Common use of Securities Demand Clause in Contracts

Securities Demand. (a) At any time and from time to time during the period beginning on the Merger Closing Date and ending on the first anniversary of the Merger Closing Date, if and to the extent so directed in a Demand Notice (as defined below) given in accordance with Section 10.14(b) with respect to a private issuance and sale of Securities (as defined below), the Borrower shall provide to the Lead Arranger as soon as reasonably practicable a preliminary offering memorandum usable in a customary high-yield road show relating to the issuance by the Borrower of Securities (including all financial statements and other data to be included therein (including all audited financial statements and unaudited interim financial statements (each of which unaudited interim financial statements shall have undergone a SAS 100 review)) and all appropriate pro forma financial statements prepared in accordance with Regulation S-X under the Securities Act (with such deviations therefrom as may be mutually agreed by Borrower and the Lead Arranger), and substantially all other data (including selected financial data) that the SEC would require in a registered offering; provided that (i) financial information that would be so required by Rule 3-16 of Regulation S-X shall not be required in any offering memorandum with respect to Securities and (ii) a consolidating footnote required by Rule 3-10 of Regulation S-X shall not be required in any offering memorandum with respect to Securities so long as the substantive information that would be presented in such footnote is otherwise disclosed in such offering memorandum; and provided further that any offering memorandum with respect to Securities may include information through incorporation by reference to the same extent, and on the same basis, as would be permitted by Section 10.15(b) if such offering memorandum were an offering memorandum for Exchange Notes required to be delivered pursuant to Section 10.15(b). (b) At any time and from time to time during the period commencing upon the Effective Date and ending on the first anniversary of the Merger Closing Date, upon notice by the Lead Arranger to the Borrower (a “Demand Notice”), the Borrower will take such actions as are reasonably necessary to cause the public or private issuance and sale of debt securities (such debt securities, the “Securities” and such issuance and sale of debt securities, a “Securities Offering”) in one or more transactions in such amounts and on such terms and conditions (including without limitation covenants, events of default, guarantees, collateral and intercreditor provisions, currency, interest and/or dividend rates, yield, redemption provisions, maturity date and registration rights) as specified in the Demand Notice, in each case, as MS&Co. in its reasonable judgment determines to be appropriate in light of the then prevailing circumstances and market conditions and the financial condition and prospects of Holdings and its Subsidiaries at such time; provided, however, that (a) at the date of issuance of Securities, the weighted average total interest rate on (i) Securities issued to replace or refinance the Loans and Commitments and (ii) the First Lien Loans and commitments under the First Lien Credit Agreement, shall not exceed the Total Yield Cap, (b) any securities issued in a public Securities Offering or in a private Securities Offering with registration rights will not, without Holdings’ consent, be secured by the Equity Interests of any of Holdings’ Subsidiaries to the extent that the granting of such security interest would give rise to any requirement to file separate financial statements for such subsidiary with the SEC pursuant to Rule 3-16 of Regulation S-X under the Securities Act or any successor rule or regulation and (c) each Demand Notice shall provide for not less than $50,000,000 of Securities to be issued. Any Securities that are the subject of a Demand Notice will be issued pursuant to one or more customary agreements, which, in each case, shall contain such terms, conditions and covenants as are typical and customary for similar financings (as determined by MS&Co.) and as are reasonably satisfactory in all respects to the MS&Co.; provided that (i) the Securities shall be denominated in Dollars, (ii) the guarantee structure shall be consistent with that in the Bridge Loan Documents, (iii) the maturity date of the Securities shall not be less than 7 years after the Effective Date, (iv) the Securities shall be unsecured (unless and to the extent otherwise permitted to be secured in accordance with the relevant provisions of the First Lien Credit Documents) and (v) the Securities will not require any scheduled amortization payments, mandatory redemptions or sinking fund payments prior to the final stated maturity thereof. (c) Notwithstanding anything to the contrary contained herein, in the event of a failure by the Borrower to execute a Securities Offering within 30 days after delivery of a Demand Notice (such 30th day, the “Demand Failure Date”), the Lead Arranger shall have the right to increase the interest rate with respect to the Loans on the Demand Failure Date (and/or any time thereafter) to an amount such that the weighted average total interest rate on such Loans and the First Lien Loans and commitments under the First Lien Credit Agreement shall not exceed the Total Yield Cap.

