Filed Pursuant to Rule 424(b)(5)
Registration Statement No. 333-268999

The information in this preliminary prospectus supplement is not complete and may be changed. This preliminary prospectus supplement and the accompanying prospectus are not an offer to sell these securities nor a solicitation of an offer to buy these securities in any jurisdiction where the offer and sale is not permitted.

Subject to completion

Preliminary Prospectus Supplement dated January 17, 2023

Prospectus supplement

(to Prospectus dated January 5, 2023)

Nine Energy Service, Inc.

$300,000,000

300,000 Units, with each unit consisting of

$1,000 Principal Amount of        % Senior Secured Notes due 2028 and Five Shares of Common Stock

Nine Energy Service, Inc. is offering 300,000 units (the “units”), or $300,000,000 aggregate stated amount, with each unit consisting of $1,000 principal amount of its         % Senior Secured Notes due 2028 (the “notes”) and five shares of its common stock, par value $0.01 per share (our “common stock” and, together with the units and the notes, the “securities”). Each unit will be sold at an offering price of $                 per unit.

The notes will bear interest at a rate of         % per annum, payable semi-annually in arrears on                  and                  of each year, beginning on                 , 2023. The notes will mature on                 , 2028.

We have the option to redeem the notes, in whole or in part, at any time on or after                 , 2026 at the redemption prices set forth in this prospectus supplement, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. In addition, prior to                 , 2026, we may redeem up to 35% of the principal amount of the outstanding notes with cash in an amount not greater than the net proceeds of certain equity offerings at a redemption price equal to         % of the principal amount of the notes being redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. We also may redeem the notes, in whole or in part, at any time prior to                 , 2026 at a price equal to 100% of the principal amount thereof, plus a “make-whole” premium, plus any accrued and unpaid interest, if any, to, but excluding, the redemption date. See “Description of notes—Optional redemption.” At any time prior to                 , 2026, we may also redeem, during each 12-month period beginning on the issue date, up to 10% of the aggregate principal amount of the notes at a redemption price equal to 103% of the aggregate principal amount of the notes being redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. If we experience certain kinds of changes of control, holders of the notes may require us to repurchase their notes at 101% of the principal amount of the notes, plus accrued and unpaid interest, if any, to, but excluding, the repurchase date. See “Description of notes—Repurchase at the option of Holders—Change of Control.” Prior to separating the units into their component parts (notes and common stock), a holder thereof will not be able to participate in any redemption or repurchase of notes. See “Description of units” and “Description of notes—Selection and notice of redemption.” We may be required to offer to purchase a portion of the notes at a price of 100% of the aggregate principal amount of the notes being purchased depending on our free cash flow. See “Description of notes—Repurchase at the option of Holders—Excess Cash Flow Offer.”

The notes will be fully and unconditionally guaranteed on a senior secured basis initially by each of our subsidiaries that are obligors in respect of the Amended ABL Facility (as defined herein) and by certain future subsidiaries. The notes and the guarantees thereof will be the senior secured obligations of us and the guarantors, respectively, will rank equal in right of payment with all of our and the guarantors’ existing and future senior indebtedness, including under the Amended ABL Facility, and will rank senior to all of our and the guarantors’ future subordinated indebtedness. The notes and the guarantees will be effectively senior in right of payment to our and the guarantors’ existing or future unsecured indebtedness and junior lien indebtedness to the extent of the value of the Collateral (as defined herein) securing the notes and the guarantees, respectively. In addition, the notes and the guarantees will be structurally subordinated to any existing or future indebtedness of our non-guarantor subsidiaries. The notes and the guarantees will be secured by first-priority liens on the Notes Priority Collateral (as defined herein) (which generally includes most of our and our subsidiaries’ assets other than the ABL Priority Collateral (as defined herein)) and by second-priority liens on the ABL Priority Collateral (which generally includes most of our and our subsidiaries’ equipment, inventory, accounts receivable, pledged deposit accounts and related assets), in each case subject to certain exceptions and permitted liens as described herein. The Amended ABL Facility will be secured by first priority liens on the ABL Priority Collateral and by second-priority liens on the Notes Priority Collateral, in each case as described herein. See “Description of notes—Collateral.”

There is presently no public market for the units or notes. Neither the units nor the notes will be listed for trading on any national securities exchange. Our common stock is listed on the New York Stock Exchange (the “NYSE”) under the symbol “NINE.” The last reported sale price of our common stock on the NYSE on January 13, 2023 was $16.35 per share. Until the 60th day following the date on which this offering is consummated (the “Settlement Date”), neither the shares of common stock included in the units nor the notes included in the units may be traded separately, and until such date, the securities sold in this offering may be traded only as units.

Investing in the securities involves a high degree of risk. See “Risk factors” beginning on page S-20 of this prospectus supplement for a discussion of certain risks that you should consider in connection with an investment in the securities.

Neither the Securities and Exchange Commission (the “SEC”) nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus supplement or the accompanying prospectus. Any representation to the contrary is a criminal offense.

The underwriters expect that delivery of the units will be made to investors in book-entry form through The Depository Trust Company (“DTC”) on or about                 , 2023.

Joint book-running managers

Co-managers

division of Benchmark Investments, LLC

The date of this prospectus supplement is                 , 2023.

Table of contents

Prospectus supplement

Prospectus

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About this prospectus supplement

This prospectus supplement and the accompanying base prospectus are part of a registration statement that we filed with the SEC using a “shelf” registration process. We provide information to you about the issuance and sale of the units offered hereby in two separate documents that are bound together: (i) this prospectus supplement, which describes the specific details regarding the issuance and sale of the units offered hereby and (ii) the accompanying base prospectus, which provides general information regarding us, our securities and other information, some of which may not apply to the issuance and sale of the units offered hereby. If information in this prospectus supplement is inconsistent with the accompanying base prospectus, you should rely on this prospectus supplement. However, if any statement in one of these documents is inconsistent with a statement in a document incorporated by reference in this prospectus supplement having a later date, the statement in the document having the later date modifies or supersedes the earlier statement as our business, financial condition, results of operations and prospects may have changed since the earlier date.

You should read this prospectus supplement, together with the accompanying base prospectus, the documents incorporated by reference in this prospectus supplement and the accompanying base prospectus and any free writing prospectus that we have authorized for use in connection with the issuance and sale of the units offered hereby before making an investment decision. You should also read and consider the information in the documents referred to in the sections of this prospectus supplement and the accompanying base prospectus entitled “Where you can find more information” and “Incorporation of certain information by reference.”

We have not, and the underwriters have not, authorized anyone to provide you with any information other than that contained or incorporated by reference in this prospectus supplement, the accompanying base prospectus or any free writing prospectus that we have authorized for use in connection with the issuance and sale of the units offered hereby. We and the underwriters take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you.

We are not, and the underwriters are not, making an offer to sell nor a solicitation of an offer to buy our securities in any jurisdiction in which an offer or solicitation is not permitted or in which the person making the offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation.

The information appearing in this prospectus supplement, the accompanying base prospectus, the documents incorporated by reference in this prospectus supplement and any free writing prospectus that we have authorized for use in connection with the issuance and sale of the units offered hereby is accurate only as of its respective date, regardless of the time of delivery of the respective document or of any sale of securities covered by this prospectus supplement. You should not assume that the information contained in or incorporated by reference in this prospectus supplement, the accompanying base prospectus or any free writing prospectus that we have authorized for use in connection with the issuance and sale of the units offered hereby is accurate as of any date other than the respective dates thereof.

In this prospectus supplement, references to “Nine” refers to Nine Energy Services, Inc. and references to the “Company,” “we,” “us” or “our” refer to Nine Energy Services, Inc. and its subsidiaries, unless the context suggests otherwise.

Where you can find more information

We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public through the Internet at the SEC’s website at http://www.sec.gov.

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We also make available free of charge on our website at www.nineenergyservice.com all of the documents that we file with the SEC as soon as reasonably practicable after we electronically file those documents with the SEC. Information contained on, or that can be accessed through, our website is not incorporated by reference into this prospectus supplement, and you should not consider such information as part of this prospectus supplement.

Incorporation of certain information by reference

The SEC allows us to “incorporate by reference” information into this prospectus supplement and the accompanying prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be a part of this prospectus supplement. If any statement in this prospectus supplement, the accompanying prospectus or any document incorporated by reference is inconsistent with a statement in another document having a later date, the statement in the document having the later date modifies or supersedes the earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus supplement or the accompanying prospectus.

We incorporate by reference into this prospectus supplement and the accompanying prospectus the documents listed below and all documents we subsequently file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the completion of the offering of the units covered by this prospectus supplement (other than portions of these documents that are either (i) described in paragraph (e) of Item 201 of Regulation S-K or paragraphs (d)(1)-(3) and (e)(5) of Item 407 of Regulation S-K or (ii) deemed to have been furnished and not filed in accordance with SEC rules, including pursuant to Item 2.02 or Item 7.01 of any Current Report on Form 8-K (including any financial statements or exhibits relating thereto furnished pursuant to Item 9.01), unless otherwise indicated therein):

We will provide, without charge, upon written or oral request, a copy of any or all documents that are incorporated by reference into this prospectus supplement or the accompanying prospectus, excluding any exhibits to those documents unless the exhibit is specifically incorporated by reference as an exhibit in this prospectus supplement or the accompanying prospectus. You should direct requests for documents to:

Nine Energy Service, Inc.

2001 Kirby Drive, Suite 200

Houston, Texas 77019

(281) 730-5100

Attention: Investor Relations

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Cautionary note regarding forward-looking statements

This prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein and therein may contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Exchange Act that are subject to a number of risks and uncertainties, many of which are beyond our control. All statements other than statements of historical fact, including those regarding our strategy, future operations, financial position, our ability to continue as a going concern, estimated revenues and losses, projected costs, prospects, plans and objectives of management, are forward-looking statements. Forward-looking statements can be identified by terms such as “could,” “believe,” “anticipate,” “intend,” “estimate,” “expect,” “may,” “continue,” “predict,” “potential,” “project” and similar expressions, although not all forward-looking statements contain such identifying words.

All forward-looking statements speak only as of the date of the document in which they are contained; we disclaim any obligation to update these statements unless required by law, and we caution you not to place undue reliance on them. Although we believe that our plans, intentions and expectations reflected in or suggested by these forward-looking statements are reasonable, we can give no assurance that these plans, intentions or expectations will be achieved. We disclose these important risk factors that could cause our actual results to differ materially from our expectations in the section entitled “Risk factors” in this prospectus supplement and in our Annual Report on Form 10-K for the year ended December 31, 2021 and subsequent Quarterly Reports on Form 10-Q. These factors, some of which are beyond our control, include the following:

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Industry and market data

The market data and certain other statistical information used throughout this prospectus supplement, the accompanying prospectus or incorporated herein or therein are based on independent industry publications, government publications or other published independent sources. Although we believe these third-party sources are reliable as of their respective dates, neither we nor the underwriters have independently verified the accuracy or completeness of this information. Some data is also based on our good faith estimates and our management’s understanding of industry conditions. The industry in which we operate is subject to a high degree of uncertainty and risk due to a variety of factors, including those described in “Risk factors.” These and other factors could cause results to differ materially from those expressed in these publications.

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Trademarks and trade names

We own or have rights to various trademarks, service marks and trade names that we use in connection with the operation of our business. This prospectus supplement, the accompanying prospectus or documents incorporated herein or therein may also contain trademarks, service marks and trade names of third parties, which are the property of their respective owners. Our use or display of third parties’ trademarks, service marks, trade names or products in this prospectus supplement, the accompanying prospectus or documents incorporated herein or therein is not intended to, and does not imply, a relationship with us or an endorsement or sponsorship by or of us. Solely for convenience, the trademarks, service marks and trade names referred to in this prospectus supplement, the accompanying prospectus or documents incorporated herein or therein may appear without the ^®, TM or SM symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensor to these trademarks, service marks and trade names.

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Risk factors

Investing in the securities involves a high degree of risk. You should carefully consider the risks described below and all of the information contained in this prospectus supplement, the accompanying prospectus, any free writing prospectus and the documents incorporated by reference herein and therein before deciding whether to purchase the securities. In particular, you should carefully consider, among other things, the risks to our business and other matters discussed under “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2021 and subsequent Quarterly Reports on Form 10-Q. If any such risks and uncertainties actually occur, you may lose all or part of your investment. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also impair our business, financial condition or results of operations and result in a loss of all or part of your investment.

Risks related to the units and the notes

No market currently exists for the units or the notes, and an active trading market may not develop.

Each of the units and the notes comprise a new issue of securities for which there is currently no public market. In addition, we do not intend to apply to list the units or the notes on any securities exchange or other recognized trading system. If the units or notes are traded after their initial issuance, they may trade at a discount from their initial public offering price, depending on prevailing interest rates, commodity prices, the market for similar securities, the price and volatility of our common stock, our performance and other factors. To the extent that an active trading market for the units or the notes does not develop, the liquidity and trading price of the relevant security may be harmed. In addition, while the notes may be optionally separated beginning on the 60th day after the Settlement Date, the notes are not expected to automatically separate until the 270th day after the Settlement Date. Accordingly, during such time, the trading market for separated notes and units may less liquid than the trading market for the units prior to such time. In addition, until the 60th day following the Settlement Date, the notes included in the units may not be traded separately from the units, and until such date, the securities sold in this offering may be traded only as units. Thus, you may not be able to liquidate your investment rapidly or for the price you anticipate.

The notes will be effectively subordinated to our and our guarantors’ indebtedness under the Amended ABL Facility to the extent of the value of the Collateral securing that indebtedness on a basis senior to the notes. The notes will be structurally subordinated to all obligations of our subsidiaries that are not guarantors of the notes.

The notes and the guarantees will be effectively subordinated to our and our guarantors’ indebtedness under the Amended ABL Facility to the extent of the value of the ABL Priority Collateral that secures the indebtedness under the Amended ABL Facility on a first-priority basis. The effect of this subordination is that upon a default in payment on, or the acceleration of, any indebtedness under the Amended ABL Facility or other indebtedness secured by those assets on a first-priority basis, or in the event of bankruptcy, insolvency, liquidation, dissolution, reorganization or similar proceeding of us or the guarantors of the Amended ABL Facility or of such other secured debt, the proceeds from the sale of those assets subject to first-priority liens securing the Amended ABL Facility and such other indebtedness secured on a pari passu basis with the Amended ABL Facility will be available to pay obligations on the notes only after all indebtedness under the Amended ABL Facility and such other secured debt has been paid in full. As of September 30, 2022, on an as adjusted basis after giving effect to the Refinancing Transactions, we would have had $                 million borrowings outstanding under the Amended ABL Facility and commitments available to be borrowed under the Amended ABL Facility of approximately $                 million (after giving effect to the estimated borrowing base and $1.3 million of outstanding letters of credit), all of which would rank senior to the notes to the extent of the value of the ABL Priority Collateral.

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Not all of our subsidiaries will guarantee the notes. The notes will be structurally subordinated to all indebtedness and other obligations of the non-guarantor subsidiaries such that in the event of insolvency, liquidation, reorganization, dissolution or other winding-up of any subsidiary that is not a guarantor, all of that subsidiary’s creditors would be entitled to payment in full out of that subsidiary’s assets before we would be entitled to any payment. Our non-guarantor subsidiaries will have no obligation, contingent or otherwise, to pay amounts due under the notes or to make any funds available to pay those amounts, whether by dividend, distribution, loan or other payment. Our non-guarantor subsidiaries generated less than 1% of our consolidated revenues in the nine-month period ended September 30, 2022 and held less than 2% of our consolidated assets as of September 30, 2022.

We may incur additional indebtedness to execute our long-term growth strategy, which may reduce our profitability or increase the risks associated with the notes.

We and our subsidiaries may incur substantial additional indebtedness in the future. The Amended ABL Facility and the Indenture will contain restrictions on the incurrence of additional indebtedness. If we or a guarantor incurs any additional secured indebtedness that ranks equally with the notes (or with the guarantees thereof), the holders of such indebtedness will be entitled to share ratably with holders of the notes in any proceeds distributed in connection with any insolvency, liquidation, reorganization, dissolution or other winding-up of us or a guarantor. This may have the effect of reducing the amount of proceeds paid to holders of the notes in connection with such a distribution. Any increase in our level of indebtedness could have several important effects on our future operations, including, without limitation: (i) whether we will have sufficient cash to support the payment of interest on all of our outstanding indebtedness, (ii) increasing our vulnerability to adverse changes in general economic and industry conditions, as well as to competitive pressure, (iii) limiting our ability to deduct our net interest expense, and (iv) limiting our ability to obtain additional financing for working capital, capital expenditures, general corporate and other purposes.

We may not be able to generate sufficient cash to service all of our indebtedness, including the notes, and may be forced to take other actions to satisfy our obligations under applicable debt instruments, which may not be successful.

Our ability to make scheduled payments on or to refinance our indebtedness obligations depends on our financial condition and operating performance, which are subject to prevailing economic and competitive conditions and certain financial, business and other factors beyond our control. We may not be able to maintain a level of cash flows from operating activities sufficient to permit us to pay the principal, premium, if any, and interest on our indebtedness. Our ability to satisfy our liquidity requirements going forward will depend on our future operating performance, which is affected by prevailing economic and competitive conditions, the level of drilling and completions activities in the North American E&P industry, and financial, business and other factors, many of which are beyond our control. If our cash flows and capital resources are insufficient to fund debt service obligations, we may be forced to reduce or delay planned investments and capital expenditures, sell assets, seek additional capital or restructure or refinance indebtedness, including the notes.

Our ability to restructure or refinance indebtedness will depend on the condition of the capital markets and our financial condition at such time. Any refinancing of indebtedness could be at higher interest rates and may require us to comply with more onerous covenants, which could further restrict business operations. The terms of existing or future debt instruments and the Indenture may restrict us from adopting some of these alternatives. In addition, any failure to make payments of interest and principal on outstanding indebtedness on a timely basis would likely result in a reduction of our credit rating, which could harm our ability to incur additional indebtedness. In the absence of sufficient cash flows and capital resources, we could face substantial liquidity problems and might be required to dispose of material assets or operations to meet debt service and other obligations. The Indenture and the Amended ABL Facility will restrict our ability to dispose of assets and

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use the proceeds from the disposition. We may not be able to consummate those dispositions, and the proceeds of any such disposition may not be adequate to meet any debt service obligations then due. These alternative measures may not be successful and may not permit us to meet scheduled debt service obligations.

If we are unable to comply with the restrictions and covenants in the agreements governing the notes or our other indebtedness, there could be a default, which could accelerate payment of funds that we have borrowed and would affect our ability to make principal and interest payments on the notes.

Any default under the agreements governing our indebtedness that is not cured or waived by the required lenders, and the remedies sought by the holders of any such indebtedness, could result in our inability to pay principal, premiums, if any, and interest on the notes and substantially decrease the market value of the notes. If we are unable to generate sufficient cash flow and are otherwise unable to obtain funds necessary to meet required payments of principal, premiums, if any, and interest on our indebtedness, or if we otherwise fail to comply with the various covenants, including financial and operating covenants, in the agreements governing our indebtedness, including the Indenture and the Amended ABL Facility, we could be in default under the terms of the agreements governing such indebtedness. In the event of such default: (i) the holders of such indebtedness could elect to declare all the funds borrowed thereunder to be due and payable, together with accrued and unpaid interest, (ii) the lenders under the Amended ABL Facility could elect to terminate their commitments thereunder, cease permitting further draws and institute foreclosure proceedings against our assets, and (iii) we could be forced into bankruptcy or liquidation.

If our operating performance declines, we may need to obtain waivers under the Amended ABL Facility to avoid being in default. If we breach our covenants under the Amended ABL Facility and seek a waiver, we may not be able to obtain a waiver from the required lenders. If this occurs, we would be in default thereunder, the lenders could exercise their rights, as described above, and we could be forced into bankruptcy or liquidation.

We may not be able to repurchase the notes upon a change of control.

If we experience certain kinds of changes of control, we may be required to offer to repurchase all outstanding notes at 101% of their principal amount plus accrued and unpaid interest, if any, to, but excluding, the repurchase date. We may not be able to repurchase the notes upon a change of control because we may not have sufficient financial resources to purchase all of the notes that are tendered following a change of control. In addition, the terms of the Amended ABL Facility may prohibit us from repurchasing notes upon a change of control. Our failure to repurchase the notes upon a change of control could cause a default under the Indenture and could lead to a cross default under the Amended ABL Facility. The Amended ABL Facility will also provide that a change of control, as defined therein, will be an event of default that permits lenders to accelerate the maturity of borrowings under the Amended ABL Facility and, if that debt is not paid, to enforce security interests in the collateral securing that debt, thereby limiting our ability to raise cash to purchase the notes, and reducing the practical benefit of the offer-to-purchase provisions to the holders of the notes. Additionally, using cash to fund the potential consequences of a change of control may impair our ability to obtain additional financing in the future, which could negatively impact our ability to conduct our business. See “Description of notes—Repurchase at the option of Holders—Change of Control.”

Holders of the notes may not be able to determine when a change of control giving rise to their right to have the notes repurchased has occurred following a sale of “substantially all” of our assets.

One of the circumstances under which a change of control may occur is upon the sale or disposition of “all or substantially all” of our assets. There is no precise established definition of the phrase “substantially all” under applicable law and the interpretation of that phrase will likely depend upon particular facts and circumstances. Accordingly, the ability of a holder of notes to require use to repurchase its notes as a result of a sale of less than all of our assets to another person may be uncertain.

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Federal and state fraudulent transfer laws may permit a court to void the notes, the guarantees and/or the security interests, and if that occurs, you may not receive any payments on the notes.

U.S. federal and state fraudulent transfer and conveyance statutes may apply to the issuance of the notes and the incurrence of the guarantees of the notes. Under U.S. federal bankruptcy law and comparable provisions of state fraudulent transfer or conveyance laws, which may vary from state to state, the notes, the guarantees thereof or the related security granted as collateral therefor could be voided as a fraudulent transfer or conveyance if we or any of the guarantors, as applicable, (i) issued the notes or incurred the guarantees and related security agreements with the intent of hindering, delaying or defrauding creditors or (ii) received less than reasonably equivalent value or fair consideration in return for either issuing the notes or incurring the guarantees and, in the case of (ii) only, one of the following is also true at the time thereof:

As a general matter, value is given for a transfer or an obligation if, in exchange for the transfer or obligation, property is transferred or a valid antecedent debt is secured or satisfied. A court would likely find that a guarantor did not receive reasonably equivalent value or fair consideration for its guarantee and security granted as collateral therefor to the extent the guarantor did not obtain a reasonably equivalent benefit directly or indirectly from the issuance of the notes.

The measures of insolvency for purposes of the foregoing will vary depending upon the law applied in any proceeding to determine whether a fraudulent or preferential transfer has occurred. Generally, however, an entity would be considered insolvent if at the time it incurred indebtedness:

If a court were to find that the issuance of the notes or the incurrence of a guarantee and related security granted as collateral therefor was a fraudulent transfer or conveyance, the court could void the payment obligations under the notes or such guarantee and security granted as collateral therefor or subordinate the notes or such guarantee and security granted as collateral therefor to presently existing and future indebtedness of us or of the related guarantor or require the holders of the notes to repay any amounts received with respect to such guarantee. In the event of a finding that a fraudulent transfer or conveyance occurred, you may not receive any repayment on the notes. Further, the voidance of the notes could result in an event of default with respect to our other debt that could result in acceleration of such debt.

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Finally, as a court of equity, the bankruptcy court may subordinate the claims in respect of the notes and the guarantees and security granted as collateral therefor to other claims against us under the principle of equitable subordination if the court determines that (1) the holder of the notes engaged in some type of inequitable conduct, (2) the inequitable conduct resulted in injury to our other creditors or conferred an unfair advantage upon the holders of the notes and (3) equitable subordination is not inconsistent with the provisions of the bankruptcy code.

