b) of the proviso in the definition of “Interest Period”) be made on the next succeeding Business Day and such extension of time shall be included in computing interest and fees in connection with that payment.

(b)

after payment in full in cash of the amounts specified in clauses (b)(i) and (b)(ii), to the ratable payment of the principal amount of the Loans then outstanding and the net credit exposure owing to Secured Parties under Hedge Agreements, if any, (iv) fourth, after payment in full in cash of the amounts specified in clauses (b)(i) through (b)(iii), to the ratable payment of all other Obligations owing to the Secured Parties, and (v) fifth, after payment in full in cash of the amounts specified in clauses (b)(i) through (b)(iv), and following the Termination Date, to each applicable Credit Party or any other Person lawfully entitled to receive such surplus. For purposes of clause (b)(iii), the “net credit exposure” at any time of any Secured Party with respect to a Hedge Agreement to which such Secured Party is a party shall be determined by such Secured Party (and such Secured Party shall notify the Administrative Agent in writing) at such time in accordance with the customary methods of calculating net credit exposure under similar arrangements by the counterparty to such arrangements, taking into account potential interest rate (or, if applicable, currency) movements and the respective termination provisions and notional principal amount and term of such Hedge Agreement.

4.8

Sharing of Payments. If any Secured Party shall obtain any payment or other recovery (whether voluntary, involuntary, by application of setoff or otherwise) on account of any Loan (other than pursuant to the terms of Sections 4.3, 4.4, 4.5 or 4.6) in excess of its pro rata share of payments obtained by all Secured Parties, such Secured Party shall purchase for cash at face value from the other Secured Parties such participations in Loans held by them as shall be necessary to cause such purchasing Secured Party to share the excess payment or other recovery ratably (to the extent such other Secured Parties were entitled to receive a portion of such payment or recovery) with each of them; provided that, if all or any portion of the excess payment or other recovery is thereafter recovered from such purchasing Secured Party, the purchase shall be rescinded and each Secured Party which has sold a participation to the purchasing Secured Party shall repay to the purchasing Secured Party the purchase price to the ratable extent of such recovery together with an amount equal to such selling Secured Party’s ratable share (according to the proportion of (a) the amount of such selling Secured Party’s required repayment to the purchasing Secured Party to (b) total amount so recovered from the purchasing Secured Party) of any interest or other amount paid or payable by the purchasing Secured Party in respect of the total amount so recovered. The Borrowers agree that any Secured Party purchasing a participation from another Secured Party pursuant to this Section may, to the fullest extent permitted by law, exercise all its rights of payment (including pursuant to Section 4.9) with respect to such participation as fully as if such Secured Party were the direct creditor of the Borrowers in the amount of such participation. If under any applicable bankruptcy, insolvency or other similar law any Secured Party receives a secured claim in lieu of a setoff to which this Section applies, such Secured Party shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Secured Parties entitled under this Section to share in the benefits of any recovery on such secured claim.

4.9

provided that, any such appropriation and application shall be subject to the provisions of Section 4.8. Each Secured Party agrees promptly to notify the Borrowers and the Administrative Agent in writing after any such appropriation and application made by such Secured Party; provided that, the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Secured Party under this Section are in addition to other rights and remedies (including other rights of setoff under Applicable Law or otherwise) which such Secured Party may have.

4.10

Replacement of Lenders. If any Lender (an “Affected Lender”) (a) fails to consent to an election, consent, amendment, waiver or other modification to this Agreement or other Loan Document that requires the consent of a greater percentage of the Lenders than the Required Lenders and such election, consent, amendment, waiver or other modification is otherwise consented to by the Required Lenders or (b) makes a demand upon the Borrowers for (or if the Borrowers are otherwise required to pay) amounts pursuant to Section 4.3, 4.5 or 4.6 (and the payment of such amounts is, and is likely to continue to be, materially more onerous in the reasonable judgment of the Borrowers than with respect to the other Lenders) or gives notice pursuant to Section 4.1 requiring a conversion of such Affected Lender’s LIBO Rate Loans to Base Rate Loans or suspending such Lender’s obligation to hold Loans as, or to convert Loans into, LIBO Rate Loans, the Borrowers may, within 30 days of receipt by the Borrowers of such demand or notice, as the case may be, give notice (a “Replacement Notice”) in writing to the Administrative Agent and such Affected Lender of its intention to cause such Affected Lender to sell all or any portion of its Loans and/or Notes to an Eligible Assignee (a “Replacement Lender”) designated in such Replacement Notice; provided, however, that no Replacement Notice may be given by the Borrowers if (i) such replacement conflicts with any Applicable Law or regulation, (ii) any Event of Default shall have occurred and be continuing at the time of such replacement or (iii) prior to any such replacement, such Lender shall have taken any necessary action under Section 4.5 or 4.6 (if applicable) which shall have eliminated the continued need for payment of amounts owing pursuant to Section 4.5 or 4.6. Within 30 days of its receipt of such Replacement Notice, the Affected Lender shall, subject to the payment of any amounts due pursuant to Section 4.4, assign, in accordance with Section 10.11, the portion of its Loans, Notes (if any), and other rights and obligations under this Agreement and all other Loan Documents designated in the replacement notice to such Replacement Lender; provided, however, that (i) such assignment shall be without recourse, representation or warranty and shall be on terms and conditions reasonably satisfactory to such Affected Lender and such Replacement Lender, (ii) the purchase price paid by such Replacement Lender shall be in the amount of such Affected Lender’s Loans designated in the Replacement Notice, together with all accrued and unpaid interest and fees in respect thereof, plus all other amounts (including the amounts demanded and unreimbursed under Sections 4.3, 4.5 and 4.6) and including any call premiums, owing to such Affected Lender hereunder and (iii) the Borrowers shall pay to the Affected Lender and the Administrative Agent all reasonable out-of-pocket expenses incurred by the Affected Lender and the Administrative Agent in connection with such assignment and assumption (including the processing fees described in Section 10.11). Upon the effective date of an assignment described above, the Replacement Lender shall become a “Lender” for all purposes under the Loan Documents. Each assignment pursuant to this Section 4.10 shall be effective upon the satisfaction of the conditions specified in this Section 4.10 without further action on the part of the applicable Affected Lender.

4.11

Change in Lending Office. If any Lender makes a demand upon the Borrowers for (or if the Borrowers are otherwise required to pay) amounts pursuant to Section 4.3, 4.5 or 4.6, or gives notice pursuant to Section 4.1 requiring a conversion of such Lender’s LIBO Rate Loans to Base Rate Loans or suspending such Lender’s obligation to hold Loans as, or to convert Loans into, LIBO Rate Loans, then such Lender shall use reasonable efforts to designate a different lending office with respect to its rights and obligations hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (a) would eliminate the need for such notice or reduce amounts payable or to be withheld in the future, as applicable; and (b) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrowers shall pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

ARTICLE V

CONDITIONS TO TERM LOAN AMENDMENT AND ASSUMPTION

The obligations of the Lenders to consummate the Term Loan Amendment and Assumption at the Closing Date shall be subject to the prior or concurrent satisfaction (or waiver in accordance with Section 10.1; provided that the conditions in Sections 5.2 and 5.3 may not be waived) of each of the conditions set forth in the Term Loan Amendment Agreement in addition to the following conditions precedent set forth in this Article.

5.1

Resolutions, etc. The Administrative Agent shall have received from each Credit Party, (i) a copy of a good standing certificate, dated a date reasonably close to the Closing Date, for each such Person and (ii) a certificate, dated as of the Closing Date, duly executed and delivered by such Person’s Secretary or Assistant Secretary, managing member or general partner, as applicable, as to:

(a)

resolutions of each such Person’s Board of Directors (or other managing body, in the case of other than a corporation) then in full force and effect authorizing, to the extent relevant, all aspects of the Transactions applicable to such Person and the execution, delivery and performance of each Loan Document to be executed by such Person and the transactions contemplated hereby and thereby;

(b)

the incumbency and signatures of those of its officers, managing member or general partner, as applicable, authorized to act with respect to each Loan Document to be executed by such Person; and

(c)

the full force and validity of each Organic Document of such Person and copies thereof;

upon which certificates each Secured Party may conclusively rely until it shall have received a further certificate of the Secretary, Assistant Secretary, managing member or general partner, as applicable, of any such Person canceling or amending the prior certificate of such Person.

5.2

Consummation of Transactions. The Administrative Agent shall have received a certificate of an Authorized Officer of the New Borrower to the effect that:

(a)

No amendment or other modification shall have been made of or to the Purchase Agreement or the Original ABL Credit Agreement; and

(b)

Concurrently with the closing of the issuance of Loans contemplated hereby, the Acquisition and other Transactions shall have been consummated in all material respects in accordance with the Purchase Agreement, the Initial Closing Date Second Lien Term Loan Amendment Agreement, the Term Loan Amendment Agreement and the other Transaction Documents.

5.3

Delivery of Notes. The Administrative Agent shall have received, for the account of each Lender that has requested a Note, such Lender’s Note(s) duly executed and delivered by an Authorized Officer of each Borrower.

5.4

Guarantees. The Administrative Agent shall have received each Subsidiary Guaranty, dated as of the Closing Date, duly executed and delivered by an Authorized Officer of each U.S. Subsidiary.

5.5

Security Agreements. The Administrative Agent shall have received executed counterparts of the Security Agreement, each dated as of the Closing Date, duly executed and delivered by the New Borrower and each U.S. Subsidiary (if any), together with:

(a)

certificates (in the case of Capital Securities that are securities (as defined in the UCC)) evidencing all of the issued and outstanding capital Securities owned by each Credit Party in its U.S. Subsidiaries and 65% (or, if less, such lesser amount owned by such Credit Party) of the issued and outstanding Voting Securities of each Foreign Subsidiary (together with all the issued and outstanding non-voting Capital Securities of such Foreign Subsidiary) directly owned by each Credit Party, which certificates in each case shall be accompanied by undated instruments of transfer duly executed in blank, or, if any Capital Securities (in the case of Capital Securities that are uncertificated securities (as defined in the UCC)), confirmation and evidence satisfactory to the Administrative Agent that the security interest therein has been transferred to and perfected by the Administrative Agent for the benefit of the Secured Parties in accordance with Articles 8 and 9 of the UCC and all laws otherwise applicable to the perfection of the pledge of such Capital Securities (provided that, foreign law pledge documents and legal opinions shall only be required (at the request of the Administrative Agent) in the event that any certificate delivered in accordance with Section 7.1.3(e) evidences an average amount of Liquidity for such Fiscal Quarter of below $15,000,000);

(b)

Filing Statements suitable in form for naming each Borrower and each Subsidiary Guarantor as a debtor and the Administrative Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or as the Required Lenders may require to perfect the security interests of the Administrative Agent pursuant to such Security Agreement;

(c)

UCC Form UCC-3 termination statements, if any, necessary to release all Liens and other rights of any Person (i) in any collateral described in any Security Agreement previously granted by any Person, and (ii) securing any of the Indebtedness identified in Part 5.5(c) of the Disclosure Schedule, together with such other UCC Form UCC-3 termination statements as the Required Lenders may reasonably request from such Credit Parties; and

(d)

certified copies of UCC Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Required Lenders, dated a date reasonably near to the Closing Date, listing all effective financing statements which name any Credit Party (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall, except with respect to Liens permitted by Section 7.2.8.), evidence a Lien on any Collateral described in any Loan Document).

5.6

Mortgages. Subject to Section 7.1.20, the Administrative Agent shall have received executed counterparts of each Mortgage, each dated as of the Closing Date, duly executed and delivered by the Existing Borrower with respect to each property owned by the Existing Borrower that secures the obligations of the Existing Borrower prior to the Acquisition, together with the additional deliverables referenced under clauses (a) through (c) of Section 7.1.18 with respect to each such Mortgage (to the same extent as required for any Additional Mortgage).

5.7

Intellectual Property Security Agreements. The Administrative Agent shall have received a Patent Security Agreement, a Copyright Security Agreement and a Trademark Security Agreement, as applicable, each dated as of the Closing Date, duly executed and delivered by each Credit Party that, pursuant to a Security Agreement, is required to provide such intellectual property security agreements to the Administrative Agent.

5.8

Filing Agent, etc. All Uniform Commercial Code financing statements or other similar financing statements and Uniform Commercial Code (Form UCC-3) termination statements required pursuant to the Loan Documents (collectively, the “Filing Statements”), shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Required Lenders (the “Filing Agent”). The Filing Agent shall have acknowledged in a writing satisfactory to the Required Lenders (i) the Filing Agent’s receipt of all Filing Statements, (ii) that the Filing Statements have either been submitted for filing in the appropriate filing offices or will be submitted for filing in the appropriate offices within ten (10) days following the Closing Date and (iii) that the Filing Agent will notify the Administrative Agent and its counsel of the results of such submissions within 30 days following the Closing Date.

5.9

Intercreditor Agreements. The Administrative Agent shall have received each Intercreditor Agreement, dated as of the Closing Date, duly executed and delivered by the parties thereto.

5.10

Patriot Act Disclosures. The Administrative Agent and each Lender shall have received all Patriot Act Disclosures requested by them prior to execution of this Agreement.

5.11

Compliance with Warranties, No Default, etc. The Administrative Agent shall have received a certificate of an Authorized Officer of the New Borrower to the effect that both before and after giving effect to the consummation of the Transactions:

(a)

the representations and warranties set forth in each Loan Document shall, in each case, be true and correct in all material respects with the same effect as if then made (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); and

(b)

no Default shall have then occurred and be continuing.

5.12

Legal Opinions. The Administrative Agent shall have received the executed legal opinions of (a) Gibson, Dunn & Crutcher LLP, special New York counsel to the Credit Parties and (b) local counsel to the Credit Parties in certain jurisdictions, in each case, as may be reasonably requested by the Administrative Agent and in form and substance reasonably satisfactory to the Administrative Agent. The Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinions.

5.13

Insurance. The Administrative Agent shall have received certificates of insurance evidencing the existence of insurance to be maintained by the New Borrower and its Subsidiaries pursuant to Section 7.1.8 and, if applicable, the designation of the Administrative Agent as an additional insured and loss payee as its interest may appear thereunder, or solely as the additional insured, as the case may be, thereunder (provided that if such endorsement as additional insured cannot be delivered by the Closing Date, the Administrative Agent may consent to such endorsement being delivered at such later date as it deems appropriate in the circumstances).

5.14

Fees. The Administrative Agent shall have received the fees required to be paid at the Closing by the Borrowers pursuant to the Fee Letter.

5.15

No Litigation. There shall be no action, suit, investigation litigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to materially and adversely affect the transactions contemplated by this Agreement and the other Loan Documents.