Securities Demand. (a) At Upon written notice (such notice, a “Securities Demand”) by either of the Joint Bookrunners and/or Investment Banks who are affiliated with Initial Lenders holding any outstanding Commitments as of the date hereof (such Person, the “Controlling Person”) at any time and from time to time during (but on no more than three occasions) (it being understood and agreed that any Securities Demand that results in a Demand Failure shall not be included in such limitation), beginning upon the period beginning on earlier of (i) five Business Days prior to the Merger Closing Date and ending on (ii) five Business Days prior to the six (6) month anniversary of the date hereof and prior to the first anniversary of the Merger Closing Date (which notice may be provided on such date) so long as any Commitments are outstanding or any Loans are outstanding, you will cause the Borrower to issue and sell, to the Investment Banks or the Initial Lenders or their respective affiliates, the New Second Lien Notes or Permanent Securities in such amount as is necessary to repay the outstanding Loans under this Agreements in full or replace this Agreement in full (each, a “Take-out Financing”); provided that in case of any Securities Demand for Take-out Financing to be issued prior to the Closing Date, if and such Securities Demand shall also be subject to the extent so directed in a Demand Notice terms of clause (as defined g) below) given in accordance with Section 10.14(b) with respect to a private issuance and sale of Securities (as defined below), the Borrower shall provide to the Lead Arranger as soon as reasonably practicable a preliminary offering memorandum usable in a customary high-yield road show relating to the issuance by the Borrower of Securities (including all financial statements and other data to be included therein (including all audited financial statements and unaudited interim financial statements (each of which unaudited interim financial statements shall have undergone a SAS 100 review)) and all appropriate pro forma financial statements prepared in accordance with Regulation S-X under the Securities Act (with such deviations therefrom as may be mutually agreed by Borrower and the Lead Arranger), and substantially all other data (including selected financial data) that the SEC would require in a registered offering; provided that (i) financial information that would be so required by Rule 3-16 of Regulation S-X shall not be required in any offering memorandum with respect to Securities and (ii) a consolidating footnote required by Rule 3-10 of Regulation S-X shall not be required in any offering memorandum with respect to Securities so long as the substantive information that would be presented in such footnote is otherwise disclosed in such offering memorandum; and provided further that any offering memorandum with respect to Securities may include information through incorporation by reference to the same extent, and on the same basis, as would be permitted by Section 10.15(b) if such offering memorandum were an offering memorandum for Exchange Notes required to be delivered pursuant to Section 10.15(b). (b) At any time The Take-out Financing shall have such form, term, yield, guarantees, covenants, call protection, default provisions and from time to time during the period commencing upon the Effective Date and ending on the first anniversary other terms as are customary for securities of the Merger Closing Date, upon notice by the Lead Arranger to the Borrower (a “Demand Notice”), the Borrower will take such actions as are reasonably necessary to cause the public or private issuance type issued and sale of debt securities (such debt securities, the “Securities” and such issuance and sale of debt securities, a “Securities Offering”) may be issued in one or more transactions in such amounts tranches, and on such terms and conditions (including without limitation covenants, events of default, guarantees, collateral and intercreditor provisions, currency, interest and/or dividend rates, yield, redemption provisions, maturity date and registration rights) as specified in the Demand Notice, in each case, form of notes as MS&Co. determined by the Controlling Person in its reasonable judgment determines to be appropriate in light of the then prevailing circumstances and market conditions and the financial condition and prospects of Holdings and its Subsidiaries at such time; provided, however, that (a) at the date of issuance of Securities, the weighted average total interest rate on (i) Securities issued to replace or refinance the Loans and Commitments and (ii) the First Lien Loans and commitments under the First Lien Credit Agreement, shall not exceed the Total Yield Cap, (b) any securities