Any future pledge of collateral or guarantee provided after the notes are issued might be avoided in a bankruptcy.

The Indenture and the related security documents will require us to grant liens on certain assets that we or any guarantor acquires after the notes are issued. Any future guarantee or additional lien in favor of the Notes Collateral Agent for the benefit of the holders of the notes might be avoidable by the grantor (as debtor-in possession) or by its trustee in bankruptcy, receiver or other third parties (including other creditors) if certain events or circumstances exist or occur. For instance, if the entity granting a future guarantee or additional lien was insolvent at the time of the grant and if such grant was made within 90 days before that entity commenced a bankruptcy proceeding (or one year before commencement of a bankruptcy proceeding if the creditor that benefited from the guarantee or lien is an “insider” under the U.S. Bankruptcy Code), and the granting of the future guarantee or additional lien enabled the holders of the notes to receive more than they would if the grantor were liquidated under chapter 7 of the U.S. Bankruptcy Code, then such guarantee or lien could be avoided as a preferential transfer. Liens recorded or perfected after the issue date may be treated under bankruptcy law as if they were delivered to secure previously existing indebtedness. In bankruptcy proceedings commenced within 90 days of lien perfection, a lien given to secure previously existing indebtedness is materially more likely to be avoided as a preference by the bankruptcy court than if delivered and recorded outside of such 90-day period. Accordingly, if we or any subsidiary guarantor were to file for bankruptcy protection after the issue date of the outstanding notes and any liens securing the notes had been perfected less than 90 days before the commencement of such bankruptcy proceeding, such liens may be particularly subject to challenge as a result of having been delivered within such period of 90 days. To the extent that such challenge succeeded, the holders of the notes would lose the benefit of the security that the Collateral was intended to provide.

Our variable rate indebtedness subjects us to interest rate risk, which could cause our debt service obligations to increase.

Borrowings under the Amended ABL Facility bear interest at variable rates exposing us to interest rate risk. If interest rates increase, our debt service obligations on the variable rate indebtedness would increase even though the amount borrowed remains the same, and our net income and cash available for servicing our indebtedness would decrease.

Changes in our credit ratings or the debt markets may adversely affect the market price of the units or the notes.

The price for the units or the notes will depend on a number of factors, including: (i) the time remaining to the maturity of the notes, (ii) our credit ratings with major credit rating agencies, (iii) the prevailing interest rates being paid by other companies similar to us, (iv) our financial condition, results of operations and prospects, and (v) the overall condition of the financial markets and global and domestic economies. The condition of the financial markets and prevailing interest rates have fluctuated in the past and are likely to fluctuate in the future. Such fluctuations could have an adverse effect on the price of the notes. In addition, credit rating agencies continually review their ratings for the companies that they follow, including us. The credit rating agencies also evaluate the industry in which we operate and may change our credit rating based on their overall

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view of our industry. A negative change in our rating could have an adverse effect on the price of the notes or make it more difficult or more expensive for us to obtain additional debt financing. If any credit rating initially assigned to the notes is subsequently lowered or withdrawn for any reason, holders of the notes may not be able to resell their notes without a substantial discount.

The Collateral will be released and neither the notes nor the guarantees will be secured by liens on the Collateral and many of the covenants contained in the Indenture will be suspended if the notes are rated investment grade by either S&P or Moody’s, but there are no assurances that the notes will ever be rated investment grade.

The Collateral will be released and neither the notes nor the guarantees will be secured by liens on the Collateral and many of the covenants in the indenture that will govern the notes will be suspended if the notes are rated investment grade by either S&P or Moody’s, provided that at the time of such suspension no default or event of default has occurred and is continuing. These covenants include restrictions on our ability to pay dividends, to incur debt and to enter into certain transactions. There can be no assurance that the notes will ever be rated investment grade. However, upon the release of the Collateral the notes would be effectively subordinated to indebtedness under the Amended ABL Facility and our other secured indebtedness to the extent of the value of the assets securing such indebtedness and, as a result, holders of the notes would receive less, ratably, than the holders of such secured indebtedness in the event of the Company’s or a guarantor’s bankruptcy, insolvency or liquidation. If the Company and the guarantors would become required to subsequently provide security interests in the Collateral because the notes are no longer rated investment grade by either S&P or Moody’s, any such future pledge of Collateral may be voidable in bankruptcy. In addition, suspension of these covenants would allow us to engage in certain transactions that would not have been permitted while these covenants were in force and the effects of any such transactions will be permitted to remain in place even if the notes are subsequently downgraded below investment grade. See “Description of notes—Certain covenants—Effectiveness of covenants.”

The notes will be issued with OID for U.S. federal income tax purposes.

We believe and intend to take the position that the acquisition of a unit should be treated as an acquisition of separate instruments (i.e., the notes and five shares of common stock) for U.S. federal income tax purposes and that the notes should be treated as debt for U.S. federal income tax purposes. However, this position is not free from doubt, and it is possible the IRS could challenge the position. Assuming the position is respected, the notes will be issued with more than a de minimis amount of OID for U.S. federal income tax purposes. Accordingly, a holder subject to U.S. federal income taxation will be required to include such OID in gross income (as ordinary income) for U.S. federal income tax purposes as the OID accrues on a constant yield basis, in advance of the receipt of cash payments that correspond to that income and regardless of whether such holder is a cash or accrual method taxpayer. The exact amount of OID will depend upon the issue price of the notes for U.S. federal income tax purposes. We will make our determination of the issue price available to holders as promptly as practicable, and in any event within 30 days of the Settlement Date. See “Certain U.S. federal income tax considerations.”

There is a risk that the notes may be treated as “contingent payment debt instruments” within the meaning of applicable U.S. Treasury regulations.

We believe and intend to take the position that the notes are not “contingent payment debt instruments” within the meaning of applicable U.S. Treasury regulations. However, this position is not free from doubt, and there is a risk that the notes may be treated as contingent payment debt instruments. If the contingent payment debt instrument rules did apply to the notes, holders of the notes subject to U.S. federal income taxation would generally be required to accrue taxable income at a rate based on the yield of a comparable noncontingent debt

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instrument (as determined by us), and any gain on a sale, exchange or other taxable disposition of the notes would generally be taxed at ordinary rates rather than capital gain rates. See “Certain U.S. federal income tax considerations.”

If a bankruptcy petition were filed by or against us, holders of the notes may receive a lesser amount for their claim than they would have been entitled to receive under the Indenture.

If a bankruptcy petition were filed by or against Nine or any of the guarantors under the U.S. Bankruptcy Code after the issuance of the notes, the claim by any holder of the notes for the principal amount of the notes may be limited to an amount equal to the sum of: (i) the original issue price for the notes and (ii) that portion of the OID that does not constitute “unmatured interest” for purposes of the U.S. Bankruptcy Code. Any OID that was not amortized as of the date of the bankruptcy filing would constitute unmatured interest. Accordingly, the holders of the notes under these circumstances may receive a lesser amount than they would be entitled to receive under the terms of the Indenture, even if sufficient funds are available.

Risks related to the Collateral

Additional indebtedness is secured by the collateral that will secure the notes, and the notes will be secured only to the extent of the value of the assets that have been granted as security for the notes and the guarantees, which may not be sufficient to satisfy our obligations under the notes.

Indebtedness incurred under the Amended ABL Facility will be secured by first-priority liens on the ABL Priority Collateral and second-priority liens on the Notes Priority Collateral. Indebtedness permitted to be secured by liens that are pari passu with liens securing the notes (“Pari Passu Notes Lien Obligations”) will be secured by the same tangible and intangible assets of Nine and each guarantor that will secure the notes on a pari passu basis. We may in the future incur other Pari Passu Notes Lien Obligations. In the event of a bankruptcy, liquidation, dissolution, reorganization or similar proceeding against us or any guarantor, assets that are pledged as shared collateral securing any other Pari Passu Notes Lien Obligations and the notes would be expected to be used to pay such other Pari Passu Notes Lien Obligations and the notes ratably. To the extent the value of the Collateral was not sufficient to satisfy the notes and all Pari Passu Notes Lien Indebtedness, the notes and such other Pari Passu Notes Lien Indebtedness would have an unsecured claim with respect to such deficiency.

In addition, in the event of a bankruptcy, liquidation, dissolution, reorganization or similar proceeding against us or any guarantor, all proceeds from ABL Priority Collateral will be applied first to repay the ABL Obligations (as defined herein) and any other indebtedness that is secured by liens that are pari passu with the liens securing the Amended ABL Facility (“Pari Passu ABL Lien Indebtedness”), second, to repay the obligations in respect of the notes and any other Pari Passu Notes Lien Obligations, and proceeds from Notes Priority Collateral will be applied first to repay the obligations in respect of the notes and any other Pari Passu Notes Lien Obligations and, second, to repay the ABL Obligations and any other Pari Passu ABL Lien Indebtedness. No assurance can be given that the proceeds from any sale or liquidation of the Collateral will be sufficient to pay our obligations under the notes, in full or at all, while also paying the ABL Obligations, any other Pari Passu ABL Lien Indebtedness and any other Pari Passu Notes Lien Obligations.

As of September 30, 2022, on an as adjusted basis after giving effect to the Refinancing Transactions, we would have had $                 million borrowings outstanding under the Amended ABL Facility and commitments available to be borrowed under the Amended ABL Facility of approximately $                 million (after giving effect to the estimated borrowing base and $1.3 million of outstanding letters of credit), all of which would rank senior to the notes to the extent of the value of the ABL Priority Collateral. The Indenture will allow a significant amount of Pari Passu ABL Lien Indebtedness and Pari Passu Notes Lien Indebtedness, provided that, in each

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case, such indebtedness or other obligation could be incurred under the debt and lien incurrence covenants that will be contained in the Indenture. Any additional obligations secured by a senior or equal priority lien on the Collateral securing the notes will adversely affect the relative position of the holders of the notes. In addition, we may be permitted to transfer assets from guarantors to future non-guarantors in certain circumstances. Upon such a transfer, those assets will be released automatically from the liens securing the notes. The notes would be effectively junior to any obligations of such non-guarantors.

It may be difficult to realize the value of the Collateral securing the notes.

The Collateral securing the notes will be subject to any and all exceptions, defects, encumbrances, liens and other imperfections as may be accepted by the creditors that have the benefit of first liens on the collateral securing the notes from time to time, whether on or after the date the notes are issued. The underwriters did not analyze the effect of, nor participate in any negotiations relating to, such exceptions, defects, encumbrances, liens and other imperfections. The existence of any such exceptions, defects, encumbrances, liens and other imperfections could adversely affect the value of the Collateral securing the notes as well as the ability of the Notes Collateral Agent to realize or foreclose on such collateral.

In the event that a bankruptcy case is commenced by or against us, if the value of the Collateral is less than the amount of principal and accrued and unpaid interest on the notes and all other Pari Passu Notes Lien Indebtedness (as defined herein), the Amended ABL Facility and Pari Passu ABL Lien Indebtedness, interest may cease to accrue on the notes from and after the date the bankruptcy petition is filed.

In addition, our business requires numerous federal, state and local permits and licenses. Continued operation of properties that are part of the Collateral for the notes depends on the maintenance of such permits and licenses. Our business is subject to substantial regulations and permitting requirements and may be adversely affected if we are unable to comply with existing regulations or requirements or changes in applicable regulations or requirements. In the event of foreclosure, the transfer of such permits and licenses may be prohibited or may require us to incur significant cost and expense. Further, we cannot assure you that the applicable governmental authorities will consent to the transfer of all such permits. If the regulatory approvals required for such transfers are not obtained or are delayed, the foreclosure may be delayed, a temporary shutdown of operations may result and the value of the

Certain assets will be excluded from the Collateral.

Certain assets will be excluded from the Collateral securing the notes as described under “Description of notes—Collateral—Excluded assets,” including, but not limited to: (i) letter-of-credit rights (other than to the extent constituting supporting obligations), (ii) items as to which a security interest cannot be granted without violating contract rights or applicable law, (iii) certain equity interests of our subsidiaries, (iv) any property and proceeds thereof the pledge of which is prohibited or restricted by contract rights or applicable law, (v) capital stock of certain of Nine’s subsidiaries, (vi) certain intent-to-use trademark applications filed in the United States Patent and Trademark Office, (vii) any fee owned and leased real property (including all leases related thereto), subject to certain limitations set forth in “Description of notes—Collateral—Excluded Assets,” (viii) assets held by any unrestricted subsidiary, (ix) proceeds and products from any and all of the excluded assets, and (x) Excluded Securities Collateral (as defined in “Description of notes”).

If an event of default occurs and the notes are accelerated, the notes will rank equally with the holders of other unsubordinated and unsecured indebtedness with respect to those excluded assets. To the extent the claims of note holders exceed the value of the assets securing the notes and other liabilities, claims related to the excluded assets will rank equally with the claims of the holders of any other unsecured indebtedness. As a result, if the value of the assets pledged as security for the notes is less than the value of the claims of the holders of the notes, those claims may not be satisfied in full before the claims of our unsecured creditors are paid.

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No appraisals of any Collateral have been prepared in connection with this offering.

No appraisals of any Collateral have been prepared in connection with this offering. The value of the Collateral at any time will depend on market and other economic conditions, including the availability of suitable buyers for the Collateral. By their nature, some or all of the pledged assets may be illiquid and may have no readily ascertainable market value. The value of the assets pledged as Collateral for the notes could be impaired in the future as a result of changing economic conditions, our failure to implement our business strategy, competition and other future events or trends. In the event of a foreclosure, liquidation, bankruptcy or similar proceeding, no assurance can be given that the proceeds from any sale or liquidation of the Collateral will be sufficient to pay our obligations under the notes and any other Pari Passu Notes Lien Obligations, in full or at all, while also paying the Amended ABL Facility and any future Pari Passu ABL Lien Indebtedness in accordance with the Intercreditor Agreement. Accordingly, there may not be sufficient Collateral to pay all or any of the amounts due on the notes. Any claim for the difference between the amount, if any, realized by holders of the notes from the sale of the Collateral securing the notes and the obligations under the notes will rank equally in right of payment with all of our other unsecured unsubordinated indebtedness and other obligations, including trade payables.

Rights of the holders of the notes in the Collateral may be adversely affected by the failure to perfect liens on certain collateral acquired in the future.

The right of the Notes Collateral Agent to repossess and dispose of the Collateral securing the notes upon default or acceleration is likely to be significantly impaired by federal bankruptcy law if bankruptcy proceedings are commenced by or against us prior to or possibly even after the Notes Collateral Agent has repossessed and disposed of the Collateral. Under applicable federal bankruptcy laws, upon the commencement of a bankruptcy case, an automatic stay goes into effect that, among other things, stays:

(i) the commencement or continuation of any action or proceeding against the debtor that was or could have been commenced before the commencement of the bankruptcy case to recover a claim against the debtor that arose before the commencement of the bankruptcy case, (ii) any act to obtain possession of, or control over, property of the bankruptcy estate or the debtor, (iii) any act to create, perfect or enforce any lien against property of the bankruptcy estate, and (iv) any act to collect or recover a claim against the debtor that arose before the commencement of the bankruptcy case.

Thus, upon the commencement of a bankruptcy case, secured creditors are prohibited from repossessing their collateral from a debtor, or from disposing of that collateral repossessed from such a debtor, without bankruptcy court approval. Moreover, bankruptcy law permits the debtor to continue to retain and to use collateral, and the proceeds, products, rents or profits of the collateral, even though the debtor is in default under the applicable debt instruments, provided that upon a request from a secured creditor, such secured creditor is given “adequate protection.” The meaning of the term “adequate protection” may vary according to circumstances, but it is intended in general to protect the value of the secured creditor’s interest in the collateral and may include cash payments or the granting of additional security for any diminution in the value of the collateral as a result of the stay of repossession or disposition or any use of the collateral by the debtor during the pendency of the bankruptcy case. In view of the foregoing and the broad discretionary powers of a bankruptcy court, it is impossible to predict how long payments under the notes could be delayed following commencement of a bankruptcy case, whether or when the Notes Collateral Agent would repossess or dispose of the Collateral, or whether or to what extent holders of the notes would be compensated for any delay in payment of loss of value of the Collateral through the requirements of “adequate protection.” A creditor may seek relief from the stay from the bankruptcy court to take any of the acts described above that would otherwise be prohibited by the automatic stay. The U.S. bankruptcy court has broad discretionary powers in determining whether to grant a creditor relief from the stay. Furthermore, in the event the bankruptcy court

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determines that the value of the Collateral is not sufficient to repay all amounts due on the notes after giving effect to prior liens, the holders of the notes would have “undersecured claims’ as to the difference and would not be entitled to post-petition interest on the notes. Federal bankruptcy laws do not permit the payment or accrual of interest, costs and attorneys’ fees for “undersecured claims” during the debtor’s bankruptcy case.

The Collateral is subject to casualty risks.

Although we maintain insurance policies to insure against losses, there are certain losses that may be either uninsurable or not economically insurable, in whole or in part. As a result, it is possible that the insurance proceeds will not compensate us fully for our losses in the event of a catastrophic loss. If there is a total or partial loss of any of the pledged Collateral, we cannot assure you that any insurance proceeds received by us will be sufficient to satisfy all the secured obligations, including the notes.

We will in most cases have control over the Collateral, and the sale of particular assets by us could reduce the pool of assets securing the notes and any future guarantees.

Subject to the terms of the Intercreditor Agreement, the security documents allow us to remain in possession of, retain exclusive control over, freely operate, and collect, invest and dispose of any income from, the Collateral securing the notes and any guarantees. For example, so long as no default or event of default under the Indenture would result therefrom, we may, among other things, without any release or consent by the Trustee or the Notes Collateral Agent, conduct ordinary course activities with respect to Collateral, such as selling, factoring, abandoning or otherwise disposing of Collateral and making ordinary course cash payments (including repayments of indebtedness).

Security interests over certain collateral may not be in place by closing or may not be perfected by closing. Creation or perfection of such security interests after the issue date of the notes increases the risk that the liens granted by those security interests could be avoided.

Certain security interests in favor of the Notes Collateral Agent may not be in place or perfected as of the date on which this offering closes. To the extent any liens on or security interest in the Collateral securing the notes are not perfected on or prior to such date, we will use our commercially reasonable efforts to have all such security interests perfected, to the extent required by the Indenture and the related security documents, within a certain number of days after the closing of this offering. Under U.S. bankruptcy law, to the extent a security interest in certain Collateral is granted or perfected after the date which is 30 days following the date this offering closes, that security interest would remain at risk of being voided as a preferential transfer by the pledgor (as debtor in possession) or by its trustee in bankruptcy (or potentially by certain of the pledgor’s other creditors) if we were to file for bankruptcy within 90 days after the grant or after perfection (or, under certain circumstances, a longer period).

The rights of holders of the notes to the Collateral securing the notes may be adversely affected by the failure to perfect security interests in the Collateral and other issues generally associated with the realization of security interests in Collateral.

Applicable law requires that a security interest in certain tangible and intangible assets can only be properly perfected and its priority retained through certain actions undertaken by the secured party. The liens on the Collateral securing the notes may not be perfected with respect to the claims of the notes if the Notes Collateral Agent is not able to take the actions necessary to perfect any of these liens on or prior to the date of the issuance of the notes offered hereby or thereafter. In addition, applicable law requires that certain property and rights acquired after the grant of a general security interest, such as real property, can only be perfected at the time such property and rights are acquired and identified and additional steps to perfect in such property and rights are taken. The Trustee and the Notes Collateral Agent will not be required to monitor, and there can

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be no assurance that we will inform the Trustee or Notes Collateral Agent of, the future acquisition of property and rights that constitute Collateral, and that the necessary action will be taken to properly perfect the security interest in such after-acquired Collateral. The Trustee and the Notes Collateral Agent will have no obligation to monitor the acquisition of additional property or rights that could constitute Collateral or the perfection of any security interest. This may result in the loss of the security interest in the Collateral or the priority of the security interest in favor of notes against third parties.

In addition, the security interest of the Notes Collateral Agent will be subject to practical challenges generally associated with the realization of security interests in Collateral. For example, the Notes Collateral Agent may need to obtain the consent of third parties and make additional filings. If we are unable to obtain these consents or make these filings, the security interests may be invalid and the holders will not be entitled to the Collateral or any recovery with respect thereto. We cannot assure you that the Notes Collateral Agent will be able to obtain any such consent. We also cannot assure you that the consents of any third parties will be given when required to facilitate a foreclosure on such assets. Accordingly, the Notes Collateral Agent may not have the ability to foreclose upon those assets and the value of the Collateral may significantly decrease.

The rights of holders of the notes with respect to the ABL Priority Collateral, in which those holders have a second-priority lien, will be materially limited by the Intercreditor Agreement.

The rights of the holders of the notes with respect to the ABL Priority Collateral, which secures the notes on a second-priority basis, will be limited pursuant to the term of the Intercreditor Agreement with the lenders under the Amended ABL Facility. Under the Intercreditor Agreement, any actions that may be taken in respect of the ABL Priority Collateral (including the ability to commence enforcement proceedings against the ABL Priority Collateral, to control the conduct of such proceedings and to approve amendments to, releases of the ABL Priority Collateral from the lien of, and waivers of past defaults under, the security documents relating to the notes) will be at the direction of the lenders under our ABL Facility. Under those circumstances, the Notes Collateral Agent on behalf of the holders of the notes, with limited exceptions, will not have the ability to control or direct those actions, even if the rights of the holders of the notes are adversely affected. In the context of the enforcement of rights and remedies, any release by the lenders under the Amended ABL Facility of ABL Priority Collateral (other than a termination of the Amended ABL Facility or a release of all ABL Priority Collateral) will also release the second-priority lien securing the notes on the same collateral (subject to the interest of the holders of the notes in the proceeds of that Collateral), and holders of the notes will have no control over that release. In addition, under the Intercreditor Agreement, the rights of the holders of the notes to take actions with respect to Notes Priority Collateral, such as selling it, may be required to be exercised in such a way that as does not interfere with or impair the ability of the holders of the ABL Priority Collateral to realize upon the ABL Priority Collateral.

The imposition of certain permitted liens could materially adversely affect the value of the Collateral.

The Collateral securing the notes and the guarantees thereof may also be subject to liens permitted under the terms of the Indenture, whether arising on or after the date the notes are issued. The existence of any permitted liens could materially adversely affect the value of the Collateral that could be realized by the holders of the notes as well as the ability of the Notes Collateral Agent to realize or foreclose on such collateral. In addition, the imposition of certain permitted liens will cause the relevant assets to become Excluded Assets (as defined in “Description of notes”), which will not secure the notes or the guarantees thereof. In addition, certain assets, including Excluded Assets, will be excluded from the Collateral. See “Description of notes—Collateral” for the definition of “Excluded Assets.”

Lien searches may not reveal all existing liens on the Collateral.

We cannot guarantee that the lien searches conducted on the Collateral securing the notes or the guarantees thereof will reveal all existing liens on such Collateral. Any existing undiscovered lien could be significant, could

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be prior in ranking to the liens securing the notes or the guarantees thereof and could have an adverse effect on the ability of the Notes Collateral Agent to realize or foreclose upon such collateral. Certain statutory priority liens may also exist that cannot be discovered by lien searches.

The pledge of the capital stock, other securities and similar items of our subsidiaries that secure the notes will automatically be released from the lien on them and no longer constitute collateral for so long as the pledge of such capital stock or such other securities would require the filing of separate financial statements with the SEC for that subsidiary. As a result, the notes and the guarantees thereof may be secured by less collateral than the Amended ABL Facility.