5.16

Closing Certificate; Third Party Consents. The Administrative Agent shall have received a certificate of an Authorized Officer of the New Borrower (a) certifying that each of the conditions precedent listed Section 5.10 and Section 5.14 have been satisfied and (b) either (i) attaching copies of all consents, licenses and approvals required or appropriate to be obtained from any Governmental Authority or other third-party in connection with the execution, delivery and performance by and the validity against each Credit Party of this Agreement and the other Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect or (ii) stating that no such consents, licenses or approvals are so required, provided, however that with respect to the Existing Borrower and its Subsidiaries such certification shall be based solely on information provided by the Existing Borrower.

5.17

Solvency Certificate. On the Closing Date, the Administrative Agent shall have received a certificate from an Authorized Officer of the New Borrower certifying that after

giving effect to the consummation of the Transactions, the New Borrower on a consolidated basis with its Subsidiaries is Solvent.

5.18

Know Your Customer. Any information reasonably required by a Lender and any other Secured Party to enable it to meet its internal “know your customer” compliance requirements and normal operating procedures shall have been delivered.

ARTICLE VI

REPRESENTATIONS AND WARRANTIES

In order to induce the Secured Parties to enter into this Agreement, the New Borrower represents and warrants to each Secured Party on the Closing Date as set forth in this Article.

6.1

Organization and Qualification. The New Borrower and each of its Subsidiaries is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. The New Borrower and each of its Subsidiaries is duly qualified and is authorized to do business and is in good standing as a foreign corporation in each state or jurisdiction listed in Part 6.1 of the Disclosure Schedule and in all other states and jurisdictions in which the failure of any the New Borrower or any of such Subsidiaries to be so qualified would have a Material Adverse Effect. Any inaccuracy of information included in Part 6.1 of the Disclosure Schedule with respect to the Existing Borrower and its Subsidiaries shall not for any purpose be deemed to create a breach of this representation and warranty.

6.2

Power and Authority. The New Borrower and each of its Subsidiaries is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and each of the other Loan Documents to which it is a party. The execution, delivery and performance of this Agreement and each of the other Loan Documents have been duly authorized by all necessary action and do not and will not (i) require any consent or approval of any of the holders of the Capital Securities of the New Borrower or any of its Subsidiaries; (ii) contravene the Organic Documents of the New Borrower or any of its Subsidiaries; (iii) violate, or cause the New Borrower or any of its Subsidiaries to be in default under, any provision of any Applicable Law, order, writ, judgment, injunction, decree, determination or award in effect having applicability to the New Borrower or any of its Subsidiaries; (iv) result in a breach of or constitute a default under (a) any indenture or loan or credit agreement or (b) any other agreement, lease or instrument to which the New Borrower or any of its Subsidiaries is a party or by which it or its Properties may be bound or affected the consequence of which would constitute a Material Adverse Effect; or (v) result in, or require, the creation or imposition of any Lien (other than Permitted Liens) upon or with respect to any of the Properties now owned or hereafter acquired by the New Borrower or any of its Subsidiaries; provided, that the foregoing representation and warranty shall not be made with respect to the Existing Borrower and its Subsidiaries.

6.3

thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application and principles of equity affecting the enforcement of creditors’ rights.

6.4

Capital Structure. As of the date hereof, Part 6.4 of the Disclosure Schedule states (i) the correct name of each Subsidiary, its jurisdiction of incorporation and the percentage of its Capital Securities having voting powers owned by each Person, (ii) the name of each corporate Affiliate of each Credit Party and the nature of the affiliation and (iii) the number of authorized and issued Capital Securities (and treasury shares) of each Credit Party and each of its Subsidiaries as of the close of the New Borrower’s most recently ended Fiscal Month. As of the date hereof, each Credit Party has good title to all of the shares it purports to own of the Capital Securities of each of its Subsidiaries, free and clear in each case of any Lien other than Permitted Liens. As of the date hereof: (x) all such Capital Securities have been duly issued and are fully paid and non-assessable; and (y) since December 30, 2012, no Credit Party has made, or obligated itself to make, any Distribution except as shown in Part 6.4 of the Disclosure Schedule. Except as shown in Part 6.4 of the Disclosure Schedule neither any Credit Party nor any Subsidiary holds, and no shares of the capital stock of any Credit Party or any Subsidiary are subject to, outstanding options to purchase, or any rights or warrants to subscribe for, or any commitments or agreements to issue or sell, or any Capital Securities or obligations convertible into, or any powers of attorney relating to such Capital Securities. Any inaccuracy of information included in Part 6.4 of the Disclosure Schedule with respect to the Existing Borrower and its Subsidiaries shall not for any purpose be deemed to create a breach of this representation and warranty.

6.5

Corporate Names. During the 5-year period preceding the date of this Agreement: (i) no Credit Party nor any of its Subsidiaries has been known as or used any corporate, fictitious or trade names except those listed in Part 6.5 of the Disclosure Schedule; and (ii) except as set forth in Part 6.5 of the Disclosure Schedule, no Credit Party nor any of its Subsidiaries has been the surviving corporation of a merger or consolidation or acquired all or substantially all of the assets of any Person. Any inaccuracy of information included in Part 6.5 of the Disclosure Schedule with respect to the Existing Borrower and its Subsidiaries shall not for any purpose be deemed to create a breach of this representation and warranty.

6.6

Business Locations; Agent for Process. Part 6.6 of the Disclosure Schedule contains a true and complete list of the following information, as of the date hereof: (i)the chief executive office of each Credit Party and each of its Subsidiaries including any other executive offices of each Credit Party and each of its Subsidiaries during the 5-year period preceding the date of this Agreement and (ii) the agent for service of process of the New Borrower and each of its Subsidiaries in their respective states of organization. All of the plant facilities and warehouses of each Credit Party and its Subsidiaries effective as of the date hereof are listed in Part 6.6 of the Disclosure Schedule. Any inaccuracy of information included in Part 6.6 of the Disclosure Schedule with respect to the Existing Borrower and its Subsidiaries shall not for any purpose be deemed to create a breach of this representation and warranty.

6.7

Priority of Liens. The Liens granted to the Administrative Agent pursuant to this Agreement and the other Security Documents are first priority Liens, subject only to those Permitted Liens which are expressly permitted by the terms of this Agreement to have priority over the Liens of the Administrative Agent.

6.8

Solvent Financial Condition. The New Borrower, after giving effect to the Transactions contemplated hereunder, is Solvent. The New Borrower and its Subsidiaries on a consolidated basis, after giving effect to the Transactions contemplated hereunder, are Solvent.

6.9

Brokers. Except for fees disclosed in writing to the Administrative Agent and paid on the Closing Date in connection with the Transactions, there are no claims against any Borrower for brokerage commissions, finder’s fees or investment banking fees in connection with the transactions contemplated by this Agreement or any of the other Loan Documents.

6.10

Governmental Approvals. To the Borrower’s Knowledge, the New Borrower and each of its Subsidiaries has, and is in good standing with respect to, all Governmental Approvals necessary to utilize the Loans hereunder and to consummate the transactions contemplated hereby and the other Loan Documents, except for issues relating to licenses, certificates of occupancy and other matters that are not reasonably likely to have a Material Adverse Effect.

6.11

Compliance with Applicable Laws. To the Borrower’s Knowledge, the New Borrower and each of its Subsidiaries has duly complied with, and its Properties, business operations and leaseholds are in compliance in all material respects with, the provisions of all Applicable Law, including all Terrorism Laws, necessary to consummate the transactions contemplated hereby and the other Loan Documents and there have been no citations, notices or orders of noncompliance issued to the New Borrower or any of the Subsidiaries with respect to the transactions contemplated hereby and the other Loan Documents under any such law, rule or regulation that could be reasonably expected to have a Material Adverse Effect.

6.12

Litigation. Except as set forth in Part 6.12 of the Disclosure Schedule, there are no actions, suits, proceedings or investigations pending or, to the Borrower’s Knowledge, threatened on the date hereof, against or affecting the New Borrower or any of its Subsidiaries, or the business, operations, Properties, prospects, profits or condition of the New Borrower or any of its Subsidiaries, (i) which relates to the transactions contemplated hereby and the other Loan Documents and (ii) which, if determined adversely to the New Borrower or any of its Subsidiaries, could reasonably be expected to have a Material Adverse Effect.

6.13

No Defaults. To the Borrower’s Knowledge, no event has occurred and no condition exists which would, upon or immediately after the execution and delivery of this Agreement or any Credit Party’s performance hereunder, constitute a Default or an Event of Default, except for conditions that could not reasonably be expected to have a Material Adverse Effect.

6.14

Investment Company Act. Each Borrower is not an “investment company” or a “person directly or indirectly controlled by or acting on behalf of an investment company” within the meaning of the Investment Company Act of 1940.

6.15

Margin Stock. Neither the New Borrower nor any of its Subsidiaries is engaged, principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock.

6.16

Security Documents. The provisions of the Security Documents are effective to create in favor of the Administrative Agent for the benefit of Lenders a legal, valid and

enforceable first priority Lien (subject to Permitted Liens) on all right, title and interest of the New Borrower and its Subsidiaries in the Collateral described therein. Except for filings completed prior to the Closing Date and as contemplated hereby and by the Security Documents, no filing or other action will be necessary to perfect or protect such Liens.

ARTICLE VII

COVENANTS

7.1

Affirmative Covenants. The New Borrower (for itself and its Subsidiaries) hereby covenants and agrees that, on the Closing Date and thereafter, until the Loans, together with interest, fees and all other Obligations incurred hereunder (other than contingent indemnification obligations for which no claim has been identified), are paid in full, unless the Required Lenders have otherwise consented in writing, the New Borrower will, and will cause its Subsidiaries to, perform or cause to be performed the obligations set forth below.

7.1.1

Visits and Inspections. The New Borrower will, and will cause each of its Subsidiaries to, permit representatives of the Administrative Agent, from time to time, as often as may be reasonably requested, but only during normal business hours and (except when a Default or Event of Default exists) upon reasonable prior notice to the Borrowers, to visit and inspect the Properties of the New Borrower and each of its Subsidiaries, inspect, audit, examine, conduct appraisals, and make extracts from the New Borrower’s and each Subsidiary’s books and records, and discuss with its officers, its employees and its independent accountants, the New Borrower’s and each Subsidiary’s business, financial condition, business prospects and results of operations. Up to one such visit per Fiscal Year shall be at the New Borrower’s expense; except when a Default or Event of Default exists, in which case all such visits shall be at the New Borrower’s expense. Representatives of each Lender shall be authorized to accompany Administrative Agent on each such visit and inspection and to participate with Administrative Agent therein, but at their own expense, unless a Default or Event of Default exists. Neither Administrative Agent nor any Lender shall have any duty to make any such inspection and shall not incur any liability by reason of its failure to conduct or delay in conducting any such inspection.

7.1.2

Notices. Notify the Administrative Agent and the Lenders in writing, within five (5) days after the Borrower’s Knowledge thereof, (i) of the commencement of any litigation affecting any Credit Party or any of its Properties, whether or not the claims asserted in such litigation are considered by the Credit Parties to be covered by insurance, and of the institution of any administrative proceeding, to the extent that such litigation or administrative proceeding, if determined adversely to such Credit Party, would reasonably be expected to have a Material Adverse Effect; (ii) of any material labor dispute to which any Credit Party may become a party, any strikes or walkouts relating to any of its plants or other facilities; (iii) of any material default by any Credit Party under or termination of any material contract, or any note, indenture, loan agreement, mortgage, lease, deed, guaranty or other similar agreement relating to any Indebtedness of such Credit Party exceeding $3,000,000; (iv) of the existence of any Default or Event of Default; (v) of any default by any Person under any note or other evidence of Indebtedness payable to a Credit Party in an amount exceeding $3,000,000; (vi) of any judgment against any Credit Party in an amount exceeding $3,000,000; (vii) of the assertion by any Person of any intellectual property claim, the adverse resolution of which could reasonably be expected

to have a Material Adverse Effect; (viii) of any violation or asserted violation by any Credit Party of any Applicable Law (including ERISA, OSHA, FLSA or any Environmental Laws), the adverse resolution of which could reasonably be expected to have a Material Adverse Effect; (ix) of any Release by a Credit Party or on any Property owned or occupied by a Credit Party which could reasonably be expected to have a Material Adverse Effect; (x) of the discharge of a Borrower’s independent accountants or any withdrawal of resignation by such independent accountants from their acting in such capacity; (xi) of the issuance or incurrence of any Indebtedness in excess of $2,000,000; (xii) of the issuance or sale of any Equity Interests of the New Borrower or any Subsidiary in excess of $1,000,000 or having a market value of 10% or more of the New Borrower’s or Subsidiary’s common Equity Interests; (xiii) of any disposition of any assets or Property or any interest therein to or in favor of any Person in excess of $2,000,000 or (xiv) copies of all notices, requests and other documents (including amendments, waivers and other modifications) received by any Credit Party or any Subsidiary under or pursuant to any ABL Document and, from time to time upon request by the Administrative Agent, such information and reports regarding the ABL Loans as the Administrative Agent may reasonably request. In addition, the Credit Parties shall give the Administrative Agent at least five (5) Business Days prior written notice of any Credit Party’s opening of any new chief executive office. At least five (5) days prior to the execution of a purchase and sale agreement by any Credit Party with respect to any proposed Acquisition, notify the Administrative Agent of such proposed Acquisition and deliver to the Administrative Agent copies of all acquisition documents related thereto and any other documents reasonably requested by the Administrative Agent with respect thereto.