issued in a public Securities Offering or in a private Securities Offering with registration rights will not, without Holdings’ consent, be secured by the Equity Interests of any of Holdings’ Subsidiaries after giving due regard to the extent that the granting of such security interest would give rise to any requirement to file separate financial statements for such subsidiary with the SEC pursuant to Rule 3-16 of Regulation S-X under the Securities Act or any successor rule or regulation and (c) each Demand Notice shall provide for not less than $50,000,000 of Securities to be issued. Any Securities that are the subject of a Demand Notice will be issued pursuant to one or more customary agreements, which, in each case, shall contain such terms, conditions and covenants as are typical and customary for similar financings (as determined by MS&Co.) and as are reasonably satisfactory in all respects to the MS&Co.Applicable Bond Standard; provided that (i) the Securities interest rate for any Take-out Financing shall be denominated reasonably determined by the Investment Bank in Dollarslight of then-prevailing market conditions for comparable high yield debt securities in consultation with you, provided further that (x) the weighted average total per annum yield payable by Borrower and/or issuer applicable to the Loans and/or Commitments and any Take-out Financing issued to replace or refinance all or a portion of the Loans or Commitments at any time shall not exceed the Second Lien Bridge Total Cap and (y) the total effective yield payable by the Borrower and/or issuer (including any original issue discount, but excluding any underwriting or initial purchase discounts or fees) applicable to any individual tranche of Take-out Financing at any time shall not exceed a rate per annum equal to the Second Lien Bridge Total Cap plus 150 basis points (it being understood, in each case, that any floating interest rates and/or yields and/or original issue discount included in any of the foregoing calculations shall be determined using a methodology reasonably satisfactory to the Investment Bank), (ii) the final scheduled maturity of any Take-out Financing shall not be earlier than the seventh anniversary of the Closing Date, (iii) the make-whole period will be three years from the issue date and the call premium at the end of the make-whole period shall not be greater than 75% of the coupon during the fourth year after the issue date of the Take-out Financing and shall decline to 50% of the coupon during the fifth year after the issue date of the Take-out Financing, 25% of the coupon during the sixth year after the issue date of the Take-out Financing and then to zero thereafter; (iv) the issue price to the issuer (before giving effect to the underwriting or initial purchasers discounts or fees payable to the Investment Bank) of any Take-out Financing shall not be less than 97% of principal amount; (v) an equity claw provision consistent with the Applicable Bond Standard and (vi) the guarantee and any collateral structure shall be consistent with the Applicable Bond Standard. For the avoidance of doubt, the Investment Banks may reoffer the Take-out Financing to investors at any price below or above the proceeds to the Borrower and/or issuer. It is agreed that the yield payable by the Borrower on any Take-out Financing shall not include (x) any original issue discount arising from below par resales by the Joint Bookrunners or (y) the tax impact of any “cancellation of indebtedness.” (c) The Borrower will use commercially reasonable best efforts to, within 5 Business Days of receipt of written notice of a Securities Demand (if after the Closing Date, 10 Business Days), do the following: (i) provide as many copies as reasonably requested to the Investment Banks of an Offering Document for the offer and sale of the Permanent Securities pursuant to Rule 144A of the rules and regulations under the Securities Act containing such disclosures as are customary and appropriate for offerings of securities pursuant to Rule 144A, including the Cooperation Information; (ii) the Borrower shall assist in the Bridge Loan Documentspreparation of, rating agency presentations and “road show” materials consistent with the information contained in the Offering Document which the Joint Bookrunners may reasonably request in connection with the Take-out Financing; and (iii) make the maturity date senior management and advisors of the Borrower (and the Target, if applicable) and certain of the Investors’ investment professionals available for due diligence, rating agency presentations and a “road show” meetings with potential investors for the New Second Lien Notes or Permanent Securities shall not be less on no more than 7 years after three occasions as reasonably requested by the Effective DateInvestment Banks in their judgment to market the New Second Lien Notes or Permanent Securities. (d) The Investment Banks may at any time upon reasonable advance notice to the Borrower require the Borrower (or, if reasonably so specified by the Investment Banks, an affiliate of the Borrower) to execute the Purchase Agreement. (ive) Without limiting the generality of the foregoing, the Joint Bookrunners and/or Investment Banks may make such a Securities shall be unsecured (unless Demand for the issuance of Permanent Securities to the Lenders to replace any Commitments or refinance this Facility on the Closing Date and to the extent otherwise permitted to be secured resold by them at any time thereafter in accordance with the relevant provisions of this Section 5.15; provided that any such Securities Demand contemplating the First Lien Credit Documents) and (v) resale of Permanent Securities shall include such customary information regarding the Securities will not require any scheduled amortization payments, mandatory redemptions selling Lenders as may be required to be included in the Offering Document or sinking fund payments prior to the final stated maturity thereofa supplement thereto. (cf) Notwithstanding anything to the contrary contained herein, in the event of your failure to comply with the terms this Section (a failure by the Borrower to execute a Securities Offering within 30 days after delivery of a Demand Notice (such 30th day, the “Demand Failure DateFailure”), the Lead Arranger shall have the right to increase (w) the interest rate with respect to the Loans shall increase to the Second Lien Bridge Total Cap immediately and automatically, (x) the Loan shall be immediately and automatically subject to the call protection in the Applicable Bond Standard (other than with respect to any prepayment of Loans held by the Initial Lenders or their Affiliates, but excluding Loans held by bona fide asset management affiliates of the foregoing), (y) the Rollover Fee, if not previously paid, shall become immediately due and payable (and no future fee credit shall be available), calculated based on the principal amount of the Loans outstanding on the date of such Demand Failure or the principal amount of Commitments outstanding on the date of such Demand Failure (which, if such date is the Closing Date, will be the principal amount of Loans funded on the Closing Date) and (z) any restrictions on transfer of the Loans or Exchange Notes shall be deemed waived. For the avoidance of doubt, a Demand Failure shall not, in and of itself, constitute a Default hereunder. (g) It is agreed that, if the Closing Date has not occurred before September 15, 2019 (the “Escrow Right Trigger Date”) and Commitments hereunder remain outstanding, on or after the Escrow Right Trigger Date, the Joint Bookrunners and/or any time thereafterInvestment Banks may issue a Securities Demand (which may be issued five Business Days in advance of such date) to an amount such and require that the weighted average total interest rate Permanent Securities be issued on the Escrow Right Trigger Date or on another date thereafter prior to the closing of the Acquisition, with the gross proceeds of such Loans Permanent Securities to be placed in a customary escrow account, the proceeds of which will be pledged solely to the holders of such Permanent Securities, in each case on customary terms and conditions for an escrow financing (an “Escrow Securities Demand”); provided that the conditions to release such proceeds shall be the satisfaction of the conditions to borrowing in Section 4.02 herein. Any such escrow arrangements will provide that the aggregate principal amount of such Permanent Securities will be redeemed at the original price at which such Permanent Securities were issued in the event that the conditions to the release of proceeds of such Permanent Securities from escrow are not satisfied prior to the Closing Date. Such escrow arrangement may include the use of an Unrestricted Subsidiary and will be structured in such a manner as to comply with the Existing ABL Agreement, the Existing Credit Agreement, the Existing Second Lien Note Documents, the Term Loan Credit Agreement and the First Lien Loans Bridge Credit Agreement. (h) The Borrower will not be required to comply with the terms of this Section if the Borrower has determined in its reasonable discretion that such issue, sale or borrowing may result in materially adverse tax consequences to the Borrower; provided that it is understood and commitments under agreed that the First Lien Credit Agreement shall not exceed failure to comply with the Total Yield Capterms of this Section pursuant to this clause (h) will constitute a Demand Failure.