The notes and the guarantees thereof will be secured in part by a pledge of the stock of some of our subsidiaries. The indenture and the collateral documents provide that any capital stock and other securities of any of our subsidiaries will be excluded from the Collateral for so long as the pledge of such capital stock or other securities to secure the notes and the guarantees thereof would cause such subsidiary to be required to file separate financial statements with the SEC pursuant to Rule 3-16 or new Rule 13-02 of Regulation S-X. The lenders under the Amended ABL Facility will not be subject to such limitation and thus may have substantially more valuable security interests and different interests as a result thereof. See “Description of notes—Limitation on Collateral consisting of subsidiary securities.”

The Collateral securing the notes may be diluted under certain circumstances.

The Collateral that will secure the notes also secures the ABL Obligations (i) on a first-priority basis, with respect to ABL Priority Collateral, and (ii) on a second-priority basis, with respect to Notes Priority Collateral. This Collateral may secure on a pari passu basis additional senior indebtedness that we or certain of our subsidiaries incur in the future, subject to restrictions on our ability to incur debt and liens under the Indenture and the Amended ABL Facility and such debt could be Pari Passu ABL Lien Indebtedness or Pari Passu Notes Lien Indebtedness. Your rights to the Collateral would be diluted by any increase in the indebtedness secured on a first-priority or parity basis by this Collateral.

Rights of the holders of the notes in the Collateral securing the notes may be adversely affected by bankruptcy and insolvency proceedings and the holders of the notes may not be entitled to post-petition interest, fees, or expenses in any bankruptcy or insolvency proceeding.

The right of the Notes Collateral Agent to repossess and dispose of the Collateral securing the notes upon acceleration is likely to be significantly impaired (or at a minimum delayed) by U.S. bankruptcy law if U.S. bankruptcy proceedings are commenced by or against us prior to or possibly even after the Notes Collateral Agent has repossessed and disposed of the Collateral. Under the U.S. Bankruptcy Code, pursuant to the automatic stay imposed upon a bankruptcy filing, a secured creditor, such as the collateral agent for the notes, is prohibited from repossessing its security from a debtor in a bankruptcy case, or from disposing of security previously repossessed from a debtor, without prior bankruptcy court approval (which may not be given under the circumstances). Moreover, U.S. bankruptcy law permits the debtor to continue to retain and to use Collateral, and the proceeds, products, rents or profits of the Collateral, even though the debtor is in default under the applicable debt instruments, provided that the secured creditor is given “adequate protection.” The meaning of the term “adequate protection” may vary according to circumstances, but it is intended in general to protect the value of the secured creditor’s interest in the Collateral and may include cash payments or the granting of additional or replacement security, if and at such time as the court in its discretion determines, for any diminution in the value of the Collateral as a result of the stay of repossession or disposition or any use of the Collateral by the debtor during the pendency of the bankruptcy case. A bankruptcy court may determine that a secured creditor may not require compensation for a diminution in the value of its Collateral if the value of the Collateral exceeds the debt it secures. In view of the lack of a precise definition of the term “adequate protection” and the broad discretionary

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powers of a U.S. bankruptcy court, it is impossible to predict whether or when payments under the notes could be made following the commencement of a bankruptcy case (or the length of the delay in making such payments), whether or when the Notes Collateral Agent could or would repossess or dispose of the Collateral, or whether or to what extent the holders of the notes would be compensated for any delay in payment or loss of value of the Collateral through the requirements of “adequate protection.”

Furthermore, in the event a U.S. bankruptcy court determines that the value of the Collateral is not sufficient to repay all amounts due on the notes, the Amended ABL Facility and any additional obligations secured by first priority liens, the holders of the notes may have “undersecured claims” as to the difference. U.S. bankruptcy laws do not permit the payment or accrual of post-petition interest, costs, expenses and attorneys’ fees for “undersecured claims” during the debtor’s bankruptcy case. Other consequences of a finding of under-collateralization would include, among other things, a lack of entitlement to receive “adequate protection” under U.S. bankruptcy laws with respect to the undersecured portion of the notes. In addition, if any payments of post-petition interest had been made at the time of such a finding of under-collateralization, those payments could be recharacterized by a U.S. bankruptcy court as a reduction of the principal amount of the notes.

In addition, any payment on the notes or a guarantee made at a time that Nine or a guarantor were found to be insolvent could be avoided and required to be returned to Nine or such guarantor or to a fund for the benefit of Nine’s or such guarantor’s creditors if such payment is made to an insider within a one-year period prior to a bankruptcy filing or within 90 days for any non-insider party and such payment would give such insider or outsider party more than such creditors would have received in a distribution in a hypothetical Chapter 7 case under the U.S. Bankruptcy Code.

Finally, as a court of equity, a U.S. bankruptcy court may otherwise subordinate the claims in respect of the notes to other claims against Nine under the principle of equitable subordination, if the court determines that: (i) the holder of the notes engaged in some type of inequitable conduct; (ii) such inequitable conduct resulted in injury to Nine’s other creditors or conferred an unfair advantage upon the holder of the notes; and (iii) equitable subordination is not inconsistent with the provisions of the U.S. Bankruptcy Code.

There are circumstances other than repayment, defeasance or discharge of the notes under which the Collateral that will secure the notes and guarantees will be released automatically, without your consent or the consent of the Trustee.

Under various circumstances, Collateral will be released automatically, including: (i) a sale, transfer or other disposition of such Collateral (other than to a guarantor) in a transaction not prohibited under the Indenture or the security documents in respect thereof, (ii) with respect to Collateral held by a guarantor, upon the release of such guarantor from its guarantee in a manner permitted under the Indenture, (iii) in respect of the property and assets of a restricted subsidiary that is a guarantor, upon the designation of such guarantor as an unrestricted subsidiary in accordance with the Indenture, (iv) with the consent of holders of 66 2/3% in aggregate principal amount of notes, and (v) in accordance with the applicable provisions of the security documents and the Intercreditor Agreement.

The guarantee of a guarantor will be automatically released to the extent it is released in connection with a sale of such guarantor in a transaction not prohibited by the Indenture. The Indenture will also permit us to designate one or more of our restricted subsidiaries that is a guarantor of the notes as an unrestricted subsidiary. If we designate a guarantor as an unrestricted subsidiary for purposes of the Indenture, all of the liens on any Collateral owned by such subsidiary or any of its subsidiaries and any guarantees of the notes by such subsidiary or any of its subsidiaries will be released under the Indenture. Designation of an unrestricted subsidiary will reduce the aggregate value of the Collateral to the extent that liens on the assets of the unrestricted subsidiary and its subsidiaries are released. In addition, the creditors of the unrestricted subsidiary and its subsidiaries will have a claim on the assets of such unrestricted subsidiary and its subsidiaries that is senior to the claim of the holders of the notes. See “Description of notes.”

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Risks related to our common stock

The trading price of our common stock has been, and is likely to continue to be, volatile and could fluctuate in response to a number of factors, many of which are beyond our control.

The trading price of our common stock has in the past, and may continue to, fluctuate significantly in response to a number of factors, many of which are beyond our control. For instance, if our financial results are below the expectations of securities analysts and investors, the market price of our common stock could decrease, perhaps significantly. Factors that may affect the market price of our common stock include changes in market prices of oil, natural gas and natural gas liquids; announcements relating to significant corporate transactions; fluctuations in our quarterly and annual financial results; operating and stock price performance of companies that investors deem comparable to us; and changes in government regulation or proposals relating to us. In addition, the U.S. securities markets have experienced significant price and volume fluctuations, and these fluctuations often have been unrelated to the operating performance of companies in these markets. Further, if we were to be the object of securities class action litigation as a result of volatility in the price of our common stock or for other reasons, it could result in substantial costs and diversion of our management’s attention and resources, which could negatively affect our financial results.

Sales of a substantial number of shares of our common stock in the public markets, or the perception that such sales could occur, could reduce the market price of our common stock.

Sales of a substantial number of shares of our common stock in the public market, or the perception that such sales could occur, could adversely affect the market price of our common stock. We are unable to predict the effect that such sales may have on the prevailing market price of our common stock. We may issue shares of our common stock or equity securities senior to our common stock in the future for a number of reasons, including to finance our operations and growth plans, to adjust our ratio of debt-to-equity or for other reasons. Future sales or issuances of shares of our common stock or other equity securities, or the availability of shares of our common stock or such other equity securities for future sale or issuance, may negatively affect the trading price of our common stock. No prediction can be made as to the effect, if any, that future sales or issuance of shares of our common stock or other equity or equity-linked securities will have on the trading price of our common stock.

Investors in this offering may experience future dilution.

In order to raise additional capital, effect acquisitions or for other purposes, we may in the future offer additional shares of our common stock or other securities convertible into, or exchangeable for, our common stock. We have an effective shelf registration statement from which additional shares of our common stock and other securities can be offered. In addition, equity awards under our share-based compensation plans may cause further dilution.

We do not intend to pay dividends on our common stock, and our debt agreements place certain restrictions on our ability to do so. Consequently, a stockholder’s only opportunity to achieve a return on its investment is if the price of our common stock appreciates.

We do not plan to declare dividends on shares of our common stock in the foreseeable future. Additionally, our debt agreements place certain restrictions on our ability to pay cash dividends. Consequently, unless we revise our dividend policy, a stockholder’s only opportunity to achieve a return on his investment in us will be by selling its common stock at a price greater than the stockholder paid for it. There is no guarantee that the price of our common stock that will prevail in the market will ever exceed the price at which a stockholder purchased its shares of our common stock.

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We may issue preferred stock whose terms could adversely affect the voting power or value of our common stock.

Our governing documents authorize us to issue, without the approval of our stockholders, one or more classes or series of preferred stock having such designations, preferences, limitations and relative rights, including preferences over our common stock respecting dividends and distributions, as our board of directors may determine. The terms of one or more classes or series of preferred stock could adversely impact the voting power or value of our common stock. For example, we might grant holders of preferred stock the right to elect some number of our directors in all events or on the happening of specified events or the right to veto specified transactions. Similarly, the repurchase or redemption rights or liquidation preferences we might assign to holders of preferred stock could affect the residual value of our common stock.

The terms of any future preferred equity or debt financing may give holders of any preferred securities or debt securities rights that are senior to the rights of Nine’s common stockholders or impose more stringent restrictions on our operations.

If we incur additional debt or raise equity through the issuance of preferred stock or convertible securities, the terms of the debt or the preferred stock issued may give the holders rights, preferences and privileges senior to those of holders of our common stock, particularly in the event of liquidation. The terms of the debt may also impose additional and more stringent restrictions on our operations. If we raise funds through the issuance of additional equity, the ownership percentage of our existing shareholders would be diluted.

Our charter and bylaws contain provisions that could delay, discourage, or prevent a takeover attempt even if a takeover might be beneficial to our stockholders, and such provisions may adversely affect the market price of our common stock.

Provisions contained in our charter and bylaws could make it more difficult for a third party to acquire us. Our charter and bylaws also impose various procedural and other requirements, which could make it more difficult for stockholders to effect certain corporate actions. For example, our charter authorizes our board of directors to determine the rights, preferences, privileges, and restrictions of unissued series of preferred stock without any vote or action by our stockholders. Thus, our board of directors can authorize and issue shares of preferred stock with voting or conversion rights that could adversely affect the voting or other rights of holders of our capital stock. These rights may have the effect of delaying or deterring a change of control of our company. Additionally, for example, our bylaws (i) establish limitations on the removal of directors and on the ability of our stockholders to call special meetings, (ii) include advance notice requirements for nominations for election to our board of directors and for proposing matters that can be acted upon at stockholder meetings, (iii) provide that our board of directors is expressly authorized to adopt, or to alter or repeal, our bylaws, and (iv) provide for a classified board of directors, consisting of three classes of approximately equal size, each class serving staggered three-year terms, so that only approximately one-third of our directors will be elected each year. These provisions could limit the price that certain investors might be willing to pay in the future for shares of our common stock. See “Description of our common stock—Anti-takeover effects of provisions of our charter, our bylaws and Delaware law.”

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Use of proceeds

We estimate that the net proceeds from this offering will be approximately $                 million after deducting the underwriting discounts and commissions and other offering expenses payable by us. We intend to use the net proceeds from this offering, together with borrowings under the Amended ABL Facility and cash on hand, to redeem all of the outstanding 2023 Senior Notes and to pay fees and expenses relating to this offering and the other Refinancing Transactions.

On January 17, 2023, the Company delivered a notice to the holders of its outstanding 2023 Senior Notes, informing such holders that, subject to the closing of this offering, the Company will redeem all of the 2023 Senior Notes on February 1, 2023 at a redemption price of 100.000% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the redemption date. See “Description of certain other material indebtedness.” As of December 31, 2022, approximately $307.3 million in aggregate principal amount of the 2023 Senior Notes was outstanding. The 2023 Senior Notes accrue interest at a rate of 8.750% per annum and mature on November 1, 2023. This prospectus supplement is not an offer to purchase or a solicitation of an offer to sell the 2023 Senior Notes. In addition, nothing contained in this prospectus supplement constitutes a notice of redemption of the 2023 Senior Notes.

Certain of the underwriters and/or their affiliates may own 2023 Senior Notes and, as a result, may receive a portion of the net proceeds from this offering. See “Underwriting.”

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Capitalization

The following table sets forth our cash and cash equivalents and our capitalization as of September 30, 2022:

You should read the following table in conjunction with “Prospectus supplement summary—Recent developments,” “Use of proceeds” and “Description of certain other material indebtedness” sections appearing elsewhere in this prospectus supplement and the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and the consolidated financial statements and the related notes included in our Quarterly Reports on Form 10-Q for the quarterly period ended September 30, 2022, which is incorporated by reference into this prospectus supplement and the accompanying prospectus.

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Description of the units

We are offering $300,000,000 aggregate stated amount of units in this offering. Each unit consists of $1,000 principal amount of our     % Senior Secured Notes due 2028 and five shares of our common stock.

The units will be issued pursuant to an agreement (the “Unit Agreement”), to be dated the Settlement Date, by and between Nine and U.S. Bank Trust Company, National Association, as trustee for the units (“Units Trustee”) and the notes trustee. The following summary of certain provisions of the Unit Agreement does not purport to be complete and is qualified in its entirety by the provisions of the Unit Agreement. You should read the Unit Agreement for a complete description of the terms thereof. Nine will make copies of the Unit Agreement available to prospective investors upon request.

General

The term “unit” refers to a “unit security,” each of which consists of $1,000 principal amount of our     % Senior Secured Notes due 2028 (the “Notes Component”) and five shares of our common stock (the “Common Stock Component”). Because any principal amount of units represents an equal principal amount of the related Notes Component, the units shall be issued in minimum denominations of $2,000 principal amount and integral multiples of $1,000 principal amount in excess thereof.

Underlying securities

Because the units represent underlying securities, investors should also review the information in this prospectus supplement under “Description of notes” regarding the Notes Component and under “Description of our common stock” regarding the Common Stock Component.

Issuance; form; agent

No units will be issued other than on the Settlement Date. The units will all be designated as one series. Units may be certificated or uncertificated, and in each case will be in registered form.

On the Settlement Date, it is expected that the units will be issued in the form of one or more fully registered global securities that will be deposited with, or on behalf of, DTC and will be registered in the name of a nominee of DTC. DTC’s nominee will be the only registered holder of the units. Your beneficial interest in the units will be evidenced solely by entries on the books of the securities intermediary acting on your behalf as a direct or indirect participant in DTC.

U.S. Bank Trust Company, National Association will act as Units Trustee, unless and until replaced by a successor Units Trustee in accordance with the provisions of the Unit Agreement.

Separation of units at the option of the holder

Prior to the date which is 60 days after the Settlement Date, units may not be separated at the option of the holder and may only be separated automatically pursuant to the terms of the Unit Agreement. Following such date, a holder of units may elect to separate its units, in whole but not in part, by delivering the applicable notice to the Units Trustee pursuant to the Unit Agreement.

If a holder elects to separate a unit, the book-entry interest in each unit will be cancelled and the holder will receive a book-entry interest in the $1,000 principal amount of notes associated with such cancelled unit and a book-entry interest in the five shares of common stock associated with such cancelled unit. Once a unit has been separated at the option of a holder and cancelled, it cannot be recreated.

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Prior to separating the units, a holder thereof will not be able to participate in any redemption or repurchase of notes, and holders of notes must have voluntarily separated their units prior to the date of any notice of redemption or any offer to repurchase commencement date in order to participate in such redemption or repurchase.

Automatic Unit Separation Date

The “Automatic Unit Separation Date” will be the earlier of (i) the date which is 270 days after the Settlement Date (which is anticipated to be                 , 2023) or (ii) if applicable, the date on which the units are automatically separated pursuant to the terms of the Unit Agreement. The Unit Agreement will provide for automatic separation of the units, without any further action on the part of holders, in the event of a Change of Control or an Event of Default (each, as defined in the “Description of notes”).

On the Automatic Unit Separation Date, all units that have not been separated prior to the Automatic Unit Separation Date shall be separated automatically, and without any action required on the part of the holders of units (the “Automatic Units Separation”). As a result of the Automatic Units Separation, each holder’s book-entry interest in each unit will be cancelled and the holder will receive a book-entry interest in the $1,000 principal amount of notes associated with such cancelled unit and a book-entry interest in the five shares of common stock associated with such cancelled unit. Once a unit has automatically been separated and cancelled, it cannot be recreated.

Trading

Prior to the separation of a unit, the securities comprising such unit will trade in unit form only. Following the separation of a unit, the notes associated with a cancelled unit will trade separately, and on a separate CUSIP number, from the Notes Component associated with the then outstanding units. Accordingly, the depth and liquidity of the secondary trading markets in the units and the notes may be limited, and not develop as quickly as anticipated, or at all. We do not expect to apply for a listing on any exchange in respect of the units, the notes or the Notes Component. See “Risk factors—Risks related to the units and the notes—No market currently exists for the units or the notes, and an active trading market may not develop.”

Payments

Prior to the separation of a unit into the Notes Component and the Common Stock Component, we will pay the principal, premium, if any, and interest on, the Notes Component of units in global form registered in the name of or held by DTC or its nominee in immediately available funds to DTC or its nominee, as the case may be, as the registered holder of such global unit.

The registered holder of a unit will be treated as the owner of it for all purposes.

Voting and certain other rights

The shares of common stock comprising the Common Stock Component of a unit will be issued and outstanding as of the Settlement Date and, accordingly, holders of units will be entitled to the rights of a holder of our common stock, including, without limitation, the right to vote and receive dividends or other payments or distributions, to consent to or receive notice as a stockholder or other rights in respect of our common stock. See “Description of our common stock.” We currently do not intend to pay dividends on our common stock.

Events of Default under the Indenture

In the case of an Event of Default under the Indenture and the acceleration of the indebtedness thereunder, the units will immediately separate as described in “—Automatic Units Separation Date” and the units shall be

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cancelled. All other consequences of an Event of Default under the Indenture are described in “Description of notes—Events of default.”

Repurchase of the units

We may purchase from time to time any of the units that are then outstanding by tender offer, in the open market, by private agreement or otherwise, subject to compliance with applicable law, provided that any units repurchased by us will be cancelled.

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Description of notes

Nine Energy Service, Inc. will issue the    % senior secured notes due 2028 that initially form a part of the Units (the “Notes”) under an Indenture (the “Indenture”), among the Issuer, the Guarantors, U.S. Bank Trust Company, National Association, as trustee (in such capacity, the “Trustee”), and U.S. Bank Trust Company, National Association, as collateral agent (in such capacity, the “Notes Collateral Agent”). The terms of the Notes include those expressly set forth in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). You may obtain a copy of the Indenture from the Issuer at its address set forth elsewhere in this prospectus supplement.

The following is a summary of the material terms and provisions of the Notes, the Indenture and the Security Documents, including the Intercreditor Agreement. The following summary does not purport to be a complete description of the Notes, the Indenture and the Security Documents, and is subject to the detailed provisions of, and qualified in its entirety by reference to, the Notes, the Indenture and the Security Documents. You can find definitions of certain terms used in this description under the heading “—Certain definitions.” In this description, the words “we,” “us,” “our,” “Nine” and “Issuer” refer to Nine Energy Service, Inc. and not to any of its Subsidiaries. The registered Holder of a Note will be treated as the owner of it for all purposes. Only registered Holders will have rights under the Indenture.

Brief description of the Notes and the Guarantees; ranking

The Notes will be:

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Initially, the Notes will be Guaranteed by each of the Issuer’s Subsidiaries, other than any Foreign Subsidiary. In the future, the Guarantees provided may be released in certain circumstances. In the event of insolvency, liquidation, reorganization, dissolution or other winding up of any Subsidiary or joint venture that is not a Guarantor, all of that Subsidiary’s or joint venture’s creditors (including trade creditors and preferred stockholders, if any) would be entitled to payment in full out of that Subsidiary’s or joint venture’s assets before we would be entitled to any payment. The Indenture will not limit the amount of liabilities that are not considered Indebtedness that may be incurred by the Issuer or any Restricted Subsidiary, including the non-Guarantor Subsidiaries.

Each Guarantee will be:

As of the Issue Date, all of our Subsidiaries will be Restricted Subsidiaries. However, under the circumstances described below under the caption “—Certain covenants—Designation of restricted and unrestricted subsidiaries,” we will be permitted to designate certain of our Subsidiaries as “Unrestricted Subsidiaries.” Unrestricted Subsidiaries will not be subject to any of the restrictive covenants in the Indenture and will not Guarantee the Notes. In the event of a bankruptcy, liquidation or reorganization of any Unrestricted Subsidiary, such Unrestricted Subsidiary will pay the holders of its debt and its trade creditors before it will be able to distribute any of its assets to the Issuer.

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As of September 30, 2022, on an as adjusted basis after giving effect to the Refinancing Transactions, we would have had:

Although the nominal amount of commitments under the ABL Credit Agreement is $150.0 million, the borrowing capacity thereunder is determined on the basis of a borrowing base comprised of a portion of eligible accounts receivable and inventory that fluctuate and, therefore, the borrowing capacity fluctuates based on such calculation. In addition, the ABL Credit Agreement provides for a $50.0 million incremental facility subject to customary conditions.

Although the Indenture contains limitations on the amount of additional secured Indebtedness that the Issuer and the Restricted Subsidiaries may incur, under certain circumstances, the amount of this Indebtedness could be substantial. The Notes will be effectively junior to the extent of the value of the ABL Priority Collateral securing our ABL Obligations and any future Pari Passu ABL Lien Indebtedness. See “—Certain covenants—Limitation on additional indebtedness” and “—Certain covenants—Limitation on liens.”

As of the Issue Date, all of the Issuer’s Subsidiaries will be “Restricted Subsidiaries.” However, under the circumstances described below under the subheading “—Certain covenants—Limitation on designation of unrestricted subsidiaries,” the Issuer will be permitted to designate any of the Issuer’s Subsidiaries as “Unrestricted Subsidiaries.” The effect of designating a Subsidiary as an “Unrestricted Subsidiary” will be that:

Principal, maturity and interest

The Notes will mature on                 , 2028. The Notes will bear interest at the rate shown on the cover page of this prospectus supplement, payable in cash semi-annually in arrears on                 and                 of each year, commencing on                 , 2023, to Holders of record at the close of business on                or                , as the case may be (whether or not a Business Day), immediately preceding the related interest payment date. Interest on the Notes will accrue from and including the most recent date to which interest has been paid or, if no interest has been paid, from and including the date of issuance. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.

If a scheduled payment date falls on a day that is not a Business Day, the payment to be made on such payment date will be made on the next succeeding Business Day with the same force and effect as if made on such payment date, and no additional interest will accrue solely as a result of such delayed payment. Interest on overdue principal and interest, if any, will accrue at the applicable interest rate on the Notes.

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The Notes will be issued in registered form, without coupons, and in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.