7.1.3

Financial and Other Reporting. Keep adequate records and books of account with respect to its business activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and cause to be prepared and to be furnished to the Administrative Agent and the Lenders the following (all to be prepared in accordance with GAAP applied on a consistent basis, unless the New Borrower’s certified public accountants concur in any change therein, such change is disclosed to the Administrative Agent and is consistent with GAAP and, if required by the Required Lenders, the financial covenants set forth in Section 7.2.17 are amended in a manner requested by the Required Lenders to take into account the effects of such change):

(a)

as soon as available, and in any event within 90 days after the close of each Fiscal Year, audited balance sheets of the New Borrower and its Subsidiaries as of the end of such Fiscal Year and the related statements of income, shareholders’ equity and cash flow, on a consolidated basis, certified without material qualification by the firm of independent certified public accountants the New Borrower currently engages for this purpose, or any other firm reasonably acceptable to the Administrative Agent (except for a qualification for a change in accounting principles with which the accountant concurs), and setting forth in each case in comparative form the corresponding consolidated figures for the preceding Fiscal Year. The New Borrower may, at its discretion, satisfy this requirement by delivering to the Administrative Agent and the Lenders a copy of its Form 10K filed with the SEC with respect to any Fiscal Year within the time period specified above;

(b)

as soon as available, and in any event within 45 days after the end of each of the first 3 Fiscal Quarters in any Fiscal Year, excluding the last Fiscal Quarter of the New Borrower’s Fiscal Year, unaudited balance sheets of the New Borrower and its Subsidiaries and the related unaudited consolidated statements of income and cash flow in each case for such Fiscal Quarter and for the portion of the New Borrower’s Fiscal Year then elapsed, on a consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and for the New Borrower’s projections previously delivered pursuant to Section 7.1.5, and certified by the principal financial officer of the New Borrower as prepared in accordance with GAAP and fairly presenting the consolidated financial position and results of operations of the New Borrower and its Subsidiaries for such Fiscal Quarter and period subject only to changes from audit and year end adjustments and except that such statements need not contain notes. The New Borrower may, at their discretion, satisfy this requirement by delivering to the Administrative Agent and the Lenders a copy of its Form 10Q filed with the SEC with respect to any Fiscal Year within the time period specified above;

(c)

as soon as available, and in any event within 30 days after the end of each Fiscal Month hereafter (except information for the last Fiscal Month of any Fiscal Quarter shall be due at the time specified in subparagraph (b) above and information for the last Fiscal Month of any Fiscal Year shall be due in preliminary form at the time specified in subparagraph (b) above and in final form at the time specified in subparagraph (a) above), unaudited balance sheets of the New Borrower and its Subsidiaries and the related unaudited consolidated statements of income and cash flow in each case for such month and for the portion of the New Borrower’s Fiscal Year then elapsed, on a consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and for the New Borrower’s projections previously delivered pursuant to Section 7.1.5, and certified by the principal financial officer of the New Borrower as prepared in accordance with GAAP and fairly presenting the consolidated financial position and results of operations of the New Borrower and its Subsidiaries for such Fiscal Month and period subject only to changes from audit and year end adjustments and except that such statements need not contain notes;

(d)

promptly following the mailing or receipt of any material notice or report delivered under the Second Lien Credit Agreement, copies of such notice or report;

(e)

within 15 days after the end of each Fiscal Quarter, a certificate in a form reasonably satisfactory to the Administrative Agent, executed by the chief financial officer of the New Borrower setting forth the average amount of Liquidity for such Fiscal Quarter;

(f)

within 15 days after the end of each Fiscal Quarter, information reasonably satisfactory to the Administrative Agent supporting the information set forth in the certificate delivered pursuant to subsection (e) above;

(g)

within 5 days of the delivery thereof, copies of any Borrowing Base Certificate (as defined in ABL Credit Agreement) delivered to the ABL Administrative Agent;

(h)

promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which the New Borrower has made generally available to its shareholders and copies of any regular, periodic and special public reports or registration statements which the New Borrower files with the SEC or any Governmental Authority which may be substituted therefor, or any national securities exchange; and

(i)

such other reports and information (financial or otherwise) as the Administrative Agent may reasonably request from time to time in connection with any Collateral or any Credit Party’s financial condition or business.

Concurrently with the delivery of the financial information pursuant to clauses (a) and (b), a Compliance Certificate, executed by the chief financial or accounting officer of the New Borrower, (i) showing compliance with the financial covenants set forth in Section 7.2.17 and stating that no Default has occurred and is continuing (or, if a Default has occurred, specifying the details of such Default and the action that the New Borrower or a Credit Party has taken or proposes to take with respect thereto), (ii) stating that no Subsidiary has been formed or acquired since the delivery of the last Compliance Certificate (or, if a Subsidiary has been formed or acquired since the delivery of the last Compliance Certificate, a statement that such Subsidiary has complied with Section 7.1.17) and (iii) in the case of a Compliance Certificate delivered concurrently with the financial information pursuant to clause (a), a calculation of Excess Cash Flow;

Promptly after the sending or filing thereof, the Borrowers shall also provide to the Administrative Agent copies of any annual report to be filed in accordance with ERISA in connection with each Pension Plan and such other data and information (financial and otherwise) as the Administrative Agent, from time to time, may reasonably request bearing upon or related to the Collateral or the New Borrower’s and each of its Subsidiaries’ financial condition or results of operations.

The Borrowers hereby acknowledge that (i) the Administrative Agent will make available to the Lenders any Communications by posting the Communications on IntraLinks or another similar electronic system (“Platform”) and (ii) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrowers, the Credit Parties and/or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrowers hereby agree that (a) all Communications that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (b) by marking Communications “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Communications as not containing any material non-public information with respect to the Credit Parties or their securities for purposes of United States Federal and state securities laws

(provided, however, that to the extent such Communications constitute any proprietary, nonpublic and/or confidential information, they shall be treated as set forth in Section 10.15); (c) all Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (d) the Administrative Agent shall be entitled to treat any Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”.

7.1.4

Landlord and Storage Agreements. Upon the reasonable request of the Administrative Agent, provide the Administrative Agent with copies of: (i) any of the existing agreements, and (ii) any future agreements, between any Credit Party and any landlord, warehouseman or bailee which owns any premises at which any Collateral may, from time to time, be kept.

7.1.5

Projections. As soon as practicable and in any event within 45 days after the commencement of each Fiscal Year beginning with the 2014 Fiscal Year, a business plan and financial projections for the New Borrower and its Subsidiaries (on a consolidated basis) for such Fiscal Year (month by month, including an income statement, balance sheet and cash flow projection) for the New Borrower and its Subsidiaries (on a consolidated basis) accompanied by a certificate of an Authorized Officer of the New Borrower to the effect that (a) such projections were prepared by the New Borrower in good faith, (b) the New Borrower has a reasonable basis for the assumptions contained in such projections and (c) such projections have been prepared in accordance with such assumptions.

7.1.6

Taxes. Pay and discharge all Taxes prior to the date on which such Taxes become delinquent or penalties attach thereto, except and to the extent only that such Taxes are being Properly Contested, or that such Taxes are in an aggregate amount of less than $1,000,000, and are filed and paid in good faith as to the Borrower’s Knowledge as such Taxes become due.

7.1.7

Compliance with Applicable Laws. Comply with all Applicable Law, including ERISA, all Environmental Laws, FLSA, OSHA, Terrorism Laws, and all laws, statutes, regulations and ordinances regarding the collection, payment and deposit of Taxes, and obtain and keep in force any and all Governmental Approvals necessary to the ownership of its Properties or to the conduct of its business, but only to the extent that any such failure to comply (other than failure to comply with Terrorism Laws), obtain or keep in force could be reasonably expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, if any Release shall occur at or on any of the Properties of the New Borrower or any of its Subsidiaries, the New Borrower shall, or shall cause the applicable Subsidiary to, act promptly and diligently to investigate the extent of, and to make appropriate action with respect to such Release, whether or not ordered or otherwise directed to do so by any Governmental Authority.

7.1.8

Insurance. In addition to the insurance required herein with respect to the Collateral, maintain, with any Approved Insurers, (i) insurance with respect to the Credit Parties’ Properties and business against such casualties and contingencies of such type (including product liability, workers’ compensation, or larceny, embezzlement or other criminal misappropriation insurance) and in such amounts as is customary in the business of the New Borrower or such Subsidiary and (ii) business interruption insurance in an amount not less than $20,000,000.

7.1.9

[Reserved].

7.1.10

Payment of Obligations. Pay and discharge as the same shall become due and payable, all its obligations and liabilities, including (i) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless (a) such amounts individually and in the aggregate are less than $1,000,000 or (b) the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the New Borrower or such Subsidiary; (ii) all lawful claims which, if unpaid, would by law become a Lien upon its property; and (iii) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness except, in the case of clause (i) or (ii), so long as no Event of Default exists, where the failure to so pay or discharge could not reasonably be expected to have a Material Adverse Effect.

7.1.11

Preservation of Existence, Etc. (i) Preserve, renew and maintain in full force and effect its legal existence and good standing under the laws of the jurisdiction of its organization except in a transaction permitted by Section 7.2.1. or Section 7.2.2; (ii) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (iii) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation or non-renewal of which could reasonably be expected to have a Material Adverse Effect.

7.1.12

Maintenance of Properties. (i) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (ii) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (iii) use the standard of care typical in the industry in the operation and maintenance of its facilities.

7.1.13

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

7.1.14

Lien Searches. Promptly following receipt of the acknowledgment copy of any financing statements filed under the UCC in any jurisdiction by or on behalf of Lenders, deliver to Agent completed requests for information listing such financing statement and all other effective financing statements filed in such jurisdiction that name any Borrower as debtor, together with copies of such other financing statements.

7.1.15

Material Contracts. Perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, enforce each such Material Contract in

accordance with its terms, and cause each of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

7.1.16

Books and Records. The New Borrower will, and will cause each of its Subsidiaries to, maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP (or in the case of a Foreign Subsidiary, generally accepted accounting principles in the jurisdiction of organization of such Foreign Subsidiary) consistently applied shall be made of all financial transactions and matters involving the assets and business of the New Borrower and such Subsidiaries.

7.1.17

Future Subsidiary Guarantors, Security, etc. The New Borrower will, and will cause each of its U.S. Subsidiaries to, execute any documents, Filing Statements, agreements and instruments, and take all further action (including filing Mortgages) that may be required under Applicable Law, or that the Administrative Agent (acting at the written direction of the Required Lenders) may reasonably request, in order to effectuate the transactions contemplated by the Loan Documents and in order to grant, preserve, protect and perfect the validity and first priority (subject to Permitted Liens) of the Liens created or intended to be created by the Loan Documents. The New Borrower will cause any subsequently acquired or organized U.S. Subsidiary to execute, within twenty (20) Business Days of its acquisition or organization (or such longer period as the Administrative Agent may agree in its sole discretion), a supplement to the Subsidiary Guaranty (in the form of Annex I thereto) and each other applicable Loan Document in favor of the Secured Parties. In addition, from time to time, the New Borrower will, at its cost and expense, promptly secure the Obligations by pledging or creating, or causing to be pledged or created, perfected Liens with respect to such of its assets and properties as the Required Lenders shall designate, it being agreed that it is the intent of the parties that the Obligations shall be secured by, among other things, substantially all the assets of the New Borrower and its U.S. Subsidiaries (including real and personal property acquired subsequent to the Closing Date (but in the case of real property acquired after the Closing Date, the New Borrower will only be required to perfect Liens on owned real property by filing Additional Mortgages (together with the additional documents specified in Section 7.1.18 (a) through (d)) and only to the extent the fair market value (or the tax assessed value if reasonably acceptable to the Administrative Agent) of such property exceeds $1,000,000)); provided that, neither the New Borrower nor its U.S. Subsidiaries shall be required to pledge more than 65% of the Voting Securities of any Foreign Subsidiary. Each Borrower shall deliver or cause to be delivered to the Administrative Agent all customary instruments and documents (including legal opinions, title insurance policies and lien searches) to evidence compliance with this Section. The New Borrower and its Subsidiaries will use commercially reasonable efforts to (x) obtain a Lien Waiver for all real property leased by any Credit Party after the Closing Date which relates to a location in which there is, or is reasonably expected to be, Collateral with a book value of $5,000,000 or more (and will periodically consult with the Administrative Agent as to the status of such efforts, including when any lease on such real property is up for renewal) and (y) obtain for the benefit of the Administrative Agent any other Lien Waiver required to be delivered under the ABL Credit Agreement. Notwithstanding anything to the contrary, the Credit Parties shall use commercially reasonable efforts to execute and deliver to the Administrative Agent, for the benefit of the Secured Parties, Mortgages, such deposit accounts control agreements (other than

with respect to Excluded Deposit Accounts), Lien Waivers and other Security Documents to the extent provided to the ABL Administrative Agent or executed in respect of the ABL Loans.

7.1.18

Further Mortgages and Insurance. In the event that any certificate delivered in accordance with Section 7.1.3(e) evidences that an average amount of Liquidity for such Fiscal Quarter of below $15,000,000, the New Borrower will, upon written request from the Administrative Agent, in respect of any owned real property with a fair market value (or the tax assessed value if reasonably acceptable to the Administrative Agent) in excess $250,000, deliver to the Administrative Agent counterparts of each Additional Mortgage, duly executed and delivered by the applicable Credit Party, together with:

(a)

evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of each Additional Mortgage as may be necessary or desirable to create a valid, perfected first priority Lien against the properties purported to be covered thereby;

(b)

mortgagee’s title insurance policies in favor of the Administrative Agent for the benefit of the Secured Parties in amounts and in form and substance as shall be customary for similar properties, with respect to the real and, if any, other property purported to be covered by each Additional Mortgage, insuring that title to such property is marketable and that the interests created by each Additional Mortgage constitute valid first Liens thereon free and clear of all defects and encumbrances (other than the subordinated lien in favor of the Second Lien Lenders pursuant to the Second Lien Loan Documents and the Intercreditor Agreements);

(c)

opinions addressed to the Administrative Agent and all Lenders from local real estate counsel to the Credit Parties in the jurisdictions where such real estate is located; and

(d)

a certificate of an Authorized Officer of the New Borrower certifying as to compliance with Section 7.1.8,

provided, that the New Borrower shall be permitted 60 days following such written request from the Administrative Agent (or such longer period as the Administrative Agent shall agree) to comply with the provisions of this Section 7.1.18.

7.1.19

Valuations. Once per Fiscal Year, if requested by the Administrative Agent, the New Borrower will provide the Administrative Agent with a valuation of any owned real property not subject to a Mortgage (at the New Borrower’s expense).

7.1.20

Post-Closing Condition. Execute and deliver the documents and complete the tasks set forth on Schedule 7.1.20, in each case within the time limits specified on such schedule (unless such time period is extended in writing by the Administrative Agent in its sole discretion).

7.2

obligations for which not claim has been identified), are paid in full, unless the Required Lenders have otherwise consented in writing, the New Borrower shall not and shall not permit any of its Subsidiaries to:

7.2.1

Fundamental Changes. (i) Merge, reorganize, consolidate or amalgamate with any Person, or liquidate, wind up its affairs or dissolve itself, except for mergers or consolidations of any Credit Party into another Credit Party or any Subsidiary into a Credit Party (with such Credit Party being the survivor thereof); provided, however, that a Borrower shall be the survivor of any merger or consolidation involving a Borrower; (ii) change any Credit Party’s name or conduct business under any new fictitious name; or (iii) change any Credit Party’s FEIN.

