Common use of Certain Documentation Matters Clause in Contracts

Certain Documentation Matters. The definitive financing documentation (including any Project Credit Support documentation) with respect to the Credit Facilities (the "Credit Documentation") shall contain representations, warranties, covenants and events of default customary for financings of this type and other terms deemed appropriate by the Senior Lenders, including, without limitation: Representations and Warranties Financial statements (including pro forma financial statements); absence of undisclosed liabilities; no material adverse change; corporate existence; compliance with law; corporate or organizational power and authority; enforceability of Credit Documentation; no conflict with law or contractual obligations; no material litigation; no default; ownership of property; indebtedness; liens; intellectual property; taxes; Federal Reserve regulations; ERISA; Investment Company Act; licenses; permits; franchises and regulatory approvals; subsidiaries; environmental matters; solvency; labor matters; accuracy of disclosure; creation, perfection and priority of security interests; and status of the Credit Facilities as senior debt. Affirmative Covenants Delivery of financial statements, reports, accountants' letters, projections, officers' certificates and other information reasonably requested by the Senior Lenders; payment of other obligations; continuation of business and maintenance of existence and material rights and privileges; compliance with laws and material contractual obligations; maintenance of property and insurance; maintenance of books and records; right of the Senior Lenders to inspect property and books and records; notices of defaults, litigation and other material events; compliance with environmental laws; further assurances (including, without limitation, with respect to security interests in after-acquired property); and maintenance of interest rate and currency hedging agreements.

Certain Documentation Matters. The definitive financing documentation (including any Project Senior Credit Support documentation) with respect to the Credit Facilities (the "Credit Documentation") Documentation shall contain representations, warranties, covenants and events of default (in each case, applicable to the Borrower and its subsidiaries) customary for financings of this type and other terms deemed appropriate by the Senior Lenders, including, without limitation: Representations and Warranties Warranties: Financial statements (including pro forma financial statements); absence of undisclosed liabilities; no material adverse change; corporate existence; compliance with law; corporate or organizational power and authority; enforceability of Senior Credit Documentation; no conflict with law or contractual obligations; no material litigation; no default; ownership of property; indebtedness; liens; intellectual property; taxes; Federal Reserve regulations; labor matters; ERISA; Investment Company Act; licenses; permits; franchises Act and regulatory approvalsother regulations; subsidiaries; use of proceeds; environmental matters; solvency; labor matters; accuracy of disclosure; creation, creation and perfection and priority of security interests; solvency; Regulation H; and status delivery of the Credit Facilities as senior debtcertain documents. Affirmative Covenants Covenants: Delivery of financial statements, reports, accountants' ’ letters, projections, officers' ’ certificates and other information reasonably requested by the Senior Lenders; payment of taxes and other Term Sheet – Senior Term Facility obligations; continuation of business and maintenance of existence and material rights and privileges; compliance with laws and material contractual obligations; maintenance of property and insurance; maintenance of books and records; right of the Senior Lenders to inspect property and books and records; notices of defaults, litigation and other material events; compliance with environmental laws; account control agreements; further assurances (including, without limitation, with respect to security interests in after-acquired property); and maintenance of and, at the Company’s option, in consultation with the Administrative Agent, obtaining interest rate and currency hedging agreementsprotection.

Certain Documentation Matters. The definitive financing documentation (including any Project Credit Support documentation) with respect to the Credit Facilities (the "Credit Documentation") Documentation shall contain representations, warranties, covenants and events of default customary for financings of this type and other terms deemed appropriate by the Senior Lenders, including, without limitation: Representations and Warranties Warranties: Financial statements (including pro forma financial statements); absence of undisclosed liabilities; no material adverse change; corporate existence; compliance with law; corporate or organizational power and authority; enforceability of Credit Documentation; no conflict with law or contractual obligations; no material litigation; solvency; no default; ownership of property; indebtedness; liens; intellectual property; no burdensome restrictions; taxes; Federal Reserve regulations; ERISA; Investment Company Act; licenses; permits; franchises and regulatory approvals; subsidiaries; environmental matters; solvencyAcquisition matters; labor matters; accuracy of disclosure; creation, perfection . The foregoing shall have agreed upon materiality qualifiers which are customary and priority of security interests; and status of the Credit Facilities as senior debtreasonable. Affirmative Covenants Covenants: Delivery of financial statements, reports, accountants' ’ letters, projections, officers' ’ certificates and other information reasonably requested by the Senior Lenders; payment of other obligations; continuation of business and maintenance of existence and material rights and privileges; compliance with laws laws, including environmental laws, and material contractual obligations; maintenance of property and insurance; maintenance of books and records; right of the Senior Lenders to inspect property and books and records; notices of defaults, litigation and other material events; compliance with environmental laws; further assurances and terms of intercompany indebtedness. The foregoing shall have agreed upon materiality qualifiers which are customary and reasonable. Financial Covenants: EBIT to Total Interest > 3.0 x. Total Debt to EBITDA < 3.0 x. Negative Covenants: Limitations, subject to exceptions to be agreed upon, on: indebtedness and subsidiary indebtedness (including, without limitation, with respect which limitation shall permit the refinancing of a portion of the Facilities to security interests in after-acquired propertybe agreed upon); liens; guarantee obligations; mergers, consolidations, liquidations and maintenance dissolutions; sales of interest rate assets; leases; dividends and currency hedging other payments in respect of capital stock; capital expenditures; investments, acquisitions, loans and advances (provided that the Borrower shall have the right to make loans, advances or capital contributions to Acquisition Sub or wholly-owned subsidiaries of the Borrower as needed to effectuate the Acquisition); optional payments and modifications of subordinated and other debt instruments; transactions with affiliates; sale and leasebacks; changes in fiscal year; negative pledge clauses; restrictive agreements; and changes in lines of business. Events of Default: Nonpayment of principal when due; nonpayment of interest, fees or other amounts after a grace period to be agreed upon; material inaccuracy of representations and warranties; violation of covenants (subject, in the case of certain affirmative covenants, to a grace period to be agreed upon); cross-default; bankruptcy events; intercompany note default; certain ERISA events; material judgments; failure to consummate the Merger within 150 days of the Closing Date; breach or actual or alleged unenforceability of guarantees; and change of control (the definition of which is to be agreed).

Certain Documentation Matters. The definitive financing documentation (including any Project Credit Support documentation) with respect to the Credit Facilities Term Loan Facility (the "“Credit Documentation"”) shall will contain representations, warranties, covenants and events of default customary for financings of this type in light of market conditions on the Effective Date for credits of this type and other terms deemed appropriate by the Senior LendersArranger for this transaction in particular, consistent with the items set forth in this term sheet and including, without limitation: Representations and Warranties Financial statements (including pro forma financial statements); absence of undisclosed liabilities; no material adverse change; corporate Corporate existence; compliance with law; corporate or organizational power and authority; enforceability of Credit Documentation; no conflict with law law, material agreements or contractual obligationscharter documents; financial statements; absence of material adverse change; no material litigation; no default; ownership of property; indebtedness; liens; intellectual property; taxes; Federal Reserve regulations; ERISA; Investment Company Act; licenses; permits; consents; franchises and regulatory approvals; subsidiaries; environmental matters; solvency; labor matters; insurance; accuracy of disclosure; creation, perfection and priority of security interests; use of proceeds; Patriot Act and status of the Credit Facilities as senior debtsimilar money laundering or anti terrorism laws and real estate (in each case, subject to materiality thresholds and exceptions to be agreed). Affirmative Covenants Delivery of quarterly and annual financial statements, as well as reports, accountants' ’ letters, projections, annual capital expenditure budgets (such budget, as may be modified by the Borrower as reasonably agreed to by the Administrative Agent, the “Capex Budget”) (at least 30 days prior to the start of each fiscal year), officers' ’ certificates and other information reasonably requested by the Senior Administrative Agent or the Lenders; payment of other obligations; continuation of business and maintenance of existence and material rights and privileges; compliance with laws and material contractual obligations; maintenance of property and insurance; maintenance of books and records; maintenance of ratings (but not a minimum rating and provided that no ratings shall be required until 60 days after the Effective Date); right of the Senior Administrative Agent and the Lenders to inspect property and books and records; notices of defaults, litigation and other material events; compliance with environmental laws; further assurances (including, without limitation, with respect to security interests in after-acquired property; further assurances. Financial Covenants Financial covenants consisting of minimum Liquidity (as defined below) of $7.5 million at any time subject to a three Business Day grace period, minimum fixed charge coverage ratio (to be defined as EBITDA divided by the sum of capex plus interest, principal and fees on debt plus fees on letters of credit) and maximum total net senior secured leverage ratio (to be defined as senior funded debt less unrestricted cash at the Credit Parties divided by EBITDA); , in each case with a cushion in EBITDA above the EBITDA levels set forth in the agreed model delivered to the Arranger on December 9, 2011 and maintenance attached hereto as Exhibit B, such cushions to be equal to 30% in 2012, 25% in 2013 and 20% in 2014 and thereafter. The definition of interest rate EBITDA shall have the meaning agreed in the Credit Documentation, but in any event shall include include customary add-backs for one-time charges including severance and currency hedging agreementsrestructuring costs.

Certain Documentation Matters. The definitive financing documentation (including any Project Credit Support documentation) with respect to the Credit Facilities (the "Credit Documentation") Loan Documents shall contain representations, warranties, covenants and events of default customary for financings of this type and other terms deemed appropriate by the Senior LendersLender, including, without limitation: Representations and Warranties Warranties: Financial statements (including pro forma financial statements); absence of undisclosed liabilities; no material adverse change; corporate organizational existence; compliance with law; corporate or organizational power and authority; enforceability of Credit DocumentationLoan Documents and Project Documents; no conflict with law or contractual obligations; no material litigation; no defaultdefault under the Loan Documents or the Project Documents; ownership of property; indebtedness; liens; intellectual property; no burdensome restrictions; taxes; Federal Reserve regulations; ERISA; Investment Company Act; licenses; permits; franchises and regulatory approvals; subsidiaries; environmental matters; solvency; labor matters; accuracy of disclosure; creation, creation and perfection and priority of security interests; use of proceeds; and status of the Credit Facilities as senior debtno other credit facilities. Affirmative Covenants Covenants: Delivery of financial statements, reports (including, without limitation, Project progress reports, accountants' reports on the status of Borrower’s search for Project financing, accountants letters, projections, officers' . certificates and other information reasonably requested by the Senior LendersLender; payment of taxes and other obligations; continuation of business and maintenance of existence and material rights and privileges, including all Project Documents; compliance with laws and material contractual obligations; maintenance of property and insurance; maintenance of books and records; right of the Senior Lenders Lender to inspect property and books and records; notices of defaults, litigation and other material events; compliance with environmental laws; further assurances (including, without limitation, with respect to security interests in after-acquired property); and maintenance of interest rate and currency hedging agreementsagreement to complete the Refinance.