An aggregate principal amount of Notes equal to $300.0 million is being issued in this offering. The Issuer may issue additional Notes having identical terms and conditions to the Notes being issued in this offering, except for the issue date, the issue price, the first interest payment date and the first date from which interest will accrue, in an unlimited aggregate principal amount (the “Additional Notes”), subject to compliance with the covenants described under “—Certain covenants—Limitation on additional indebtedness” and “—Limitation on liens”; provided that if any Additional Notes are not fungible with the Notes for U.S. federal income tax purposes, such Additional Notes will be issued as a separate series under the Indenture and will have a separate CUSIP number and ISIN from the Notes. Any Additional Notes will be part of the same issue as the Notes being issued in this offering and will be treated as one class with the Notes being issued in this offering, including for purposes of voting, redemptions and offers to purchase. For purposes of this “Description of notes,” references to the Notes include Additional Notes, if any.

Methods of receiving payments on the Notes

Payments on Notes held in global form will be made through the facilities of The Depository Trust Company (“DTC”). If a Holder of at least $5.0 million in principal amount of certificated Notes has given wire transfer instructions to a U.S. dollar account maintained by such Holder with a bank located in the contiguous United States to the Issuer at least ten Business Days prior to the applicable payment date, the Issuer will make all payments on such Holder’s Notes in accordance with those instructions. Otherwise, payments on the Notes will be made at the office or agency of the paying agent (the “Paying Agent”) and registrar (the “Registrar”) for the Notes unless the Issuer elects to make interest payments by check mailed to the Holders at their addresses set forth in the register of Holders. The Issuer has initially designated the Trustee to act as Paying Agent and Registrar. The Issuer may change the Paying Agent or Registrar without prior notice to the Holders, and the Issuer and/or any Restricted Subsidiary may act as Paying Agent or Registrar.

Initially, the Notes will form a part of the Units and will be separable from the Units pursuant to the terms of the Unit Agreement. U.S. Bank Trust Company, National Association will serve as the Units Trustee. For so long as the Notes form a part of the Units, payments on the Notes will be made to holders of the Units. See “Description of the units.”

Guarantees

The Issuer’s obligations under the Notes and the Indenture will be jointly and severally guaranteed, on a senior secured basis, by the Guarantors. Initially, each of the Issuer’s Subsidiaries, other than any Foreign Subsidiary, will be Guarantors. Certain additional Restricted Subsidiaries of the Issuer may become Guarantors in the future. See “—Certain covenants—Additional guarantees.”

Not all of the Issuer’s Subsidiaries will Guarantee the Notes. In the event of a bankruptcy, liquidation or reorganization of any of these non-Guarantor Subsidiaries, the non-Guarantor Subsidiaries will pay the holders of their debt and their trade creditors before they will be able to distribute any of their assets to the Issuer. Our non-guarantor subsidiaries generated less than 1% of our consolidated revenues in the nine-month period ended September 30, 2022 and held less than 2% of our consolidated assets as of September 30, 2022.

The obligations of each Guarantor under its Guarantee and the related security granted as collateral therefor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor (including, without limitation, any guarantees under the ABL Credit Agreement) and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the

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obligations of such other Guarantor under its Guarantee or the related security granted as collateral therefor or pursuant to its contribution obligations under the Indenture, result in the obligations of such Guarantor under its Guarantee or the related security granted as collateral therefor not constituting a fraudulent conveyance, fraudulent preference or fraudulent transfer or otherwise reviewable transaction under applicable law. Nonetheless, in the event of the bankruptcy, insolvency or financial difficulty of a Guarantor, such Guarantor’s obligations under its Guarantee or the related security granted as collateral therefor may be subject to review and avoidance under applicable fraudulent conveyance, fraudulent preference, fraudulent transfer and insolvency laws. Among other things, such obligations may be avoided if a court concludes that such obligations were incurred for less than a reasonably equivalent value or fair or sufficient consideration at a time when the Guarantor was insolvent, was rendered insolvent, was on the eve of insolvency or was left with inadequate capital to conduct its business. A court may conclude that a Guarantor did not receive reasonably equivalent value or fair or sufficient consideration to the extent that the aggregate amount of its liability on its Guarantee or the related security granted as collateral therefor exceeds the economic benefits it receives from the issuance of the Guarantee or the related grant of collateral. If a Guarantee or the related security granted as collateral therefor was rendered avoidable, it could be subordinated by a court to all other indebtedness (including guarantees and other contingent liabilities) of the Guarantor, and, depending on the amount of such indebtedness, a Guarantor’s liability on its Guarantee or the related security granted as collateral therefor could be reduced to zero. See “Risk factors—Risks related to the notes and our other indebtedness—Federal and state fraudulent transfer laws may permit a court to void the notes, the guarantees and/or the security interests, and if that occurs, you may not receive any payments on the notes.”

Each Guarantor that makes a payment for distribution under its Guarantee is entitled upon payment in full of all guaranteed obligations under the Indenture to seek contribution from each other Guarantor in a pro rata amount of such payment based on the respective net assets of all the Guarantors at the time of such payment in accordance with GAAP.

A Guarantor shall be automatically released from its obligations under its Guarantee and its obligations under the Indenture (without the need for any action by any party) upon:

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Collateral

The statements under this section are summaries of the material terms and provisions of the Indenture, the Intercreditor Agreement and the other Security Documents. They do not purport to be complete and are qualified in their entirety by reference to all the provisions in such documents. Therefore, we urge you to read the Indenture, the Intercreditor Agreement and the other Security Documents because they, and not this description, define your rights as Holders of the Notes.

No appraisal of the value of the Collateral has been made in connection with this offering of the Notes, and the value of the Collateral in the event of liquidation will depend on market and economic conditions, the availability of buyers and other factors and may be materially different from the book value.

The fair market value of the Collateral is subject to fluctuations based on factors that include, among others, the condition of our industry, the ability to sell the Collateral in an orderly sale, general economic conditions and the availability of buyers. The amount to be received upon a sale of any Collateral would also be dependent on numerous factors, including, but not limited to, the actual fair market value of the Collateral at such time and the timing and the manner of the sale. By its nature, portions of the Collateral may be illiquid and may have no readily ascertainable market value. Accordingly, there can be no assurance that the Collateral can be sold in a short period of time or in an orderly manner. Further, in the event of a bankruptcy, your ability to realize upon any of the Collateral may be subject to certain bankruptcy law limitations.

Notes Priority Collateral and ABL Priority Collateral

The Notes and the Guarantees will be secured by (collectively, the “Collateral”):

The first-priority Liens on the Notes Priority Collateral and the second-priority Liens on the ABL Priority Collateral securing the Notes and the Guarantees will be shared equally and ratably with obligations under any future Pari Passu Notes Lien Indebtedness.

The Notes Priority Collateral will also be pledged as Collateral on a second-lien priority basis to secure the ABL Obligations and any future Pari Passu ABL Lien Indebtedness of the Issuer and the Guarantors.

The “ABL Priority Collateral” consists of the following (other than Excluded Assets (as defined below)):

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Terms used in the definition of ABL Priority Collateral above are defined more particularly in the New York UCC.

Excluded Assets

The Notes Priority Collateral and the ABL Priority Collateral will exclude certain items of property (the “Excluded Assets”) including, without limitation:

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In addition, the Issuer and its Subsidiaries shall not be required to take any action in any non-U.S. jurisdiction or any action required by the laws of any non-U.S. jurisdiction in order to create any security interests in collateral located in or titled outside of the United States or otherwise subject to the jurisdiction of the laws of any non-U.S. jurisdiction or to perfect any security interests nor enter into any security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction. As of the Issue Date, the Issuer and the Guarantors have no assets or properties located outside of the United States and there are no Subsidiaries organized in a jurisdiction outside of the United States (other than Foreign Subsidiaries).

Use of Collateral

Unless an Event of Default shall have occurred and be continuing and subject to certain terms and conditions, the Issuer and the Guarantors will be entitled to exercise any voting and other consensual rights pertaining to all Equity Interests pledged pursuant to the Security Documents and to remain in possession and retain

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exclusive control over the Collateral (other than as set forth in the Security Documents), to operate the Collateral, to alter or repair the Collateral and to collect, invest and dispose of any income thereon.

The Indenture and the Security Documents will, however, generally require the Issuer and the Guarantors to deliver to the Notes Collateral Agent to maintain in its possession certificates evidencing stock pledged, instruments evidencing Indebtedness pledged, and, subject to certain exceptions specified in the Indenture and the Security Documents, to maintain all cash and Cash Equivalents constituting Collateral of the Issuer and the Guarantors at an account or accounts with a financial institution that has entered into a control agreement or agreements in favor of the ABL Collateral Agent, pursuant to which the ABL Collateral Agent (for itself and as bailee for the Notes Collateral Agent) and the Notes Collateral Agent shall have perfected security interests on behalf of their respective secured parties.

Release of Collateral

The Indenture will provide that the Liens on the Collateral securing the Notes (but not necessarily any Pari Passu Notes Lien Indebtedness) will automatically and without the need for any further action by any Person be released:

(a) a legal defeasance or covenant defeasance of the Indenture as described below under “—Legal defeasance and covenant defeasance”; or

(b) satisfaction and discharge of the Indenture as set forth below under “—Satisfaction and discharge”;

To the extent required by the Indenture for the release of properties that constitute Collateral, the Issuer and each Guarantor will furnish to the Trustee and the Notes Collateral Agent, prior to each proposed release of such Collateral pursuant to the Security Documents and the Indenture, an Officers’ Certificate and an Opinion of Counsel that all conditions precedent provided for in the Indenture and the Security Documents relating to the release of Collateral have been complied with.

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Upon compliance by the Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed (at the expense of the Issuer or the Guarantors) to the Issuer or the Guarantors, as the case may be, the released Collateral.

The Issuer will comply with Section 314(d) of the Trust Indenture Act, relating to the release of property and to the substitution therefor of any property to be pledged as Collateral. Any certificate or opinion required by Section 314(d) of the Trust Indenture Act may be made by an Officer except in cases where Section 314(d) requires that such certificate or opinion be made by an independent engineer, appraiser or other expert. Notwithstanding anything to the contrary herein, the Issuer and the Guarantors will not be required to comply with all or any portion of Section 314(d) of the Trust Indenture Act if they determine, in good faith based on advice of counsel, that under the terms of that section and/or any interpretation or guidance as to the meaning thereof of the SEC and its staff, including “no action” letters or exemptive orders (in each case, whether issued to Issuer or any other Person), all or any portion of Section 314(d) of the Trust Indenture Act is inapplicable to the released Collateral. Without limiting the generality of the foregoing, certain no-action letters issued by the SEC have permitted an indenture qualified under the Trust Indenture Act to contain provisions permitting the release of collateral from Liens under such indenture in the ordinary course of an issuer’s business without requiring the issuer to provide certificates and other documents under Section 314(d) of the Trust Indenture Act. In addition, under interpretations provided by the SEC, to the extent that a release of a Lien is made without the need for consent by the Holders of the Notes or the Trustee, the provisions of Section 314(d) may be inapplicable to the release.

The Issuer will not be required to comply with Section 314(d) of the Trust Indenture Act with respect to any of the following:

Certain limitations on the Collateral

The right of the Notes Collateral Agent to take possession and dispose of the Collateral following an Event of Default is likely to be significantly impaired by applicable bankruptcy law if a bankruptcy proceeding were to be commenced by or against any Issuer or any Guarantor prior to the Notes Collateral Agent having taken possession and disposed of the Collateral. Under Title 11 of the United States Code, as amended (the “Bankruptcy Code”), a secured creditor is prohibited from taking its security from a debtor in a bankruptcy case, or from disposing of security taken from such debtor, without bankruptcy court approval. Moreover, the Bankruptcy Code permits the debtor in certain circumstances to continue to retain and to use collateral owned as of the date of the bankruptcy filing (and the proceeds, products, offspring, rents or profits of such Collateral) even though the debtor is in default under the applicable debt instruments provided that the secured creditor is given “adequate protection.” The meaning of the term “adequate protection” may vary according to circumstances. In view of the lack of a precise definition of the term “adequate protection” and the broad discretionary powers of a bankruptcy court, it is impossible to predict how long payments under the Notes

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could be delayed following commencement of a bankruptcy case, whether or when the Notes Collateral Agent could repossess or dispose of the Collateral, or whether or to what extent Holders of the Notes would be compensated for any delay in payment or loss of value of the Collateral through the requirement of “adequate protection.”

Furthermore, in the event a U.S. bankruptcy court determines the value of the Collateral (after giving effect to any priority Lien) is not sufficient to repay all amounts due on the Notes and any Pari Passu Notes Lien Indebtedness, the Holders of the Notes and such Pari Passu Notes Lien Indebtedness would hold secured claims to the extent of the value of the Collateral and would hold unsecured claims with respect to any shortfall. Applicable U.S. bankruptcy laws permit the payment and/or accrual of post-petition interest, costs, attorneys’ fees and, in some instances, call protection, during a debtor’s bankruptcy case only to the extent the claims are over-secured. In addition, if the Issuer or the Guarantors were to become the subject of a bankruptcy case, the bankruptcy court, among other things, may avoid certain prepetition transfers made by the entity that is the subject of the bankruptcy filing, including, without limitation, transfers held to be preferences or fraudulent conveyances.

Limitation on Collateral consisting of subsidiary securities

The Equity Interests or intercompany note of a Subsidiary that are included in the Collateral will constitute Collateral only to the extent that such Equity Interests or intercompany note can secure the Notes without Rule 3-16 or new Rule 13-02 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements or summarized financial information (and other non-financial information) of such Subsidiary individually or on a combined basis to be filed with the SEC. In the event that Rule 3-16 or new Rule 13-02 of Regulation S-X under the Securities Act requires or is amended or further amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, that would require) the filing with the SEC of separate financial statements or summarized financial information (and other non-financial information) of any Subsidiary due to the fact that such Subsidiary’s Equity Interests or intercompany note secures the Notes, then the Equity Interests or intercompany note of such Subsidiary shall automatically be deemed not to be part of the Collateral (such Equity interests or intercompany note, to the extent deemed not to be part of the Collateral, the “Excluded Securities Collateral”). In such event, the Security Documents may be amended or modified, without the consent of any Holder of Notes, to the extent necessary to release the Liens on the Equity Interests or intercompany note that is so deemed to no longer constitute part of the Collateral.

In the event that Rule 3-16 or new Rule 13-02 of Regulation S-X under the Securities Act is amended or further amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Equity Interests or intercompany note to secure the Notes without the filing with the SEC of separate financial statements or summarized financial information (and other non-financial information) of such Subsidiary, then the Equity Interests or intercompany note of such Subsidiary shall automatically be deemed to be a part of the Collateral. In such event, the Security Documents may be amended or modified, without the consent of any Holder of Notes, to the extent necessary to subject such Equity Interests or intercompany note to the Liens under the Security Documents.

Intercreditor Agreement

The relative priorities on the Notes Priority Collateral and the ABL Priority Collateral will be established by the terms of the Intercreditor Agreement. The statements under this section are summaries of the material terms and provisions of the Intercreditor Agreement. They do not purport to be complete and are qualified in their entirety by reference to all the provisions in the Intercreditor Agreement.

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The Notes Priority Collateral will also serve as collateral to secure the obligations of the Issuer and the Guarantors under any future Pari Passu Notes Lien Indebtedness on a first-priority Lien basis, and the ABL Priority Collateral will also serve as collateral to secure the obligations of the Issuer and the Guarantors under any future Pari Passu Notes Lien Indebtedness on a second-priority Lien basis. The ABL Priority Collateral will also serve as collateral to secure the ABL Obligations and any future Pari Passu ABL Lien Indebtedness of the Issuer and the Guarantors on a first-priority Lien basis, and the Notes Priority Collateral will also serve as collateral to secure the ABL Obligations and any future Pari Passu ABL Lien Indebtedness of the Issuer and the Guarantors on a second-priority Lien basis. The rights and remedies under the Intercreditor Agreement in respect of the Notes Priority Collateral and the ABL Priority Collateral, respectively, will be directed by (x) in the case of the Notes Priority Collateral, the class of pari passu lien Obligations secured by valid and perfected Liens on the Notes Priority Collateral, the aggregate amount of which exceeds the aggregate amount of secured obligations of any other class of pari passu lien Obligations secured by valid and perfected Liens on the Notes Priority Collateral, which initially shall be the Notes and (y) in the case of the ABL Priority Collateral, initially the ABL Facility.

On the Issue Date, the Notes Collateral Agent, on behalf of the Holders of Notes, will enter into an intercreditor agreement with the Issuer, the Guarantors, and JPMorgan Chase Bank, N.A., as ABL Collateral Agent, on behalf of the secured parties in respect of the ABL Credit Agreement (the “Intercreditor Agreement”). The Intercreditor Agreement will govern the relationship of the Holders of Notes and any holders of Pari Passu Notes Lien Indebtedness, on the one hand, and the holders of the ABL Obligations and any holders of Pari Passu ABL Lien Indebtedness, on the other hand, with respect to the Notes Priority Collateral, the ABL Priority Collateral and certain other matters. Although the Holders of the Notes are not party to the Intercreditor Agreement, by their acceptance of the Notes they will agree to be bound thereby. The Holders of the Notes also specifically authorize the Notes Collateral Agent to enter into the Intercreditor Agreement on their behalf and to take all actions provided for under the terms of the Intercreditor Agreement and the Holders of Notes agree to be bound by such actions. Pursuant to the terms of the Intercreditor Agreement, the Notes Collateral Agent (acting pursuant to, and in accordance with, the Indenture and the Security Documents) will determine the time and method by which the security interests in the Notes Priority Collateral will be enforced and the ABL Collateral Agent will determine the time and method by which the security interests in the ABL Priority Collateral will be enforced.

All or a portion of the obligations secured on a first-priority basis by the ABL Priority Collateral consists, or may consist, of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased, reduced or repaid and subsequently re-borrowed. The lien priorities provided for in the Intercreditor Agreement shall not be altered or otherwise affected by any amendment, modification, supplement, extension, increase, replacement, renewal, restatement or refinancing of either the obligations secured on a first-priority basis by the ABL Priority Collateral or the obligations secured on a first-priority basis by the Notes Priority Collateral.

In addition, the Intercreditor Agreement will provide that, so long as there are ABL Obligations outstanding (whether incurred prior to, on or after the Issue Date), (1) the holders of ABL Obligations may direct the ABL Collateral Agent to take certain actions with respect to the ABL Priority Collateral (including the release of ABL Priority Collateral and the manner of realization) without the consent of the Holders of the Notes or any holder of Pari Passu Notes Lien Indebtedness; (2) all Collateral that is subject to a Lien in favor of the Notes Collateral Agent shall also be subject to a Lien in favor of the ABL Collateral Agent, in the relative priority based on whether such Collateral is Notes Priority Collateral or ABL Priority Collateral; and (3) the Issuer, the Guarantors and the Notes Collateral Agent, on behalf of itself and the Holders of the Notes, will agree that they will not at any time execute or deliver any amendment or other modification to any of the Notes Documents in violation of the Intercreditor Agreement. In the event that the ABL Collateral Agent enters into any amendment, waiver or

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consent in respect of the ABL Credit Agreement for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any such document or changing in any manner the rights of any parties thereunder, in each case solely with respect to any ABL Priority Collateral, then such amendment, waiver or consent shall apply automatically to any comparable provision of the comparable Security Documents without the consent of or action by the Notes Collateral Agent (with all such amendments, waivers and modifications subject to the terms hereof), subject to notice requirements and certain restrictions against amendments reducing or releasing Collateral or adversely affecting rights, duties or obligations of the Notes Collateral Agent or the Holders of the Notes or holders of any other Pari Passu Notes Lien Indebtedness.

In addition, the Intercreditor Agreement will provide that, so long as the Notes and the Guarantees are outstanding (whether incurred prior to, on or after the Issue Date), (1) the Holders of Notes may direct the Notes Collateral Agent to take certain actions with respect to the Notes Priority Collateral (including the release of Notes Priority Collateral and the manner of realization) without the consent of the holders of the ABL Obligations or any holder of Pari Passu ABL Lien Indebtedness; (2) all Collateral that is subject to a Lien in favor of the ABL Collateral Agent shall also be subject to a Lien in favor of the Notes Collateral Agent, in the relative priority based on whether such Collateral is Notes Priority Collateral or ABL Priority Collateral; and (3) the Issuer, Guarantors and the ABL Collateral Agent, on behalf of itself and the holders of the ABL Obligations, will agree that they will not at any time execute or deliver any amendment or other modification to any of the documents relating to the ABL Credit Agreement in violation of the Intercreditor Agreement. In the event that the Notes Collateral Agent enters into any amendment, waiver or consent in respect of the Indenture, the Notes, the Guarantees or the Security Documents or any other Notes Documents (to the extent not materially adverse to the ABL Secured Parties) for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any such document or changing in any manner the rights of any parties thereunder, in each case solely with respect to any Notes Priority Collateral, then such amendment, waiver or consent shall apply automatically to any comparable provision of the comparable document for the ABL Credit Agreement without the consent of or action by the ABL Collateral Agent (with all such amendments, waivers and modifications subject to the terms hereof), subject to notice requirements and certain restrictions against amendments reducing or releasing Collateral or adversely affecting rights of the ABL Collateral Agent or the lenders under the ABL Credit Agreement or holders of any other Pari Passu ABL Lien Indebtedness.

No action with respect to the ABL Priority Collateral

The Intercreditor Agreement will provide that the Notes Collateral Agent and the holders of the Secured Obligations it represents may not exercise any rights and remedies with respect to the ABL Priority Collateral, including the exercise of any rights of set-off or recoupment, and the exercise of any rights or remedies of a secured creditor under the Uniform Commercial Code or under the Bankruptcy Code, at any time when any ABL Obligation or any obligation under any Pari Passu ABL Lien Indebtedness remains outstanding, and only the ABL Collateral Agent shall be entitled to take any such actions or exercise any such rights and remedies, subject to the following paragraph.

Notwithstanding the preceding paragraph, the Notes Collateral Agent may exercise its rights and remedies in respect of the ABL Priority Collateral after the passage of a period of 180 days from the date of delivery of a written notice to the ABL Collateral Agent of the Notes Collateral Agent’s intention to exercise such rights and remedies, which notice may only be delivered following the occurrence of or during the continuation of an “event of default” under and as defined under any Notes Documents; provided, however, that the Notes Collateral Agent may not exercise any such rights and remedies if, notwithstanding the expiration of such 180-day period, (1) the ABL Collateral Agent shall have commenced and be diligently pursuing the exercise of any of its rights and remedies with respect to the ABL Priority Collateral or is diligently attempting to vacate any stay or prohibition against such exercise or (2) an Insolvency or Liquidation Proceeding in respect of any Grantor shall have been commenced.

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No action with respect to Notes Priority Collateral

The Intercreditor Agreement will provide that the ABL Collateral Agent and the holders of ABL Obligations it represents may not exercise any rights and remedies with respect to the Notes Priority Collateral, including the exercise of any rights of set-off or recoupment, and the exercise of any rights or remedies of a secured creditor under the Uniform Commercial Code or under the Bankruptcy Code, at any time when any obligations under the Notes or any Pari Passu Notes Lien Indebtedness remains outstanding, and only the Notes Collateral Agent shall be entitled to take any such actions or exercise any such rights and remedies, subject to the following paragraph.