7.2.2

Disposition of Assets. Sell, assign, lease, consign or otherwise dispose of any assets or Property or any interest therein to or in favor of any Person, except (i) sales and dispositions of Cash and Cash Equivalent Investments, (ii) sales of Inventory in the Ordinary Course of Business, (iii) sales and other dispositions in the Ordinary Course of Business of obsolete, worn-out or surplus Equipment no longer used or usable in the business of any Credit Party or any Subsidiary for so long as no Default or Event of Default shall have occurred and be continuing, (iv) termination of a lease of real or personal Property that is not necessary for the Ordinary Course of Business, could not reasonably be expected to have a Material Adverse Effect and does not result from a Credit Party’s default, (v) sales and other dispositions approved in writing by the Administrative Agent and Required Lenders, (vi) sales of Inventory made on consignment and in the Ordinary Course of Business in an aggregate amount not to exceed $5,000,000 at any time, (vii) any transfer of assets by the Existing Borrower to the New Borrower in order to facilitate compliance with Section 5.7 of the Term Loan Amendment Agreement and (viii) other sales of assets or Property with an aggregate fair market or book value (whichever is greater) not to exceed $5,000,000 in any consecutive 12-month period; provided that (a) the Borrowers shall not be required to repay the Loans pursuant to Section 3.1.1(c) (subject to Section 3.1.2 hereof) with the proceeds from the sale or other disposition of assets or Property sold or disposed of pursuant to clause (i), (ii), (iv), (vi) or (vii) hereof and (b) (i) the Borrowers shall be required to repay Loans pursuant to Section 3.1.1(c) (subject to Section 3.1.2 hereof) with the proceeds from all other sales and dispositions of assets or Property sold or disposed of pursuant to this Section 7.2.2 if such assets or Property constitute Term Loan Priority Collateral at the time of such sale or disposition, and (ii) the Borrowers shall be required to repay ABL Loans pursuant to the extent required by the ABL Facility with the proceeds from all other sales and dispositions of assets or Property sold or disposed of pursuant to this Section 7.2.2 if such assets or Property constitute ABL Priority Collateral at the time of such sale or disposition.

7.2.3

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

7.2.4

Accounting Changes. Subject to the terms of the paragraph identified as “Accounting Terms” in Section 1.4, make any significant change in accounting treatment or reporting practices, except as may be permitted or required by GAAP and/or applicable requirements of the SEC, or establish a fiscal year different from the Fiscal Year, unless the New

Borrower has notified the Administrative Agent of any such change and complied with all disclosure and other requirements of Applicable Law.

7.2.5

Organizational Documents. Amend, modify or otherwise change any of the terms or provisions in (i) any of its Organization Documents as in effect on the date hereof or (ii) the Purchase Agreement, except for changes that do not affect in any way such the rights and obligations of the New Borrower or any of its Subsidiaries to enter into and perform the Loan Documents to which it is a party and to pay all of the Obligations and that do not otherwise have a Material Adverse Effect.

7.2.6

Restrictive Agreements. Enter into or become party to any Restrictive Agreement other than (i) (x) those disclosed in Part 7.2.6 of the Disclosure Schedule and any agreement or agreements governing the Indebtedness resulting from the Permitted Refinancing thereof, provided that none of such disclosed restrictive provisions of any such agreements shall be amended without prior notice and consent of the Administrative Agent and (y) Restrictive Agreements binding the Existing Borrower and its Subsidiaries in existence on the date hereof immediately prior to the Acquisition and not listed in the Disclosure Schedule, (ii) a Restrictive Agreement relating to secured Indebtedness permitted hereunder, as long as the restrictions apply only to collateral for such Indebtedness; and (iii) a Restrictive Agreement constituting customary restrictions on assignment in leases and other contracts.

7.2.7

Conduct of Business. Engage in any business other than the business engaged in by it on the Closing Date and any business or activities which are substantially similar, related or incidental thereto or reasonably evolve therefrom.

7.2.8

Liens. Create or permit any Liens on any of the now owned or hereafter acquired Collateral except for Permitted Liens.

7.2.9

Indebtedness. Create, incur, guarantee or suffer to exist any Indebtedness, except:

(a)

the Obligations;

(b)

(i) ABL Obligations arising under the ABL Facility (other than ABL Bank Product Obligations) in a principal amount not exceeding $125,000,000 at any one time outstanding, (ii) additional loans for Money Borrowed and letters of credit under the ABL Facility that may be incurred (other than pursuant to a customary accordion or incremental facility added to the ABL Facility after the Closing Date) in a principal amount at any one time outstanding not exceeding $12,500,000 , and (iii) ABL Bank Product Obligations arising in the Ordinary Course of Business (excluding, for the avoidance of doubt, any ABL Loans or ABL Letters of Credit);

(c)

(i) (I) Second Lien Loans in an aggregate principal amount issued on or after the Closing Date not to exceed $86,246,740.38, plus (II) up to $10,000,000 principal amount of additional Term B Second Lien Loans issued on the Closing Date, the principal amount of which may be adjusted and converted to Term A Second Lien Loans following the determination of Final Working Capital pursuant to Section 5.2(f) of the Term Loan Amendment Agreement and the Second Lien Credit Agreement, plus (III) up to $50,000,000 in the aggregate of incremental Second Lien Loans (minus the principal

amount of Debt incurred under clause (i)(IV) below), plus (IV) up to $25,000,000 Term C Second Lien Loans issued in accordance with Section 5.3 of the Term Loan Amendment Agreement and Section 2.1(b) of the Second Lien Credit Agreement, in each case, as in effect on the Closing Date, plus (V) the payment of interest, fees and other amounts with respect to the Second Lien Loans in the form of additional Indebtedness less (VI) the sum of the aggregate amount of principal repayments and redemptions with respect thereto made after the Closing Date; and (ii) any Permitted Refinancing thereof provided that, within three Business Days of the final determination of Final Working Capital in accordance with Section 5.2(f) of the Term Loan Amendment Agreement, the aggregate principal amount of Debt permitted pursuant to clause (a), clause (c)(i)(I) and clause (c)(i)(II) of this Section 7.2.9 shall not exceed $210,000,000 (exclusive, for the avoidance of doubt, of any capitalized amount permitted pursuant to clause (c)(i)(V) of this Section 7.2.9);

(d)

Subordinated Indebtedness in a principal amount not exceeding $5,000,000 at any one time outstanding, and any Permitted Refinancing of the foregoing;

(e)

Permitted Purchase Money Indebtedness;

(f)

(i) Indebtedness outstanding on the date hereof and listed on Part 7.2.9 of the Disclosure Schedule and any Permitted Refinancing of the foregoing; and (ii) any Indebtedness of the Existing Borrower and its Subsidiaries outstanding on the date hereof immediately prior to the Acquisition not listed in the Disclosure Schedule, other than Indebtedness referred to in clauses (a) and (c) of this Section 7.2.9 ;

(g)

Permitted Contingent Liabilities;

(h)

Indebtedness that is not secured by a Lien in an aggregate amount outstanding at any time not in excess of $5,000,000 incurred as earnout obligations in favor of sellers from whom the Credit Parties have made one or more Permitted Acquisitions, provided that payment of any such earnout obligation subject to the satisfaction of certain operating or performance conditions which are the subject of the earnout; and

(i)

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

7.2.10

Restricted Investments. Make any Restricted Investment.

7.2.11

Loans. Make any loans or other advances of money to any Person, except (i) advances to an officer or employee for salary, travel expenses, commissions and similar items in the Ordinary Course of Business; (ii) prepaid expenses and extensions of trade credit made in the Ordinary Course of Business; (iii) deposits with financial institutions permitted hereunder; (iv) as long as no Default or Event of Default exists, intercompany loans by a Credit Party to another Credit Party; (v) as long as no Default or Event of Default exists, intercompany loans by a Credit Party to a Subsidiary to the extent permitted by Section 7.2.10; (vi) loans and advances made in

connection with any seller financing transaction not in excess of $5,000,000 in the aggregate at any time; and (vii) loans and advances disclosed in Part 7.2.11 of the Disclosure Schedule.

7.2.12

Distributions; Upstream Payments.

(a)

Declare or make any Distributions, except: (i) Upstream Payments; (ii) additional Distributions provided, that (A) no Default or Event of Default shall have occurred and be continuing, (B) after giving effect to such payment on a pro forma basis, (x) the Total Leverage Ratio shall be less than 2.00:100 and (y) the New Borrower shall otherwise be in compliance with all other applicable financial covenants set forth in Section 7.2.17, (C) after giving effect to any such payment, the New Borrower shall have no less than $50,000,000 in Liquidity, (D) prior to making any such payment, the Borrowers shall have permanently elected to make all interest payments on the Second Lien Loans in cash for the remainder of the term of the Second Lien Credit Agreement, (E) all principal on the Second Lien Loans that comprises previously capitalized interest payments shall have been voluntarily prepaid in full in cash immediately prior to the making of any such payment, (F) prior to, or concurrently with, the making of any such payment, the Borrowers shall make a voluntary prepayment pursuant to Section 3.1.1(a) in an amount equal to 100% of the amount of any such Distribution, and (G) the cumulative amount of such Distributions shall not exceed the lesser of (x) retained annual Excess Cash Flow (being the portion of Excess Cash Flow for each Fiscal Year, commencing with the 2014 Fiscal Year, not required to be applied as a mandatory prepayment pursuant to Section 3.1.1(d) in respect of such Fiscal Year) and (y) $7,000,000 in any Fiscal Year; and (iii) Distributions not to exceed $2,000,000 in the aggregate since the Closing Date so long as both before and after giving effect to such Distributions, no Default or Event of Default shall have occurred and be continuing; or

(b)

Create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, except for restrictions under the Loan Documents, under Applicable Law or in effect on the Closing Date as shown on Part 7.2.12 of the Disclosure Schedule.

7.2.13

Affiliate Transactions. Enter into or be party to any transaction with an Affiliate, except (i) transactions contemplated by the Loan Documents and the Transaction Documents; (ii) payment of reasonable compensation to officers and employees for services actually rendered, and loans and advances permitted by Section 7.2.11; (iii) payment of customary directors’ fees and indemnities; (iv) transactions solely among Credit Parties and wholly owned Subsidiaries; (v) transactions with Affiliates that were consummated prior to the Closing Date, as shown on Part 7.2.13 of the Disclosure Schedule; and (vi) any transaction or series of transactions with Affiliates in the Ordinary Course of Business, which (i) to the extent the value of such transactions or series of transactions are in excess of $1,000,000 for any Fiscal Year, have been approved in writing by the Administrative Agent, and (ii) are no less favorable than would be obtained in a comparable arm’s-length transaction with a non-Affiliate.

7.2.14

being understood that payments of regularly scheduled principal and interest shall be permitted and cancellations of Indebtedness for no value shall be permitted) the Second Lien Loans, any subordinated Indebtedness incurred under Section 7.2.9(d) or any other Indebtedness (other than the ABL Facility) that is or is required to be subordinated, in right of payment or as to Collateral, to the Obligations pursuant to the terms of the Loan Documents (collectively, “Junior Financing”) or make any payment in violation of any subordination terms of any Junior Financing documentation, except (i) the refinancing thereof with the Net Cash Proceeds of any Indebtedness (to the extent such Indebtedness constitutes a Permitted Refinancing and, if such Indebtedness was originally incurred under Section 7.2.9(d), is permitted pursuant to Section 7.2.9(d)), to the extent not required to prepay any Loans pursuant to Section 3.1.1(a), (ii) the conversion of any Junior Financing to Capital Securities (other than Disqualified Capital Securities) of Holdings or any of its direct or indirect parents, (iii) repayments of Second Lien Loans required as a result of the AHYDO Catch-Up Mandatory Prepayment (iv) the cancellation or conversion of Second Lien Loans pursuant to the Term Loan Amendment Agreement and the capitalization of interest on the Second Lien Loans and (v) the cancellation of the Second Lien Loans in satisfaction of indemnification obligations of the Second Lien Lenders pursuant to Section 5.8 of the Term Loan Amendment Agreement.

7.2.15

Amendments to Subordinated Indebtedness. Amend, supplement or otherwise modify any document, instrument or agreement relating to any Subordinated Indebtedness, if such modification (i) increases the principal balance of such Indebtedness, or increases any required payment of principal or interest; (ii) accelerates the date on which any installment of principal or any interest is due, or adds any additional redemption, put or prepayment provisions; (iii) shortens the final maturity date or otherwise accelerates amortization; (iv) increases the interest rate or permits interest to be paid other than through the capitalization thereof; (v) increases or adds any fees or charges; (vi) modifies any covenant in a manner or adds any representation, covenant or default that is more onerous or restrictive in any material respect for any Credit Party or Subsidiary, or that is otherwise materially adverse to any Credit Party, any Subsidiary or Lenders; or (vii) results in the Obligations not being fully benefited by the subordination provisions thereof.

7.2.16

Sale-Leaseback and Pension Obligations. (a) Create, incur, assume or suffer to exist any obligations as lessee for the rental or hire of real or personal property in connection with any sale and leaseback transaction, or (b) make for any Fiscal Year more than the minimum required statutory pension contributions required to be made in respect of such Fiscal Year with respect to the New Borrower’s qualified defined benefit cost covering the New Borrower’s U.S. employees.

7.2.17

Financial Condition and Operations. The New Borrower will not permit any of the events set forth below in clauses (a), (b) and (c) to occur:

(a)

The New Borrower will not permit the Total Leverage Ratio as of the last day of any period set forth below on a Pro Forma Basis to be greater than:


Fiscal Quarter Ending	Total Leverage Ratio
September 30, 2013	6.52:1.00
December 31, 2013	6.52:1.00
March 31, 2014	5.17:1.00
June 30, 2014	5.16:1.00
September 30, 2014	4.89:1.00
December 31, 2014	4.52:1.00
March 31, 2015	4.26:1.00
June 30, 2015	4.00:1.00
September 30, 2015	3.81:1.00
December 31, 2015	3.68:1.00
March 31, 2016	3.56:1.00
June 30, 2016	3.48:1.00
September 30, 2016 December 31, 2016	3.20:1.00 3.20:1.00
March 31, 2017	3.20:1.00
June 30, 2017 and thereafter	3.19:1.00

(b)

The New Borrower will not permit the Fixed Charge Coverage Ratio as of the last day of any period set forth below on a Pro Forma Basis to be less than:


Fiscal Quarter Ending	Fixed Charge Coverage Ratio
September 30, 2013	None
December 31, 2013	None
March 31, 2014	None
June 30, 2014	None
September 30, 2014	0.72:1.00
December 31, 2014	0.77:1.00
March 31, 2015	0.82:1.00
June 30, 2015	0.85:1.00
September 30, 2015	0.89:1.00
December 31, 2015 March 31, 2016	0.94:1.00 0.96:1.00
June 30, 2016	1.06:1.00
September 30, 2016 December 31, 2016	1.14:1.00 1.14:1.00
March 31, 2017 and thereafter	1.15:1.00

(c)

The New Borrower will not permit EBITDAP for the four Fiscal Quarter periods ending as of the last day of any period set forth below on a Pro Forma Basis to be less than the amount set forth under the column “EBITDAP Level” opposite such last day:


Fiscal Quarter Ending	EBITDAP Level
September 30, 2013	$51,000,000
December 31, 2013	$51,000,000
March 31, 2014	$52,000,000
June 30, 2014	$53,000,000
September 30, 2014	$54,000,000
December 31, 2014	$56,000,000
March 31, 2015	$61,000,000
June 30, 2015	$66,000,000
September 30, 2015 December 31, 2015 March 31, 2016	$69,000,000 $73,000,000 $77,000,000
June 30, 2016	$80,000,000
September 30, 2016 December 31, 2016	$82,000,000 $83,000,000
March 31, 2017	$84,000,000
June 30, 2017 and thereafter	$85,000,000

ARTICLE VIII

EVENTS OF DEFAULT

8.1

Listing of Events of Default. Each of the following events or occurrences described in this Article shall constitute an “Event of Default”.

8.1.1

Non-Payment of Obligations. Any Borrower shall default in the payment or prepayment when due of:

(a)

any principal of any Loan and such default shall continue unremedied for a period of two Business Days after such amount was due; or

(b)

any interest or fee described in Article III or any other monetary Obligation, and such default shall continue unremedied for a period of five Business Days after such amount was due.

8.1.2

Misrepresentations. Any representation, warranty or other written statement to the Administrative Agent or any Lender that is made by any Credit Party in this Agreement or furnished in compliance with or in reference to any of the Loan Documents, proves to have been false or misleading in any material respect when made or furnished.

8.1.3

Non-Performance of Certain Covenants and Obligations. The New Borrower shall default in the due performance or observance of any of its obligations under Section 7.1.3, Section 7.1.11 or Section 7.2.

8.1.4

Non-Performance of Other Covenants and Obligations. Any Credit Party shall default in the due performance and observance of any other agreement contained in any Loan Document executed by it, and such default shall continue unremedied for a period of 60 days after the earlier of (a) the date of the Borrower’s Knowledge of such default or (b) notice thereof given to the Borrowers by the Administrative Agent or any Lender.

8.1.5

ABL Credit Agreement (other than a default described in clause (i) and (ii) above) shall not constitute an Event of Default under this Section 8.1.5 until the earliest to occur of (x) the date that is 30 days after such event or circumstance (but only if such event or circumstance has not been waived or cured), (y) the acceleration of the Indebtedness under the ABL Credit Agreement and (z) the exercise of any remedies by the ABL Agent or any lenders under the ABL Credit Agreement in respect of any Collateral, or (iv) a default shall occur in the performance or observance of any obligation or condition with respect to any Indebtedness of the New Borrower or any of its Subsidiaries or any other Credit Party (other than indebtedness described in clause (i) and (iii) above) having a principal or stated amount, individually or in the aggregate, in excess of $5,000,000, if the effect of such default is to accelerate the maturity of any such Indebtedness or such default shall continue unremedied for any applicable period of time sufficient to permit the holder or holders of such Indebtedness, or any trustee or agent for such holders, to cause or declare such Indebtedness to become due and payable or to require such Indebtedness to be prepaid, redeemed, purchased or defeased, or require an offer to purchase or defease such Indebtedness to be made, prior to its expressed maturity.

8.1.6

Judgments. Any judgment or order for the payment of money individually or in the aggregate in excess of $5,000,000 (exclusive of any amounts fully covered by insurance (less any applicable deductible) and as to which the insurer has not denied or objected to its responsibility to cover such judgment or order) shall be rendered against the New Borrower or any of its Subsidiaries or any other Credit Party and such judgment shall not have been vacated or discharged or stayed or bonded pending appeal within 60 days after the entry thereof or enforcement proceedings shall have been commenced by any creditor upon such judgment or order.

8.1.7

Change in Control. Any Change in Control shall occur.

8.1.8

Bankruptcy, Insolvency, etc. The New Borrower, any of its Subsidiaries or any other Credit Party shall:

(a)

generally fail to pay, or admit in writing its inability or general unwillingness to pay, debts as they become due;

(b)

apply for, consent to, or acquiesce in the appointment of a trustee, receiver, sequestrator or other custodian for any substantial part of the property of any thereof, or make a general assignment for the benefit of creditors;

(c)

in the absence of such application, consent or acquiescence in or permit or suffer to exist the appointment of a trustee, receiver, receiver manager, sequestrator or other custodian for a substantial part of the property of any thereof, and such trustee, receiver, receiver manager, sequestrator or other custodian shall not be discharged within 90 days; provided that, each Borrower, each Subsidiary and each other Credit Party hereby expressly authorizes each Secured Party to appear in any court conducting any relevant proceeding during such 90-day period to preserve, protect and defend their rights under the Loan Documents;

(d)

permit or suffer to exist the commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law or any dissolution, winding up or liquidation proceeding, in respect thereof, and, if any such case or proceeding is not commenced by any Borrower, any Subsidiary or any Credit Party, such case or proceeding shall be consented to or acquiesced in by the New Borrower, such Subsidiary or such Credit Party, as the case may be, or shall result in the entry of an order for relief or shall remain for 90 days undismissed; provided that, the New Borrower, each Subsidiary and each Credit Party hereby expressly authorizes each Secured Party to appear in any court conducting any such case or proceeding during such 90-day period to preserve, protect and defend their rights under the Loan Documents; or

(e)

take any action authorizing, or in furtherance of, any of the foregoing.

8.1.9

Impairment of Security, etc. Any Loan Document shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of any Credit Party party thereto; any Lien shall (except in accordance with the terms of any Loan Document), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of any Credit Party subject thereto in respect of any material portion of the Collateral (as defined in the Security Agreement); any Credit Party or any other party shall contest in any manner such effectiveness, validity, binding nature or enforceability; or, except as permitted under any Loan Document, any Lien securing any Obligation shall, in whole or in part, cease to be a perfected first priority Lien with respect to any material portion of the Collateral.

8.1.10

ERISA. A Reportable Event shall occur which the Administrative Agent, in its reasonable discretion, shall determine constitutes grounds for the termination by the Pension Benefit Guaranty Corporation of any Pension Plan or for the appointment by the appropriate United States district court of a trustee for any Pension Plan, or if any Pension Plan or Covered Plan shall be terminated or any such trustee shall be requested or appointed, or if the New Borrower or any Subsidiary is in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan resulting from the New Borrower’s or such Subsidiary’s complete or partial withdrawal from such Pension Plan; and any such event may be reasonably expected to have either a Material Adverse Effect or arise from the New Borrower’s failure to make a required installment payment when due in an amount in excess of $5,000,000.

8.2

Action if Bankruptcy. If any Event of Default described in clauses (a) through (d) of Section 8.1.8 with respect to a Borrower shall occur, the outstanding principal amount of all outstanding Loans and all other Obligations shall automatically be and become immediately due and payable, without notice or demand to any Person.

8.3

Action if Other Event of Default. If any Event of Default (other than any Event of Default described in clauses (a) through (d) of Section 8.1.8 with respect to a Borrower) shall occur for any reason, whether voluntary or involuntary, and be continuing, the Administrative Agent, upon the written direction of the Required Lenders, shall by notice to the Borrowers declare all or any portion of the outstanding principal amount of the Loans and other Obligations to be due and payable, whereupon the full unpaid amount of such Loans and other Obligations

which shall be so declared due and payable shall be and become immediately due and payable, without further notice, demand or presentment.

ARTICLE IX

THE ADMINISTRATIVE AGENT

9.1

Actions.

(a)

Each Lender hereby appoints Silver Point as its Administrative Agent under and for purposes of each Loan Document. Each Lender authorizes the Administrative Agent to act on behalf of such Lender under each Loan Document and to appoint other agents or sub-agents to assist in its actions under the Loan Documents and the Administrative Agent shall not be liable for the acts and omissions of such agents as long as they are appointed with due care and without gross negligence or willful misconduct. Each Lender further authorizes the Administrative Agent, in the absence of other written instructions from the Required Lenders received from time to time by the Administrative Agent (with respect to which the Administrative Agent agrees that it will comply, subject to the terms and conditions of Article IX), to exercise such powers hereunder and thereunder as are delegated to or required of the Administrative Agent by the terms hereof and thereof, together with such powers as may be incidental thereto (including the release of Liens on assets Disposed of in accordance with the terms of the Loan Documents).

(b)

Party from time to time) shall be deemed to ratify the power of attorney granted to the Administrative Agent hereunder.

9.2

Exculpation. Neither the Administrative Agent nor any of its directors, officers, employees or agents shall be liable to any Secured Party for any action taken or omitted to be taken by it under any Loan Document, or in connection therewith, except for its own willful misconduct or gross negligence, nor responsible for any recitals or warranties herein or therein, nor for the effectiveness, enforceability, validity or due execution of any Loan Document, nor for the creation, perfection or priority of any Liens purported to be created by any of the Loan Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any collateral security, nor to make any inquiry respecting the performance by any Credit Party of its Obligations. Any such inquiry which may be made by the Administrative Agent shall not obligate it to make any further inquiry or to take any action. The Administrative Agent shall be entitled to rely upon advice of counsel concerning legal matters and upon any notice, consent, certificate, statement or writing which the Administrative Agent believes to be genuine and to have been presented by a proper Person.

To the fullest extent permitted by Applicable Law, no Credit Party or Lender shall assert, and each Credit Party and Lender hereby waives, any claim against the Administrative Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated herby or thereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof.

No provision of this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby or the transactions contemplated hereby or thereby, shall require the Administrative Agent to: (i) expend or risk its own funds or provide indemnities in the performance of any of its duties hereunder or the exercise of any of its rights or power or (ii) otherwise incur any financial liability in the performance of its duties or the exercise of any of its rights or powers unless it is indemnified to its satisfaction and the Administrative Agent shall have no liability to any person for any loss occasioned by any delay in taking or failure to take any action while it is awaiting an indemnity satisfactory to it.

The Administrative Agent shall not be responsible for (i) perfecting, maintaining, monitoring, preserving or protecting the security interest or lien granted under this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, (ii) the filing, re-filing, recording, re-recording or continuing or any document, financing statement, mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on or the payment of taxes with respect to any of the Collateral. The actions described in items (i) through (iii) shall be the sole responsibility of the Credit Parties.

The Administrative Agent shall not be required to qualify in any jurisdiction in which it is not presently qualified to perform its obligations as Administrative Agent.

The Administrative Agent has accepted and is bound by the Loan Documents executed by the Administrative Agent as of the date of this Agreement and, as directed in writing by the Required Lenders, the Administrative Agent shall execute additional Loan Documents delivered to it after the date of this Agreement; provided, however, that such additional Loan Documents do not adversely affect the rights, privileges, benefits and immunities of the Administrative Agent. The Administrative Agent will not otherwise be bound by, or be held obligated by, the provisions of any credit agreement, indenture or other agreement governing the Obligations (other than this Agreement and the other Loan Documents to which the Administrative Agent is a party).

No written direction given to the Administrative Agent by the Required Lenders or the Borrowers that in the sole reasonable judgment of the Administrative Agent imposes, purports to impose or might reasonably be expected to impose upon the Administrative Agent any obligation or liability not set forth in or arising under this Agreement and the other Loan Documents will be binding upon the Administrative Agent unless the Administrative Agent elects, at its sole option, to accept such direction.

The Administrative Agent shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement or the other Loan Documents arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; business interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action.

The Administrative Agent shall not be under any obligation to exercise any of its rights or powers vested in it by this Agreement or the other Loan Documents, at the request, order or direction of the Required Lenders unless the same is given pursuant to the express provisions of this Agreement or the other Loan Documents and the Required Lenders shall have offered to the Administrative Agent security or indemnity reasonably satisfactory to the Administrative Agent against the costs, expenses and liabilities (including, without limitation, attorneys’ fees and expenses) which might be incurred therein or thereby.

Beyond the exercise of reasonable care in the custody of the Collateral in its possession, the Administrative Agent will have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. The Administrative Agent will be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, and the Administrative Agent will not be liable or responsible for any loss or diminution in the value of any of the Collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Administrative Agent in good faith without gross negligence or willful misconduct.

The Administrative Agent will not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or

omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Administrative Agent, as determined by a court of competent jurisdiction in a final, nonappealable order, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of any grantor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Administrative Agent hereby disclaims any representation or warranty to the present and future Secured Parties concerning the perfection of the Liens granted hereunder or in the value of any of the Collateral.

In the event that the Administrative Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Administrative Agent’s sole reasonable discretion may cause the Administrative Agent to be considered an “owner or operator” under any Environmental Laws or otherwise cause the Administrative Agent to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Administrative Agent reserves the right, instead of taking such action, either to resign as Administrative Agent or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Administrative Agent will not be liable to any person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Administrative Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any Hazardous Material into the environment.

9.3

Successor. The Administrative Agent may resign as such at any time upon at least 30 days’ prior notice to the Borrowers and all Lenders. The Administrative Agent may be removed at any time upon the affirmative vote of the Required Lenders. If the Administrative Agent at any time shall resign or be removed, the Required Lenders may appoint another Lender as a successor Administrative Agent which shall thereupon become the Administrative Agent hereunder. In the case of the Administrative Agent’s resignation, if no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall assume and perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor as provided for above. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent and the payment of the reasonable fees and expenses (including attorney’s fees and expenses) of the resigning or removed Administrative Agent), such successor Administrative Agent shall be entitled to receive from the retiring or removed Administrative Agent such documents of transfer and assignment as such successor Administrative Agent may reasonably request, and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the retiring or removed Administrative Agent. The retiring or removed Administrative Agent shall cooperate in all respects with the transition of the Administrative Agent role to the successor Administrative Agent and shall, following such transition, be discharged from its duties and obligations under the Loan Documents. After any retiring or removed Administrative Agent’s resignation or removal, as applicable, hereunder as the Administrative Agent, the provisions of this Article shall inure to its benefit as to any actions

taken or omitted to be taken by it while it was the Administrative Agent under the Loan Documents, and Section 9.1, Section 10.3 and Section 10.4 shall continue to inure to its benefit.

9.4

Loans by the Administrative Agent. The Administrative Agent shall have the same rights and powers with respect to (x) the Loans held by it or any of its Affiliates, and (y) the Notes held by it or any of its Affiliates as any other Lender and may exercise the same as if it were not the Administrative Agent. The Administrative Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the New Borrower or any Subsidiary or Affiliate of the New Borrower as if the Administrative Agent were not the Administrative Agent hereunder.