Notwithstanding the preceding paragraph, the ABL Collateral Agent may exercise its rights and remedies in respect of the Notes Priority Collateral after the passage of a period of 180 days from the date of delivery of a notice to the Notes Collateral Agent of the ABL Collateral Agent’s intention to exercise such rights and remedies, which notice may only be delivered following the occurrence of or during the continuation of an “event of default” under and as defined under any ABL Documents; provided, however, that the ABL Collateral Agent may not exercise any such rights and remedies if, notwithstanding the expiration of such 180 day period, (1) the Notes Collateral Agent shall have commenced and be diligently pursuing the exercise of any of its rights and remedies with respect to the Notes Priority Collateral or is diligently attempting to vacate any stay or prohibition against such exercise or (2) an Insolvency or Liquidation Proceeding in respect of any Grantor shall have been commenced.

No interference

The Notes Collateral Agent will agree in the Intercreditor Agreement for itself and on behalf of the holders of Secured Obligations, in respect of the Notes and the Guarantees (and each Holder of Notes will agree by its acceptance of the Notes), that it will not contest, or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding) the priority, validity or enforceability of any Lien held by the holders of any ABL Obligations secured by any ABL Priority Collateral, or demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or similar right which it may have in respect of such ABL Priority Collateral or the Liens of the ABL Collateral Agent thereon, except to the extent that such rights are expressly granted in the Intercreditor Agreement; it will not take or cause to be taken any action, the purpose or effect of which is to make any Lien on the ABL Priority Collateral pari passu with or senior to, or to give itself any preference or priority relative to, the Liens of the ABL Collateral Agent on the ABL Priority Collateral; it will not contest, oppose, object to, interfere with, hinder or delay, in any manner, whether by judicial proceedings (including the filing of an Insolvency or Liquidation Proceeding) or otherwise, any foreclosure, sale, lease, exchange, transfer of other disposition of the ABL Collateral by the ABL Collateral Agent or any holder of ABL Obligations; it will have no right to (x) direct the ABL Collateral Agent or any holder of ABL Obligations to exercise any right, remedy or power with respect to the ABL Priority Collateral or (y) consent or object to the exercise by the ABL Collateral Agent or any holder of ABL Obligations of any rights, remedy or power with respect to such ABL Priority Collateral or to the timing or manner in which any such right is exercised or not exercised; and it will not institute any suit or other proceeding or assert in any suit, Insolvency or Liquidation Proceeding or other proceeding any claim against the ABL Collateral Agent seeking damages from other relief by way of specific performance, instructions or otherwise, with respect to, and neither the ABL Collateral Agent nor any holder of ABL Obligations will be liable for, any action taken or omitted to be taken by the ABL Collateral Agent or any such holder of ABL Obligations with respect to the ABL Collateral. The ABL Collateral Agent, for itself and on behalf of the holders of ABL Obligations, will agree to similar limitations with respect to their rights in the Notes Priority Collateral.

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Cooperation and sharing of information

The Intercreditor Agreement will provide that the Notes Collateral Agent, on behalf of itself and the Holders of the Notes, agrees that each of them shall take such actions as the ABL Collateral Agent shall request in connection with the exercise by the holders of the ABL Obligations of their rights set forth herein in respect of the ABL Priority Collateral. The ABL Collateral Agent, on behalf of itself and the other holders of the ABL Obligations, agrees that each of them shall take such actions as the Notes Collateral Agent shall request in connection with the exercise by the Holders of the Notes of their rights set forth herein in respect of the Notes Priority Collateral.

Also, the Intercreditor Agreement shall include a provision that in the event that the ABL Collateral Agent shall, in the exercise of its rights under the documents for the ABL Credit Agreement or otherwise, receive possession or control of any books and records of the Issuer or any Guarantor which contain information identifying or pertaining to the Notes Priority Collateral, the ABL Collateral Agent shall promptly notify the Notes Collateral Agent of such fact and, upon request from the Notes Collateral Agent and as promptly as practicable thereafter, either make available to the Notes Collateral Agent such books and records for inspection and duplication or provide to the Notes Collateral Agent copies thereof. In the event that the Notes Collateral Agent shall, in the exercise of its rights under the Indenture and the Security Documents or otherwise, receive possession or control of any books and records of the Issuer or any Guarantor which contain information identifying or pertaining to any of the ABL Priority Collateral, the Notes Collateral Agent shall promptly notify the ABL Collateral Agent of such fact and, upon request from the ABL Collateral Agent and as promptly as practicable thereafter, either make available to the ABL Collateral Agent such books and records for inspection and duplication or provide the ABL Collateral Agent copies thereof.

The Intercreditor Agreement will also provide that the Notes Collateral Agent irrevocably grants the ABL Collateral Agent a non-exclusive worldwide license or right to use, consistent with applicable law, to the extent of the Notes Collateral Agent’s interest therein and reasonably requested by the ABL Collateral Agent, exercisable without payment of royalty or other compensation, any of the Intellectual Property Collateral now or hereafter owned by, licensed to, or otherwise used by any of the Grantors in order for the ABL Collateral Agent to purchase, use, market, repossess, possess, store, assemble, manufacture, process, sell, transfer, distribute or otherwise dispose of any asset included in the ABL Priority Collateral in connection with the liquidation, disposition or realization upon the ABL Priority Collateral in accordance with the terms of the ABL Documents. The Notes Collateral Agent will agree that any sale, transfer or other disposition of any of the Intellectual Property Collateral constituting Notes Priority Collateral (whether by foreclosure or otherwise) will be subject to rights of the ABL Collateral Agent as described above.

Entry upon premises by ABL Collateral Agent and holders of ABL Obligations

The Intercreditor Agreement will provide that if the Notes Collateral Agent obtains possession or physical control of any Notes Priority Collateral pursuant to the exercise of its rights under the applicable Security Documents or under applicable law, it shall promptly notify the ABL Collateral Agent in writing of that fact, and the ABL Collateral Agent shall, within ten Business Days thereafter, notify the Notes Collateral Agent in writing as to whether the ABL Collateral Agent wishes to exercise its access rights under the Intercreditor Agreement. In addition, if the ABL Collateral Agent obtains possession or physical control of any Notes Priority Collateral pursuant to the exercise of its rights under the applicable Security Documents or under applicable law, it shall promptly notify the Notes Collateral Agent in writing that the ABL Collateral Agent is exercising its access rights under the Intercreditor Agreement.

Upon delivery of such notice, the Notes Collateral Agent shall confer with the ABL Collateral Agent in good faith to coordinate with respect to the ABL Collateral Agent’s exercise of such access rights, to enable the ABL

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Collateral Agent during normal business hours to convert any ABL Priority Collateral consisting of raw materials or work-in-process into saleable finished goods and/or to transport such ABL Priority Collateral to a point where such conversion can occur, to otherwise prepare ABL Priority Collateral for sale and/or to arrange or effect the sale of ABL Priority Collateral (including conducting of auctions), all in accordance with the manner in which such matters are completed in the ordinary course of business. During any such access period, the ABL Collateral Agent and its agents, representatives and designees shall have an irrevocable, non-exclusive right to have access to, and a rent-free right to use, the Notes Priority Collateral for the purposes described above. The ABL Collateral Agent shall be obligated to reimburse the Notes Collateral Agent for all operating costs of such Notes Priority Collateral (not including insurance) incurred after the commencement of the relevant access period to the extent incurred as a result of the exercise by the ABL Collateral Agent of its access rights, and actually paid by the Notes Collateral Agent (or any holder of Secured Obligations). The ABL Collateral Agent shall take proper and reasonable care under the circumstances of any Notes Priority Collateral that is used by the ABL Collateral Agent during the access period and repair and replace any damage (ordinary wear-and-tear excepted) caused by the ABL Collateral Agent or its agents, representatives or designees, and leave the Notes Priority Collateral in substantially the same condition as it was at the commencement of the occupancy, use or control by the ABL Collateral Agent or its agents, representatives or designees (ordinary wear-and-tear excepted) and the ABL Collateral Agent shall comply with all applicable laws in all material respects in connection with its use or occupancy or possession of the ABL Priority Collateral. The ABL Collateral Agent shall indemnify and hold harmless the Notes Collateral Agent for any injury or damage to Persons or property (ordinary wear-and-tear excepted) and for any losses, claims, liabilities or expenses directly resulting from the occupancy, use or control by the ABL Collateral Agent or its agents, representatives or designees or by the acts or omissions of Persons under its control; provided, however, that the ABL Collateral Agent will not be liable for any diminution in the value of Notes Priority Collateral caused by the absence of the ABL Priority Collateral therefrom. The ABL Collateral Agent and the Notes Collateral Agent shall cooperate and use reasonable efforts to ensure that their activities during the access period as described above do not interfere materially with the activities of the other as described above, including the right of Notes Collateral Agent to show the Notes Priority Collateral to prospective purchasers and to ready the Notes Priority Collateral for sale. The Notes Collateral Agent shall not foreclose or otherwise sell, remove or dispose of any of the Notes Priority Collateral during the access period with respect to such Collateral if the ABL Collateral Agent (acting in good faith) informs the Notes Collateral Agent in writing that such Collateral is reasonably necessary to enable the ABL Collateral Agent to convert, transport or arrange to sell the ABL Priority Collateral as described above; provided, however, that nothing contained in the Intercreditor Agreement will restrict the rights of the Notes Collateral Agent from selling, assigning or otherwise transferring any Notes Priority Collateral prior to the expiration of such access period if the purchaser, assignee or transferee thereof agrees to be bound by the applicable provisions of the Intercreditor Agreement. Each such access period shall last for a maximum of 180 days; provided if any stay or other order prohibiting the exercise of remedies with respect to the ABL Priority Collateral has been entered by a court of competent jurisdiction or is in effect due to an Insolvency or Liquidation Proceeding, such 180-day period shall be tolled during the pendency of any such stay or other order.

Agreements with respect to bankruptcy or insolvency proceedings

If any Grantor becomes subject to a case under the Bankruptcy Code at any time when any ABL Obligation remains outstanding, and if the ABL Collateral Agent or the other holders of ABL Obligations desire to consent (or not object) to the use of cash collateral, or to provide financing to any Grantor under the Bankruptcy Code or to consent (or not object) to the provision of such financing to any Grantor by any third party (any such financing, an “ABL DIP Financing”), the Notes Collateral Agent will agree in the lntercreditor Agreement for itself and on behalf of the holders of Secured Obligations, in respect of the Notes and the Guarantees (and each Holder of Notes will agree by its acceptance of the Notes), that it will be deemed to have consented to, and will raise no objection to, nor support any other Person objecting to, the use of such cash collateral or to such ABL

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DIP Financing on any grounds, including failure to provide ‘adequate protection’ of the Notes Collateral Agent’s Lien on the ABL Priority Collateral, and will not request any adequate protection solely as a result of such ABL DIP Financing except as set forth below, and will subordinate (and will be deemed hereunder to have subordinated) its Liens on any ABL Priority Collateral to (A) the Liens securing such ABL DIP Financing on the same terms as the Liens of the ABL Collateral Agent are subordinated thereto (and such subordination will not alter in any manner the terms of this Agreement), (B) any adequate protection to the ABL Collateral Agent and (C) any “carve-out” agreed to by the ABL Collateral Agent or the other holders of ABL Obligations, so long as (x) the Notes Collateral Agent retains its Lien on the Collateral (in each case, including Proceeds (as defined in the New York UCC) thereof arising after the commencement of the case under the Bankruptcy Code) and, as to the Notes Priority Collateral only, such Lien has the same priority as existed prior to the commencement of the case under the Bankruptcy Code and any Lien securing such ABL DIP Financing is junior and subordinate to the Lien of the Notes Collateral Agent on the Notes Priority Collateral, (y) all Liens on ABL Priority Collateral securing any such ABL DIP Financing shall be senior to or on a parity with the Liens of the ABL Collateral Agent securing the ABL Obligations on ABL Priority Collateral and (z) the aggregate principal amount of such ABL DIP Financing (including any undrawn portion of the revolving commitments thereunder, and including the face amount of any letters of credit issued and not reimbursed thereunder), together with the aggregate outstanding principal amount of indebtedness and unfunded commitments under the ABL Credit Agreement, does not exceed 115% of the aggregate outstanding principal amount of indebtedness and unfunded commitments under the ABL Credit Agreement immediately prior to the incurrence of such ABL DIP Financing. In no event will the ABL Collateral Agent or any of the holders of ABL Obligations seek to obtain a priming Lien on any of the Notes Priority Collateral and nothing contained in the Intercreditor Agreement shall be deemed to be a consent by the Notes Collateral Agent or any of the holders it represents to any adequate protection payments using Notes Priority Collateral. The ABL Collateral Agent and the holders of ABL Obligations will agree to similar provisions with respect to any DIP financing on the Notes Priority Collateral.

The Notes Collateral Agent will agree in the Intercreditor Agreement (and each Holder of Notes will agree by its acceptance of the Notes) that it will not oppose any sale or disposition of any ABL Priority Collateral that is supported by the ABL Collateral Agent and the holders of ABL Obligations, and the Notes Collateral Agent and the holders of Secured Obligations in respect of the Notes and the Guarantees will be deemed to have consented under Section 363 of the Bankruptcy Code (and otherwise) to such sale or disposition. The ABL Collateral Agent and the holders of ABL Obligations will agree to similar limitations with respect to their right to oppose such a sale of Notes Priority Collateral.

The Intercreditor Agreement will provide that the Notes Collateral Agent, for itself and on behalf of the holders of Secured Obligations, in respect of the Notes and the Guarantees, will not object, contest or support any other Person objecting or contesting, any request by the ABL Collateral Agent or the other holders of ABL Obligations for adequate protection of its interest in the ABL Priority Collateral or any adequate protection provided to the ABL Collateral Agent or the other holders of ABL Obligations, or any objection by the ABL Collateral Agent or any other holder of ABL Obligations to any motion, relief, action or proceeding based on a claim of a lack of adequate protection in the ABL Priority Collateral. If the ABL Collateral Agent or any of the holders of ABL Obligations are granted adequate protection consisting of additional collateral that constitutes ABL Priority Collateral (with replacement liens on such additional collateral) and superpriority claims in connection with any ABL DIP Financing or use of cash collateral, and do not object to the adequate protection being provided to them, then in connection with any such ABL DIP Financing or use of cash collateral, the Notes Collateral Agent, on behalf of itself and the holders of Secured Obligations, in respect of the Notes and the Guarantees, may, as adequate protection of its junior Liens in ABL Priority Collateral, seek or accept (and the ABL Collateral Agent and the other holders of ABL Obligations shall not object to) adequate protection consisting solely of (x) a replacement Lien on the same additional collateral, subordinated to the Liens securing the ABL Obligations and such ABL DIP Financing on the same basis as the other Liens of the Notes Collateral Agent on the ABL Priority

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Collateral are so subordinated to the ABL Obligations under the Intercreditor Agreement and (y) superpriority claims junior in all respects to the superpriority claims granted to the ABL Collateral Agent and the other holders of ABL Obligations, provided, however, that the Notes Collateral Agent shall have irrevocably agreed, pursuant to Section 1129(a)(9) of the Bankruptcy Code, on behalf of itself and the holders of Secured Obligations, in respect of the Notes and the Guarantees, in any stipulation and/or order granting such adequate protection, that such junior superpriority claims may be paid under any plan of reorganization in any combination of cash, debt, equity or other property having a value on the effective date of such plan equal to the allowed amount of such claims subject to the provisions of the Intercreditor Agreement. The ABL Collateral Agent and the Notes Collateral Agent, on behalf of themselves and the holders they represent, will agree to similar reciprocal provisions with respect to any adequate protection in respect of the Notes Priority Collateral.

The Notes Collateral Agent, on behalf of itself and the holders of Secured Obligations, in respect of the Notes and the Guarantees, will agree that it shall not (i) seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of any ABL Priority Collateral without the prior written consent of the ABL Collateral Agent, or (ii) seek relief from the automatic stay in any Insolvency or Liquidation Proceeding in respect of any Common Collateral without providing 30 days’ prior written notice to the ABL Collateral Agent. The ABL Collateral Agent will agree to similar provisions in respect of the Notes Priority Collateral and any Common Collateral.

Purchase option

Upon the occurrence and during the continuance of an “Event of Default” under the ABL Documents, if such Event of Default remains uncured or unwaived for at least forty-five (45) consecutive days, the required lenders under the ABL Documents have not agreed to forbear from the exercise of remedies and revolving loans have been requested under the ABL Documents and not been made for five Business Days as a result of such Event of Default (or, if earlier, within five Business Days after the ABL Administrative Agent notifies the Notes Collateral Agent that it shall exercise remedies), all or a portion of the Holders of the Notes and the other Pari Passu Notes Priority Indebtedness, acting as a single group, shall have the option at any time upon five (5) Business Days’ prior written notice (which shall be irrevocable) to the ABL Administrative Agent and the representative of any Pari Passu ABL Lien Indebtedness to purchase all of the ABL Obligations and the Obligations in respect of such Pari Passu ABL Lien Indebtedness. The holders of the ABL Obligations and the Obligations in respect of the Pari Passu ABL Lien Indebtedness will have similar rights to purchase the Obligations in respect of the Notes and the other Pari Passu Notes Lien Indebtedness.

Upon the date of such purchase and sale, the relevant purchasers shall (a) pay to the ABL Administrative Agent, for the benefit of the holders of the ABL Obligations, and the representative of any Pari Passu ABL Lien Indebtedness, for the benefit of the holders of the Obligations in respect of such Pari Passu ABL Lien Indebtedness, as the purchase price therefor the full amount of all the ABL Obligations and the Obligations in respect of such Pari Passu ABL Lien Indebtedness then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but specifically excluding any prepayment premium, termination or similar fees), (b) furnish cash collateral to the ABL Administrative Agent and the representative for any Pari Passu ABL Lien Indebtedness in a manner and in such amounts as the ABL Administrative Agent or such representative, as applicable, determines is reasonably necessary to secure the holders of the ABL Obligations and the Obligations in respect of such Pari Passu ABL Lien Indebtedness, letter of credit issuing banks and applicable affiliates in connection with any issued and outstanding letters of credit, hedging obligations and cash management obligations secured by the ABL Documents, (c) agree to reimburse the holders of the ABL Obligations and the Obligations in respect of such Pari Passu ABL Lien Indebtedness and letter of credit issuing banks for any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) in connection with any commissions, fees, costs or expenses related to any issued and outstanding letters of credit as described above and any checks or other payments provisionally credited to the

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ABL Obligations and the Obligations in respect of such Pari Passu ABL Lien Indebtedness, and/or as to which the ABL Administrative Agent or such representative for the holders of the Obligations in respect of such Pari Passu ABL Lien Indebtedness has not yet received final payment, (d) agree to reimburse the holders of the ABL Obligations and the Obligations in respect of such Pari Passu ABL Lien Indebtedness, letter of credit issuing banks, in respect of indemnification obligations of Issuer and the Guarantors under the ABL Documents as to matters or circumstances known to the ABL Administrative Agent, the representative for the Obligations in respect of such Pari Passu ABL Lien Indebtedness at the time of the purchase and sale which would reasonably be expected to result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the holders of the ABL Obligations and the Obligations in respect of such Pari Passu ABL Lien Indebtedness, and (e) agree to indemnify and hold harmless the holders of the ABL Obligations and the Obligations in respect of such Pari Passu ABL Lien Indebtedness, and letter of credit issuing banks, from and against any loss, liability, claim, damage or expense (including reasonable fees and expenses of legal counsel) arising out of any claim asserted by a third party in respect of the ABL Obligations and the Obligations in respect of such Pari Passu ABL Lien Indebtedness as a direct result of any acts by any Holder of the Notes or any other Pari Passu Notes Lien Indebtedness occurring after the date of such purchase. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account as the ABL Administrative Agent and the representative of the Obligations in respect of such Pari Passu ABL Lien Indebtedness may designate in writing for such purpose. In respect to the right of the holders of the ABL Obligations and the Obligations in respect of the Pari Passu ABL Lien Indebtedness to purchase the Obligations in respect of the Notes and the other Pari Passu Notes Lien Indebtedness, the Intercreditor Agreement will include a similar provision for the payment of such Obligations.

Refinancings of the obligations

Any Obligations covered by the Intercreditor Agreement may be refinanced or replaced, in whole or in part; provided, however, that the holders of any such refinancing or replacement indebtedness that will be secured by Liens on the Collateral with the same priority (or an authorized agent or trustee on their behalf) bind themselves in writing to the terms of the Intercreditor Agreement.

Release of Collateral

The Intercreditor Agreement will provide that, if in connection with any release, sale or disposition of any ABL Priority Collateral permitted under the terms of the ABL Documents or in connection with the exercise of the ABL Collateral Agent’s remedies in respect of the ABL Priority Collateral, the ABL Collateral Agent, for itself or on behalf of any holder of ABL Obligations, releases any of its Liens on any part of the ABL Priority Collateral, or releases any Guarantor from its obligations under its guaranty (in each case other than in connection with the discharge of all ABL Obligations) then the Liens of the Notes Collateral Agent, for itself and for the benefit of the holders of Secured Obligations, in respect of the Notes and the Guarantees, on such ABL Priority Collateral, shall be automatically, unconditionally and simultaneously released. The ABL Collateral Agent will agree to similar provisions in respect of the Notes Priority Collateral.

Application of proceeds

All proceeds received by the Notes Collateral Agent or the ABL Collateral Agent in connection with the collection, sale or disposition of ABL Priority Collateral pursuant to any enforcement action or during any Insolvency or Liquidation Proceeding shall be applied:

FIRST, to the ratable payment of fees, costs and expenses (including reasonable attorneys’ fees and expenses and court costs) of the ABL Collateral Agent and the agent or representative of any Pari Passu ABL Lien Indebtedness,

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SECOND, to the ratable payment of the ABL Obligations and any Pari Passu ABL Lien Indebtedness, in accordance with the ABL Documents and the documents governing such Pari Passu ABL Lien Indebtedness until payment in full of such Obligations,

THIRD, to the ratable payment of fees, costs and expenses (including reasonable attorneys’ fees and expenses and court costs) of the Notes Collateral Agent, the Trustee and the trustee, agent or representative of any other Secured Obligations,

FOURTH, to the ratable payment of the Secured Obligations, in accordance with the documents governing such Secured Obligations, and

FIFTH, the balance, if any, to the Grantors or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

All proceeds received by the Notes Collateral Agent or the ABL Collateral Agent in connection with the collection, sale or disposition of Notes Priority Collateral pursuant to any enforcement action or during any Insolvency or Liquidation Proceeding shall be applied:

FIRST, to the ratable payment of fees, costs and expenses (including reasonable attorneys’ fees and expenses and court costs) of the Notes Collateral Agent, the Trustee and the trustee, agent or representative of any other Secured Obligations,

SECOND, to the ratable payment of the Secured Obligations in accordance with the documents governing such Secured Obligations, until payment in full of the Secured Obligations,

THIRD, to the ratable payment of fees, costs and expenses (including reasonable attorneys’ fees and expenses and court costs) of the ABL Collateral Agent and the agent or representative of any other Pari Passu ABL Lien Indebtedness,

FOURTH, to the ratable payment of the ABL Obligations and any Pari Passu ABL Lien Indebtedness, in accordance with the ABL Documents and the documents governing such Pari Passu ABL Lien Indebtedness, and

FIFTH, the balance, if any, to the Grantors or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

All proceeds of any sale of a Grantor as a whole, or substantially all of the assets of any Grantor where the consideration received is not allocated by type of asset, in connection with or resulting from any enforcement action, and whether or not pursuant to an Insolvency or Liquidation Proceeding, shall be distributed as follows (after payment of costs and expenses of the ABL Collateral Agent and the Notes Collateral Agent): first to the ABL Collateral Agent for the ratable application to the ABL Obligations and any Pari Passu ABL Lien Indebtedness in accordance with the terms of the ABL Documents and the documents governing such Pari Passu ABL Lien Indebtedness, up to the amount of the book value at the time of the sale of the ABL Priority Collateral disposed of in such sale or owned by such Grantor (in the case of a sale of such Grantor as a whole), and second to the Notes Collateral Agent for the ratable application to the Secured Obligations in accordance with the terms of the documents governing such Secured Obligations to the extent such proceeds exceed the book value at the time of the sale of such ABL Priority Collateral.

Certain covenants with respect to the Collateral

The Collateral will be pledged pursuant to the Security Documents, which contain provisions relating to identification of the Collateral and the maintenance of perfected Liens therein and which will be substantially

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similar to the security documents securing the ABL Obligations. The following is a summary of some of the covenants and provisions set forth in the Security Documents and the Indenture as they relate to the Collateral.

Maintenance of Collateral

The Security Documents and/or the Indenture, subject to certain exceptions, will provide that the Issuer and the Guarantors shall maintain the Collateral that is material to the conduct of their respective business in good, safe and insurable operating order, condition and repair (ordinary wear and tear excepted). The Security Documents and/or the Indenture also will provide, subject to certain exceptions, that the Issuer and the Guarantors shall pay all real estate and other taxes (except such as are contested in good faith and by appropriate negotiations or proceedings), and maintain in full force and effect all material permits and certain insurance coverages, except where failure to maintain such permits or insurance coverages is not adverse in any material respect to the Holders.

After-acquired property

Upon the acquisition by any of the Issuer or the Guarantors of any assets (other than Excluded Assets), including, but not limited to, any equipment or fixtures which constitute accretions, additions or technological upgrades to the equipment or fixtures or any working capital assets that, in any such case, form part of the Collateral, the Issuer or such Guarantor shall execute and deliver (to the extent required by the Indenture and/or the Security Documents) any information, documentation and financing statements or other certificates as may be necessary to vest in the Notes Collateral Agent a perfected security interest, with the priority required by the Indenture, the Security Documents and the Intercreditor Agreement, subject only to Permitted Liens, in such after-acquired property and to have such after-acquired property added to the Collateral, and thereupon all provisions of the Indenture, the Security Documents and the Intercreditor Agreement relating to the Collateral shall be deemed to relate to such after-acquired property to the same extent and with the same force and effect.

Further assurances

To the extent required under the Indenture or any of the Security Documents, the Issuer and the Guarantors shall execute any and all further documents, financing statements, agreements and instruments, and take all further actions that may be required under applicable law, or that the Notes Collateral Agent or the Trustee may reasonably request, in order to grant, preserve, protect and perfect the validity and priority of the security interests and Liens created or intended to be created by the Security Documents in the Collateral. In addition, to the extent required under the Indenture or any of the Security Documents, from time to time, the Issuer and the Guarantors will reasonably promptly secure the obligations under the Indenture and Security Documents by pledging or creating, or causing to be pledged or created, perfected security interests and Liens with respect to the Collateral to the extent required by the Indenture and/or the Security Documents.

Impairment of security interest

Neither the Issuer nor any of its Restricted Subsidiaries will (i) take or omit to take any action which would materially adversely affect or impair the Liens in favor of the Notes Collateral Agent and the Holders of Notes with respect to the Collateral or (ii) grant any Person, or permit any Person to retain (other than the ABL Collateral Agent and the Notes Collateral Agent), any Liens on the Collateral (other than Liens not prohibited by the Indenture, the Notes, the Guarantees, the Security Documents and the Intercreditor Agreement). The Issuer and each Guarantor will, at its sole cost and expense, execute and deliver all such agreements and instruments as necessary, or as the Trustee or the Notes Collateral Agent reasonably requests, to more fully or accurately describe the assets and property intended to be Collateral or the obligations intended to be secured by the Security Documents.

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Negative pledge

The Indenture will provide that the Issuer and each Guarantor will not, and the Issuer will not permit any of its Restricted Subsidiaries to, further pledge the Collateral as security or otherwise, subject to Permitted Liens. The Issuer, however, will have the ability under the Indenture to issue additional Pari Passu Notes Lien Indebtedness, Pari Passu ABL Lien Indebtedness and Junior Lien Indebtedness, all of which may be secured by the Collateral (subject to compliance by the Issuer with the covenants described under “—Certain covenants—Limitation on additional indebtedness” and “—Limitation on liens”).

Foreclosure

Upon the occurrence and during the continuance of an Event of Default, but subject in all cases to the terms of the Intercreditor Agreement, the Security Documents will provide for (among other available remedies) the sale of, or other realization upon, the applicable Collateral by the Notes Collateral Agent and the distribution of the net proceeds of any such sale in accordance with the Indenture, subject to any prior Liens on the Collateral and the provisions of the Intercreditor Agreement. The Intercreditor Agreement will provide, among other things, that (1) the second-priority Liens on the ABL Priority Collateral securing the Notes will be junior to the Liens securing the ABL Obligations and, consequently, the secured parties thereunder (or any holders of other Pari Passu ABL Lien Indebtedness), including the lenders or their affiliates under the ABL Credit Agreement with whom the Issuer and the Guarantors have incurred certain Hedging Obligations and obligations under Specified Cash Management Agreements, will be entitled to receive the proceeds from the disposition of any such ABL Priority Collateral prior to the Holders and (2) certain procedures for enforcing the Liens on the Collateral be followed. In the event of realization on the Collateral, the proceeds from the sale of the Collateral may not be sufficient to satisfy in full the Issuer’s obligations under the Notes.

Certain bankruptcy limitations

The right of the Notes Collateral Agent to repossess and dispose of the Collateral upon the occurrence of an Event of Default would be significantly impaired by applicable bankruptcy or other insolvency laws in the event that a bankruptcy case were to be commenced by or against the Issuer or any Guarantor prior to the Notes Collateral Agent having repossessed and disposed of the Collateral. Upon the commencement of a case for relief under the Bankruptcy Code, a secured creditor such as the Notes Collateral Agent is prohibited from repossessing its security from a debtor in a bankruptcy case, or from disposing of security repossessed from the debtor or any other Collateral, without bankruptcy court approval.

In view of the broad equitable powers of a U.S. bankruptcy court, it is impossible to predict how long payments under the Notes could be delayed following commencement of a bankruptcy case, whether or when the Notes Collateral Agent could repossess or dispose of the Collateral, the value of the Collateral at the time of the bankruptcy petition or whether or to what extent Holders would be compensated for any delay in payment or loss of value of the Collateral. The Bankruptcy Code permits only the payment and/or accrual of post-petition interest, costs and attorneys’ fees to a secured creditor during a debtor’s bankruptcy case to the extent the value of the Collateral is determined by the bankruptcy court to exceed the aggregate outstanding principal amount of the obligations secured by the Collateral.

Furthermore, in the event a bankruptcy court determines that the value of the Collateral is not sufficient to repay all amounts due on the Notes, the Holders would hold secured claims to the extent of the value of the Collateral to which the Holders are entitled, and unsecured claims with respect to such shortfall.

In addition, creditors of the Issuer or any Guarantor may seek to challenge the grant of the Collateral to the Notes Collateral Agent as a fraudulent conveyance under the Bankruptcy Code and applicable state law. If such a challenge were successful, the Liens may be avoided, leaving Holders with unsecured claims against the

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applicable entities. See “Risk factors—Risks related to the notes and our other indebtedness—Federal and state fraudulent transfer laws may permit a court to void the notes, the guarantees and/or the security interests, and if that occurs, you may not receive any payments on the notes.”

Information regarding Collateral

The Issuer will furnish to the Notes Collateral Agent, with respect to the Issuer or any Guarantor, promptly (and in any event within no more than thirty days following such change) written notice of any change in such Person’s (1) legal name, (2) jurisdiction of organization or formation, (3) identity or corporate structure or (4) legal identification number. The Issuer and the Guarantors will take all necessary action so that the Lien in favor of the Notes Collateral Agent pursuant to the Indenture and/or the Security Documents is perfected with the same priority as immediately prior to such change to the extent required by the Indenture and/or the Security Documents. The Issuer also agrees promptly to notify the Notes Collateral Agent if any material portion of the Collateral is damaged, destroyed or condemned.

Each year, within 120 days after the end of the preceding fiscal year, the Issuer shall deliver to each of the Trustee and the Notes Collateral Agent a certificate of a financial officer setting forth the information required pursuant to the schedules required by the Indenture and/or the Security Documents or confirming that there has been no change in such information since the date of the prior annual certification and an Opinion of Counsel as to continuation of perfected security interests. The Trustee and the Notes Collateral Agent will have no obligation to maintain or monitor the perfection of liens.

Refinancings of the ABL Credit Agreement and the Notes

The ABL Obligation, the obligations under any future Pari Passu ABL Lien Indebtedness or Pari Passu Notes Lien Indebtedness and the obligations under the Indenture and the Notes may be refinanced or replaced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is otherwise required to permit the refinancing transaction under the ABL Credit Agreement or any security document related thereto, agreements governing any Pari Passu ABL Lien Indebtedness, agreements governing any Pari Passu Lien Indebtedness or under the Indenture and the Security Documents) of the ABL Collateral Agent, the Notes Collateral Agent or the Holder of any Notes, all without affecting the Lien priorities provided for in the Security Documents and the Intercreditor Agreement; provided, however, that the lenders providing or holders of any such refinancing or replacement indebtedness (or an authorized agent or trustee on their behalf) bind themselves in writing to the terms of the Intercreditor Agreement pursuant to a written agreement (including amendments or supplements to the Intercreditor Agreement).

In addition, if at any time in connection with or after the discharge of the ABL Obligations, the Issuer enters into any replacement of the ABL Credit Agreement secured by all or a portion of the ABL Priority Collateral on a first-priority basis and the Notes Priority Collateral on a second-priority basis, then such prior discharge of ABL Obligations shall automatically be deemed not to have occurred for all purposes of the Intercreditor Agreement, the Indenture and the Security Documents. During the period the ABL Credit Agreement is not in existence, except as provided under “—Collateral—Release of Collateral,” the Notes and the Guarantees will be secured by a first-priority lien, subject to Permitted Liens, in all of the Collateral.

In connection with any refinancing or replacement contemplated by the foregoing paragraph, the Intercreditor Agreement may be amended at the request and sole expense of the Issuer, and without the consent of the ABL Collateral Agent, the Notes Collateral Agent, the Holder of any Notes or any other secured party, (a) to add parties (or any authorized agent or trustee therefor) providing any such refinancing or replacement indebtedness in compliance with the ABL Credit Agreement, Pari Passu ABL Lien Indebtedness, Pari Passu Notes Lien Indebtedness and the Indenture and (b) to establish that Liens on any Collateral securing such refinancing or replacement Indebtedness shall have the same priority (or junior priority) or, if the ABL Credit

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Agreement, agreements governing any Pari Passu ABL Lien Indebtedness, agreements governing any Pari Passu Lien Indebtedness and the Indenture so permit, senior priority, as the Liens on any Collateral securing the Indebtedness being refinanced or replaced, all on the terms provided for in the Indenture, the Security Documents and the Intercreditor Agreement immediately prior to such refinancing or replacement. See “—Amendment, supplement and waiver.”

Perfection of Collateral

Certain security interests or liens in the Collateral may not be in place on the Issue Date or may not be perfected on the Issue Date. The Indenture will provide that the Issuer shall, or shall cause the applicable Guarantor to execute and deliver to the Notes Collateral Agent, as beneficiary, such Security Documents, and any supplements or amendments related thereto, together with evidence of the completion (or arrangements for the completion) of all recordings and filings of such Security Documents in the proper recorders’ offices or appropriate public records (and payment of any taxes or fees in connection therewith) as may be necessary to create a valid, perfected Lien, on or against the Collateral within a certain number days after the Issue Date (to the extent required by the Indenture and/or the Security Documents); provided, however that the Indenture will not require that security interests be perfected if such security interests cannot be perfected by the filing of UCC financing statements, the recording of security agreements with the U.S. Patent and Trademark Office and the U.S. Copyright Office, the recording of mortgages or deeds of trust, the taking possession of any pledged Collateral with necessary endorsements or the execution of control agreements with respect to certain deposit accounts, securities accounts and commodities accounts; provided, further, that the Issuer and the Guarantors shall be relieved of any further obligation to deliver control agreements so long as the ABL Collateral Agent or agents or bailees of the ABL Collateral Agent maintain a perfected Lien for the benefit of the Holders of Notes through control of such deposit accounts, securities accounts and commodities accounts pursuant to a control agreement. To the extent that either the ABL Collateral Agent or Notes Collateral Agent holds, or a third party holds on its respective behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the ABL Documents or the Security Documents, as applicable, such possession or control is also for the benefit of the Notes Collateral Agent and the Holders of the Notes or the ABL Collateral Agent and the holders of the ABL Obligations, as applicable, and the ABL Collateral Agent and the Notes Collateral Agent, as applicable, shall act as gratuitous bailee and non-fiduciary agent solely to the extent required to perfect their security interest in such Common Collateral.

Optional redemption

General

At any time or from time to time on or after                  , 2026, the Issuer, at its option, may redeem the Notes, in whole or in part, upon notice as described under the heading “—Selection and notice of redemption,” at the redemption prices (expressed as percentages of principal amount of the Notes to be redeemed) set forth below, together with accrued and unpaid interest thereon, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the redemption date), if redeemed during the periods indicated:

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In addition, at any time prior to                , 2026, during each twelve-month period beginning on the Issue Date, the Issuer, at its option, may redeem up to 10% of the aggregate principal amount of the Notes outstanding, upon notice as described under the heading “—Selection and notice of redemption,” at a purchase price equal to 103.0% of the aggregate principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the redemption date).

Redemption with proceeds from equity offerings

At any time or from time to time prior to                  , 2026, the Issuer, at its option, may, on any one or more occasions, redeem up to 35.0% of the principal amount of the outstanding Notes issued under the Indenture (including any Additional Notes issued after the Issue Date), upon notice as provided in the Indenture, with cash in an amount not greater than the net cash proceeds of one or more Qualified Equity Offerings at a redemption price equal to         % of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the redemption date); provided that:

Redemption at applicable premium

The Notes may also be redeemed, in whole or in part, at any time or from time to time prior to                 , 2026 at the option of the Issuer, upon notice as provided in the Indenture, at a redemption price equal to 100.0% of the principal amount of the Notes redeemed, plus the Applicable Premium, and accrued and unpaid interest thereon, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the redemption date).

The Issuer will calculate the Treasury Rate and Applicable Premium and, prior to the redemption date, provide an Officers’ Certificate to the Trustee setting forth the Treasury Rate and the Applicable Premium and showing the calculation of each in reasonable detail.

Selection and notice of redemption

In the event that less than all of the Notes are to be redeemed at any time pursuant to an optional redemption, the Trustee will select the Notes for redemption on a pro rata basis (except that any Notes represented by a global note will be selected for redemption by such method as the DTC may require); provided, however, that no Notes of a principal amount of $2,000 in original principal amount or less shall be redeemed in part.

Notice of optional redemption will be delivered to the Holders at least 15, but not more than 60, days before the date of redemption, except that redemption notices may be delivered more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Any notice of redemption may, at the Issuer’s discretion, be subject to one or more conditions precedent. If such redemption is subject to satisfaction of one or more conditions precedent, such notice will

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describe each such condition, and if applicable, will state that, in the Issuer’s discretion, the redemption date may be delayed until such time (including more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions are satisfied (or waived by the Issuer in its sole discretion), or that such redemption may not occur and such notice may be rescinded in the event that any or all such conditions are not satisfied (or waived by the Issuer in its sole discretion) by the redemption date, or by the redemption date as so delayed, or that such notice may be rescinded at any time in the Issuer’s discretion if as determined in good faith by the Issuer, any or all of such conditions will not be satisfied. The Issuer will provide the Trustee with written notice of the satisfaction or waiver of such conditions precedent, the delay of such redemption or the rescission of such notice of redemption in the same manner that the related notice of redemption was given to the Trustee, and the Trustee will send a copy of such notice to the Trustee to the Holders in the same manner that the related notice of redemption was given to such Holders. In addition, the Issuer may provide in such notice that payment of the redemption price and performance of the Issuer’s obligations with respect to such redemption may be performed by another Person.

The notice of redemption with respect to a redemption described under “—Optional redemption—Redemption at applicable premium” need not set forth the Applicable Premium but only the manner of calculation thereof. If any Note is to be redeemed in part only, the notice of redemption that relates to that Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the Holder of the Note upon cancellation of the original Note. On and after the applicable date of redemption, unless the Issuer defaults in the payment of the redemption price, interest will cease to accrue on Notes or portions thereof called for redemption so long as the Issuer has deposited with the Paying Agent for the Notes funds in satisfaction of the applicable redemption price (including accrued and unpaid interest on the Notes to be redeemed) pursuant to the Indenture.

For purposes of any redemption described under “—Optional redemption” or any repurchase described under “Repurchase at the option of Holders” such provisions shall only apply to Notes that have been separated from Units in accordance with the separation procedures discussed in “Description of the Units—Separation of units at the option of the holder” and “Description of the Units—Automatic Unit Separation Date” (the “Separated Notes”). In order to participate in any such redemption or repurchase prior to the Automatic Unit Separation Date, holders of Notes must have voluntarily separated their Units prior to the date of any notice of redemption or any offer to repurchase commencement date.

Mandatory redemption

The Issuer is not required to make mandatory redemption or sinking fund payments with respect to the Notes. The Issuer may acquire Notes by means other than a redemption, whether pursuant to a tender offer, open market purchase, negotiated transaction or otherwise, in accordance with applicable securities laws.

Repurchase at the option of Holders

Change of Control

Upon the occurrence of any Change of Control, unless the Issuer has previously or concurrently exercised its right to redeem all of the Notes as described under “—Optional redemption,” each Holder will have the right, except as provided below, to require that the Issuer purchase all or any portion (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes for a cash price (the “Change of Control Purchase Price”) equal to 101.0% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase.

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Not later than 30 days following any Change of Control, the Issuer will deliver, or cause to be delivered, to the Holders, with a copy to the Trustee, a notice:

On or before the Change of Control Payment Date, the Issuer will, to the extent lawful:

The Paying Agent will promptly deliver to each Holder who has so tendered Notes the Change of Control Purchase Price for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes so tendered, if any; provided that each such new Note will be in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof.

If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.

A Change of Control Offer will be required to remain open for at least 20 Business Days or for such longer period as is required by law. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the date of purchase.

If a Change of Control Offer is made, there can be no assurance that the Issuer will have available funds sufficient to pay for all or any of the Notes that might be delivered by Holders seeking to accept the Change of Control Offer. See “Risk factors—Risks related to the notes and our other indebtedness—We may not be able to repurchase the notes upon a change of control.” In addition, in the event of a Change of Control the Issuer may not be able to obtain the consents necessary to consummate a Change of Control Offer from the lenders under agreements governing outstanding Indebtedness which may prohibit the offer. If the Issuer fails to repurchase all of the Notes tendered for purchase upon a Change of Control, such failure will constitute an Event of Default. In addition, the occurrence of certain of the events which would constitute a Change of Control may constitute an event of default under the ABL Credit Agreement and may constitute an event of default under other existing or future Indebtedness. Moreover, the exercise by the Holders of their right to require the Issuer to purchase the Notes could cause a default under such Indebtedness, even if the Change of Control itself does not, due to the financial effect of the repurchase on the Issuer. Finally, the Issuer’s ability to pay cash to the Holders upon a Change of Control may be limited by its then existing financial resources.

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The provisions described above that require the Issuer to make a Change of Control Offer following a Change of Control will be applicable regardless of whether any other provisions of the Indenture are applicable to the transaction giving rise to the Change of Control. The Change of Control purchase feature of the Notes may in certain circumstances make more difficult or discourage a sale or takeover of the Issuer and, thus, the removal of incumbent management. The Change of Control purchase feature is a result of negotiations between the Issuer and the initial purchasers. The Issuer does not have the present intention to engage in a transaction involving a Change of Control, although it is possible that the Issuer could decide to do so in the future. Subject to the limitations discussed below, the Issuer could, in the future, enter into certain transactions, including acquisitions, refinancing or other recapitalizations, that would not constitute a Change of Control under the Indenture, but that could increase the amount of Indebtedness outstanding at such time or otherwise effect the Issuer’s capital structure or credit ratings. Restrictions on the Issuer’s ability to incur additional Indebtedness are contained in the covenants described under “—Certain covenants—Limitation on additional indebtedness” and “—Certain covenants—Limitation on liens.” Except as described above with respect to a Change of Control, the Indenture does not contain provisions that permit the Holders to require that the Issuer purchase or redeem the Notes in the event of a takeover, recapitalization or similar transaction.

The Issuer will not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under such Change of Control Offer or (ii) in connection with or in contemplation of any publicly announced Change of Control, the Issuer has made an offer to purchase (an “Alternate Offer”) any and all Notes validly tendered at a cash price equal to or higher than the Change of Control Purchase Price and has purchased all Notes properly tendered in accordance with the terms of the Alternate Offer.

If Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer or Alternate Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer or an Alternate Offer, as applicable, to redeem all Notes that remain outstanding following such purchase at a redemption price in cash equal to the applicable Change of Control Purchase Price or an Alternate Offer price, as applicable, plus, to the extent not included in the Change of Control Payment or an Alternate Offer price, as applicable, accrued and unpaid interest, if any, to, but excluding, the date of redemption.

With respect to any disposition of assets, the phrase “all or substantially all” as used in the Indenture (including as set forth under the definition of “Change of Control” and “—Certain covenants—Limitation on mergers, consolidations, etc.” below) varies according to the facts and circumstances of the subject transaction, has no clearly established meaning under New York law (which governs the Notes and the Indenture) and is subject to judicial interpretation. Accordingly, there may be a degree of uncertainty in ascertaining whether a particular transaction would involve a disposition of “all or substantially all” of the assets of the Issuer and the Restricted Subsidiaries, and therefore it may be unclear as to whether a Change of Control has occurred and whether the Holders have the right to require the Issuer to purchase Notes.

The Issuer will comply with all applicable securities legislation in the United States, including, without limitation, the requirements of Rule 14e-1 under the Exchange Act and any other applicable laws and regulations in connection with the purchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with the “Change of Control” provisions of the Indenture, the Issuer shall comply with the applicable securities laws and regulations and will not be

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deemed to have breached its obligations under the “Change of Control” provisions of the Indenture by virtue of such compliance.

The provisions under the Indenture relating to the Issuer’s obligation to make a Change of Control Offer may be waived, modified or terminated with the written consent of the Holders of a majority in principal amount of the Notes then outstanding.

Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.

Excess Cash Flow Offer

On each Excess Cash Flow Offer Date (or, if such date does not fall on a Business Day, the next Business Day following such date), the Issuer shall make an offer (an “Excess Cash Flow Offer”) to all Holders of Notes and, if required by the terms of any Pari Passu Notes Lien Indebtedness, to any Holders of any Pari Passu Notes Lien Indebtedness to purchase, prepay or redeem, together on a pro rata basis, the maximum principal amount of Notes and any such Pari Passu Notes Lien Indebtedness (plus all accrued interest (including additional interest, if any) on the Notes and any such Pari Passu Notes Lien Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed using an amount of cash equal to the Excess Cash Flow Amount, if any; provided that the Issuer shall not be required to make an Excess Cash Flow Offer if on such Excess Cash Flow Offer Date the Issuer would not be able to satisfy the Payment Conditions (as defined in the ABL Credit Agreement as in effect on the Issue Date or any equivalent term in the ABL Credit Agreement as in effect from time to time) in respect of an Excess Cash Flow Offer and any purchase, prepayment or redemption of Notes or any such Pari Passu Notes Lien Indebtedness in respect thereof.

The offer price in any Excess Cash Flow Offer will be equal to 100% of the aggregate principal amount of the Notes and any such Pari Passu Notes Lien Indebtedness (or, in respect of any such Pari Passu Notes Lien Indebtedness, such lesser price, if any, as may be provided for by the terms of such Pari Passu Notes Lien Indebtedness), plus accrued and unpaid interest and additional interest, if any, to, but excluding, the date of purchase, prepayment or redemption, subject to the rights of holders of Notes or any such Pari Passu Notes Lien Indebtedness on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of purchase, prepayment or redemption, and will be payable in cash. If the aggregate principal amount of Notes or any such Pari Passu Notes Lien Indebtedness tendered in such Excess Cash Flow Offer exceeds the maximum principal amount of Notes and any such Pari Passu Notes Lien Indebtedness the Issuer offers to purchase in such Excess Cash Flow Offer, the Trustee will select the Notes and the Issuer will select any such Pari Passu Notes Lien Indebtedness to be purchased on a pro rata basis (except that any Notes or any such Pari Passu Notes Lien Indebtedness represented by a global note will be selected by such method as DTC or its nominee or successor may require), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in minimum denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased).

The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the purchase of the Notes or any such Pari Passu Notes Lien Indebtedness pursuant to an Excess Cash Flow Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in the Indenture by virtue thereof.

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Asset sales

(A) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Sale of Collateral unless:

(1) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by way of any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at least equal to the Fair Market Value (such Fair Market Value to be determined as of the date of contractually agreeing to such Asset Sale) of the Collateral subject to such Asset Sale;

(2) at least 75.0% of the consideration from such Asset Sale received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of (A) cash, (B) Cash Equivalents, (C) Replacement Assets of a type which would constitute (x) Notes Priority Collateral in the case of an Asset Sale of Notes Priority Collateral or (y) ABL Priority Collateral in the case of an Asset Sale of ABL Priority Collateral (which in both cases are thereupon with their acquisition added to the Collateral securing the notes) or (D) any combination of the foregoing; and

(3) to the extent that any consideration from such Asset Sales received by the Issuer or such Restricted Subsidiary, as the case may be, constitutes securities or other assets that are of a type or class that constitute Collateral, such securities or other assets, including the assets of any Person that becomes a Guarantor as a result of such transaction, are concurrently with their acquisition added to the Collateral securing the Notes (as Notes Priority Collateral or ABL Priority Collateral, as applicable) in the manner provided for in the Indenture or any of the Security Documents.

In the case of any Asset Sale of Collateral pursuant to a condemnation, seizure, appropriation or similar taking, including by deed in lieu of condemnation, or any actual or constructive total loss or an agreed or compromised total loss, such Asset Sale shall not be required to satisfy the requirements of clause (1) or (2) above.

If at any time any non-cash consideration received by the Issuer or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale of Collateral is repaid or converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Available Proceeds thereof shall be applied in accordance with this covenant.

Subject to the terms of the Intercreditor Agreement, within 365 days of the date of such Asset Sale of Collateral, the Issuer or any Guarantor, as the case may be, may (1) use any Net Available Proceeds received from Asset Sales of ABL Priority Collateral to repay, redeem, retire, defease, replace, refinance or repurchase any ABL Obligations, (2) use any Net Available Proceeds received from Asset Sales of Notes Priority Collateral to repay, redeem, retire, defease, replace, refinance or repurchase Secured Obligations; provided that if the Issuer or a Restricted Subsidiary repays, redeems or repurchases any Secured Obligations other than the Notes, the Issuer or such Restricted Subsidiary must equally and ratably redeem or repurchase (or offer to repurchase) the Notes, at the Issuer’s option, as provided for under “—Optional redemption,” through open market purchases (to the extent such purchases are at a purchase price at or above 100% of the principal amount thereof plus accrued and unpaid interest, if any) or by making an offer to all holders to purchase their Notes at 100% of the principal amount thereof, plus accrued and unpaid interest (and such offer shall be deemed for purposes of this covenant to be a use of proceeds from an Asset Sale equal to the aggregate amount of Net Available Proceeds offered to the Holders of Notes, whether or not the offer is accepted by any or all Holders of Notes), or (3) invest any Net Available Proceeds received from Asset Sales of Collateral in Replacement Assets that would constitute (x) Notes Priority Collateral in the case of an Asset Sale of Notes Priority Collateral and (y) ABL Priority Collateral or Notes Priority Collateral in the case of an Asset Sale of ABL Priority Collateral, which Replacement Assets are thereupon with their acquisition added to the Collateral securing the Notes; provided that the

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Replacement Assets shall not include the Equity Interests of Foreign Subsidiaries for purposes of the requirement unless the relevant Asset Sale consisted of the sale of Equity Interests of a Foreign Subsidiary.

Any Net Available Proceeds from Asset Sales of Collateral that are not applied or invested as provided in this subsection (A) will be deemed to constitute “Excess Collateral Proceeds.” When the aggregate amount of Excess Collateral Proceeds exceeds $30.0 million, the Issuer will be required to make an offer (a “Collateral Disposition Offer”) to all Holders of Notes to purchase the maximum principal amount of the Notes (on a pro rata basis, except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require) and, if required by the terms of any other Pari Passu Notes Lien Indebtedness, to the holders of such Pari Passu Notes Lien Indebtedness (on a pro rata basis), to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such other Pari Passu Notes Lien Indebtedness, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, in accordance with the procedures set forth in the Indenture in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof with respect to the Notes. To the extent that the aggregate amount of Notes so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer (together with, if required by the terms of any other Pari Passu Notes Lien Indebtedness, the amount of Pari Passu Notes Lien Indebtedness tendered pursuant to any similar requirement), is less than the Excess Collateral Proceeds, the Issuer may use any remaining Excess Collateral Proceeds for general corporate purposes, subject to the other covenants contained in the Indenture. If the aggregate principal amount of Notes surrendered by Holders of the Notes and, if required by the holders of Pari Passu Notes Lien Indebtedness, holders of any Pari Passu Notes Lien Indebtedness exceeds the amount of Excess Collateral Proceeds, the Notes and Pari Passu Notes Lien Indebtedness to be purchased shall be selected on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes Lien Indebtedness. Upon completion of such Collateral Disposition Offer, the amount of Excess Collateral Proceeds shall be reset at zero. The Issuer may make a Collateral Disposition Offer if Excess Collateral Proceeds are less than $30.0 million and prior to 365 days after an Asset Sale of Collateral. Notwithstanding the foregoing, to the extent that any Net Available Proceeds or Excess Collateral Proceeds are required to be applied to prepay Indebtedness under the ABL Credit Agreement or other Pari Passu ABL Lien Indebtedness, the Issuer may make a prepayment with respect to such Indebtedness out of such Net Available Proceeds or Excess Collateral Proceeds, at a price in cash in an amount equal to 100% of the principal amount of such Indebtedness, plus accrued and unpaid interest, if any, to, but excluding, the date of prepayment (and correspondingly reduce commitments with respect to the ABL Credit Agreement or other Pari Passu ABL Lien Indebtedness if such repayment is made with the proceeds of Note Priority Collateral).

Pending the final application of any such Net Available Proceeds in accordance with the third and fourth paragraphs of this subsection (A), the Issuer and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Proceeds in any manner not prohibited by the Indenture.

(B) The Issuer will not, and will not permit any Restricted Subsidiary to, make any Asset Sale (other than Asset Sales of Collateral, which shall be treated in the manner set forth in subsection (A) above) unless:

(1) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by way of any other Person assuming sole responsibility for, any liabilities, contingent or otherwise) at least equal to the Fair Market Value (such Fair Market Value to be determined as of the date of contractually agreeing to such Asset Sale) of the Equity Interest or assets subject to such Asset Sale;

(2) either (x) at least 75.0% of the consideration from such Asset Sale received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or a combination thereof or (y) the Fair Market Value of the aggregate of all non-cash consideration for all Asset Sales since

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the Issue Date would not exceed 5.0% of the Consolidated Net Tangible Assets of the Issuer after giving effect to such Asset Sale,

(a) in the case of any Asset Sale pursuant to a condemnation, seizure, appropriation or similar taking, including by deed in lieu of condemnation, or any actual or constructive total loss or an agreed or compromised total loss, such Asset Sale shall not be required to satisfy the requirements of clause (1) or (2) above;

(b) if at any time any non-cash consideration received by the Issuer or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is repaid or converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Available Proceeds thereof shall be applied in accordance with this covenant; and

(3) within 365 days following such Asset Sale, an amount equal to 100% of the Net Available Proceeds from such Asset Sale is applied by the Issuer or such Restricted Subsidiary, as the case may be, as follows (it being understood that actions under clause (b), (c) or (d) may occur prior to actions under clause (a) during such 365-day period):

(a) to the extent the Issuer or such Restricted Subsidiary elects (or is required by the terms of any Indebtedness), to prepay, repay or purchase Indebtedness (other than Disqualified Equity Interests or Subordinated Indebtedness) (in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer, unless such Affiliate only sells its pro rata portion of any Notes acquired by the Issuer in any open market purchases or pursuant to any offer to purchase Notes) within 365 days after the date of such Asset Sale;

(b) to the extent the Issuer or such Restricted Subsidiary elects to acquire all or substantially all of the properties and assets of a Person in a Permitted Business, to acquire any capital stock of a Person in a Permitted Business if said Person becomes a Restricted Subsidiary, to acquire other assets that are used or useful in a Permitted Business, to make an Investment in assets that will be used or useful in a Permitted Business or to reinvest in assets of or usable in a Permitted Business (including equity securities of a Permitted Business) (including by means of an investment in such assets by a Restricted Subsidiary with Net Available Proceeds received by the Issuer or another Restricted Subsidiary) within 365 days from the date of such Asset Sale (provided that any assets so acquired will become part of the Collateral as (x) Notes Priority Collateral to the extent such assets are of the type that would constitute Notes Priority Collateral or (y) ABL Priority Collateral to the extent such assets are of the type that would constitute ABL Priority Collateral securing the Notes);

(c) to the extent the Issuer or such Restricted Subsidiary elects to make an investment in a capital expenditure used or useful in a Permitted Business within 365 days after the date of such Asset Sale; provided that to the extent such investment is of a type which would constitute Collateral, such investment is thereupon added to the Collateral as (x) Notes Priority Collateral to the extent such investments is of the type that would constitute Notes Priority Collateral or (y) ABL Priority Collateral to the extent such investment is of the type that would constitute ABL Priority Collateral securing the Notes;

(d) to make an offer to purchase the Notes and any Pari Passu Indebtedness with similar asset sale provisions, pro rata at 100% of the tendered principal amount thereof (or 100% of the accreted value of such other Pari Passu Indebtedness so tendered, if such Pari Passu Indebtedness was offered at a discount) plus accrued and unpaid interest, if any, to, but excluding, the purchase date; and

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(e) to the extent of the balance of such Net Available Proceeds after application in accordance with clauses (a), (b), (c) and (d) above, to fund (to the extent consistent with any other applicable provision of the Indenture) any corporate purpose;

provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (a) or (d) above, the Issuer or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased (other than Indebtedness under an asset-based debt facility, so long as the asset sold in such Asset Sale constituted part of the borrowing base of such facility prior to such Asset Sale); provided, further, that pending the final application of any such Net Available Proceeds in accordance with this clause (3), the Issuer and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Proceeds in any manner not prohibited by the Indenture.

In the case of the third paragraph of the preceding subsection (A) or clause (3)(b) of this subsection (B), if, during the 365-day period following the date of the Asset Sale, the Issuer or such Restricted Subsidiary enters into a written agreement committing it to apply such Net Available Proceeds in accordance with the requirements of the third paragraph of the preceding subsection (A) or clause (3)(b) of this subsection (B) after such 365-day period, then such 365-day period will be extended with respect to the amount of Net Available Proceeds so committed for a period not to exceed 180 days, until such Net Available Proceeds are required to be applied in accordance with such agreement (or, if earlier, until termination of such agreement) or has been applied toward such construction, as the case may be.

In the event of an Asset Sale that requires the purchase of Notes or in which the Issuer elects to purchase Notes pursuant to clause (B)(3)(d) above, the Issuer will be required to apply such Excess Proceeds (as defined below) to the repayment of the Notes and any other Pari Passu Indebtedness outstanding with similar provisions requiring the Issuer to make an offer to purchase such Indebtedness with the proceeds from any Asset Sale as follows:

(1) the Issuer will make an offer to purchase (a “Net Proceeds Offer”) within ten Business Days of such time from all Holders of Notes in accordance with the procedures set forth in the Indenture in the maximum principal amount of Notes that may be purchased out of an amount (the “Note Amount”) equal to the product of such Excess Proceeds multiplied by a fraction, the numerator of which is the outstanding principal amount of the Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and such Pari Passu Indebtedness; and

(2) to the extent required by such Pari Passu Indebtedness to permanently reduce the principal amount of such Pari Passu Indebtedness, the Issuer will make an offer to purchase or otherwise repurchase or redeem such Pari Passu Indebtedness (a “Pari Passu Offer”) in an amount equal to the excess of the Excess Proceeds over the Note Amount at a purchase price of 100% of their principal amount (or 100% of the accreted value of such Pari Passu Indebtedness, if such Pari Passu Indebtedness was offered at a discount) plus accrued and unpaid interest, if any, to, but excluding, to the purchase date in accordance with the procedures (including prorating in the event of oversubscription) set forth in the Indenture with respect to the Net Proceeds Offer and in the documentation governing such Pari Passu Indebtedness with respect to the Pari Passu Offer. If the aggregate purchase price of the Notes and Pari Passu Indebtedness tendered pursuant to the Net Proceeds Offer and Pari Passu Offer is less than the Excess Proceeds, the remaining Excess Proceeds will be available to the Issuer for use in accordance with clause (B)(3)(e) above. The Issuer shall only be required to make an Net Proceeds Offer for Notes pursuant to this covenant if the Net Available Proceeds available therefor (after application of the proceeds as provided in clauses (B)(3)(a), (B)(3)(b) and (B)(3)(c) above) (the “Excess Proceeds”) exceeds $30.0 million (and any lesser amounts shall

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be carried forward for purposes of determining whether an Net Proceeds Offer is required with respect to the Net Available Proceeds from any subsequent Asset Sale). Upon completion of any such Net Proceeds Offer, the amount of Excess Proceeds shall be reset at zero. The Issuer may make a Net Proceeds Offer if Excess Proceeds are less than $30.0 million and prior to 365 days after an Asset Sale.

The Collateral Disposition Offer or Net Proceeds Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Net Proceeds Offer Period”). No later than five Business Days after the termination of the Net Proceeds Offer Period (the “Net Proceeds Purchase Date”), the Issuer will purchase the principal amount of Notes, Pari Passu Notes Lien Indebtedness and Pari Passu Indebtedness, as applicable, required to be purchased pursuant to this covenant (the “Net Proceeds Offer Amount”) or, if less than the Net Proceeds Offer Amount has been so validly tendered and not properly withdrawn, all Notes, Pari Passu Notes Lien Indebtedness and Pari Passu Indebtedness, if applicable, validly tendered in response to the Collateral Disposition Offer or Net Proceeds Offer, as applicable.

If the Net Proceeds Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on such Net Proceeds Purchase Date to the Person in whose name a note is registered at the close of business on such record date, and no additional interest will be payable to Holders of Notes who tender Notes pursuant to the Collateral Disposition Offer or Net Proceeds Offer.

On or before the Net Proceeds Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Net Proceeds Offer Amount of Notes, Pari Passu Notes Lien Indebtedness and Pari Passu Indebtedness, as applicable, or portions of Notes, Pari Passu Notes Lien Indebtedness and Pari Passu Indebtedness, as applicable, so validly tendered and not properly withdrawn pursuant to the Collateral Disposition Offer or Net Proceeds Offer, or if less than the Net Proceeds Offer Amount has been validly tendered and not properly withdrawn, all Notes, Pari Passu Notes Lien Indebtedness and Pari Passu Indebtedness, as applicable, so validly tendered and not properly withdrawn, in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof in the case of the Notes. The Issuer or the applicable tender agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Net Proceeds Offer Period) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu Notes Lien Indebtedness or Pari Passu Indebtedness, as the case may be, an amount equal to the purchase price of the Notes, Pari Passu Notes Lien Indebtedness or Pari Passu Indebtedness so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase, and, in the case of Notes in non-global form, the Issuer will promptly issue a new Note, and the Trustee, upon delivery of an authentication order from the Issuer, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted will be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer will publicly announce the results of the Collateral Disposition Offer or Net Proceeds Offer, as the case may be, on the Net Proceeds Purchase Date.

For purposes of paragraphs (A)(2) and (B)(2) above and for no other purpose, the following shall be deemed to be cash:

(a) the amount (without duplication) of any liabilities (as shown on the Issuer’s or such Restricted Subsidiary’s most recent balance sheet) (other than Subordinated Indebtedness or intercompany Indebtedness) of the Issuer or such Restricted Subsidiary that is expressly assumed by the transferee of any such assets pursuant to a written agreement that releases the Issuer or such Restricted Subsidiary from further liability therefor;

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(b) the amount of any securities, notes or other obligations received from such transferee that are within 180 days after such Asset Sale converted by the Issuer or such Restricted Subsidiary into cash (to the extent of the cash actually so received);

(c) any assets or Equity Interests of the kind referred to in clause (B)(3)(b) and (B)(3)(c) of this covenant;

(d) accounts receivable of a business retained by the Issuer or any Restricted Subsidiary, as the case may be, following the sale of such business, provided that such accounts receivable (i) are not past due more than 60 days and (ii) do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable; and

(e) any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Issuer’s Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.

Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of the Indenture described under the caption “—Repurchase at the option of Holders—Change of Control” and/or the provisions described under the caption “—Limitation on mergers, consolidations, etc.” and not by the provisions of the Asset Sale covenant.

The Issuer shall reasonably determine in its sole discretion in good faith whether, and to what extent, the Net Available Proceeds of an Asset Sale is attributable to Notes Priority Collateral or ABL Priority Collateral or is invested in Notes Priority Collateral or ABL Priority Collateral, taking into account all relevant factors. In the event that ABL Priority Collateral and Notes Priority Collateral (and/or other assets not constituting Collateral) is disposed of in a single transaction or series of related transactions in which the aggregate sales price or purchase price is not allocated between the ABL Priority Collateral and Notes Priority Collateral (and/or other assets not constituting Collateral), including in connection with the sale of a Guarantor which owns assets constituting both ABL Priority Collateral and Notes Priority Collateral (and/or other assets not constituting Collateral), then, solely for purposes of the Indenture, the portion of the aggregate sales price deemed to be Net Available Proceeds from the ABL Priority Collateral, on the one hand, and Notes Priority Collateral, on the other hand (and/or proceeds of other assets not constituting Collateral), or the portion of the purchase price deemed to be invested in ABL Priority Collateral or Notes Priority Collateral, as the case may be (and/or other assets not constituting Collateral), shall be reasonably allocated by the Issuer in its sole discretion in good faith, taking into account all relevant factors.

The Issuer will comply with all applicable securities laws and regulations in the United States, including, without limitation, the requirements of Rule 14e-1 under the Exchange Act and any other applicable laws and regulations in connection with the purchase of Notes pursuant to a Collateral Disposition Offer or a Net Proceeds Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with the “Asset Sales” provisions of the Indenture, the Issuer shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the “Asset Sales” provisions of the Indenture by virtue of such compliance.

The provisions under the Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale under certain circumstances may be waived, modified or terminated with the written consent of the Holders of a majority in principal amount of the Notes then outstanding. See “—Amendment, modification and waiver.”

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The ABL Credit Agreement or agreements governing the Issuer’s other Indebtedness may contain prohibitions of certain events, including events that would constitute an Asset Sale. The exercise by the Holders of their right to require the Issuer to make a Collateral Disposition Offer or a Net Proceeds Offer could cause a default under these other agreements, even if the Asset Sale itself does not, due to the financial effect of such repurchases on the Issuer. In the event an Asset Sale occurs and the aggregate amount of Excess Collateral Proceeds or Excess Proceeds exceeds $30.0 million, in each case, at a time when the Issuer is prohibited from purchasing Notes, the Issuer could seek the consent of its senior lenders to the purchase of Notes or could attempt to refinance the borrowings that contain such prohibition. If the Issuer does not obtain a consent or repay those borrowings, the Issuer will remain prohibited from purchasing Notes. In that case, the Issuer’s failure to purchase tendered Notes would constitute an Event of Default under the Indenture, which could, in turn, constitute an Event of Default under the other Indebtedness. Finally, the Issuer’s ability to pay cash to the Holders upon a repurchase may be limited by the Issuer’s then existing financial resources.

For purposes of any redemption described under “—Optional redemption” or any repurchase described under “Repurchase at the option of Holders” such provisions shall only apply to Separated Notes. In order to participate in any such redemption or repurchase prior to the Automatic Unit Separation Date, holders of Notes must have voluntarily separated their Units prior to the date of any notice of redemption or any offer to repurchase commencement date.

Certain covenants

Effectiveness of covenants:

If:

then upon delivery by the Issuer to the Trustee of an Officers’ Certificate to the foregoing effect (the date of delivery of any such Officers’ Certificate, the “Suspension Date”), the Issuer and its Restricted Subsidiaries will thereafter, except as provided below, not be subject to the provisions of the Indenture summarized under the headings below:

(collectively, the “Suspended Covenants”). If at any time the Notes’ credit rating is downgraded from an Investment Grade Rating by both Rating Agencies, then the Suspended Covenants will thereafter be reinstated

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(the “Reinstatement Date”) and be applicable pursuant to the terms of the Indenture (including in connection with performing any calculation or assessment to determine compliance with the terms of the Indenture), unless and until another Suspension Date occurs; provided, however, that no Default, Event of Default or breach of any kind shall be deemed to exist under the Indenture, the Notes or the Guarantees with respect to the Suspended Covenants based on, and none of the Issuer or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring during the Suspension Period (as defined below), regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. The period of time between any Suspension Date and any Reinstatement Date is referred to as a “Suspension Period.”

On the Reinstatement Date, all Indebtedness incurred during the Suspension Period will be deemed to have been outstanding on the Issue Date so that it is classified under clause (3) of the second paragraph of “—Limitation on additional indebtedness” without regard to limitations therein, any Liens incurred during the Suspension Period will be deemed incurred under clause (27) of the definition of Permitted Liens without regard to the limitations therein, and any other contract or arrangement or Investment made or entered into during the Suspension Period will be deemed to have been in effect as of the Issue Date for purposes of the covenants described under “—Limitation on dividends and other restrictions affecting restricted subsidiaries,” and “—Limitation on transactions with affiliates” and the definition of “Permitted Investments.” With respect to Restricted Payments made after the Reinstatement Date, the amount of Restricted Payments made will be calculated as under “—Limitation on restricted payments” the covenant described under “—Limitation on restricted payments” had been in effect prior to, but not during, the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will not reduce the amount available to be made as Restricted Payments under the first paragraph of “—Limitation on restricted payments.” During any Suspension Period and until a Reinstatement Date, the dollar amount in the Restricted Payments Basket shall remain fixed at the dollar amount that was available as of the Suspension Date that commenced such Suspension Period.

During any period when the Suspended Covenants are suspended, the Board of Directors of the Issuer may not designate any of the Issuer’s Subsidiaries as Unrestricted Subsidiaries pursuant to the Indenture.

Promptly following the occurrence of any Suspension Date or Reinstatement Date, the Issuer will provide an Officers’ Certificate to the Trustee regarding such occurrence. The Trustee shall have no obligation to (a) monitor the rating of the Notes, (b) independently determine or verify if a Suspension Date or Reinstatement Date has occurred, (c) notify the Holders of any Suspension Date or Reinstatement Date or (d) determine the consequences thereof. The Trustee may provide a copy of such Officers’ Certificate to any Holder of the Notes upon request. There can be no assurance that the Notes will ever achieve an Investment Grade Rating or that any such rating will be maintained.

Limitation on additional indebtedness

The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness); provided that the Issuer or any Guarantor may incur additional Indebtedness (including Acquired Indebtedness), in each case, if, after giving effect thereto on a pro forma basis (including giving pro forma effect to the application of the proceeds thereof), the Issuer’s Consolidated Interest Coverage Ratio would be at least 2.00 to 1.00 (the “Coverage Ratio Exception”).

Notwithstanding the above, each of the following incurrences of Indebtedness shall be permitted (the “Permitted Indebtedness”):

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(a) the Notes issued on the Issue Date (excluding any Additional Notes) and the related Guarantees of the Notes;

(b) additional Pari Passu Notes Lien Indebtedness in an aggregate principal amount (including any other then-outstanding Pari Passu Notes Lien Indebtedness (other than the Notes)) not to exceed an amount such that, after giving effect to such incurrence and the use of proceeds thereof, the Pari Passu Lien Leverage Ratio would not exceed 2.0 to 1.0; and

(c) Junior Lien Indebtedness in an aggregate principal amount (including any other then-outstanding Junior Lien Indebtedness) not to exceed an amount such that, after giving effect to such incurrence and the use of proceeds thereof, the Total Secured Leverage Ratio would not exceed 2.5 to 1.0;

provided, further, that in the case of clauses 2(b) and 2(c) above, either (i) the Issuer would have been able to incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception or (ii) the Consolidated Interest Coverage Ratio of the Issuer and its Restricted Subsidiaries would be greater than or equal to such Consolidated Interest Coverage Ratio immediately prior to such incurrence;

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(ii) any sale or other transfer of any such Indebtedness to a Person other than the Issuer or any other Restricted Subsidiary shall be deemed, in each case of this clause (c), to constitute an incurrence of such Indebtedness not permitted by this clause (6);

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For purposes of determining compliance with this covenant, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (16) above or is entitled to be incurred pursuant to the Coverage Ratio Exception, the Issuer shall, in its sole discretion, classify such item of Indebtedness and may divide and classify such Indebtedness in more than one of the types of Indebtedness described (except that Indebtedness incurred under the ABL Credit Agreement on the Issue Date shall be deemed to have been incurred under clause (1) above and may not be reclassified) and may later reclassify any item of Indebtedness described in clauses (1) through (16) above (provided that at the time of reclassification it meets the criteria in such category or categories). In addition, for purposes of determining any particular amount of Indebtedness under this covenant, (i) guarantees, Liens or letter of credit obligations supporting Indebtedness otherwise included in the determination of such particular amount shall not be included so long as incurred by a Person that could have incurred such Indebtedness; and (ii) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP.

The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms will not be deemed to be an incurrence of Indebtedness of this covenant; provided, in each such case, that the amount thereof is included in Consolidated Interest Expense of the Issuer as accrued.

For the purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness denominated in a foreign currency, the U.S. dollar-equivalent principal amount of such Indebtedness incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the earlier of the date that such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.

If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under this “—Limitation on additional indebtedness” covenant, the Issuer shall be in Default of this covenant).

Limitation on restricted payments

The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:

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(a) 50.0% of Consolidated Net Income of the Issuer and its Restricted Subsidiaries for the period (taken as one accounting period) commencing on January 1, 2023 (or, if such Consolidated Net Income shall be a deficit, minus 100.0% of such deficit), plus

(b) 100.0% of the aggregate net cash proceeds received by the Issuer or its Restricted Subsidiaries on or after the Issue Date as a contribution to the Issuer’s common equity capital or from the issue or sale of Qualified Equity Interests of the Issuer, plus

(c) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made by the Issuer after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to 100.0% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment, plus

(d) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.

Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph will not prohibit:

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provided that no issuance and sale of Qualified Equity Interests used to make a payment pursuant to clauses (2) or (5)(B) above shall increase the Restricted Payments Basket to the extent of such payment.

For the purposes of determining compliance with any U.S. dollar-denominated restriction on Restricted Payments denominated in a foreign currency, the U.S. dollar-equivalent amount of such Restricted Payment shall be calculated based on the relevant currency exchange rate in effect on the date that such Restricted Payment was made. The amount of any Restricted Payment (other than cash) will be the Fair Market Value on the date of the Restricted Payment (or, in the case of a dividend, on the date of declaration) of the assets or securities proposed to be transferred or issued by the Issuer or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.

Limitation on dividend and other restrictions affecting restricted subsidiaries

The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:

(a) pay dividends or make any other distributions on or in respect of its Equity Interests to the Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Equity Interests);

(b) make loans or advances, or pay any Indebtedness or other obligation owed, to the Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Indebtedness or obligations incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or

(c) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above);

except for, in each case:

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Limitation on transactions with affiliates

The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”) involving aggregate payments or consideration to or from the Issuer or a Restricted Subsidiary in excess of $5.0 million with respect to any single transaction or series of related transactions, unless:

The foregoing restrictions shall not apply to:

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Limitation on liens

The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or permit or suffer to exist any Lien (an “Initial Lien”) of any kind (other than Permitted Liens) upon any of their property or assets (including Equity Interests of any Restricted Subsidiary), whether owned at the Issue Date or thereafter acquired, which Lien secures Indebtedness, unless:

(A) if the Issuer or any Guarantor, directly or indirectly, shall create, incur, assume or permit or suffer to exist any Lien of any kind upon any of their property or assets (including Equity Interests of any Subsidiary), whether owned at the Issue Date or thereafter acquired, (x) in the case of Liens securing any of the ABL Obligations, Pari Passu ABL Lien Indebtedness or Pari Passu Notes Lien Indebtedness, the Issuer or such Guarantor, as the case may be, shall, contemporaneously with the incurrence of such Lien, grant at least a first- or second-priority Lien consistent with the relative Lien priority set forth in the Intercreditor Agreement subject to Permitted Liens, upon such property or asset as security for the Notes and the Guarantees pursuant to the Intercreditor Agreement and any other applicable intercreditor agreement, (y) in the case of Liens securing Junior Lien

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Obligations, the Issuer or such Guarantor, as the case may be, shall, contemporaneously with the incurrence of such Lien, grant a priority Lien relative to such Junior Lien Obligations subject to Permitted Liens, upon such property or asset as security for the Notes and the Guarantees pursuant to the Junior Lien Intercreditor Agreement or other applicable intercreditor agreement and (z) to the extent the Issuer or any Guarantor incurs a Lien on any Material Real Property in respect of any Indebtedness (other than pursuant to a Permitted Lien), the Issuer or any such Guarantor shall grant a lien on such Material Real Property for the Notes and the Guarantees that is of at least pari passu lien priority with the Lien securing such other Indebtedness and which mortgage or deed of trust, as applicable, in favor of the Notes Collateral Agent, contains customary terms including customary changes to account for the role of the Notes Collateral Agent and shall provide to the Notes Collateral Agent such other documents as are required to be delivered in connection with the mortgages and deeds of trust securing such other Indebtedness; and

(B) any such Lien granted to secure the Notes pursuant to clause (B) above on property or assets (which property or assets would not otherwise constitute Collateral other than as required by clause (B) above) shall be automatically and unconditionally released and discharged in all respects upon (i) the release and discharge of the other Lien to which it relates (except a release and discharge upon payment of the obligation secured by such Lien during the pendency of any Default or Event of Default under the Indenture, in which case such Liens shall only be discharged and released upon payment of the Notes or cessation of such Default or Event of Default) or (ii) in the case of any such Lien in favor of any Guarantee, upon the termination and discharge of such Guarantee in accordance with the terms of the Indenture.

Notwithstanding the foregoing, the Issuer and the Guarantors shall not be required to grant a Lien as security for the Notes on any Excluded Securities Collateral.

Limitation on designation of unrestricted subsidiaries

The Board of Directors of the Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary or a Person becoming a Subsidiary through merger or consolidation or Investment therein) of the Issuer as an “Unrestricted Subsidiary” under the Indenture (a “Designation”) only if:

No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless:

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Any such Designation by the Board of Directors of the Issuer shall be evidenced to the Trustee by filing with the Trustee a resolution of the Board of Directors of the Issuer giving effect to such Designation and an Officers’ Certificate certifying that such Designation complies with the foregoing conditions. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of the Indenture and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under the covenant described under “—Limitation on additional indebtedness” or the Lien is not permitted under the covenant described under “—Limitation on liens,” the Issuer shall be in default of the applicable covenant.

The Board of Directors of the Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:

Any such Redesignation shall be evidenced to the Trustee by filing with the Trustee an Officers’ Certificate certifying that such Redesignation complies with the foregoing conditions.

Limitation on mergers, consolidations, etc.

The Issuer will not, directly or indirectly, in a single transaction or a series of related transactions, consolidate, or merge with or into another Person (whether or not the Issuer is the surviving Person), or sell, lease, transfer, convey or otherwise dispose of or assign all or substantially all of the assets of the Issuer and its Restricted Subsidiaries (taken as a whole) to any Person unless:

(a) the Issuer will be the surviving or continuing Person; or

(b) the Person (if other than the Issuer) formed by or surviving or continuing from such consolidation or merger or to which such sale, lease, transfer, conveyance or other disposition or assignment shall be made (collectively, the “Successor”) is a corporation, limited liability company or limited partnership organized and existing under the laws of the United States or of any State of the United States or the District of Columbia, and the Successor expressly assumes, by agreements in form and substance reasonably satisfactory to the Trustee, all of the obligations of the Issuer under the Notes, the Indenture, the Security

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Documents and the Intercreditor Agreement and the Successor shall cause such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to such Successor, together with such financing statements or comparable documents as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the Uniform Commercial Code or other similar statute or regulation of the relevant states or jurisdictions; provided that if the Successor is not a corporation, a Restricted Subsidiary that is a corporation expressly assumes as co-obligor all of the obligations of the Issuer under the Indenture and the Notes pursuant to a supplemental indenture to the Indenture executed and delivered to the Trustee;

For purposes of this covenant, any Indebtedness of the Successor which was not Indebtedness of the Issuer immediately prior to the transaction shall be deemed to have been incurred in connection with such transaction.

Except in circumstances under which the Indenture provides for the release of the Guarantee of a Guarantor as described under the caption “—Guarantees,” no Guarantor will, and the Issuer will not permit any Guarantor to, directly or indirectly, consolidate or merge with or into another Person (whether or not the Guarantor is the surviving Person), unless either:

(a) (i) such Guarantor will be the surviving or continuing Person; or (ii) the Person (if other than such Guarantor) formed by or surviving any such consolidation or merger is the Issuer or another Guarantor or assumes, by agreements in form and substance reasonably satisfactory to the Trustee, all of the obligations of such Guarantor under the Guarantee of such Guarantor and the Indenture, the Security Documents and the Intercreditor Agreement and the successor Guarantor shall cause such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to such successor Guarantor, together with such financing statements or comparable documents as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the Uniform Commercial Code or other similar statute or regulation of the relevant states or jurisdictions;

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(b) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and

(c) the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such merger or consolidation and such agreements and/or supplemental indenture (if any) comply with the Indenture; or

For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Issuer, the Equity Interests of which constitute all or substantially all of the properties and assets of the Issuer, will be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.

Upon any consolidation or merger of the Issuer or a Guarantor, or any transfer of all or substantially all of the assets of the Issuer in accordance with the foregoing, in which the Issuer or such Guarantor is not the continuing obligor under the Notes or its Guarantee, as applicable, the surviving entity formed by such consolidation or merger or into which the Issuer or such Guarantor is merged or the Person to which the sale, conveyance, lease, transfer, disposition or assignment is made will succeed to, and be substituted for, and may exercise every right and power of, the Issuer or such Guarantor under the Guarantee, the Indenture, the Security Documents and the Intercreditor Agreement, as the case may be, with the same effect as if such surviving entity had been named therein as the Issuer or such Guarantor and, except in the case of a lease, the Issuer or such Guarantor, as the case may be, will be released from the obligation to pay the principal of and interest on the Notes or in respect of its Guarantee, as the case may be, and all of the Issuer’s or such Guarantor’s other obligations and covenants under the Notes or its Guarantee, as the case may be, the Indenture, the Security Documents and the Intercreditor Agreement.

Notwithstanding the foregoing, (i) any Restricted Subsidiary may consolidate or merge with or into or convey, transfer, sell, dispose, assign or lease, in one transaction or a series of transactions, all or substantially all of its assets to the Issuer or another Restricted Subsidiary and (ii) the Issuer or any Guarantor may (a) consolidate or merge with or into or convey, transfer or lease, in one transaction or a series of transactions, all or part of its properties and assets to the Issuer or another Guarantor or (b) merge with a Restricted Subsidiary of the Issuer solely, with respect to this clause (b) for the purpose of reincorporating the Issuer or Guarantor in a State of the United States or the District of Columbia.

Additional guarantees

If any Restricted Subsidiary of the Issuer that is not already a Guarantor shall guarantee any Indebtedness of the Issuer or any Guarantor under any Debt Facility (including the ABL Credit Agreement but excluding the Canadian Borrower’s obligations in respect thereof), then the Issuer shall, within 30 days thereof, cause such Restricted Subsidiary to execute and deliver to the Trustee a supplemental indenture in form and substance satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall become a Guarantor with respect to the Notes, upon the terms and subject to the release provisions and other limitations described under “—Guarantees.”

Each Restricted Subsidiary that becomes a Guarantor on or after the Issue Date shall, also within five Business Days thereof, become a party to the applicable Security Documents, the Intercreditor Agreement and, to the extent required by the Indenture, shall as promptly as practicable execute and deliver such security instruments, financing statements, certificates, Officers’ Certificates and Opinions of Counsel (to the extent, and

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substantially in the form, delivered on the Issue Date) as may be necessary to vest in the Notes Collateral Agent a perfected first- or second-priority security interest, as the case may be (subject to Permitted Liens), in properties and assets that constitute Collateral as security for the Notes or the Guarantees and as may be necessary to have such property or asset added to the applicable Collateral as required under the Security Documents and the Indenture, and thereupon all provisions of the Indenture relating to the Collateral shall be deemed to relate to such properties and assets to the same extent and with the same force and effect.

Notwithstanding the foregoing, a Foreign Subsidiary is not required to become a Guarantor hereunder if the accession of such Subsidiary as a Guarantor could reasonably be expected (in good faith by the Issuer but in its sole determination) to result in material adverse tax consequences to the Issuer and its Restricted Subsidiaries and so long as the Holders’ ability to receive payment in full with respect to the Obligations under the Indenture and the Notes will not be impaired (it being understood that the materiality of such adverse tax consequences of guaranteeing the Notes by such Foreign Subsidiary shall be analyzed with respect to the incremental tax burden of the guarantee of the Notes and not the initial guarantee of Indebtedness by such Foreign Subsidiary).

Reports

Whether or not required by the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and the Holders, or, to the extent permitted by the SEC, file electronically with the SEC through the SEC’s Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”) (or any successor system) within the time periods specified in the SEC’s rules and regulations after giving effect to any applicable grace periods therein:

provided that the above information will not be required to contain (a) the separate financial information for Guarantors as contemplated by Rule 3-10 of Regulation S-X, (b) any financial statements of unconsolidated subsidiaries or 50% or less owned persons as contemplated by Rule 3-09 of Regulation S-X, (c) any information contemplated by Rule 3-16 of Regulation S-X, (d) any schedules required by Regulation S-X, or (e) in each such case, any successor provisions. If the Issuer becomes a Subsidiary of any parent company, which parent company provides a guarantee of the Notes, then the reports required to be filed pursuant to this covenant by the Issuer may instead by filed by such parent in lieu thereof.

If the Issuer has designated any of its Subsidiaries as Unrestricted Subsidiaries, and such Unrestricted Subsidiaries, individually or taken together, would constitute a Significant Subsidiary, then the quarterly and annual financial information required by the preceding paragraph will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition and Results of Operations, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries excluding the Unrestricted Subsidiaries.

So long as any Notes are outstanding (unless restricted by law, including in connection with any proposed securities offering), the Issuer will also:

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To the extent the Issuer is not required to file any of the reports required by this covenant with the SEC, the Issuer shall (i) maintain a public website on which the reports required by this covenant are posted along with details regarding the times and dates of conference calls required above and information on how to obtain access to such conference calls or (ii) file such reports electronically with the SEC through EDGAR (or any successor system).

Any and all Defaults arising from a failure to furnish in a timely manner any information or notice required by this covenant shall be deemed cured (and the Issuer shall be deemed to be in compliance with this covenant) upon furnishing such information or notice as contemplated by this covenant (but without regard to the date on which such information or notice is so furnished).

Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt thereof shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including the Issuer’s, any Guarantor’s or any other person’s compliance with any of the covenants under the Indenture or the Notes (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee will not be obligated to monitor or confirm, on a continuing basis or otherwise, the Issuer’s, any Guarantor’s or any other person’s compliance with any of the covenants described herein or to determine whether such reports, information or documents have been posted on any website or other online data system or filed with the SEC through EDGAR (or other applicable system) or to participate in any conference calls.

Events of default

Each of the following is an “Event of Default”:

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and, in each case, the principal amount of such Indebtedness, together with the principal amount of any other Indebtedness with respect to which an event described in clause (a) or (b) has occurred and is continuing, aggregates $50.0 million or more, and in any such case, such Indebtedness is not repaid or such failure to pay is not cured or such acceleration is not rescinded, annulled or otherwise cured within 30 days;

(a) any Security Document or any obligation under the Intercreditor Agreement is held in any judicial proceeding to be unenforceable or invalid in any material respect or ceases for any reason to be in full force and effect in any material respect, other than in accordance with the terms of the Indenture, the relevant Security Documents or the Intercreditor Agreement; provided that it will not be a Default if the sole result is that any Lien with a fair market value of not more than $20.0 million ceases to be enforceable;

(b) with respect to any Collateral having a fair market value in excess of $20.0 million, individually or in the aggregate, (x) the failure of the security interest with respect to such Collateral under the Security Documents, at any time, to be in full force and effect in any material respect for any reason other than in

accordance with the terms of the relevant Security Documents and the terms of the Indenture or the Intercreditor Agreement, as applicable, and other than the satisfaction in full of all obligations under the Indenture and discharge of the Indenture if such failure continues for 60 days or (y) the assertion by the Issuer or any Guarantor, in any pleading in any court of competent jurisdiction, that any such security interest is invalid or unenforceable; provided that it will not be an Event of Default if such condition results from the action or inaction of the Trustee or the Notes Collateral Agent; or

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(c) the Issuer or any Subsidiary that is a Guarantor (or any such Guarantors that taken together would constitute a Subsidiary), or any Person acting on behalf of any of them, denies or disaffirms, in writing, any material obligation of the Issuer or such Subsidiary that is a Guarantor (or such Guarantors that taken together would constitute a Subsidiary) set forth in or arising under the Indenture, the Intercreditor Agreement or any Security Document.

If an Event of Default (other than an Event of Default specified in clause (7) above with respect to the Issuer), shall have occurred and be continuing under the Indenture, the Trustee, by written notice to the Issuer, or the Holders of at least 25.0% in aggregate principal amount of the Notes then outstanding by written notice to the Issuer and the Trustee, may declare (an “acceleration declaration”) all principal of and accrued and unpaid interest on the Notes to be due and payable. Upon such acceleration declaration, the aggregate principal of and accrued and unpaid interest on the outstanding Notes shall become due and payable immediately; provided, however, that after such acceleration, but before a judgment or decree based on acceleration, the Holders of a majority in aggregate principal amount of such outstanding Notes may rescind and annul such acceleration if all Events of Default, other than the nonpayment of accelerated principal and interest, have been cured or waived as provided in the Indenture. If an Event of Default specified in clause (8) occurs with respect to the Issuer, the aggregate principal of and accrued and unpaid interest on all outstanding Notes shall become due and payable without any further action or notice to the extent permitted by applicable law.

Holders of the Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may withhold from Holders of the Notes notice of any Default (except an Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest.

The Holders of a majority in principal amount of the then outstanding Notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction (it being understood that the Trustee does not have an affirmative duty to determine whether or not any such direction is unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction) and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of Notes. A Holder may not pursue any remedy with respect to the Indenture or the Notes (subject to the Intercreditor Agreement) unless:

However, such limitations do not apply to the contractual right of any Holder of a Note to receive payment of the principal of, premium, if any, or interest on, such Note or to bring suit for the enforcement of any such payment, on or after the due date expressed in the Notes, which right will not be modified without the consent of the Holder.

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The Holders of a majority in aggregate principal amount of the Notes then outstanding by written notice to the Trustee and the Notes Collateral Agent may, on behalf of the Holders of all of the Notes, waive any existing Default and its consequences under the Indenture except a continuing Default in the payment of interest or premium, or the principal of, the Notes.

The Issuer is required to deliver to the Trustee and the Notes Collateral Agent annually a statement regarding compliance with the Indenture and, within 30 days after any Officer of the Issuer becomes aware of any Default, a statement specifying such Default and what action the Issuer is taking or proposes to take with respect thereto. The Issuer will also be obligated to notify the Trustee of any default or defaults in the performance of any covenants or agreements under the Indenture.

Pursuant to the terms of the Intercreditor Agreement, prior to the discharge of the first-priority Liens securing the ABL Obligations, the Holders of the Notes will not be able to direct the Notes Collateral Agent with respect to the enforcement of the ABL Priority Collateral.

In the case of an Event of Default under the Indenture and the acceleration of the Notes, the Units will immediately separate as described in “Description of the units—Automatic Unit Separation Date” and the Units shall be cancelled.

Legal defeasance and covenant defeasance

The Issuer may, at its option and at any time, elect to have its obligations discharged with respect to the outstanding Notes and all obligations of any Guarantors discharged with respect to their Guarantees (“Legal Defeasance”). Legal Defeasance means that the Issuer and the Guarantors shall be deemed to have paid and discharged the entire obligations represented by the Notes and the Guarantees, and the Indenture shall cease to be of further effect as to all outstanding Notes and Guarantees, except as to:

If the Issuer exercises the Legal Defeasance option, the Liens on the Collateral will be released and the Guarantees in effect at such time will automatically be released.

In addition, the Issuer may, at its option and at any time, elect to have its obligations and the obligations of the Guarantors released with respect to the provisions of the Indenture described above under “—Repurchase at the option of Holders—Change of Control” and under “—Certain covenants” (other than the covenant described under “—Certain covenants—Limitation on mergers, consolidations, etc.,” except to the extent described below) and the limitation imposed by clause (3) under “—Certain covenants—Limitation on mergers, consolidations, etc.” (such release and termination being referred to as “Covenant Defeasance”), and thereafter any omission to comply with such obligations or provisions will not constitute a Default. The Issuer may exercise its Legal Defeasance option regardless of whether it previously exercised Covenant Defeasance. If the Issuer exercises the Covenant Defeasance option, the Liens on the Collateral will be released and the Guarantees in effect at such time will automatically be released.

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In order to exercise either Legal Defeasance or Covenant Defeasance:

(a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or

(b) since the Issue Date, there has been a change in the applicable U.S. federal income tax law,

in either case to the effect that, and based thereon this Opinion of Counsel shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred,

If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the Issuer’s obligations and the obligations of the Guarantors under the Indenture will be revived and no such defeasance will be deemed to have occurred.

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Satisfaction and discharge

The Indenture and the Security Documents will be discharged and will cease to be of further effect (except as to rights, protections and immunities of the Trustee and the Notes Collateral Agent) as to all outstanding Notes and security granted for the Notes and the Guarantees when either:

(a) the Issuer has paid all other sums payable by it under the Indenture, and

(b) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at maturity or on the date of redemption, as the case may be.

In addition, the Issuer must deliver an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent to satisfaction and discharge of the Indenture have been complied with. Upon the satisfaction and discharge of the Indenture, all Collateral securing the Notes and the Guarantees will be automatically released (without the need for any action by any party).