9.5

Credit Decisions. Each Lender acknowledges that it has, independently of the Administrative Agent and each other Lender, and based on such Lender’s review of the financial information of the New Borrower, the Loan Documents (the terms and provisions of which being satisfactory to such Lender) and such other documents, information and investigations as such Lender has deemed appropriate, made its own credit decision to extend the Loans. Each Lender also acknowledges that it will, independently of the Administrative Agent and each other Lender, and based on such other documents, information and investigations as it shall deem appropriate at any time, continue to make its own credit decisions as to exercising or not exercising from time to time any rights and privileges available to it under the Loan Documents.

9.6

Copies, etc. The Administrative Agent shall give prompt notice to each Lender of each notice or request required or permitted to be given to the Administrative Agent by a Borrower pursuant to the terms of the Loan Documents (unless concurrently delivered to the Lenders by such Borrower). The Administrative Agent will distribute to each Lender each document or instrument received (other than notices delivered pursuant to Articles II and III) for its account and copies of all other communications received by the Administrative Agent from a Borrower for distribution to the Lenders by the Administrative Agent in accordance with the terms of the Loan Documents.

9.7

Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon any certification, notice or other communication (including any thereof by telephone, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper Person, and upon advice and statements of legal counsel, independent accountants and other experts selected by the Administrative Agent. As to any matters not expressly provided for by the Loan Documents, the Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, thereunder in accordance with instructions given by the Required Lenders or all of the Lenders as is required in such circumstance, and such instructions of such Lenders and any action taken or failure to act pursuant thereto shall be binding on all Secured Parties. For purposes of applying amounts in accordance with this Agreement, the Administrative Agent shall be entitled to rely upon any Secured Party that has entered into a Hedge Agreement with any Credit Party for a determination (which such Secured Party agrees to provide or cause to be provided upon request of the Administrative Agent) of the outstanding Obligations owed to such Secured Party under any Hedge Agreement. Unless it has actual knowledge evidenced by way of written notice from any such Secured Party and the Borrowers to the contrary, the Administrative Agent, in acting in such capacity under the Loan Documents, shall be entitled to assume that no Hedge Agreements

or Obligations in respect thereof are in existence or outstanding between any Secured Party and any Credit Party.

9.8

Defaults. The Administrative Agent shall not be deemed to have Knowledge or notice of the occurrence of a Default unless the Administrative Agent has received a written notice from a Lender or the Borrowers specifying such Default and stating that such notice is a “Notice of Default”. In the event that the Administrative Agent receives such a notice of the occurrence of a Default, the Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall (subject to the provisions of this Article IX and Section 10.1) take such action and exercise such remedies with respect to such Default as shall be directed by the Required Lenders pursuant to any of the Loan Documents; provided that, unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action (including, without limitation, credit bidding the Loans of all Lenders hereunder), or refrain from taking such action, with respect to such Default as it shall deem advisable in the best interest of the Secured Parties except to the extent that this Agreement expressly requires that such action be taken, or not be taken, only with the consent or upon the authorization of the Required Lenders or all Lenders.

9.9

Posting of Approved Electronic Communications.

(a)

The New Borrower hereby agrees, unless directed otherwise by the Administrative Agent or unless the electronic mail address referred to below has not been provided by the Administrative Agent to the New Borrower, that it will, or will cause its Subsidiaries to, provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Loan Documents or to the Lenders under Section 7.1.3, including all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (i) is or relates to a Continuation/Conversion Notice, (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice of any Default under this Agreement or any other Loan Document or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium that is properly identified in a format acceptable to the Administrative Agent to an electronic mail address as directed by the Administrative Agent. In addition, the New Borrower agrees, and agrees to cause its Subsidiaries, to continue to provide the Communications to the Administrative Agent or the Lenders, as the case may be, in the manner specified in the Loan Documents (including, for the avoidance of doubt, Section 7.1.3) but only to the extent requested by the Administrative Agent.

(b)

In accordance with Section 7.1.3, the New Borrower further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the Communications on Intralinks or a substantially similar Platform.

(c)

THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE INDEMNIFIED PARTIES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND

EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE INDEMNIFIED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE INDEMNIFIED PARTIES HAVE ANY LIABILITY TO ANY OBLIGOR, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY OBLIGOR’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY INDEMNIFIED PARTY IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH INDEMNIFIED PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

(d)

The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address.

(e)

Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

9.10

Proofs of Claim. The Lenders and the Borrowers hereby agree that after the occurrence of an Event of Default pursuant to Section 8.1.8, in case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any of the Credit Parties, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on any of the Credit Parties) shall be entitled and empowered, by intervention in such proceeding or otherwise:

(a)

to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Loans and any other Obligations (excluding Obligations arising under any Hedge Agreement) that are owing and unpaid and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Lenders, the Administrative Agent and other agents appointed by the Administrative Agent (including any claim for the reasonable compensation, expenses,

disbursements and advances of the Lenders, the Administrative Agent and such other agents and their agents and counsel and all other amounts due Lenders, Administrative Agent and such other agents hereunder) allowed in such judicial proceeding; and

(b)

to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent and other agents hereunder. Nothing herein contained shall be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lenders or to authorize Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. Further, nothing contained in this Section shall affect or preclude the ability of any Lender to (i) file and prove such a claim in the event that the Administrative Agent has not acted within ten days prior to any applicable bar date and (ii) require an amendment of the proof of claim to accurately reflect such Lender’s outstanding Obligations.

9.11

Appointment of Designated Term Loan Agent. The Administrative Agent and the Second Lien Administrative Agent have entered into the First/Second Lien Intercreditor Agreement for purposes of defining the relative rights and priorities of the Term Loan Claimholders with respect to the Collateral. The First/Second Lien Intercreditor Agreement addresses only the relative rights and priorities of the Term Loan Claimholders in the Collateral. The purpose of the ABL/Term Loan Intercreditor Agreement is to define the relative rights and priorities of the ABL Claimholders in the Collateral with respect to the Term Loan Claimholders (when treating the Term Loan Claimholders as a single group). In furtherance of that purpose:

(a)

The Administrative Agent, as authorized and directed by the Secured Parties, hereby appoints and designates Silver Point to act as the Designated Term Loan Agent as specified under the ABL/Term Intercreditor Agreement on behalf of the Administrative Agent and other Secured Parties. The Administrative Agent, on behalf of all Secured Parties, agrees that any action taken by Designated Term Loan Agent in accordance with the provisions of the ABL/Term Intercreditor Agreement, and the exercise by Designated Term Loan Agent of any of the powers set forth therein, together with such other powers as are reasonably incidental thereto, is fully authorized by, and shall be completely binding upon, the Administrative Agent and all other Secured Parties.

(b)

Each Lender (i) consents to the subordination of Liens provided for in the ABL/Term Intercreditor Agreement, (ii) agrees that it will be bound by, and will take no actions contrary to, the provisions of the ABL/Term Intercreditor Agreement, (iii) authorizes and directs the Administrative Agent to enter into the ABL/Term Intercreditor Agreement on its behalf, (iv) authorizes and directs the Administrative Agent on its behalf to appoint the Designated Term Loan Agent, and (v) that any action taken by the

Designated Term Loan Agent pursuant to the ABL/Term Intercreditor Agreement shall be binding upon such Lender.

(c)

Each Lender acknowledges and agrees that the Person appointed to serve as Designated Term Loan Agent under the ABL/Term Intercreditor Agreement is the same Person appointed to serve as Second Lien Administrative Agent and that such Person (or any successor thereto) shall be permitted to serve as both Second Lien Administrative Agent and Designated Term Loan Agent even if such Person does not also serve as Administrative Agent and regardless of the existence or absence of any conflict between the Secured Parties and the Second Lien Claimholders (as defined in the ABL/Term Intercreditor Agreement).

ARTICLE X

MISCELLANEOUS PROVISIONS

10.1

Waivers, Amendments, etc. The provisions of each Loan Document (other than a Fee Letter, which shall be modified only in accordance with its terms) may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the New Borrower and the Required Lenders; provided, that no such amendment, modification or waiver shall:

(a)

modify clause (b) of Section 4.7, Section 4.8 (as it relates to sharing of payments) or this Section, in each case, without the consent of all Lenders;

(b)

increase the aggregate amount of any Loans held by a Lender or extend the final Stated Maturity Date for any Lender’s Loan, in each case without the consent of such Lender (it being agreed, however, that any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect to the Loans and other Obligations shall only require the vote of the Required Lenders);

(c)

reduce (by way of forgiveness), the principal amount of or reduce the rate of interest on any Lender’s Loan, reduce any fees described in Article III payable to any Lender or extend the date on which interest or fees are payable in respect of such Lender’s Loans, in each case without the consent of such Lender (provided that, the vote of Required Lenders shall be sufficient to waive the payment, or reduce the increased portion, of interest accruing under Section 3.2.2);

(d)

make any change to the definition of “Required Lenders” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;

(e)

except with the consent of the Lenders holding more than 90% of the aggregate amount of outstanding Loans, release (i) either any Borrower from its Obligations under the Loan Documents or any Subsidiary Guarantor from its obligations under a Guaranty; provided that a Subsidiary Guarantor shall automatically be released from its obligations under a Guaranty in the event that the Capital Securities of such Subsidiary Guarantor are Disposed of in a transaction permitted under Section 7.2.2 or (ii) all or substantially all of the collateral under the Loan Documents; or

(f)

affect adversely the interests, rights or obligations of the Administrative Agent (in its capacity as the Administrative Agent) unless consented to by the Administrative Agent.

No failure or delay on the part of any Secured Party in exercising any power or right under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on any Credit Party in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by any Secured Party under any Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder.

10.2

Notices; Time. All notices and other communications provided under each Loan Document shall be in writing or by facsimile and addressed, delivered or transmitted, if to a Borrower, the Administrative Agent or a Lender, to the applicable Person at its address or facsimile number set forth on Schedule II hereto or set forth in the Lender Assignment Agreement, or at such other address or facsimile number as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when the confirmation of transmission thereof is received by the transmitter. The parties hereto agree that delivery of an executed counterpart of a signature page to this Agreement and each other Loan Document by facsimile (or electronic transmission) shall be effective as delivery of an original executed counterpart of this Agreement or such other Loan Document. Unless otherwise indicated, all references to the time of a day in a Loan Document shall refer to New York time.

10.3

Payment of Costs and Expenses. The New Borrower agrees to pay promptly, and in any event within thirty (30) days after written demand therefor to the extent incurred after the Closing Date, (a) any consents, amendments, waivers or other modifications of this Agreement and the other Loan Documents; (b) the reasonable and documented fees, expenses and disbursements of counsel to the Administrative Agent in connection with the administration of this Agreement and the other Loan Documents and any consents, amendments, waivers or other modifications thereto and any other documents or matters in connection therewith; (c) all the actual costs and expenses of creating and perfecting Liens in favor of the Administrative Agent, for the benefit of the Lenders pursuant hereto, including filing and recording fees, search fees, title insurance premiums and fees, expenses and disbursements of counsel to the Administrative Agent; (d) all the actual reasonable and documented costs and fees, expenses and disbursements of any auditors, accountants, consultants or appraisers whether internal or external (but no more than (i) one such firm for the Administrative Agent and Lenders as a whole at such time as the Administrative Agent is an Affiliate of Silver Point or (ii) two such firms for the Administrative Agent and Lenders as a whole at such time as the Administrative Agent is not an Affiliate of Silver Point); (e) all the actual reasonable costs and expenses (including the fees, expenses and disbursements of counsel and of any appraisers, consultants, advisors and agents in each case employed or retained by the Administrative Agent and its counsel) in connection with the custody or preservation of any of the Collateral; (f) all other actual reasonable costs and expenses incurred by the Administrative Agent in connection with the any consents, amendments, waivers

or other modifications of this Agreement and the other Loan Documents and the transactions contemplated thereby; and (g) after the occurrence of a Default or an Event of Default, all reasonable costs and expenses, including reasonable attorneys’ fees and expenses and costs of settlement, incurred by the Administrative Agent and the Required Lenders in enforcing any Obligations of or in collecting any payments due from any Credit Party hereunder or under the other Loan Documents by reason of such Default or Event of Default (including in connection with the sale of, collection from, or other realization upon any of the Collateral or the enforcement of any Subsidiary Guaranty) or in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work out” or pursuant to any insolvency or bankruptcy cases or proceedings.

10.4

Indemnification. In consideration of the execution and delivery of this Agreement by each Secured Party, the New Borrower hereby indemnifies, exonerates and holds each Secured Party and each of their respective affiliates and their and their affiliates’ officers, directors, employees, advisors and agents (collectively, the “Indemnified Parties”) free and harmless from and against any and all losses, claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, judgments, penalties, and damages, and all reasonable fees and disbursements of attorneys, experts, or consultants and all other costs and expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought), at any time asserted against, imposed upon, or incurred by any of them (collectively, the “Indemnified Liabilities”) as a result of, or arising out of, or relating to:

(a)

the execution and delivery, enforcement, performance, or administration (including any restructuring or workout with respect hereto) of this Agreement, any of the other Loan Documents, or the Transactions contemplated hereby or thereby or the monitoring of the Borrowers’ and the other Credit Parties’ compliance with the terms of the Loan Documents;

(b)

any investigation, litigation, or proceeding related to this Agreement, any other Loan Document, or the use of the proceeds of the credit provided hereunder (irrespective of whether any Indemnified Party is a party thereto), or any act, omission, event, or circumstance in any manner related thereto;

(c)

any investigation, litigation or proceeding related to any acquisition or proposed acquisition by any Credit Party or any Subsidiary thereof of all or any portion of the Capital Securities or assets of any Person, whether or not an Indemnified Party is party thereto;

(d)

(i) the Release from any real property owned or operated by any Credit Party or any Subsidiary thereof of any Hazardous Material (including any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under any Environmental Law), or (ii) each Lender’s Environmental Liability (the indemnification herein shall survive repayment of the Obligations and any transfer of the property of any Credit Party or its Subsidiaries by foreclosure or by a deed in lieu of foreclosure for any Lender’s Environmental Liability); in each case of clauses (i) and (ii), other than any Release or Lender’s Environmental Liability first caused and first created after the

Administrative Agent completes the sale and the transfer of the respective real property pursuant to a foreclosure or deed in lieu of foreclosure;

provided that the New Borrower shall not be required to indemnify any Indemnified Party to the extent the applicable Indemnified Liability arises by reason of such Indemnified Party’s gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction. If and to the extent that the foregoing undertaking may be unenforceable for any reason, each Credit Party agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under Applicable Law. To the extent permitted by Applicable Law, each Borrower and each other Credit Party shall not assert, and hereby waive, any claim against any Indemnified Party, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, any Loan or the use of the proceeds thereof.

10.5

Survival. The obligations of each Borrower under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under Section 9.1, shall in each case survive any assignment from one Lender to another (in the case of Sections 10.3 and 10.4), the occurrence of the Termination Date and the resignation or removal of the Administrative Agent. The representations and warranties made by each Credit Party in each Loan Document shall survive the execution and delivery of such Loan Document.

10.6

Severability. Any provision of any Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of such Loan Document or affecting the validity or enforceability of such provision in any other jurisdiction.

10.7

Headings. The various headings of each Loan Document are inserted for convenience only and shall not affect the meaning or interpretation of such Loan Document or any provisions thereof.

10.8

Execution in Counterparts, Effectiveness, etc. This Agreement may be executed by the parties hereto in several counterparts, each of which shall be an original (whether such counterpart is originally executed or an electronic copy of an original and each party hereto expressly waives its rights to receive originally executed documents other than with respect to any documents for which originals are required for any filing or perfection) and all of which shall constitute together but one and the same agreement. This Agreement shall become effective when counterparts hereof executed on behalf of each Borrower shall have been received by the Administrative Agent.

10.9

Governing Law; Entire Agreement. EACH LOAN DOCUMENT WILL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). The Loan Documents constitute the entire understanding among the parties

hereto with respect to the subject matter thereof and supersede any prior agreements, written or oral, with respect thereto.

10.10

Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns; provided that, the Borrowers may not assign or transfer their rights or obligations hereunder without the consent of all Lenders.

10.11

Sale and Transfer of Loans; Participations in Loans; Notes. Each Lender may assign, or sell participations in, its Loans to one or more other Persons in accordance with the terms set forth below.

(a)

Any Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loans at the time owing to it); provided that:

(i)

the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Lender Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000, unless (A) the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the New Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); (B) such assignment is an assignment of the entire remaining amount of the assigning Lender’s Loans at the time owing to it, (C) such assignment is an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender or (D) such assignment is to one or more Eligible Assignees managed by an Affiliate of such Eligible Assignee(s) and the aggregate amount of such assignments is not less than $1,000,000;

(ii)

each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans assigned; and

(iii)

the parties to each assignment shall (A) electronically execute and deliver to the Administrative Agent a Lender Assignment Agreement via an electronic settlement system acceptable to the Administrative Agent or (B) with the consent of the Administrative Agent, manually execute and deliver to the Administrative Agent a Lender Assignment Agreement, together with, in either case, a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent) and if the Eligible Assignee is not a Lender, administrative details information with respect to such Eligible Assignee and applicable tax forms.

(b)

obligations under this Agreement (and, in the case of a Lender Assignment Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto, but shall continue to be entitled to the benefits of any provisions of this Agreement which by their terms survive the termination of this Agreement). If the consent of the New Borrower to an assignment or to an Eligible Assignee is required hereunder (including a consent to an assignment which does not meet the minimum assignment thresholds specified in this Section), the New Borrower shall be deemed to have given its consent ten days after the date notice thereof has been delivered by the assigning Lender (through the Administrative Agent or ClearPar, LLC) unless such consent is expressly refused by the New Borrower prior to such tenth day.

(c)

The Administrative Agent shall record each assignment made in accordance with this Section in the Register pursuant to clause (a) of Section 2.5 and at the request of the New Borrower give the New Borrower notice of such assignments. The Register shall be available for inspection by the New Borrower and any Lender (in respect of its own position only), at any reasonable time and from time to time upon reasonable prior notice.

(d)

Any Lender may, without the consent of, or notice to, the New Borrower or the Administrative Agent, sell participations to one or more banks or other entities other than an Ineligible Assignee (a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver with respect to any of the items set forth in clauses (a) through (e) of Section 10.1, in each case except as otherwise specifically provided in a Loan Document. Subject to clause (e), the Borrowers agree that each Participant shall be entitled to the benefits of Sections 4.3, 4.4, 4.5, 4.6, 7.1.3, 10.3 and 10.4 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 4.9 as though it were a Lender, provided such Participant agrees to be subject to Sections 4.8 and 4.10 as though it were a Lender. Each Lender shall, as agent of the Borrowers solely for the purpose of this Section, record in book entries maintained by such Lender the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive and binding absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. If requested by the Administrative Agent or the New Borrower, such Lender shall make the Participant Register available to the Administrative Agent or to the New Borrower upon either (i) the exercise by a Participant of remedies hereunder or (ii) a request for the Participant Register by the IRS.

(e)

A Participant shall not be entitled to receive any greater payment under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, as of the time of the sale of such participation, than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the New Borrower’s prior written consent. A Participant shall not be entitled to the benefits of Section 4.6 unless the Borrowers are notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with the requirements set forth in Section 4.6 as though it were a Lender that acquired its interest by assignment. In addition, if at the time of the sale of such participation, any greater Taxes subject to payment under Section 4.6 would apply to the Participant than applied to the applicable Lender, then such Participant shall not be entitled to any payment under Section 4.6 with respect to the portion of such Taxes as exceeds the Taxes applicable to the Lender at the time of the sale of the participation unless the Participant’s request for the New Borrower’s prior written consent for the Participation described in the first sentence of this clause states that such greater Taxes would be applicable to such Participant, it being understood that the Participant shall be entitled to additional payments under Section 4.6 to the extent such Lender selling the participation would be entitled to any payment resulting from a change in law occurring after the time the participation was sold.

(f)

Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(g)

Notwithstanding anything to the contrary contained herein, any Lender (“Granting Lender”) may grant to a special purpose funding vehicle (a “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers, the option to provide to the Borrowers all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (x) nothing herein shall constitute a commitment by any SPC to make any Loans and (y) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this clause, any SPC may (i) with notice to, but without the prior written consent of, the New Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the New Borrower) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency,

commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section may not be amended without the written consent of the SPC. The Borrowers acknowledge and agree, subject to the next sentence, that, to the fullest extent permitted under Applicable Law, each SPC, for purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a Lender (provided, in the case of Section 4.6, that the SPC complies with the requirements of such Section as if it were a Lender that acquired its interest by assignment). The Borrowers shall not be required to pay any amount under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4 that is greater than the amount which it would have been required to pay had no grant been made by a Granting Lender to a SPC.

10.12

Other Transactions. Nothing contained herein shall preclude the Administrative Agent or any other Lender from engaging in any transaction, in addition to those contemplated by the Loan Documents, with the Borrowers or any of their Affiliates in which such Borrower or such Affiliate is not restricted hereby from engaging with any other Person.

10.13

Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS OR THE BORROWER IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT, ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT’S OPTION (ACTING AT THE WRITTEN DIRECTION OF THE REQUIRED LENDERS), IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION 10.2. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS.

10.14

BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, EACH LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, SUCH LENDER OR THE BORROWER IN CONNECTION THEREWITH. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND EACH LENDER ENTERING INTO THE LOAN DOCUMENTS.

10.15

Confidentiality.

(a)

Subject to the provisions of clause (b) of this Section, each Lender agrees that it will follow its customary procedures in an effort not to disclose without the prior consent of the New Borrower (other than to its employees, auditors, advisors or counsel or to another Lender if the Lender or such Lender’s holding or parent company in its sole discretion determines that any such party should have access to such information, provided such Persons shall be subject to the provisions of this Section to the same extent as such Lender) any information which is now or in the future furnished pursuant to this Agreement or any other Loan Document, provided that any Lender may disclose any such information (i) as has become generally available to the public other than by virtue of a breach of this clause by the respective Lender or any other Person to whom such Lender has provided such information as permitted by this Section, (ii) as may be required or appropriate in any report, statement or testimony submitted to any municipal, state, provincial or Federal regulatory body having or claiming to have jurisdiction over such Lender or to the Federal Reserve Board or the Federal Deposit Insurance Corporation or similar organizations (whether in the United States or elsewhere) or their successors, (iii) as may be required or appropriate in respect to any summons or subpoena or in connection with any litigation, (iv) in order to comply with any law, order, regulation or ruling applicable to such Lender, (v) to the Administrative Agent, (vi) to any pledgee referred to in clause (f) of Section 10.11 or any prospective or actual transferee or participant in connection with any contemplated transfer or participation of any of the Notes or Loans or any interest therein by such Lender, provided that such prospective transferee agrees to be bound by the confidentiality provisions contained in this Section, (vii) to any direct or indirect contractual counterparty in swap agreements or such contractual counterparty’s professional advisor (so long as such contractual counterparty or professional advisor to such contractual counterparty agrees to be bound by the provisions of this Section) and (viii) to the National Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender.

(b)

The New Borrower hereby acknowledges and agrees that each Lender may share with any of its Affiliates, and such Affiliates may share with such Lender, any information related to the New Borrower or any of its Subsidiaries, provided such Persons shall be subject to the provisions of this Section to the same extent as such Lender.

Notwithstanding the foregoing paragraphs of this Section, any party to this Agreement (and each Affiliate, director, officer, employee, agent or representative of the foregoing or such Affiliate) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transactions contemplated herein and all materials of any kind (including opinions or other tax analyses) that are provided to such party relating to such tax treatment or tax structure. The foregoing language is not intended to waive any confidentiality obligations otherwise applicable under this Agreement except with respect to the information and materials specifically referenced in the preceding sentence. This authorization does not extend to disclosure of any other information, including (a) the identity of participants or potential participants in the transactions contemplated herein, (b) the existence or status of any negotiations, or (c) any financial, business, legal or personal information of or regarding a party or its affiliates, or of or regarding any participants or potential participants in the transactions contemplated herein (or any of their respective affiliates), in each case to the extent such other information is not related to the tax treatment or tax structure of the transactions contemplated herein.

10.16

Counsel Representation. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS BEEN REPRESENTED BY COMPETENT COUNSEL IN THE NEGOTIATION OF THIS AGREEMENT, AND THAT ANY RULE OR CONSTRUCTION OF LAW ENABLING THE BORROWER TO ASSERT THAT ANY AMBIGUITIES OR INCONSISTENCIES IN THE DRAFTING OR PREPARATION OF THE TERMS OF THIS AGREEMENT SHOULD DIMINISH ANY RIGHTS OR REMEDIES OF THE ADMINISTRATIVE AGENT OR THE OTHER SECURED PARTIES ARE HEREBY WAIVED BY THE BORROWER.

10.17

Patriot Act. Each Lender hereby notifies each Borrower that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Borrower, which information includes the name and address of each Borrower and other information that will allow such Lender to identify each Borrower in accordance with the Patriot Act.

10.18

Authorization of Administrative Agent. Each Lender agrees that any action taken by the Administrative Agent in accordance with the terms of this Agreement or the other Loan Documents relating to the Collateral and the exercise by the Administrative Agent of its powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Lenders.

10.19

Excess Cash Flow Payments. The parties hereto acknowledge that the mandatory prepayments with respect to Excess Cash Flow under Section 3.1.1(d) may not be permitted under the ABL Credit Agreement if certain conditions (the “ABL ECF Conditions”) thereunder (including a required minimum Liquidity) are not satisfied, and any such mandatory prepayment made when the ABL ECF Conditions are not satisfied will result in an event of default under the ABL Credit Agreement, which may in turn result in a Default or Event of Default hereunder.

ARTICLE XI

CERTAIN COLLATERAL ADMINISTRATION

11.1

Insurance of Collateral; Condemnation Proceeds. Each Credit Party shall maintain and pay for insurance upon all Collateral, wherever located, covering casualty, hazard, public liability, theft, malicious mischief and the other risks covered under the policies listed in Part 11.1 of the Disclosure Schedule, in the amounts and with the insurance companies listed in Part 11.1 of the Disclosure Schedule (which describes all insurance of the Credit Parties in effect on the date hereof with respect to Collateral) similar to those maintained by companies of similar size and similarly situated. The Credit Parties have the right to substitute valid and enforceable policies issued by any Approved Insurer so long as such policies insure the same risks and are in the same amounts or such other amounts reasonably determined by such Credit Party and consistent with past practices and in accordance with industry standards for companies in the same or similar industry and of the size and owning Properties comparable to the Credit Parties. All proceeds constituting Term Loan Priority Collateral payable under each such policy shall be applied in accordance with and subject to Section 3.1.1(c) to reduce the Loans. The Credit Parties shall deliver copies of such policies to the Administrative Agent. Each policy insuring the Collateral (except fidelity coverage against theft and malicious mischief) will (a) include a loss payee endorsement satisfactory to the Administrative Agent, naming the Administrative Agent and the ABL Administrative as sole loss payees and (b) additional insured as appropriate. Each such policy of insurance or endorsement shall contain a clause requiring the insurer to give not less than 30 days prior written notice to the Administrative Agent in the event of cancellation of the policy for any reason whatsoever (except that in the case of cancellation for non-payment of the premium, the insurer shall give 10 days’ prior written notice to the Administrative Agent) and a clause specifying that the interest of the Administrative Agent shall not be impaired or invalidated by any act or neglect of any Credit Party or the owner of the property in which the Collateral is stored or by the occupation of the premises for purposes more hazardous than are permitted by said policy. If any Credit Party fails to provide and pay for such insurance, the Administrative Agent may, at its option, but shall not be required to, procure the same and charge each Credit Party therefor. Each Credit Party agrees to deliver to the Administrative Agent, promptly as rendered, true copies of all claims and reports relating to claims submitted to insurance companies issuing policies insuring the Term Loan Priority Collateral. For so long as no Event of Default exists, each Credit Party shall have the right to settle, adjust and compromise any claim with respect to any insurance maintained by each Credit Party with respect to the Term Loan Priority Collateral provided that all proceeds thereof are applied in the manner specified in this Agreement, and the Administrative Agent agrees promptly to provide any necessary endorsement to any checks or drafts issued in payment of any such claim. At any time that an Event of Default exists, only the Administrative Agent shall be authorized to settle, adjust and compromise such claims. The Administrative Agent shall have all rights and remedies with respect to such policies of insurance on the Collateral as are provided for in this Agreement and the other Loan Documents, and consistent with the applicable insurance policies.

11.2

Protection of Collateral. All expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping any Collateral, all Taxes imposed under any Applicable Law on any of the Collateral or in respect of the sale thereof, and all other payments required to be made by the Administrative Agent to any Person to realize upon any Collateral shall be borne and paid by Credit Parties. The Administrative Agent shall not be liable or responsible in any way for the safekeeping of any of the Collateral or for any loss or damage thereto (except for reasonable care in the custody thereof while any Collateral is in the Administrative Agent’s actual possession) or for any diminution in the value thereof, or for any

act or default of any warehouseman, carrier, forwarding agency, or other Person whomsoever, but the same shall be at the Credit Parties’ sole risk.

11.3

Defense of Title to Collateral. Each Credit Party shall at all times defend its title to the Collateral and the Administrative Agent’s Liens therein against all Persons and all claims and demands whatsoever other than Permitted Liens.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the day and year first above written.

THE STANDARD REGISTER COMPANY

By: /s/ Joseph P. Morgan, Jr.
Name: Joseph P. Morgan, Jr.
Title: President and Chief Executive Officer

STANDARD REGISTER INTERNATIONAL, INC.

By: /s/ Joseph P. Morgan, Jr.
Name: Joseph P. Morgan, Jr.
Title: President

STANDARD REGISTER TECHNOLOGIES, INC.

By: /s/ Joseph P. Morgan, Jr.
Name: Joseph P. Morgan, Jr.
Title: President

IMEDCONSENT, LLC

By: /s/ Joseph P. Morgan, Jr.
Name: Joseph P. Morgan, Jr.
Title: President

First Lien Credit Agreement

WORKFLOWONE LLC

By: The Standard Register Company, as its sole member

By: /s/ Joseph P. Morgan, Jr.
Name: Joseph P. Morgan, Jr.
Title: President and Chief Executive Officer

WORKFLOWONE OF PUERTO RICO INC.

By: /s/ Joseph P. Morgan, Jr.
Name: Joseph P. Morgan, Jr.
Title: President

First Lien Credit Agreement

CREDIT SUISSE LOAN FUNDING LLC

By: /s/ Michael Wotanowski
       Name: Michael Wotanowski
      Title:    Authorized Signatory

By: /s/ Leigh Dworkin
       Name: Leigh Dworkin
      Title:    Authorized Signatory

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH

By: /s/ Vipul Dhadda
      Name: Vipul Dhadda
      Title:    Authorized Signatory

By: /s/ Michael D’Onofrio
       Name: Michael D’Onofrio
      Title:    Authorized Signatory

SARGAS CLO II LTD
By: Pangaea CLO Management, LLC its Collateral Manager

By: /s/ Glenn P. Cummins
       Name: Glenn P. Cummins
      Title:    Treasurer

SPCP GROUP LLC

By: /s/ Michael A. Gatto
       Name: Michael A. Gatto
      Title:    Authorized Signatory

First Lien Credit Agreement

SPF CDO I, LTD.

By: /s/ Michael A. Gatto
       Name: Michael A. Gatto
      Title:    Authorized Signatory

SPCP GROUP III LLC

By: /s/ Michael A. Gatto
       Name: Michael A. Gatto
      Title:    Authorized Signatory

First Lien Credit Agreement

WG HORIZONS CLO I
By: West Gate Horizons Advisors LLC, as Manager

By: /s/ J. Joy Jacob
      Name: J. Joy Jacob
      Title:    Senior Credit Analyst

First Lien Credit Agreement

SILVER POINT FINANCE, LLC,

By: /s/ Michael A. Gatto
       Name: Michael A. Gatto
      Title:    Authorized Signatory

First Lien Credit Agreement

EX-10 8 ex103.htm EXHIBIT 10.3 Converted by EDGARwiz

EXHIBIT 10.3

EXECUTION VERSION

SECOND LIEN CREDIT AGREEMENT,

dated as of August 1, 2013,

among

THE STANDARD REGISTER COMPANY,

as the New Borrower,

WORKFLOWONE LLC,

as the Existing Borrower,

THE SUBSIDIARY GUARANTORS FROM TIME TO TIME PARTIES HERETO,

as the Subsidiary Guarantors,

VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS FROM TIME TO TIME
PARTIES HERETO,

as the Lenders,

and

SILVER POINT FINANCE, LLC,
as the Administrative Agent.

TABLE OF CONTENTS

Page

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

1.1

Defined Terms

1.2

Use of Defined Terms

1.3

Cross-References

1.4

Accounting and Financial Determinations

ARTICLE II LOANS, CLOSING RATE AND NOTES

2.1

Loans.

2.2

Closing Rate

2.3

Continuation and Conversion Elections

2.4

Funding

2.5

2.6

Incremental Credit Extensions.

ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES

3.1

Repayments and Prepayments; Application

3.1.1

Repayments and Prepayments

3.1.2

Application

3.2

Interest Provisions

3.2.1

Rates

3.2.2

Post-Default Rates.

3.2.3

Payment Dates

3.2.4

Interest Capitalization.

3.3

Fees

3.3.1

Administrative Agent’s Fee

3.4

Nature and Extent of Each Borrower’s Liability.

3.4.1

Joint and Several Liability

3.4.2

Unconditional Nature of Liability

3.4.3

Partial Release of Liability for Obligations

3.4.4

Postponement of Subrogation, etc

ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS

4.1

LIBO Rate Lending Unlawful

4.2

Deposits Unavailable

4.3

Increased LIBO Rate Loan Costs, etc

TABLE OF CONTENTS

(continued)

Page

4.4

Funding Losses

4.5

Increased Capital Costs

4.6

Taxes

4.7

Payments, Computations; Proceeds of Collateral, etc

4.8

Sharing of Payments

4.9

Setoff

4.10

Replacement of Lenders

4.11

Change in Lending Office

4.12

Tax Treatment

ARTICLE V CONDITIONS TO TERM LOAN AMENDMENT AND ASSUMPTION

5.1

Resolutions, etc

5.2

Consummation of Transactions

5.3

Delivery of Notes

5.4

Guarantees

5.5

Security Agreements

5.6

Mortgages

5.7

Intellectual Property Security Agreements

5.8

Filing Agent, etc

5.9

Intercreditor Agreements

5.10

Patriot Act Disclosures

5.11

Compliance with Warranties, No Default, etc

5.12

Legal Opinions

5.13

Insurance

5.14

Fees

5.15

No Litigation

5.16

Closing Certificate; Third Party Consents

5.17

Solvency Certificate

5.18

Know Your Customer

ARTICLE VI REPRESENTATIONS AND WARRANTIES

6.1

Organization and Qualification

6.2

Power and Authority

6.3

Legally Enforceable Agreement

TABLE OF CONTENTS

(continued)

Page

6.4

Capital Structure

6.5

Corporate Names

6.6

Business Locations; Agent for Process

6.7

Priority of Liens

6.8

Solvent Financial Condition

6.9

Brokers

6.10

Governmental Approvals

6.11

Compliance with Applicable Laws

6.12

Litigation

6.13

No Defaults

6.14

Investment Company Act

6.15

Margin Stock

6.16

Security Documents

ARTICLE VII COVENANTS

7.1

Affirmative Covenants

7.1.1

Visits and Inspections

7.1.2

Notices

7.1.3

Financial and Other Reporting

7.1.4

Landlord and Storage Agreements

7.1.5

Projections

7.1.6

Taxes

7.1.7

Compliance with Applicable Laws

7.1.8

Insurance

7.1.9

[Reserved].

7.1.10

Payment of Obligations

7.1.11

Preservation of Existence, Etc

7.1.12

Maintenance of Properties

7.1.13

Compliance with Terms of Leaseholds

7.1.14

Lien Searches

7.1.15

Material Contracts

7.1.16

Books and Records

7.1.17

Future Subsidiary Guarantors, Security, etc

iii

TABLE OF CONTENTS

(continued)

Page

7.1.18

Further Mortgages and Insurance

7.1.19

Valuations

7.1.20

Post-Closing Condition

7.2

Negative Covenants

7.2.1

Fundamental Changes

7.2.2

Disposition of Assets

7.2.3

Tax Consolidation

7.2.4

Accounting Changes

7.2.5

Organizational Documents

7.2.6

Restrictive Agreements

7.2.7

Conduct of Business

7.2.8

Liens

7.2.9

Indebtedness

7.2.10

Restricted Investments

7.2.11

Loans

7.2.12

Distributions; Upstream Payments.

7.2.13

Affiliate Transactions

7.2.14

Restrictions on Payment of Junior Financing

7.2.15

Amendments to Subordinated Indebtedness

7.2.16

Sale-Leaseback and Pension Obligations

7.2.17

Financial Condition and Operations

ARTICLE VIII EVENTS OF DEFAULT

8.1

Listing of Events of Default

8.1.1

Non-Payment of Obligations

8.1.2

Misrepresentations

8.1.3

Non-Performance of Certain Covenants and Obligations

8.1.4

Non-Performance of Other Covenants and Obligations

8.1.5

Default on Other Indebtedness

8.1.6

Judgments

8.1.7

Change in Control

8.1.8

Bankruptcy, Insolvency, etc

8.1.9

Impairment of Security, etc

TABLE OF CONTENTS

(continued)

Page

8.1.10

ERISA

8.2

Action if Bankruptcy

8.3

Action if Other Event of Default

ARTICLE IX THE ADMINISTRATIVE AGENT

9.1

Actions.

9.2

Exculpation

9.3

Successor

9.4

Loans by the Administrative Agent

9.5

Credit Decisions

9.6

Copies, etc

9.7

Reliance by Administrative Agent

9.8

Defaults

9.9

Posting of Approved Electronic Communications.

9.10

Proofs of Claim

9.11

Appointment of Designated Term Loan Agent

ARTICLE X MISCELLANEOUS PROVISIONS

10.1

Waivers, Amendments, etc

10.2

Notices; Time

10.3

Payment of Costs and Expenses

10.4

Indemnification

10.5

Survival

10.6

Severability

10.7

Headings

10.8

Execution in Counterparts, Effectiveness, etc

10.9

Governing Law; Entire Agreement

10.10

Successors and Assigns

10.11

Sale and Transfer of Loans; Participations in Loans; Notes

10.12

Other Transactions

101

10.13

Forum Selection and Consent to Jurisdiction

101

10.14

Waiver of Jury Trial

101

10.15

Confidentiality.

102

10.16

Counsel Representation

103

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Page

10.17

Patriot Act

103

10.18

Authorization of Administrative Agent

103

10.19

Excess Cash Flow Payments

103

ARTICLE XI

CERTAIN COLLATERAL ADMINISTRATION

103

11.1

Insurance of Collateral; Condemnation Proceeds

103

11.2

Protection of Collateral

104

11.3

Defense of Title to Collateral

105

SCHEDULE I

Disclosure Schedule

SCHEDULE II

Percentages and Amounts; LIBOR Office; Domestic Office

SCHEDULE III

Incremental Term Lenders

EXHIBIT A

Form of Term A Note

EXHIBIT B

Form of Term B Note

EXHIBIT C

Form of Term C Note

EXHIBIT D

Form of Continuation/Conversion Notice

EXHIBIT E

Form of Lender Assignment Agreement

EXHIBIT F

Form of Compliance Certificate

EXHIBIT G

Form of Subsidiary Guaranty

EXHIBIT H

Form of Pledge and Security Agreement

EXHIBIT I

Form of Mortgage

EXHIBIT J

Form of Lien Waiver

SECOND LIEN CREDIT AGREEMENT

THIS SECOND LIEN CREDIT AGREEMENT, dated as of August 1, 2013 (this “Agreement”), is among THE STANDARD REGISTER COMPANY (the “New Borrower”), an Ohio corporation with its chief executive office and principal place of business at 600 Alb any Street, Dayton, Ohio 45417, WORKFLOWONE LLC (the “Existing Borrower” and collectively with the New Borrower, the “Borrowers”), a Delaware limited liability company, STANDARD REGISTER INTERNATIONAL, INC., an Ohio corporation (“SRI”), STANDARD REGISTER TECHNOLOGIES, INC., an Ohio corporation (“SRT”), IMEDCONSENT, LLC, a Delaware limited liability company (“iMed”) and WORKFLOWONE OF PUERTO RICO INC., a Delaware corporation (“WorkflowOne PR”; and together with SRI, SRT and iMed, each an “Initial Guarantor” and collectively together with any additional Subsidiaries of the New Borrower who become a party hereto as Subsidiary Guarantors, the “ Subsidiary Guarantors” and collectively with the Borrowers, the “Credit Parties”); the various financial institutions and other Persons from time to time parties hereto and listed on the signature pages hereto and their respective successors and assigns and permitted assigns which become "Lenders" as provided herein (the “Lenders”) and SILVER POINT FINANCE, LLC, as the administrative agent (in such capacity, the “Administrative Agent”), for the Lenders.

W I T N E S S E T H:

WHEREAS, further pursuant to the Term Loan Amendment Agreement, immediately following the New Borrower Warrant Transfer, the Borrowers, the Subsidiary Guarantors, the various financial institutions listed on the signature pages thereto and their respective successors and assigns and permitted assigns which become First Lien Lenders and Silver Point Finance, LLC, as the First Lien Administrative Agent for the First Lien Lenders will enter into a First Lien Credit Agreement, dated the date hereof, pursuant to which the principal amount of the Existing First Lien Term Loans of the Existing Borrower remaining outstanding on the Closing Date under the Existing WorkflowOne First Lien Credit Agreement after the Permitted Pre-Closing Existing First Lien Loan Prepayment (i) will remain outstanding under the First Lien Credit Agreement as first lien term loans of equal principal amount of the Existing Borrower, (ii) will be assumed by the New Borrower as co-obligor under the First Lien Credit Agreement, (iii) will be guaranteed (or continued to be guaranteed in the case of WorkflowOne PR) by each of the Initial Guarantors pursuant to the First Lien Loan Documents , and (iv) will be amended and restated to be on the terms set forth under the First Lien Credit Agreement pursuant to the Term Loan Amendment Agreement. The transactions referred to in clauses (i) through (iv) are referred to herein as the “First Lien Amendment and Assumption”;

WHEREAS, further pursuant to the Term Loan Amendment Agreement, concurrently with the First Lien Amendment and Assumption, the parties hereto will enter into this Agreement, pursuant to which the principal amount of the Existing Second Lien Term Loans of the Existing Borrower remaining outstanding on the Closing Date under the Existing WorkflowOne Second Lien Credit Agreement after the Initial Existing Second Lien Term Loan Cancellation and the New Borrower Warrant Transfer, inclusive of both the Term A Loans and the Term B Loans provided for hereunder (i) will remain outstanding hereunder as second lien term loans of equal principal amount of the Existing Borrower, (ii) will be assumed by the New Borrower as co-obligor hereunder, (iii) will be guaranteed (or continued to be guaranteed in the case of WorkflowOne PR) by each of the Initial Guarantors pursuant to the Subsidiary Guaranty, and (iv) will be amended and restated to be on the terms set forth under this Agreement pursuant to the Term Loan Amendment Agreement. The transactions referred to in clauses (i) through (iv) are referred to herein as the “Second Lien Amendment and Assumption”). The First Lien Amendment and Assumption together with the Second Lien Amendment and Assumption are referred to herein as the “Term Loan Amendment and Assumption” and the consummation of the Term Loan Amendment and Assumption is referred to here as the “Closing”;

NOW, THEREFORE, the parties hereto agree as follows.

ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS