8-K
Core Molding Technologies Inc (CMT)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 27, 2020
Core Molding Technologies,
Inc.
(Exact name of registrant as specified in its charter)
Delaware
001-12505
31-1481870
(State or other Jurisdiction
of Incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
800 Manor Park Drive
Columbus, Ohio
43228-0183
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s telephone number,
including area code: (614) 870-5000
(Former name or former address if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of
the registrant under any of the following provisions:
☐
Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d
-2(b) under the Exchange Act (17 CFR 240.14d-
2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange on which
registered
Common Stock, par value $0.01
CMT
NYSE American LLC
Preferred Stock purchase rights, par value
$0.01
N/A
NYSE American LLC
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the
Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b
-2 of the Securities Exchange Act of 1934 (§ 240.12b-
2 of this chapter). Emerging growth company
☐
If an emerging growth company,
indicate by check mark if the registrant has elected not to
use the extended
transition period for complying with any new or revised financial accounting
standards provided pursuant to Section
13(a) of the Exchange Act
Item 1.01 Entry into a Material Definitive Agreement.
On October 27,
2020, Core Molding
Technologies, Inc.
(the “Company”)
entered into a
Credit Agreement
(the “Credit
Agreement”) with
Wells
Fargo Bank,
National Association,
as
administrative agent, lead arranger and
book runner, and the lenders party
thereto (the “Lenders”).
Unless otherwise
defined herein,
defined terms
shall have
the meanings
set forth
in the
Credit
Agreement.
Pursuant to the terms
of the Credit
Agreement, the Lenders
made available to the
Company
secured loans (the
“Wells
Fargo Loans”) in
the maximum aggregate
principal amount of
$43,500,000, consisting
of (i)
a revolving
loan commitment
of $25,000,000
(approximately
$8,745,000 of
which was
advanced to
the Company
on October
28, 2020)
and (ii)
term loan
commitments of $18,500,000
($16,790,000 of which
was advanced to
the Company on
October
28, 2020).
The Credit Agreement also makes available to the Company an incremental revolving
commitment in the maximum amount of $10,000,000 at the Company’s option at any time during
the three (3) year period following the Closing.
Such revolving loan commitment terminates, and
all outstanding borrowings thereunder
must be repaid, on
October 27, 2024, and
such term loans
are to be
repaid in monthly
installments with the
remaining outstanding balance
due on October
27, 2024, in
each case subject
to certain optional
and mandatory repayment
terms.
The Company’s
obligations under the Credit Agreement and the
Loans are unconditionally guaranteed by each of
the Company’s
U.S. and Canadian
subsidiaries, with such
obligations of the
Company and such
subsidiaries being secured by a lien on substantially all of their U.S. and Canadian assets.
In connection
with the funding
of the Wells
Fargo Loans, FGI
Equipment Finance LLC
advanced to the Company
on October 27, 2020,
pursuant to a Master
Security Agreement, dated
as of
October 20,
2020 (the
“Security Agreement”),
among FGI
Equipment Finance
LLC, the
Company as
debtor, and
each of
Core Composites
Corporation, a
subsidiary of
the Company
organized in Delaware, and CC HPM, S.
de R.L. de C.V., a subsidiary of the Company
organized
in Mexico, as guarantors, a
term loan in the principal
amount of $13,200,000 (the “FGIEF
Loan”),
which loan is evidenced by
that certain Promissory Note dated October
20, 2020 (the “FGI Note”)
and secured by
certain machinery and
equipment of
the guarantors located
in Mexico,
and real
property of
Corecomposites de
Mexico, S.
de R.L. de
C.V.,
also a
subsidiary of
the Company
organized in Mexico, located in Matamoros, Mexico.
The proceeds of
the Wells
Fargo Loans and
the FGIEF Loans
were used in
part to repay
all existing outstanding
indebtedness of the
Company owing to
KeyBank National Association,
and to pay certain
fees and expenses associated
with the transactions contemplated
by the Credit
Agreement and the Security
Agreement, and will be used
to finance the ongoing general
corporate
needs of the Company.
The Credit Agreement
and the Security
Agreement, together with
the FGI Note,
contain
certain customary representations and
warranties, conditions, affirmative and
negative covenants
and events of defaults.
The foregoing descriptions of the Credit
Agreement, the Security Agreement and the
FGI
Note do not
purport to be
complete and are
qualified in their
entirety by reference
to the Credit
Agreement, the Security Agreement and the FGI Note,
a copy of which are attached to
this Form
8-K as Exhibit
10.1, Exhibit 10.2
and Exhibit 10.3,
respectively, and
are incorporated herein
by
reference.
Item 1.02 Termination
of a Material Definitive Agreement.
On October 28, 2020, the Company repaid in full all indebtedness of the Company and its
subsidiary, Horizon
Plastics International Inc.
(totaling $36,392,704.20) under
that certain
Amended and Restated Credit Agreement, originally dated as of January 16, 2018,
with KeyBank
National Association (“Key”)
as the administrative
agent and various
other financial institutions
thereto as lenders
(as amended as of
March 14, 2019,
the “Prior Credit
Agreement”). In connection
with such repayment,
the liens and
security interests granted
in connection with
the Prior Credit
Agreement were
released (other
than certain
security interests
held by
Key with
respect to
deposits).
The foregoing description of
the Prior Credit Agreement
does not purport to
be complete
and is qualified
in its entirety
by reference to
Exhibit 10.1 to
the Company’s
Current Report on
Form 8-K, as filed with the
Commission on January 19, 2018. Such
descriptions and exhibits are
incorporated by reference herein.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant.
The disclosures contained above under Item 1.01 are incorporated herein by reference.
Item 9.01Financial Statements and Exhibits.
(d) Exhibits
Exhibit
Number
Description
SIGNATURE
Pursuant to the
requirements of the
Securities Exchange Act
of 1934, the
registrant has duly
caused
this report to be signed on its behalf by the undersigned hereunto duly authorized.
CORE MOLDING TECHNOLOGIES, INC.
By:
/s/ John P.
Zimmer
Name: John P.
Zimmer
Title: Vice
President, Treasurer, Secretary
and Chief Financial Officer
Date:
November 2, 2020
ex101
CREDIT AGREEMENT
by and among
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as Agent,
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as Lead Arranger,
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as Book Runner,
THE LENDERS THAT ARE PARTIES
HERETO
as the Lenders,
CORE MOLDING TECHNOLOGIES, INC.
as a Borrower
Dated as of October 27, 2020
1.
DEFINITIONS AND CONSTRUCTION. ........................................................................
1
1.1.
Definitions ...................................................................................................................1
1.2.
Accounting Terms .....................................................................................................61
1.3.
Code; PPSA ...............................................................................................................62
1.4.
Construction ..............................................................................................................62
1.5.
Time References .......................................................................................................63
1.6.
Schedules and Exhibits .............................................................................................63
1.7.
Divisions ...................................................................................................................63
1.8.
Exchange Rates; Currency Equivalents; Applicable Currency .................................63
1.9.
Quebec Interpretation ................................................................................................64
2.
LOANS AND TERMS OF PAYMENT.
........................................................................ 64
2.1.
Revolving Loans. ......................................................................................................64
2.2.
Term Loans ...............................................................................................................65
2.3.
Borrowing Procedures and Settlements. ...................................................................67
2.4.
Payments; Reductions of Commitments; Prepayments. ...........................................74
2.5.
Promise to Pay; Promissory Notes. ...........................................................................81
2.6.
Interest Rates and Letter of Credit Fee:
Rates, Payments, and Calculations. ..........82
2.7.
Crediting Payments ...................................................................................................83
2.8.
Designated Account ..................................................................................................84
2.9.
Maintenance of Loan Account; Statements of Obligations ......................................84
2.10.
Fees. ..........................................................................................................................84
2.11.
Letters of Credit. .......................................................................................................85
2.12.
LIBOR Option. ..........................................................................................................94
2.13.
Capital Requirements. ...............................................................................................97
2.14.
Incremental Facilities ................................................................................................99
2.15.
Currencies ...............................................................................................................100
2.16.
Joint and Several Liability of Borrowers. ...............................................................101
3.
CONDITIONS; TERM OF AGREEMENT. .................................................................
105
3.1.
Conditions Precedent to the Initial Extension of Credit .........................................105
3.2.
Conditions Precedent to all Extensions of Credit ...................................................105
3.3.
Maturity ...................................................................................................................105
3.4.
Effect of Maturity ....................................................................................................105
3.5.
Early Termination by Borrowers ............................................................................106
3.6.
Conditions Subsequent ............................................................................................106
4.
REPRESENTATIONS
AND WARRANTIES.
............................................................ 106
4.1.
Due Organization and Qualification; Subsidiaries. .................................................106
4.2.
Due Authorization; No Conflict. .............................................................................107
4.3.
Governmental Consents ..........................................................................................107
4.4.
Binding Obligations; Perfected Liens. ....................................................................108
4.5.
Title to Assets; No Encumbrances ..........................................................................108
4.6.
Litigation. ................................................................................................................108
4.7.
Compliance with Laws ............................................................................................108
4.8.
No Material Adverse Effect ....................................................................................109
4.9.
Solvency. .................................................................................................................109
4.10.
Employee Benefits ..................................................................................................109
4.11.
Environmental Condition ........................................................................................110
4.12.
Complete Disclosure ...............................................................................................110
4.13.
Patriot Act ...............................................................................................................111
4.14.
Indebtedness ............................................................................................................111
4.15.
Payment of Taxes ....................................................................................................111
4.16.
Margin Stock ...........................................................................................................111
4.17.
Governmental Regulation .......................................................................................112
4.18.
OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws ............112
4.19.
Employee and Labor Matters ..................................................................................112
4.20.
Leases ......................................................................................................................113
4.21.
Eligible Accounts ....................................................................................................113
4.22.
Eligible Inventory ...................................................................................................113
4.23.
Location of Inventory and M&E .............................................................................113
4.24.
Inventory Records ...................................................................................................113
4.25.
Hedge Agreements ..................................................................................................113
5.
AFFIRMATIVE
COVENANTS. ..................................................................................
113
5.1.
Financial Statements, Reports, Certificates ............................................................113
5.2.
Reporting .................................................................................................................114
5.3.
Existence .................................................................................................................114
5.4.
Maintenance of Properties ......................................................................................114
5.5.
Taxes .......................................................................................................................114
5.6.
Insurance. ................................................................................................................114
5.7.
Inspection. ...............................................................................................................115
5.8.
Compliance with Laws ............................................................................................116
5.9.
Environmental .........................................................................................................116
5.10.
Disclosure Updates .................................................................................................117
5.11.
Formation of Subsidiaries .......................................................................................117
5.12.
Further Assurances ..................................................................................................118
5.13.
Location of Inventory and M&E; Chief Executive Office; Registered Office .......119
5.14.
OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws ............119
5.15.
Compliance with ERISA and the IRC ....................................................................119
5.16.
Canadian Compliance .............................................................................................120
6.
NEGATIVE
COVENANTS. .........................................................................................
120
6.1.
Indebtedness ............................................................................................................120
6.2.
Liens ........................................................................................................................120
6.3.
Restrictions on Fundamental Changes ....................................................................121
6.4.
Disposal of Assets ...................................................................................................121
6.5.
Nature of Business ..................................................................................................121
6.6.
Prepayments and Amendments ...............................................................................121
6.7.
Restricted Payments ................................................................................................122
6.8.
Accounting Methods ...............................................................................................123
6.9.
Investments .............................................................................................................123
6.10.
Transactions with Affiliates ....................................................................................123
6.11.
Use of Proceeds .......................................................................................................124
6.12.
Limitation on Issuance of Equity Interests .............................................................124
6.13.
Inventory or M&E with Bailees ..............................................................................124
6.14.
Employee Benefits ..................................................................................................124
6.15.
Canadian Employee Benefits ..................................................................................125
7.
FINANCIAL COVENANT........................................................................................... 125
8.
EVENTS OF DEFAULT.
............................................................................................. 126
8.1.
Payments .................................................................................................................126
8.2.
Covenants ................................................................................................................126
8.3.
Judgments ................................................................................................................127
8.4.
Voluntary
Bankruptcy, etc ......................................................................................127
8.5.
Involuntary Bankruptcy, etc ....................................................................................127
8.6.
Default Under Other Agreements ...........................................................................127
8.7.
Representations, etc ................................................................................................128
8.8.
Guaranty ..................................................................................................................128
8.9.
Security Documents ................................................................................................128
8.10.
Loan Documents .....................................................................................................128
8.11.
Change of Control ...................................................................................................128
9.
RIGHTS AND REMEDIES. .........................................................................................
128
9.1.
Rights and Remedies ...............................................................................................128
9.2.
Remedies Cumulative .............................................................................................129
10.
WAIVERS;
INDEMNIFICATION.
.............................................................................. 129
10.1.
Demand; Protest; etc ...............................................................................................129
10.2.
The Lender Group's Liability for Collateral ...........................................................129
10.3.
Indemnification .......................................................................................................130
11.
NOTICES. ..................................................................................................................... 131
12.
CHOICE OF LAW AND VENUE; JURY
TRIAL WAIVER;
JUDICIAL REFERENCE
PROVISION. .................................................................................................................
132
13.
ASSIGNMENTS AND PARTICIPATIONS;
SUCCESSORS. ....................................
135
13.1.
Assignments and Participations. .............................................................................135
13.2.
Successors ...............................................................................................................139
14.
AMENDMENTS; WAIVERS.
...................................................................................... 139
14.1.
Amendments and Waivers.
.....................................................................................139
14.2.
Replacement of Certain Lenders. ............................................................................141
14.3.
No Waivers; Cumulative Remedies ........................................................................142
15.
AGENT; THE LENDER GROUP.
............................................................................... 142
15.1.
Appointment and Authorization of Agent ..............................................................142
15.2.
Delegation of Duties ...............................................................................................143
15.3.
Liability of Agent ....................................................................................................143
15.4.
Reliance by Agent ...................................................................................................144
15.5.
Notice of Default or Event of Default .....................................................................144
15.6.
Credit Decision .......................................................................................................145
15.7.
Costs and Expenses; Indemnification .....................................................................145
15.8.
Agent in Individual Capacity ..................................................................................146
15.9.
Successor Agent ......................................................................................................146
15.10.
Lender in Individual Capacity .................................................................................147
15.11.
Collateral Matters. ...................................................................................................147
15.12.
Restrictions on Actions by Lenders; Sharing of Payments. ....................................149
15.13.
Agency for Perfection .............................................................................................150
15.14.
Payments by Agent to the Lenders .........................................................................150
15.15.
Concerning the Collateral and Related Loan Documents .......................................150
15.16.
Field Examination Reports; Confidentiality; Disclaimers by Lenders; Other
Reports and Information .........................................................................................151
15.17.
Several Obligations; No Liability ...........................................................................152
15.18.
Lead Arranger, and Book Runner ...........................................................................152
15.19.
Appointment for the Province of Quebec. ..............................................................152
16.
WITHHOLDING TAXES.
............................................................................................ 153
16.1.
Payments .................................................................................................................153
16.2.
Exemptions. .............................................................................................................153
16.3.
Reductions. ..............................................................................................................155
16.4.
Refunds ...................................................................................................................156
17.
GENERAL PROVISIONS. ...........................................................................................
156
17.1.
Effectiveness ...........................................................................................................156
17.2.
Section Headings .....................................................................................................156
17.3.
Interpretation ...........................................................................................................157
17.4.
Severability of Provisions .......................................................................................157
17.5.
Bank Product Providers ..........................................................................................157
17.6.
Debtor-Creditor Relationship ..................................................................................158
17.7.
Counterparts; Electronic Execution ........................................................................158
17.8.
Revival and Reinstatement of Obligations; Certain Waivers.
................................158
17.9.
Confidentiality. .......................................................................................................159
17.10.
Survival ...................................................................................................................160
17.11.
Patriot Act; Due Diligence ......................................................................................161
17.12.
Integration ...............................................................................................................161
17.13.
CMT as Agent for Borrowers .................................................................................162
17.14.
Acknowledgement and Consent to Bail-In of EEA Financial Institutions .............162
17.15.
Acknowledgement Regarding Any Supported QFCs .............................................163
17.16.
Judgment Currency .................................................................................................164
EXHIBITS AND SCHEDULES
Exhibit A-1 Form of Assignment and Acceptance
Exhibit B-1 Form of Borrowing Base Certificate
Exhibit B-2 Form of Bank Product Provider Agreement
Exhibit C-1 Form of Compliance Certificate
Exhibit J-1 Form of Joinder
Exhibit L-1 Form
of LIBOR Notice
Exhibit P-1 Form
of Perfection Certificate
Schedule A-1 Agent's Account
Schedule A-2 Authorized Persons
Schedule B-1 BRP/Navistar Project Cap
Ex
Schedule C-1 Commitments
Schedule D-1 Designated Account
Schedule E-2 Eligible
Real Property Collateral
Schedule E-3 Eligible
Mexican Account Debtors
Schedule P-1 Permitted
Investments
Schedule P-2 Permitted
Liens
Schedule R-1 Real
Property Collateral
Schedule 3.1 Conditions
Precedent
Schedule 3.6 Conditions
Subsequent
Schedule 4.1(b) Capitalization
of Borrowers
Schedule 4.1(c) Capitalization
of Borrowers' Subsidiaries
Schedule 4.1(d) Subscriptions,
Options, Warrants, Calls
Schedule 4.6(b) Litigation
Schedule 4.10 Employee Benefits
Schedule 4.11 Environmental
Matters
Schedule 4.14 Permitted
Indebtedness
Schedule 4.25 Location of Inventory and
M&E
Schedule 5.1 Financial Statements, Reports,
Certificates
Schedule 5.2 Collateral
Reporting
Schedule 6.5 Nature of Business
CREDIT AGREEMENT
THIS CREDIT
AGREEMENT
, is
entered into as
of October
27, 2020
by and
among the lenders identified on the signature pages hereof (each of such lenders,
together with its
successors and permitted
assigns, is referred
to hereinafter as
a "Lender", as that
term is hereinafter
further defined),
WELLS FARGO
BANK, NATIONAL
ASSOCIATION
, a national
banking
association, as administrative agent
for each member of
the Lender Group
and the Bank Product
Providers (in such
capacity, together
with its successors
and assigns in
such capacity,
"Agent"),
WELLS FARGO BANK, NATIONAL ASSOCIATION
, a national
banking association, as
lead
arranger (in such
capacity, together
with its
successors and
assigns in
such capacity,
the "Lead
Arranger"),
WELLS FARGO
BANK, NATIONAL
ASSOCIATION
, a national
banking
association, as
book runner
(in such
capacity, together
with its
successors and
assigns in
such
capacity, the "Book
Runner"),
CORE MOLDING TECHNOLOGIES, INC.
, a Delaware
corporation ("CMT"),
and those
additional Persons,
if any,
that are
joined as
a party hereto
by
executing the form of Joinder attached hereto as Exhibit J-1 (each, a "Borrower" and individually
and collectively, jointly and severally,
the "Borrowers").
The parties agree as follows:
1.
DEFINITIONS AND CONSTRUCTION.
1.1.
Definitions
.
As used
in this
Agreement, the
following terms
shall have
the
following definitions:
"Acceptable Appraisal" means, with respect to
an appraisal of Inventory,
M&E or
Real Property, the most recent appraisal of such property received by Agent (a) from an appraisal
company satisfactory to Agent,
(b) the scope and methodology
(including, to the extent
relevant,
any sampling procedure employed by
such appraisal company) of which
are satisfactory to Agent,
and (c) the results
of which are
satisfactory to Agent, in
each case, in
Agent's Permitted Discretion.
"Account" means an account
(as that term is
defined in the Code
or, to
the extent
applicable, the PPSA).
"Account Debtor" means
any Person who
is obligated on an
Account, chattel paper,
or a general intangible.
"Account Party"
has the
meaning specified
therefor in
Section 2.11(h)
of this
Agreement.
"Accounting Changes
"
means changes
in accounting
principles required
by the
promulgation of
any rule,
regulation, pronouncement
or opinion
by the
Financial Accounting
Standards Board of
the American Institute
of Certified Public
Accountants (or successor
thereto
or any agency with similar functions).
"Acquired Indebtedness" means
Indebtedness of a
Person whose assets
or Equity
Interests are
acquired by
a Loan
Party or
any of
its Subsidiaries
in a
Permitted Acquisition;
provided, that such
Indebtedness (a) is either
purchase money Indebtedness
or a Capital
Lease with
respect to M&E or mortgage financing with respect to Real Property, (b) was in existence prior to
the date
of such
Permitted Acquisition,
and (c)
was not
incurred in
connection with,
or in
contemplation of, such Permitted Acquisition.
"Acquisition" means (a) the purchase or other acquisition by a Person
or its
Subsidiaries of all or
substantially all of the
assets of (or any
division or business line of)
any other
Person, or (b) the purchase or other
acquisition (whether by means of a
merger, consolidation,
or
otherwise) by a Person or its Subsidiaries of all of the Equity Interests of any other Person.
"Additional Documents" has the meaning specified therefor in Section 5.12 of this
Agreement.
"Additional M/E Term
Loan" has the meaning specified therefo
r
in Section 2.2(a)
of this Agreement.
"Additional M/E Term Loan Amount" means $9,000,000 less the then outstanding
principal balance of the Initial M/E Term Loan.
"Administrative Borrower" has the meaning
specified therefor in Section 17.13
of
this Agreement.
"Administrative Questionnaire"
has the meaning specified therefor in Section
13.1(a) of this Agreement.
"Affected Lender"
has the
meaning specified
therefor in
Section 2.13(b)
of this
Agreement.
"Affiliate"
means, as
applied to
any Person,
any other
Person who
controls, is
controlled by,
or is
under common
control with,
such Person.
For purposes
of this
definition,
"control" means the
possession, directly or
indirectly through one
or more intermediaries,
of the
power to direct
the management and
policies of a
Person, whether through
the ownership of
Equity
Interests, by
contract, or
otherwise; provided,
that for
purposes of
the definition
of Eligible
Accounts and Section 6.10
of this Agreement:
(a) if any Person owns
directly or indirectly 10%
or more of the Equity Interests having ordinary voting power for the election of directors or other
members of the governing body of a Person
or 10% or more of the partnership or other
ownership
interests of a Person (other than as a limited partner of such Person), then both such Persons shall
be Affiliates of each other, (b) each director
(or comparable manager) of a
Person shall be deemed
to be an Affiliate
of such Person, and
(c) each partnership in
which a Person is
a general partner
shall be deemed an Affiliate of such Person.
"Agent" has the meaning specified therefor in the preamble to this Agreement.
"Agent-Related Persons" means
Agent, together
with its
Affiliates, officers,
directors, employees, attorneys, and agents.
"Agent's Account" means the Deposit Account of Agent identified on Schedule A-
1 to this Agreement (or such other Deposit Account of Agent that has been designated as such, in
writing, by Agent to Borrowers and the Lenders).
"Agent's Liens" means the Liens granted
by each Loan Party or
its Subsidiaries to
Agent under the Loan Documents and securing the Obligations.
"Agreed Currency" means (a) Dollars and (b) Canadian Dollars.
"Agreement" means
this Credit
Agreement, as
amended, restated,
amended and
restated, supplemented or otherwise modified from time to time.
"Anti-Corruption Laws" means
the FCPA,
the U.K. Bribery
Act of
2010, as
amended, and
all other
applicable laws
and regulations
or ordinances
concerning or
relating to
bribery or
corruption in
any jurisdiction
in which
any Loan
Party or
any of
its Subsidiaries
or
Affiliates is located or is doing business.
"Anti-Money Laundering Laws"
means the
applicable laws or
regulations in any
jurisdiction in which any
Loan Party or any of
its Subsidiaries or Affiliates
is located or is
doing
business that
relates to
money laundering,
any predicate
crime to
money laundering,
or any
financial record keeping
and reporting requirements
related thereto and
includes Canadian Anti-
Money Laundering & Anti-Terrorism Legislation.
"Applicable Margin"
means, as
of any date
of determination
and with
respect to
Base Rate
Loans or
LIBOR Rate
Loans, as
applicable, the
applicable margin
set forth
in the
following table
that corresponds
to the
Average Excess
Availability of
Borrowers for
the most
recently
completed quarter;
provided, that
for the
period from
the Closing
Date through
and
including March
31, 2021,
the Applicable
Margin shall
be set
at the
margin in
the row
styled
"Level III"; provided further, that any
time an Event of Default
has occurred and is continuing,
the
Applicable Margin shall be set at the margin in the row styled "Level III":
Level
Average Excess
Availability
Applicable
Margin for Base
Rate Loans
which are
Revolving Loans
(the "Revolving
Loan Base Rate
Margin")
Applicable
Margin for
LIBOR Rate
Loans which are
Revolving Loans
(the "Revolving
Loan LIBOR
Rate Margin")
Applicable
Margin for Base
Rate Loans
which are Term
Loans (the
"Term Loan
Base Rate
Margin")
Applicable
Margin for
LIBOR Rate
Loans which are
Term Loans
(the
"Term Loan
LIBOR Rate
Margin")
I
> 66 2/3% of the
Maximum
Revolver Amount
1.00 percentage
points
2.00 percentage
points
2.00 percentage
points
3.00 percentage
points
II
< 66 2/3% of the
Maximum
Revolver Amount
and > 33 1/3% of
the Maximum
Revolver Amount
1.25 percentage
points
2.25 percentage
points
2.00 percentage
points
3.00 percentage
points
III
< 33 1/3% of the
Maximum
Revolver Amount
1.50 percentage
points
2.50 percentage
points
2.00 percentage
points
3.00 percentage
points
The Applicable Margin shall be re-determined as of the first day of each quarter.
"Application Event"
means the occurrence
of (a) a failure
by Borrowers to
repay
all of the Obligations
in full on the
Maturity Date, or (b)
an Event of Default
and the election by
Agent or
the Required
Lenders to
require that
payments and
proceeds of
Collateral be
applied
pursuant to Section 2.4(b)(iii) of this Agreement.
"Assignee" has the
meaning specified therefor
in Section 13.1(a)
of this Agreement.
"Assignment and Acceptance"
means an Assignment
and Acceptance Agreement
substantially in the form of Exhibit A-1 to this Agreement.
"Authorized Person" means any one of the
individuals identified as an officer of
a
Borrower on Schedule A-2
to this Agreement, or
any other individual identified
by Administrative
Borrower as an authorized person and authenticated through Agent's electronic platform or portal
in accordance with its procedures for such authentication.
"Availability" means,
as of any
date of determination,
the amount that
Borrowers
are entitled to borrow as
Revolving Loans under Section 2.1 of
this Agreement (after giving effect
to the then outstanding Revolver Usage).
"Available Increase
Amount" means, as
of any date
of determination, an
amount
equal to the result of
(a) $10,000,000,
minus
(b) the aggregate principal amount of
Increases to the
Revolver Commitments previously made pursuant to Section 2.14 of this Agreement.
"Average Excess
Availability" means,
with respect to
any period, the
sum of the
aggregate amount of Availability for each day in such
period (as calculated by Agent as
of the end
of each respective day)
divided by
the number of days in such period.
"Average Revolver
Usage" means,
with respect
to any
period, the
sum of
the
aggregate amount of Revolver Usage for each day in such period (calculated as
of the end of each
respective day)
divided by
the number of days in such period.
"Bail-In Action"
means the
exercise of any
Write-Down and
Conversion Powers
by the
applicable EEA
Resolution Authority
in respect
of any
liability of
an EEA
Financial
Institution.
"Bail-In Legislation"
means, with
respect to
any EEA
Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council
of the European Union,
the implementing law for
such EEA Member Country
from time to time
which is described in the EU Bail-In Legislation Schedule.
"Bank Product"
means any
one or
more of
the following
financial products
or
accommodations extended to
any Loan Party
or any of
its Subsidiaries by
a Bank Product
Provider:
(a) credit cards (including commercial cards (including so-called
"purchase cards", "procurement
cards" or "p-cards")), (b) payment card processing
services, (c) debit cards, (d) stored value cards,
(e) Cash Management Services, or (f) transactions under Hedge Agreements.
"Bank Product Agreements"
means those agreements
entered into from
time to time
by any Loan Party or any of its Subsidiaries with a
Bank Product Provider in connection with the
obtaining of any of the Bank Products.
"Bank Product
Collateralization" means
providing cash
collateral (pursuant
to
documentation reasonably satisfactory to
Agent) to be held
by Agent for the
benefit of the Bank
Product Providers (other
than the Hedge
Providers) in an
amount determined by
Agent as sufficient
to satisfy the reasonably
estimated credit exposure, operational
risk or processing risk with
respect
to the then existing Bank Product Obligations (other than Hedge Obligations).
"Bank Product
Obligations" means
(a) all obligations,
liabilities, reimbursement
obligations, fees, or expenses owing by each Loan Party and its Subsidiaries to any Bank Product
Provider pursuant to or
evidenced by a Bank
Product Agreement and irrespective
of whether for
the payment of money,
whether direct or indirect,
absolute or contingent,
due or to
become due,
now existing or hereafter arising, (b) all Hedge Obligations, and (c) all amounts that Agent
or any
Lender is
obligated to
pay to
a Bank
Product Provider
as a
result of
Agent or
such Lender
purchasing participations
from, or
executing guarantees
or indemnities
or reimbursement
obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank
Product Provider to a Loan Party or its Subsidiaries.
"Bank Product Provider" means any Lender or any of its Affiliates, including each
of the foregoing in its capacity,
if applicable, as a Hedge
Provider; provided, that no such
Person
(other than Wells
Fargo or its Affiliates)
shall constitute a Bank Product
Provider with respect to
a Bank Product
unless and
until Agent receives
a Bank Product
Provider Agreement
from such
Person (a) on or prior to the
Closing Date (or such later date
as Agent shall agree to in
writing in
its sole discretion)
with respect to
Bank Products provided
on or prior
to the Closing
Date, or (b)
on
or prior to the date that
is 10 days after the provision
of such Bank Product to
a Loan Party or its
Subsidiaries (or such later
date as Agent shall
agree to in writing
in its sole discretion)
with respect
to Bank Products provided after
the Closing Date; provided further,
that if, at any time,
a Lender
ceases to be a Lender under this Agreement (prior to the payment
in full of the Obligations), then,
from and after
the date on
which it so
ceases to be
a Lender hereunder,
neither it nor
any of its
Affiliates shall
constitute Bank
Product Providers
and the
obligations with
respect to
Bank
Products provided by such
former Lender or any
of its Affiliates
shall no longer constitute
Bank
Product Obligations.
"Bank Product Provider Agreement" means an agreement in substantially the form
attached hereto as
Exhibit B-2 to
this Agreement, in form
and substance satisfactory
to Agent, duly
executed by the applicable Bank Product Provider, the applicable Loan Parties, and Agent.
"Bank Product Reserves"
means, as
of any
date of
determination, those
reserves
that Agent deems necessary or appropriate, subject to Section
2.1(c), to establish (based upon the
Bank Product Providers'
reasonable determination of
the liabilities and
obligations of each Loan
Party and its Subsidiaries
in respect of Bank
Product Obligations) in respect
of Bank Products
then
provided or outstanding.
"Bankruptcy Code" means title 11 of the
United States Code, as
in effect from time
to time.
"Base Rate
"
means the
greatest of
(a) 1.00 percent
per annum
, (b)
the Federal
Funds Rate
plus
½%, (c) the LIBOR Rate
(which rate shall
be calculated based upon
an Interest
Period of
one month
and shall
be determined
on a
daily basis),
plus
one percentage
point, and
(d) the rate of interest announced,
from time to time,
within Wells
Fargo at its principal
office in
San Francisco
as its
"prime rate",
with the
understanding that
the "prime
rate" is
one of
Wells
Fargo's base
rates (not necessarily
the lowest of
such rates) and
serves as
the basis upon
which
effective rates of interest are calculated for those loans making reference thereto and is evidenced
by the recording thereof after its announcement
in such internal publications as
Wells
Fargo may
designate (and, if any such announced rate
is below zero, then the rate determined pursuant to this
clause (d) shall be deemed to be zero).
"Base Rate Loan"
means each portion
of the Revolving
Loans or the
Term
Loan
that bears interest at a rate determined by reference to the Base Rate.
"Base Rate Margin"
means the Revolving
Loan Base Rate
Margin or the
Term Loan
Base Rate Margin, as applicable.
"Benchmark Replacement
"
means the
sum of:
(a) the alternate
benchmark rate
(which may include
Term
SOFR) that has
been selected by
Agent and Administrative
Borrower
giving due
consideration to
(i) any selection
or recommendation
of a
replacement rate
or the
mechanism for determining such
a rate by the
Relevant Governmental Body or
(ii) any evolving
or then-prevailing
market convention
for determining
a rate
of interest
as a
replacement to
the
LIBOR Rate
for United
States dollar-denominated
syndicated credit
facilities and
(b) the
Benchmark Replacement Adjustment;
provided that, if
the Benchmark Replacement
as so
determined would be less
than zero, the Benchmark
Replacement shall be deemed
to be zero for
the purposes of this Agreement.
"Benchmark Replacement Adjustment" means, with respect to any replacement of
the LIBOR Rate with an Unadjusted Benchmark Replacement
for each applicable Interest Period,
the spread adjustment,
or method for
calculating or determining
such spread adjustment,
(which
may be a positive
or negative value or
zero) that has
been selected by Agent
and Administrative
Borrower giving due consideration to
(i) any selection or recommendation of
a spread adjustment,
or method
for calculating
or determining
such spread
adjustment, for
the replacement
of the
LIBOR Rate
with the
applicable Unadjusted
Benchmark Replacement
by the
Relevant
Governmental Body or (ii)
any evolving or
then-prevailing market convention
for determining a
spread adjustment,
or method
for calculating
or determining
such spread
adjustment, for
the
replacement of
the LIBOR
Rate with
the applicable
Unadjusted Benchmark
Replacement for
United States dollar-denominated syndicated credit facilities at such time.
"Benchmark Replacement Conforming
Changes" means, with
respect to any
Benchmark Replacement, any technical,
administrative or operational changes (including
changes
to the
definition of
"Base Rate",
the definition
of "Interest
Period", timing
and frequency
of
determining rates and
making payments of
interest and other
administrative matters) that
Agent
decides may
be appropriate
to reflect
the adoption
and implementation
of such
Benchmark
Replacement and to permit
the administration thereof by
Agent in a manner
substantially
consistent with market practice (or,
if Agent decides that
adoption of any portion
of such market
practice is
not administratively
feasible or
if Agent
determines that
no market
practice for
the
administration of the
Benchmark Replacement exists,
in such other
manner of administration
as
Agent decides is reasonably necessary in connection with the administration of this Agreement).
"Benchmark Replacement Date" means the earlier to occur of
the following events
with respect to the LIBOR Rate:
(a)
in the case
of clause (a)
or (b) of
the definition of
"Benchmark Transition
Event," the later
of (i) the date
of the public
statement or
publication of information
referenced
therein and (ii) the date
on which the administrator of
the LIBOR Rate permanently
or indefinitely
ceases
to provide the LIBOR Rate; or
(b)
in the case of clause (c) of the definition of "Benchmark Transition Event,"
the date of the public statement or publication of information referenced therein.
"Benchmark Transition Event" means
the occurrence of one or
more of the
following events with respect to the LIBOR Rate:
(a)
a public
statement or
publication of
information by
or on
behalf of
the
administrator of the LIBOR
Rate announcing that
such administrator has ceased
or will cease
to
provide the LIBOR Rate, permanently or indefinitely, provided that, at the time of such statement
or publication, there is no successor administrator that will continue to provide the LIBOR Rate;
(b)
a public
statement or
publication of
information by
the regulatory
supervisor for
the administrator
of the
LIBOR Rate,
the Federal
Reserve System
of the
United
States (or
any successor), an
insolvency official
with jurisdiction
over the administrator
for the
LIBOR Rate, a resolution authority
with jurisdiction over the administrator
for the LIBOR Rate or
a court or an
entity with similar
insolvency or resolution
authority over the administrator
for the
LIBOR Rate, which
states that the
administrator of the
LIBOR Rate has
ceased or will
cease to
provide the LIBOR Rate permanently or indefinitely,
provided that, at the time of such
statement
or publication, there is no
successor administrator that will
continue to provide the LIBOR
Rate;
or
(c)
a public
statement or
publication of
information by
the regulatory
supervisor for the administrator of the LIBOR Rate announcing that the LIBOR Rate is no longer
representative.
"Benchmark Transition
Start Date"
means (a)
in the
case of
a Benchmark
Transition Event,
the earlier
of (i)
the applicable
Benchmark Replacement
Date and
(ii) if such
Benchmark Transition Event
is a public statement
or publication of information
of a prospective
event, the
90th day
prior to
the expected
date of
such event
as of
such public
statement or
publication of information (or if the expected date
of such prospective event is fewer than 90
days
after such statement or
publication, the date of
such statement or publication)
and (b) in the case
of an Early
Opt-in Election, the
date specified by
Agent or the
Required Lenders, as
applicable,
by notice to Administrative Borrower, Agent (in the case of such notice by the Required Lenders)
and the Lenders.
"Benchmark Unavailability Period"
means, if a
Benchmark Transition
Event and
its related Benchmark
Replacement Date have occurred
with respect to the
LIBOR Rate and
solely
to the extent
that the LIBOR
Rate has not
been replaced with
a Benchmark Replacement,
the period
(x) beginning at the time that such Benchmark
Replacement Date has occurred if, at such time, no
Benchmark Replacement has replaced
the LIBOR Rate for
all purposes hereunder in
accordance
with Section 2.12(d)(iii)
and (y) ending at
the time that
a Benchmark Replacement
has replaced
the LIBOR Rate for all purposes hereunder pursuant to Section 2.12(d)(iii).
"Beneficial Ownership
Certification" means
a certification
regarding beneficial
ownership as required by the Beneficial Ownership Regulations.
"Beneficial Ownership Regulation" means 31 C.F.R.
§ 1010.230.
"Benefit Plan"
means a
"defined benefit
plan" (as
defined in
Section 3(35)
of
ERISA) that is subject to
Title IV of ERISA,
for which any Loan Party or
any of its Subsidiaries
or ERISA Affiliates has been an
"employer" (as defined in Section
3(5) of ERISA) within the past
six years.
"BHC Act Affiliate" of
a Person means
an "affiliate" (as such
term is defined under,
and interpreted in accordance with, 12 U.S.C. 1841(k)) of such Person.
"Board of Directors"
means, as to any
Person, the board of
directors (or comparable
managers) of such Person, or any committee thereof duly authorized to act on
behalf of the board
of directors (or comparable managers).
"Board of
Governors" means
the Board
of Governors
of the
Federal Reserve
System of the United States (or any successor).
"Book Runner"
has the meaning set forth in the preamble to this Agreement.
"Borrower" and "Borrowers"
have the respective meanings
specified therefor in the
preamble to this Agreement.
"Borrower Materials"
has the meaning specified therefor in Section 17.9(c)
of this
Agreement.
"Borrowing" means a borrowing consisting of Revolving Loans made on the same
day by the Lenders (or Agent on
behalf thereof), or by Swing Lender in the case
of a Swing Loan,
or by Agent in the case of an Extraordinary Advance.
"Borrowing Base" means, as of any date of determination, the result of:
(a)
90% of the
amount of Eligible
Investment Grade Accounts,
less
the amount,
if any, of the Dilution Reserve (Investment Grade),
plus
(b)
85% of
the amount
of Eligible
Non-Investment Grade
Accounts,
less
the
amount, if any, of the Dilution Reserve (Non-Investment Grade),
plus
(c)
the lesser of (x) $1,500,000 and (y) 85% of the amount of
Eligible Tooling
Accounts,
less
the amount, if any, of the Dilution Reserve (Non-Investment Grade),
plus
(d)
the lesser of
(x) Mexican A/R
Cap and (y)
85% of the
amount of Eligible
Mexican Accounts,
less
the amount, if any, of the Dilution Reserve (Non-Investment Grade),
plus
(e)
the lesser of (A)
the product of
70% multiplied by
the value (calculated at
the lower of cost
or market on a
basis consistent with Loan
Parties' historical accounting practices)
of Eligible Finished Goods
Inventory at such time, and
(B) the product of 85%
multiplied by the
Net Recovery Percentage identified in
the most recent Acceptable Appraisal
of Inventory,
multiplied by the value (calculated at
the lower of cost or market
on a basis consistent with
Loan
Parties' historical accounting practices) of Eligible Finished Goods Inventory (such determination
may be made as to
different categories of Eligible
Finished Goods Inventory based upon
the Net
Recovery Percentage applicable to such categories) at such time,
plus
(f)
the lesser of (A)
the product of
70% multiplied by
the value (calculated at
the lower of cost
or market on a
basis consistent with Loan
Parties' historical accounting practices)
of Eligible Raw
Materials Inventory at
such time, and
(B) the product of
85% multiplied by
the
Net Recovery Percentage identified in
the most recent Acceptable Appraisal
of Inventory,
multiplied by the value (calculated at
the lower of cost or market
on a basis consistent with
Loan
Parties' historical accounting practices)
of Eligible Raw Materials
Inventory (such determination
may be made
as to different
categories of Eligible
Raw Materials Inventory
based upon the
Net
Recovery Percentage applicable to such categories) at such time,
plus
(g)
the lesser of
(i) $350,000, and
(ii) the lesser of
(A) the product of
70% multiplied by
the value
(calculated at
the lower
of cost
or market
on a
basis consistent
with Loan
Parties' historical
accounting practices) of Eligible Work
-In-Process Inventory at such time,
and (B) the product of
85% multiplied by
the Net Recovery
Percentage identified in
the most recent
Acceptable Appraisal
of Inventory, multiplied by
the value (calculated
at the lower
of cost or
market on a
basis consistent
with Loan Parties'
historical accounting
practices) of
Eligible Work
-In-Process Inventory (such
determination may be
made as to different
categories of Eligible Work-In-Process Inventory based
upon the Net Recovery Percentage applicable to such categories) at such time,
minus
(h)
the aggregate amount
of Reserves, if
any, established
by Agent from
time
to time under Section 2.1(c) of this Agreement.
"Borrowing Base
Certificate" means
a certificate
substantially in
the form
of
Exhibit B-1 to this Agreement, which such form of Borrowing Base Certificate may be amended,
restated, supplemented
or otherwise
modified from
time to
time (including
without limitation
changes to the format thereof), as approved by Agent in Agent's sole discretion.
"Borrowing Base
Company" means
any US
Loan Party
and any
Canadian Loan
Party.
"BRP/Navistar Project
Cap Ex"
means Capital
Expenditures incurred
by Loan
Parties and
their Subsidiaries
in connection
with (i)
the purchase
and installation
of a
new
compression molding press, extruder, building expansion, silo and other supporting equipment
in
the Matamoros,
Mexico facility
to support
existing, and
to provide
excess capacity
for future,
business from
Bombadier Recreational
Products Inc.
(personal watercraft
product) and
(ii) the
purchase and installation
of a press
and building modifications
and production equipment
in the
Matamoros, Mexico
facility for a
new Medium
Vocational
“MV” Hood
from Navistar,
Inc., in
each case, as more particularly described on Schedule B-1 attached hereto.
"Business Day"
means any
day that
is not
a Saturday,
Sunday, or
other day
on
which banks are authorized
or required to close
in the state of
Illinois, except that, if
a
determination of a Business Day shall relate
to a LIBOR Rate Loan, the term "Business
Day" also
shall exclude any
day on
which banks are
closed for dealings
in Dollar
deposits in
the London
interbank market.
"Canadian Anti-Money Laundering & Anti-Terrorism Legislation" means Part II.1
of the
Criminal Code
, R.S.C.
1985, c.
C-46,
The Proceeds
of Crime
(Money Laundering)
and
Terrorist
Financing Act
, S.C. 2000, c.
17 and the
United Nations Act
, R.S.C. 1985, c.U-2
or any
similar Canadian legislation, together with
all rules, regulations and interpretations
thereunder or
related thereto
including, without
limitation, the
Regulations Implementing
the United
Nations
Resolutions on
the Suppression
of Terrorism
and the
United Nations
Al-Qaida and
Taliban
Regulations promulgated under the
United Nations Act
.
"Canadian Defined Benefit
Plan" means any
Canadian Pension Plan
which contains
a "defined benefit provision" as defined in subsection 147.1(1) of the
Income Tax
Act
(Canada).
"Canadian Dollars"
or "Cdn $" means
the lawful currency
of Canada, as
in effect
from time to time.
"Canadian Guarantor"
means each
Subsidiary of
Administrative Borrower
organized under the laws of Canada, or any province thereof, that is or becomes a guarantor of all
or any part of the Obligations.
"Canadian Guaranty" means a
guaranty of the Obligations,
in form and substance
reasonably satisfactory to
Agent, executed and
delivered by the
Canadian Loan Parties
to Agent
and includes the guaranty set forth in the Canadian Security Agreement.
"Canadian Loan Party" means any Canadian Guarantor.
"Canadian Multi-Employer Plan" means a "multi-employer pension plan", as
such
term is defined under the Pension Benefits Act (Ontario) or “collectively bargained multi-
employer plan”,
as such
term is
defined under
the Pension
Benefits Standards
Act (British
Columbia), under which a
Canadian Loan Party is
required to contribute pursuant
to a collective
bargaining agreement
and under
which (i)
the sole
obligation of the
Canadian Loan
Party is
to
make the
contributions specified in
the applicable
collective bargaining
agreement, and
(ii) the
Canadian Loan Party has no liability relating to any past or future withdrawals from the plan.
"Canadian Pension
Plans" means
each pension
plan that
is a
"registered pension
plan" (as
defined in
the Income
Tax
Act (Canada))
or that
is required
to be
registered under
Canadian federal or provincial
law with respect to
pension benefit standards and
that is maintained
or contributed to, or
to which there is
or may be an
obligation to contribute by
a Loan Party or
a
Subsidiary thereof,
for its
employees or
former employees,
but does
not include
the Canada
Pension Plan
or the
Quebec Pension
Plan as
maintained by
the Government
of Canada
or the
Province of Quebec, respectively.
"Canadian Priority Payables
Reserves" means reserves
(determined from
time to
time by Agent
in its Permitted
Discretion) for:
(a) the amount past
due and owing
by any Canadian
Loan Party, or the accrued amount for
which such Canadian Loan Party
has an obligation to remit,
to a Governmental Authority or other Person pursuant to any applicable
law, rule or regulation, in
respect of (i)
goods and services
taxes, harmonized sales taxes,
other sales taxes,
employee income
taxes, municipal taxes and other taxes payable or to be remitted or
withheld; (ii) workers'
compensation or
employment insurance;
(iii) federal
Canada Pension
Plan and
other statutory
Pension Plan contributions; (iv) vacation or holiday pay; and (v)
other like charges and demands,
in each case,
to the
extent that
any Governmental
Authority or other
Person may
claim a
Lien,
trust, deemed trust
or other claim ranking
or capable of
ranking in priority
to or
pari
passu
with
one or more
of the Liens
granted in the
Loan Documents; and
(b) the aggregate amount
of any
other liabilities of
any Canadian Loan
Party (i) in respect
of which a
Lien, trust or
deemed trust
has been or may be imposed on any Collateral to provide for payment, or (ii) in
respect of unpaid
or unremitted pension
plan contributions, including
normal cost contributions,
special payments
and, without
duplication, amounts
representing any
unfunded liability,
solvency deficiency
or
wind-up deficiency whether or not due with respect to a Canadian Pension Plan, or (iii) which are
secured by a
Lien, charge, right or
claim on any
Collateral; in each case,
pursuant to any
applicable
law, rule
or regulation
and which
such Lien,
trust, deemed
trust, pledge,
charge, right
or claim
ranks or in
the Permitted
Discretion of Agent,
is capable of
ranking in priority
to or
pari
passu
with one or
more of the
Liens granted in
the Loan Documents
(such as certain
claims by employees
for unpaid
wages and
other amounts
payable under
the Wage
Earner Protection
Program Act
(Canada)); in each case net of the aggregate amount of all
restricted cash held or set aside by such
Canadian Loan Party for the payment of such obligations.
"Canadian Security
Agreement" means
a Canadian
Guarantee and
Security
Agreement dated as of
even date with
the Agreement, in form
and substance reasonably
satisfactory to Agent, executed
and delivered by each
Canadian Loan Party and
each other Loan
Party having Collateral located in Canada to Agent.
"Canadian Security
Documents" means,
collectively, the
Canadian Security
Agreement, the Quebec Security
Documents and any other Loan
Document that grants or
purports
to grant a Lien
on any of
the assets or interests,
and the proceeds thereof,
of any Canadian Loan
Party or any other Loan Party having Collateral located in Canada.
"Capital Expenditures"
means, with
respect to
any Person
for any
period, the
amount of all expenditures by such Person and its Subsidiaries during such period that
are capital
expenditures as determined in
accordance with GAAP, whether such expenditures are paid
in cash
or financed, but excluding, without duplication (a)
with respect to the purchase price
of assets that
are purchased
substantially contemporaneously
with the
trade-in of
existing assets
during such
period, the amount that
the gross amount of
such purchase price is
reduced by the credit
granted
by the seller
of such assets for
the assets being
traded in at such
time, (b) expenditures made
during
such period
to consummate
one or
more Permitted
Acquisitions, (c)
expenditures made
during
such period in connection with the replacement, substitution, or restoration of assets or properties
pursuant to
Section 2.4(e)(iv)
of this
Agreement, and
(d) expenditures during
such period
that,
pursuant to a
written agreement, are
reimbursed by a
third Person (excluding
any Loan Party
or
any of its Affiliates).
"Capitalized Lease Obligation"
means that
portion of
the obligations
under a
Capital Lease that is required to be capitalized in accordance with GAAP.
"Capital Lease"
means a
lease that
is required
to be
capitalized for
financial
reporting purposes in accordance with GAAP.
"Cash Equivalents" means
(a) Domestic Cash
Equivalents; and (b)
Foreign Cash
Equivalents.
"Cash Management
Services" means
any cash
management or
related services
including treasury,
depository, return
items, overdraft,
controlled disbursement,
merchant store
value cards, e-payables
services, electronic funds
transfer, interstate depository network,
automatic
clearing house transfer
(including the Automated
Clearing House processing
of electronic funds
transfers through the
direct Federal Reserve
Fedline system) and
other cash management
arrangements.
"CFC" means a controlled foreign
corporation (as that term
is defined in the IRC)
in which any Loan Party is a "United States shareholder" within the meaning of Section 951(b) of
the IRC.
"Change in Law" means the occurrence after
the date of this Agreement of:
(a) the
adoption or effectiveness
of any law,
rule, regulation, judicial
ruling, judgment or treaty,
(b) any
change in any
law, rule,
regulation, judicial
ruling, judgment
or treaty
or in
the administration,
interpretation, implementation
or application
by any
Governmental Authority
of any
law, rule,
regulation, guideline or
treaty, or
(c) the making or
issuance by any
Governmental Authority of
any request,
rule, guideline
or directive,
whether or
not having
the force
of law;
provided, that
notwithstanding anything
in this
Agreement to
the contrary,
(i) the Dodd-Frank
Wall
Street
Reform and Consumer
Protection Act and
all requests, rules,
guidelines or directives
thereunder
or issued in
connection therewith, and (ii)
all requests, rules,
guidelines or directives
concerning
capital adequacy promulgated by the Bank for International Settlements, the Basel
Committee on
Banking Supervision
(or any
successor or
similar authority)
or the
United States
or foreign
regulatory authorities shall,
in each case,
be deemed to
be a "Change
in Law,"
regardless of the
date enacted, adopted or issued.
"Change of Control" means that:
(a)
any Person
or two
or more
Persons acting
in concert
shall have
acquired
beneficial ownership,
directly or
indirectly, of
Equity Interests
of Administrative
Borrower (or
other securities convertible into such Equity Interests) representing 30% or more of the combined
voting power
of all
Equity Interests
of Administrative
Borrower entitled
(without regard
to the
occurrence of any contingency)
to vote for
the election of members
of the Board
of Directors of
Administrative Borrower,
(b)
any Person or two
or more Persons acting in
concert, shall have acquired
by
contract or
otherwise, or
shall have
entered into
a contract
or arrangement
that, upon
consummation thereof, will
result in its
or their acquisition
of the power
to exercise, directly
or
indirectly, a controlling influence over the management or policies of Administrative Borrower
or
control over
the Equity
Interests of
such Person
entitled to
vote for
members of
the Board
of
Directors of Administrative
Borrower on a
fully-diluted basis
(and taking
into account
all such
Equity Interests that
such Person or
group has the
right to acquire
pursuant to
any option right)
representing 30% or more of the combined voting power of such Equity Interests,
(c)
during any
period of
24 consecutive
months commencing
on or
after the
Closing Date,
the occurrence
of a
change in
the composition
of the
Board of
Directors of
Administrative Borrower such that a
majority of the members of
such Board of Directors are
not
Continuing Directors, or
(d)
Borrowers fail to
own and control,
directly or indirectly, 100%
of the Equity
Interests of each other Loan Party.
"Citi Purchase Documents"
means the Citi
Supplier Agreement, together
with all
related agreements, instruments and documents.
"Citi Supplier Agreement" means a supplier agreement executed
by Horizon
Plastics International Inc. and Citibank, N.A. dated as of December 21, 2015.
"Closing Date" means the date of the making of
the Initial M/E Term Loan and the
R/E Term Loan (or other extension of credit) under this Agreement.
"Code" means
the Illinois
Uniform Commercial
Code, as
in effect
from time
to
time.
"Collateral" means
all assets
and interests
in assets
and proceeds
thereof now
owned or
hereafter acquired
by any
Loan Party
or its
Subsidiaries in
or upon
which a
Lien is
granted by such Person in favor of Agent or the Lenders under any of the Loan Documents.
"Collateral Access
Agreement" means
a landlord
waiver, bailee
letter, or
acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other
Person
in possession
of, having
a Lien
upon, or
having rights
or interests
in any
Loan Party's
or its
Subsidiaries' books
and records,
Equipment, or
Inventory, in
each case,
in form
and substance
reasonably satisfactory to Agent.
"Collections" means, all cash, checks, notes, instruments, and other items of
payment (including
insurance proceeds,
cash proceeds
of asset
sales, rental
proceeds and
tax
refunds).
"Commitment" means, with respect to
each Lender, its
Revolver Commitment, its
M/E Term
Loan Commitment or
its R/E Term
Loan Commitment, as
the context requires,
and,
with respect to all Lenders, their Revolver Commitments,
their M/E Term
Loan Commitments or
their R/E Term
Loan Commitments, as the context
requires, in each case as such Dollar
amounts
are set
forth beside
such Lender's
name under
the applicable
heading on
Schedule C-1
to this
Agreement or in the Assignment
and Acceptance pursuant to which such
Lender became a Lender
under this Agreement, as
such amounts may be
reduced or increased from
time to time
pursuant
to assignments made in accordance with the provisions of Section 13.1 of this Agreement.
"Commodity Exchange Act" means the Commodity Exchange
Act (7 U.S.C. § 1 et
seq.), as amended from time to time, and any successor statute.
"Compliance Certificate" means a
certificate substantially in the
form of Exhibit C-
1 to this
Agreement delivered by
the chief financial
officer or treasurer
of Administrative Borrower
to Agent.
"Confidential Information" has the
meaning specified therefor in
Section 17.9(a) of
this Agreement.
"Continuing Director" means (a) any member of the Board of Directors who was a
director (or comparable
manager) of Administrative
Borrower on the
Closing Date, and
(b) any
individual who
becomes a
member of
the Board
of Directors
after the
Closing Date
if such
individual was
approved, appointed
or nominated
for election
to the
Board of
Directors by
a
majority of the Continuing Directors.
"Control Agreement" means
a control agreement,
in form and
substance reasonably
satisfactory to Agent,
executed and delivered
by a Loan
Party or one
of its Subsidiaries,
Agent,
and the
applicable securities
intermediary (with
respect to
a Securities
Account) or
bank (with
respect to a Deposit Account).
"Copyright Security
Agreement" has
the meaning
specified therefor
in the
Guaranty and Security Agreement.
"Core Composites"
means Core Composites
Corporation, a Delaware corporation
and wholly-owned Subsidiary of Borrower.
"Covered Entity" means any of the following:
(a)
a "covered entity" as
that term is defined
in, and interpreted in
accordance
with, 12 C.F.R. § 252.82(b);
(b)
a "covered bank"
as that term
is defined in,
and interpreted in
accordance
with, 12 C.F.R. § 47.3(b); or
(c)
a "covered
FSI" as
that term
is defined
in, and
interpreted in
accordance
with, 12 C.F.R. § 382.2(b).
"Covered Party" has the meaning specified therefor in Section 17.15
of this
Agreement.
"Default" means an event, condition,
or default that, with the
giving of notice, the
passage of time, or both, would be an Event of Default.
"Defaulting Lender"
means any
Lender that
(a) has failed
to (i)
fund all
or any
portion of its Loans within two Business Days of the
date such Loans were required to be funded
hereunder unless such
Lender notifies
Agent and
Administrative Borrower
in writing
that such
failure is the
result of such
Lender's determination that
one or more
conditions precedent to
funding
(each of which
conditions precedent,
together with
any applicable Default
or Event
of Default,
shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Agent, Issuing
Bank, or
any other
Lender any
other amount
required to
be paid
by it
hereunder (including
in
respect of its
participation in Letters
of Credit) within
two Business Days
of the date
when due,
(b) has notified any Borrower, Agent
or Issuing Bank in writing that it
does not intend to comply
with its funding obligations hereunder,
or has made a
public statement to that effect
(unless such
writing or public statement relates to such
Lender's obligation to fund a Loan
hereunder and states
that such position
is based on
such Lender's determination
that a condition
precedent to funding
(which condition
precedent, together
with any
applicable Default
or Event
of Default,
shall be
specifically identified
in such
writing or
public statement)
cannot be
satisfied), (c)
has failed,
within three Business Days after
written request by Agent or Administrative
Borrower, to confirm
in writing to Agent and Administrative
Borrower that it will comply with
its prospective funding
obligations hereunder (provided, that such Lender shall
cease to be a Defaulting Lender pursuant
to this clause (c) upon
receipt of such written
confirmation by Agent and
Administrative
Borrower), or (d) has, or
has a direct or
indirect parent company that
has, (i) become the
subject
of any Insolvency Proceeding, (ii) had appointed for
it a receiver, custodian,
conservator, trustee,
administrator, assignee for
the benefit of creditors
or similar Person charged
with reorganization
or liquidation of its
business or assets, including the
Federal Deposit Insurance Corporation or
any
other state or federal regulatory
authority acting in such
a capacity, or
(iii) become the subject of
a Bail-in Action; provided,
that a Lender shall
not be a Defaulting Lender
solely by virtue of
the
ownership or
acquisition of
any equity
interest in
that Lender
or any
direct or
indirect parent
company thereof by a Governmental Authority so long as
such ownership interest does not result
in or provide such Lender
with immunity from the jurisdiction
of courts within the
United States
or from the enforcement
of judgments or writs
of attachment on its
assets or permit such
Lender
(or such
Governmental Authority)
to reject,
repudiate, disavow
or disaffirm
any contracts
or
agreements made with
such Lender.
Any determination by
Agent that a
Lender is a
Defaulting
Lender under any
one or more
of clauses (a)
through (d) above
shall be conclusive
and binding
absent manifest error,
and such Lender shall
be deemed to be
a Defaulting Lender upon delivery
of written
notice of
such determination
to Administrative
Borrower, Issuing
Bank, and
each
Lender.
"Defaulting Lender Rate"
means (a) for the first three days from and after
the date
the relevant payment is
due, the Base Rate,
and (b) thereafter, the
interest rate then applicable
to
Revolving Loans that are Base Rate
Loans (inclusive of the Base Rate
Margin applicable thereto).
"Default Right" has the
meaning assigned to that
term in, and shall
be interpreted
in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable.
"Deposit Account" means any
deposit account (as that
term is defined in
the Code).
"Designated Account"
means the
Deposit Account
of Administrative
Borrower
identified on Schedule
D-1 to this
Agreement (or such
other Deposit Account
of Administrative
Borrower located at
Designated Account
Bank that
has been designated
as such,
in writing,
by
Borrowers to Agent).
"Designated Account Bank"
has the meaning specified therefor in Schedule D-1 to
this Agreement (or
such other bank
that is located
within the United
States that has
been designated
as such, in writing, by Borrowers to Agent).
"Dilution" means,
as of
any date of
determination, a
percentage, based
upon the
experience of the immediately prior 12 months, that is the result of dividing the Dollar amount
of
(a) bad debt write-downs,
discounts, advertising allowances, credits,
or other dilutive
items with
respect to
Borrowers' Accounts
during such
period, by
(b) Borrowers' billings
with respect
to
Accounts during such period.
"Dilution Reserve (Investment Grade)" means, as of
any date of determination, an
amount sufficient
to reduce
the advance
rate against
Eligible Accounts
by the
extent to
which
Dilution is in excess of 2.5%.
"Dilution Reserve
(Non-Investment Grade)"
means, as
of any date
of
determination, an amount
sufficient to reduce
the advance rate
against Eligible Accounts
by the
extent to which Dilution is in excess of 5%.
"Disqualified Equity Interests" means
any Equity Interests that,
by their terms
(or
by the terms of any security or other Equity Interests into which they are convertible or for which
they are
exchangeable), or
upon the
happening of
any event
or condition
(a) matures or
are
mandatorily redeemable (other
than solely for
Qualified Equity Interests),
pursuant to a
sinking
fund obligation or otherwise (except as a result of a change of control
or asset sale so long as any
rights of the holders thereof upon
the occurrence of a change of
control or asset sale event shall be
subject to the prior
repayment in full of
the Loans and all
other Obligations that are
accrued and
payable and the termination
of the Commitments), (b)
are redeemable at the
option of the holder
thereof (other than
solely for Qualified
Equity Interests), in
whole or in
part, (c) provide for
the
scheduled payments of
dividends in cash,
or (d) are or
become convertible into
or exchangeable
for Indebtedness or any other Equity Interests that would constitute Disqualified
Equity Interests,
in each case, prior to the date that is 180 days after the Maturity Date.
"Dollar Equivalent" means,
at any time,
with respect to
any amount denominated
in Canadian Dollars, the equivalent
amount thereof in US Dollars as
determined by Agent, at such
time on the basis
of the Spot Rate
(determined in respect of
the most recent Revaluation
Date or
such other date determined by Agent) for the purchase of US Dollars with Canadian Dollars.
"Dollars" or "$"
or "US Dollars" means United States dollars.
"Domestic Cash Equivalents"
means (a) marketable direct obligations
issued by, or
unconditionally guaranteed by,
the United States or
issued by any agency
thereof and backed by
the full faith and credit
of the United States, in
each case maturing within one
year from the date
of acquisition thereof, (b) marketable direct obligations issued or
fully guaranteed by any state of
the United States
or any political
subdivision of any
such state or
any public instrumentality
thereof
maturing within one
year from the
date of acquisition
thereof and, at
the time of
acquisition, having
one of the two highest ratings obtainable from either Standard & Poor's Rating Group ("S&P") or
Moody's Investors Service,
Inc. ("Moody's"), (c)
commercial paper maturing
no more
than 270
days from the date of creation thereof and, at the time of acquisition, having
a rating of at least A-
1 from S&P or at
least P-1 from Moody's,
(d) certificates of deposit, time
deposits, overnight bank
deposits or
bankers' acceptances
maturing within
one year
from the
date of
acquisition thereof
issued by any
bank organized under the
laws of the
United States or
any state thereof
or the District
of Columbia or any
United States branch of
a foreign bank having
at the date of
acquisition thereof
combined capital and
surplus of not
less than $1,000,000,000,
(e) Deposit Accounts
maintained
with (i)
any bank that
satisfies the
criteria described in
clause (d) above,
or (ii)
any other bank
organized under
the laws
of the
United States
or any
state thereof
so long
as the
full amount
maintained with any such other bank is insured by the Federal Deposit Insurance Corporation, (f)
repurchase obligations of
any commercial bank
satisfying the requirements
of clause (d)
of this
definition or
recognized securities
dealer having
combined capital
and surplus
of not
less than
$1,000,000,000, having a
term of not
more than seven
days, with respect
to securities satisfying
the criteria in clauses
(a) or (d) above,
(g) debt securities with
maturities of six months
or less from
the date of
acquisition backed by
standby letters of
credit issued by
any commercial bank
satisfying
the criteria described in
clause (d) above, and
(h) Investments in money
market funds substantially
all of whose assets are invested in the types of assets described in clauses (a) through (g) above.
"Domestic Subsidiary"
means any
Subsidiary of
any Loan
Party that
is not
a
Foreign Subsidiary.
"Drawing Document" means any Letter of
Credit or other document presented
for
purposes of
drawing under
any Letter
of Credit,
including by
electronic transmission
such as
SWIFT, electronic mail, facsimile or computer generated communication.
"Early Opt-in Election" means the occurrence of:
(a)
(i) a determination by Agent
or (ii) a notification
by the Required Lenders
to Agent (with
a copy to
Administrative Borrower)
that the
Required Lenders
have determined
that United States dollar-denominated
syndicated credit facilities being
executed at such time,
or
that include
language similar
to that
contained in
Section 2.12(d)(iii)
are being
executed or
amended, as
applicable, to
incorporate or
adopt a
new benchmark
interest rate
to replace
the
LIBOR Rate, and
(b)
(i) the election
by Agent
or (ii)
the election
by the
Required Lenders
to
declare that an
Early Opt-in Election
has occurred and
the provision, as
applicable, by Agent
of
written notice of
such election
to Administrative Borrower
and the
Lenders or by
the Required
Lenders of written notice of such election to Agent.
"EBITDA" means, with respect to any fiscal period and with
respect to Borrowers
determined, in each case, on a consolidated basis in accordance with GAAP:
(a)
the consolidated net income (or loss) for such period,
minus
(b)
without duplication,
the sum of
the following amounts
for such period
to
the extent included in determining consolidated net income (or loss) for such period:
(i) unusual or non-recurring gains,
(ii) non-cash gains
in respect
of post-retirement benefits
consisting of
health insurance and life insurance, and
(iii) interest income,
plus
(c)
without duplication,
the sum of
the following
amounts for
such period to
the extent deducted in determining consolidated net income (or loss) for such period:
(i) non-cash unusual and non-recurring losses,
(ii) Interest Expense,
(iii) income taxes,
(iv) depreciation and amortization,
(v) costs,
fees, charges
or expenses
incurred in
connection with
the
closing of
this Agreement
prior to,
on or
within 120
days of
the Closing
Date in
an aggregate
amount not to exceed $500,000,
(vi) transaction fees
and expenses in
connection with any
amendments
to or
waivers in
connection with
the Loan
Documents in
an aggregate
amount not
to exceed
$250,000;
provided,
that such amounts added back pursuant to this clause (vi) in any period shall,
when aggregated with the amount of any addbacks pursuant to clauses (vii)
and (viii), not exceed
an aggregate amount
equal to 10%
of EBITDA for
the such twelve
month period, calculated
before
giving effect thereto,
(vii) transaction fees
and expenses
in connection
with Permitted
Acquisitions, whether
or not
consummated in
an aggregate
amount not
to exceed
$750,000;
provided,
that such
amounts added
back pursuant
to this
clause (vii)
in any
period shall,
when
aggregated with
the amount
of any
addbacks pursuant
to clauses
(vi) and
(viii), not
exceed an
aggregate amount equal to
10% of EBITDA for
the such twelve month
period, calculated before
giving effect thereto,
(viii)
fees, costs
and expenses
in respect
of start
up or
shut down
of
facilities (including,
without limitation,
relocation, severance,
hiring and
transition costs)
in an
aggregate amount not to exceed $1,000,000;
provided,
that such amounts added back pursuant to
this clause (viii) in
any period shall, when aggregated
with the amount of
any addbacks pursuant
to clauses (vi)
and (vii), not
exceed an aggregate
amount equal to
10% of EBITDA
for the such
twelve month period, calculated before giving effect thereto,
(ix) non-cash
costs and
expenses in
respect of
post-retirement benefits
consisting of health insurance and life insurance and
(x) costs,
fees, charges and
expenses incurred in
connection with
Existing Credit Facility in an aggregate amount not to exceed $2,500,000.
"EEA Financial
Institution"
means (a)
any credit
institution or
investment firm
established in any
EEA Member Country
which is subject to
the supervision of
an EEA Resolution
Authority, (b) any entity established in
an EEA Member
Country which is
a parent of
an institution
described in
clause (a)
of this
definition, or
(c) any financial
institution established
in an
EEA
Member Country
which is
a subsidiary
of an
institution described
in clauses
(a) or
(b) of
this
definition and is subject to consolidated supervision with its parent.
"EEA Member Country" means
any of the member
states of the European
Union,
Iceland, Liechtenstein, and Norway.
"EEA Resolution
Authority" means
any public
administrative authority
or any
person entrusted with public
administrative authority of any
EEA Member Country (including
any
delegee) having responsibility for the resolution of any EEA Financial Institution.
"Eligible Accounts" means those Accounts created
by a Borrowing Base Company
in the ordinary
course of its
business, that arise
out of such
Borrowing Base Company's
sale of
goods or
rendition of
services, that
comply with
each of
the representations
and warranties
respecting Eligible Accounts made in the
Loan Documents, and that are
not excluded as ineligible
by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may
be revised from time
to time by Agent
in Agent's Permitted Discretion
to address the results
of any
information with
respect to
the Borrower
Base Companies'
business or
assets of
which Agent
becomes aware after the
Closing Date, including any
field examination performed by
(or on behalf
of) Agent from
time to time
after the Closing
Date.
In determining the
amount to be
included,
Eligible Accounts
shall be
calculated net
of customer
deposits, unapplied
cash, taxes,
finance
charges, service charges,
discounts, credits, allowances, and rebates.
Eligible Accounts shall not
include the following:
(a)
Accounts that
the Account
Debtor has
failed to
pay within
90 days
of
original invoice
date (or
120 days
of original
invoice date
in the
case of
Main Access
LLC,
including its Sunwalk division) or 60 days of due date (or 30 days of due date in the case of Main
Access LLC, including its Sunwalk division),
(b)
Accounts owed by an
Account Debtor (or its
Affiliates) where 50% or
more
of all Accounts owed by
that Account Debtor (or its Affiliates) are
deemed ineligible under clause
(a) above,
(c)
Accounts with selling terms of more than 60 days
(or 90 days in the case of
Main Access LLC, including its Sunwalk division),
(d)
Accounts with respect
to which the
Account Debtor is
an Affiliate of
any
Borrowing Base
Company or
an employee
or agent
of any
Borrowing Base
Company or
any
Affiliate of any Borrowing Base Company,
(e)
Accounts (i)
arising in
a transaction
wherein goods
are placed
on
consignment or are
sold pursuant to
a guaranteed sale, a
sale or return,
a sale on
approval, a bill
and hold
(other than
Accounts owed
by Deckorators,
Inc. (f/k/a Universal
Consumer Products,
Inc.), a
Michigan corporation,
to the
extent Agent
has received
an agreement,
in form
and
substance acceptable to Agent,
confirming the unconditional obligation of the
Account Debtor to
take the
Goods related
thereto and
pay such
Accounts (Agent
hereby acknowledges
that the
contract with D
eckorators, Inc. (f/k/a
Universal Consumer Products,
Inc.), a Michigan
corporation,
dated January 1,
2019, as
in effect
on the
date hereof, shall
be deemed to
satisfy the foregoing
condition), or
any other
terms by reason
of which
the payment
by the
Account Debtor
may be
conditional, or (ii)
with respect to
which the payment terms
are "C.O.D.", cash
on delivery or
other
similar terms,
(f)
Accounts that are not payable in US Dollars or Canadian Dollars,
(g)
Accounts with
respect to
which the
Account Debtor
either (i)
does not
maintain its chief executive
office in the United States
or Canada, or (ii)
is not organized under the
laws of the United States or
Canada or any state or province thereof,
or (iii) is the government of
any foreign country
or sovereign state,
or of any
state, province, municipality,
or other political
subdivision thereof,
or of
any department,
agency, public
corporation, or
other instrumentality
thereof, unless (A)
the Account is
supported by an
irrevocable letter of
credit reasonably
satisfactory to Agent (as
to form, substance, and
issuer or domestic confirming
bank) that has been
delivered to Agent and, if
requested by Agent, is directly
drawable by Agent, or (B)
the Account
is covered
by credit
insurance in
form, substance,
and amount,
and by
an insurer,
reasonably
satisfactory to Agent,
(h)
Accounts with
respect to
which the
Account Debtor
is (i)
(A) the United
States or any department, agency,
or instrumentality of the United
States (exclusive, however,
of
Accounts with
respect to
which Borrower
Base Companies
have complied,
to the
reasonable
satisfaction of Agent, with the Assignment of Claims Act, 31 USC §3727), or (B) any state of the
United States,
or (ii)
(A) the Government
of Canada
or any
department, agency
or instrument
thereof (exclusive, however, of Accounts with respect to which Borrowing Base Companies have
complied, to
the reasonable satisfaction
of Agent, with
the Financial
Administration Act
(Canada)), or
(B) any province
of Canada,
or (iii)
in the
case of
any Borrower, any
other
Governmental Authority,
(i)
Accounts with
respect to
which the
Account Debtor
is a
creditor of
a
Borrowing Base Company, has or
has asserted a right of recoupment or setoff, or
has disputed its
obligation to pay
all or any
portion of the Account,
to the extent of
such claim, right of
recoupment
or setoff, or dispute,
(j)
Accounts with
respect to
an Account
Debtor whose
Eligible Accounts
owing to
Borrower Base
Companies exceed
15% (such
percentage, as
applied to
a particular
Account Debtor,
being subject
to reduction
by Agent
in its
Permitted Discretion
if the
creditworthiness of such Account
Debtor deteriorates) of all
Eligible Accounts, to the
extent of the
obligations owing by
such Account Debtor
in excess of
such percentage (other
than (i) with
respect
to UFP Industries, Inc. (f/k/a Universal Forest Product, Inc.) and Navistar,
Inc., in which case the
total obligations
of such
Account Debtor
shall not
exceed 30%
of all
Eligible Accounts,
such
percentage being subject to reduction by Agent in its
Permitted Discretion if the creditworthiness
of such Account Debtor deteriorates
and (ii) with respect
to Bombadier Recreational Products Inc.
in which case
the total obligations
of such Account
Debtor shall not
exceed 20% of
all Eligible
Accounts, such percentage being
subject to reduction
by Agent in its
Permitted Discretion if
the
creditworthiness of such Account Debtor deteriorates); provided, that in each case, the amount
of
Eligible Accounts
that are
excluded because
they exceed
the foregoing
percentage shall
be
determined by Agent based on all of the otherwise Eligible Accounts prior to
giving effect to any
eliminations based upon the foregoing concentration limit,
(k)
Accounts with respect to which
the Account Debtor is subject
to an
Insolvency Proceeding, is
not Solvent,
has gone out
of business, or
as to which
any Borrowing
Base Company has
received notice of
an imminent Insolvency
Proceeding or a
material
impairment of the financial condition of such Account Debtor,
(l)
Accounts, the collection of which, Agent, in its Permitted Discretion,
believes to be doubtful, including by reason of the Account Debtor's financial condition,
(m)
Accounts that are not
subject to a valid
and perfected first priority
Agent's
Lien,
(n)
Accounts with respect
to which (i)
the goods giving
rise to such
Account
have not been
shipped and
billed to
the Account
Debtor, or
(ii) the services giving
rise to
such
Account have not been performed and billed to the Account Debtor,
(o)
Accounts with respect to which the Account Debtor is a Sanctioned Person
or Sanctioned Entity,
(p)
Accounts (i) that represent
the right to
receive progress payments
or other
advance billings that are due prior to the completion of performance by the applicable Borrowing
Base Company of the subject contract for
goods or services, or (ii) that represent credit
card sales,
(q)
at any time that the Citi Purchase Documents are
in effect, Accounts owing
by Xylem, Inc. or any Subsidiary or Affiliate
of Xylem, Inc. to Borrowing Base Companies, or
(r)
Accounts owned by a target acquired in
connection with a Permitted
Acquisition or
Permitted Investment,
or Accounts
owned by
a Person
that is
joined to
this
Agreement as a Borrower pursuant to
the provisions of this Agreement, until
the completion of a
field examination with
respect to such
Accounts, in each
case, satisfactory to
Agent in its
Permitted
Discretion.
"Eligible Finished
Goods Inventory"
means Inventory
that qualifies
as Eligible
Inventory and
consists of
finished goods
of good
and merchantable quality
held for
sale in
the
ordinary course of Borrower Base Companies' business.
"Eligible Investment
Grade Accounts"
means Eligible
Accounts with
respect to
which the Account Debtor
is a Person with a
rating of
at least BBB- by
S&P and Baa3 by
Moody's
(other than Eligible Tooling Accounts).
"Eligible Inventory" means
Inventory of a
Borrowing Base Company, that
complies
with each of
the representations
and warranties respecting
Eligible Inventory made
in the
Loan
Documents, and that is
not excluded as ineligible
by virtue of one
or more of the excluding
criteria
set forth below; provided, that such criteria may be revised from time to time by Agent in Agent's
Permitted Discretion to address
the results of any
information with respect to
the Borrower Base
Companies' business or
assets of which
Agent becomes aware
after the Closing
Date, including
any field
examination or
appraisal performed
or received
by Agent
from time
to time
after the
Closing Date.
In determining the amount to be
so included, Inventory shall be valued at
the lower
of cost
or market
on a
basis consistent
with Borrower
Base Companies'
historical accounting
practices.
An item of Inventory shall not be included in Eligible Inventory if:
(a)
a Borrowing Base Company
does not have good, valid,
and marketable title
thereto,
(b)
a Borrowing Base Company does not have actual and exclusive possession
thereof (either directly or through a bailee or agent of a Borrowing Base Company),
(c)
it is not
located at one
of the locations
in the continental
United States or
Canada set
forth on
Schedule 4.25
to this
Agreement (as such
Schedule 4.25
may be
amended
from time to time in
accordance with Section 5.14) (or
in-transit from one such location
to another
such location),
(d)
it is stored at locations holding
less than $100,000 of the aggregate value
of
such Borrowing Base Company's Inventory,
(e)
it is in-transit
to or from
a location of
a Borrowing Base
Company (other
than in-transit from one location set forth on
Schedule 4.25 to this Agreement to another location
set forth on Schedule 4.25
to this Agreement (as such
Schedule 4.25 may be
amended from time
to time in accordance with Section 5.14)),
(f)
it is located on real
property leased by a Borrowing
Base Company or in a
contract warehouse or
with a bailee,
in each case,
unless either (i)
it is subject
to a Collateral
Access
Agreement executed by
the lessor or
warehouseman, as the
case may be,
and it is
segregated or
otherwise separately identifiable from
goods of others, if
any, stored on the premises, or (ii)
Agent
has established a Landlord Reserve with respect to such location,
(g)
it is the subject of a bill of lading or other document of title,
(h)
it is not subject to a valid and perfected first priority Agent's Lien,
(i)
it consists of
goods returned or
rejected by a
Borrowing Base Company's
customers,
(j)
it consists of goods that
are obsolete, slow moving, spoiled
or are otherwise
past the stated expiration, "sell-by" or "use
by" date applicable thereto, restrictive or custom items
or otherwise
is manufactured
in accordance
with customer-specific
requirements, or
goods that
constitute spare parts, packaging and
shipping materials, supplies used or
consumed in Borrower
Base Companies' business, bill and hold goods, defective
goods, "seconds," or Inventory acquired
on consignment,
(k)
it is subject
to third party
intellectual property, licensing or
other proprietary
rights, unless Agent is satisfied
in its Permitted Discretion
that such Inventory can be
freely sold
by Agent on and after the occurrence of an Event of a Default despite such third party rights, or
(l)
it was
acquired in
connection with
a Permitted
Acquisition or
Permitted
Investment, or such Inventory
is owned by a Person
that is joined to this
Agreement as a Borrower
pursuant to the provisions of
this Agreement, until the completion
of an Acceptable Appraisal of
such Inventory and
the completion
of a field
examination with respect
to such Inventory
that is
satisfactory to Agent in its Permitted Discretion.
"Eligible M&E
"
means M&E
of a
Borrower Base
Company, that
complies with
each of the representations
and warranties respecting Eligible
M&E made in the Loan
Documents,
and that is
not excluded as
ineligible by virtue
of one or
more of the
excluding criteria set
forth
below; provided, that
such criteria may
be revised from time
to time by
Agent in Agent's
Permitted
Discretion to address
the results
of any due
diligence information
with respect
to the
Borrower
Base Companies'
business or
assets of
which Agent
becomes aware
after the
Closing Date,
including any field
examination or
appraisal performed or
received by Agent
from time to
time
after the Closing Date.
An item of M&E shall not be included in Eligible M&E if:
(a)
it is not subject to a valid and perfected first priority Agent's Lien,
(b)
a Borrower Base Company does not have
good, valid, and marketable title
thereto,
(c)
a Borrower Base
Company does not
have actual and
exclusive possession
thereof (either directly or through a bailee or agent of
a Borrower Base Company), including as a
result of the lease thereof by a Borrower Base Company,
(d)
it is not
located at one
of the locations
in the continental
United States or
Canada set
forth on
Schedule 4.25
to this
Agreement (or
in-transit from
one such
location to
another such location) (as
such Schedule 4.25 may
be amended from time
to time in
accordance
with Section 5.14),
(e)
it is in-transit to
or from a
location of a
Borrower Base Company
(other than
in-transit from one
location set forth
on Schedule 4.25
to this Agreement
to another location
set
forth on Schedule 4.25 to
this Agreement) (as such Schedule
4.25 may be amended
from time to
time in accordance with Section 5.14),
(f)
(i) it is "subject to" (within the
meaning of Section 9-311
of the Code) any
certificate of title
(or comparable) statute
(unless Agent has
a first priority,
perfected Lien under
such statute
and Agent
has possession
and custody
of such
certificate), or
(ii) in the
case of
Borrowing Base Companies
that are Canadian
Loan Parties, it
is Equipment bearing
a VIN number
or "serial number goods" or "serial
numbered goods" within the meaning of
the applicable PPSA
(unless filings against such Equipment or Goods under the applicable
PPSA including the
corresponding VINs or serial numbers, satisfactory to the Agent, have been made),
(g)
it does not meet (unless
it is under repair or
held for repair for
the purpose
of meeting), in all material respects, all applicable safety or regulatory requirements applicable to
it by law for the use for which it is intended or for which it is being used,
(h)
it is not used or usable in the ordinary course of the Borrower Base
Companies' business due to
a damaged or inoperable
condition (other than M&E
under repair or
held for repair for such purpose),
(i)
it does not meet (unless
it is under repair or
held for repair for
the purpose
of meeting), in all material respects, all applicable requirements of all motor vehicle laws or other
statutes and
regulations established
by any
Governmental Authority
then applicable
to such
Equipment, or is subject to any licensing or
similar requirement,
(j)
it is located
on real property
leased by a
Borrower Base Company
or in a
contract warehouse, in
each case, unless
either (i) it
is subject to
a Collateral Access Agreement
executed by
the lessor
or warehouseman,
as the
case may
be, and
unless it
is segregated
or
otherwise separately identifiable from
equipment of others, if
any, stored
on the premises, or
(ii)
Agent has established a Landlord Reserve with respect to such location,
(k)
its use or
operation requires proprietary
software that is
not freely assignable
to Agent, or
(l)
an Acceptable Appraisal of such M&E has not been completed.
"Eligible Mexican
Accounts" means
Accounts owing
from an
Account Debtor
identified on
Schedule E-3
that meet
all the
criteria of
Eligible Accounts
other than
clause (g)
thereof solely as a result of such Account Debtor being organized under the laws of Mexico.
"Eligible Non-Investment Grade
Accounts" means Eligible
Accounts that are
not
Eligible Investment Grade Accounts or Eligible Tooling Accounts.
"Eligible Raw Material Inventory" means Inventory that qualifies as Eligible
Inventory and consists of goods that are raw materials of good and merchantable quality.
"Eligible Real
Property" means
Real Property
owned in
fee by
Borrower that
complies with
each of
the representations
and warranties
respecting Real
Property made
in the
Loan Documents, and that is not
excluded as ineligible by virtue of one or
more of the excluding
criteria set forth below; provided, that such criteria may be revised from time
to time by Agent in
Agent's Permitted Discretion to address the
results of any information with respect to
the
Borrowers' business or
assets of which Agent
becomes aware after
the Closing Date, including
any
field examination
or appraisal
performed by
or received
by Agent
from time
to time
after the
Closing Date.
An item of Real Property shall not be included in Eligible Real Property if:
(a)
it is not identified
on Schedule E-2 to
the Agreement as of
the Closing Date,
(b)
a Borrower does not have good, valid, and marketable fee title thereto,
(c)
it is
not Real
Property with
respect to
which Agent
has received
(i) mortgagee title insurance policies
issued by a title
insurance company reasonably satisfactory
to Agent in amounts reasonably satisfactory to Agent (but in no
event less than the FMV thereof)
assuring Agent that
the Mortgages on
such Real Property
are valid and
enforceable first priority
mortgage Liens
on such
Real Property
free and
clear of
all defects
and encumbrances
except
Permitted Liens, and otherwise in
form and substance reasonably
satisfactory to Agent, (ii) ALTA
surveys in form
and substance reasonably
satisfactory to Agent,
(iii) phase-I environmental reports
with respect to each
parcel composing the Real
Property (the environmental
consultants retained
for such
reports, the
scope of
the reports,
and the
results thereof
of which
shall be
reasonably
satisfactory to Agent), and (iv) flood certifications
(and, if applicable, acceptable flood insurance
and FEMA form acknowledgements of insurance),
(d)
an Acceptable Appraisal of such item of Real Property has
not been
completed,
(e)
it is not
Real Property Collateral
subject to a
valid and perfected
first priority
Agent's Lien, or
(f)
it is subject to any Lien other than Permitted Liens of the
type described in
clauses (a), (b), (c), (g), or (k) of the definition thereof.
"Eligible Tooling Accounts"
means Eligible Accounts
owing in respect of the sale
of Tooling by Borrower.
"Employee Benefit Plan" means any employee
benefit plan within the meaning of
Section 3(3) of
ERISA, that is subject
to ERISA and (a)
that is or within
the preceding six (6)
years
has been sponsored, maintained or
contributed to by any Loan
Party or ERISA Affiliate
or (b) to
which any Loan Party or ERISA Affiliate has, or has
had at any time within the preceding six (6)
years, any liability, contingent or otherwise, other than a Multiemployer Plan.
"Environmental Action" means
any written complaint,
summons, citation, notice,
directive, order,
claim, litigation, investigation,
judicial or administrative
proceeding, judgment,
letter, or
other written
communication from
any Governmental
Authority, or
any third
party
involving violations
of Environmental
Laws or
releases of
Hazardous Materials
(a) from any
assets, properties, or businesses of any Borrower, any Subsidiary of any Borrower, or any of their
predecessors in
interest, (b)
from adjoining
properties or
businesses, or
(c) from or
onto any
facilities which received Hazardous Materials
generated by any Borrower,
any Subsidiary of any
Borrower, or any of their predecessors in interest.
"Environmental Law"
means any
applicable federal,
state, provincial,
foreign or
local statute, law, rule,
regulation, ordinance, code,
binding and enforceable
guideline, binding and
enforceable written policy,
or rule of common
law now or hereafter
in effect and
in each case as
amended, or any judicial or
administrative interpretation thereof, including any
judicial or
administrative order, consent decree or judgment, in each case, to the extent
binding on any Loan
Party or its Subsidiaries,
relating to the
environment, the effect
of the environment
on employee
health, or Hazardous Materials, in each case as amended from time to time.
"Environmental Liabilities" means all liabilities, monetary obligations, losses,
damages, costs
and expenses
(including all
reasonable fees,
disbursements and
expenses of
counsel, experts, or consultants, and
costs of investigation and feasibility
studies), fines, penalties,
sanctions, and interest
incurred under Environmental
Law, including
as a result
of any claim
or
demand, or
Remedial Action
required, by
any Governmental
Authority or
any third
party, and
which relate to any Environmental Action.
"Environmental Lien" means any Lien in favor of any
Governmental Authority for
Environmental Liabilities.
"Equipment" means equipment (as that
term is defined in the Code
or, to the extent
applicable, the PPSA).
"Equity Interests"
means, with
respect to
a Person,
all of
the shares,
options,
warrants, interests, participations, or
other equivalents (regardless of
how designated) of or
in such
Person, whether voting or
nonvoting, including capital stock
(or other ownership or
profit interests
or units), preferred stock, or any other
"equity security" (as such term is defined in
Rule 3a11-1 of
the General Rules and Regulations promulgated by the SEC under the Exchange Act).
"ERISA" means the Employee
Retirement Income Security Act
of 1974, as
amended, and any successor statute thereto.
"ERISA Affiliate
"
means (a) any Person
subject to
ERISA whose employees
are
treated as employed by the same employer as the employees of any Loan Party or its Subsidiaries
under IRC Section
414(b), (b) any trade
or business subject
to ERISA whose
employees are treated
as employed by the same
employer as the employees of
any Loan Party or its
Subsidiaries under
IRC Section 414(c), (c) solely for purposes of Section 302 of ERISA and Section 412 of the IRC,
any organization subject
to ERISA that
is a member
of an affiliated
service group of
which any
Loan Party
or any
of its
Subsidiaries is
a member under
IRC Section
414(m), or
(d) solely for
purposes of Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA that
is a party to an arrangement with
any Loan Party or any of its
Subsidiaries and whose employees
are aggregated
with the
employees of
such Loan
Party or
its Subsidiaries
under IRC
Section
414(o).
"EU Bail-In
Legislation Schedule"
means the
EU Bail-In
Legislation Schedule
published by the
Loan Market
Association (or
any successor
person), as
in effect
from time
to
time.
"Event of Default
"
has the meaning
specified therefor in
Section 8 of
this
Agreement.
"Excess" has the meaning specified therefor in Section 2.14 of this Agreement.
"Excess Availability"
means, as of any date of
determination, the amount equal to
Availability
minus
the aggregate amount, if any, of all trade payables of the
Loan Parties and their
Subsidiaries aged in excess of historical
levels with respect thereto and all book
overdrafts of the
Loan Parties and
their Subsidiaries in
excess of historical
practices with respect
thereto, in each
case as determined by Agent in its Permitted Discretion.
"Exchange Act" means the Securities Exchange
Act of 1934, as in effect
from time
to time.
"Exchange Rate
"
means and
refers to
the nominal
rate of
exchange (vis
-à-vis
Dollars) for a currency other
than Dollars published in the
Wall
Street Journal (Western
Edition)
on the
date of
determination (which
shall be
a Business
Day on
which the
Wall
Street Journal
(Western Edition)
is published), expressed as the
number of units of
such other currency per one
Dollar.
"Excluded Swap
Obligation" means,
with respect
to any
Loan Party,
any Swap
Obligation if, and
to the extent
that, all or
a portion of
the guaranty of
such Loan Party
of (including
by virtue of
the joint and
several liability provisions
of Section 2.16),
or the grant
by such Loan
Party of a
security interest to secure,
such Swap Obligation
(or any guaranty
thereof) is or
becomes
illegal under
the Commodity
Exchange Act
or any
rule, regulation
or order
of the
Commodity
Futures Trading Commission (or the application or official interpretation of any
thereof) by virtue
of such Loan
Party's failure for
any reason to
constitute an "eligible
contract participant" as
defined
in the Commodity Exchange
Act and the regulations
thereunder at the time
the guaranty of such
Loan Party
or the
grant of
such security
interest becomes
effective with
respect to
such Swap
Obligation.
If a Swap Obligation arises
under a master agreement governing more
than one swap,
such exclusion shall apply
only to the portion
of such Swap Obligation
that is attributable to
swaps
for which such guaranty or security interest is or becomes illegal.
"Excluded Taxes
"
means (i) any tax
imposed on the
net income
or net
profits of
any Lender or
any Participant (including
any branch profits
taxes), in each
case imposed by
the
jurisdiction (or by any
political subdivision or
taxing authority thereof)
in which such
Lender or
such Participant is organized or the
jurisdiction (or by any
political subdivision or taxing authority
thereof) in which such Lender's or such Participant's principal office
is located in or as a result of
a present or
former connection
between such
Lender or
such Participant
and the
jurisdiction or
taxing authority imposing the tax (other
than any such connection arising solely
from such Lender
or such Participant
having executed, delivered
or performed its
obligations or received
payment
under, or enforced its rights
or remedies under this Agreement or any other
Loan Document), (ii)
withholding taxes that would not have been imposed but
for a Lender's or a Participant's failure to
comply with the
requirements of Section
16.2 of this
Agreement, (iii) any United
States federal
withholding taxes that would be imposed on amounts payable to
a Foreign Lender based upon the
applicable withholding
rate in
effect at
the time
such Foreign
Lender becomes
a party
to this
Agreement (or designates a new
lending office, other than
a designation made at the
request of a
Loan Party),
except that
Excluded Taxes
shall not
include (A)
any amount
that such
Foreign
Lender (or its assignor,
if any) was previously entitled
to receive pursuant to
Section 16.1 of this
Agreement, if any, with respect to such withholding tax at the time such Foreign Lender becomes
a party to
this Agreement (or
designates a new
lending office), and
(B) additional United States
federal withholding taxes that
may be imposed
after the time such
Foreign Lender becomes a
party
to this
Agreement (or
designates a
new lending
office), as
a result
of a
change in
law, rule,
regulation, treaty,
order or
other decision
or other
Change in
Law with
respect to
any of
the
foregoing by any
Governmental Authority,
and (iv) any
United States federal
withholding taxes
imposed under FATCA.
"Existing Credit Facility" means the facilities
evidenced by that certain Amended
and Restated Credit Agreement,
initially dated as of
January 16, 2018, among
Borrower, KeyBank
National Association, as administrative agent, and the lenders and other parties thereto, as
amended prior to the date hereof.
"Extraordinary Advances"
has the meaning specified therefor in Section 2.3(d)(iii)
of this Agreement.
"Extraordinary Receipts
"
means (a)
so long
as no
Event of
Default has
occurred
and is continuing,
proceeds of judgments,
proceeds of settlements,
or other consideration
of any
kind received in connection
with any cause of action
or claim, and (b) if an
Event of Default has
occurred and is
continuing, any payments
received by any
Loan Party or
any of its
Subsidiaries
not in
the ordinary
course of
business (and
not consisting
of proceeds
described in
Section
2.4(e)(iii) of this Agreement) consisting of
(i) proceeds of judgments, proceeds of settlements,
or
other consideration of any kind received in connection with any cause of action
or claim (and not
consisting of proceeds described
in Section 2.4(e)(iii)
of this Agreement, but
including proceeds
of business interruption insurance),
(ii) indemnity payments (other than
to the extent such
indemnity payments are immediately payable
to a Person that is not
an Affiliate of any Loan
Party
or any of its Subsidiaries, and (iii) any purchase price adjustment received in connection with any
purchase agreement.
"FATCA
"
means Sections
1471 through
1474 of
the IRC,
as of
the date
of this
Agreement (or any amended
or successor
version that
is substantively
comparable and
not
materially more
onerous to
comply with),
and (a)
any current
or future
regulations or
official
interpretations thereof, (b) any agreements entered
into pursuant to Section 1471(b)(1)
of the IRC,
and (c)
any intergovernmental
agreement entered
into by
the United
States (or
any fiscal
or
regulatory legislation,
rules, or
practices adopted
pursuant to
any such
intergovernmental
agreement entered into in connection therewith).
"FCPA"
means the
Foreign Corrupt
Practices Act
of 1977,
as amended,
and the
rules and regulations thereunder.
"Federal Funds Rate" means,
for any period, a
fluctuating interest rate
per annum
equal to, for each day during
such period, the weighted average
of the rates on overnight
Federal
funds transactions
with members
of the
Federal Reserve
System, as
published on
the next
succeeding Business
Day by
the Federal
Reserve Bank
of New
York,
or, if
such rate
is not
so
published for any day which is a
Business Day, the average of the quotations for such day
on such
transactions received by Agent
from three Federal funds
brokers of recognized standing
selected
by it (and, if any such rate is below zero, then the rate determined pursuant to this definition shall
be deemed to be zero).
"Federal Reserve Bank of
New York's
Website"
means the website of the
Federal
Reserve Bank of New York
at http://www.newyorkfed.org, or
any successor source.
"Fee Letter" means
that certain fee
letter, dated as of
even date with
this Agreement,
among Borrowers and Agent, in form and substance reasonably satisfactory to Agent.
"Fixed Charges"
means, with
respect to
any fiscal
period and
with respect
to
Borrowers determined
on a
consolidated basis
in accordance
with GAAP,
the sum,
without
duplication, of
(a) Interest Expense
required to
be paid
(other than
interest paid
-in-kind,
amortization of financing
fees, and other
non-cash Interest
Expense) during such
period,
(b) scheduled principal payments
in respect
of Indebtedness
that are
required to
be paid
during
such period, (c) all federal, state,
and local income taxes required
to be paid during
such period (to
the extent not included in EBITDA, net
of income tax refunds received in cash
during such period
in an amount not to exceed such income taxes paid)
,
(d) all Restricted Payments paid (whether in
cash or other
property, other than Equity Interests
that are not Disqualified
Equity Interests) during
such period, (e) cash
payments in respect of
post-retirement benefits consisting of
health insurance
and life insurance, and (f) to the extent not otherwise deducted from EBITDA for such period, all
payments required to be made during such period in respect of any funding deficiency or funding
shortfall with respect to any Pension Plan or for any Withdrawal Liability.
"Fixed Charge Coverage
Ratio" means, with respect
to any fiscal period
and with
respect to Borrowers
determined on a
consolidated basis in
accordance with GAAP,
the ratio of
(a) EBITDA for
such period
minus
Unfinanced Capital
Expenditures made
(to the
extent not
already incurred in
a prior period)
or incurred during
such period, to
(b) Fixed Charges for
such
period.
"Flow of Funds
Agreement" means
a flow of
funds agreement,
dated as
of even
date with this
Agreement, in form
and substance reasonably
satisfactory to Agent,
executed and
delivered by Borrowers and Agent.
"FMV"
means, as of any date of
determination, the fair market value of
Borrowers'
Eligible Real
Property that
is estimated
to be
recoverable in
an orderly
sale in
a 12
month
marketing period of such
Eligible Real Property net
of all associated
costs and expenses
of such
sale, such
value to
be as
specified in
the most
recent Acceptable
Appraisal of
Real Property;
provided, that, for
purposes of the
R/E Borrowing Base,
the FMV of
any Eligible Real
Property
shall not exceed the lesser of (x) amount of title insurance obtained by Agent with respect to such
Eligible Real Property
and (y) the
maximum amount
secured by the
Mortgage on such
Eligible
Real Property
"Foreign Cash Equivalents"
means (a) certificates of deposit, bankers'
acceptances,
or time deposits
maturing within one
year from the
date of acquisition
thereof, in each
case payable
in an Agreed
Currency and issued
by any bank
organized under the
laws of any
Specified State
and having
at the
date of
acquisition thereof
combined capital
and surplus
of not
less than
$1,000,000,000 (calculated
at the
then applicable
Exchange Rate),
(b) Deposit Accounts
maintained with
any bank
that satisfies
the criteria
described in
clause (a)
above, and
(c) Investments in money market funds
substantially all of whose assets
are invested in the
types
of assets described in clauses (a) through (b) above.
"Foreign Lender" means
any Lender or
Participant that is
not a United
States person
within the meaning of IRC section 7701(a)(30).
"Foreign Subsidiary" means
any direct or
indirect Subsidiary of
any Loan Party
that
is organized under
the laws of
any jurisdiction other
than the United
States, any state
thereof or
the District of Columbia.
"Funded Indebtedness" means, as
of any date of
determination, all Indebtedness for
borrowed money or letters
of credit of Borrowers,
determined on a consolidated
basis in
accordance with GAAP,
including, in any event, but without duplication, with respect
to the Loan
Parties and
their Subsidiaries,
the Revolver
Usage, the
Term Loan,
and the
amount of
their
Capitalized Lease Obligations.
"Funding Date"
means the date on which a Borrowing occurs.
"Funding Losses" has the
meaning specified therefor in
Section 2.12(b)(ii) of this
Agreement.
"GAAP" means generally accepted accounting
principles as in effect from
time to
time in the United States, consistently applied.
"Governing Documents"
means, with
respect to
any Person,
the certificate
or
articles of incorporation, by-laws, or other organizational documents of such Person.
"Governmental Authority"
means the
government of
any nation
or any
political
subdivision thereof, whether at the national, state, territorial, provincial, county, municipal or any
other level,
and any
agency, authority,
instrumentality, regulatory
body, court,
central bank
or
other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers
or functions
of, or
pertaining to,
government (including
any supra-national
bodies such
as the
European Union or the European Central Bank).
"Guarantor" means
(a) each Person
that guaranties
all or
a portion
of the
Obligations, including
Canadian Loan
Parties and
any Person
that is
a "Guarantor"
under the
Guaranty and Security
Agreement, and (b)
each other Person
that becomes a
guarantor after the
Closing Date pursuant to Section 5.11 of this Agreement.
"Guaranty and
Security Agreement"
means a
guaranty and
security agreement,
dated as of even
date with this Agreement,
in form and substance
reasonably satisfactory to Agent,
executed and delivered by each of the Loan Parties to Agent.
"Hazardous Materials" means (a)
substances that are defined
or listed in,
or
otherwise classified
pursuant to,
any applicable
laws or
regulations as
"hazardous substances,"
"hazardous materials," "hazardous wastes," "toxic substances," or any other formulation intended
to define,
list, or
classify substances
by reason
of deleterious
properties such
as ignitability,
corrosivity, reactivity,
carcinogenicity, reproductive
toxicity, or
"EP toxicity", (b) oil, petroleum,
or petroleum
derived substances,
natural gas,
natural gas
liquids, synthetic
gas, drilling
fluids,
produced waters, and other wastes associated with the exploration, development, or production of
crude oil, natural gas, or geothermal resources,
(c) any flammable substances or explosives or any
radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million.
"Hedge Agreement" means
a "swap agreement" as
that term is defined
in Section
101(53B)(A) of the Bankruptcy Code.
"Hedge Obligations" means any and all obligations
or liabilities, whether absolute
or contingent, due or to become due, now existing or hereafter arising, of each
Loan Party and its
Subsidiaries arising under, owing pursuant to, or existing in respect
of Hedge Agreements entered
into with one or more of the Hedge Providers.
"Hedge Provider
"
means any
Bank Product
Provider that
is a
party to
a Hedge
Agreement with a
Loan Party or
its Subsidiaries or otherwise
provides Bank Products under
clause
(f) of the
definition thereof; provided,
that if, at
any time, a
Lender ceases to
be a Lender
under
this Agreement (prior to
the payment in full
of the Obligations), then,
from and after the
date on
which it ceases to be
a Lender thereunder, neither it nor any
of its Affiliates shall constitute Hedge
Providers and the
obligations with
respect to Hedge
Agreements entered
into with
such former
Lender or any of its Affiliates shall no longer constitute Hedge Obligations.
"Increase" has the meaning specified therefor in Section 2.14.
"Increase Date"
has the meaning specified therefor in Section 2.14.
"Increase Joinder"
has the meaning specified therefor in Section 2.14.
"Increased Reporting
Event" means
if at
any time
Availability is
less than
the
greater of (a) 15% of the Maximum Revolver Amount, and (b) $3,750,000.
"Increased Reporting Period" means the period commencing after
the continuance
of an Increased Reporting Event and
continuing until the date when no Increased
Reporting Event
has occurred for 30 consecutive days.
"Indebtedness" as
to any
Person means
(a) all obligations
of such
Person for
borrowed money,
(b) all obligations
of such
Person evidenced
by bonds,
debentures, notes,
or
other similar instruments and all reimbursement or other obligations in respect of letters of credit,
bankers acceptances, or
other financial products,
(c) all obligations of
such Person as
a lessee under
Capital Leases, (d)
all obligations or
liabilities of others
secured by a
Lien on any
asset of such
Person, irrespective of whether such
obligation or liability is
assumed, (e) all obligations of
such
Person to
pay the
deferred purchase
price of
assets (other
than trade
payables incurred
in the
ordinary course of business
and repayable in
accordance with customary
trade practices and,
for
the avoidance of doubt, other than royalty payments payable in the ordinary course of business in
respect of non-exclusive licenses) and, to the extent required to be recognized as a liability on the
balance sheet of
such Person under
GAAP,
any earn-out or
similar obligations, (f)
all monetary
obligations of
such Person
owing under
Hedge Agreements
(which amount
shall be
calculated
based on
the amount
that would
be payable
by such
Person if
the Hedge
Agreement were
terminated on the date of
determination), (g) any Disqualified Equity Interests
of such Person, and
(h) any obligation
of such
Person guaranteeing
or intended
to guarantee
(whether directly
or
indirectly guaranteed, endorsed, co-made,
discounted, or sold with recourse)
any obligation of any
other Person that
constitutes Indebtedness under
any of clauses
(a) through (g)
above.
For purposes
of this definition,
(i) the amount of
any Indebtedness represented
by a guaranty
or other similar
instrument shall
be the
lesser of
the principal
amount of
the obligations
guaranteed and
still
outstanding and the maximum amount
for which the guaranteeing Person
may be liable pursuant
to the terms
of the instrument
embodying such Indebtedness,
and (ii) the amount
of any
Indebtedness which is limited or is non-recourse to a Person or for which
recourse is limited to an
identified asset
shall be
valued at
the lesser
of (A)
if applicable,
the limited
amount of
such
obligations, and (B) if applicable, the fair market value of such assets securing such obligation.
"Indemnified Liabilities" has the meaning specified therefor in Section 10.3 of this
Agreement.
"Indemnified Person
"
has the
meaning specified
therefor in
Section 10.3
of this
Agreement.
"Indemnified Taxes
"
means, (a) Taxes,
other than Excluded Taxes,
imposed on or
with respect to
any payment made
by, or
on account of
any obligation of,
any Loan Party under
any Loan
Document, and
(b) to the
extent not
otherwise described
in the
foregoing clause
(a),
Other Taxes.
"Initial M/E
Term Loan"
has the
meaning specified
therefor in
Section 2.2(a) of
this Agreement.
"Insolvency Laws" means,
collectively, (i)
the Bankruptcy Code,
(ii) the
Bankruptcy and Insolvency
Act
(Canada), (iii)
the
Companies' Creditors
Arrangement Act
(Canada), (iv)
the
Winding-Up and
Restructuring Act
(Canada), (v)
the
Canada Business
Corporations Act
(Canada) and any other
corporate statutes where such
statute is used by a
Person
to propose
an arrangement
involving the
compromise of
the claims
of creditors;
and (vi)
any
similar legislation in a
relevant jurisdiction, in each
case as applicable and
as in effect from
time
to time.
"Insolvency Proceeding"
means any
proceeding commenced
by or
against any
Person under any Insolvency Law.
"Intercompany Subordination
Agreement" means
an intercompany subordination
agreement, dated as of even date with this Agreement,
executed and delivered by each Loan Party
and each of its
Subsidiaries, and Agent, the
form and substance of
which is reasonably satisfactory
to Agent.
"Interest Expense"
means, for any period,
the aggregate of the
interest expense of
Borrowers for such period, determined on a consolidated basis in accordance with GAAP.
"Interest Period" means,
with respect to
each LIBOR
Rate Loan, a
period
commencing on the date
of the making of
such LIBOR Rate Loan
(or the continuation of
a LIBOR
Rate Loan or
the conversion of
a Base Rate
Loan to a
LIBOR Rate Loan)
and ending 1,
3, or 6
months months thereafter; provided, that (a) interest shall accrue
at the applicable rate based upon
the LIBOR Rate from and including the first day
of each Interest Period to, but excluding, the day
on which any Interest Period expires, (b) any Interest Period that
would end on a day that is not a
Business Day shall
be extended
to the next
succeeding Business Day
unless such Business
Day
falls in another calendar month, in
which case such Interest Period shall
end on the next preceding
Business Day,
(c) with respect
to an
Interest Period
that begins
on the
last Business
Day of
a
calendar month (or on a
day for which there is
no numerically corresponding day in
the calendar
month at the end of such Interest Period), the Interest Period shall end
on the last Business Day of
the calendar month
that is 1,
3 or 6
months after the
date on which
the Interest Period
began, as
applicable, and (d) Borrowers may
not elect an
Interest Period which will
end after the Maturity
Date.
"Inventory" means inventory (as
that term is
defined in the
Code or,
to the extent
applicable, the PPSA).
"Inventory Reserves
"
means, as
of any
date of
determination, (a)
Landlord
Reserves in respect
of Inventory, and (b)
those reserves that
Agent deems necessary
or appropriate,
in its
Permitted Discretion
and subject
to Section
2.1(c), to
establish and
maintain (including
reserves for slow moving Inventory
and Inventory shrinkage) with respect
to Eligible Inventory or
the Maximum Revolver Amount, including based on the results of appraisals.
"Investment" means, with respect to any Person, any investment by such Person in
any other Person (including Affiliates)
in the form of
loans, guarantees, advances, capital
contributions (excluding (a)
commission, travel, and
similar advances to
officers and employees
of such
Person made
in the
ordinary course
of business,
and (b)
bona fide
accounts receivable
arising in the ordinary course of business), or acquisitions of Indebtedness, Equity Interests, or all
or substantially all of
the assets of
such other Person
(or of any division
or business line of
such
other Person), and
any other items that
are or would be
classified as investments on
a balance sheet
prepared in accordance with
GAAP.
The amount of any
Investment shall be the
original cost of
such Investment
plus
the cost
of all
additions thereto,
without any
adjustment for
increases or
decreases in value, or write-ups, write-downs, or write-offs with respect to such Investment.
"IRC" means the Internal Revenue Code of 1986, as in effect from time to time.
"ISP" means, with respect to any Letter of Credit, the International Standby
Practices 1998
(International Chamber
of Commerce
Publication No.
590) and
any version
or
revision thereof accepted by the Issuing Bank for use.
"Issuer Document" means,
with respect to
any Letter
of Credit,
a letter of
credit
application, a letter of credit
agreement, or any other document,
agreement or instrument entered
into (or to be
entered into) by a
Borrower in favor of
Issuing Bank and relating
to such Letter of
Credit.
"Issuing Bank"
means Wells
Fargo or
any other
Lender that,
at the
request of
Borrowers and with the
consent of Agent, agrees,
in such Lender's sole
discretion, to become an
Issuing Bank for
the purpose
of issuing
Letters of
Credit pursuant
to Section
2.11 of
this
Agreement, and Issuing Bank shall be a Lender.
"Joinder" means a joinder agreement substantially in
the form of Exhibit J-1
to this
Agreement.
"Landlord Reserve" means, as to each location at which a Borrower has Inventory,
M&E or books and
records located and as
to which a Collateral
Access Agreement has not
been
received by Agent, a
reserve in an amount
equal to 3 months'
rent, storage charges,
fees or other
amounts under the lease
or other applicable agreement
relative to such location
or, if greater
and
Agent so elects, the number of months'
rent, storage charges, fess or
other amounts for which the
landlord, bailee, warehouseman or other
property owner will have, under
applicable law, a Lien in
the Inventory or M&E of
such Borrower to secure the
payment of such amounts under
the lease or
other applicable agreement relative to such location.
"Lead Arranger" has the meaning set forth in the preamble to this Agreement.
"Lender" has the meaning
set forth in the
preamble to this Agreement,
shall include
Issuing Bank and the Swing
Lender, and shall
also include any other Person
made a party to this
Agreement pursuant to
the provisions of
Section 13.1 of
this Agreement and
"Lenders" means each
of the Lenders or any one or more of them.
"Lender Group" means each of the
Lenders (including Issuing Bank and the
Swing
Lender) and Agent, or any one or more of them.
"Lender Group
Expenses"
means all
(a) documented out-of-pocket
costs or
expenses (including taxes
and insurance premiums)
required to be
paid by any
Loan Party or its
Subsidiaries under any of the Loan Documents that are paid, advanced, or incurred by the Lender
Group, (b) documented out-of-pocket
fees or charges paid
or incurred by
Agent in connection with
the Lender Group's transactions
with each Loan Party and
its Subsidiaries under any of
the Loan
Documents, including, photocopying, notarization,
couriers and messengers, telecommunication,
public record searches, filing fees, recording fees, publication,
real estate surveys, real estate title
policies and
endorsements, and
environmental audits,
(c) Agent's customary
fees and
charges
imposed or incurred in connection with any background checks or OFAC/PEP searches related to
any Loan Party or its Subsidiaries, (d) Agent's customary fees and charges (as adjusted from time
to time) with respect to the disbursement of funds (or the receipt of funds) to or for the account of
any Borrower (whether by wire
transfer or otherwise), together
with any out
-of-pocket costs and
expenses incurred in
connection therewith, (e)
customary charges imposed
or incurred by
Agent
resulting from the dishonor
of checks payable by
or to any Loan
Party, (f) reasonable, documented
out-of-pocket costs and
expenses paid or
incurred by the
Lender Group to correct
any default or
enforce any provision of the
Loan Documents, or during the
continuance of an Event
of Default,
in gaining possession
of, maintaining, handling,
preserving, storing, shipping,
selling, preparing
for sale, or advertising to sell the Collateral,
or any portion thereof, irrespective of whether
a sale
is consummated, (g)
field examination, appraisal,
and valuation fees
and expenses of
Agent related
to any field examinations, appraisals, or valuation to the extent
of the fees and charges (and up to
the amount
of any
limitation) provided
in Section
5.7(c) of
this Agreement,
(h) Agent's and
Lenders' reasonable,
documented costs
and expenses (including
reasonable and
documented
attorneys' fees
and expenses)
relative to
third party
claims or
any other
lawsuit or
adverse
proceeding paid or incurred, whether in enforcing or defending the Loan Documents or otherwise
in connection with the transactions contemplated by the Loan Documents,
Agent's Liens in and to
the Collateral, or the
Lender Group's relationship with
any Loan Party or
any of its Subsidiaries,
(i) Agent's reasonable
and documented
out-of-pocket costs
and expenses
(including reasonable
and documented
attorneys' fees
and due
diligence expenses)
incurred in
advising, structuring,
drafting, reviewing, administering
(including travel, meals,
and lodging), syndicating
(including
reasonable costs and
expenses relative to
the rating of
the Term
Loan, CUSIP,
DXSyndicate™,
SyndTrak or
other communication
costs incurred
in connection
with a
syndication of
the loan
facilities), or
amending, waiving,
or modifying
the Loan
Documents, and
(j) Agent's and
each
Lender's reasonable and
documented costs and
expenses (including reasonable
and documented
attorneys, accountants, consultants, and other advisors fees
and expenses) incurred in terminating,
enforcing (including
attorneys, accountants,
consultants, and
other advisors
fees and
expenses
incurred in
connection with
a "workout,"
a "restructuring,"
or an
Insolvency Proceeding
concerning any Loan Party or any of its Subsidiaries or in exercising rights or remedies under the
Loan Documents), or
defending the Loan
Documents, irrespective of
whether a lawsuit
or other
adverse proceeding is brought, or
in taking any enforcement action
or any Remedial Action with
respect to the Collateral.
"Lender Group Representatives"
has the meaning specified
therefor in Section 17.9
of this Agreement.
"Lender-Related Person"
means, with respect to any
Lender, such Lender, together
with such Lender's Affiliates, officers, directors, employees, attorneys, and agents.
"Letter of Credit"
means a letter
of credit (as
that term is
defined in the
Code) issued
by Issuing Bank.
"Letter of Credit Collateralization" means
either (a) providing cash collateral
(pursuant to
documentation reasonably
satisfactory to
Agent (including
that Agent
has a
first
priority perfected Lien in such cash collateral), including provisions that specify that the Letter of
Credit Fees and
all commissions,
fees, charges
and expenses provided
for in Section
2.11(k) of
this Agreement (including
any fronting fees)
will continue to
accrue while the
Letters of Credit
are outstanding) to be held by Agent for the benefit of
the Revolving Lenders in an amount equal
to 105%
of the
then existing
Letter of
Credit Usage,
(b) delivering to
Agent documentation
executed by
all beneficiaries
under the
Letters of
Credit, in
form and
substance reasonably
satisfactory to
Agent and
Issuing Bank,
terminating all
of such
beneficiaries' rights
under the
Letters of
Credit, or
(c) providing Agent
with a
standby letter
of credit,
in form
and substance
reasonably satisfactory to
Agent, from a commercial
bank acceptable to
Agent (in its
sole
discretion) in
an amount
equal to
105% of
the then
existing Letter
of Credit
Usage (it
being
understood that
the Letter
of Credit
Fee and
all fronting
fees set
forth in
this Agreement
will
continue to accrue
while the Letters
of Credit are
outstanding and that
any such fees
that accrue
must be an amount that can be drawn under any such standby letter of credit).
"Letter of Credit Disbursement" means a payment made by Issuing Bank
pursuant
to a Letter of Credit.
"Letter of Credit Exposure" means, as of any date of determination with respect to
any Lender, such Lender's
participation in the Letter of
Credit Usage pursuant to
Section 2.11(e)
on such date.
"Letter of Credit Fee"
has the meaning
specified therefor in Section
2.6(b) of this
Agreement.
"Letter of Credit Indemnified Costs"
has the meaning specified therefor in Section
2.11(f) of this Agreement.
"Letter of
Credit Related
Person" has
the meaning
specified therefor
in Section
2.11(f) of this Agreement.
"Letter of Credit Sublimit"
means $2,000,000.
"Letter of Credit Usage" means, as of any date of determination, the sum of (a) the
aggregate undrawn amount of
all outstanding Letters of
Credit,
plus
(b) the aggregate amount of
outstanding reimbursement
obligations with
respect to
Letters of
Credit which
remain
unreimbursed or which have not been paid through a Revolving Loan.
"LIBOR Deadline"
has the meaning specified therefor in Section 2.12(b)(i)
of this
Agreement.
"LIBOR Notice" means a written
notice in the form of
Exhibit L-1 to this
Agreement.
"LIBOR Option"
has the
meaning specified
therefor in
Section 2.12(a)
of this
Agreement.
"LIBOR Rate" means
the greater of
(a) 0.75%
per annum
and (b) the
rate
per annum
as published by
ICE Benchmark Administration
Limited (or any
successor page or
other
commercially available source
as the Agent
may designate from
time to time)
as of 11:00
a.m.,
London time, two Business Days prior to the commencement of the requested Interest Period, for
a term, and
in an amount,
comparable to the
Interest Period and
the amount of
the LIBOR Rate
Loan requested (whether
as an initial
LIBOR Rate Loan
or as
a continuation
of a LIBOR
Rate
Loan or as a conversion of a Base Rate Loan to a LIBOR Rate Loan) by
Borrowers in accordance
with this Agreement (and, if any such published rate is below zero, then the LIBOR Rate shall
be
deemed to be zero).
Each determination of the LIBOR Rate shall be made by the Agent and shall
be conclusive in the absence of manifest error.
"LIBOR Rate Loan"
means each portion
of a Revolving
Loan or the
Term Loan
that bears interest at a rate determined by reference to the LIBOR Rate.
"LIBOR Rate Margin" means
the Revolving Loan
LIBOR Rate Margin
or the Term
Loan LIBOR Rate Margin, as applicable.
"Lien" means
any mortgage,
deed of
trust, pledge,
hypothecation, assignment,
charge, deposit arrangement, encumbrance, easement,
lien (statutory or other),
security interest, or
other security arrangement and
any other preference, priority,
or preferential arrangement of
any
kind or nature
whatsoever, including
any conditional sale
contract or other
title retention
agreement, the interest of a lessor
under a Capital Lease and any
synthetic or other financing lease
having substantially the same economic effect as any of the foregoing.
"Loan" means any Revolving Loan, Swing Loan, Extraordinary Advance, or Term
Loan made (or to be made) hereunder.
"Loan Account
"
has the
meaning specified
therefor in
Section 2.9
of this
Agreement.
"Loan Documents"
means this Agreement, the Control Agreements, the Copyright
Security Agreement, any
Borrowing Base Certificate,
the Fee Letter,
the Guaranty and
Security
Agreement, the
Intercompany Subordination
Agreement, any
Issuer Documents,
the Letters
of
Credit, the Loan Manager Side Letter, the Canadian Guaranty, the Canadian Security Documents,
the Mortgages, the
Patent Security Agreement,
the Trademark
Security Agreement, any
note or
notes executed by
Borrowers in connection
with this Agreement
and payable to
any member of
the Lender Group,
and any other
instrument or agreement
entered into, now
or in the
future, by
any Loan Party or any
of its Subsidiaries and any member
of the Lender Group in connection
with
this Agreement (but specifically excluding Bank Product Agreements).
"Loan Manager
Side Letter" means
that certain
letter agreement
between the
Borrowers and Wells Fargo regarding the terms under which Wells
Fargo will provide services to
the Borrowers in respect of Wells Fargo's
proprietary automated loan management program.
"Loan Party" means any Borrower or
any Guarantor.
"M&E" means all Equipment
(as defined in the
Code or, to
the extent applicable,
the PPSA) (in
each case, other than
fixtures (unless otherwise
agreed by Agent),
tooling, rolling
stock or any equipment subject to special perfection requirements under federal law).
"M&E Borrowing Base"
means the result
of 85% of
the NOLV
of Eligible M&E
(such determination
may be
made as
to different
categories of
Eligible M&E
based upon
the
NOLV
applicable to such categories).
"M&E Reserves"
means, as of any date of determination, (a) Landlord Reserves in
respect of M&E,
and (b) those reserves that
Agent deems necessary
or appropriate, in its
Permitted
Discretion and subject to Section
2.1(c), to establish and maintain
with respect to Eligible M&E,
including based on the results of appraisals.
"Margin Stock" as defined
in Regulation U of the Board
of Governors as in effect
from time to time.
"Material Adverse
Effect"
means (a)
a material
adverse effect
in the
business,
operations, results of
operations, assets, liabilities
or financial condition
of the Loan
Parties and
their Subsidiaries,
taken as
a whole,
(b) a material
impairment of
the Loan
Parties' and
their
Subsidiaries' ability
to perform
their obligations
under the
Loan Documents
to which
they are
parties or of
the Lender Group's
ability to enforce
the Obligations or
realize upon the
Collateral
(other than as a
result of as a
result of an action
taken or not taken
that is solely in
the control of
Agent), or (c) a material impairment of the
enforceability or priority of Agent's Liens with respect
to all or a material portion of the Collateral.
"Maturity Date" means October 27, 2024.
"Maximum Revolver
Amount" means
$25,000,000, decreased
by the
amount of
reductions in the
Revolver Commitments made
in accordance with
Section 2.4(c) of
this
Agreement and increased by the amount of any Increase made in accordance with Section 2.14 of
this Agreement.
"M/E Term Loan" means (i) prior
to the funding of
the Additional M/E Term Loan,
the Initial M/E Term
Loan and (ii) on an after the
funding of the Additional M/E Term
Loan, the
then outstanding Initial M/E Term Loan and the Additional M/E Term
Loan.
"M/E Term Loan Amount"
means $7,290,000.
"M/E Term Loan Commitment" means, with respect to each Lender, its M/E Term
Loan Commitment, and, with respect to all Lenders, their M/E Term Loan Commitments,
in each
case as such Dollar amounts are set forth beside such Lender's name under the applicable
heading
on Schedule C-1 to this Agreement or in
the Assignment and Acceptance pursuant to
which such
Lender became a
Lender under this
Agreement, as such
amounts may be
reduced or increased
from
time to time
pursuant to assignments
made in accordance
with the provisions
of Section 13.1
of
this Agreement.
"M/E Term Loan Exposure" means, with respect to any Term
Loan Lender,
(a) prior to the
termination of the
M/E Term Loan Commitments, the
amount of such
Lender's M/E
Term Loan Commitment,
and (b) after the termination of
the M/E Term
Loan Commitments, the
aggregate outstanding principal amount of the M/E Term Loan held by such Lender.
"Mexican A/R
Cap" means,
as of
any date
of determination,
the lesser
of (x)
$2,500,000 and
(y) 15%
of the
aggregate amount
of the
sum of
clauses (a),
(b) and
(c) of
the
definition of Borrowing Base.
"Mexican Subsidiary"
means a
Foreign Subsidiary
organized under
the laws
of
Mexico, or any political subdivision thereof.
"Mexican Term Lender" means FGI Equipment Finance LLC.
“Mexican Term Loan
Agreement” means that certain Master Security Agreement,
dated as of October 27, 2020,
between Mexican Term Lender, Borrower as debtor,
Core
Composites as a guarantor, and CC
HPM, S. de R.L. de C.V.
as a guarantor, as may from
time to
time hereafter be amended, supplemented,
extended, renewed, or restated
or replaced from time to
time subject to the terms hereof.
"Mexican Term
Loan Collateral" means assets owned
by Mexican Subsidiaries of
Borrowers and assets of
Core Composites located in Matamoros,
Mexico; provided, that, Mexican
Term Loan Collateral shall exclude Accounts
and Inventory of Core
Composites and shall exclude
Eligible M&E and Eligible Real Property.
"Mexican Term
Loan Documents"
means the
Debt Documents,
as such
term is
defined in the Mexican Term Loan Agreement, in each
case as may from time to
time hereafter be
amended, supplemented, extended, renewed, restated or replaced from
time to time subject to the
terms hereof.
"Mexican Term
Debt"
means the
Indebtedness under
the Mexican
Term Loan
Documents, as such Indebtedness may from time to time
hereafter be increased or supplemented,
subject to the terms hereof and any Refinancing Indebtedness in respect of such Indebtedness.
"Moody's" has the
meaning specified therefor
in the definition
of Domestic Cash
Equivalents.
"Mortgages" means, individually
and collectively, one or more
mortgages, charges,
deeds of
trust, or
deeds to
secure debt,
executed and
delivered by
a Loan
Party or
one of
its
Subsidiaries in
favor of
Agent, in
form and
substance reasonably
satisfactory to
Agent, that
encumber the Real Property Collateral.
"Multiemployer Plan" means any multiemployer
plan within the meaning of
Section 3(37) or 4001(a)(3)
of ERISA, that is
subject to ERISA, with
respect to which any
Loan
Party or
ERISA Affiliate
has an
obligation to
contribute or
has any
liability, contingent
or
otherwise or could
be assessed withdrawal
liability assuming a complete
withdrawal under Section
4203 of ERISA from any Multiemployer Plan.
"Net Cash Proceeds"
means:
(a)
with respect
to any
sale or
disposition by
any Loan
Party or
any of
its
Subsidiaries (other
than any
Mexican Subsidiary)
of assets
(other than
Mexican Term
Loan
Collateral), the
amount of
cash proceeds
received (directly
or indirectly)
from time
to time
(whether as initial consideration
or through the payment
of deferred consideration) by
or on behalf
of such
Loan Party
or such
Subsidiary, in
connection therewith
after deducting
therefrom only
(i) the amount
of any
Indebtedness secured
by any
Permitted Lien
on any
asset (other
than
(A) Indebtedness owing to Agent
or any Lender under
this Agreement or the
other Loan
Documents and (B) Indebtedness assumed by the purchaser
of such asset) which is required to be,
and is, repaid in
connection with such sale
or disposition, (ii)
reasonable fees, commissions, and
expenses related
thereto and
required to
be paid
by such
Loan Party
or such
Subsidiary in
connection with such
sale or disposition,
(iii) taxes paid or
payable to any
taxing authorities
by
such Loan Party or such
Subsidiary in connection with such sale
or disposition, in each case to
the
extent, but only to the extent, that the amounts
so deducted are, at the time of receipt
of such cash,
actually paid
or payable
to a
Person that
is not
an Affiliate
of any
Loan Party
or any
of its
Subsidiaries, and
are properly
attributable to
such transaction,
and (iv)
all amounts
that are
set
aside as a reserve
(A) for adjustments in respect
of the purchase price
of such assets, (B)
for any
liabilities associated with
such sale or
casualty, to
the extent such
reserve is required
by GAAP,
and (C) for the payment of
unassumed liabilities relating to the
assets sold or otherwise disposed
of at the
time of, or
within 30 days
after, the
date of such
sale or other
disposition, to the
extent
that in each case the funds described above in this clause (iv) are (x) deposited into escrow with a
third party escrow
agent or
set aside
in a
separate Deposit
Account that
is subject
to a
Control
Agreement in favor of Agent, and
(y) paid to Agent as a prepayment
of the applicable Obligations
in accordance with Section
2.4(e) of this Agreement
at such time when
such amounts are no
longer
required to be set aside as such a reserve; and
(b)
with respect to the issuance or incurrence of any Indebtedness by any Loan
Party or any of its Subsidiaries,
or the issuance by any Loan
Party or any of its Subsidiaries of
any
Equity Interests, the aggregate
amount of cash received
(directly or indirectly) from
time to time
(whether as initial consideration or through the
payment or disposition of deferred consideration)
by or
on behalf
of such
Loan Party
or such
Subsidiary in
connection with
such issuance
or
incurrence, after deducting therefrom only (i) reasonable fees, commissions, and expenses related
thereto and required
to be
paid by such
Loan Party or
such Subsidiary in
connection with such
issuance or incurrence, and (ii) taxes paid or payable to any taxing authorities by such Loan Party
or such Subsidiary in connection with
such issuance or incurrence, in each
case to the extent, but
only to the extent,
that the amounts
so deducted are, at
the time of
receipt of such cash,
actually
paid or payable to a
Person that is not an
Affiliate of any Loan Party
or any of its Subsidiaries,
and
are properly attributable to such transaction.
"Net Recovery Percentage"
means, as of any date of determination, the percentage
of the
book value
of Borrowers'
Inventory that
is estimated
to be
recoverable in
an orderly
liquidation of
such Inventory
net of
all associated
costs and
expenses of
such liquidation,
such
percentage to be
determined as to
each category of
Inventory and to
be as specified
in the most
recent Acceptable Appraisal of Inventory.
"NOLV"
means, as of any date of
determination, with respect to Eligible
M&E of
any Person,
the value
of such
Eligible M&E
that is
estimated to
be recoverable
in an
orderly
liquidation of such Eligible M&E, net
of all associated costs and expenses
of such liquidation, as
determined based
upon the
most recent
Acceptable Appraisal
of M&E;
provided that
if such
Acceptable Appraisal does
not provide the
costs and expenses
of such liquidation
on an item
by
item basis,
then costs
and expenses
of liquidation
for each
item of
Eligible M&E
will be
such
amount as determined by Agent in its Permitted Discretion.
"Non-Consenting Lender" has the meaning specified therefor in Section 14.2(a) of
this Agreement.
"Non-Defaulting Lender" means each Lender other than a Defaulting Lender.
"Notification Event" means (a) the occurrence of a "reportable event" described in
Section 4043 of
ERISA for which
the 30-day notice
requirement has not
been waived by
applicable
regulations issued by the PBGC, (b) the withdrawal of any Loan
Party or ERISA Affiliate from a
Pension Plan
during a plan
year in which
it was
a "substantial employer"
as defined in
Section
4001(a)(2) of
ERISA, (c)
the termination
of a
Pension Plan,
the filing
of a
notice of
intent to
terminate a Pension
Plan or the
treatment of a
Pension Plan amendment
as a termination,
under
Section 4041
of ERISA,
if the
plan assets
are not
sufficient to
pay all
plan liabilities,
(d) the
institution of proceedings to
terminate, or the appointment
of a trustee with
respect to, any
Pension
Plan by the PBGC
or any Pension Plan
or Multiemployer Plan administrator,
(e) any other event
or condition that would
constitute grounds under Section
4042(a) of ERISA for
the termination of,
or the
appointment of
a trustee
to administer,
any Pension
Plan, (f)
the imposition
of a
Lien
pursuant to the IRC or
ERISA in connection with
any Employee Benefit Plan or
the existence of
any facts or circumstances that could reasonably be expected to result in the imposition of a Lien,
(g) the partial
or complete withdrawal
of any Loan Party
or ERISA Affiliate from
a Multiemployer
Plan (other than any
withdrawal that would not
constitute an Event of
Default under Section 8.12),
(h) any event or condition that
results in the reorganization or insolvency of a
Multiemployer Plan
under Sections of
ERISA, (i) any event
or condition that
results in the termination
of a
Multiemployer Plan under
Section 4041A of
ERISA or the
institution by the
PBGC of proceedings
to terminate
or to
appoint a
trustee to
administer a
Multiemployer Plan
under ERISA,
(j) any
Pension Plan being in "at risk status" within
the meaning of IRC Section 430(i), (k)
any
Multiemployer Plan being
in "endangered status"
or "critical status"
within the meaning
of IRC
Section 432(b) or the determination that any Multiemployer Plan is or
is expected to be insolvent
or in reorganization within
the meaning of Title IV
of ERISA, (l) with
respect to any Pension
Plan,
any Loan
Party or
ERISA Affiliate
incurring a
substantial cessation
of operations
within the
meaning of ERISA Section 4062(e),
(m) an "accumulated funding deficiency"
within the meaning
of the IRC or
ERISA (including Section 412
of the IRC or
Section 302 of ERISA)
or the failure
of any Pension
Plan or Multiemployer
Plan to
meet the minimum
funding standards within
the
meaning of the
IRC or ERISA
(including Section 412
of the IRC
or Section 302
of ERISA), in
each case, whether
or not
waived, (n) the
filing of
an application for
a waiver
of the
minimum
funding standards within the meaning of the
IRC or ERISA (including Section 412
of the IRC or
Section 302 of ERISA) with respect to any Pension Plan or Multiemployer Plan, (o) the failure to
make by
its due
date a
required payment
or contribution
with respect
to any
Pension Plan
or
Multiemployer Plan, (p)
any event that
results in or
could reasonably be
expected to
result in a
liability by
a Loan
Party pursuant
to Title
I of
ERISA or
the excise
tax provisions
of the
IRC
relating to any
Employee Benefit Plans or
any event that results
in or could reasonably
be expected
to result
in a
liability to
any Loan
Party or
ERISA Affiliate
pursuant to
Title IV
of ERISA
or
Section 401(a)(29)
of the
IRC, or
(q) any
of the
foregoing is
reasonably likely
to occur
in the
following 30 days.
"Obligations" means
(a) all loans
(including the
Term Loan
and the
Revolving
Loans (inclusive of
Extraordinary Advances
and Swing Loans)),
debts, principal,
interest
(including any interest that accrues after
the commencement of an Insolvency Proceeding,
regardless of whether allowed or
allowable in whole or in
part as a claim in
any such Insolvency
Proceeding), reimbursement
or indemnification
obligations with
respect to
Letters of
Credit
(irrespective of whether
contingent), premiums, liabilities
(including all amounts
charged to the
Loan Account pursuant
to this
Agreement), obligations (including
indemnification obligations),
fees (including the
fees provided
for in the
Fee Letter), Lender
Group Expenses
(including any
fees or expenses that
accrue after the commencement
of an Insolvency Proceeding,
regardless of
whether allowed or allowable
in whole or in
part as a claim
in any such Insolvency
Proceeding),
guaranties, and all
covenants and duties
of any other
kind and description
owing by any
Loan Party
arising out of,
under, pursuant
to, in connection
with, or evidenced
by this Agreement
or any of
the other Loan Documents and
irrespective of whether for the
payment of money,
whether direct
or indirect, absolute
or contingent, due
or to become
due, now existing
or hereafter arising,
and
including all interest
not paid
when due and
all other
expenses or other
amounts that any
Loan
Party is required to pay
or reimburse by the Loan
Documents or by law or
otherwise in connection
with the Loan
Documents, and
(b) all Bank
Product Obligations;
provided that, anything
to the
contrary contained in the
foregoing notwithstanding, the Obligations
shall exclude any Excluded
Swap Obligation.
Without limiting the generality of
the foregoing, the Obligations of Borrowers
under the Loan Documents include
the obligation to pay (i)
the principal of the Revolving
Loans
and the
Term Loan,
(ii) interest accrued
on the
Revolving Loans
and the
Term Loan,
(iii) the
amount necessary to
reimburse Issuing Bank
for amounts paid
or payable pursuant
to Letters of
Credit, (iv) Letter of
Credit commissions, fees
(including fronting fees)
and charges, (v)
Lender
Group Expenses, (vi) fees payable
under this Agreement or any
of the other Loan Documents,
and
(vii) indemnities and other amounts payable
by any Loan Party under
any Loan Document.
Any
reference in this Agreement or
in the Loan Documents to
the Obligations shall include all
or any
portion thereof and any extensions, modifications, renewals, or alterations thereof, both
prior and
subsequent to any Insolvency Proceeding.
"OFAC" means
The Office
of Foreign Assets
Control of the
U.S. Department of
the Treasury.
"Originating Lender" has the
meaning specified therefor in Section
13.1(e) of this
Agreement.
"Other Taxes"
means all
present or
future stamp,
court, excise,
value added,
or
documentary, intangible,
recording, filing
or similar
Taxes that
arise from
any payment
made
under, from the execution, delivery,
performance, enforcement or registration of, from the receipt
or perfection of a security interest under, or otherwise with respect to, any Loan Document.
"Overadvance" means, as of any date of determination,
that the Revolver Usage is
greater than any of the limitations set forth in Section 2.1 or Section 2.11 of this Agreement.
"Participant"
has the
meaning specified
therefor in
Section 13.1(e)
of this
Agreement.
"Participant Register
"
has the
meaning set
forth in
Section 13.1(i)
of this
Agreement.
"Patent Security Agreement"
has the
meaning specified
therefor in
the Guaranty
and Security Agreement.
"Patriot Act"
has the meaning specified therefor in Section
4.13 of this Agreement.
"Payment Conditions" means, at the time of determination with respect to a
proposed payment to fund a Specified Transaction, that:
(a)
no Default or Event
of Default then exists
or would arise as
a result of the
consummation of such Specified Transaction,
(b)
both (A)
the Fixed
Charge Coverage
Ratio of
the Loan
Parties and
their
Subsidiaries is equal
to or greater
than 1.25:1.00
for the trailing
12 month
period most recently
ended for
which financial
statements are
required to
have been
delivered to
Agent pursuant
to
Schedule 5.1 to this Agreement (calculated on a
pro forma
basis as if such proposed payment is a
Fixed Charge made
on the last
day of such
12 month period
(it being understood
that such proposed
payment shall also be a Fixed
Charge made on the last
day of such 12 month period for
purposes
of calculating the Fixed Charge Coverage
Ratio under this clause (ii) for
any subsequent proposed
payment to
fund a
Specific Transaction)),
and (B)
Availability,
(x) at all
times during
the 60
consecutive days immediately
preceding the date
of such proposed
payment and the
consummation
of such Specified Transaction,
calculated on a
pro forma
basis as if such
proposed payment was
made, and
the Specified
Transaction was
consummated, on
the first
day of
such period,
and
(y) after giving effect
to such proposed
payment and Specified
Transaction, in
each case, is
not
less than the greater of (X) 17.5% of the Maximum Revolver Amount, and (Y) $4,375,000, and
(c)
Administrative Borrower has delivered a
certificate to Agent certifying that
all conditions described in clauses (a) and (b) above have been satisfied.
"PBGC"
means the Pension
Benefit Guaranty Corporation
or any successor
agency.
"Pension Plan"
means any
Employee Benefit
Plan, other
than a
Multiemployer
Plan, which is
subject to the
provisions of Title
IV or Section
302 of ERISA
or Sections 412
or
430 of the
Code sponsored, maintained, or
contributed to by any
Loan Party or ERISA
Affiliate
or to which any Loan Party or ERISA Affiliate has any liability, contingent or
otherwise.
"Perfection Certificate
"
means a
certificate in
the form
of Exhibit
P-1 to
this
Agreement.
"Permitted Acquisition" means any Acquisition so long as:
(a)
no Default
or Event
of Default
shall have
occurred and
be continuing
or
would result from the consummation of the proposed Acquisition and the proposed Acquisition is
consensual,
(b)
no Indebtedness will
be incurred, assumed,
or would exist
with respect to
any Loan Party
or its Subsidiaries
as a result
of such Acquisition,
other than Indebtedness
permitted
under clauses
(f), (g)
or (o)
of the
definition of
Permitted Indebtedness
and no
Liens will
be
incurred, assumed, or would
exist with respect to
the assets of any Loan
Party or its Subsidiaries
as a result of such Acquisition other than Permitted Liens,
(c)
Borrowers have
provided Agent
with written
confirmation, supported
by
reasonably detailed
calculations, that
on a
pro forma
basis (including
pro forma
adjustments
arising out of
events which
are directly
attributable to
such proposed Acquisition,
are factually
supportable, and
are expected
to have
a continuing
impact, in
each case,
determined as
if the
combination had been accomplished at
the beginning of the
relevant period; such eliminations and
inclusions to be mutually and
reasonably agreed upon by
Borrowers and Agent) created by
adding
the historical
combined financial
statements of
Borrowers (including
the combined
financial
statements of
any other
Person or
assets that
were the
subject of
a prior
Permitted Acquisition
during the relevant period)
to the historical consolidated
financial statements of
the Person to be
acquired (or the historical financial statements related to the assets to be acquired) pursuant to the
proposed Acquisition, the Loan
Parties and their Subsidiaries
(i) would have been in
compliance
with the financial covenant(s)
in Section 7
of this Agreement for
the fiscal month]ended
immediately prior to
the proposed date
of consummation of
such proposed Acquisition,
and (ii) are
projected to be
in compliance with
the financial covenant(s)
in Section 7
of this Agreement
for
each of the twelve fiscal months in the period ended one year after the proposed date of
consummation of such proposed Acquisition,
(d)
Borrowers have provided
Agent with its
due diligence package
relative to
the proposed Acquisition, including
forecasted balance sheets, profit
and loss statements, and
cash
flow statements of the Person or assets to
be acquired, all prepared on a basis consistent
with such
Person's (or
assets') historical
financial statements,
together with
appropriate supporting
details
and a
statement of
underlying assumptions
for the
one year
period following
the date
of the
proposed Acquisition, on a quarter by quarter basis), in form and substance (including as to scope
and underlying assumptions) reasonably satisfactory to Agent,
(e)
the Payment Conditions are satisfied,
(f)
the assets
being acquired
or the
Person whose
Equity Interests
are being
acquired did not
have negative EBITDA
during the 12
consecutive month period
most recently
concluded prior to the date of the proposed Acquisition,
(g)
Borrowers have provided
Agent with written
notice of the
proposed
Acquisition at
least 15
Business Days
prior to
the anticipated
closing date
of the
proposed
Acquisition and,
not later
than five
Business Days
prior to
the anticipated
closing date
of the
proposed Acquisition, copies of
the acquisition agreement and
other material documents relative
to the proposed
Acquisition, which agreement
and documents must
be reasonably acceptable
to
Agent,
(h)
the assets
being acquired
(other than
a
de minimis
amount of
assets in
relation to Borrowers' and their
Subsidiaries' total assets), or the
Person whose Equity Interests are
being acquired, are
useful in or engaged
in, as applicable,
the business of
the Loan Parties and
their
Subsidiaries or a business reasonably related thereto,
(i)
the assets
being acquired
(other than
a
de minimis
amount of
assets in
relation to the
assets being acquired)
are located within
the United States,
Canada or Mexico
or
the Person whose Equity Interests are being
acquired is organized in a
jurisdiction located within
the United States, Canada or Mexico,
(j)
the subject
assets or
Equity Interests,
as applicable,
are being
acquired
directly by a Borrower or
one of its Subsidiaries that
is a Loan Party, and, in connection therewith,
the applicable Loan
Party shall
have complied
with Section
5.11 or
5.12 of
this Agreement,
as
applicable, of
this Agreement
and, in
the case
of an
acquisition of
Equity Interests,
the Person
(other than a Mexican Subsidiary) whose Equity Interests are acquired shall become a Loan Party
and the applicable
Loan Party shall
have demonstrated to
Agent that the
new Loan Parties
have
received consideration sufficient to
make the joinder documents
binding and enforceable against
such new Loan Parties, and
(k)
the purchase consideration payable in respect of all Permitted
Acquisitions
(including the proposed Acquisition and including deferred payment
obligations) shall not exceed
$10,000,000 in the
aggregate; provided, that
(i) the purchase
consideration payable in
respect of
any single
Acquisition or
series of
related Acquisitions
shall not
exceed $5,000,000
in the
aggregate and (ii)
the purchase consideration
payable in respect
of all Permitted
Acquisitions of
Mexican Subsidiaries
or of
assets located
in Mexico
(including the
proposed Acquisition
and
including deferred payment obligations) shall not exceed $5,000,000 in the aggregate.
"Permitted Discretion" means
a determination made
in the exercise
of reasonable
(from the perspective of a secured asset-based lender) business judgment.
"Permitted Dispositions"
means:
(a)
sales, abandonment, or other dispositions of
Equipment that is substantially
worn, damaged, or obsolete
or no longer used
or useful in the
ordinary course of business
(other
than Eligible
M&E) and
leases or
subleases of
Real Property
not useful
in the
conduct of
the
business of the Loan Parties and their Subsidiaries (other than Eligible Real Property),
(b)
sales of Inventory to buyers in the ordinary course of business,
(c)
the use
or transfer
of money
or Cash
Equivalents in
a manner
that is
not
prohibited by the terms of this Agreement or the other Loan Documents,
(d)
the licensing, on a
non-exclusive basis, of patents,
trademarks, copyrights,
and other intellectual property rights in the ordinary course of business,
(e)
the granting of Permitted Liens,
(f)
the sale or
discount, in each
case without recourse,
of accounts receivable
(other than Eligible
Accounts) arising in
the ordinary course
of business, but
only in connection
with the compromise or collection thereof,
(g)
any involuntary loss, damage or destruction of property,
(h)
any involuntary condemnation, seizure
or taking, by exercise of
the power
of eminent domain or otherwise, or confiscation or requisition of use of property,
(i)
the leasing or subleasing
of assets of
any Loan Party or
its Subsidiaries in
the ordinary course of business (other than Eligible M&E and Eligible Real Property),
(j)
the sale
or issuance
of Equity
Interests (other
than Disqualified
Equity
Interests) of Administrative Borrower,
(k)
(i) the lapse
of registered
patents, trademarks,
copyrights and
other
intellectual property of
any Loan Party
or any of
its Subsidiaries to
the extent not
economically
desirable in the conduct
of its business, or
(ii) the abandonment of patents,
trademarks, copyrights,
or other
intellectual property
rights in
the ordinary
course of
business so
long as
(in each
case
under clauses (i) and (ii)),
(A) with respect to copyrights,
such copyrights are not material
revenue
generating copyrights, and
(B) such lapse is
not materially adverse
to the interests
of the Lender
Group,
(l)
the making of Restricted Payments that are expressly permitted to be made
pursuant to this Agreement,
(m)
the making of Permitted Investments,
(n)
so long
as no
Event of
Default has
occurred and
is continuing
or would
immediately result therefrom, transfers of assets (i)
from any Loan Party or any
of its Subsidiaries
to a Loan
Party, and
(ii) from any Subsidiary
of any Loan
Party that is
not a Loan
Party to any
other Subsidiary of any Loan Party,
(o)
sales or dispositions of Mexican Term Loan Collateral,
(p)
so long
as the
Citi Purchase
Documents are
in effect,
the sale
by Loan
Parties to Citibank,
N.A. of Accounts
owed by
Xylem Inc. to
Loan Parties
pursuant to the
Citi
Purchase Documents, and
(q)
sales or dispositions of
fixed assets (including intangible property
related to
such fixed assets) not otherwise permitted in clauses (a) through (n) above so long as made at fair
market value and the aggregate fair market value of all assets disposed of in fiscal
year (including
the proposed disposition) would not exceed $500,000;
provided, that if, as of any date
of determination, sales or dispositions by the
Loan Parties during
the period of time from the first
day of the month in which such
date of determination occurs until
such date of
determination, either individually
or in the
aggregate, involve $250,000
or more of
assets included in the
Borrowing Base (based on
the fair market
value of the
assets so disposed)
(the "
Threshold Amount"),
then Borrowers
shall have,
prior to
consummation of
the sale
or
disposition that causes the
assets included in
the Borrowing that
are disposed of
during such period
to exceed the Threshold Amount,
delivered to Agent an updated
Borrowing Base Certificate that
reflects the removal of the applicable assets from the Borrowing Base.
"Permitted Indebtedness" means:
(a)
Indebtedness in respect of the Obligations,
(b)
Indebtedness as
of the
Closing Date
set forth
on Schedule
4.14 to
this
Agreement and any Refinancing Indebtedness in respect of such Indebtedness,
(c)
Permitted Purchase Money
Indebtedness and any
Refinancing Indebtedness
in respect of such Indebtedness,
(d)
Indebtedness arising in connection with
the endorsement of instruments or
other payment items for deposit,
(e)
Indebtedness consisting of
(i) unsecured guarantees incurred
in the ordinary
course of business with respect to surety and appeal bonds, performance bonds, bid bonds, appeal
bonds, completion guarantee
and similar obligations;
(ii) unsecured guarantees arising
with respect
to customary indemnification obligations
to purchasers in connection
with Permitted Dispositions;
and (iii)
unsecured guarantees
with respect
to Indebtedness
of any
Loan Party
or one
of its
Subsidiaries, to the
extent that the
Person that is
obligated under such
guaranty could have
incurred
such underlying Indebtedness,
(f)
Indebtedness incurred
in the
ordinary course
of business
under
performance, surety, statutory,
or appeal bonds,
(g)
Indebtedness owed to any Person providing
property, casualty,
liability, or
other insurance
to any
Loan Party
or any
of its
Subsidiaries, so
long as
the amount
of such
Indebtedness is not
in excess of
the amount of
the unpaid cost
of, and shall
be incurred only
to
defer the
cost of,
such insurance
for the
year in
which such
Indebtedness is
incurred and
such
Indebtedness is outstanding only during such year,
(h)
the incurrence by any Loan Party or
its Subsidiaries of Indebtedness under
Hedge Agreements that is incurred for the bona fide purpose of hedging the interest rate,
commodity, or
foreign currency
risks associated
with such
Loan Party's
or such
Subsidiary's
operations and not for speculative purposes,
(i)
Indebtedness incurred in the ordinary
course of business in respect of
credit
cards, credit card processing
services, debit cards, stored
value cards, commercial cards
(including
so-called "purchase cards", "procurement cards" or "p-cards"), or Cash Management Services,
(j)
unsecured Indebtedness
of any
Loan Party
owing to
employees, former
employees, former officers,
directors, or former directors
(or any spouses,
ex-spouses, or estates
of any of the
foregoing) incurred in connection
with the repurchase or
redemption by such Loan
Party of the Equity Interests of
Administrative Borrower that has been issued
to such Persons, so
long as (i) no Default or Event of Default has occurred and is continuing or would result from the
incurrence of such Indebtedness, (ii) the aggregate
amount of all such Indebtedness outstanding
at
any one
time does
not exceed
$200,000, and
(iii) such Indebtedness
is subordinated
in right
of
payment to the Obligations on terms and conditions reasonably acceptable to Agent,
(k)
Indebtedness comprising Permitted
Intercompany Advances and
other
Permitted Investments; provided,
that, in the
event and Permitted
Intercompany Advances owed
by a Mexican Subsidiary
to a Loan Party
are evidenced by a
promissory note, such note
shall be
delivered to Agent as Collateral together with an endorsement,
(l)
unsecured Indebtedness
incurred in
respect of
netting services,
overdraft
protection, and other like services, in each case, incurred in the ordinary course of business,
(m)
accrual of interest,
accretion or amortization
of original issue
discount, or
the payment of interest in kind, in each case, on Indebtedness that
otherwise constitutes Permitted
Indebtedness, and
(n)
Subordinated Indebtedness,
the aggregate
outstanding amount
of which
does not exceed $1,500,000,
(o)
Mexican Term
Debt in an
aggregate principal amount not
to exceed
$18,500,000,
(p)
contingent liabilities in respect
of any indemnification
obligation,
adjustment of purchase
price, non-compete, or
similar obligation
of any Loan
Party incurred
in
connection with the consummation of one or more Permitted Acquisitions,
(q)
Acquired Indebtedness in
an aggregate outstanding
amount not to
exceed
$2,500,000,
(r)
Indebtedness of Mexican Subsidiaries
in an aggregate outstanding
amount
not to exceed $2,000,000, and
(s)
any other unsecured Indebtedness incurred by
any Loan Party or any of
its
Subsidiaries in an aggregate outstanding amount not to exceed $1,500,000 at any one time.
"Permitted Intercompany Advances"
means loans made
on or after
the Closing Date
by (a) a Loan Party
to another Loan Party, (b) a Subsidiary of
a Loan Party that is
not a Loan Party
to another Subsidiary of
a Loan Party that
is not a Loan
Party, (c) a Subsidiary of a Loan Party
that
is not a
Loan Party to
a Loan Party,
so long as
the parties thereto
are party to
the Intercompany
Subordination Agreement, (d) a Loan
Party to a Mexican Subsidiary
solely to the extent necessary
to fund BRP/Navistar Project Cap Ex permitted hereunder so long as (i) at the time of the making
of such loan,
no Event of
Default has occurred
and is continuing
or would result
therefrom, and
(ii) the sum
of Borrowers'
Availability
plus
Qualified Cash
(up to
an amount
not to
exceed
$1,500,000) is equal
to or greater
than $6,000,000
immediately after giving
effect to
each such
loan, and (e) a Loan
Party to a Subsidiary
of a Loan Party that
is not a Loan Party
so long as (i) the
aggregate amount
of all
such loans
(by type,
not by
the borrower)
does not
exceed $3,500,000
outstanding at any one
time, (ii) at the
time of the
making of such
loan, no Event
of Default has
occurred and is continuing or would result therefrom, and (iii) the sum of Borrowers' Availability
plus
Qualified Cash
(up to
an amount
not to
exceed $1,500,000)
is equal
to or
greater than
$6,000,000 immediately after giving effect to each such loan.
"Permitted Investments" means:
(a)
Investments in cash and Cash Equivalents,
(b)
Investments in
negotiable instruments
deposited or
to be
deposited for
collection in the ordinary course of business,
(c)
advances made
in connection
with purchases
of goods
or services
in the
ordinary course of business,
(d)
Investments received in settlement
of amounts due to
any Loan Party or
any
of its Subsidiaries
effected in the
ordinary course of business
or owing to any
Loan Party or any
of its Subsidiaries as
a result of Insolvency
Proceedings involving an account
debtor or upon the
foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries,
(e)
Investments owned
by any
Loan Party
or any
of its
Subsidiaries on
the
Closing Date and set forth on Schedule P-1 to this Agreement,
(f)
guarantees permitted under the definition of Permitted Indebtedness,
(g)
Permitted Intercompany Advances,
(h)
Equity Interests
or other
securities acquired
in connection
with the
satisfaction or
enforcement of
Indebtedness or
claims due
or owing
to a
Loan Party
or its
Subsidiaries (in bankruptcy of customers or suppliers
or otherwise outside the ordinary course
of
business) or as security for any such Indebtedness or claims,
(i)
deposits of cash
made in
the ordinary course
of business to
secure
performance of operating leases,
(j)
(i) non-cash loans and
advances to employees,
officers, and directors
of a
Loan Party
or any
of its
Subsidiaries for
the purpose
of purchasing
Equity Interests
in
Administrative Borrower so
long as the
proceeds of such
loans are used
in their entirety
to purchase
such Equity Interests
in Administrative Borrower,
and (ii) loans and
advances to employees
and
officers of a Loan Party or any of its
Subsidiaries in the ordinary course of business for any other
business purpose and in an aggregate amount not to exceed $200,000 at any one time,
(k)
Permitted Acquisitions,
(l)
Investments resulting from
entering into (i)
Bank Product Agreements,
or
(ii) agreements relative
to obligations
permitted under
clause (j)
of the
definition of
Permitted
Indebtedness,
(m)
equity Investments by any
Loan Party in any
Subsidiary of such Loan Party
which is required by
law to maintain
a minimum net capital
requirement or as may
be otherwise
required by applicable law,
(n)
so long
as no
Event of
Default has
occurred and
is continuing
or would
result therefrom, any other Investments
in an aggregate amount not to
exceed $500,000 during the
term of this Agreement,
(o)
Investments consisting
of non-cash
consideration received
in connection
with Permitted
Dispositions, so long
as the
non-cash consideration
received in
connection with
any Permitted Disposition does not
exceed 25% of the total
consideration received in connection
with such Permitted Disposition, and
(p)
Investments held
by a
Person acquired
in a
Permitted Acquisition
to the
extent that
such Investments
were not
made in
contemplation of
or in
connection with
such
Permitted Acquisition and were in existence on the date of such Permitted Acquisition..
"Permitted Liens" means:
(a)
Liens granted to, or for the benefit of, Agent to secure the Obligations,
(b)
Liens for unpaid
taxes, assessments, or
other governmental charges
or levies
that either
(i) are not
yet delinquent,
or (ii)
do not
have priority
over Agent's
Liens and
the
underlying taxes, assessments, or charges or levies are the subject of Permitted Protests,
(c)
judgment Liens
arising solely
as a
result of
the existence
of judgments,
orders, requirements to pay
issued by a Canadian
Governmental Authority or awards
that do not
constitute an Event of Default under Section 8.3 of this Agreement,
(d)
Liens set forth on Schedule P-2 to
this Agreement; provided, that to qualify
as a Permitted Lien, any such Lien described on Schedule P-2
to this Agreement shall only secure
the Indebtedness that it secures on the
Closing Date and any Refinancing Indebtedness
in respect
thereof,
(e)
the interests of
lessors under operating
leases and non-exclusive
licensors
under license agreements,
(f)
purchase money
Liens on
fixed assets
or the
interests of
lessors under
Capital Leases to
the extent
that such
Liens or
interests secure
Permitted Purchase
Money
Indebtedness and so
long as (i)
such Lien attaches
only to the
fixed asset purchased
or acquired
and the
proceeds thereof,
and (ii)
such Lien
only secures
the Indebtedness
that was
incurred to
acquire the fixed asset purchased or acquired or any Refinancing Indebtedness in respect thereof,
(g)
Liens arising
by operation
of law
in favor
of warehousemen,
landlords,
carriers, mechanics, materialmen,
laborers, or suppliers,
incurred in the
ordinary course of
business
and not in
connection with the
borrowing of money,
and which Liens
either (i) are for
sums not
yet delinquent, or (ii) are the subject of Permitted Protests,
(h)
Liens on amounts
deposited to secure
any Borrower's and
its Subsidiaries
obligations in connection with worker's compensation or other unemployment insurance,
(i)
Liens on amounts
deposited to secure
any Borrower's and
its Subsidiaries
obligations in connection
with the making
or entering into
of bids, tenders,
or leases in
the ordinary
course of business and not in connection with the borrowing of money,
(j)
Liens on amounts
deposited to secure
any Borrower's and
its Subsidiaries
reimbursement obligations with respect to surety or
appeal bonds obtained in the ordinary course
of business,
(k)
with respect
to any
Real Property,
easements, rights
of way,
and zoning
restrictions that do not materially interfere with or impair the use or operation thereof,
(l)
non-exclusive licenses
of patents,
trademarks, copyrights,
and other
intellectual property rights in the ordinary course of business,
(m)
Liens that are replacements
of Permitted Liens to
the extent that the
original
Indebtedness (or any increases
thereto as permitted hereunder)
is the subject of
permitted
Refinancing Indebtedness and
so long as
the replacement Liens
only encumber those
assets that
secured the original Indebtedness (or any increases thereto as permitted hereunder),
(n)
rights of setoff or bankers' liens upon deposits of funds in favor of banks
or
other depository institutions,
solely to the extent
incurred in connection
with the maintenance
of
such Deposit Accounts in the ordinary course of business,
(o)
Liens granted in the ordinary course of business on the unearned portion of
insurance premiums securing
the financing of
insurance premiums to
the extent the
financing is
permitted under the definition of Permitted Indebtedness,
(p)
Liens in favor of customs and revenue authorities arising
as a matter of law
to secure payment of customs duties in connection with the importation of goods,
(q)
Liens on
the Mexican
Term Loan
Collateral securing
the Mexican
Term
Debt,
(r)
Liens assumed by
any Loan Party
or its Subsidiaries
in connection with
a
Permitted Acquisition that secure Acquired Indebtedness that is Permitted Indebtedness,
(s)
Liens on
assets of
the Mexican
Subsidiaries as
to which
the aggregate
amount of the obligations secured thereby does not exceed $2,000,000;
(t)
so long as
the Citi
Purchase Documents
are in
effect, Liens
on Accounts
owed by
Xylem Inc.
and its
Subsidiaries and
Affiliates to
Loan Parties
pursuant to
the Citi
Purchase Documents and
(u)
other Liens which
do not secure
Indebtedness for borrowed
money or letters
of credit and as to which the aggregate amount
of the obligations secured thereby does not exceed
$250,000.
"Permitted Protest" means the right of any Loan
Party or any of its Subsidiaries to
protest any Lien (other than any Lien that secures the Obligations), taxes (other than payroll
taxes
or taxes that are the subject of a United States federal
tax lien or a requirement to pay issued by a
Canadian Governmental Authority), or rental payment; provided,
that (a) a reserve with respect to
such obligation is established
on such Loan Party's
or its Subsidiaries' books
and records in such
amount as
is required
under GAAP,
(b) any such
protest is
instituted promptly
and prosecuted
diligently by
such Loan
Party or
its Subsidiary,
as applicable,
in good
faith, and
(c) Agent is
satisfied, in
its Permitted
Discretion, that,
while any
such protest
is pending,
there will
be no
impairment of the enforceability, validity,
or priority of any of Agent's Liens.
"Permitted Purchase Money Indebtedness" means, as of any date of determination,
Indebtedness (other than
the Obligations, but
including Capitalized Lease
Obligations), incurred
after the Closing Date
and at the time
of, or within 20
days after, the acquisition of
any fixed assets
for the purpose of
financing all or any
part of the acquisition cost
thereof, in an aggregate
principal
amount outstanding at any one time not in excess of $5,000,000.
"Person" means natural persons,
corporations, limited liability companies,
limited
partnerships, general partnerships, limited liability partnerships, joint
ventures, trusts, land trusts,
business trusts, or other
organizations, irrespective of
whether they are legal
entities, and
governments and agencies and political subdivisions thereof.
"Platform"
has the meaning
specified therefor in Section
17.9(c) of this Agreement.
"Post-Increase Revolver
Lenders" has
the meaning
specified therefor
in Section
2.14 of this Agreement.
"PPSA"
means the
Personal Property
Security Act
(Ontario) and
the regulations
thereunder, as from time to time in effect; provided, however, if attachment, perfection or priority
of Agent's
Lien on
any Collateral
are governed
by the
personal property
security laws
of any
jurisdiction in Canada
other than the
laws of the
Province of Ontario,
"PPSA" means those
personal
property security laws
in such other
jurisdiction in Canada
for the purposes
of the provisions
hereof
relating to such
attachment, perfection or priority
and for the definitions
related to such provisions.
"Pre-Increase Revolver Lenders"
has the meaning
specified therefor in
Section 2.14
of this Agreement.
"Projections"
means Borrowers'
forecasted (a)
balance sheets,
(b) profit and
loss
statements, and
(c) cash flow
statements, all
prepared on
a basis
consistent with
Borrowers'
historical financial
statements, together
with appropriate
supporting details
and a
statement of
underlying assumptions.
"Pro Rata Share"
means, as of any date of determination:
(a)
with respect to a Lender's obligation to make all or a portion of the
Revolving Loans,
with respect
to such
Lender's right
to receive
payments of
interest, fees,
and
principal with respect to
the Revolving Loans, and
with respect to all
other computations and other
matters related to the Revolver Commitments or the Revolving
Loans, the percentage obtained by
dividing (i) the
Revolving Loan Exposure
of such Lender,
by (ii) the
aggregate Revolving Loan
Exposure of all Lenders,
(b)
with respect to a Lender's
obligation to participate in
the Letters of Credit,
with respect
to such
Lender's obligation
to reimburse
Issuing Bank,
and with
respect to
such
Lender's right to receive payments of Letter of
Credit Fees, and with respect to all other
computations and other
matters related to
the Letters of
Credit, the percentage
obtained by dividing
(i) the Revolving Loan Exposure of
such Lender, by (ii)
the aggregate Revolving Loan Exposure
of all Lenders;
provided, that if
all of the
Revolving Loans have
been repaid in
full and all
Revolver
Commitments have
been terminated,
but Letters
of Credit
remain outstanding,
Pro Rata
Share
under this clause shall be
the percentage obtained by
dividing (A) the Letter of Credit Exposure
of
such Lender, by (B) the Letter of Credit Exposure of all Lenders,
(c)
with respect to
a Lender's obligation
to make all
or a portion
of the Initial
M/E Term
Loan and the
Additional M/E Term
Loan, with respect
to a Lender's
right to receive
payments of interest, fees,
and principal with respect
to the M/E Term
Loan, and with respect
to
all other computations and other matters related to the
M/E Term Loan Commitments
or the M/E
Term Loan, the percentage obtained by dividing (i) the M/E Term Loan Exposure of such Lender,
by (ii) the aggregate M/E Term Loan Exposure of all Lenders,
(d)
with respect
to a
Lender's obligation
to make
all or
a portion
of the
R/E
Term Loan, with respect to such Lender's right to receive payments of interest, fees, and principal
with respect to the
R/E Term
Loan, and with respect
to all other computations
and other matters
related to the
R/E Term
Loan Commitments or
the R/E Term
Loan, the percentage
obtained by
dividing (i) the R/E
Term Loan
Exposure of such
Lender, by
(ii) the aggregate R/E
Term Loan
Exposure of all Lenders, and
(e)
with respect to all
other matters and
for all other
matters as to
a particular
Lender (including the indemnification obligations
arising under Section 15.7 of
this Agreement),
the percentage obtained by dividing (i)
the Revolving Loan Exposure, M/E
Term Loan Exposure
and R/E
Term Loan
Exposure of
such Lender,
by (ii)
the aggregate
Revolving Loan
Exposure,
M/E Term
Loan Exposure and
R/E Term
Loan Exposure of
all Lenders, in
any such case
as the
applicable percentage may be adjusted by assignments permitted pursuant to Section
13.1;
provided, that
if all
of the
Loans have
been repaid
in full
and all
Commitments have
been
terminated, Pro Rata Share under this
clause shall be the percentage obtained
by dividing (A) the
Letter of Credit Exposure of such Lender, by (B) the Letter of Credit Exposure of all Lenders.
"Protective Advances
"
has the
meaning specified
therefor in
Section 2.3(d)(i)
of
this Agreement.
"Public Lender"
has the
meaning specified
therefor in
Section 17.9(c)
of this
Agreement.
"Qualified Cash" means,
as of any
date of determination, the
amount of unrestricted
cash and Cash Equivalents
of the Loan Parties
and their Subsidiaries that
is in Deposit Accounts
or in
Securities Accounts,
or any
combination thereof,
and which
such Deposit
Account or
Securities Account is the subject of
a Control Agreement and is maintained
by a branch office of
the bank or securities intermediary located within the United States or Canada.
"Qualified Equity
Interests" means
and refers
to any
Equity Interests
issued by
Administrative Borrower (and
not by one
or more of
its Subsidiaries)
that is
not a Disqualified
Equity Interest.
"QFC" has the meaning
assigned to the term
"qualified financial contract" in,
and
shall be interpreted in accordance with, 12 U.S.C. § 5390(c)(8)(D).
"QFC Credit Support" has
the meaning specified
therefor in Section 17.15
of this
Agreement.
"Quebec Security
Documents" means
any hypothecs
and all
other security
documents governed by
the laws of
the Province of
Quebec, each in
form and substance
reasonably
satisfactory to Agent, executed and delivered by a Loan Party to the Agent to secure the
Obligations, and each as amended, restated, supplemented or modified from time to time.
"R/E Borrowing
Base" means
the result
of 60%
of the
FMV of
Eligible Real
Property identified in the most recent Acceptable Appraisal of the Eligible Real Property.
"Real Property"
means any
estates or
interests in
real property
now owned
or
hereafter acquired by any Loan Party or one of its Subsidiaries and the improvements thereto.
"Real Property Collateral"
means (a) the Real Property identified on Schedule R-1
to this Agreement,
and (b) any Real
Property hereafter acquired
by any Loan
Party or one
of its
Subsidiaries (other than
any Mexican Subsidiary) with
a fair market
value in excess of
$1,500,000.
"Real Property Reserves"
means, as of
any date of
determination, those
reserves
that Agent
deems necessary
or appropriate,
in its
Permitted Discretion
and subject
to Section
2.1(c), to
establish and
maintain with
respect to
Eligible Real
Property, including
based on
the
results of appraisals.
"Receivable Reserves" means, as of
any date of determination, those
reserves that
Agent deems necessary or appropriate, in
its Permitted
Discretion and subject to Section 2.1(c),
to
establish and maintain (including Landlord Reserves for books and records locations and
reserves
for rebates, discounts,
warranty claims, and returns)
with respect to
the Eligible Accounts or
the
Maximum Revolver Amount.
"Record" means information that
is inscribed on a
tangible medium or that
is stored
in an electronic or other medium and is retrievable in perceivable form.
"Reference Period"
has the meaning set forth in the definition of EBITDA.
"Refinancing Indebtedness"
means refinancings,
renewals, or
extensions of
Indebtedness so long as:
(a)
such refinancings, renewals, or
extensions do not result
in an increase in
the
principal amount
of the
Indebtedness so
refinanced, renewed,
or extended,
other than
by the
amount of premiums paid thereon and the fees and expenses incurred in
connection therewith and
by the amount of unfunded commitments with respect thereto,
(b)
such refinancings, renewals,
or extensions do
not result in
a shortening of
the final stated
maturity or the
average weighted maturity
(measured as of
the refinancing, renewal,
or extension) of
the Indebtedness so
refinanced, renewed, or
extended, nor are
they on terms
or
conditions that, taken as a whole, are or
could reasonably be expected to be
materially adverse to
the interests of the Lenders,
(c)
if the
Indebtedness that
is refinanced,
renewed, or
extended was
subordinated in right of payment to the Obligations,
then the terms and conditions of the
refinancing, renewal, or
extension must include subordination
terms and conditions that
are at least
as favorable
to the
Lender Group
as those
that were
applicable to
the refinanced,
renewed, or
extended Indebtedness,
(d)
the Indebtedness that is refinanced, renewed, or extended is not recourse to
any Person
that is
liable on
account of
the Obligations
other than
those Persons
which were
obligated with respect to the Indebtedness that was refinanced, renewed, or extended,
(e)
if the Indebtedness that is refinanced, renewed or extended
was unsecured,
such refinancing, renewal or extension shall be unsecured, and
(f)
if the Indebtedness that is refinanced, renewed, or extended was secured (i)
such refinancing, renewal, or
extension shall be secured
by substantially the same
or less collateral
as secured such refinanced,
renewed or extended Indebtedness
on terms no less
favorable to Agent
or the Lender
Group and (ii)
the Liens securing such
refinancing, renewal or
extension shall not
have a priority more senior than the Liens securing such Indebtedness that is refinanced, renewed
or extended.
"Register" has the meaning set forth in Section 13.1(h) of this Agreement.
"Registered Loan" has the meaning set forth in Section 13.1(h) of this Agreement.
"Related Fund" means any
Person (other than a
natural person) that is
engaged in
making, purchasing,
holding or
investing in
bank loans
and similar
extensions of
credit in
the
ordinary course and that is administered, advised or
managed by (a) a Lender, (b) an Affiliate of a
Lender, or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
"Relevant Governmental Body" means the Federal Reserve Board and/or the
Federal Reserve Bank
of New York, or a
committee officially endorsed
or convened by
the Federal
Reserve Board and/or the Federal Reserve Bank of New York
or any successor thereto.
"Remedial Action"
means all
actions taken
to (a)
clean up,
remove, remediate,
contain, treat, monitor, assess, evaluate,
or in any way address Hazardous
Materials in the indoor
or outdoor
environment, (b)
prevent or
minimize a
release or
threatened release
of Hazardous
Materials so they do
not migrate or
endanger or threaten to
endanger public health or
welfare or
the indoor
or outdoor
environment, (c)
restore or
reclaim natural
resources or
the environment,
(d) perform any pre-remedial studies, investigations, or post-remedial operation
and maintenance
activities, or
(e) conduct any
other actions
with respect
to Hazardous
Materials required
by
Environmental Laws.
"Replacement Lender" has the
meaning specified therefor in
Section 2.13(b) of this
Agreement.
"Report" has the meaning specified therefor in Section 15.16 of this Agreement.
"Required Availability"
means that the sum
of (a) Excess Availability,
plus
(b) Qualified Cash exceeds $9,000,000.
"Required Lenders" means, at any time, Lenders having
or holding more than 50%
of the sum
of (a) the aggregate
Revolving Loan Exposure
of all Lenders,
plus
(b) the aggregate
M/E Term
Loan Exposure of
all Lenders
plus
(c) the aggregate
R/E Term
Loan Exposure of
all
Lenders; provided, that
(i) the Revolving Loan
Exposure, M/E Term Loan
Exposure and R/E
Term
Loan Exposure of any
Defaulting Lender shall be
disregarded in the determination
of the Required
Lenders, and (ii) at any time there are two or more Lenders (who are not Affiliates of one another
or Defaulting
Lenders), "Required
Lenders" must
include at
least two
Lenders (who
are not
Affiliates of one another).
"Reserves" means,
as of
any date
of determination,
Inventory Reserves,
M&E
Reserves, Real Property Reserves,
Receivable Reserves, Bank Product
Reserves, Canadian
Priority Payables Reserves and those other reserves that
Agent deems necessary or appropriate, in
its Permitted Discretion and
subject to Section 2.1(c),
to establish and maintain
(including reserves
with respect
to (a)
sums that
any Loan
Party or
its Subsidiaries
are required
to pay
under any
Section of
this Agreement
or any other
Loan Document
(such as
taxes, assessments,
insurance
premiums, or, in
the case of leased assets,
rents or other amounts
payable under such leases) and
has failed to
pay, and
(b) amounts owing by
any Loan Party
or its Subsidiaries
to any Person
to
the extent secured by a Lien
on, or trust over,
any of the Collateral (other than a
Permitted Lien),
which Lien or trust, in
the Permitted Discretion of
Agent likely would have a
priority superior to
the Agent's Liens
(such as Liens
or trusts in
favor of landlords,
warehousemen, carriers, mechanics,
materialmen, laborers, or suppliers, or Liens or
trusts for ad valorem, excise, sales,
or other taxes
where given priority
under applicable law)
in and to
such item of
the Collateral) with
respect to
the Borrowing Base or the Maximum Revolver Amount.
"Restricted Payment"
means (a) any declaration or payment of any dividend or the
making of any other payment or distribution, directly or indirectly,
on account of Equity Interests
issued by Administrative
Borrower or any
of its Subsidiaries
(including any payment
in connection
with any
merger, amalgamation
or consolidation
involving Administrative
Borrower) or
to the
direct or
indirect holders
of Equity
Interests issued
by Administrative
Borrower or
any of
its
Subsidiaries in their
capacity as such
(other than dividends
or distributions payable
in Qualified
Equity Interests issued by Administrative
Borrower or any
of its Subsidiaries, or (b)
any purchase,
redemption, making of any sinking fund or similar payment, or other acquisition or retirement for
value (including in
connection with any
merger, amalgamation
or consolidation involving
Administrative Borrower) any
Equity Interests issued
by Administrative Borrower
or any of
its
Subsidiaries, or
(c) any making
of any
payment to
retire, or
to obtain
the surrender
of, any
outstanding warrants, options, or other rights to
acquire Equity Interests of Administrative
Borrower now or hereafter outstanding.
"R/E Term
Loan" has
the meaning
specified therefor
in Section
2.2(b) of
this
Agreement.
"R/E Term Loan Amount" means $9,500,000.
"R/E Term
Loan Commitment" means, with
respect to each Lender,
its R/E Term
Loan Commitment, and, with respect to
all Lenders, their R/E Term
Loan Commitments, in each
case as such Dollar amounts are set forth beside such Lender's name under the applicable
heading
on Schedule C-1 to this Agreement or in
the Assignment and Acceptance pursuant to which
such
Lender became a
Lender under this
Agreement, as such
amounts may be
reduced or increased
from
time to time
pursuant to assignments
made in accordance
with the provisions
of Section 13.1
of
this Agreement.
"R/E Term Loan Exposure" means,
with respect to any R/E Term
Loan Lender, as
of any date of determination (a) prior to the funding
of the Loan, the amount of such Lender's R/E
Term Loan Commitment, and
(b) after the funding
of the R/E
Term Loan, the outstanding
principal
amount of the R/E Term Loan held by such Lender.
"Revaluation Date" means (a) with respect to any Revolving Loan denominated in
US Dollars, each of the following:
(i) each date of a Borrowing of such
Revolving Loan, (ii) each
date of a continuation
of such Revolving Loan
pursuant to Section 2.12,
and (iii) such additional
dates as Agent shall
determine or the Required
Lenders shall require, (b)
with respect to any
Letter
of Credit
denominated in
US Dollars,
each of
the following:
(i) each date
of issuance
of such
Letter of
Credit, (ii)
each date
of an
amendment of
such Letter
of Credit
having the
effect of
increasing the
amount thereof,
(iii) each date
of any
payment by
an Issuing
Lender under such
Letter of Credit
,
and (iv) such additional
dates as Agent
or an Issuing
Lender shall determine
or
the Required Lenders shall
require, and (c) with respect to
any other Obligations denominated
in
US Dollars, each date as
Agent shall determine unless otherwise prescribed
in this Agreement or
any other Loan Documents.
"Revolver Commitment" means,
with respect to
each Revolving Lender,
its
Revolver Commitment, and, with respect to all Revolving Lenders, their Revolver Commitments,
in each case as such Dollar amounts are set forth
beside such Revolving Lender's name under the
applicable heading on
Schedule C-1 to
this Agreement or
in the Assignment
and Acceptance or
Increase Joinder pursuant to which such
Revolving Lender became a Revolving Lender
under this
Agreement, as such amounts may be
reduced or increased from time
to time pursuant to
assignments made in
accordance with
the provisions
of Section 13.1
of this
Agreement, and
as
such amounts may be decreased by the amount of reductions in the Revolver Commitments made
in accordance with Section 2.4(c) hereof.
"Revolver Usage" means,
as of any
date of determination,
the sum of
(a) the amount
of outstanding Revolving Loans (inclusive of
Swing Loans and Protective Advances),
plus
(b) the
amount of the Letter of Credit Usage.
"Revolving Lender" means a Lender that has a
Revolving Loan Exposure or Letter
of Credit Exposure.
"Revolving Loan Base Rate Margin" has
the meaning set forth in the
definition of
Applicable Margin.
"Revolving Loan Exposure
"
means, with respect
to any Revolving
Lender, as
of
any date of determination
(a) prior to the termination
of the Revolver Commitments,
the amount
of such
Lender's Revolver
Commitment, and
(b) after the
termination of
the Revolver
Commitments, the aggregate
outstanding principal amount
of the Revolving
Loans of such
Lender.
"Revolving Loan LIBOR Rate Margin"
has the meaning set forth in
the definition
of Applicable Margin.
"Revolving Loans"
has the
meaning specified
therefor in
Section 2.1(a)
of this
Agreement.
"Sanctioned Entity" means (a)
a country or territory or
a government of a
country
or territory, (b) an agency of the
government of a country or territory, (c)
an organization directly
or indirectly controlled by
a country or
territory or its
government, or (d) a
Person resident in
or
determined to be resident in a country or territory,
in each case of clauses (a) through (d) that is
a
target of Sanctions, including
a target of any
country sanctions program
administered and enforced
by OFAC.
"Sanctioned Person
"
means, at
any time
(a) any Person
named on
the list
of
Specially Designated Nationals and Blocked Persons maintained by OFAC, OFAC's consolidated
Non-SDN list or any
other Sanctions-related list maintained
by any Governmental Authority, (b) a
Person or legal entity that is a target of Sanctions,
(c) any Person operating, organized or resident
in a Sanctioned Entity,
or (d) any Person
directly or indirectly
owned or controlled
(individually
or in the aggregate) by or
acting on behalf of any such Person
or Persons described in clauses (a)
through (c) above.
"Sanctions" means individually
and collectively, respectively, any and
all economic
sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade
embargoes anti-terrorism laws and
other sanctions laws,
regulations or embargoes, including
those
imposed, administered
or enforced
from time
to time
by:
(a) the United
States of
America,
including those
administered by
OFAC, the
U.S. Department
of State,
the U.S.
Department of
Commerce, or
through any
existing or
future executive
order, (b)
the United
Nations Security
Council, (c) the Government of Canada, (d) the European Union or any European Union member
state, (e) Her Majesty's Treasury of the
United Kingdom, or (f) any other
Governmental Authority
with jurisdiction over any member
of Lender Group or
any Loan Party or
any of their respective
Subsidiaries or Affiliates.
"S&P" has
the meaning
specified therefor
in the
definition of
Domestic Cash
Equivalents.
"SEC" means
the United
States Securities
and Exchange
Commission and
any
successor thereto.
"Securities Account"
means a
securities account
(as that
term is
defined in
the
Code).
"Securities Act" means the Securities
Act of 1933, as amended
from time to time,
and any successor statute.
"Settlement" has the
meaning specified therefor
in Section
2.3(e)(i) of this
Agreement.
"Settlement Date"
has the
meaning specified
therefor in
Section 2.3(e)(i)
of this
Agreement.
"SOFR" with respect to any day means the secured overnight financing rate
published for
such day
by the
Federal Reserve
Bank of
New York,
as the
administrator of
the
benchmark, (or a successor administrator) on the Federal Reserve Bank of New York's Website.
"Solvent" means, with
respect to any
Person as of
any date of determination,
that
(a) at fair valuations, the
sum of such Person's
debts (including contingent liabilities)
is less than
all of
such Person's
assets, (b)
such Person
is not
engaged or
about to
engage in
a business
or
transaction for which the remaining
assets of such Person are unreasonably
small in relation to the
business or transaction or
for which the property
remaining with such Person
is an unreasonably
small capital, (c) such Person has not incurred and does not intend
to incur, or reasonably believe
that it will
incur, debts beyond its
ability to pay
such debts as
they become due
(whether at maturity
or otherwise), and
(d) such Person is "solvent"
or not "insolvent",
as applicable within the
meaning
given those
terms and
similar terms
under applicable
laws relating
to bankruptcy,
insolvency,
fraudulent transfers and conveyances.
For purposes of this definition,
the amount of any
contingent liability at any time
shall be computed as the
amount that, in light of
all of the facts and
circumstances existing
at such
time, represents
the amount
that can
reasonably be
expected to
become an actual or matured liability (irrespective of whether such contingent liabilities meet
the
criteria for accrual under Statement of Financial Accounting Standard No. 5).
"Specified State"
means any one of (a) the United States and (b) Canada.
"Specified Transaction"
means, any
Investment, or
Restricted Payment
(or
declaration of any prepayment or Restricted Payment).
"Spot Rate"
means, for
a currency,
the rate
determined by
Agent to
be the
rate
quoted by Wells
Fargo acting in such capacity as the spot rate for the purchase by Wells
Fargo of
such currency
with another
currency through
its principal
foreign exchange
trading office
at
approximately 11:00 a.m. (New York
time) on the date two Business
Days prior to the date
as of
which the foreign exchange computation is made; provided, that Agent may obtain such
spot rate
from another financial institution designated by Agent
if Wells Fargo acting in such capacity does
not have as of the date of determination a spot buying rate for any such currency.
"STA" means
the Securities
Transfer Act,
2006 (Ontario)
or to
the extent
applicable, comparable legislation in other Canadian provinces.
"Standard Letter
of Credit
Practice" means,
for Issuing
Bank, any
domestic or
foreign law
or letter
of credit
practices applicable
in the
city in
which Issuing
Bank issued
the
applicable Letter of Credit or,
for its branch or correspondent, such laws
and practices applicable
in the city in which it has advised, confirmed or
negotiated such Letter of Credit, as the case may
be, in each case,
(a) which letter of credit
practices are of banks
that regularly issue letters
of credit
in the particular
city, and (b) which laws or
letter of credit
practices are required
or permitted under
ISP or UCP,
as chosen in the applicable Letter of Credit.
"Subject Holder"
has the
meaning specified
therefor in
Section 2.4(e)(v)
of this
Agreement.
"Subordinated Indebtedness"
means any
Indebtedness of
any Loan
Party or
its
Subsidiaries incurred from time to time that is subordinated
in right of payment to the Obligations
and is subject to a subordination
agreement acceptable to Agent or contains terms
and conditions
of subordination that are acceptable to Agent.
"Subsidiary" of
a Person
means a
corporation, partnership,
limited liability
company, unlimited
liability company or
other entity in
which that Person
directly or indirectly
owns or controls
the Equity Interests having
ordinary voting power to
elect a majority of
the Board
of Directors of such corporation, partnership, limited liability company, or other entity.
"Supermajority Lenders" means, at any
time, Revolving Lenders having or
holding
more than 66
2/3% of the
aggregate Revolving Loan
Exposure of all
Revolving Lenders; provided,
that (i)
the Revolving
Loan Exposure
of any
Defaulting Lender
shall be
disregarded in
the
determination of the Supermajority Lenders, and (ii) at any time there are two or more Revolving
Lenders (who are
not Affiliates of one
another), "Supermajority Lenders"
must include at least
two
Revolving Lenders (who are not Affiliates of one another or Defaulting Lenders).
"Supported QFC"
has the
meaning specified
therefor in
Section 17.15
of this
Agreement.
"Swap Obligation" means, with respect to any Loan
Party, any obligation to pay or
perform under any agreement,
contract or transaction that constitutes
a "swap" within the meaning
of section 1a(47) of the Commodity Exchange Act.
"Swing Lender"
means Wells
Fargo or
any other
Lender that,
at the
request of
Borrowers and with the
consent of Agent agrees,
in such Lender's sole
discretion, to become the
Swing Lender under Section 2.3(b) of this Agreement.
"Swing Loan" has
the meaning specified
therefor in Section
2.3(b) of this
Agreement.
"Swing Loan Exposure"
means, as of any date
of determination with respect to any
Lender, such Lender's Pro Rata Share of the Swing Loans on such date.
"Taxes" means any taxes, levies,
imposts, duties, fees,
assessments or other
charges
of whatever nature now or hereafter
imposed by any jurisdiction or by any
political subdivision or
taxing authority
thereof or
therein, and
all interest,
penalties or
similar liabilities
with respect
thereto.
"Tax Lender
"
has the meaning
specified therefor in
Section 14.2(a) of
this
Agreement.
"Term Loans" means the M/E Term
Loan and the R/E Term Loan.
"Term Loan
Base Rate
Margin" has
the meaning
set forth
in the
definition of
Applicable Margin.
"Term Loan Lender" means a Lender that has a M/E Term
Loan Commitment or a
R/E Term Loan Commitment or that has a portion of the M/E Term
Loan or R/E Term Loan.
"Term Loan
LIBOR Rate
Margin" has
the meaning
set forth
in the
definition of
Applicable Margin.
"Term SOFR"
means the forward-looking term
rate based on SOFR that
has been
selected or recommended by the Relevant Governmental Body.
"Tooling" means the machine tooling and
components, such as jigs,
gauges, molds,
dies and cutting
equipment and patterns,
used by a
Person in the
manufacture and production
of
Inventory.
"Trademark Security
Agreement"
has the
meaning specified
therefor in
the
Guaranty and Security Agreement.
"UCP" means,
with respect
to any
Letter of
Credit, the
Uniform Customs
and
Practice for Documentary
Credits 2007 Revision,
International Chamber of
Commerce Publication
No. 600 and any version or revision thereof accepted by Issuing Bank for use.
"Unadjusted Benchmark
Replacement" means
the Benchmark
Replacement
excluding the Benchmark Replacement Adjustment.
"Unfinanced Capital
Expenditures" means
Capital Expenditures
(a) not financed
with the proceeds of any
incurrence of Indebtedness (other than
the incurrence of any Revolving
Loans), the
proceeds of
any sale
or issuance
of Equity
Interests or
equity contributions,
the
proceeds of any asset sale
(other than the sale of
Inventory in the ordinary course of
business) or
any insurance
proceeds, and
(b) that are
not reimbursed
by a
third person
(excluding any
Loan
Party or
any of
its Affiliates)
in the
period such
expenditures are
made pursuant
to a
written
agreement; provided, that,
Unfinanced Capital Expenditures
shall exclude BRP/Navistar
Project
Cap Ex incurred on or prior to December 31, 2022.
"United States"
or "US"
or "U.S."
means the United States of America.
"Unused Line
Fee" has
the meaning
specified therefor
in Section
2.10(b) of
this
Agreement.
"U.S. Special Resolution
Regimes" has the
meaning specified therefor
in Section
17.15 of this Agreement.
"Voidable
Transfer"
has the
meaning specified
therefor in
Section 17.8
of this
Agreement.
"Wells Fargo
"
means Wells
Fargo Bank, National Association, a national
banking
association.
"Withdrawal Liability"
means liability with
respect to a
Multiemployer Plan as
a
result of a
complete or partial
withdrawal from such
Multiemployer Plan, as
such terms are
defined
in Part I of Subtitle E of Title IV of ERISA.
"Write-Down and Conversion Powers" means, with
respect to any EEA
Resolution
Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to
time under the
Bail-In Legislation for
the applicable
EEA Member Country,
which write
-down
and conversion powers are described in the EU Bail-In Legislation Schedule.
1.2.
Accounting Terms
.
All accounting terms not specifically defined herein shall
be construed in accordance with GAAP; provided, that if Administrative Borrower notifies Agent
that Borrowers
request an
amendment to
any provision
hereof to
eliminate the
effect of
any
Accounting Change occurring after the Closing Date
or in the application thereof on
the operation
of such provision (or if Agent
notifies Administrative Borrower that the Required
Lenders request
an amendment to any provision hereof for such purpose),
regardless of whether any such notice is
given before
or after
such Accounting
Change or
in the
application thereof,
then Agent
and
Borrowers agree
that they
will negotiate
in good
faith amendments
to the
provisions of
this
Agreement that
are directly
affected by
such Accounting
Change with
the intent
of having
the
respective positions
of the
Lenders and
Borrowers after
such Accounting
Change conform
as
nearly as possible to their respective
positions immediately before such Accounting Change
took
effect and,
until any
such amendments
have been
agreed upon
and agreed
to by
the Required
Lenders, the provisions
in this
Agreement shall be
calculated as if
no such Accounting
Change
had occurred.
When used
herein, the
term "financial
statements" shall
include the
notes and
schedules thereto. Whenever the term
"Borrowers" is used in respect
of a financial covenant or
a
related definition,
it shall
be understood
to mean
the Loan
Parties and
their Subsidiaries
on a
consolidated basis, unless the context clearly
requires otherwise.
Notwithstanding anything to the
contrary contained herein, (a)
all financial statements delivered
hereunder shall be
prepared, and
all financial covenants contained
herein shall be calculated,
without giving effect
to any election
under the Statement of Financial Accounting Standards Board's Accounting Standards
Codification Topic
825 (or
any similar
accounting principle)
permitting a
Person to
value its
financial liabilities or Indebtedness
at the fair value
thereof, and (b) the term
"unqualified opinion"
as used herein
to refer to
opinions or reports
provided by accountants
shall mean an
opinion or
report that is (i) unqualified, and (ii) does not include any explanation, supplemental comment, or
other comment concerning the
ability of the applicable
Person to continue
as a going concern
or
concerning the scope of the audit.
1.3.
Code; PPSA
.
Any terms
used in
this Agreement
that are
defined in
(a) the
Code shall
be construed
and defined
as set
forth in
the Code
unless otherwise
defined herein;
provided, that to the
extent that the Code
is used to define
any term herein and
such term is defined
differently in different
Articles of the Code,
the definition of such
term contained in Article
9 of
the Code shall govern,
and (b) the PPSA shall
be construed and defined
as set forth in
the PPSA
unless otherwise defined
herein when used in
relation to Collateral
subject to the
PPSA.
Notwithstanding the
foregoing, and
where the
context so
requires, (i)
any term
defined in
this
Agreement by reference to the "Code", the "UCC"
or the "Uniform Commercial Code" shall also
have any extended,
alternative or analogous
meaning given to
such term in
applicable Canadian
personal property
security and
other laws
(including, without
limitation, the
PPSA, the
Bills of
Exchange Act
(Canada) and
the
Depository Bills
and Notes
Act
(Canada)), in
all cases
for the
extension, preservation or betterment of the security and
rights of the Collateral, (ii) all references
in this Agreement
to "Article 8"
shall be deemed
to refer also
to applicable Canadian
securities
transfer laws (including,
without limitation, the
STA), (iii)
all references in
this Agreement to
a
financing statement, continuation statement,
amendment or termination statement
shall be deemed
to refer also
to the analogous
documents used under
the PPSA, (iv)
all references to
the United
States of America,
or to any
subdivision, department, agency
or instrumentality thereof
shall be
deemed to
refer also
to Canada,
or to
any subdivision,
department, agency
or instrumentality
thereof, and (v) all references
to federal or state
securities law of the
United States shall be
deemed
to refer also to analogous federal (where applicable) and provincial securities laws in Canada.
1.4.
Construction
.
Unless the context of this Agreement or any
other Loan
Document clearly requires
otherwise, references to
the plural include
the singular,
references to
the singular include the plural, the terms
"includes" and
"including" are not limiting, and the term
"or" has,
except where
otherwise indicated,
the inclusive
meaning represented
by the
phrase
"and/or."
The words "hereof,"
"herein," "hereby,"
"hereunder," and
similar terms in
this
Agreement or any other Loan
Document refer to this Agreement
or such other Loan Document, as
the case may
be, as a
whole and not
to any particular
provision of this
Agreement or such
other
Loan Document, as the case may
be.
Section, subsection, clause, schedule, and exhibit references
herein are to
this Agreement unless
otherwise specified.
Any reference in
this Agreement or
in
any other Loan Document to any agreement, instrument, or
document shall include all alterations,
amendments, changes, extensions, modifications, renewals, replacements,
substitutions, joinders,
and supplements, thereto and thereof,
as applicable (subject to any restrictions
on such alterations,
amendments, changes, extensions, modifications, renewals, replacements,
substitutions, joinders,
and supplements set
forth herein).
The words "asset"
and "property" shall
be construed to
have
the same
meaning and
effect and
to refer
to any
and all
tangible and
intangible assets
and
properties.
All references to "province" or
like terms shall include "territory"
and like terms.
Any
reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full
of the Obligations shall mean (a) the payment or repayment in
full in immediately available funds
of (i)
the principal
amount of,
and interest
accrued and
unpaid with
respect to,
all outstanding
Loans, together with
the payment of any
premium applicable to the
repayment of the Loans,
(ii) all
Lender Group Expenses that have accrued and are unpaid regardless of whether demand has been
made therefor,
and (iii) all fees
or charges that
have accrued hereunder
or under any
other Loan
Document (including the Letter of Credit Fee and the Unused Line Fee) and are unpaid, (b) in the
case of contingent reimbursement obligations
with respect to Letters
of Credit, providing Letter of
Credit Collateralization, (c)
in the case
of obligations with
respect to Bank
Products (other than
Hedge Obligations), providing
Bank Product Collateralization,
(d) the receipt
by Agent of
cash
collateral in
order to
secure any
other contingent
Obligations for
which a
claim or
demand for
payment has been made on or
prior to such time or in
respect of matters or circumstances known
to Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage,
or expense (including
attorneys' fees and
legal expenses), such
cash collateral to be
in such amount
as Agent
reasonably determines
is appropriate
to secure
such contingent
Obligations, (e)
the
payment or repayment in full
in immediately available funds of all
other outstanding Obligations
(including the
payment of
any termination
amount then
applicable (or
which would
or could
become applicable as a result
of the repayment of
the other Obligations) under Hedge
Agreements
provided by Hedge
Providers) other
than (i)
unasserted contingent
indemnification Obligations,
(ii) any Bank Product Obligations
(other than Hedge Obligations)
that, at such time,
are allowed
by the applicable
Bank Product Provider to
remain outstanding without being
required to be repaid
or cash
collateralized, and
(iii) any Hedge
Obligations that,
at such
time, are
allowed by
the
applicable Hedge Provider to remain
outstanding without being required
to be repaid, and (f)
the
termination of all of
the Commitments of
the Lenders.
Any reference herein to
any Person shall
be construed
to include
such Person's
successors and
assigns.
Any requirement
of a
writing
contained herein or in
any other Loan Document
shall be satisfied by
the transmission of a
Record.
1.5.
Time References
.
Unless the
context of
this Agreement
or any
other Loan
Document clearly requires otherwise,
all references to
time of day refer
to Central standard time
or Central daylight saving time, as in effect
in Chicago, Illinois on such day.
For purposes of the
computation of a
period of time
from a specified
date to a
later specified date,
unless otherwise
expressly provided, the word
"from" means "from and
including" and the words
"to" and "until"
each means
"to and
including"; provided,
that with
respect to
a computation
of fees
or interest
payable to Agent or any Lender, such period shall in any event consist of at least one full day.
1.6.
Schedules and
Exhibits
.
All of
the schedules
and exhibits
attached to
this
Agreement shall be deemed incorporated herein by reference.
1.7.
Divisions
.
For all purposes under
the Loan Documents, in connection
with any
division or
plan of
division under
Delaware law
(or any
comparable event
under a
different
jurisdiction's laws): (a) if any asset,
right, obligation or liability of any Person
becomes the asset,
right, obligation or liability of a different Person, then it shall be deemed to have been transferred
from the original Person
to the subsequent Person,
and (b) if any
new Person comes into
existence,
such new Person shall
be deemed to have
been organized on
the first date of
its existence by the
holders of its Equity Interests at such time.
1.8.
Exchange Rates;
Currency Equivalents;
Applicable Currency
.
For
purposes of this
Agreement and the
other Loan Documents, the
Dollar Equivalent of
the Revolving
Loans, Letters
of Credit,
other Obligations
and other
references to
amounts denominated
in a
currency other than US
Dollars shall be determined
in accordance with the
terms of this
Agreement.
Such US Dollar
Equivalent shall become
effective as of
such Revaluation Date
for
such Revolving
Loans, Letters
of Credit
and other
Obligations and
shall be
the US
Dollar
Equivalent employed in converting any
amounts between the applicable currencies
until the next
Revaluation Date
to occur
for such
Revolving Loans,
Letters of
Credit and
other Obligations.
Except as
otherwise expressly
provided herein
or in
the applicable
other Loan
Document, the
applicable amount of any currency for purposes of this Agreement
and the other Loan Documents
(including all
calculations in
connection with
the covenants,
including the
financial covenants)
shall be the US Dollar Equivalent thereof, and
for the purpose of such calculations,
comparisons,
measurements or determinations, amounts denominated in
currencies other than US Dollars shall
be converted into the
US Dollar Equivalent of
such amount on the
date of calculation, comparison,
measurement or
determination.
Notwithstanding the
foregoing, for
the purposes
of financial
statements and any components
of the financial covenant
contained in Section 7)
derived
therefrom, in
each case
prepared by
Borrowers, the
US Dollar
Equivalent of
each amount
in a
currency other than US Dollars shall be determined in accordance with GAAP.
1.9.
Quebec Interpretation
.
For all purposes
of any
assets, liabilities
or entities
located in
the Province
of Quebec
and for
all purposes
pursuant to
which the
interpretation or
construction of this Agreement may be subject to the laws
of the Province of Quebec or a court or
tribunal exercising jurisdiction
in the
Province of
Quebec, (a)
"personal property"
shall include
"movable property",
(b) "real property"
shall include
"immovable property",
(c) "tangible
property" shall include
"corporeal property", (d)
"intangible property" shall
include "incorporeal
property", (e) "security interest", "mortgage"
and "lien" shall include
a "hypothec", "prior claim"
and a "resolutory
clause", (f) all
references to filing,
registering or recording
under the Code
or
PPSA shall include publication under the Civil Code of Quebec, (g) all references to
"perfection"
of or "perfected" liens
or security interest shall
include a reference to
an "opposable" or "set
up"
lien or security interest as against third parties, (h) any "right of offset", "right of setoff' or similar
expression shall
include a "right
of compensation",
(i) "goods" shall
include corporeal movable
property" other than
chattel paper,
documents of
title, instruments,
money and securities,
(j) an
"agent" shall
include a
"mandatary", (k)
"construction liens"
shall include
"legal hypothecs",
(l) "joint and several" shall include
solidary, (m) "gross negligence or willful misconduct" shall
be
deemed to be "intentional or
gross fault", (n) "beneficial ownership" shall
include "ownership on
behalf of
another as
mandatary", (o)
"easement" shall
include "servitude",
(p) "priority" shall
include "prior
claim", (q)
"survey" shall
include "certificate
of location
and plan",
and (r)
"fee
simple title" shall include "absolute ownership."
2.
LOANS AND TERMS OF PAYMENT.
2.1.
Revolving Loans
.
(a)
Subject to the terms and conditions of this Agreement, and during the term
of this Agreement, each
Revolving Lender agrees (severally,
not jointly or jointly
and severally)
to make revolving
loans in
Dollars ("Revolving Loans")
to Borrowers in
an amount
at any one
time outstanding not to exceed
the lesser of
:
(i)
such Lender's Revolver Commitment, or
(ii)
such Lender's Pro Rata Share of an amount equal to the lesser of:
(A)
the amount
equal to
(1) the Maximum
Revolver Amount,
less
(2) the sum of
(y) the Letter of
Credit Usage
at such time,
plus
(z) the principal amount
of
Swing Loans outstanding at such time, and
(B)
the amount equal to
(1) the Borrowing Base as of
such date
(based upon
the most
recent Borrowing
Base Certificate
delivered by
Borrowers to
Agent, as
adjusted for Reserves established by Agent in accordance with Section 2.1(c)),
less
(2) the sum of
(x) the Letter of
Credit Usage
at such
time,
plus
(y) the principal
amount of
Swing Loans
outstanding at such time.
(b)
Amounts borrowed pursuant to this Section 2.1 may
be repaid and, subject
to the
terms and
conditions of
this Agreement,
reborrowed at
any time
during the
term of
this
Agreement.
The outstanding
principal amount
of the
Revolving Loans,
together with
interest
accrued and
unpaid thereon,
shall constitute
Obligations and
shall be
due and
payable on
the
Maturity Date or, if earlier, on the date on
which they otherwise become
due and payable pursuant
to the terms of this Agreement.
(c)
Anything to
the contrary
in this
Section 2.1
notwithstanding, Agent shall
have the right
(but not the
obligation) at any
time, in the
exercise of its
Permitted Discretion, to
establish and
increase or
decrease Reserves
and against
the Borrowing
Base or
the Maximum
Revolver Amount.
The amount
of any
Reserve established
by Agent,
and any
changes to
the
eligibility criteria
set forth
in the
definitions of
Eligible Accounts,
Eligible Inventory,
Eligible
M&E, and Eligible
Real Property shall
have a reasonable
relationship to the event,
condition, other
circumstance, or
fact that
is the
basis for
such reserve
or change
in eligibility
and shall
not be
duplicative of any other reserve established and currently maintained or eligibility criteria.
2.2.
Term
Loans
.
(a)
Subject to the
terms and conditions
of this Agreement,
(i) on the
Closing
Date each Lender with a
M/E Term Loan Commitment agrees (severally, not jointly or jointly and
severally) to
make term
loans (collectively,
the "Initial
M/E Term
Loan") to
Borrowers in
an
amount equal
to the
lesser of
(a) such L
ender's M/E
Term Loan
Commitment, and
(b) such
Lender's Pro
Rata Share
of the
lesser of
(x) the M/E
Term Loan
Amount and
(y) the M&E
Borrowing Base and
(ii) after the
Closing Date and
prior to April
27, 2022 and
subject to the
receipt
by Agent of an Acceptable Appraisal with respect to the
Eligible M&E after the Closing Date and
within three months
prior to the
date of the funding
of the Additional
M/E Term Loan, each Lender
with an
M/E Term
Loan Commitment
agrees (severally,
not jointly
or jointly
and severally)
to
make a single additional term loan (the "Additional M/E Term Loan") to Borrowers in an amount
equal to the
lesser of (a)
such Lender's M/E Term Loan
Commitment less the outstanding
principal
amount of the Initial M/E Term
Loan held by such Lender,
and (b) such Lender's Pro Rata
Share
of the
lesser of
(x) the Additional
M/E Term
Loan Amount
and (y)
the M&E
Borrowing Base
(based upon the then
most recently received Acceptable
Appraisal of Eligible M/E)
less the then
outstanding principal balance of the Initial M/E Term Loan.
The principal of the M/E Term Loan
shall be repaid on the following dates and in the following amounts:
Date
Installment Amount
(prior to funding of the
Additional M/E Term
Loan)
Installment Amount
(after the funding of
the Additional M/E
Term Loan)
November 30, 2020 and
the last day of each
month through and
including November 30,
2024
$86,785.71
1/84th of the principal
amount of the M/E
Term Loan
immediately after the
funding of the
Additional M/E Term
Loan
The outstanding unpaid
principal balance and
all accrued and
unpaid interest
on the M/E
Term
Loan shall be due
and payable on
the earlier of (x)
the Maturity Date,
and (y) the date
on which
the M/E Term Loan otherwise becomes due and payable pursuant to
the terms of this Agreement.
Any principal
amount of
the M/E
Term Loan
that is
repaid or
prepaid may
not be
reborrowed
except as expressly provided by clause (ii)
above with respect to the Additional
M/E Term
Loan.
All principal of,
interest on,
and other amounts
payable in
respect of
the M/E
Term Loan
shall
constitute Obligations hereunder.
(b)
Subject to the terms and conditions of this Agreement, on the Closing Date
each Lender
with a
R/E Term
Loan Commitment
agrees (severally,
not jointly
or jointly
and
severally) to
make term
loans (collectively,
the "R/E
Term Loan")
to Borrowers
in an
amount
equal to the
lesser of (a)
such Lender's R/E
Term Loan
Commitment, and (b)
such Lender's Pro
Rata Share of the lesser
of (i) the R/E Term Loan Amount and (ii) the R/E Borrowing
Base (based
upon the R/E Borrowing Base Certificate
delivered by Borrowers to Agent
on the Closing Date).
The principal of
the R/E Term
Loan shall be
repaid on the
following dates and
in the following
amounts:
Date
Installment Amount
November 30, 2020 and the last
day of each month through and
including November 30, 2024
$113,095.24
The outstanding
unpaid principal
balance and all
accrued and unpaid
interest on
the R/E
Term
Loan shall be
due and payable
on the earlier
of (i) the Maturity
Date, and (ii)
the date on
which
the R/E Term
Loan otherwise becomes due and payable pursuant
to the terms of this Agreement.
Any principal amount of the R/E Term Loan that is repaid or prepaid may not be
reborrowed.
All
principal of,
interest on,
and other
amounts payable
in respect
of the
R/E Term
Loan shall
constitute Obligations hereunder.
2.3.
Borrowing Procedures and Settlements
.
(a)
Procedure for Borrowing Revolving Loans and Term
Loans
.
(i)
Each Borrowing shall
be made by
a written request
by an Authorized
Person delivered to Agent (which may be delivered through Agent's electronic platform or portal)
and received by
Agent no later
than 1:00 p.m.
(i) on the Business
Day that is the
requested Funding
Date in the case of a request for a
Swing Loan, (ii) on the Business Day that
is one Business Day
prior to the requested Funding Date in
the case of a request for a Base
Rate Loan, and (iii) on the
Business Day that
is three Business
Days prior to
the requested Funding
Date in the
case of all
other requests, specifying (A) the amount of such Borrowing,
and (B) the requested Funding Date
(which shall be a
Business Day); provided, that
Agent may,
in its sole
discretion, elect to accept
as timely
requests that
are received
later than
1:00 p.m.
on the
applicable Business
Day.
All
Borrowing requests which are not
made on-line via Agent's electronic
platform or portal shall be
subject to (and
unless Agent elects
otherwise in the
exercise of its sole
discretion, such Borrowings
shall not be made until the
completion of) Agent's authentication process (with
results satisfactory
to Agent) prior to the funding of any such requested Revolving Loan.
(ii)
The Additional M/E Term
Loan shall be made by
a written request
by an Authorized Person delivered to Agent and received by Agent no later than 3:00
p.m. on the
Business Day that
is 10 days
prior to the
requested Funding Date,
specifying (A) the amount
of
the Additional M/E
Term Loan,
and (B) the requested
Funding Date (which
shall be a
Business
Day).
(b)
Making of Swing Loans
.
In the case of a Revolving
Loan and so long as
any of (i)
the aggregate amount
of Swing Loans
made since the
last Settlement
Date,
minus
all
payments or other amounts
applied to Swing Loans
since the last Settlement
Date,
plus
the amount
of the
requested Swing
Loan does
not exceed
$2,500,000, or
(ii) Swing Lender,
in its
sole
discretion, agrees to make a Swing Loan
notwithstanding the foregoing limitation, Swing Lender
shall make a Revolving
Loan (any such Revolving
Loan made by Swing
Lender pursuant to this
Section 2.3(b) being referred to
as a "Swing Loan" and
all such Revolving Loans being
referred to
as "Swing Loans") available to Borrowers on the
Funding Date applicable thereto by transferring
immediately available funds in
the amount of such
Borrowing to the Designated
Account.
Each
Swing Loan shall
be deemed to be
a Revolving Loan
hereunder and shall
be subject to all
the terms
and conditions (including Section
3) applicable to
other Revolving Loans,
except that all payments
(including interest)
on any
Swing Loan
shall be
payable to
Swing Lender
solely for
its own
account.
Subject to the
provisions of Section
2.3(d)(ii), Swing Lender
shall not make
and shall
not be obligated
to make any
Swing Loan if
Swing Lender has
actual knowledge that
(i) one or
more of
the applicable
conditions precedent
set forth
in Section
3 will
not be
satisfied on
the
requested Funding
Date for
the applicable
Borrowing, or
(ii) the requested
Borrowing would
exceed the Availability
on such Funding
Date.
Swing Lender shall
not otherwise be
required to
determine whether the
applicable conditions precedent
set forth in
Section 3 have
been satisfied
on the Funding Date applicable thereto prior to
making any Swing Loan.
The Swing Loans shall
be secured by Agent's Liens, constitute Revolving Loans and Obligations, and bear interest
at the
rate applicable from time to time to Revolving Loans that are Base Rate Loans.
(c)
Making of Revolving Loans
.
(i)
In the
event that
Swing Lender
is not
obligated to
make a
Swing
Loan, then
after receipt
of a
request for
a Borrowing
pursuant to
Section 2.3(a)(i),
Agent shall
notify the Lenders by
telecopy, telephone,
email, or other electronic
form of transmission, of
the
requested Borrowing; such notification to be
sent on the Business Day that is
(A) in the case of a
Base Rate Loan, at least one Business Day prior to the requested Funding Date, or (B) in the case
of a
LIBOR Rate
Loan, prior
to 1:00
p.m. at
least three
Business Days
prior to
the requested
Funding Date.
If Agent has notified
the Lenders of
a requested Borrowing on
the Business Day
that is one
Business Day prior
to the Funding
Date, then each
Lender shall make
the amount of
such Lender's
Pro Rata
Share of
the requested
Borrowing available
to Agent
in immediately
available funds,
to Agent's
Account, not
later than
12:00 p.m.
on the
Business Day
that is
the
requested Funding Date.
After Agent's receipt of the proceeds of such Revolving Loans from the
Lenders, Agent shall make the proceeds thereof available to Borrowers on
the applicable Funding
Date by transferring immediately available funds equal to such proceeds received by Agent to the
Designated Account; provided, that subject to the provisions
of Section 2.3(d)(ii), no Lender shall
have an obligation
to make any
Revolving Loan, if
(1) one or more
of the applicable
conditions
precedent set
forth in
Section 3
will not
be satisfied
on the
requested Funding
Date for
the
applicable Borrowing
unless such
condition has
been waived,
or (2)
the requested
Borrowing
would exceed the Availability on such Funding Date.
(ii)
Unless Agent receives notice
from a Lender prior
to 11:30 a.m.
on
the Business Day that is the
requested Funding Date relative to a
requested Borrowing as to which
Agent has notified the Lenders of
a requested Borrowing that such Lender
will not make available
as and when required
hereunder to Agent for
the account of Borrowers
the amount of that
Lender's
Pro Rata Share of
the Borrowing, Agent may
assume that each Lender
has made or will
make such
amount available to
Agent in immediately
available funds on
the Funding Date
and Agent may
(but shall not
be so required),
in reliance upon
such assumption, make
available to Borrowers
a
corresponding amount.
If, on the requested Funding Date, any Lender shall not have remitted the
full amount that
it is required
to make available
to Agent in
immediately available funds
and if
Agent has made
available to Borrowers
such amount on
the requested Funding
Date, then such
Lender shall
make the
amount of
such Lender's
Pro Rata
Share of
the requested
Borrowing
available to Agent in
immediately available funds, to Agent's
Account, no later than
12:00 p.m. on
the Business Day that
is the first
Business Day after
the requested Funding Date
(in which case,
the interest accrued on such Lender's portion of such Borrowing for the Funding Date shall be for
Agent's separate account).
If any Lender shall not remit
the full amount that it is required
to make
available to Agent in
immediately available funds as
and when required hereby
and if Agent has
made available
to Borrowers
such amount,
then that
Lender shall
be obligated
to immediately
remit such amount to
Agent, together with interest
at the Defaulting Lender
Rate for each day
until
the date on
which such amount
is so remitted.
A notice submitted
by Agent to
any Lender with
respect to amounts owing under
this Section 2.3(c)(ii) shall
be conclusive, absent manifest
error.
If the amount that a Lender is required
to remit is made available to Agent,
then such payment to
Agent shall constitute such Lender's
Revolving Loan for all
purposes of this Agreement.
If such
amount is not
made available to
Agent on the
Business Day following
the Funding Date,
Agent
will notify Administrative Borrower of such
failure to fund and, upon
demand by Agent,
Borrowers shall pay such amount to Agent for
Agent's account, together with interest thereon for
each day elapsed since
the date of such
Borrowing, at a rate
per annum
equal to the
interest rate
applicable at the time to the Revolving Loans composing such Borrowing.
(d)
Protective Advances and Optional Overadvances
.
(i)
Any contrary provision
of this Agreement
or any other
Loan
Document notwithstanding (but subject to
Section 2.3(d)(iv)), at any
time (A) after the occurrence
and during
the continuance
of a
Default or
an Event
of Default,
or (B)
that any
of the
other
applicable conditions precedent set forth in Section 3 are not
satisfied, Agent hereby is authorized
by Borrowers and
the Lenders, from
time to time,
in Agent's sole
discretion, to make
Revolving
Loans to, or for
the benefit of, Borrowers,
on behalf of the
Revolving Lenders, that Agent,
in its
Permitted Discretion, deems necessary
or desirable (1) to preserve or
protect the Collateral, or any
portion thereof, or
(2) to enhance the
likelihood of repayment
of the Obligations
(other than the
Bank Product
Obligations) (the
Revolving Loans
described in
this Section
2.3(d)(i) shall
be
referred to as "Protective Advances").
(ii)
Any contrary provision
of this Agreement
or any other
Loan
Document notwithstanding, the Lenders
hereby authorize Agent or
Swing Lender, as
applicable,
and either
Agent or
Swing Lender,
as applicable,
may, but
is not
obligated to,
knowingly and
intentionally, continue
to make
Revolving Loans
(including Swing
Loans) to
Borrowers
notwithstanding that
an Overadvance
exists or
would be
created thereby,
so long
as (A)
after
giving effect
to such
Revolving Loans,
the outstanding
Revolver Usage
does not
exceed the
Borrowing Base by more
than 10% of the
Borrowing Base, and (B)
subject to Section
2.3(d)(iv)
below, after
giving effect
to such Revolving
Loans, the outstanding
Revolver Usage (except
for
and excluding amounts charged to
the Loan Account for
interest, fees, or Lender
Group Expenses)
does not exceed
the Maximum Revolver
Amount.
In the event Agent
obtains actual knowledge
that the Revolver
Usage exceeds the
amounts permitted by
this Section 2.3(d),
regardless of the
amount of, or reason
for, such excess,
Agent shall notify the
Lenders as soon as
practicable (and
prior to
making any
(or any
additional) intentional
Overadvances (except
for and
excluding
amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) unless Agent
determines that prior notice would result in imminent harm to the Collateral or its value, in which
case Agent may
make such
Overadvances and provide
notice as promptly
as practicable
thereafter), and the
Lenders with Revolver
Commitments thereupon
shall, together with
Agent,
jointly determine the terms of
arrangements that shall be implemented
with Borrowers intended to
reduce, within
a reasonable
time, the
outstanding principal
amount of
the Revolving
Loans to
Borrowers to an
amount permitted by
the preceding sentence.
In such circumstances,
if any Lender
with a
Revolver Commitment
objects to
the proposed
terms of
reduction or
repayment of
any
Overadvance, the terms of reduction
or repayment thereof shall be implemented
according to the
determination of the Required Lenders.
The foregoing provisions are meant for the benefit of the
Lenders and
Agent and
are not
meant for
the benefit
of Borrowers,
which shall
continue to
be
bound by the provisions of Section 2.4(e)(1).
(iii)
Each Protective Advance and
each Overadvance (each, an
"Extraordinary Advance")
shall be
deemed to
be a
Revolving Loan
hereunder, except
that no
Extraordinary Advance shall
be eligible to
be a LIBOR
Rate Loan.
Prior to
Settlement of
any
Extraordinary Advance,
all payments
with respect
thereto, including
interest thereon,
shall be
payable to Agent solely
for its own
account.
Each Revolving Lender
shall be obligated
to settle
with Agent as provided in Section 2.3(e) (or Section 2.3(g), as applicable) for the amount
of such
Lender's Pro
Rata Share
of any
Extraordinary Advance.
The Extraordinary
Advances shall
be
repayable on
demand, secured
by Agent's
Liens, constitute
Obligations hereunder,
and bear
interest at the rate applicable
from time to time to
Revolving Loans that are Base
Rate Loans.
The
provisions of
this Section
2.3(d) are
for the
exclusive benefit
of Agent,
Swing Lender,
and the
Lenders and are not intended to benefit Borrowers (or any other Loan Party) in any way.
(iv)
Notwithstanding anything contained in this Agreement or any other
Loan Document
to the
contrary, no
Extraordinary Advance
may be
made by
Agent if
such
Extraordinary Advance
would cause
the aggregate
Revolver Usage
to exceed
the Maximum
Revolver Amount or any Lender's Pro Rata Share of the Revolver Usage to
exceed such Lender's
Revolver Commitments; provided that Agent may make Extraordinary Advances in excess of the
foregoing limitations so
long as such Extraordinary
Advances that cause
the aggregate Revolver
Usage to exceed
the Maximum Revolver
Amount or a
Lender's Pro Rata
Share of the
Revolver
Usage to exceed such Lender's
Revolver Commitments are for Agent's
sole and separate account
and not for the account
of any Lender.
No Lender shall have an
obligation to settle with Agent
for
such Extraordinary Advances
that cause the
aggregate Revolver Usage
to exceed the
Maximum
Revolver Amount or
a Lender's Pro
Rata Share of
the Revolver Usage
to exceed such
Lender's
Revolver Commitments as provided in Section 2.3(e) (or Section 2.3(g), as applicable).
(e)
Settlement
.
It is agreed that
each Lender's funded portion
of the Revolving
Loans is
intended by
the Lenders
to equal,
at all
times, such
Lender's Pro
Rata Share
of the
outstanding Revolving Loans.
Such agreement notwithstanding,
Agent, Swing Lender,
and the
other Lenders agree
(which agreement shall
not be for
the benefit of
Borrowers) that in
order to
facilitate the administration of
this Agreement and the
other Loan Documents, settlement
among
the Lenders as to
the Revolving Loans (including
Swing Loans and Extraordinary
Advances) shall
take place on a periodic basis in accordance with the following provisions:
(i)
Agent shall request settlement ("Settlement") with the Lenders on a
weekly basis, or
on a more frequent
basis if so
determined by Agent in
its sole discretion
(1) on
behalf of Swing Lender,
with respect to the
outstanding Swing Loans, (2)
for itself, with
respect
to the outstanding Extraordinary
Advances, and (3) with
respect to any Loan
Party's or any
of their
Subsidiaries' payments or other
amounts received, as to
each by notifying the
Lenders by telecopy,
telephone, or other similar form
of transmission, of such requested
Settlement, no later than 4:00
p.m. on the Business Day immediately
prior to the date of
such requested Settlement (the date of
such requested Settlement
being the "Settlement
Date").
Such notice of
a Settlement Date
shall
include a
summary statement
of the
amount of
outstanding Revolving
Loans (including
Swing
Loans and Extraordinary Advances) for the period since the prior Settlement Date.
Subject to the
terms and
conditions contained
herein (including
Section 2.3(g)):
(y) if
the amount
of the
Revolving Loans (including Swing Loans and Extraordinary Advances) made
by a Lender that is
not a Defaulting Lender exceeds such Lender's Pro Rata Share of the Revolving Loans (including
Swing Loans and Extraordinary Advances)
as of a Settlement Date,
then Agent shall, by no
later
than 2:00
p.m. on
the Settlement
Date, transfer
in immediately
available funds
to a
Deposit
Account of such
Lender (as such Lender
may designate), an
amount such that
each such Lender
shall, upon
receipt of
such amount,
have as
of the
Settlement Date,
its Pro
Rata Share
of the
Revolving Loans (including Swing Loans and
Extraordinary Advances), and (z) if
the amount of
the Revolving Loans (including
Swing Loans and Extraordinary
Advances) made by a
Lender is
less than
such Lender's
Pro Rata
Share of
the Revolving
Loans (including
Swing Loans
and
Extraordinary Advances) as of a Settlement Date, such Lender
shall no later than 2:00 p.m. on the
Settlement Date transfer in immediately available funds
to Agent's Account, an amount such
that
each such Lender shall, upon transfer of such
amount, have as of the Settlement Date, its Pro
Rata
Share of
the Revolving
Loans (including
Swing Loans
and Extraordinary
Advances).
Such
amounts made available to Agent under clause (z) of the immediately preceding sentence shall be
applied against
the amounts
of the
applicable Swing
Loans or
Extraordinary Advances
and,
together with
the portion
of such
Swing Loans
or Extraordinary
Advances representing
Swing
Lender's Pro Rata
Share thereof, shall
constitute Revolving Loans
of such Lenders.
If any such
amount is not made available to
Agent by any Lender on the Settlement
Date applicable thereto to
the extent
required by
the terms
hereof, Agent
shall be
entitled to
recover for
its account
such
amount on demand from
such Lender together with
interest thereon at the
Defaulting Lender Rate.
(ii)
In determining whether a
Lender's balance of the
Revolving Loans
(including Swing Loans and
Extraordinary Advances) is
less than, equal
to, or greater
than such
Lender's Pro
Rata Share
of the
Revolving Loans
(including Swing
Loans and
Extraordinary
Advances) as of a
Settlement Date, Agent shall,
as part of the
relevant Settlement, apply to
such
balance the portion
of payments actually
received in good
funds by Agent
with respect to
principal,
interest, fees
payable by
Borrowers and
allocable to
the Lenders
hereunder, and
proceeds of
Collateral.
(iii)
Between Settlement Dates,
Agent, to the
extent Extraordinary
Advances or Swing Loans
are outstanding, may pay
over to Agent or
Swing Lender, as applicable,
any payments
or other
amounts received
by Agent,
that in
accordance with
the terms
of this
Agreement would
be applied
to the
reduction of
the Revolving
Loans, for
application to
the
Extraordinary Advances
or Swing
Loans.
Between Settlement
Dates, Agent,
to the
extent no
Extraordinary Advances
or Swing
Loans are
outstanding, may
pay over
to Swing
Lender any
payments or other
amounts received by
Agent, that in accordance
with the terms of
this Agreement
would be applied to
the reduction of the
Revolving Loans, for application
to Swing Lender's Pro
Rata Share of the Revolving Loans.
If, as of any Settlement Date,
payments or other amounts of
the Loan Parties
or their
Subsidiaries received since
the then immediately
preceding Settlement
Date have been
applied to Swing
Lender's Pro Rata
Share of the
Revolving Loans other
than to
Swing Loans, as
provided for in
the previous sentence, Swing
Lender shall pay to
Agent for the
accounts of the
Lenders, and Agent
shall pay to
the Lenders (other
than a
Defaulting Lender if
Agent has implemented the provisions of Section
2.3(g)), to be applied to the outstanding
Revolving Loans of
such Lenders, an
amount such that
each such Lender
shall, upon receipt
of
such amount, have, as
of such Settlement Date,
its Pro Rata Share
of the Revolving Loans.
During
the period
between Settlement
Dates, Swing
Lender with
respect to
Swing Loans,
Agent with
respect to Extraordinary
Advances, and each
Lender with respect
to the Revolving
Loans other
than Swing Loans and
Extraordinary Advances, shall be
entitled to interest at
the applicable rate
or rates payable under this
Agreement on the daily amount
of funds employed by Swing
Lender,
Agent, or the Lenders, as applicable.
(iv)
Anything in this
Section 2.3(e) to
the contrary notwithstanding,
in
the event that
a Lender is
a Defaulting Lender,
Agent shall be
entitled to refrain
from remitting
settlement amounts to
the Defaulting Lender and,
instead, shall be entitled
to elect to implement
the provisions set forth in Section 2.3(g).
(f)
Notation
.
Consistent with Section 13.1(h), Agent, as
a non-fiduciary agent
for Borrowers, shall
maintain a register
showing the principal
amount and stated
interest of the
Revolving Loans (and portion of the Term
Loan, as applicable), owing to each Lender,
including
the Swing Loans
owing to Swing
Lender, and Extraordinary
Advances owing to
Agent, and the
interests therein of each
Lender, from time
to time and such
register shall, absent manifest
error,
conclusively be presumed to be correct and accurate.
(g)
Defaulting Lenders
.
(i)
Notwithstanding the
provisions of
Section 2.4(b)(iii),
Agent shall
not be obligated to transfer to a Defaulting Lender any
payments made by Borrowers to Agent for
the Defaulting
Lender's benefit
or any
proceeds of
Collateral that
would otherwise
be remitted
hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender,
Agent shall
transfer any
such payments
(A) first,
to Agent
to the
extent of
any Extraordinary
Advances that were made by Agent and that were
required to be, but were not, paid by Defaulting
Lender, (B) second, to Swing
Lender to the extent of any Swing Loans
that were made by Swing
Lender and that
were required
to be,
but were
not, paid
by the
Defaulting Lender,
(C) third,
to
Issuing Bank, to the extent
of the portion of a
Letter of Credit Disbursement that
was required to
be, but was not, paid by
the Defaulting Lender, (D) fourth, to each Non-Defaulting Lender ratably
in accordance with their Commitments
(but, in each case, only
to the extent that
such Defaulting
Lender's portion of a
Revolving Loan (or other
funding obligation) was funded
by such other Non-
Defaulting Lender),
(E) fifth,
in Agent's
sole discretion,
to a
suspense account
maintained by
Agent, the
proceeds of
which shall
be retained
by Agent
and ma
y
be made
available to
be re-
advanced to
or for
the benefit
of Borrowers
(upon the
request of
Borrowers and
subject to
the
conditions set forth in Section
3.2) as if such Defaulting
Lender had made its portion
of Revolving
Loans (or other funding obligations) hereunder, and (F) sixth, from and
after the date on which all
other Obligations have been paid in full, to such Defaulting Lender
in accordance with tier (L) of
Section 2.4(b)(iii).
Subject to
the foregoing,
Agent may
hold and,
in its
discretion, re-lend
to
Borrowers for the
account of such
Defaulting Lender the
amount of all
such payments received
and retained by
Agent for the
account of such
Defaulting Lender.
Solely for the
purposes of voting
or consenting to
matters with respect to
the Loan Documents
(including the calculation
of Pro Rata
Share in connection
therewith) and for
the purpose of
calculating the fee
payable under Section
2.10(b), such Defaulting Lender shall be deemed not to
be a "Lender" and such Lender's
Commitment shall be deemed to be zero;
provided, that the foregoing shall not apply
to any of the
matters governed by
Section 14.1(a)(i) through
(iii).
The provisions of
this Section 2.3(g)
shall
remain effective with respect
to such Defaulting Lender until
the earlier of (y)
the date on which
all of
the Non-Defaulting
Lenders, Agent,
Issuing Bank,
and Borrowers
shall have
waived, in
writing, the application of this Section
2.3(g) to such Defaulting Lender,
or (z) the date on which
such Defaulting Lender
makes payment of
all amounts
that it
was obligated to
fund hereunder,
pays to
Agent all
amounts owing
by Defaulting
Lender in
respect of
the amounts
that it
was
obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability
to perform its future obligations hereunder
(on which earlier date, so long
as no Event of Default
has occurred and
is continuing, any remaining
cash collateral held
by Agent pursuant
to Section
2.3(g)(ii) shall
be released
to Borrowers).
The operation
of this
Section 2.3(g)
shall not
be
construed to increase or otherwise affect the Commitment
of any Lender, to relieve or
excuse the
performance by such Defaulting Lender or
any other Lender of its
duties and obligations
hereunder, or to
relieve or excuse the
performance by any Borrower
of its duties
and obligations
hereunder to
Agent, Issuing
Bank, or
to the
Lenders other
than such
Defaulting Lender.
Any
failure by
a Defaulting
Lender to
fund amounts
that it
was obligated
to fund
hereunder shall
constitute a
material breach
by such
Defaulting Lender
of this
Agreement and
shall entitle
Borrowers, at
their option,
upon written
notice to
Agent, to
arrange for
a substitute
Lender to
assume the
Commitment of
such Defaulting
Lender, such
substitute Lender
to be
reasonably
acceptable to
Agent.
In connection
with the
arrangement of
such a
substitute Lender,
the
Defaulting Lender shall
have no right
to refuse to
be replaced hereunder,
and agrees to
execute
and deliver a
completed form of Assignment
and Acceptance in
favor of the
substitute Lender (and
agrees that it
shall be deemed
to have executed
and delivered such
document if it
fails to do
so)
subject only
to being
paid its
share of
the outstanding
Obligations (other
than Bank
Product
Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in
respect thereof, and
(2) an assumption
of its Pro
Rata Share of
its participation in
the Letters of
Credit); provided, that any
such assumption of
the Commitment of
such Defaulting Lender shall
not be deemed to
constitute a waiver of
any of the Lender
Groups' or Borrowers' rights
or remedies
against any such
Defaulting Lender arising out
of or in relation
to such failure to
fund.
In the event
of a direct conflict
between the priority provisions
of this Section 2.3(g)
and any other provision
contained in this Agreement or
any other Loan Document, it
is the intention of the
parties hereto
that such provisions be read together and construed, to the fullest extent possible, to be in concert
with each
other.
In the
event of
any actual,
irreconcilable conflict
that cannot
be resolved
as
aforesaid, the terms and provisions of this Section 2.3(g) shall control and govern.
(ii)
If any Swing Loan or Letter of Credit is outstanding at the time that
a Lender becomes a Defaulting Lender then:
(A)
such Defaulting Lender's
Swing Loan Exposure
and Letter
of Credit
Exposure shall
be reallocated
among the
Non-Defaulting Lenders
in accordance
with
their respective Pro Rata Shares but only to the extent (x) the
sum of all Non-Defaulting Lenders'
Pro Rata Share of
Revolver Usage
plus
such Defaulting Lender's Swing Loan
Exposure and Letter
of Credit
Exposure does
not exceed
the total
of all
Non-Defaulting Lenders'
Revolver
Commitments and (y) the conditions set forth in Section 3.2 are satisfied at such time;
(B)
if the reallocation
described in clause
(A) above cannot,
or
can only partially,
be effected, Borrowers
shall within one Business
Day following notice by
the
Agent (x) first, prepay such Defaulting Lender's Swing
Loan Exposure (after giving effect to any
partial reallocation pursuant to
clause (A) above), and
(y) second, cash
collateralize such
Defaulting Lender's
Letter of
Credit Exposure
(after giving
effect to
any partial
reallocation
pursuant to clause (A)
above), pursuant to a
cash collateral agreement to
be entered into in
form
and substance reasonably satisfactory to the
Agent, for so long as such
Letter of Credit Exposure
is outstanding; provided, that
Borrowers shall not be
obligated to cash collateralize any
Defaulting
Lender's Letter of Credit Exposure if such Defaulting Lender is also Issuing Bank;
(C)
if Borrowers cash collateralize
any portion of such
Defaulting Lender's Letter of Credit Exposure pursuant to
this Section 2.3(g)(ii), Borrowers shall
not be required
to pay any
Letter of Credit
Fees to Agent for
the account of
such Defaulting Lender
pursuant to
Section 2.6(b)
with respect
to such
cash collateralized
portion of
such Defaulting
Lender's Letter
of Credit
Exposure during
the period
such Letter
of Credit
Exposure is
cash
collateralized;
(D)
to the
extent the
Letter of
Credit Exposure
of the
Non-
Defaulting Lenders is reallocated pursuant to this Section 2.3(g)(ii), then the Letter of
Credit Fees
payable to the Non-Defaulting Lenders pursuant to Section 2.6(b) shall be adjusted in accordance
with such Non-Defaulting Lenders' Letter of Credit Exposure;
(E)
to the
extent any Defaulting
Lender's Letter of
Credit
Exposure is
neither cash
collateralized nor
reallocated pursuant
to this
Section 2.3(g)(ii),
then,
without prejudice to any rights or remedies of Issuing Bank or
any Lender hereunder, all Letter of
Credit Fees
that would
have otherwise
been payable
to such
Defaulting Lender
under Section
2.6(b) with respect
to such portion
of such Letter
of Credit Exposure
shall instead be
payable to
Issuing Bank
until such
portion of
such Defaulting
Lender's Letter
of Credit
Exposure is
cash
collateralized or reallocated;
(F)
so long
as any
Lender is
a Defaulting
Lender, the
Swing
Lender shall not
be required to
make any Swing
Loan and Issuing
Bank shall not
be required to
issue, amend, or
increase any Letter
of Credit, in
each case, to
the extent (x)
the Defaulting Lender's
Pro Rata
Share of
such Swing
Loans or
Letter of
Credit cannot
be reallocated
pursuant to
this
Section 2.3(g)(
ii), or
(y) the
Swing Lender
or Issuing
Bank, as
applicable, has
not otherwise
entered into
arrangements reasonably
satisfactory to the
Swing Lender or
Issuing Bank, as
applicable, and Borrowers to
eliminate the Swing Lender's
or Issuing Bank's risk
with respect to
the Defaulting Lender's participation in Swing Loans or Letters of Credit; and
(G)
Agent may release
any cash collateral
provided by
Borrowers pursuant to
this Section 2.3(g)(ii)
to Issuing Bank
and Issuing Bank
may apply any
such
cash collateral to the payment of such
Defaulting Lender's Pro Rata Share of any
Letter of Credit
Disbursement that is not
reimbursed by Borrowers pursuant to
Section 2.11(d).
Subject to Section
17.14, no
reallocation hereunder
shall constitute
a waiver
or release
of any
claim of
any party
hereunder against
a Defaulting
Lender arising
from that
Lender having
become a
Defaulting
Lender, including
any claim
of a
Non-Defaulting Lender
as a
result of
such Non-Defaulting
Lender's increased exposure following such reallocation.
(h)
Independent Obligations
.
All Revolving Loans (other than Swing Loans
and Extraordinary Advances) shall be
made by the Lenders contemporaneously
and in accordance
with their Pro Rata Shares.
It is understood that (i) no Lender shall be responsible for any failure
by any other Lender to perform its obligation to
make any Revolving Loan (or other extension of
credit) hereunder, nor shall
any Commitment of any Lender
be increased or decreased as
a result
of any failure by any other Lender to perform its
obligations hereunder, and (ii) no
failure by any
Lender to
perform its
obligations hereunder shall
excuse any
other Lender
from its
obligations
hereunder.
2.4.
Payments; Reductions of Commitments; Prepayments
.
(a)
Payments by Borrowers
.
(i)
(i) Except as otherwise expressly provided herein, all payments
by Borrowers shall be made to Agent's Account for the account of the Lender
Group and shall be
made in immediately
available funds, no
later than 3:30 p.m. on
the date specified
herein; provided
that, for
the avoidance
of doubt,
any payments
deposited into
a Controlled
Account shall
be
deemed not to
be received by Agent
on any Business Day
unless immediately available funds
have
been credited to Agent's
Account prior to 3:30
p.m. on such Business
Day.
Any payment received
by Agent in immediately available funds in Agent's Account later than 3:30 p.m. shall be deemed
to have been received (unless Agent, in
its sole discretion, elects to credit it
on the date received)
on the following
Business Day and
any applicable interest
or fee shall
continue to accrue
until such
following Business Day.
(ii)
Unless Agent receives
notice from
Borrowers prior
to the
date on
which any payment
is due to
the Lenders that
Borrowers will not
make such payment
in full as
and when required, Agent may assume that Borrowers have made (or will make) such
payment in
full to
Agent on
such date
in immediately
available funds
and Agent
may (but
shall not
be so
required), in reliance upon such
assumption, distribute to each Lender
on such due date an
amount
equal to
the amount
then due
such Lender.
If and
to the
extent Borrowers
do not
make such
payment in
full to
Agent on
the date
when due,
each Lender
severally shall
repay to
Agent on
demand such amount distributed
to such Lender,
together with interest thereon
at the Defaulting
Lender Rate for
each day from
the date such
amount is distributed
to such Lender
until the date
repaid.
(b)
Apportionment and Application
.
(i)
So long as no Application Event has occurred
and is continuing and
except as otherwise provided herein
with respect to Defaulting Lenders,
all principal and interest
payments received
by Agent
shall be
apportioned ratably
among the
Lenders (according
to the
unpaid principal balance of
the Obligations to
which such payments
relate held by
each Lender)
and all payments of fees and expenses received by Agent (other than fees or expenses
that are for
Agent's separate account or for the separate account of Issuing Bank) shall be apportioned ratably
among the Lenders having a Pro Rata
Share of the type of Commitment or
Obligation to which a
particular fee or expense relates.
(ii)
Subject to Section
2.4(b)(v),
Section 2.4(d)(ii), and
Section 2.4(e),
all payments to
be made hereunder
by Borrowers shall be
remitted to Agent
and all such
payments,
and all proceeds of
Collateral received by Agent, shall
be applied, so long
as no Application Event
has occurred and is continuing and except
as otherwise provided herein with respect to
Defaulting
Lenders, to reduce the
balance of the Revolving
Loans outstanding and, thereafter,
to Borrowers
(to be wired
to the Designated Account)
or such other Person
entitled thereto under applicable
law.
(iii)
At any time
that an Application
Event has occurred
and is continuing
and except as otherwise
provided herein with respect to
Defaulting Lenders, all payments
remitted
to Agent and all proceeds of Collateral received by Agent shall be applied as follows:
(A)
first, to pay
any Lender Group
Expenses (including cost
or
expense reimbursements) or indemnities then due to Agent under the Loan Documents
and to pay
interest and
principal on
Extraordinary Advances
that are
held solely by
Agent pursuant
to the
terms of Section 2.4(d)(iv), until paid in full,
(B)
second, to pay
any fees or
premiums then due
to Agent under
the Loan Documents, until paid in full,
(C)
third, to
pay interest
due in
respect of
all Protective
Advances, until paid in full,
(D)
fourth, to pay the principal of
all Protective Advances, until
paid in full,
(E)
fifth, ratably, to pay any Lender
Group Expenses (including
cost or expense
reimbursements) or indemnities
then due to
any of the
Lenders under the
Loan
Documents, until paid in full,
(F)
sixth, ratably,
to pay any
fees or premiums
then due to
any
of the Lenders under the Loan Documents, until paid in full,
(G)
seventh, to
pay interest
accrued in
respect of
the Swing
Loans, until paid in full,
(H)
eighth, to pay the principal of all Swing Loans, until paid
in
full,
(I)
ninth, ratably, to
pay interest accrued in respect
of the
Revolving Loans (other
than Protective Advances
and Swing Loans)
and the Term Loan, until
paid
in full,
(J)
tenth, ratably
i.
ratably, to
pay the principal
of all Revolving
Loans
and the Term Loan (other than Protective Advances and Swing Loans), until paid in full,
ii.
to Agent,
to be
held by
Agent, for
the benefit
of
Issuing Bank (and for the
ratable benefit of each of
the Lenders that have an
obligation to pay to
Agent, for the
account of Issuing
Bank, a share
of each Letter
of Credit Disbursement),
as cash
collateral in
an amount
up to
105% of
the Letter
of Credit
Usage (to
the extent
permitted by
applicable law, such
cash collateral shall be applied
to the reimbursement of any
Letter of Credit
Disbursement as and
when such disbursement
occurs and, if
a Letter of
Credit expires undrawn,
the cash collateral held by
Agent in respect of
such Letter of Credit shall,
to the extent permitted
by applicable law, be reapplied pursuant
to this Section 2.4(b)(iii),
beginning with tier (A)
hereof),
iii.
ratably, up to the
lesser of (y) the amount (after
taking into account
any amounts previously
paid pursuant to this
clause iii. during the
continuation
of the applicable
Application Event) of
the most recently
established Bank Product
Reserve, which
amount was
established prior
to the
occurrence of,
and not
in contemplation
of, the
subject
Application Event,
and (z)
$2,500,000 (after
taking into
account any
amounts previously
paid
pursuant to this clause
iii. during the continuation of
the applicable Application Event), to
(I) the
Bank Product
Providers based
upon amounts
then certified
by each
applicable Bank
Product
Provider to
Agent (in
form and
substance satisfactory to
Agent) to
be due
and payable
to such
Bank Product Provider
on account
of Bank
Product Obligations (but
not in
excess of
the Bank
Product Reserve established
for the Bank
Product Obligations
of such
Bank Product
Provider),
and (II) with any
balance to be
paid to Agent,
to be held
by Agent, for
the ratable benefit
of the
Bank Product Providers, as cash collateral (which cash collateral may be released by Agent to the
applicable Bank Product Provider
and applied by such
Bank Product Provider to
the payment or
reimbursement of any
amounts due and
payable with respect
to Bank Product
Obligations owed
to the applicable Bank Product Provider as and when such amounts first become due and
payable
and, if and at
such time as all such
Bank Product Obligations are
paid or otherwise satisfied
in full,
the cash collateral held
by Agent in
respect of such
Bank Product Obligations
shall be reapplied
pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof,,
(K)
eleventh, to pay
any other Obligations
other than Obligations
owed to
Defaulting Lenders
(including being
paid, ratably,
to the
Bank Product
Providers on
account of
all amounts
then due
and payable
in respect
of Bank
Product Obligations,
with any
balance to
be paid
to Agent,
to be
held by
Agent, for
the ratable
benefit of
the Bank
Product
Providers, as
cash collateral
(which cash
collateral may
be released
by Agent
to the
applicable
Bank Product
Provider and
applied by
such Bank
Product Provider
to the
payment or
reimbursement of any
amounts due and
payable with respect
to Bank Product
Obligations owed
to the applicable Bank Product Provider as and when such amounts first become due and
payable
and, if and at
such time as all such
Bank Product Obligations are
paid or otherwise satisfied
in full,
the cash collateral held
by Agent in
respect of such
Bank Product Obligations
shall be reapplied
pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof),
(L)
twelfth, ratably to
pay any Obligations
owed to Defaulting
Lenders; and
(M)
thirteenth, to Borrowers (to be wired to the Designated
Account) or such other Person entitled thereto under applicable law.
(iv)
Agent promptly
shall distribute
to each
Lender, pursuant
to the
applicable wire instructions received from
each Lender in writing, such
funds as it may be
entitled
to receive, subject to a Settlement delay as provided in Section 2.3(e).
(v)
In each instance, so long as
no Application Event has occurred and
is continuing, Section 2.4(b)(ii) shall not
apply to any payment made
by Borrowers to Agent and
specified by Borrowers
to be
for the
payment of
specific Obligations
then due
and payable
(or
prepayable) under any provision of this Agreement or any other Loan Document.
(vi)
For purposes of Section 2.4(b)(iii), "paid in full" of a type of
Obligation means payment
in cash or
immediately available funds
of all amounts
owing on account
of such type of Obligation, including interest accrued after the
commencement of any Insolvency
Proceeding, default
interest, interest
on interest,
and expense
reimbursements, irrespective
of
whether any
of the
foregoing would
be or
is allowed
or disallowed
in whole
or in
part in
any
Insolvency Proceeding.
(vii)
In the event
of a direct
conflict between the
priority provisions
of
this Section 2.4 and
any other provision contained
in this Agreement
or any other Loan
Document,
it is the intention
of the parties hereto that
such provisions be read
together and construed, to
the
fullest extent possible, to be in
concert with each other.
In the event of any actual, irreconcilable
conflict that
cannot be
resolved as
aforesaid, if
the conflict
relates to
the provisions
of Section
2.3(g) and this Section
2.4, then the provisions
of Section 2.3(g) shall
control and govern, and
if
otherwise, then the terms and provisions of this Section 2.4 shall control and govern.
(c)
Reduction of Commitments
.
(i)
Revolver Commitments
.
The Revolver
Commitments shall
terminate on
the Maturity
Date or
earlier termination
thereof pursuant
to the
terms of
this
Agreement.
Borrowers may reduce the
Revolver Commitments, without premium
or penalty,
to
an amount not less than the
greater of (x) $20,000,000 and (y)
sum of (A) the Revolver Usage
as
of such
date,
plus
(B) the principal
amount of
all Revolving Loans
not yet
made as to
which a
request has been
given by Borrowers
under Section 2.3(a),
plus
(C) the amount
of all Letters
of
Credit not
yet issued
as to
which a
request has
been given
by Borrowers
pursuant t
o
Section
2.11(a).
Each such reduction
shall be in
an amount which
is not less
than $2,500,000, shall
be
made by
providing not
less than
ten Business
Days prior
written notice
to Agent,
and shall
be
irrevocable.
The Revolver
Commitments, once
reduced, may
not be
increased.
Each such
reduction of the Revolver Commitments
shall reduce the Revolver Commitments of each
Lender
proportionately in accordance with its
ratable share thereof.
In connection with any reduction
in
the Revolver Commitments prior to the
Maturity Date, if any Loan Party
or any of its Subsidiaries
owns any Margin
Stock, Borrowers shall
deliver to Agent an
updated Form U-1
(with sufficient
additional originals
thereof for
each Lender),
duly executed
and delivered
by the
Borrowers,
together with such
other documentation as
Agent shall reasonably
request, in order
to enable Agent
and the Lenders
to comply with
any of the
requirements under Regulations
T, U or X
of the Federal
Reserve Board.
(ii)
Term
Loan Commitments
.
The R/E
Term Loan
Commitments
shall terminate upon the making of the R/E Term Loan.
The M/E Term Loan Commitments shall
terminate upon the earlier of the making of the Additional M/E Term Loan and April 27, 2022.
(d)
Optional Prepayments
.
(i)
Revolving Loans
.
Borrowers may
prepay the
principal of
any
Revolving Loan at any time in whole or in part, without premium or penalty.
(ii)
Term
Loan
.
Borrowers may, upon at least ten Business Days prior
written notice
to Agent,
prepay the
principal of
the M/E
Term Loan
or the
R/E Term
Loan, in
whole or in
part, without premium
or penalty.
Each prepayment made
pursuant to this
Section
2.4(d)(ii) shall be accompanied by the payment of accrued interest to the date of such payment on
the amount prepaid.
Each such prepayment shall be applied against the remaining installments of
principal due on
the applicable Term
Loan on a
pro rata basis
(for the avoidance
of doubt, any
amount that is due and payable on the Maturity Date shall constitute an installment)..
(e)
Mandatory Prepayments
.
(i)
Borrowing Base
.
If, at any time,
(A) the Revolver Usage on
such
date exceeds (B) the lesser of (x) the Borrowing Base reflected in the Borrowing Base Certificate
most recently delivered
by Borrowers to
Agent, or (y)
the Maximum Revolver
Amount, in all
cases
as adjusted for Reserves established
by Agent in accordance with
Section 2.1(c), then Borrowers
shall immediately prepay the Obligations
in accordance with Section 2.4(f)(i)(A) in
an aggregate
amount equal to the amount of such excess.
(ii)
M&E Borrowing
Base
.
If at any
time, the
outstanding principal
balance of the M/E
Term
Loan on such date
exceeds the M&E Borrowing
Base, then Borrowers
shall promptly, but
in any event, within one Business
Day
after request therefor by Agent
prepay
the outstanding principal
balance of the M/E
Term
Loan in accordance with
Section 2.4(f)(i)(B)
in an aggregate amount equal to the amount of such excess.
(iii)
R/E Borrowing
Base.
If at
any time,
the outstanding
principal
balance of the
R/E Term Loan on such
date exceeds the R/E
Borrowing Base, then
Borrowers shall
promptly, but
in any event,
within one Business
Day
after request therefor
by Agent
prepay the
outstanding principal balance of the R/E Term
Loan in accordance with Section 2.4(f)(i)(C) in an
aggregate amount equal to the amount of such excess.
(iv)
Dispositions
.
Within three Business Days of
the date of receipt by
any Loan Party or
any of its Subsidiaries of
the Net Cash Proceeds
of any voluntary or involuntary
sale or
disposition of
assets of
any Loan
Party or
any of
its Subsidiaries
(including Net
Cash
Proceeds of
insurance or
arising from
casualty losses
or condemnations
and payments
in lieu
thereof, but excluding
(A) Net Cash
Proceeds from sales
or dispositions which
qualify as Permitted
Dispositions under clauses
(a), (b), (c),
(d), (e), (f)
(solely with respect
to Accounts of
Mexican
Subsidiaries), (j), (k), (l),
(m), (n), or
(o) of the
definition of Permitted
Dispositions, (B) so
long
as the M/E Term
Loan has not been paid
in full, Net Cash Proceeds
from sales or dispositions of
Eligible M&E, and (C) so
long as the R/E Term Loan has not been
paid in full, Net Cash Proceeds
from sales
or dispositions
of Eligible
Real Property),
Borrowers shall
prepay the
outstanding
principal amount of
the Obligations in
accordance with Section
2.4(f)(ii) in
an amount equal
to
100% of
such Net
Cash Proceeds
received by
such Person
in connection
with such
sales or
dispositions; provided, that so long as (A) no Default or Event of Default shall have occurred and
is continuing or would
result therefrom, (B) Borrowers shall
have given Agent prior
written notice
of Borrowers' intention to
apply such monies to
the costs of replacement of
the properties or assets
that are the
subject of such sale
or disposition or the
cost of purchase
or construction of other
assets
useful in the business of such Loan Party or its
Subsidiaries, (C) the monies are held in a Deposit
Account in which Agent has a
perfected first-priority security interest, and (D) such
Loan Party or
its Subsidiary,
as applicable,
completes such replacement,
purchase, or
construction within
180
days after the initial
receipt of such monies,
then the Loan Party or
such Loan Party's Subsidiary
whose assets were the
subject of such disposition shall
have the option to apply
such monies to the
costs of replacement
of the
assets that are
the subject
of such sale
or disposition
or the costs
of
purchase or
construction of
other assets
useful in
the business
of such
Loan Party
or such
Subsidiary unless and
to the
extent that
such applicable
period shall
have expired
without such
replacement, purchase,
or construction
being made
or completed,
in which
case, any
amounts
remaining in the
Deposit Account referred
to in clause
(C) above shall
be paid to
Agent and applied
in accordance with Section 2.4(f)(ii);
provided, that no Loan Party
nor any of its Subsidiaries shall
have the right
to use such
Net Cash Proceeds
to make such
replacements, purchases, or
construction in
excess of
$500,000 in
any given
fiscal year.
Nothing contained
in this
Section
2.4(e)(iv) shall permit any Loan Party
or any of its Subsidiaries to sell
or otherwise dispose of any
assets other than in accordance with Section 6.4.
(v)
Dispositions of Eligible M&E
.
So long as the M/E Term Loan has
not been paid in
full, within three Business
Days of the date
of receipt by any
Loan Party or any
of its Subsidiaries of the Net Cash Proceeds of any voluntary or involuntary sale or disposition of
Eligible M&E
(including Net
Cash Proceeds
of insurance
or arising
from casualty
losses or
condemnations and payments
in lieu
thereof), Borrowers
shall prepay the
outstanding principal
amount of the M/E Term
Loan in accordance with Section 2.4(f)(iii) in an amount equal to
100%
of such Net Cash Proceeds received by
such Person in connection with such
sales or dispositions
until paid in full.
(vi)
Dispositions of Eligible Real
Property
.
So long as the
R/E Term
Loan has not been paid
in full, within three Business
Days of the date of
receipt by any Loan Party
or any
of its
Subsidiaries of
the Net
Cash Proceeds
of any
voluntary or
involuntary sale
or
disposition of Eligible
Real Property (including
Net Cash Proceeds
of insurance or
arising from
casualty losses
or condemnations
and payments
in lieu
thereof), Borrowers
shall prepay
the
outstanding principal amount
of the R/E
Term Loan
in accordance with
Section 2.4(f)(iv) in
an
amount equal to 100%
of such Net
Cash Proceeds received
by such Person
in connection with such
sales or dispositions until paid in full.
(vii)
Extraordinary Receipts
.
Within one
Business Day of the
date of
receipt by any
Loan Party or
any of its
Subsidiaries (other than
any Mexican Subsidiary)
of any
Extraordinary Receipts,
Borrowers shall
prepay the
outstanding principal
amount of
the
Obligations in
accordance with
Section 2.4(f)(ii)
in an
amount equal
to 100%
of such
Extraordinary Receipts, net of any reasonable expenses
incurred in collecting such Extraordinary
Receipts.
(viii)
Indebtedness
.
Within one Business
Day of the date
of incurrence
by any Loan Party or any of its Subsidiaries (other than any Mexican Subsidiary) of any
Indebtedness (other than
Permitted Indebtedness),
Borrowers shall
prepay the
outstanding
principal amount of
the Obligations in
accordance with Section
2.4(f)(ii) in
an amount equal
to
100% of the Net Cash Proceeds received by
such Person in connection with such incurrence.
The
provisions of
this Section
2.4(e)(v) shall
not be
deemed to
be implied
consent to
any such
incurrence otherwise prohibited by the terms of this Agreement.
(f)
Application of Payments
.
(i)
(A) Each prepayment pursuant to Section 2.4(e)(i) shall, (1)
so long
as no Application Event
shall have occurred and
be continuing, be applied,
first, to the outstanding
principal amount of
the Revolving Loans
until paid in
full, and second,
to cash collateralize
the
Letters of Credit in an amount
equal to 105% of the then outstanding
Letter of Credit Usage, and
(2) if an
Application Event shall
have occurred and
be continuing, be
applied in the
manner set
forth in Section 2.4(b)(iii), (B) each prepayment pursuant to Section 2.4(e)(ii)
shall (1) so long as
no Application Event
shall have occurred
and be continuing,
be applied to
the outstanding principal
amount of the
M/E Term Loan until
paid in full,
and (2) if
an Application Event
shall have occurred
and be continuing, be applied in the manner set forth in Section 2.4(b)(iii), and
(C) each
prepayment pursuant
to Section
2.4(e)(iii) shall
(1) so
long as
no Application
Event shall
have
occurred and be continuing, be applied to the outstanding principal amount of the
R/E Term Loan
until paid in full, and
(2) if an Application
Event shall have occurred
and be continuing, be
applied
in the manner
set forth in
Section 2.4(b)(iii).
Each such prepayment
of any Term
Loan shall be
applied against the remaining installments of principal of such Term
Loan on a pro rata basis (for
the avoidance of doubt, any amount
that is due and payable
on the Maturity Date shall
constitute
an installment).
(ii)
Each prepayment pursuant
to Section 2.4(e)(iv),
2.4(e)(vii), or
2.4(e)(viii) shall (A)
so long as
no Application Event
shall have occurred
and be continuing,
be
applied, first, to the
outstanding principal amount
of the Term
Loan until paid in
full, second, to
the outstanding
principal amount
of the
Revolving Loans,
until paid
in full,
and third,
to cash
collateralize the Letters
of Credit in
an amount equal
to 105% of
the then outstanding
Letter of
Credit Usage, and (B)
if an Application
Event shall have occurred
and be continuing, be
applied
in the manner
set forth in
Section 2.4(b)(iii).
Each such prepayment
of the Term
Loan shall be
applied against the remaining
installments of principal
of the Term
Loan on a pro
rata basis (for
the avoidance of doubt, any amount
that is due and payable
on the Maturity Date shall
constitute
an installment).
(iii)
Each prepayment pursuant to Section 2.4(e)(v)) shall (A) so long as
no Application
Event shall
have occurred
and be
continuing, be
applied, to
the outstanding
principal amount of
the M/E Term
Loan until paid
in full, and
(B) if an
Application Event shall
have occurred and
be continuing, be
applied in the
manner set forth
in Section 2.4(b)(iii).
Each
such prepayment of
the Term Loans shall
be applied against
the remaining installments
of principal
of the
Term Loans
on a
pro rata basis
(for the
avoidance of
doubt, any
amount that
is due
and
payable on the Maturity Date shall constitute an installment).
(iv)
Each prepayment pursuant to
Section 2.4(e)(vi)) shall (A)
so long as
no Application Event
shall have occurred
and be continuing,
be applied to
the outstanding principal
amount of the
R/E Term Loan until
paid in full,
and (B) if
an Application Event
shall have occurred
and be continuing, be applied in
the manner set forth in
Section 2.4(b)(iii).
Each such prepayment
of the Term
Loans shall be
applied against
the remaining
installments of
principal of the
Term
Loans on a pro rata
basis (for the avoidance
of doubt, any amount
that is due and
payable on the
Maturity Date shall constitute an installment).
2.5.
Promise to Pay; Promissory Notes
.
(a)
Borrowers agree to pay the Lender Group Expenses on the earlier of (i) the
first day of
the month following
the date on
which the applicable
Lender Group Expenses
were
first incurred, or (ii) the date on which demand therefor is made by Agent (it being acknowledged
and agreed
that any
charging of
such costs,
expenses or
Lender Group
Expenses to
the Loan
Account pursuant to the
provisions of Section 2.6(d)
shall be deemed to
constitute a demand for
payment thereof
for the
purposes of
this subclause
(ii)).
Borrowers promise
to pay
all of
the
Obligations (including principal,
interest, premiums, if
any, fees,
costs, and expenses
(including
Lender Group
Expenses)) in
full on
the Maturity
Date or,
if earlier,
on the
date on
which the
Obligations (other than
the Bank Product
Obligations) become due
and payable pursuant
to the
terms of this Agreement.
Borrowers agree that their obligations contained in the first sentence of
this Section 2.5(a) shall survive payment or satisfaction in full of all other Obligations.
(b)
Any Lender may request that any portion of its Commitments or the Loans
made by it be evidenced
by one or more promissory
notes.
In such event, Borrowers
shall execute
and deliver to such Lender the requested promissory notes
payable to the order of such Lender in
a form furnished
by Agent and
reasonably satisfactory to
Borrowers.
Thereafter, the
portion of
the Commitments and Loans evidenced by such
promissory notes and interest thereon shall at
all
times be represented
by one
or more promissory
notes in such
form payable to
the order of
the
payee named therein.
2.6.
Interest Rates
and Letter
of Credit
Fee:
Rates, Payments, and
Calculations
.
(a)
Interest Rates
.
Except as provided in
Section 2.6(c) and Section
2.12(d),
all Obligations (except for undrawn
Letters of Credit) that have
been charged to the Loan
Account
pursuant to the terms hereof shall bear interest as follows:
(i)
if the relevant
Obligation is a LIBOR
Rate Loan, at
a
per annum
rate
equal to the LIBOR Rate
plus
the LIBOR Rate Margin, and
(ii)
otherwise, at a
per annum
rate equal to the Base Rate
plus
the Base
Rate Margin.
(b)
Letter of Credit Fee
.
Borrowers shall pay Agent (for
the ratable benefit of
the Revolving Lenders), a
Letter of Credit fee
(the "Letter of
Credit Fee") (which fee
shall be in
addition to the fronting
fees and commissions, other
fees, charges and expenses
set forth in Section
2.11(k)) that shall
accrue
a
t a
per annum
rate equal to
the Revolving Loan
LIBOR Rate Margin
times the average amount of the Letter of Credit Usage during the immediately preceding month.
(c)
Default Rate
.
(i) Automatically upon the occurrence
and during the
continuation of
an Event
of Default
under Section
8.4 or
8.5 and
(ii) upon
the occurrence
and
during the continuation
of any other
Event of Default
(other than an
Event of Default
under Section
8.4 or 8.5), at the direction
of Agent or the Required Lenders,
and upon written notice by Agent
to
Borrowers of
such direction
(provided, that
such notice
shall not
be required
for any
Event of
Default under Section
8.1), (A) all
Loans and all
Obligations (except for
undrawn Letters of
Credit)
that have been
charged to
the Loan Account
pursuant to the
terms hereof shall
bear interest at
a
per annum
rate equal
to two
percentage points
above the
per annum
rate otherwise
applicable
thereunder, and (B) the Letter of Credit Fee shall be increased to two percentage points above
the
per annum
rate otherwise applicable hereunder.
(d)
Payment
.
Except to
the extent
provided to
the contrary
in Section
2.10,
Section 2.11(k) or Section 2.12(a),
(i) all interest and
all other fees payable
hereunder or under any
of the other
Loan Documents (other
than Letter of
Credit Fees) shall
be due and
payable, in arrears,
on the first
day of each
month, (ii) all
Letter of Credit
Fees payable hereunder,
and all fronting
fees and all
commissions, other fees,
charges and expenses
provided for in
Section 2.11(k)
shall
be due and
payable, in
arrears, on
the first
Business Day
of each
month, and
(iii) all
costs and
expenses payable hereunder
or under any
of the other
Loan Documents, and
all other Lender
Group
Expenses shall be due
and payable on (x)
with respect to Lender
Group Expenses outstanding as
of the
Closing Date,
the Closing
Date, and
(y) otherwise, the
earlier of
(A) the
first day
of the
month following the
date on which
the applicable costs, expenses,
or Lender Group
Expenses were
first incurred, or (B) the date on which
demand therefor is made by Agent (it being acknowledged
and agreed
that any
charging of
such costs,
expenses or
Lender Group
Expenses to
the Loan
Account pursuant
to the
provisions of
the following
sentence shall
be deemed
to constitute
a
demand for payment thereof for
the purposes of this
subclause (y)).
Borrowers hereby authorize
Agent, from time to time without prior notice to Borrowers,
to charge to the Loan Account (A) on
the first day of each month, all interest accrued during the prior month on the Revolving Loans or
the Term
Loan hereunder, (B)
on the first
Business Day of each
month, all Letter of
Credit Fees
accrued or chargeable hereunder during the prior month, (C)
as and when incurred or accrued, all
fees and costs
provided for in Section
2.10(a) or (c), (D)
on the first day
of each month, the
Unused
Line Fee accrued
during the
prior month pursuant
to Section
2.10(b), (E) as
and when due
and
payable, all other
fees payable hereunder
or under any
of the other
Loan Documents, (F)
on the
Closing Date and
thereafter as and
when incurred or
accrued, all other
Lender Group Expenses,
and (G)
as and
when due
and payable
all other
payment obligations
payable under
any Loan
Document or any Bank Product
Agreement (including any amounts due
and payable to the Bank
Product Providers
in respect
of Bank
Products).
All amounts
(including interest,
fees, costs,
expenses, Lender Group Expenses,
or other amounts payable
hereunder or under any
other Loan
Document or under any
Bank Product Agreement) charged
to the Loan
Account shall thereupon
constitute Revolving Loans
hereunder, shall
constitute Obligations hereunder,
and shall initially
accrue interest at the
rate then applicable to Revolving
Loans that are Base
Rate Loans (unless and
until converted into LIBOR Rate Loans in accordance with the terms of this Agreement).
(e)
Computation
.
All interest and fees chargeable under the Loan
Documents
shall be
computed on
the basis
of a
360 day
year, in
each case,
for the
actual number
of days
elapsed in the
period during which
the interest or
fees accrue.
In the event
the Base Rate
is changed
from time to time
hereafter, the rates of interest hereunder
based upon the Base Rate
automatically
and immediately shall be
increased or decreased by
an amount equal
to such change
in the Base
Rate.
(f)
Intent to Limit Charges to
Maximum Lawful Rate
.
In no event shall
the
interest rate
or rates
payable under
this Agreement,
plus
any other amounts
paid in
connection
herewith, exceed the highest rate permissible under any law that a court of competent jurisdiction
shall, in a
final determination, deem
applicable.
Borrowers and the
Lender Group, in
executing
and delivering this Agreement,
intend legally to agree
upon the rate or rates
of interest and manner
of payment
stated within
it; provided,
that anything
contained herein
to the
contrary
notwithstanding, if
such rate
or rates
of interest
or manner
of payment
exceeds the
maximum
allowable under applicable law,
then,
ipso
facto
, as of the date
of this Agreement, Borrowers are
and shall
be liable
only for
the payment
of such
maximum amount
as is
allowed by
law, and
payment received from Borrowers in excess of such legal maximum, whenever received, shall
be
applied to reduce the principal balance of the Obligations to the extent of such excess.
2.7.
Crediting Payments
.
The receipt of any
payment item by Agent
shall not be
required to be
considered a
payment on account
unless such payment
item is
a wire transfer
of
immediately available funds
made to Agent's
Account or unless
and until such
payment item is
honored when presented for payment.
Should any payment item not
be honored when presented
for payment, then
Borrowers shall be
deemed not to
have made such
payment.
Anything to the
contrary contained herein notwithstanding, any payment item shall
be deemed received by Agent
only if it
is received into
Agent's Account on
a Business Day
on or before
3:30 p.m.
If any payment
item is received into Agent's
Account on a non-Business Day
or after 3:30 p.m. on
a Business Day
(unless Agent, in its sole
discretion, elects to credit it
on the date received), it
shall be deemed to
have been received by Agent
as of the opening of
business on the immediately following
Business
Day.
2.8.
Designated Account
.
Agent is authorized
to make the
Revolving Loans and
the Term Loan, and Issuing Bank
is authorized to issue
the Letters of Credit,
under this Agreement
based upon telephonic or other instructions received from anyone
purporting to be an Authorized
Person or,
without instructions,
if pursuant to
Section 2.6(d).
Borrowers agree to
establish and
maintain the Designated Account with the Designated Account Bank for the purpose of receiving
the proceeds of the Revolving
Loans requested by Borrowers and
made by Agent or
the Lenders
hereunder.
Unless otherwise agreed
by Agent and Borrowers,
any Revolving Loan or
Swing Loan
requested by
Borrowers and
made by
Agent or
the Lenders
hereunder shall
be made
to the
Designated Account.
2.9.
Maintenance of
Loan Account;
Statements of
Obligations
.
Agent shall
maintain an
account on
its books
in the
name of
Borrowers (the
"Loan Account")
on which
Borrowers will
be charged
with the
Term Loan,
all Revolving
Loans (including
Extraordinary
Advances and Swing
Loans) made by
Agent, Swing Lender,
or the Lenders
to Borrowers or
for
Borrowers' account,
the Letters
of Credit
issued or
arranged by
Issuing Bank
for Borrowers'
account, and with
all other payment
Obligations hereunder or
under the other
Loan Documents,
including, accrued interest,
fees and expenses, and
Lender Group Expenses.
In accordance with
Section 2.7,
the Loan
Account will
be credited
with all
payments received
by Agent
from
Borrowers or for
Borrowers' account.
Agent shall make
available to Borrowers
monthly
statements regarding the Loan Account, including the principal amount of the Term
Loan and the
Revolving Loans, interest accrued
hereunder, fees accrued or charged
hereunder or under the
other
Loan Documents,
and a
summary itemization
of all
charges and
expenses constituting
Lender
Group Expenses accrued hereunder or under the other Loan
Documents, and each such statement,
absent manifest error, shall be conclusively presumed to be correct and accurate and constitute an
account stated between Borrowers
and the Lender Group
unless, within 30 days
after Agent first
makes such a statement
available to Borrowers, Borrowers
shall deliver to Agent
written objection
thereto describing the error or errors contained in such statement.
2.10.
Fees
.
(a)
Agent Fees
.
Borrowers shall pay to
Agent, for the account
of Agent, as and
when due and payable under the terms of the Fee Letter, the fees set forth in the Fee Letter.
(b)
Unused Line Fee
.
Borrowers shall pay to Agent, for
the ratable account of
the Revolving Lenders, an unused line fee (the "Unused Line Fee") in
an amount equal to 0.375%
per annum
times the result of (i) the aggregate amount of the Revolver Commitments,
less
(ii) the
Average Revolver
Usage during
the immediately
preceding month
(or portion
thereof), which
Unused Line Fee shall
be due and payable,
in arrears, on the
first day of each
month from and after
the Closing Date
up to the
first day of
the month prior
to the date
on which the
Obligations are
paid in full and on the date on which the Obligations are paid in full.
(c)
Field Examination and Other
Fees
.
Subject to any limitations set
forth in
Section 5.7(c),
Borrowers shall pay to Agent, field examination, appraisal, and valuation fees and
charges, as and when incurred or chargeable, as follows (i) a fee of $1,000 per day,
per examiner,
plus
reasonable and documented out-of-pocket
expenses (including travel, meals, and
lodging) for
each field examination of any Loan Party
or its Subsidiaries performed by or
on behalf of Agent,
and (ii) the reasonable
and documented out-of-pocket
fees, charges or
expenses paid or
incurred
by Agent if it elects to
employ the services of one or more
third Persons to appraise the Collateral,
or any portion thereof, or to assess any Loan Party's or its Subsidiaries' business valuation.
2.11.
Letters of Credit
.
(a)
Subject to the terms and conditions
of this Agreement, upon the request
of
Borrowers made in
accordance herewith, and
prior to the
Maturity Date, Issuing
Bank agrees to
issue a requested standby Letter
of Credit or a sight commercial
Letter of Credit for the
account of
Borrowers.
By submitting
a request
to Issuing
Bank for
the issuance
of a
Letter of
Credit,
Borrowers shall be
deemed to have
requested that Issuing
Bank issue the
requested Letter of
Credit.
Each request
for the
issuance of
a Letter
of Credit,
or the
amendment or
extension of
any
outstanding Letter of Credit, shall
be (i) irrevocable and
made in writing by an
Authorized Person,
(ii) delivered to
Agent and Issuing
Bank via telefacsimile
or other electronic
method of
transmission reasonably acceptable
to Agent and
Issuing Bank and
reasonably in advance
of the
requested date
of issuance,
amendment or
extension, and
(iii) subject
to Issuing
Bank's
authentication procedures with results satisfactory to Issuing Bank.
Each such request shall be in
form and substance reasonably
satisfactory to Agent and Issuing
Bank and (i) shall
specify (A) the
amount of such Letter of Credit,
(B) the date of issuance, amendment
or extension of such Letter
of Credit, (C) the
proposed expiration date
of such Letter of
Credit, (D) the name and
address of
the beneficiary of the Letter
of Credit, and (E) such
other information (including, the conditions
to
drawing, and, in the case
of an amendment or extension,
identification of the Letter
of Credit to be
so amended or extended) as shall be necessary to
prepare, amend or extend such Letter of Credit,
and (ii) shall be accompanied by such Issuer Documents as Agent or Issuing
Bank may request or
require, to the extent that such requests or requirements
are consistent with the Issuer Documents
that Issuing Bank generally requests
for Letters of Credit in similar
circumstances.
Issuing Bank's
records of the
content of any
such request will
be conclusive.
Anything contained herein
to the
contrary notwithstanding, Issuing Bank may, but shall not be obligated to, issue a Letter of Credit
that supports the obligations of a
Loan Party or one of
its Subsidiaries in respect of
(x) a lease of
real property to
the extent that
the face amount
of such Letter
of Credit exceeds
the highest rent
(including all
rent-like charges)
payable under
such lease
for a
period of
one year,
or (y)
an
employment contract to
the extent that
the face amount
of such Letter
of Credit exceeds the
highest
compensation payable under such contract for a period of one year.
(b)
Issuing Bank shall
have no obligation
to issue a
Letter of Credit
if any of
the following would result after giving effect to the requested issuance:
(i)
the Letter of Credit
Usage would exceed the
Letter of Credit
Sublimit, or
(ii)
the Letter
of Credit
Usage would
exceed the
Maximum Revolver
Amount
less
the outstanding amount of Revolving Loans (including Swing Loans), or
(iii)
the Letter of
Credit Usage would
exceed the Borrowing
Base at such
time
less
the outstanding principal balance of the Revolving Loans
(inclusive of Swing Loans) at
such time.
(c)
In the event
there is a
Defaulting Lender as
of the date
of any request
for
the issuance of a
Letter of Credit, Issuing
Bank shall not be
required to issue or
arrange for such
Letter of Credit to the extent (i) the Defaulting Lender's Letter of Credit
Exposure with respect to
such Letter of Credit may
not be reallocated pursuant to
Section 2.3(g)(ii), or (ii) Issuing
Bank has
not otherwise entered into
arrangements reasonably satisfactory to
it and Borrowers
to eliminate
Issuing Bank's
risk with
respect to
the participation
in such
Letter of
Credit of
the Defaulting
Lender, which arrangements may include
Borrowers cash collateralizing such
Defaulting Lender's
Letter of Credit Exposure in accordance with Section 2.3(g)(ii).
Additionally, Issuing Bank shall
have no obligation
to issue or
extend a Letter
of Credit if
(A) any order,
judgment, or decree
of
any Governmental Authority or arbitrator
shall, by its terms,
purport to enjoin or restrain
Issuing
Bank from issuing such Letter
of Credit, or any law
applicable to Issuing Bank or
any request or
directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over Issuing Bank shall
prohibit or request that Issuing
Bank refrain from the issuance
of letters of credit generally
or such Letter of Credit
in particular, (B) the
issuance of such Letter
of Credit
would violate
one or
more policies
of Issuing
Bank applicable
to letters
of credit
generally, or
(C) if amounts
demanded to be paid
under any Letter of
Credit will not
or may not
be in US Dollars.
(d)
Any Issuing
Bank (other
than Wells
Fargo or
any of
its Affiliates)
shall
notify Agent in
writing no later
than the Business
Day prior to
the Business Day
on which such
Issuing Bank issues any Letter of Credit.
In addition, each Issuing Bank (other than
Wells
Fargo
or any of
its Affiliates)
shall, on the
first Business Day
of each
week, submit
to Agent a
report
detailing the daily undrawn
amount of each
Letter of Credit
issued by such
Issuing Bank during
the prior
calendar week.
Each Letter
of Credit
shall be
in form
and substance
reasonably
acceptable to Issuing Bank,
including the requirement that
the amounts payable thereunder
must
be payable in Dollars.
If Issuing Bank makes a payment under a Letter
of Credit, Borrowers shall
pay to Agent
an amount equal to
the applicable Letter of
Credit Disbursement on the
Business Day
such Letter of
Credit Disbursement is
made and, in
the absence of
such payment, the
amount of
the Letter of Credit Disbursement immediately and automatically shall be deemed to be a
Revolving Loan hereunder
(notwithstanding any failure
to satisfy any
condition precedent set
forth
in Section 3) and,
initially, shall
bear interest at the
rate then applicable to
Revolving Loans that
are Base
Rate Loans.
If a
Letter of
Credit Disbursement
is deemed
to be
a Revolving
Loan
hereunder, Borrowers'
obligation to
pay the
amount of
such Letter
of Credit
Disbursement to
Issuing Bank shall
be automatically converted
into an obligation
to pay the
resulting Revolving
Loan.
Promptly following
receipt by
Agent of
any payment
from Borrowers
pursuant to
this
paragraph, Agent shall
distribute such payment
to Issuing Bank
or, to
the extent that
Revolving
Lenders have made payments pursuant to Section 2.11(e) to reimburse Issuing Bank, then to such
Revolving Lenders and Issuing Bank as their interests may appear.
(e)
Promptly following receipt
of a notice
of a Letter
of Credit Disbursement
pursuant to
Section 2.11(d),
each Revolving
Lender agrees
to fund
its Pro
Rata Share
of any
Revolving Loan deemed made pursuant to Section 2.11(d) on the same terms
and conditions as if
Borrowers had requested
the amount thereof as
a Revolving Loan and
Agent shall promptly pay
to Issuing Bank the amounts
so received by it from
the Revolving Lenders.
By the issuance of a
Letter of Credit
(or an amendment
or extension of
a Letter of
Credit) and without any
further action
on the
part of
Issuing Bank
or the
Revolving Lenders,
Issuing Bank
shall be
deemed to
have
granted to each
Revolving Lender, and each Revolving
Lender shall be deemed
to have purchased,
a participation in each Letter of Credit issued by Issuing Bank, in an amount equal to its
Pro Rata
Share of such
Letter of Credit,
and each such
Revolving Lender agrees
to pay to
Agent, for the
account of
Issuing Bank, such
Revolving Lender's Pro
Rata Share
of any
Letter of
Credit
Disbursement made by Issuing
Bank under the applicable
Letter of Credit.
In consideration and
in furtherance
of the
foregoing, each
Revolving Lender
hereby absolutely
and unconditionally
agrees to pay to Agent, for
the account of Issuing Bank, such Revolving
Lender's Pro Rata Share
of each Letter of Credit
Disbursement made by Issuing Bank
and not reimbursed by Borrowers on
the date due as
provided in Section 2.11(d)
,
or of any reimbursement
payment that is required
to
be refunded (or that Agent or Issuing Bank elects, based upon the advice of counsel, to refund) to
Borrowers for any reason.
Each Revolving Lender acknowledges and agrees that its obligation to
deliver to Agent, for
the account of Issuing Bank,
an amount equal to
its respective Pro Rata Share
of each
Letter of
Credit Disbursement
pursuant to
this Section
2.11(e) shall
be absolute
and
unconditional and such remittance
shall be made notwithstanding
the occurrence or continuation
of an Event of
Default or Default or
the failure to satisfy
any condition set forth
in Section 3.
If
any such
Revolving Lender
fails to
make available
to Agent
the amount
of such
Revolving
Lender's Pro
Rata Share
of a
Letter of
Credit Disbursement
as provided
in this
Section, such
Revolving Lender shall
be deemed to be
a Defaulting Lender
and Agent (for the
account of Issuing
Bank) shall be entitled
to recover such amount on
demand from such Revolving Lender
together
with interest thereon at the Defaulting Lender Rate until paid in full.
(f)
Each Borrower agrees
to indemnify,
defend and
hold harmless each
member of
the Lender
Group (including
Issuing Bank
and its
branches, Affiliates,
and
correspondents) and
each such
Person's respective
directors, officers,
employees, attorneys
and
agents (each, including
Issuing Bank, a
"Letter of
Credit Related Person")
(to the fullest
extent
permitted by
law) from
and against
any and
all claims,
demands, suits,
actions, investigations,
proceedings, liabilities,
fines, costs,
penalties, and
damages, and
all reasonable
fees and
disbursements of
attorneys, experts,
or consultants
and all
other costs
and expenses
actually
incurred in connection therewith or
in connection with the enforcement
of this indemnification (as
and when they are incurred and
irrespective of whether suit is brought),
which may be incurred by
or awarded
against any
such Letter
of Credit
Related Person
(other than
Taxes, which
shall be
governed by Section 16)
(the "Letter of Credit
Indemnified Costs"), and which
arise out of or
in
connection with, or as a result of:
(i)
any Letter of Credit or any pre-advice of its issuance;
(ii)
any transfer, sale,
delivery, surrender
or endorsement (or
lack
thereof) of any Drawing
Document at any time(s)
held by any
such Letter of Credit
Related Person
in connection with any Letter of Credit;
(iii)
any action or
proceeding arising out
of, or in
connection with, any
Letter of Credit (whether administrative, judicial or in connection with arbitration), including any
action or proceeding to compel or
restrain any presentation or payment
under any Letter of Credit,
or for the wrongful dishonor of, or honoring a presentation under, any Letter of Credit;
(iv)
any independent undertakings issued by the beneficiary of any
Letter of Credit;
(v)
any unauthorized
instruction or
request made
to Issuing
Bank in
connection with
any Letter
of Credit
or requested
Letter of
Credit, or
any error,
omission,
interruption or delay
in such instruction
or request, whether
transmitted by mail, courier,
electronic
transmission, SWIFT,
or any other telecommunication including communications through a
correspondent;
(vi)
an adviser,
confirmer or
other nominated
person seeking
to be
reimbursed, indemnified or compensated;
(vii)
any third party
seeking to enforce
the rights of
an applicant,
beneficiary, nominated
person, transferee, assignee
of Letter of
Credit proceeds or
holder of an
instrument or document;
(viii)
the fraud, forgery or illegal action of parties other than the Letter of
Credit Related Person;
(ix)
any prohibition
on payment
or delay
in payment
of any
amount
payable by Issuing Bank to a beneficiary or transferee beneficiary of a Letter of Credit arising out
of Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions;
(x)
Issuing Bank's performance of the obligations
of a confirming
institution or entity that wrongfully dishonors a confirmation;
(xi)
any foreign language
translation provided
to Issuing
Bank in
connection with any Letter of Credit;
(xii)
any foreign law or usage as it relates to
Issuing Bank's issuance of a
Letter of Credit in
support of a foreign
guaranty including the expiration of
such guaranty after the
related Letter
of Credit
expiration date
and any
resulting drawing
paid by
Issuing Bank
in
connection therewith; or
(xiii)
the acts or
omissions, whether rightful
or wrongful, of
any present
or future de
jure or de
facto governmental or
regulatory authority or
cause or
event beyond the
control of the Letter of Credit Related Person;
provided, that such
indemnity shall not
be available to
any Letter of
Credit Related Person
claiming
indemnification under
clauses (i)
through (xiii)
above to
the extent
that such
Letter of
Credit
Indemnified Costs
may be
finally determined in
a final,
non-appealable judgment
of a
court of
competent jurisdiction to
have resulted directly
from the gross
negligence or willful
misconduct
of the
Letter of Credit
Related Person
claiming indemnity.
Borrowers hereby
agree to
pay the
Letter of
Credit Related
Person claiming
indemnity on
demand from
time to
time all
amounts
owing under this Section 2.11(f).
If and to the extent that the obligations of Borrowers under this
Section 2.11(f) are unenforceable
for any reason, Borrowers agree
to make the maximum
contribution to
the Letter
of Credit
Indemnified Costs
permissible under
applicable law.
This
indemnification provision shall survive termination of this Agreement and all Letters of Credit.
(g)
The liability of Issuing Bank (or any other Letter of Credit Related Person)
under, in connection
with or arising out
of any Letter
of Credit (or pre-advice),
regardless of the
form or legal grounds
of the action or
proceeding, shall be limited
to direct damages suffered
by
Borrowers that are caused directly by Issuing Bank's gross negligence or willful misconduct in (i)
honoring a
presentation under
a Letter
of Credit
that on
its face
does not
at least
substantially
comply with the terms and conditions
of such Letter of Credit, (ii) failing to
honor a presentation
under a
Letter of
Credit that
strictly complies
with the
terms and
conditions of
such Letter
of
Credit, or
(iii) retaining
Drawing Documents
presented under
a Letter
of Credit.
Borrowers'
aggregate remedies against Issuing
Bank and any Letter
of Credit Related Person
for wrongfully
honoring a
presentation under
any Letter
of Credit
or wrongfully
retaining honored
Drawing
Documents shall in no
event exceed the aggregate
amount paid by Borrowers
to Issuing Bank in
respect of the honored
presentation in connection with
such Letter of Credit
under Section 2.11(d),
plus
interest at the rate then
applicable to Base Rate Loans hereunder.
Borrowers shall take action
to avoid and mitigate
the amount of any damages
claimed against Issuing Bank or
any other Letter
of Credit Related Person, including
by enforcing its rights against
the beneficiaries of the Letters
of Credit.
Any claim
by Borrowers
under or
in connection
with any
Letter of
Credit shall
be
reduced by an amount equal to
the sum of (x) the amount
(if any) saved by Borrowers as
a result
of the breach or
alleged wrongful conduct complained
of, and (y) the
amount (if any) of
the loss
that would have been
avoided had Borrowers taken
all reasonable steps to
mitigate any loss, and
in case of
a claim of
wrongful dishonor,
by specifically and
timely authorizing Issuing
Bank to
effect a cure.
(h)
Borrowers are responsible for the final text of the Letter of Credit as issued
by Issuing
Bank, irrespective
of any
assistance Issuing
Bank may
provide such
as drafting
or
recommending text
or by
Issuing Bank's
use or
refusal to
use text
submitted by
Borrowers.
Borrowers understand that the final form of any Letter of
Credit may be subject to such revisions
and changes
as are
deemed necessary
or appropriate
by Issuing
Bank, and
Borrowers hereby
consent to such
revisions and
changes not materially
different from
the application
executed in
connection therewith. Borrowers
are solely responsible
for the suitability
of the Letter
of Credit
for Borrowers'
purposes.
If Borrowers
request Issuing
Bank to
issue a
Letter of
Credit for
an
affiliated or
unaffiliated third
party (an "Account
Party"), (i)
such Account
Party shall have
no
rights against Issuing Bank; (ii) Borrowers shall
be responsible for the application and obligations
under this Agreement; and
(iii) communications (including notices)
related to the respective
Letter
of Credit shall
be among Issuing
Bank and Borrowers.
Borrowers will examine
the copy of
the
Letter of Credit and any
other documents sent by Issuing
Bank in connection therewith and
shall
promptly notify Issuing Bank (not later than
three (3) Business Days following Borrowers' receipt
of documents from Issuing Bank) of any non-compliance with Borrowers' instructions and of any
discrepancy in any document under any presentment
or other irregularity.
Borrowers understand
and agree that Issuing Bank
is not required to extend
the expiration date of any
Letter of Credit for
any reason. With
respect to any Letter of
Credit containing an "automatic
amendment" to extend
the expiration date of such Letter of Credit, Issuing Bank, in
its sole and absolute discretion, may
give notice of non-extension of
such Letter of Credit and,
if Borrowers do not at
any time want the
then current expiration
date of such
Letter of Credit
to be extended,
Borrowers will so
notify Agent
and Issuing Bank
at least 30
calendar days before
Issuing Bank is
required to notify
the beneficiary
of such Letter of Credit or any advising bank of such non-extension pursuant to
the terms of such
Letter of Credit.
(i)
Borrowers' reimbursement and payment obligations
under this Section 2.11
are absolute, unconditional and irrevocable and shall be performed strictly in accordance with the
terms of this Agreement under any and all circumstances whatsoever, including:
(i)
any lack of
validity, enforceability
or legal
effect of
any Letter of
Credit, any Issuer
Document, this Agreement,
or any Loan
Document, or any
term or provision
therein or herein;
(ii)
payment against
presentation of
any draft,
demand or
claim for
payment under any Drawing Document that does not comply in whole or
in part with the terms of
the applicable Letter of
Credit or which proves
to be fraudulent, forged
or invalid in
any respect
or any statement
therein being untrue
or inaccurate in
any respect, or
which is signed,
issued or
presented by a Person or a
transferee of such Person purporting to
be a successor or transferee of
the beneficiary of such Letter of Credit;
(iii)
Issuing Bank
or any
of its
branches or
Affiliates being
the
beneficiary of any Letter of Credit;
(iv)
Issuing Bank
or any
correspondent honoring
a drawing
against a
Drawing Document up
to the amount
available under any Letter
of Credit even
if such Drawing
Document claims an amount in excess of the amount available under the Letter of Credit;
(v)
the existence of
any claim,
set-off, defense
or other
right that
any
Loan Party or
any of its
Subsidiaries may have
at any time
against any beneficiary
or transferee
beneficiary, any assignee of proceeds, Issuing Bank or any other Person;
(vi)
Issuing Bank or any
correspondent honoring a drawing
upon receipt
of an electronic presentation under a
Letter of Credit requiring the
same, regardless of whether the
original Drawing Documents arrive at Issuing Bank's counters or are different from the electronic
presentation;
(vii)
any other
event, circumstance
or conduct
whatsoever, whether
or
not similar
to any of
the foregoing
that might,
but for
this Section
2.11(i), constitute
a legal or
equitable defense to or discharge of, or provide a
right of set-off against, any Borrower's or any of
its Subsidiaries' reimbursement and other
payment obligations and liabilities,
arising under, or in
connection with, any Letter of Credit,
whether against Issuing Bank, the
beneficiary or any other
Person; or
(viii)
the fact that any
Default or Event of
Default shall have occurred
and
be continuing;
provided, that subject to Section 2.11(g) above, the foregoing shall not release Issuing Bank from
such liability to Borrowers as may be
finally determined in a final, non-appealable judgment
of a
court of competent jurisdiction
against Issuing Bank following reimbursement
or payment of the
obligations and liabilities, including reimbursement and
other payment obligations, of Borrowers
to Issuing Bank arising under, or in connection with, this Section 2.11
or any Letter of Credit.
(j)
Without limiting any
other provision of
this Agreement, Issuing Bank
and
each other Letter
of Credit
Related Person (if
applicable) shall not
be responsible to
Borrowers
for, and Issuing Bank's rights and remedies
against Borrowers and the obligation of Borrowers to
reimburse Issuing Bank for each drawing under each Letter of Credit shall not be impaired by:
(i)
honor of a
presentation under
any Letter of
Credit that
on its
face
substantially complies with the terms and conditions of such Letter of Credit, even if the Letter of
Credit requires strict compliance by the beneficiary;
(ii)
honor of a
presentation of any
Drawing Document that
appears on
its face to have
been signed, presented or
issued (A) by any
purported successor or
transferee of
any beneficiary or other Person required
to sign, present or issue
such Drawing Document or (B)
under a new name of the beneficiary;
(iii)
acceptance as a draft of any written or electronic demand or request
for payment
under a
Letter of
Credit, even
if nonnegotiable
or not
in the
form of
a draft
or
notwithstanding any requirement
that such draft,
demand or request
bear any or
adequate reference
to the Letter of Credit;
(iv)
the identity or
authority of any
presenter or signer
of any Drawing
Document or
the form,
accuracy, genuineness
or legal
effect of
any Drawing
Document (other
than Issuing Bank's determination
that such Drawing Document
appears on its
face substantially
to comply with the terms and conditions of the Letter of Credit);
(v)
acting upon any instruction
or request relative to
a Letter of Credit
or requested
Letter of
Credit that
Issuing Bank
in good
faith believes
to have
been given
by a
Person authorized to give such instruction or request;
(vi)
any errors,
omissions, interruptions
or delays
in transmission
or
delivery of any message, advice or document (regardless of how sent or
transmitted) or for errors
in interpretation of technical terms or in translation or any delay in giving or failing to give notice
to any Borrower;
(vii)
any acts,
omissions or
fraud by,
or the
insolvency of,
any
beneficiary, any nominated person or entity or any other
Person or any breach of
contract between
any beneficiary and any Borrower or any of the parties
to the underlying transaction to which the
Letter of Credit relates;
(viii)
assertion or waiver
of any provision
of the ISP
or UCP that
primarily
benefits an issuer of
a letter of credit,
including any requirement that
any Drawing Document be
presented to it at a particular hour or place;
(ix)
payment to
any presenting
bank (designated
or permitted
by the
terms of
the applicable
Letter of
Credit) claiming
that it
rightfully honored
or is
entitled to
reimbursement or indemnity under Standard Letter of Credit Practice applicable to it;
(x)
acting or failing
to act as
required or permitted
under Standard Letter
of Credit Practice applicable to
where Issuing Bank has
issued, confirmed, advised or
negotiated
such Letter of Credit, as the case may be;
(xi)
honor of
a presentation
after the
expiration date
of any
Letter of
Credit notwithstanding that a presentation was made prior to such expiration
date and dishonored
by Issuing Bank if subsequently Issuing Bank or any court or other finder of fact determines such
presentation should have been honored;
(xii)
dishonor of any presentation that does
not strictly comply or that is
fraudulent, forged or otherwise not entitled to honor; or
(xiii)
honor of a
presentation that is
subsequently determined by
Issuing
Bank to
have been
made in
violation of
international, federal,
state or
local restrictions
on the
transaction of business with certain prohibited Persons.
(k)
Borrowers shall pay immediately upon demand to Agent for the account of
Issuing Bank
as non-refundable
fees, commissions,
and charges
(it being
acknowledged and
agreed that any charging of such fees, commissions, and charges to the Loan Account pursuant to
the provisions of
Section 2.6(d) shall
be deemed to
constitute a demand
for payment thereof
for
the purposes of this
Section 2.11(k)):
(i) a fronting fee
which shall be
imposed by Issuing Bank
equal to
.250%
per annum
times the
average amount
of the
Letter of
Credit Usage
during the
immediately preceding month,
plus
(ii) any and
all other customary
commissions, fees and
charges
then in effect imposed by,
and any and all expenses incurred by,
Issuing Bank, or by any adviser,
confirming institution or entity or
other nominated person, relating to Letters of
Credit, at the time
of issuance of
any Letter of
Credit and upon
the occurrence of
any other activity
with respect to
any Letter of Credit (including
transfers, assignments of proceeds, amendments,
drawings,
extensions or cancellations).
(l)
If by reason of (x)
any Change in Law,
or (y) compliance by Issuing
Bank
or any other member
of the Lender Group with
any direction, request, or requirement
(irrespective
of whether
having the
force of
law) of
any Governmental
Authority or
monetary authority
including, Regulation
D of
the Board
of Governors
as from
time to
time in
effect (and
any
successor thereto):
(i)
any reserve, deposit,
or similar requirement
is or shall
be imposed
or modified in respect
of any Letter of
Credit issued or caused
to be issued hereunder
or hereby,
or any Loans or obligations to make Loans hereunder or hereby, or
(ii)
there shall be imposed on Issuing Bank or any other member of
the
Lender Group any
other condition regarding
any Letter of
Credit, Loans, or
obligations to make
Loans hereunder,
and the result of the foregoing is to increase, directly
or indirectly, the cost to Issuing Bank or any
other member of the Lender Group of issuing, making, participating in, or maintaining any Letter
of Credit or to reduce the amount receivable
in respect thereof, then, and in
any such case, Agent
may, at
any time
within a
reasonable period
after the
additional cost
is incurred or
the amount
received is
reduced, notify
Borrowers, and
Borrowers shall
pay within
30 days
after demand
therefor, such amounts
as Agent may specify to
be necessary to compensate Issuing
Bank or any
other member
of the
Lender Group
for such
additional cost
or reduced
receipt, together
with
interest on such amount from the
date of such demand until payment
in full thereof at the
rate then
applicable to Base
Rate Loans hereunder;
provided, that (A)
Borrowers shall not
be required to
provide any compensation
pursuant to
this Section 2.11(l)
for any such
amounts incurred
more
than 180 days prior to the date on which the demand for
payment of such amounts is first made to
Borrowers, and (B) if an event or circumstance
giving rise to such amounts is retroactive, then
the
180-day period
referred to
above shall
be extended
to include
the period
of retroactive
effect
thereof.
The determination by
Agent of any
amount due pursuant
to this Section
2.11(l), as
set
forth in a certificate setting forth the
calculation thereof in reasonable detail, shall,
in the absence
of manifest or demonstrable error, be final and conclusive and binding on all of
the parties hereto.
(m)
Each standby Letter of
Credit shall expire not
later than the date
that is 12
months after the date of the issuance of such Letter of Credit; provided, that any standby
Letter of
Credit may provide for the automatic extension thereof for any number of additional periods each
of up
to one
year in duration;
provided further,
that with
respect to
any Letter
of Credit
which
extends beyond the Maturity Date, Letter of Credit Collateralization shall be provided therefor on
or before the date that
is five Business Days prior
to the Maturity Date.
Each commercial Letter
of Credit shall
expire on the
earlier of (i)
120 days after
the date of
the issuance of such
commercial
Letter of Credit and (ii) five Business Days prior to the Maturity Date.
(n)
If (i) any Event
of Default shall occur and
be continuing, or (ii)
Availability
shall at
any time
be less
than zero,
then on
the Business
Day following
the date
when the
Administrative Borrower receives notice from Agent
or the Required Lenders (or,
if the maturity
of the
Obligations has
been accelerated,
Revolving Lenders
with Letter
of Credit
Exposure
representing greater
than 50%
of the
total Letter
Credit Exposure)
demanding Letter
of Credit
Collateralization pursuant
to this
Section 2.11(n)
upon such
demand, Borrowers
shall provide
Letter of
Credit Collateralization
with respect
to the
then existing
Letter of
Credit Usage.
If
Borrowers fail to provide Letter
of Credit Collateralization as required by
this Section 2.11(n), the
Revolving Lenders may
(and, upon direction
of Agent, shall)
advance, as Revolving
Loans the
amount of the cash collateral required
pursuant to the Letter of Credit
Collateralization provision
so that the then existing Letter of
Credit Usage is cash collateralized in accordance
with the Letter
of Credit Collateralization provision (whether or not the
Revolver Commitments have terminated,
an Overadvance exists or the conditions in Section 3 are satisfied).
(o)
Unless otherwise expressly agreed by Issuing Bank
and Borrowers when a
Letter of Credit is issued, (i) the rules
of the ISP shall apply to each
standby Letter of Credit, and
(ii) the rules of the UCP shall apply to each commercial Letter of Credit.
(p)
Issuing Bank shall be
deemed to have acted
with due diligence and
reasonable care if Issuing Bank's conduct is in accordance with Standard Letter of Credit Practice
or in accordance with this Agreement.
(q)
In the event of a direct conflict between
the provisions of this Section 2.11
and any provision
contained in any Issuer
Document, it is
the intention of
the parties hereto
that
such provisions be read together and construed,
to the fullest extent possible, to be in concert
with
each other.
In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid,
the terms and provisions of this Section 2.11 shall control and govern.
(r)
The provisions
of this
Section 2.11
shall survive
the termination
of this
Agreement and the repayment in
full of the Obligations with
respect to any Letters of Credit
that
remain outstanding.
(s)
At Borrowers'
costs and
expense, Borrowers
shall execute
and deliver
to
Issuing Bank such additional certificates,
instruments and/or documents and
take such additional
action as may be reasonably requested by Issuing Bank to enable Issuing Bank to
issue any Letter
of Credit
pursuant to
this Agreement
and related
Issuer Document,
to protect,
exercise and/or
enforce Issuing Banks' rights and interests under this Agreement or to give effect to the terms and
provisions of
this Agreement
or any
Issuer Document.
Each Borrower
irrevocably appoints
Issuing Bank as its
attorney-in-fact and authorizes
Issuing Bank, without notice
to Borrowers, to
execute and deliver ancillary documents and
letters customary in the letter
of credit business that
may include but
are not limited
to advisements, indemnities,
checks, bills of
exchange and issuance
documents.
The power
of attorney
granted by
the Borrowers
is limited
solely to
such actions
related to
the issuance,
confirmation or
amendment of
any Letter
of Credit
and to
ancillary
documents or letters customary in the
letter of credit business.
This appointment is coupled with
an interest.
2.12.
LIBOR Option
.
(a)
Interest and Interest
Payment Dates
.
In lieu of
having interest charged
at the rate based upon
the Base Rate, Borrowers
shall have the option,
subject to Section 2.12(b)
below (the "LIBOR
Option") to
have interest on
all or a
portion of the
Revolving Loans or
the
Term Loan be
charged (whether at the time when
made (unless otherwise provided herein), upon
conversion from a Base Rate Loan to a LIBOR
Rate Loan, or upon continuation of a LIBOR Rate
Loan as a LIBOR Rate Loan)
at a rate of interest based upon
the LIBOR Rate.
Interest on LIBOR
Rate Loans
shall be
payable on
the earliest
of (i)
the last
day of
the Interest
Period applicable
thereto; provided,
that subject
to the
following clauses
(ii) and
(iii), in
the case
of any
Interest
Period greater than
three months in duration,
interest shall be
payable at three month
intervals after
the commencement of the
applicable Interest Period
and on the last
day of such Interest
Period),
(ii) the date
on which all
or any portion
of the Obligations
are accelerated pursuant
to the terms
hereof, or (iii)
the date on
which this Agreement
is terminated pursuant to
the terms hereof.
On
the last
day of
each applicable
Interest Period,
unless Borrowers
have properly
exercised the
LIBOR Option
with respect
thereto, the
interest rate
applicable to
such LIBOR Rate
Loan
automatically shall convert to the
rate of interest then
applicable to Base Rate
Loans of the same
type hereunder.
At any time that an
Event of Default has
occurred and is continuing,
at the written
election of Agent or
the Required Lenders, Borrowers
no longer shall
have the option
to request
that Revolving Loans
or any portion
of the Term Loan bear
interest at a
rate based upon
the LIBOR
Rate.
(b)
LIBOR Election
.
(i)
Borrowers may,
at any
time and
from time
to time,
so long
as
Borrowers have not
received a notice
from Agent (which
notice Agent may
elect to give
or not
give in its
discretion unless Agent
is directed to
give such notice
by the Required
Lenders, in which
case, it shall give the notice
to Borrowers), after the occurrence and
during the continuance of an
Event of Default,
to terminate
the right of
Borrowers to exercise
the LIBOR
Option during the
continuance of such
Event of Default,
elect to exercise
the LIBOR Option
by notifying Agent
prior
to 1:00
p.m. at
least three
Business Days
prior to
the commencement
of the
proposed Interest
Period (the
"LIBOR Deadline").
Notice of
Borrowers' election
of the
LIBOR Option
for a
permitted portion of the Revolving Loans
or the Term Loan and an Interest Period pursuant to
this
Section shall
be made
by delivery
to Agent
of a
LIBOR Notice
received by
Agent before
the
LIBOR Deadline.
Promptly upon its
receipt of each
such LIBOR Notice,
Agent shall provide
a
copy thereof to each of the affected Lenders.
(ii)
Each LIBOR Notice shall be
irrevocable and binding on Borrowers.
In connection
with each
LIBOR Rate
Loan, each
Borrower shall
indemnify, defend,
and hold
Agent and the Lenders
harmless against any loss,
cost, or expense actually
incurred by Agent
or
any Lender as a result of (A)
the payment or required assignment of
any principal of any LIBOR
Rate Loan other than on the last day of an Interest
Period applicable thereto (including as a result
of an Event of Default), (B) the conversion of any LIBOR Rate Loan other than on the last day of
the Interest Period applicable thereto,
or (C) the failure to borrow, convert, continue or
prepay any
LIBOR Rate
Loan on
the date
specified in
any LIBOR
Notice delivered
pursuant hereto
(such
losses, costs,
or expenses,
"Funding Losses").
A certificate
of Agent
or a
Lender delivered
to
Borrowers setting forth in reasonable
detail any amount or amounts
that Agent or such
Lender is
entitled to receive pursuant to this Section 2.12 shall be conclusive
absent manifest error.
Borrowers shall pay such amount to
Agent or the Lender, as applicable, within 30 days
of the date
of its receipt of such certificate.
(iii)
Unless Agent,
in its
sole discretion,
agrees otherwise,
Borrowers
shall have not more than
five LIBOR Rate Loans in effect
at any given time.
Borrowers may only
exercise the LIBOR Option for proposed LIBOR Rate Loans of at least $1,000,000.
(c)
Conversion; Prepayment
.
Borrowers may convert LIBOR Rate Loans to
Base Rate Loans or
prepay LIBOR Rate Loans
at any time; provided,
that in the event
that LIBOR
Rate Loans
are converted
or prepaid
on any
date that
is not
the last
day of
the Interest
Period
applicable thereto,
including as
a result
of any
prepayment through
the required
application by
Agent of any
payments or proceeds of
Collateral in accordance with
Section 2.4(b) or
for any other
reason, including
early termination
of the
term of
this Agreement
or acceleration
of all
or any
portion of the
Obligations pursuant to
the terms hereof,
each Borrower shall
indemnify, defend,
and hold Agent
and the Lenders
and their Participants harmless
against any and
all Funding Losses
in accordance with Section 2.12 (b)(ii).
(d)
Special Provisions Applicable to LIBOR Rate
.
(i)
The LIBOR
Rate may
be adjusted
by Agent
with respect
to any
Lender on a prospective
basis to take into
account any additional or
increased costs to such
Lender
of maintaining or
obtaining any
eurodollar deposits
or increased costs
(other than
Taxes which
shall be
governed by
Section 16),
in each
case, due
to changes
in applicable
law occurring
subsequent to the commencement of the
then applicable Interest Period, including any Changes in
Law and changes
in the reserve
requirements imposed by
the Board of
Governors, which additional
or increased costs would
increase the cost of
funding or maintaining loans
bearing interest at the
LIBOR Rate.
In any such
event, the affected
Lender shall give
Borrowers and Agent
notice of
such a determination
and adjustment and
Agent promptly shall
transmit the notice
to each other
Lender and, upon its receipt
of the notice from the
affected Lender, Borrowers
may, by notice
to
such affected Lender (A) require such Lender
to furnish to Borrowers a statement
setting forth in
reasonable detail
the basis
for adjusting
such LIBOR
Rate and
the method
for determining
the
amount of such
adjustment, or (B)
repay the LIBOR
Rate Loans of
such Lender with
respect to
which such adjustment is made (together with any amounts due under Section 2.12(b)(ii)).
(ii)
Subject to the
provisions set forth
in Section 2.12(d)(iii)
below, in
the event that
any change in
market conditions or
any Change in
Law shall at
any time after the
date hereof,
in the
reasonable opinion
of any
Lender, make
it unlawful
or impractical
for such
Lender to fund or
maintain LIBOR Rate Loans
or to continue such
funding or maintaining, or
to
determine or
charge interest
rates at
the LIBOR
Rate, such
Lender shall
give notice
of such
changed circumstances to
Agent and Borrowers
and Agent promptly
shall transmit the
notice to
each other
Lender and
(y) in
the case
of any
LIBOR Rate
Loans of
such Lender
that are
outstanding, the date
specified in such
Lender's notice shall
be deemed to
be the last
day of the
Interest Period
of such
LIBOR Rate
Loans, and
interest upon
the LIBOR
Rate Loans
of such
Lender thereafter
shall accrue
interest at
the rate
then applicable
to Base
Rate Loans,
and (z)
Borrowers shall not
be entitled
to elect
the LIBOR
Option until
such Lender determines
that it
would no longer be unlawful or impractical to do so.
(iii)
Effect of Benchmark Transition Event.
(A)
Benchmark Replacement.
Notwithstanding anything to
the
contrary herein or in
any other Loan Document,
upon the occurrence of
a Benchmark Transition
Event or an Early Opt-in Election, as applicable, Agent and Administrative Borrower may amend
this Agreement to replace the
LIBOR Rate with a
Benchmark Replacement. Any such
amendment
with respect to a Benchmark Transition Event will become effective at
5:00 p.m. on the fifth (5th)
Business Day after Agent has
posted such proposed amendment to
all Lenders and Administrative
Borrower so
long as
Agent has
not received,
by such
time, written
notice of
objection to
such
amendment from Lenders comprising the
Required Lenders. Any such
amendment with respect to
an Early Opt-in Election will
become effective on the date
that Lenders comprising the Required
Lenders have delivered
to Agent written
notice that
such Required
Lenders accept such
amendment. No replacement of the LIBOR Rate with a Benchmark Replacement pursuant
to this
Section 2.12(d)(iii) will occur prior to the applicable Benchmark Transition Start Date.
(B)
Benchmark Replacement
Conforming Changes.
In
connection with the
implementation of a
Benchmark Replacement, Agent
will have the
right to
make Benchmark
Replacement Conforming
Changes from
time to
time and,
notwithstanding
anything to the
contrary herein or
in any other
Loan Document, any
amendments implementing
such Benchmark
Replacement Conforming
Changes will
become effective
without any
further
action or consent of any other party to this Agreement.
(C)
Notices; Standards for Decisions and Determinations.
Agent will promptly
notify Administrative Borrower
and the Lenders
of (1) any occurrence
of a
Benchmark Transition Event or an Early
Opt-in Election, as applicable, and
its related Benchmark
Replacement Date
and Benchmark
Transition Start
Date, (2)
the implementation
of any
Benchmark Replacement, (3) the effectiveness of any Benchmark Replacement Conforming
Changes, and (4) the commencement or
conclusion of any Benchmark Unavailability Period.
Any
determination, decision or election that
may be made by Agent
or Lenders pursuant to this
Section
2.12(d)(iii) including
any determination
with respect
to a
tenor, rate
or adjustment
or of
the
occurrence or non-occurrence of an
event, circumstance or date and any
decision to take or refrain
from taking any action, will be conclusive and binding absent manifest
error and may be made in
its or their sole
discretion and without consent
from any other party
hereto, except, in
each case,
as expressly required pursuant to this Section 2.12(d)(iii).
(D)
Benchmark Unavailability Period.
Upon Administrative
Borrower's receipt of notice of the
commencement of a Benchmark Unavailability
Period,
Administrative Borrower
may revoke any
request for
a LIBOR Borrowing
of, conversion
to or
continuation of
LIBOR Rate Loans
to be
made, converted or
continued during
any Benchmark
Unavailability Period and, failing
that, Administrative Borrower will
be deemed to have
converted
any such request into a request for a Borrowing of
or conversion to Base Rate Loans. During any
Benchmark Unavailability Period, the component
of Base Rate based
upon the LIBOR Rate
will
not be used in any determination of the Base Rate.
(e)
No Requirement
of Matched
Funding
.
Anything to
the contrary
contained herein notwithstanding, neither Agent, nor
any Lender, nor any
of their Participants, is
required actually to acquire eurodollar
deposits to fund or otherwise match
fund any Obligation as
to which interest accrues at the LIBOR Rate.
2.13.
Capital Requirements
.
(a)
If, after the date hereof, Issuing Bank or any Lender determines that (i) any
Change in
Law regarding
capital, liquidity
or reserve
requirements for
banks or
bank holding
companies, or
(ii) compliance
by Issuing
Bank or
such Lender,
or their
respective parent
bank
holding companies,
with any
guideline, request
or directive
of any
Governmental Authority
regarding capital adequacy or liquidity requirements (whether or not having the force of law), has
the effect
of reducing
the return
on Issuing
Bank's, such
Lender's, or
such holding
companies'
capital or
liquidity as
a consequence
of Issuing
Bank's or
such Lender's
commitments, Loans,
participations or
other obligations
hereunder to
a level
below that
which Issuing
Bank, such
Lender, or such holding
companies could have
achieved but for
such Change in
Law or compliance
(taking into consideration Issuing Bank's, such Lender's, or
such holding companies' then existing
policies with respect
to capital adequacy or
liquidity requirements and assuming
the full utilization
of such entity's
capital) by any
amount deemed by
Issuing Bank or
such Lender to
be material,
then Issuing Bank or such Lender may notify Borrowers and Agent thereof.
Following receipt of
such notice, Borrowers agree to pay
Issuing Bank or such Lender on demand
the amount of such
reduction of return
of capital as
and when such
reduction is determined,
payable within 30
days
after presentation by Issuing
Bank or such Lender
of a statement in
the amount and setting
forth
in reasonable detail Issuing Bank's or such Lender's calculation thereof and the assumptions upon
which such
calculation was
based (which
statement shall
be deemed
true and
correct absent
manifest error).
In determining such
amount, Issuing Bank
or such Lender
may use any
reasonable
averaging and attribution methods.
Failure or delay on the part of Issuing
Bank or any Lender to
demand compensation pursuant
to this Section
shall not constitute
a waiver of Issuing
Bank's or
such Lender's right to demand such compensation; provided, that Borrowers shall not be required
to compensate
Issuing Bank
or a
Lender pursuant
to this
Section for
any reductions
in return
incurred more than 180 days prior
to the date that Issuing Bank
or such Lender notifies Borrowers
of such
Change in
Law giving
rise to
such reductions
and of
such Lender's
intention to
claim
compensation therefor; provided further, that if such claim arises by reason of the Change in Law
that is retroactive,
then the 180-day period
referred to above
shall be extended to
include the period
of retroactive effect thereof.
(b)
If Issuing Bank
or any Lender
requests additional or
increased costs referred
to in Section 2.11(l) or
Section 2.12(d)(i) or amounts
under Section 2.13(a) or
sends a notice under
Section 2.12(d)(ii) relative to changed circumstances (such
Issuing Bank or Lender, an "Affected
Lender"), then, at the request of Administrative Borrower, such
Affected Lender shall use
reasonable efforts to promptly designate a different one of
its lending offices or to assign its rights
and obligations hereunder to another of its
offices or branches, if (i) in the reasonable
judgment of
such Affected Lender, such designation or
assignment would eliminate or
reduce amounts payable
pursuant to Section 2.11(l),
Section 2.12(d)(i) or Section
2.13(a), as applicable, or
would eliminate
the illegality
or impracticality
of funding
or maintaining
LIBOR Rate
Loans, and
(ii) in
the
reasonable judgment of such Affected
Lender, such designation
or assignment would not
subject
it to
any material unreimbursed
cost or
expense and
would not
otherwise be
materially
disadvantageous to it.
Borrowers agree
to pay
all reasonable
out-of-pocket costs
and expenses
incurred by such Affected Lender
in connection with any
such designation or assignment.
If, after
such reasonable efforts, such Affected
Lender does not so designate a different
one of its lending
offices or
assign its
rights to
another of
its offices
or branches
so as
to eliminate
Borrowers'
obligation to pay any future amounts to such Affected Lender pursuant to Section 2.11(l),
Section
2.12(d)(i) or Section 2.13(a), as applicable,
or to enable Borrowers to obtain
LIBOR Rate Loans,
then Borrowers (without prejudice
to any amounts then
due to such
Affected Lender under Section
2.11(l),
Section 2.12(d)(i) or Section 2.13(a), as applicable) may, unless prior to the effective date
of any such
assignment the
Affected Lender
withdraws its
request for
such additional
amounts
under Section 2.11(l),
Section 2.12(d)(i) or Section 2.13(a), as applicable, or indicates that it is no
longer unlawful or impractical to fund or
maintain LIBOR Rate Loans, may designate
a different
Issuing Bank or substitute a Lender or prospective Lender,
in each case, reasonably acceptable to
Agent to
purchase the
Obligations owed
to such
Affected Lender
and such
Affected Lender's
commitments hereunder
(a "Replacement
Lender"), and
if such
Replacement Lender
agrees to
such purchase, such Affected
Lender shall assign to
the Replacement Lender its
Obligations and
commitments, and
upon such
purchase by
the Replacement
Lender, which
such Replacement
Lender shall be deemed
to be "Issuing Bank"
or a "Lender"
(as the case may
be) for purposes of
this Agreement and such
Affected Lender shall
cease to be "Issuing
Bank" or a "Lender"
(as the
case may be) for purposes of this Agreement.
(c)
Notwithstanding anything herein to the contrary, the protection of Sections
2.11(l),
2.12(d), and
2.13 shall
be available
to Issuing
Bank and
each Lender
(as applicable)
regardless of any
possible contention of
the invalidity or
inapplicability of the
law, rule, regulation,
judicial ruling, judgment, guideline, treaty or
other change or condition which shall have
occurred
or been imposed, so long as it
shall be customary for issuing banks or
lenders affected thereby to
comply therewith.
Notwithstanding any
other provision
herein, neither
Issuing Bank
nor any
Lender shall demand compensation
pursuant to this
Section 2.13 if it
shall not at the
time be the
general policy or
practice of Issuing
Bank or such
Lender (as the
case may be)
to demand such
compensation in similar circumstances under
comparable provisions of other credit agreements,
if
any.
2.14.
Incremental Facilities
.
(a)
At any time during the
period from and after the
Closing Date through but
excluding the date
that is the
3 year anniversary of
the Closing Date,
at the option
of Borrowers
(but subject to
the conditions set
forth in clause
(b) below), the
Revolver Commitments
and the
Maximum Revolver Amount
may be increased
by an amount
in the aggregate
for all such
increases
of the Revolver
Commitments and the
Maximum Revolver Amount
not to exceed
the Available
Increase Amount (each such increase,
an "Increase").
Agent shall invite each Lender
to increase
its Revolver Commitments
(it being understood
that no Lender
shall be obligated
to increase its
Revolver Commitments) in
connection with a
proposed Increase at
the interest margin
proposed
by Borrowers, and if
sufficient Lenders do
not agree to increase
their Revolver Commitments
in
connection with
such proposed
Increase, then
Agent or
Borrowers may
invite any
prospective
lender who is reasonably
satisfactory to Agent and
Borrowers to become a
Lender in connection
with a proposed Increase.
Any Increase shall be in an amount
of at least $5,000,000 and integral
multiples of $5,000,000
in excess thereof.
In no event
may the Revolver
Commitments and the
Maximum Revolver Amount
to be increased
pursuant to this
Section 2.14 on
more than 2
occasions
in the aggregate for all
such Increases.
Additionally, for
the avoidance of doubt,
it is understood
and agreed that in
no event shall the
aggregate amount of the
Increases to the Revolver
Commitments exceed $10,000,000.
(b)
Each of the
following shall be
conditions precedent to
any Increase of the
Revolver Commitments and the Maximum Revolver Amount in connection therewith:
(i)
Agent or Borrowers have obtained
the commitment of one or
more
Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide
the applicable Increase and any
such Lenders (or prospective lenders),
Borrowers, and Agent have
signed a
joinder agreement
to this
Agreement (an
"Increase Joinder"),
in form
and substance
reasonably satisfactory to Agent, to which such Lenders (or
prospective lenders), Borrowers, and
Agent are party,
(ii)
each of the
conditions precedent set
forth in Section
3.2 are satisfied,
(iii)
in connection
with any
Increase, if
any Loan
Party or
any of
its
Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated
Form U-1
(with sufficient
additional originals
thereof for
each Lender), duly
executed and
delivered by
the Borrowers,
together with
such other
documentation as
Agent shall
reasonably
request, in order
to enable Agent
and the Lenders
to comply with
any of the
requirements under
Regulations T, U or X of the Federal Reserve Board,
(iv)
Borrowers have delivered
to Agent updated
pro forma
Projections
(after giving effect to
the applicable Increase) for
the Loan Parties and
their Subsidiaries
evidencing compliance on
a
pro forma
basis with Section
7 for the
twelve months (on
a month-
by-month basis) immediately following the proposed date of the applicable Increase, and
(v)
The interest rate margins with respect to the Revolving Loans to
be
made pursuant to
the increased Revolver
Commitments shall be
the same as
the interest rate
margin
applicable to Revolving
Loans hereunder immediately
prior to
the applicable
Increase Date (as
defined below)
(the date
of the
effectiveness of
the increased
Revolver Commitments
and the
Maximum Revolver Amount, the
"Increase Date").
Any Increase Joinder
may, with
the consent
of Agent, Borrowers
and the
Lenders or prospective
lenders agreeing
to the
proposed Increase,
effect such amendments to this Agreement and the other Loan Documents as may be necessary to
effectuate the provisions of this Section 2.14.
(c)
Unless otherwise
specifically provided
herein, (i)
all references
in this
Agreement and any other Loan
Document to Revolving Loans shall
be deemed, unless the context
otherwise requires, to
include Revolving Loans
made pursuant to
the increased Revolver
Commitments and Maximum Revolver
Amount pursuant to this
Section 2.14, and (ii)
all
references in this
Agreement and any
other Loan Document
to the Term
Loan shall be
deemed,
unless the context
otherwise requires, to
include any Additional
Portion of the
Term Loan
made
pursuant to the increased Term Loan Amount pursuant to this Section 2.14.
(d)
Each of the
Lenders having a
Revolver Commitment prior
to the Increase
Date (the "Pre-Increase Revolver
Lenders") shall assign to
any Lender which
is acquiring a new
or additional Revolver Commitment on the
Increase Date (the "Post-Increase Revolver Lenders"),
and such Post-Increase Revolver Lenders
shall purchase from each Pre-Increase
Revolver Lender,
at the principal amount
thereof, such interests
in the Revolving
Loans and participation interests
in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to
all such assignments and purchases,
such Revolving Loans and participation interests
in Letters of
Credit will be held by Pre-Increase Revolver Lenders and Post-Increase
Revolver Lenders ratably
in accordance
with their
Pro Rata
Share after
giving effect
to such
increased Revolver
Commitments.
(e)
The Revolving
Loans, Revolver
Commitments, and
Maximum Revolver
Amount established
pursuant to
this Section
2.14 shall
constitute Revolving
Loans, Revolver
Commitments, and
Maximum Revolver
Amount under,
and shall
be entitled
to all
the benefits
afforded by,
this Agreement
and the
other Loan
Documents, and
shall, without
limiting the
foregoing, benefit equally
and ratably from any
guarantees and the security
interests created by the
Loan Documents.
Borrowers shall take
any actions reasonably required
by Agent to
ensure and
demonstrate that the
Liens and security
interests granted by
the Loan Documents
continue to be
perfected under
the Code
or otherwise
after giving effect
to the
establishment of any
such new
Revolver Commitments and Maximum Revolver Amount.
2.15.
Currencies
.
The Revolving
Loans and other
Obligations shall
be made
and
repaid in Dollars.
Payments made in
a currency other
than the currency
in which the
applicable
Obligations are
denominated may
be accepted
by the
Agent in
its sole
discretion and,
if so
accepted, the Borrowers
agree that the
Agent may convert
the payment made
to the currency
of
the applicable Obligations at the applicable Spot Rate in accordance with its normal practices.
2.16.
Joint and Several Liability of Borrowers
.
(a)
Each Borrower is accepting joint
and several liability hereunder and
under
the other Loan Documents in
consideration of the financial accommodations
to be provided by
the
Lender Group
under this
Agreement, for
the mutual
benefit, directly
and indirectly,
of each
Borrower and
in consideration
of the
undertakings of
the other
Borrowers to
accept joint
and
several liability for the Obligations.
(b)
Each Borrower, jointly
and severally,
hereby irrevocably and
unconditionally accepts, not merely
as a surety but
also as a co-debtor,
joint and several liability
with the other Borrowers,
with respect to the
payment and performance of
all of the Obligations
(including any Obligations
arising under this
Section 2.16),
it being the
intention of
the parties
hereto that all the Obligations shall be the
joint and several obligations of each Borrower
without
preferences or distinction
among them.
Accordingly, at
any time
when there
is more
than one
Borrower, each Borrower hereby
waives any and all suretyship defenses
that would otherwise be
available to such Borrower under applicable law.
(c)
If and to the extent
that any Borrower shall fail
to make any payment with
respect to
any of
the Obligations
as and
when due,
whether upon
maturity, acceleration,
or
otherwise, or to perform any of the Obligations in accordance with the terms thereof, then in each
such event
the other
Borrowers will
make such
payment with
respect to,
or perform,
such
Obligations until
such time
as all
of the
Obligations are
paid in
full, and
without the
need for
demand, protest, or any other notice or formality.
(d)
The Obligations of each Borrower under
the provisions of this Section 2.16
constitute the absolute and unconditional, full recourse Obligations of each Borrower enforceable
against each Borrower
to the full
extent of its
properties and assets,
irrespective of the
validity,
regularity or enforceability of
the provisions of this Agreement
(other than this Section 2.16(d))
or
any other circumstances whatsoever.
(e)
Without limiting
the generality
of the
foregoing and
except as
otherwise
expressly provided in
this Agreement, at
any time when
there is more
than one Borrower,
each
Borrower hereby waives presentments, demands for
performance, protests and notices, including
notices of acceptance of its joint and several liability, notice
of any Revolving Loans, any portion
of the Term
Loan or any
Letters of Credit issued
under or pursuant
to this Agreement,
notice of
the occurrence of
any Default, Event
of Default,
notices of
nonperformance, notices
of protest,
notices of dishonor, notices of acceptance of this Agreement, notices of the existence, creation, or
incurring of new
or additional Obligations
or other financial
accommodations or of
any demand
for any payment under this Agreement,
notice of any action at any
time taken or omitted by Agent
or Lenders under
or in respect
of any of
the Obligations, any
right to proceed
against any other
Borrower or
any other
Person, to
proceed against
or exhaust
any security
held from
any other
Borrower or any other Person, to
protect, secure, perfect, or insure any security
interest or Lien on
any property subject
thereto or exhaust
any right to
take any action
against any other
Borrower,
any other
Person, or
any collateral,
to pursue
any other
remedy in
any member
of the
Lender
Group's or
any Bank
Product Provider's
power whatsoever,
any requirement
of diligence
or to
mitigate damages and, generally,
to the extent
permitted by applicable law,
all demands, notices
and other
formalities of
every kind
in connection
with this
Agreement (except
as otherwise
provided in this Agreement),
any right to assert
against any member of
the Lender Group or
any
Bank Product Provider, any
defense (legal or
equitable), set-off, counterclaim, or
claim which each
Borrower may now
or at any
time hereafter have
against any other
Borrower or any
other party
liable to
any member of
the Lender Group
or any
Bank Product Provider,
any defense, set-off,
counterclaim, or
claim, of
any kind
or nature,
arising directly
or indirectly
from the
present or
future lack of perfection, sufficiency, validity,
or enforceability of the Obligations or any security
therefor, and any right or defense
arising by reason of any
claim or defense based
upon an election
of remedies
by any
member of
the Lender
Group or
any Bank
Product Provider
including any
defense based
upon an
impairment or
elimination of
such Borrower's
rights of
subrogation,
reimbursement, contribution, or indemnity
of such Borrower against
any other Borrower.
Without
limiting the generality of
the foregoing, at any
time when there is
more than one Borrower,
each
Borrower hereby assents to, and
waives notice of, any extension
or postponement of the time
for
the payment of any
of the Obligations, the
acceptance of any payment
of any of the
Obligations,
the acceptance of any
partial payment thereon, any
waiver, consent or other action
or acquiescence
by Agent
or Lenders
at any
time or
times in
respect of
any default
by any
Borrower in
the
performance or satisfaction of any term,
covenant, condition or provision of
this Agreement, any
and all other
indulgences whatsoever by
Agent or Lenders
in respect of
any of the
Obligations,
and the taking,
addition, substitution or
release, in whole
or in part,
at any time
or times, of
any
security for any of
the Obligations or the
addition, substitution or
release, in whole or
in part, of
any Borrower.
Without limiting
the generality of
the foregoing, at
any time when
there is more
than one Borrower,
each Borrower assents
to any other
action or delay in
acting or failure to
act
on the part of any
Agent or Lender with respect
to the failure by any Borrower
to comply with any
of its respective
Obligations, including
any failure
strictly or diligently
to assert
any right or
to
pursue any remedy
or to comply
fully with applicable
laws or regulations
thereunder, which might,
but for the provisions of this Section 2.16 afford grounds for terminating, discharging or relieving
any Borrower, in whole or in part, from any of its Obligations
under this Section 2.16, it being the
intention of each
Borrower that, so
long as any
of the Obligations
hereunder remain unsatisfied,
the Obligations
of each
Borrower under
this Section
2.16 shall
not be
discharged except
by
performance and then only to the extent of such performance.
The Obligations of each Borrower
under this
Section 2.16
shall not
be diminished
or rendered
unenforceable by
any winding
up,
reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any
other Borrower
or any
Agent or
Lender.
Each of
the Borrowers
waives, to
the fullest
extent
permitted by law,
the benefit of
any statute of
limitations affecting
its liability hereunder
or the
enforcement hereof.
Any payment by any Borrower or other
circumstance which operates to toll
any statute of
limitations as to
any Borrower shall
operate to toll
the statute of
limitations as to
each of the Borrowers.
At any time when there is
more than one Borrower, each of the Borrowers
waives any defense based
on or arising out
of any defense of
any Borrower or any
other Person,
other than payment of the
Obligations to the extent of
such payment, based on or
arising out of the
disability of any Borrower or any other Person, or the validity,
legality, or unenforceability of
the
Obligations or any part thereof from any cause,
or the cessation from any cause of
the liability of
any Borrower other than
payment of the Obligations
to the extent of
such payment.
Agent may,
at the election
of the Required
Lenders, foreclose upon
any Collateral held
by Agent by
one or
more judicial or
nonjudicial sales or
other dispositions, whether
or not every
aspect of any
such
sale is commercially reasonable or otherwise fails to comply with applicable
law or may exercise
any other right
or remedy Agent,
any other member
of the Lender
Group, or any
Bank Product
Provider may have
against any Borrower
or any other
Person, or any
security, in each case,
without
affecting or
impairing in
any way the
liability of
any of the
Borrowers hereunder except
to the
extent the Obligations have been paid.
(f)
Each Borrower
represents and
warrants to
Agent and
Lenders that
such
Borrower is currently
informed of the
financial condition
of Borrowers and
of all other
circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment
of the Obligations.
Each Borrower further represents and
warrants to Agent and
Lenders that such
Borrower has
read and
understands the
terms and
conditions of
the Loan
Documents.
Each
Borrower hereby
covenants that
such Borrower
will continue
to keep
informed of
Borrowers'
financial condition
and of
all other
circumstances which
bear upon
the risk
of nonpayment
or
nonperformance of the Obligations.
(g)
The provisions of this Section 2.16 are made for the benefit of Agent,
each
member of the
Lender Group, each
Bank Product
Provider, and
their respective
successors and
assigns, and may be enforced
by it or them from time
to time against any or all
Borrowers as often
as occasion therefor may
arise and without requirement
on the part of
Agent, any member of the
Lender Group, any
Bank Product Provider,
or any of
their successors or
assigns first to
marshal
any of its or their claims
or to exercise any of its
or their rights against any Borrower or
to exhaust
any remedies available to
it or them against
any Borrower or to
resort to any other
source or means
of obtaining
payment of
any of
the Obligations
hereunder or
to elect
any other
remedy.
The
provisions of this
Section 2.16 shall
remain in effect
until all of
the Obligations shall
have been
paid in full or otherwise fully satisfied.
If at any time, any payment, or any
part thereof, made in
respect of any of the Obligations, is rescinded or must otherwise be restored or returned by Agent
or any Lender upon the
insolvency, bankruptcy
or reorganization of any
Borrower, or otherwise,
the provisions of this
Section 2.16 will forthwith
be reinstated in effect,
as though such payment
had not been made.
(h)
Each Borrower hereby
agrees that it
will not enforce
any of its
rights that
arise from the
existence, payment, performance
or enforcement of
the provisions of
this Section
2.16, including rights
of subrogation, reimbursement, exoneration,
contribution or indemnification
and any right
to participate
in any claim
or remedy
of Agent,
any other member
of the
Lender
Group, or any Bank Product
Provider against any Borrower, whether or not such
claim, remedy or
right arises in
equity or under
contract, statute or
common law, including the
right to take
or receive
from any Borrower,
directly or indirectly,
in cash or
other property or
by set-off or
in any other
manner, payment
or security solely
on account of
such claim, remedy
or right, unless
and until
such time as all of the Obligations have been paid in full in cash.
Any claim which any Borrower
may have against any other Borrower
with respect to any payments
to any Agent or any
member
of the Lender
Group hereunder or
under any of the
Bank Product Agreements are
hereby expressly
made subordinate
and junior
in right
of payment,
without limitation
as to
any increases
in the
Obligations arising hereunder or thereunder, to the prior
payment in full in cash
of the Obligations
and, in the event of any insolvency,
bankruptcy, receivership, liquidation,
reorganization or other
similar proceeding
under the
laws of
any jurisdiction
relating to
any Borrower,
its debts
or its
assets, whether voluntary
or involuntary,
all such Obligations shall
be paid in
full in cash before
any payment or
distribution of any
character, whether
in cash, securities
or other property,
shall
be made to any other Borrower therefor.
If any amount shall be paid to any
Borrower in violation
of the immediately preceding sentence,
such amount shall be held in
trust for the benefit of
Agent,
for the benefit of the
Lender Group and the Bank
Product Providers, and shall forthwith be
paid to
Agent to
be credited
and applied
to the
Obligations and
all other
amounts payable
under this
Agreement, whether matured or unmatured, in accordance with the terms
of this Agreement, or to
be held as
Collateral for any
Obligations or other
amounts payable under
this Agreement thereafter
arising.
Notwithstanding anything to the contrary contained in this Agreement, no Borrower may
exercise any rights of subrogation, contribution, indemnity,
reimbursement or other similar rights
against, and may not proceed or seek
recourse against or with respect to
any property or asset of,
any other
Borrower (the
"Foreclosed Borrower"),
including after
payment in
full of
the
Obligations, if
all or
any portion
of the
Obligations have
been satisfied
in connection
with an
exercise of
remedies in
respect of
the Equity
Interests of
such Foreclosed
Borrower whether
pursuant to this Agreement or otherwise.
(i)
Each of the Borrowers
hereby acknowledges and affirms that
it understands
that to the extent
the Obligations are secured
by Real Property located
in California, the Borrowers
shall be
liable for
the full
amount of
the liability
hereunder notwithstanding the
foreclosure on
such Real Property by trustee sale or any other reason impairing such Borrower's right to proceed
against any other
Loan Party.
In accordance with
Section 2856 of
the California Civil
Code or
any similar laws
of any other
applicable jurisdiction, each
of the Borrowers
hereby waives until
such time as the Obligations have been paid in full:
(i)
all rights
of subrogation,
reimbursement, indemnification,
and
contribution and any other rights and defenses that are or may become available to the Borrowers
by reason of Sections 2787 to 2855, inclusive, 2899, and
3433 of the California Civil Code or any
similar laws of any other applicable jurisdiction;
(ii)
all rights
and defenses
that the
Borrowers may
have because
the
Obligations are secured by
Real Property located in California,
meaning, among other things,
that:
(A) Agent, the other members
of the Lender Group,
and the Bank Product Providers
may collect
from the Borrowers
without first foreclosing
on any real
or personal property
collateral pledged
by any
Loan Party,
and (B)
if Agent,
on behalf
of the
Lender Group,
forecloses on
any Real
Property Collateral pledged by any Loan Party, (1) the amount of the Obligations may be reduced
only by the
price for which
that collateral is
sold at the
foreclosure sale, even
if the collateral
is
worth more than the sale price, and (2) the Lender
Group may collect from the Loan Parties even
if, by foreclosing
on the Real
Property Collateral, Agent
or the other
members of the
Lender Group
have destroyed or
impaired any right
the Borrowers may
have to collect
from any other
Loan Party,
it being understood that this is an unconditional and irrevocable waiver of
any rights and defenses
the Borrowers
may have
because the
Obligations are
secured by
Real Property
(including any
rights or
defenses based
upon Sections
580a, 580d,
or 726
of the
California Code
of Civil
Procedure or any similar laws of any other applicable jurisdiction); and
(iii)
all rights
and defenses
arising out
of an
election of
remedies by
Agent, the other members of the Lender
Group, and the Bank Product Providers, even
though that
election of remedies, such as
a nonjudicial foreclosure with respect
to security for the Obligations,
has destroyed
the Borrowers'
rights of
subrogation and
reimbursement against
any other
Loan
Party by the
operation of Section
580d of the
California Code of
Civil Procedure or
any similar
laws of any other applicable jurisdiction or otherwise.
3.
CONDITIONS; TERM OF AGREEMENT.
3.1.
Conditions Precedent to
the Initial Extension
of Credit
.
The obligation of
each Lender
to make
the initial
extensions of
credit provided
for hereunder
is subject
to the
fulfillment, to the
satisfaction of Agent
and each Lender,
of each of the
conditions precedent set
forth on Schedule
3.1 to this
Agreement (the making
of such initial
extensions of credit
by a Lender
being conclusively deemed to be its satisfaction or waiver of the conditions precedent).
3.2.
Conditions Precedent
to all
Extensions of
Credit
.
The obligation
of the
Lender Group (or any
member thereof) to make
any Revolving Loans or
to make the
Additional
M/E Term Loan hereunder (or to extend any other
credit hereunder) at any time shall
be subject to
the following conditions precedent:
(a)
the representations
and warranties
of each
Loan Party
or its
Subsidiaries
contained in this
Agreement or in
the other Loan
Documents shall be
true and correct
in all material
respects (except that
such materiality qualifier shall
not be applicable
to any representations and
warranties that already are qualified
or modified by materiality
in the text thereof) on
and as of the
date of such extension of
credit, as though made on
and as of such date
(except to the extent that
such representations
and warranties
relate solely
to an
earlier date,
in which
case such
representations and warranties
shall be true
and correct in
all material respects
(except that such
materiality qualifier shall not be applicable
to any representations and warranties
that already are
qualified or modified by materiality in the text thereof) as of such earlier date);
(b)
no Default or Event
of Default shall have
occurred and be continuing
on the
date of such extension of credit, nor shall either result from the making thereof; and
(c)
solely with
respect to
the Additional
M/E Term
Loan, Agent
shall have
received an Acceptable Appraisal
with respect to the
Eligible M&E within three
months prior to
the date of the funding of the Additional M/E Term Loan.
3.3.
Maturity
.
The Commitments shall continue in full force
and effect for a term
ending on the Maturity Date (unless terminated earlier in accordance with the terms hereof).
3.4.
Effect of
Maturity
.
On the
Maturity Date,
all commitments
of the
Lender
Group to
provide additional
credit hereunder
shall automatically
be terminated
and all
of the
Obligations (other than
Hedge Obligations) immediately
shall become due
and payable without
notice or demand
and Borrowers shall
be required to repay
all of the
Obligations (other than
Hedge
Obligations) in full.
No termination of the
obligations of the Lender
Group (other than payment
in full of the
Obligations and termination of
the Commitments) shall relieve
or discharge any Loan
Party of its
duties, obligations,
or covenants hereunder
or under
any other
Loan Document and
Agent's Liens in the Collateral shall
continue to secure the Obligations
and shall remain in effect
until all Obligations
have been paid
in full.
When all of
the Obligations have
been paid in
full,
Agent will,
at Borrowers'
sole expense,
execute and
deliver any
termination statements,
lien
releases, discharges of security interests, and other similar discharge or release
documents (and, if
applicable, in recordable form) as are reasonably necessary to release, as of record, Agent's Liens
and all notices of security interests and liens previously filed by Agent.
3.5.
Early Termination
by Borrowers
.
Borrowers have
the option,
at any
time
upon ten Business
Days prior written
notice to Agent,
to repay all
of the Obligations
in full and
terminate the
Commitments.
The foregoing
notwithstanding, (a)
Borrowers may
rescind
termination notices relative to
proposed payments in full
of the Obligations with
the proceeds of
third party Indebtedness
if the closing
for such issuance
or incurrence does
not happen on
or before
the date of
the proposed termination
(in which case,
a new notice
shall be required
to be sent
in
connection with any
subsequent termination), and
(b) Borrowers may
extend the date
of
termination at
any time
with the
consent of
Agent (which
consent shall
not be
unreasonably
withheld or delayed).
3.6.
Conditions Subsequent.
The obligation of the Lender Group (or any member
thereof) to continue to make Revolving Loans (or otherwise extend credit hereunder) is subject to
the fulfillment, on or before
the date applicable thereto, of
the conditions subsequent set
forth on
Schedule 3.6 to this Agreement (the failure by
Borrowers to so perform or cause to be
performed
such conditions
subsequent as
and when
required by
the terms
thereof (unless
such date
is
extended, in writing,
by Agent, which
Agent may do
without obtaining the
consent of the
other
members of the Lender Group), shall constitute an Event of Default).
4.
REPRESENTATIONS
AND WARRANTIES.
In order to
induce the Lender
Group to enter
into this Agreement,
each Borrower makes
the following representations and warranties to the Lender
Group which shall be true, correct, and
complete, in all material respects (except
that such materiality qualifier shall
not be applicable to
any representations and warranties that already are qualified or modified by
materiality in the text
thereof), as of the
Closing Date, and
shall be true,
correct, and complete,
in all material
respects
(except that such materiality
qualifier shall not be applicable
to any representations and warranties
that already are
qualified or modified
by materiality in
the text thereof),
as of the
date of the
making
of each Revolving Loan (or other
extension of credit) made thereafter,
as though made on and as
of the date
of such Revolving
Loan (or other
extension of credit)
(except to the
extent that such
representations and warranties relate
solely to an earlier
date, in which case
such representations
and warranties
shall be
true and
correct in
all material
respects (except
that such
materiality
qualifier shall not be applicable to any representations and warranties that already are qualified or
modified by materiality in
the text thereof) as
of such earlier date),
and such representations
and
warranties shall survive the execution and delivery of this Agreement:
4.1.
Due Organization and Qualification; Subsidiaries
.
(a)
Each Loan
Party and
each of
its Subsidiaries
(i) is
duly organized
and
existing and in good standing under the
laws of the jurisdiction of its organization, (ii) is qualified
or registered to
do business in
any jurisdiction where
the failure to
be so qualified
or registered
could reasonably be
expected to result
in a Material
Adverse Effect, and
(iii) has all
requisite power
and authority to own and
operate its properties, to
carry on its business as
now conducted and as
proposed to be conducted, to enter into the Loan Documents to
which it is a party and to carry out
the transactions contemplated thereby.
(b)
Set forth on
Schedule 4.1(b) to
this Agreement (as
such Schedule may
be
updated from
time to
time to
reflect changes
resulting from
transactions permitted
under this
Agreement) is a complete and
accurate description of the authorized
Equity Interests of each
Loan
Party, by
class, and, as
of the Closing
Date, a description
of the number
of shares of
each such
class that are issued and outstanding.
(c)
Set forth on
Schedule 4.1(c) to
this Agreement (as
such Schedule may
be
updated from
time to
time to
reflect changes
resulting from
transactions permitted
under this
Agreement), is a
complete and accurate
list of the
Loan Parties' direct
and indirect Subsidiaries,
showing: (i)
the number
of shares
of each
class of
common and
preferred Equity
Interests
authorized for each of
such Subsidiaries, and (ii)
the number and the percentage
of the outstanding
shares of
each such
class owned
directly or
indirectly by
Administrative Borrower.
All of
the
outstanding Equity Interests of each such Subsidiary has been validly issued and is
fully paid and
non-assessable.
(d)
Except as set forth on Schedule 4.1(d) to this Agreement, as of the
Closing
Date, there
are no
subscriptions, options,
warrants, or
calls relating
to any
shares of
any Loan
Party's or any of
its Subsidiaries' Equity Interests,
including any right of
conversion or exchange
under any outstanding
security or other
instrument.
No Loan Party
is subject to
any obligation
(contingent or
otherwise) to
repurchase or
otherwise acquire
or retire
any shares
of its
Equity
Interests or any security convertible into or exchangeable for any of its Equity Interests.
4.2.
Due Authorization; No Conflict
.
(a)
As to each
Loan Party,
the execution, delivery,
and performance
by such
Loan Party of
the Loan Documents
to which it
is a party
have been duly
authorized by all
necessary
action on the part of such Loan Party.
(b)
As to each
Loan Party,
the execution, delivery,
and performance
by such
Loan Party of the
Loan Documents to which
it is a party
do not and will
not (i) violate any
material
provision of federal, state, provincial or local law or regulation
applicable to any Loan Party or its
Subsidiaries, the
Governing Documents
of any
Loan Party
or its
Subsidiaries, or
any order,
judgment, or decree of any
court or other Governmental
Authority binding on any Loan
Party or
its Subsidiaries, (ii)
conflict with, result
in a breach
of, or constitute
(with due notice
or lapse of
time or both) a default under
any material agreement of any
Loan Party or its Subsidiaries
where
any such conflict, breach or default could individually or in the aggregate reasonably be expected
to have a Material Adverse
Effect, (iii) result in
or require the creation
or imposition of any Lien
of any nature
whatsoever upon any
assets of any
Loan Party,
other than Permitted
Liens, or (iv)
require any approval of any holder of Equity Interests of
a Loan Party or any approval or consent
of any Person under
any material agreement of
any Loan Party,
other than consents or
approvals
that have been
obtained and
that are still
in force
and effect
and except,
in the case
of material
agreements, for
consents or
approvals, the
failure to
obtain could
not individually
or in
the
aggregate reasonably be expected to cause a Material Adverse Effect.
4.3.
Governmental Consents
.
The execution, delivery,
and performance by
each
Loan Party of the Loan Documents to which such Loan Party is
a party and the consummation of
the transactions contemplated by the Loan Documents do not and will not require any
registration
with, consent, or approval
of, or notice to,
or other action with
or by, any Governmental Authority,
other than registrations, consents, approvals, notices, or other actions that have been obtained and
that are still in force and effect and except for filings and recordings with respect to the Collateral
to be made, or otherwise delivered to Agent for filing or recordation, as of the Closing Date.
4.4.
Binding Obligations; Perfected Liens
.
(a)
Each Loan Document has
been duly executed and
delivered by each Loan
Party that is
a party thereto
and is
the legally valid
and binding obligation
of such
Loan Party,
enforceable against such
Loan Party in
accordance with its
respective terms, except
as enforcement
may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium,
or similar laws relating to or limiting creditors' rights generally.
(b)
Agent's Liens
are validly
created, perfected
(other than
(i) in
respect of
motor vehicles that are subject to a certificate of title, (ii) money, (iii) letter-of-credit rights (other
than supporting obligations), (iv)
commercial tort claims (other
than those that, by the
terms of the
Guaranty and Security
Agreement, are required
to be
perfected), and (v)
any Deposit Accounts
and Securities Accounts
not subject to
a Control Agreement
as permitted by
Section 7(k)(iv) of
the Guaranty and Security
Agreement, and subject
only to the filing
of financing statements
and
the recordation of the Mortgages, in each
case, in the appropriate filing offices),
and first priority
Liens, subject
only to
Permitted Liens
which are
non-consensual Permitted
Liens, permitted
purchase money Liens, or the interests of lessors under Capital Leases.
4.5.
Title to Assets;
No Encumbrances
.
Each of the
Loan Parties and
its
Subsidiaries has (a) good, sufficient and
legal title to (in the
case of fee interests in
Real Property),
(b) valid leasehold interests in (in the case of leasehold interests in real or personal property), and
(c) good and marketable title
to (in the case of
all other personal property), all
of their respective
assets reflected in their most recent financial statements delivered pursuant to Section 5.1, in
each
case except for
assets disposed of
since the date
of such financial statements
to the extent
permitted
hereby.
All of such assets are free and clear of Liens except for Permitted Liens.
4.6.
Litigation
.
(a)
There are no actions, suits, or proceedings pending or,
to the knowledge of
any Borrower, after due inquiry,
threatened in writing against a Loan Party or
any of its
Subsidiaries that either individually or in the
aggregate could reasonably be expected to result
in a
Material Adverse Effect.
(b)
Schedule 4.6(b)
to this
Agreement sets
forth a complete
and accurate
description of each of
the actions, suits, or proceedings
with asserted liabilities in
excess of, or that
could reasonably be expected
to result in liabilities
in excess of, $500,000
that, as of the Closing
Date, is pending
or, to the knowledge
of any Borrower, after
due inquiry, threatened against a
Loan
Party or any of its Subsidiaries.
4.7.
Compliance with
Laws
.
No Loan Party
nor any of
its Subsidiaries (a)
is in
violation of any
applicable laws, rules,
regulations, executive
orders, or codes
(including
Environmental Laws) that, individually or
in the aggregate, could reasonably
be expected to result
in a Material Adverse Effect, or (b) is subject to or
in default with respect to any final judgments,
writs, injunctions, decrees,
rules or regulations
of any court
or any federal,
state, municipal or
other
governmental department,
commission, board,
bureau, agency
or instrumentality,
domestic or
foreign, that, individually or in the aggregate, could reasonably be expected to result in
a Material
Adverse Effect.
4.8.
No Material Adverse Effect
.
All historical financial statements relating
to the
Loan Parties
and their
Subsidiaries that
have been
delivered by Borrowers
to Agent
have been
prepared in accordance with GAAP (except, in the
case of unaudited financial statements, for the
lack of footnotes and
being subject to year-end audit
adjustments) and present fairly
in all material
respects, the Loan
Parties' and their
Subsidiaries' consolidated financial
condition as of
the date
thereof and results of
operations for the period
then ended.
Since December 31, 2019,
no event,
circumstance, or
change has
occurred that
has or
could reasonably
be expected
to result
in a
Material Adverse Effect.
4.9.
Solvency
.
(a)
The Loan Parties, taken as a whole, are Solvent.
(b)
No transfer of property is being made by any Loan Party and no obligation
is being
incurred by
any Loan
Party in
connection with
the transactions
contemplated by
this
Agreement or the other Loan Documents with
the intent to hinder, delay, or defraud either present
or future creditors of such Loan Party.
4.10.
Employee Benefits
.
(a)
Except as set
forth on Schedule
4.10, no Loan
Party, none
of their
Subsidiaries, nor
any of
their ERISA
Affiliates maintains
or contributes
to any
Benefit
Plan.
Except as would not reasonably be expected,
either individually or in the aggregate, to
have
a Material Adverse
Effect, (i)
each Employee Benefit
Plan is in
compliance with the
applicable
provisions of ERISA, the IRC and other federal or state laws and (ii) each Employee Benefit Plan
that is intended
to be a
qualified plan under
Section 401(a) of the
IRC has received
a favorable
determination or
relies upon
an opinion
letter from
the IRS
to the
effect that
the form
of such
Employee Benefit Plan
is qualified under
Section 401(a) of the
IRC and the
trust related thereto
has been determined by the IRS to
be exempt from federal income tax under
Section 501(a) of the
IRC, or an application for
either such a letter is
currently being processed by the
IRS, and, to the
knowledge of the Borrower, nothing has
occurred that would prevent or
cause the loss of such
tax-
qualified status.
There are
no pending
or, to
the knowledge
of the
Borrowers, threatened
or
contemplated claims, actions or
lawsuits, or action by
any Governmental Authority,
with respect
to any Employee
Benefit Plan that,
either individually or
in the
aggregate, could
reasonably be
expected to have a
Material Adverse Effect.
There has been no
non-exempt prohibited transaction
or violation of
the fiduciary responsibility
rules with respect
to any Employee
Benefit Plan that,
either individually or in the aggregate, has
had or could reasonably be expected to
have a Material
Adverse Effect.
(b)
No liability to the
PBGC (other than for
the payment of current
premiums
which are not past due) by any Loan Party or ERISA Affiliate has
been incurred or is expected by
any Loan Party or ERISA Affiliate to be incurred with respect to any Pension Plan.
(c)
No Notification Event exists or has occurred in the past six (6) years.
(d)
No Loan Party or ERISA Affiliate has provided any security under Section
436 of the IRC.
(e)
No Loan Party,
nor any of its Subsidiaries,
maintains or contributes to any
Canadian Defined
Benefit Plan
nor has
any liabilities
or obligations
in respect
of a
Canadian
Defined Benefit Plan that
has been terminated or
wound up other than
a Canadian Multi-Employer
Plan.
Except as set forth on Schedule 4.10, as of the Closing Date no Loan Party, nor any of their
Subsidiaries, maintains or contributes
to any Canadian Pension
Plan.
Each Canadian Pension Plan
is, and has
been maintained in
compliance to the
Income Tax
Act (Canada), all
applicable laws
and the terms
of each such
Canadian Pension Plan,
except where the
failure to do
so would not
reasonably be expected to result in a Material Adverse Effect.
4.11.
Environmental Condition
.
Except as
set forth
on Schedule
4.11 to
this
Agreement, (a)
to each
Borrower's knowledge,
no Loan
Party's nor
any of
its Subsidiaries'
properties or assets has ever been used by a Loan Party, its Subsidiaries, or by previous owners or
operators in the disposal
of, or to produce,
store, handle, treat, release, or
transport, any Hazardous
Materials, where such disposal, production, storage, handling,
treatment, release or transport was
in violation, in any material respect, of
any applicable Environmental Law, (b) to each Borrower's
knowledge, after due inquiry,
no Loan Party's nor any
of its Subsidiaries' properties or
assets has
ever been designated or identified in any manner pursuant to any
environmental protection statute
as a Hazardous Materials disposal site,
(c) no Loan Party nor any
of its Subsidiaries has received
notice that a
Lien arising under
any Environmental Law
has attached to
any revenues or
to any
Real Property owned
or operated by
a Loan Party
or its Subsidiaries,
and (d) no
Loan Party nor
any of
its Subsidiaries
nor any
of their
respective facilities
or operations
is subject
to any
outstanding written order, consent decree, or
settlement agreement with any Person
relating to any
Environmental Law
or Environmental
Liability that,
individually or
in the
aggregate, could
reasonably be expected to result in a Material Adverse Effect.
4.12.
Complete Disclosure
.
All factual
information taken
as a
whole (other
than
forward-looking information
and projections and
information of a
general economic nature
and
general information about
the industry of
any Loan Party
or its Subsidiaries)
furnished by or
on
behalf of
a Loan
Party or
its Subsidiaries
in writing
to Agent
or any
Lender (including
all
information contained in the Schedules hereto or in the other
Loan Documents) for purposes of or
in connection
with this
Agreement or
the other
Loan Documents,
and all
other such
factual
information taken as a whole (other than
forward-looking information and projections and
information of a general economic nature and general information about the industry of any Loan
Party or its Subsidiaries) hereafter furnished by or on behalf of a Loan Party or its Subsidiaries
in
writing to Agent or any
Lender will be, true and
accurate, in all material respects, on
the date as of
which such
information is
dated or
certified and
not incomplete
by omitting
to state
any fact
necessary to make such
information (taken as
a whole) not misleading
in any material respect
at
such time
in light
of the
circumstances under
which such
information was
provided.
The
Projections delivered to
Agent on September
8, 2020 represent, and
as of the
date on which
any
other Projections are
delivered to Agent,
such additional Projections
represent, Borrowers' good
faith estimate, on
the date such
Projections are delivered,
of the Loan
Parties' and their
Subsidiaries'
future performance for
the periods
covered thereby based
upon assumptions
believed by
Borrowers to be reasonable
at the time of
the delivery thereof to
Agent (it being understood
that
such Projections
are subject
to significant
uncertainties and
contingencies, many
of which
are
beyond the control of the Loan Parties and their Subsidiaries, and no assurances can be given that
such Projections will
be realized, and
although reflecting Borrowers'
good faith estimate,
projections or
forecasts based
on methods
and assumptions
which Borrowers
believed to
be
reasonable at the
time such Projections were
prepared, are not to
be viewed as facts,
and that actual
results during the
period or periods
covered by the
Projections may differ
materially from projected
or estimated results).
As of the
Closing Date, the
information included in
the Beneficial Ownership
Certification is true and correct in all respects.
4.13.
Patriot Act
.
To the extent
applicable, each Loan Party is in compliance, in all
material respects, with the
(a) Trading with
the Enemy Act, as
amended, and each of
the foreign
assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter
V,
as amended)
and any
other enabling
legislation or
executive order
relating thereto,
and (b)
Uniting and
Strengthening America
by Providing
Appropriate Tools
Required to
Intercept and
Obstruct Terrorism
(USA Patriot Act of 2001,
as amended) (the "Patriot Act")
and all applicable
Canadian Anti-Money Laundering & Anti-Terrorism Legislation.
4.14.
Indebtedness
.
Set forth
on Schedule
4.14 to
this Agreement
is a
true and
complete list
of all
Indebtedness of
each Loan
Party and
each of
its Subsidiaries
outstanding
immediately prio
r
to the
Closing Date
(other than
(i) unsecured
Permitted Indebtedness
outstanding immediately prior to the
Closing Date with respect to
any one transaction or a
series
of related
transactions in
an amount
not to
exceed $250,000,
provided, that
all such
Permitted
Indebtedness, in the aggregate, shall
not exceed $500,000, and (ii) the
Mexican Term Debt) that is
to remain outstanding immediately
after giving effect to the
closing hereunder on the
Closing Date
and such Schedule accurately sets forth
the aggregate principal amount of such Indebtedness
as of
the Closing Date.
4.15.
Payment of Taxes
.
Except as otherwise permitted
under Section 5.5, all
Tax
returns and reports of
each Loan Party and
its Subsidiaries required to
be filed by any
of them have
been timely filed,
and all Taxes
shown on such
Tax
returns to be
due and payable
and all other
Taxes upon a Loan Party and its Subsidiaries and upon their respective assets, income, businesses
and franchises that are due
and payable have been paid
when due and payable.
Each Loan Party
and each of its Subsidiaries
have made adequate provision in
accordance with GAAP for all
Taxes
not yet due
and payable.
No Borrower knows
of any proposed
Tax assessment
against a Loan
Party or any
of its
Subsidiaries that is
not being
actively contested by
such Loan
Party or
such
Subsidiary diligently, in
good faith, and by appropriate proceedings;
provided, that such reserves
or other appropriate provisions,
if any,
as shall be
required in conformity with
GAAP shall have
been made or provided therefor.
4.16.
Margin Stock
.
Neither any Loan
Party nor any
of its Subsidiaries
owns any
Margin Stock
or is
engaged principally,
or as
one of
its important
activities, in
the business
of
extending credit
for the
purpose of
purchasing or
carrying any
Margin Stock.
No part
of the
proceeds of the Loans made
to Borrowers will be
used to purchase or carry
any Margin Stock or
to extend credit to
others for the
purpose of purchasing
or carrying any Margin
Stock or for
any
purpose that violates the provisions
of Regulation T,
U or X of the
Board of Governors.
Neither
any Loan Party nor any of its Subsidiaries expects to acquire any Margin Stock.
4.17.
Governmental Regulation
.
No Loan
Party nor
any of
its Subsidiaries
is
subject to
regulation under
the Federal
Power Act
or the
Investment Company
Act of
1940 or
under any other federal or
state statute or regulation which
may limit its ability to
incur
Indebtedness or which may otherwise render
all or any portion of the
Obligations unenforceable.
No Loan
Party nor
any of
its Subsidiaries
is a
"registered investment
company" or
a company
"controlled" by a
"registered investment company"
or a "principal
underwriter" of
a "registered
investment company" as such terms are defined in the Investment Company Act of 1940.
4.18.
OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws
.
No Loan Party or any of its
Subsidiaries is in violation of any Sanctions.
No Loan Party nor any
of its Subsidiaries nor, to
the knowledge of such
Loan Party, any director, officer, employee, agent
or Affiliate
of such
Loan Party
or such
Subsidiary (a)
is a
Sanctioned Person
or a
Sanctioned
Entity, (b) has any assets located in Sanctioned Entities, or (c) derives revenues from investments
in, or transactions with
Sanctioned Persons or Sanctioned
Entities.
Each of the Loan Parties
and
its Subsidiaries
has implemented
and maintains
in effect
policies and
procedures reasonably
designed to
ensure compliance
with Sanctions,
Anti-Corruption Laws
and Anti-Money
Laundering Laws.
Each of the
Loan Parties and
its Subsidiaries, and
to the knowledge
of each
such Loan Party, each director, officer, employee, agent and Affiliate of each such
Loan Party and
each such Subsidiary, is in compliance with all Sanctions, Anti-Corruption Laws
and Anti-Money
Laundering Laws.
No proceeds
of any Loan
made or Letter
of Credit issued
hereunder will be
used to fund any operations in, finance any investments or activities in, or make any payments to,
a Sanctioned Person or a Sanctioned Entity,
or otherwise used in any manner that
would result in
a violation of any Sanction, Anti-Corruption Law or Anti-Money Laundering Law
by any Person
(including any Lender,
Bank Product Provider,
or other individual
or entity participating
in any
transaction).
4.19.
Employee and Labor Matters
.
There is (i) no unfair labor practice
complaint
pending or, to
the knowledge of any
Borrower, threatened against
any Loan Party or
its
Subsidiaries before
any Governmental
Authority and
no grievance
or arbitration
proceeding
pending or threatened against any Loan Party
or its Subsidiaries which arises out
of or under any
collective bargaining
agreement and
that could
reasonably be
expected to
result in
a material
liability, (ii)
no strike, labor
dispute, slowdown, stoppage
or similar action
or grievance pending
or threatened
in writing
against any
Loan Party
or its
Subsidiaries that
could reasonably
be
expected to
result in
a material
liability, or
(iii) to
the knowledge
of any
Borrower, after
due
inquiry, no union representation question existing
with respect to the
employees of any Loan
Party
or its
Subsidiaries and
no union
organizing activity
taking place
with respect
to any
of the
employees of any Loan Party
or its Subsidiaries.
None of any Loan Party
or its Subsidiaries has
incurred any liability or obligation under the Worker
Adjustment and Retraining Notification Act
or similar state or
other applicable law,
which remains unpaid
or unsatisfied.
The hours worked
and payments made
to employees of
each Loan Party
and its Subsidiaries
have not been
in violation
of the Fair
Labor Standards Act
or any other
applicable legal requirements,
except to the
extent
such violations could
not, individually or
in the aggregate,
reasonably be expected
to result in
a
Material Adverse Effect.
All material payments
due from any
Loan Party or
its Subsidiaries on
account of wages and employee health and
welfare insurance and other benefits have been paid
or
accrued as
a liability
on the
books of
Borrowers, except
where the
failure to
do so
could not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
4.20.
Leases
.
Each Loan Party and
its Subsidiaries enjoy peaceful
and undisturbed
possession under all leases material to their business and to which they are parties or under which
they are
operating, and,
subject to
Permitted Protests,
all of
such material
leases are
valid and
subsisting and no material default
by the applicable Loan
Party or its Subsidiaries exists
under any
of them.
4.21.
Eligible Accounts
.
As to each
Account that is
identified by Borrowers
as an
Eligible Account in a Borrowing Base Certificate submitted
to Agent, such Account is (a) a bona
fide existing payment obligation
of the applicable Account
Debtor created by the
sale and delivery
of Inventory
or the
rendition of
services to
such Account
Debtor in
the ordinary
course of
a
Borrowing Base Company's
business, (b) owed
to a Borrowing
Base Company without
any known
defenses, disputes, offsets, counterclaims, or rights of return or cancellation, and
(c) not excluded
as ineligible by virtue of one or
more of the excluding criteria (other than
any Agent-discretionary
criteria) set forth in the definition of Eligible Accounts.
4.22.
Eligible Inventory
.
As to each
item of Inventory
that is identified
by
Borrowers as
Eligible Finished
Goods Inventory,
Eligible In
-Transit Inventory,
Eligible Raw
Materials Inventory
,
or Eligible
Work
-In-Process Inventory
in a
Borrowing Base
Certificate
submitted to
Agent, such
Inventory is
(a) of
good and
merchantable quality,
free from
known
defects, and (b) not excluded as ineligible by virtue of
one or more of the excluding criteria (other
than any Agent-discretionary criteria) set
forth in the definition of
Eligible Inventory (in the case
of Eligible In
-Transit Inventory,
after giving effect
to any exclusions
therefrom specified in
the
definition of Eligible In-Transit Inventory).
4.23.
Location of Inventory
and M&E
.
Except as set
forth in Schedule
4.25, the
Inventory and
M&E of
Loan Parties
and their
Subsidiaries is
not stored
with a
bailee,
warehouseman, or similar
party and is
located only at,
or in-transit between,
the locations identified
on Schedule 4.25 to this Agreement (as such Schedule may be updated pursuant to Section 5.14).
4.24.
Inventory Records
.
Each Loan
Party keeps
correct and
accurate records
itemizing and describing
the type, quality,
and quantity of
its and its
Subsidiaries' Inventory and
the book value thereof.
4.25.
Hedge Agreements
.
On each date that
any Hedge Agreement
is executed by
any Hedge
Provider, Borrower
and each
other Loan
Party satisfy
all eligibility,
suitability and
other requirements under
the Commodity Exchange
Act (7 U.S.C.
§ 1, et
seq., as in
effect from
time to time) and the Commodity Futures Trading Commission regulations.
5.
AFFIRMATIVE COVENANTS.
Each Borrower covenants
and agrees
that, until
the termination
of all
of the
Commitments and payment in full of the Obligations:
5.1.
Financial Statements,
Reports, Certificates
.
Borrowers (a)
will deliver
to
Agent, with copies
to each Lender,
each of the
financial statements, reports,
and other items
set
forth on Schedule 5.1 to this Agreement no later than the
times specified therein, (b) agree that no
Subsidiary of a Loan Party will have a fiscal year different from that of Administrative Borrower,
(c) agree to maintain a
system of accounting that enables
Borrowers to produce financial
statements in accordance with GAAP, and (d) agree that they will, and will cause each other
Loan
Party to, (i) keep
a reporting system that
shows all additions, sales,
claims, returns, and allowances
with respect
to their
and their
Subsidiaries' sales,
and (ii)
maintain their
billing systems
and
practices substantially as
in effect
as of the
Closing Date and
shall only make
material
modifications thereto with notice to, and with the consent of, Agent.
5.2.
Reporting
.
Borrowers (a) will deliver to Agent (and if so requested by Agent,
with copies for each Lender) each of
the reports set forth on Schedule 5.2 to this
Agreement at the
times specified therein, and
(b) agree to use commercially
reasonable efforts in
cooperation with
Agent to facilitate
and implement a
system of electronic
collateral reporting in
order to provide
electronic reporting of each of the items set forth on such Schedule.
Borrowers and Agent hereby
agree that the delivery of
the Borrowing Base Certificate through
the Agent's electronic platform
or portal,
subject to
Agent's authentication process,
by such other
electronic method
as may be
approved by Agent
from time to
time in its
sole discretion, or
by such other
electronic input of
information necessary to calculate the Borrowing
Bases as may be approved
by Agent from time
to time in its sole discretion,
shall in each case be deemed
to satisfy the obligation of Borrowers
to
deliver such
Borrowing Base
Certificate, with
the same
legal effect
as if
such Borrowing
Base
Certificate had been manually executed by Borrowers and delivered to Agent.
5.3.
Existence
.
Except as
otherwise permitted
under Section
6.3 or
Section 6.4,
each Loan Party will,
and will cause each
of its Subsidiaries to,
at all times preserve
and keep in
full force and effect such Person's valid existence and good standing in its jurisdiction of
organization and, except
as could not
reasonably be expected
to result in
a Material Adverse
Effect,
good standing with respect to all other jurisdictions in which it is qualified to do business and any
rights, franchises, permits,
licenses, accreditations, authorizations,
or other approvals material
to
their businesses.
5.4.
Maintenance of Properties
.
Each Loan Party will,
and will cause each of
its
Subsidiaries to, maintain
and preserve all
of its assets
that are necessary
or useful in
the proper
conduct of its
business in
good working
order and
condition, ordinary wear,
tear, casualty,
and
condemnation and Permitted
Dispositions excepted (and
except where the
failure to so
maintain
and preserve assets could not reasonably be expected to result in a Material Adverse Effect).
5.5.
Taxes
.
Each Loan Party will, and will cause each of its Subsidiaries to, pay in
full before delinquency or before
the expiration of any extension
period all Taxes imposed, levied,
or assessed
against it,
or any
of its
assets or
in respect
of any
of its
income, businesses,
or
franchises, other than Taxes
not in excess
of $200,000 outstanding at
any time and
other than to
the extent that the validity of such Tax is the subject of a Permitted Protest.
5.6.
Insurance
.
(a)
Each Loan Party
will, and will
cause each of
its Subsidiaries to,
at
Borrowers' expense, maintain insurance respecting each of each Loan Party's and its Subsidiaries'
assets wherever
located, covering
liabilities, losses
or damages
as are
customarily are
insured
against by other Persons engaged in same or
similar businesses and similarly situated and located.
All such policies of insurance
shall be with financially sound
and reputable insurance companies
acceptable to
Agent (it
being agreed
that, as
of the
Closing Date,
the Loan
Parties' existing
insurance providers as set forth in the
certificates of insurance delivered to Agent on
or about the
Closing Date
shall be
deemed to
be acceptable
to Agent)
and in
such amounts
as is
carried
generally in accordance with sound
business practice by companies
in similar businesses similarly
situated and located and, in any event,
in amount, adequacy,
and scope reasonably satisfactory to
Agent (it
being agreed
that the
amount, adequacy,
and scope
of the
policies of
insurance of
Borrowers in effect as of
the Closing Date are
acceptable to Agent).
All the Loan Parties'
property
insurance policies are
to be made
payable to Agent
for the benefit
of Agent and
the Lenders, as
their interests may
appear, in case of loss,
pursuant to a standard
lender's loss payable endorsement
with a standard non-contributory "lender" or
"secured party" clause and are to
contain such other
provisions as Agent may reasonably require to
fully protect the Lenders' interest in the
Collateral
and to
any payments
to be
made under
such policies.
All certificates
of property
and general
liability insurance
are to
be delivered
to Agent,
with the
lender's loss
payable and
additional
insured endorsements in favor of Agent and shall provide for not less than thirty days (ten days in
the case of non-payment) prior written notice
to Agent of the exercise of
any right of cancellation.
Unless Borrowers provide Agent with evidence of the continuing insurance
coverage required by
this Agreement,
Agent may
purchase insurance
at Borrowers'
expense to
protect Agent's
and
Lenders' interests in the Collateral. This insurance may, but need not, protect each Borrower's and
each other Loan Party's interests.
The coverage that Agent
purchases may,
but need not, pay any
claim that is made
against any Borrower or
any other Loan Party
in connection with the
Collateral.
Borrowers may
later cancel
any insurance
purchased by
Agent, but
only after
providing Agent
with evidence that Borrowers
have obtained the insurance
coverage required by this
Agreement.
If Agent purchases insurance for the Collateral,
as set forth above, Borrowers will be
responsible
for the costs of that insurance, including interest and any other
charges that may be imposed with
the placement
of the
insurance, until
the effective
date of
the cancellation
or expiration
of the
insurance and the costs of the insurance
may be added to the principal amount of
the Loans owing
hereunder.
(b)
Borrowers shall give Agent prompt
notice of any loss exceeding
$350,000
covered by the
casualty or business
interruption insurance of
any Loan Party
or its Subsidiaries.
Upon the occurrence and during the continuance of an
Event of Default, Agent shall have the sole
right to
file claims
under any property
and general
liability insurance
policies in
respect of
the
Collateral, to receive, receipt and give
acquittance for any payments that
may be payable
thereunder, and to execute any
and all endorsements, receipts, releases, assignments,
reassignments or other
documents that may
be necessary to
effect the collection,
compromise or
settlement of any claims under any such insurance policies.
(c)
If at
any time
the area
in which
any Real
Property that
is subject
to a
Mortgage is located
is designated a
"flood hazard area"
in any Flood
Insurance Rate Map
published
by the Federal Emergency
Management Agency (or any
successor agency), obtain flood
insurance
in such total amount and on terms
that are satisfactory to Agent and all
Lenders from time to time,
and otherwise comply
with the Flood
Laws or as
is otherwise satisfactory
to Agent and
all Lenders.
5.7.
Inspection
.
(a)
Each Loan Party will,
and will cause each
of its Subsidiaries (other
than any
Mexican Subsidiary) to,
permit Agent, any
Lender, and
each of their
respective duly authorized
representatives or agents
to visit any
of its properties
and inspect any
of its assets
or books and
records, to examine and make copies of
its books and records, and to discuss
its affairs, finances,
and accounts with, and to be advised as to the same by,
its officers and employees (provided, that
an authorized representative of
a Borrower shall be
allowed to be present)
at such reasonable times
and intervals as Agent
or any Lender,
as applicable, may designate and,
so long as no
Default or
Event of Default
has occurred and
is continuing, with
reasonable prior notice
to Borrowers and
during regular business hours, at Borrowers' expense in accordance with the provisions of the Fee
Letter, subject to the limitations set forth below in Section 5.7(c).
(b)
Each Loan Party
will, and will cause
each of its Subsidiaries
(other than any
Mexican Subsidiary) to, permit Agent and each of its duly authorized representatives or agents to
conduct field
examinations, appraisals
or valuations
at such
reasonable times
and intervals
as
Agent may designate, at Borrowers'
expense in accordance with
the provisions of the
Fee Letter,
subject to the limitations set forth below in Section 5.7(c).
(c)
So long as
no Event of
Default shall have
occurred and be
continuing during
a calendar
year, Borrowers
shall not
be obligated
to reimburse
Agent for
more than
2 field
examinations during calendar
year 2021 or
1 field
examination in
such calendar year
thereafter
(increasing to
2 field
examinations if
an Increased
Reporting Event
has occurred
during such
calendar year), 1 inventory appraisal in such calendar year (increasing to 2 inventory appraisals if
an Increased Reporting
Event has occurred
during such calendar
year), 1 equipment appraisal
in
such calendar
year (increasing
to 2
equipment appraisals
if an
Increased Reporting
Event has
occurred during such calendar
year), and equipment appraisals requested
by Borrowers in
connection with
a request
for the
Additional M/E
Term Loan,
in each
case, except
for field
examinations and
appraisals conducted
in connection
with a
proposed Permitted
Acquisition
(whether or not consummated).
5.8.
Compliance with
Laws
.
Each Loan
Party will,
and will
cause each
of its
Subsidiaries to, comply with the requirements
of all applicable laws, rules, regulations,
and orders
of any Governmental
Authority, other than laws, rules,
regulations, and orders
the non-compliance
with which,
individually or
in the
aggregate, could
not reasonably
be expected
to result
in a
Material Adverse Effect.
5.9.
Environmental
.
Each Loan Party will, and will cause each of its Subsidiaries
to,
(a)
Keep any
property either
owned or
operated by
any Loan
Party or
its
Subsidiaries free of any
Environmental Liens or post
bonds or other financial
assurances sufficient
to satisfy the obligations or liability evidenced by such Environmental Liens,
(b)
Comply, in
all material respects, with
Environmental Laws and provide
to
Agent documentation of such compliance which Agent reasonably requests,
(c)
Promptly notify Agent
of any release
of which any
Loan Party has
knowledge of a
Hazardous Material
in any reportable
quantity from
or onto
property owned or
operated by any
Loan Party or
its Subsidiaries and
take any Remedial
Actions required to
abate
said release
or otherwise
to come
into compliance,
in all
material respects,
with applicable
Environmental Law, and
(d)
Promptly, but in any event
within five Business Days of its receipt thereof,
provide Agent with written notice of
any of the following:
(i) notice that an Environmental
Lien
has been filed against any of
the real or personal property
of a Loan Party or
its Subsidiaries, (ii)
commencement of any Environmental Action or written notice that an Environmental Action will
be filed against a Loan Party or its
Subsidiaries, and (iii) written notice of a
violation, citation, or
other administrative order from a Governmental Authority.
5.10.
Disclosure Updates
.
Each Loan Party will,
promptly and in no
event later than
five Business Days
after obtaining knowledge
thereof, notify
Agent if
any written
information,
exhibit, or report
furnished to Agent
or the Lenders
contained, at the
time it was
furnished, any
untrue statement
of a
material fact
or omitted
to state
any material
fact necessary
to make
the
statements contained
therein not
misleading in
light of
the circumstances
in which
made.
The
foregoing to the
contrary notwithstanding, any
notification pursuant to
the foregoing provision
will
not cure or
remedy the effect
of the prior
untrue statement of
a material fact
or omission of
any
material fact
nor shall
any such
notification have
the effect
of amending
or modifying
this
Agreement or any of the Schedules hereto.
5.11.
Formation of Subsidiaries
.
Each Loan Party
will, at the
time that any
Loan
Party forms any direct
or indirect Subsidiary,
acquires any direct
or indirect Subsidiary
after the
Closing Date within
ten days of
such event (or
such later date
as permitted by
Agent in its
sole
discretion) (a)
cause such
new Subsidiary
(i) if
such Subsidiary
is a
Domestic Subsidiary
and
Administrative Borrower requests, subject to the
consent of Agent, that such Domestic
Subsidiary
be joined as a
Borrower hereunder, to provide to Agent
a Joinder to this Agreement,
(ii) to provide
to Agent a joinder
to the Guaranty and
Security Agreement, as applicable,
in each case, together
with such other
security agreements (including
Mortgages with respect
to any Real
Property owned
in fee
of such
new Subsidiary
with a
fair market
value of
greater than
$1,000,000), as
well as
appropriate financing statements
(and with respect
to all property
subject to a
Mortgage, fixture
filings), all in form
and substance reasonably satisfactory
to Agent (including being
sufficient to
grant Agent a
first priority Lien
(subject to Permitted
Liens) in and
to the assets
of such newly
formed or acquired
Subsidiary) and
(iii) if
such Subsidiary is
a Subsidiary organized
under the
laws of Canada,
or any province
thereof, to provide
to Agent a
joinder to the
Canadian Security
Agreement or Quebec Security
Documents, as applicable,
in each case,
together with such
other
Canadian Security Documents (including
Mortgages with respect to
any Real Property owned
in
fee of
such new
Subsidiary with
a fair
market value
of greater
than $1,000,000),
as well
as
appropriate financing statements
(and with respect
to all property
subject to a
Mortgage, fixture
filings), all in form
and substance reasonably satisfactory
to Agent (including being
sufficient to
grant Agent a
first priority Lien
(subject to Permitted
Liens) in and
to the assets
of such newly
formed or
acquired Subsidiary);
(b) provide,
or cause
the applicable
Loan Party
to provide,
to
Agent a pledge agreement (or an addendum to the Guaranty and Security Agreement or Canadian
Security Documents) and appropriate certificates
and powers or financing statements,
pledging all
of the
direct or
beneficial ownership
interest in
such new
Subsidiary in
form and
substance
reasonably satisfactory to
Agent; provided, that
only 65% of
the total outstanding
voting Equity
Interests of any first tier Subsidiary (other than any Canadian Subsidiary) of a
Loan Party that is a
CFC (and
none of
the Equity
Interests of
any Subsidiary
of such
CFC) shall
be required
to be
pledged if pledging a greater amount would result in
adverse tax consequences or the costs to the
Loan Parties
of providing
such pledge
are unreasonably
excessive (as
determined by
Agent in
consultation with Borrowers) in
relation to the
benefits to Agent and
the Lenders of
the security
afforded thereby (which pledge,
if reasonably requested by Agent,
shall be governed by the
laws
of the jurisdiction of
such Subsidiary), and (c)
provide to Agent all
other documentation, including
the Governing
Documents of
such Subsidiary
and one
or more
opinions of
counsel reasonably
satisfactory to
Agent, which,
in its
opinion, is
appropriate with
respect to
the execution
and
delivery of the
applicable documentation referred
to above (including
policies of title
insurance,
flood certification documentation or other documentation with respect to all Real Property owned
in fee and
subject to a
mortgage).
Any document, agreement,
or instrument executed
or issued
pursuant to this Section 5.11 shall constitute a Loan Document.
5.12.
Further Assurances
.
Each Loan Party
will, and will
cause each of
the other
Loan Parties to, at any time upon the
reasonable request of Agent, execute or deliver
to Agent any
and all financing
statements, fixture filings, security
agreements, pledges, assignments,
mortgages,
deeds of trust,
opinions of
counsel, and all
other documents
(the "Additional
Documents") that
Agent may reasonably request
in form and substance
reasonably satisfactory to Agent,
to create,
perfect, and continue perfected or to better perfect Agent's Liens in all of the assets of each of the
Loan Parties (whether now
owned or hereafter arising
or acquired, tangible or
intangible, real or
personal) (other than any
assets expressly excluded from
the Collateral (as defined
in the Guaranty
and Security Agreement or Canadian Security Documents, as applicable) pursuant to Section 3 of
the Guaranty and Security Agreement),
to create and perfect
Liens in favor of Agent
in any Real
Property acquired by any
other Loan Party with a
fair market value in
excess of $1,000,000, and
in order to fully
consummate all of the transactions
contemplated hereby and under the
other Loan
Documents; provided, that the foregoing shall not
apply to any Subsidiary of a Loan Party
that is
a CFC (other than any Canadian Subsidiary)
if providing such documents would result in
adverse
tax consequences or the
costs to the Loan
Parties of providing such
documents are unreasonably
excessive (as determined
by Agent in
consultation with Borrowers)
in relation to
the benefits to
Agent and the
Lenders of
the security
afforded thereby.
To the
maximum extent
permitted by
applicable law, if
any Borrower or any other Loan
Party refuses or fails to execute or
deliver any
reasonably requested Additional
Documents within a
reasonable period of
time not to
exceed 5
Business Days following
the request to
do so, each
Borrower and each
other Loan Party
hereby
authorizes Agent to execute any such
Additional Documents in the applicable Loan
Party's name
and authorizes Agent to file such executed Additional Documents in any appropriate
filing office.
In furtherance of, and not
in limitation of, the
foregoing, each Loan Party shall
take such actions
as Agent may reasonably request
from time to time
to ensure that the Obligations
are guaranteed
by the Guarantors and are secured
by substantially all of the assets
of the Loan Parties, including
all of the outstanding capital Equity Interests of each Borrower and its
Subsidiaries (in each case,
other than
with respect
to any
assets expressly
excluded from
the Collateral
(as defined
in the
Guaranty and
Security Agreement
or Canadian
Security Documents,
as applicable)
pursuant to
Section 3
of the
Guaranty and
Security Agreement).
Notwithstanding anything
to the
contrary
contained herein
(including Se
ction 5.11
hereof and
this Section
5.12) or
in any
other Loan
Document, (x) Agent shall not accept delivery of any Mortgage
from any Loan Party unless each
of the Lenders has
received 45 days prior
written notice thereof and
Agent has received
confirmation from each Lender that such Lender has
completed its flood insurance diligence, has
received copies
of all
flood insurance
documentation and
has confirmed
that flood
insurance
compliance has been completed
as required by the Flood
Laws or as otherwise
satisfactory to such
Lender and (y) Agent shall not accept delivery of any joinder to any Loan Document with respect
to any Subsidiary of any Loan Party that is not a Loan Party,
if such Subsidiary that qualifies as a
"legal entity
customer" under
the Beneficial
Ownership Regulation
unless such
Subsidiary has
delivered a
Beneficial Ownership
Certification in
relation to
such Subsidiary
and Agent
has
completed its
Patriot Act
searches, OFAC/PEP
searches and
customary individual
background
checks for such Subsidiary, the results of which shall be satisfactory to Agent.
Without limitation
of the
foregoing, upon
Agent's request
at any
time that
Availability is
less than
10% of
the
Maximum Revolver Amount, the
Loan Parties shall cause
all loans owed by
Mexican Subsidiaries
to the Loan Parties to be evidences by a note and shall execute or deliver to Agent any Additional
Documents as
Agent may
reasonably request
in form
and substance
reasonably satisfactory
to
Agent, to create,
perfect, and continue
perfected or to
better perfect Agent's
Liens in such
loans
and notes.
5.13.
Location of Inventory and
M&E; Chief Executive Office;
Registered
Office
.
Each Loan Party will, and
will cause each of its
Subsidiaries to, keep (a) their
Inventory
and M&E
only at
the locations
identified on
Schedule 4.25
to this
Agreement (provided
that
Borrowers may amend
Schedule 4.25
to this
Agreement so long
as such
amendment occurs by
written notice to Agent not
less than ten days
prior to the date
on which such Inventory
or M&E
is moved to such
new location and so
long as Agent has
consented to such amendment
and such
new location
is within
the continental
United States
or Canada),
and (b)
their respective
chief
executive offices (and registered office in the case of Canadian Loan Parties) only at the locations
identified on
Schedule 7
to the
Guaranty and
Security Agreement
or Canadian
Security
Documents, as applicable.
Each Loan Party
will, and will
cause each of
its Subsidiaries to,
use
their commercially
reasonable efforts
to obtain
Collateral Access
Agreements for
each of
the
locations identified on Schedule 7 to
the Guaranty and Security Agreement
and Schedule 4.25 to
this Agreement.
5.14.
OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws
.
Each Loan
Party will,
and will
cause each
of its
Subsidiaries to,
comply with
all applicable
Sanctions, Anti-Corruption Laws
and Anti-Money Laundering
Laws.
Each of the
Loan Parties
and its
Subsidiaries shall
implement and
maintain in
effect policies
and procedures
reasonably
designed to
ensure compliance
by the
Loan Parties
and their
Subsidiaries and
their respective
directors, officers,
employees, agents
and Affiliates
with Sanctions,
Anti-Corruption Laws
and
Anti-Money Laundering Laws.
5.15.
Compliance with ERISA
and the IRC
.
In addition to
and without limiting
the generality of Section 5.8,, each Loan
Party shall, and shall cause each of
its ERISA Affiliates
to (a)
comply with
applicable provisions
of ERISA
and the
IRC with
respect to
all Employee
Benefit Plans except
as could not reasonably
be expected to
result, individually or
in the aggregate,
in a
Material Adverse
Effect, (b)
without the
prior written
consent of
Agent and
the Required
Lenders, not take any action
or fail to take action
the result of which could
reasonably be expected
to result in
a Loan Party
or ERISA Affiliate incurring
a liability to
the PBGC or
to a Multiemployer
Plan (other than to
pay contributions, benefits or
premiums payable in the
ordinary course), except
as could
not reasonably
be expected
to result,
individually or
in the
aggregate, in
a Material
Adverse Effect, (c) allow
any facts or
circumstances to exist with
respect to one
or more Employee
Benefit Plans that, in the aggregate,
reasonably could be expected to result
in a Material Adverse
Effect, (d)
not participate
in any
non-exempt prohibited
transaction that
could reasonably
be
expected to
result in
civil penalty
excise tax,
fiduciary liability
or correction
obligation under
ERISA or the
IRC, except
as could
not reasonably
be expected
to result,
individually or
in the
aggregate, in a Material Adverse Effect, (e) operate
each Employee Benefit Plan in such a
manner
that will not incur any tax liability under the IRC (including Section 4980B
of the IRC) that could
reasonably be expected
to result, individually
or in the
aggregate, in a
Material Adverse Effect,
and (e)
furnish to
Agent upon
Agent's written
request such
additional information
about any
Employee Benefit Plan for
which any Loan Party
or ERISA Affiliate could
reasonably expect to
incur any material liability.
With respect to each Pension Plan (other than a Multiemployer
Plan)
except as could not
reasonably be expected to
result, individually or in the
aggregate, in a Material
Adverse Effect or the imposition of any Lien on the assets of any Loan Party under ERISA or the
IRC, the Loan
Parties and
the ERISA Affiliates
shall (i)
satisfy in
full and
in a timely
manner,
without incurring any late payment or underpayment charge
or penalty and without giving rise to
any Lien, all of the contribution and funding requirements of the IRC and of ERISA, and (ii) pay,
or cause
to be
paid, to
the PBGC
in a
timely manner,
without incurring
any late
payment or
underpayment charge or penalty, all premiums required pursuant to ERISA.
5.16.
Canadian Compliance
.
In addition to
and without limiting
the generality of
Section 5.8,
each Borrower
will, and
will cause
each of
its Subsidiaries
to, (a)
comply with
applicable provisions and
funding requirements of
the Income Tax
Act (Canada) and
applicable
federal or provincial pension
benefits legislation with respect
to all Canadian Pension
Plans except
where the failure to do so would not reasonably
be expected to result in a Material Adverse Effect
and (b)
furnish to
Agent upon
Agent's written
request such
additional information
about any
Canadian Pension Plan
for which Borrowers
or their Subsidiaries would
reasonably expect to
incur
any material liability.
All employer or
employee payments, contributions
or premiums required
to be remitted, paid
to or in respect of
Canadian statutory benefit plans that
any Borrower or any
of its Subsidiaries is required to participate in or comply with, including the Canada Pension Plan
or Quebec
Pension Plan
as maintained
by the
Government of
Canada or
Province of
Quebec,
respectively, and plans administered pursuant to
applicable workplace safety insurance and
employment insurance legislation will be
paid or remitted by
each such Person in accordance
with
the terms thereof, any agreements relating thereto and all applicable laws except to the extent that
any amount so payable is subject
to a Permitted Protest and
a Canadian Priority Payable Reserve
for such amount has been established.
6.
NEGATIVE COVENANTS.
Each Borrower covenants
and agrees
that, until
the termination
of all
of the
Commitments and the payment in full of the Obligations:
6.1.
Indebtedness
.
Each Loan
Party will
not, and
will not
permit any
of its
Subsidiaries to, create,
incur, assume,
suffer to exist,
guarantee, or otherwise become
or remain,
directly or indirectly, liable with respect to any Indebtedness, except for Permitted Indebtedness.
6.2.
Liens
.
Each Loan Party will not, and will not permit any of its
Subsidiaries to,
create, incur, assume,
or suffer to
exist, directly or indirectly,
any Lien on or
with respect to any
of its
assets, of
any kind,
whether now
owned or
hereafter acquired,
or any
income or
profits
therefrom, except for Permitted Liens.
6.3.
Restrictions on Fundamental
Changes
.
Each Loan Party
will not, and
will
not permit any of its Subsidiaries to,
(a)
Other than in order to
consummate a Permitted Acquisition, enter
into any
merger, amalgamation,
consolidation, reorganization,
or recapitalization, or
reclassify its Equity
Interests, except
for (i)
any merger
or amalgamation
between Loan
Parties; provided,
that a
Borrower must be the surviving or continuing entity of any such merger to which it is a party,
(ii)
any merger or amalgamation between
a Loan Party and a
Subsidiary of such Loan
Party that is not
a Loan Party so long
as such Loan Party is
the surviving or continuing entity of
any such merger
or amalgamation, and
(iii) any merger
or amalgamation between
Subsidiaries of any
Loan Party
that are not Loan Parties,
(b)
liquidate, wind
up, or
dissolve itself
(or suffer
any liquidation
or
dissolution), except for (i)
the liquidation or dissolution of
non-operating Subsidiaries of any
Loan
Party with nominal assets and
nominal liabilities, (ii) the liquidation
or dissolution of a Loan
Party
(other than
any Borrower)
or any
of its
wholly-owned Subsidiaries
so long
as all
of the
assets
(including any
interest in
any Equity
Interests) of
such liquidating
or dissolving
Loan Party
or
Subsidiary are
transferred to
a Loan
Party that
is not
liquidating or
dissolving, or
(iii) the
liquidation or dissolution
of a Subsidiary
of any Loan
Party that is
not a Loan
Party (other than
any such Subsidiary the
Equity Interests of which
(or any portion thereof)
is subject to a
Lien in
favor of
Agent) so
long as
all of
the assets
of such
liquidating or
dissolving Subsidiary
are
transferred to a Subsidiary of a Loan Party that is not liquidating or dissolving,
(c)
suspend or
cease operating
a substantial
portion of
its or
their business,
except as
permitted pursuant
to clauses
(a) or
(b) above
or in
connection with
a transaction
permitted under Section 6.4, or
(d)
change its classification/status for U.S. federal income tax purposes.
6.4.
Disposal of
Assets
.
Other than
Permitted Dispositions
or transactions
expressly permitted by Sections 6.3 or 6.9,
each Loan Party will not, and will not
permit any of its
Subsidiaries to, convey,
sell, lease, license, assign,
transfer, or otherwise
dispose of any of
its or
their assets (including by an allocation of assets among newly divided limited liability companies
pursuant to a "plan of division").
6.5.
Nature of Business
.
Each Loan Party
will not, and
will not permit
any of its
Subsidiaries to, make any change in
the nature of its or their
business as described in Schedule 6.5
to this Agreement or acquire any
properties or assets that are not reasonably
related to the conduct
of such business
activities; provided, that
the foregoing shall
not prevent any
Loan Party and
its
Subsidiaries from engaging
in any business
that is
reasonably related or
ancillary to its
or their
business.
6.6.
Prepayments and
Amendments
.
Each Loan
Party will
not, and
will not
permit any of its Subsidiaries (other than any Mexican Subsidiary) to,
(a)
Except in connection with
Refinancing Indebtedness permitted by
Section
6.1,
(i)
optionally prepay,
redeem, defease, purchase,
or otherwise acquire
any Indebtedness of any Loan Party or its Subsidiaries, other than
(A) the Obligations in
accordance with this Agreement, (B)
Hedge Obligations, (C) Permitted
Intercompany Advances,
or (D) other Indebtedness so long as the Payment Conditions are satisfied, or
(ii)
make any payment
on account of
Indebtedness that has
been
contractually subordinated in right of payment to the
Obligations if such payment is not permitted
at such time under the subordination terms and conditions, or
(b)
Directly or indirectly, amend, modify,
or change any of the terms or
provisions of:
(i)
any agreement,
instrument, document,
indenture, or
other writing
evidencing or
concerning Permitted
Indebtedness other
than (A)
the Obligations
in accordance
with this
Agreement, (B)
Hedge Obligations,
(C) Permitted
Intercompany Advances,
and (D)
Indebtedness permitted
under clauses
(c), (h),
(j) and
(k) of
the definition
of Permitted
Indebtedness, in
each case,
if the
effect thereof,
either individually
or in
the aggregate,
could
reasonably be expected to be adverse to the interests of the Lenders or the Loan Parties, or
(ii)
the Governing
Documents of
any Loan
Party or
any of
its
Subsidiaries if
the effect
thereof, either
individually or
in the
aggregate, could
reasonably be
expected to be materially adverse to the interests of the Lenders.
6.7.
Restricted Payments
.
Each Loan Party will not, and will not permit any
of its
Subsidiaries to, make any Restricted Payment; provided, that so long as it is permitted by law,
(a)
so long
as no
Default or
Event of
Default shall
have occurred
and be
continuing or would result therefrom, Administrative Borrower may make distributions to former
employees, officers,
or directors
of Administrative
Borrower (or
any spouses,
ex-spouses, or
estates of any
of the foregoing)
on account of
redemptions of Equity
Interests of Administrative
Borrower held by
such Persons; provided,
that the aggregate
amount of such
redemptions made
by Administrative Borrower during
the term of
this Agreement
plus
the amount of
Indebtedness
outstanding under clause (l)
of the definition of
Permitted Indebtedness, does not exceed
$250,000
in the aggregate,
(b)
so long
as no
Default or
Event of
Default shall
have occurred
and be
continuing or would result therefrom, Administrative Borrower may make distributions to former
employees, officers,
or directors
of Administrative
Borrower (or
any spo
uses, ex
-spouses, or
estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons
owing to
Administrative Borrower
on account
of repurchases
of the
Equity Interests
of
Administrative Borrower held by such Persons; provided, that such Indebtedness was incurred by
such Persons solely to acquire Equity Interests of Administrative Borrower,
(c)
so long
as no
Default or
Event of
Default shall
have occurred
and be
continuing or
would result
therefrom, Administrative
Borrower's Subsidiaries
may make
distributions to
Administrative Borrower (i)
in an
amount sufficient
to pay
franchise taxes
and
other fees required to maintain the legal existence of the
Loan Parties and their Subsidiaries to the
extent actually used by Administrative Borrower to pay such taxes, costs
and expenses, and (ii) in
an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in
the nature of
overhead in the
ordinary course of
business of the Loan
Parties and their Subsidiaries,
(d)
Borrowers and their Subsidiaries
may make dividends
and distributions to
Administrative Borrower to make payments permitted to be made pursuant to Section 6.10(f), or
(e)
other Restricted Payments
in an aggregate
amount not to exceed
$1,000,000
so long as the Payment Conditions are satisfied..
6.8.
Accounting Methods
.
Each Loan Party will not, and will
not permit any of its
Subsidiaries to, modify or change its fiscal year or its method
of accounting (other than as may be
required to conform to GAAP).
6.9.
Investments
.
Each Loan Party will not, and
will not permit any of its
Subsidiaries to,
directly or
indirectly, make
or acquire
any Investment
or incur
any liabilities
(including contingent obligations) for
or in connection with
any Investment except for
Permitted
Investments.
6.10.
Transactions with
Affiliates
.
Each Loan Party
will not, and
will not permit
any of its Subsidiaries
to, directly or indirectly,
enter into or permit
to exist any transaction
with
any Affiliate of any Loan Party or any of its Subsidiaries except for:
(a)
transactions (other than
the payment
of management,
consulting,
monitoring, or advisory
fees) between such
Loan Party or
its Subsidiaries, on
the one hand,
and
any Affiliate of such Loan Party
or its Subsidiaries, on the other
hand, so long as
such transactions
(i) are fully
disclosed to
Agent prior to
the consummation
thereof, if they
involve one
or more
payments by such Loan Party
or its Subsidiaries in
excess of $500,000 for any
single transaction
or series of related
transactions, and (ii) are no
less favorable, taken as
a whole, to such Loan
Party
or its Subsidiaries, as
applicable, than would be
obtained in an arm's
length transaction with a
non-
Affiliate,
(b)
any indemnity
provided for
the benefit
of directors
(or comparable
managers) of a Loan Party or one of its Subsidiaries
so long as it has been approved by such Loan
Party's or such Subsidiary's
board of directors (or comparable
governing body) in accordance with
applicable law,
(c)
the payment
of reasonable
compensation, severance,
or employee
benefit
arrangements to employees,
officers, and outside
directors of a
Loan Party or
one of its
Subsidiaries in the ordinary course
of business and consistent
with industry practice so long
as it
has been approved
by such
Loan Party's or
such Subsidiary's
board of directors
(or comparable
governing body) in accordance with applicable law,
(d)
(i) transactions solely
among the Loan
Parties, and (ii)
transactions solely
among Subsidiaries of Loan Parties that are not Loan Parties,
(e)
transactions permitted
by Section
6.3, Section
6.7, or
Section 6.9,
repayments of Permitted Intercompany Advances, and, to
the extent permitted under Section 6.6,
repayments of Subordinated Indebtedness, and
(f)
agreements for the non-exclusive licensing of intellectual property,
or
distribution of products,
in each case,
among the Loan
Parties and their
Subsidiaries for the
purpose
of the counterparty
thereof operating its
business, and agreements
for the assignment
of intellectual
property from any Loan Party or any of its Subsidiaries to any Loan Party.
6.11.
Use of
Proceeds
.
Each Loan
Party will
not, and
will not
permit any
of its
Subsidiaries to, use
the proceeds of
any Loan made
hereunder for any
purpose other than
(a) on
the Closing Date, (i) to repay, in full, the outstanding principal, accrued interest,
and accrued fees
and expenses owing
under or in
connection with the
Existing Credit Facility,
and (ii) to
pay the
fees, costs, and expenses incurred in connection with this Agreement, the other Loan Documents,
and the
transactions contemplated
hereby and
thereby, in
each case, as
set forth
in the
Flow of
Funds Agreement,
and (b)
thereafter, consistent
with the
terms and
conditions hereof,
for their
lawful and permitted purposes; provided that (x) no part of the proceeds
of the Loans will be used
to purchase
or carry
any such
Margin Stock
or to
extend credit
to others
for the
purpose of
purchasing or carrying
any such Margin
Stock or for
any purpose that
violates the provisions
of
Regulation T, U or X of the Board of Governors, (y) no part of the proceeds of
any Loan or Letter
of Credit will
be used, directly
or indirectly,
to make any
payments to a
Sanctioned Entity or
a
Sanctioned Person,
to fund
any investments,
loans or
contributions in,
or otherwise make
such
proceeds available to,
a Sanctioned Entity
or a Sanctioned
Person, to fund
any operations, activities
or business of
a Sanctioned Entity or
a Sanctioned Person, or
in any other manner
that would result
in a violation of
Sanctions by any
Person, and (z) that
no part of the
proceeds of any
Loan or Letter
of Credit will be
used, directly or indirectly,
in furtherance of an offer,
payment, promise to pay,
or authorization of
the payment or
giving of money,
or anything else
of value, to
any Person in
violation of any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws.
6.12.
Limitation on Issuance
of Equity Interests
.
Except for the
issuance or sale
of Qualified Equity Interests
by Administrative Borrower,
each Loan Party will
not, and will not
permit any of its Subsidiaries to, issue or sell any of its Equity Interests.
6.13.
Inventory or M&E with Bailees
.
Each Borrower will not, and
will not permit
any of its Subsidiaries (other than any Mexican Subsidiary) to, store
its Inventory or M&E at any
time with a bailee,
warehouseman, or similar party
except as set forth
on Schedule 4.25 (as
such
Schedule may be amended in accordance with Section 5.14).
6.14.
Employee Benefits
.
Each Loan Party
will not, and
will not permit
any of its
Subsidiaries to:
(a)
Terminate, or permit any ERISA Affiliate to terminate, any
Pension Plan in
a manner,
or take any
other action with
respect to any
Pension Plan, which
could reasonably be
expected to result in any liability of any Loan Party or ERISA Affiliate to the PBGC.
(b)
Fail to make,
or permit any
ERISA Affiliate to
fail to make,
full payment
when due
of all
amounts which,
under the
provisions of
any Benefit
Plan, agreement
relating
thereto or applicable
Law, any
Loan Party or
ERISA Affiliate
is required to
pay if such
failure
could reasonably be expected to have a Material Adverse Effect.
(c)
Permit to
exist, or
allow any
ERISA Affiliate
to permit
to exist,
any
accumulated funding deficiency within
the meaning of section 302
of ERISA or section 412
of the
Code, whether
or not
waived, with
respect to
any Pension
Plan which
exceeds $500,000
with
respect to all Pension Plans in the aggregate.
(d)
Acquire, or permit any
ERISA Affiliate to acquire, an
interest in any Person
that causes such Person
to become an ERISA
Affiliate with respect to a
Loan Party or with
respect
to any ERISA Affiliate if such Person sponsors, maintains, or contributes
to, or at any time in the
six-year period preceding
such acquisition
has sponsored, maintained,
or contributed to,
(i) any
Pension Plan or (ii) any Multiemployer Plan.
(e)
Contribute to or assume
an obligation to contribute
to, or permit any
ERISA
Affiliate to contribute to or assume an obligation to contribute to, any Multiemployer Plan not set
forth on Schedule 4.10.
(f)
Amend, or permit any ERISA
Affiliate to amend, a
Pension Plan resulting
in a material increase in
current liability such that a
Loan Party or ERISA Affiliate
is required to
provide security to such Pension Plan under the IRC.
6.15.
Canadian Employee
Benefits
.
No Borrower
will, or
will permit
any of
its
Subsidiaries to:
(a)
establish, maintain,
sponsor, administer,
contribute to,
participate in
or
assume or incur any liability in respect
of any Canadian Defined Benefit Plan or amalgamate
with
any Person if such Person, sponsors,
administers, contributes to, participates in or
has any liability
in respect
of, any
Canadian Defined
Benefit Plan
other than
a Canadian
Multi-Employer Plan,
without the prior
written consent of
the Agent (which
consent shall not
be unreasonably
conditioned, withheld or delayed),
(b)
terminate any Canadian Pension Plan in a manner,
or take any other action
with respect
to any
Canadian Pension
Plan, which
would reasonably
be expected
to result
in a
Material Adverse Effect, or
(c)
fail to make
full payment when
due of any
amounts, under the
provisions
of any Canadian
Pension Plan,
any agreement relating
thereto or
applicable law
if such
failure
would reasonably be expected to result in a Material Adverse Effect.
7.
FINANCIAL COVENANT.
Each
Borrower covenants
and agrees
that, until
the termination
of all
of the
Commitments and the payment in full of the Obligations:
(a)
Borrowers will have
a Fixed Charge Coverage
Ratio, measured on a
month-
end basis, of at least the required amount set forth
in the following table for the applicable period
set forth opposite thereto:
Applicable Ratio
Applicable Period
1.10:1.0
For the 12 month period
ending November 30, 2020
1.10:1.0
For the 12 month period
ending each month thereafter
(b)
Borrowers will not permit BRP/Navistar
Project Cap Ex to be
greater than
the amount set forth in the following table for the applicable period set forth opposite thereto:
Applicable Ratio
Applicable Period
$1,119,000
For the period
commencing on the Closing Date and ending December
31, 2020
$13,672,000
For the 12 month period
ending December 31, 2021
$2,090,000
For the 12 month period
ending December 31, 2022
8.
EVENTS OF DEFAULT.
Any one or more of the following events shall constitute an event of default (each,
an "Event of Default") under this Agreement:
8.1.
Payments
.
If Borrowers fail to
pay when due and
payable, or when declared
due and payable,
(a) all or
any portion of
the Obligations consisting
of interest, fees,
or charges
due the Lender
Group, reimbursement of
Lender Group Expenses,
or other amounts
(other than
any portion thereof constituting principal) constituting Obligations (including any portion thereof
that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed
or allowable in whole
or in part
as a claim in
any such Insolvency
Proceeding), and such
failure
continues for a period of three Business Days, (b) all or any portion of the
principal of the Loans,
or (c)
any amount
payable to
Issuing Bank in
reimbursement of
any drawing
under a
Letter of
Credit;
8.2.
Covenants
.
If any Loan Party or any of its Subsidiaries:
(a)
fails to perform
or observe
any covenant or
other agreement contained
in
any of (i)
Sections 3.6, 5.1,
5.2, 5.3 (solely
if any Borrower
is not in
good standing in
its jurisdiction
of organization), 5.6,
5.7 (solely if any
Borrower refuses to allow
Agent or its
representatives or
agents to visit any Borrower's properties,
inspect its assets or books or records,
examine and make
copies of its books and records, or discuss Borrowers'
affairs, finances, and accounts with officers
and employees of any Borrower), 5.10, 5.11,
5.13, or 5.14 of this Agreement, (ii) Section 6 of
this
Agreement, (iii)
Section 7
of this
Agreement, or
(iv) Section
7 of
the Guaranty
and Security
Agreement or Section 7 of the Canadian Security Agreement;
(b)
fails to perform
or observe
any covenant or
other agreement contained
in
any of
Sections 5.3
(other than
if any
Borrower is
not in
good standing
in its
jurisdiction of
organization), 5.4, 5.5, 5.8, and
5.12 of this Agreement and such
failure continues for a period of
ten days
after the
earlier of
(i) the
date on
which such
failure shall
first become known
to any
officer of any Borrower,
or (ii) the date on which
written notice thereof is given to
Borrowers by
Agent; or
(c)
fails to perform
or observe
any covenant or
other agreement contained
in
this Agreement, or in
any of the other
Loan Documents, in each
case, other than any
such covenant
or agreement that is
the subject of another
provision of this Section
8 (in which event
such other
provision of this Section
8 shall govern), and
such failure continues for
a period of thirty
days after
the earlier
of (i)
the date
on which
such failure
shall first
become known
to any
officer of
any
Borrower, or (ii) the date on which written notice thereof is given to Borrowers by Agent;
8.3.
Judgments
.
If one or more
judgments, orders, requirements
to pay issued
by
any Canadian Governmental
Authority or awards
for the payment
of money involving
an aggregate
amount of
$500,000, or
more (except
to the
extent fully
covered (other
than to
the extent
of
customary deductibles)
by insurance
pursuant to
which the
insurer has
not denied
coverage) is
entered or
filed against
a Loan
Party or
any of
its Subsidiaries,
or with
respect to
any of
their
respective assets, and
either (a) there
is a period
of thirty consecutive
days at any
time after the
entry of any such judgment, order, or award during which (i)
the same is not discharged, satisfied,
vacated, or
bonded pending
appeal, or
(ii) a
stay of
enforcement thereof
is not
in effect,
or (b)
enforcement proceedings are commenced upon such judgment, order, or award;
8.4.
Voluntary
Bankruptcy, etc
.
If an Insolvency Proceeding is commenced by a
Loan Party or any of its Subsidiaries;
8.5.
Involuntary Bankruptcy,
etc
.
If an
Insolvency Proceeding
is commenced
against a Loan
Party or any
of its Subsidiaries and
any of the
following events occur: (a)
such Loan
Party or such Subsidiary
consents to the institution
of such Insolvency Proceeding
against it, (b)
the petition
commencing the
Insolvency Proceeding
is not
timely controverted,
(c) the
petition
commencing the Insolvency Proceeding is not dismissed within sixty calendar days of the date of
the filing thereof,
(d) an interim
trustee is appointed
to take possession
of all or
any substantial
portion of the properties or assets of, or
to operate all or any substantial portion of the
business of,
such Loan Party
or its Subsidiary, or
(e) an order
for relief shall
have been issued
or entered therein;
8.6.
Default Under Other
Agreements
.
If there is
(a) any "Event
of Default" as
such term
is defined
in the
Mexican Term
Loan Agreement,
or (b)
a default
in one
or more
agreements to
which a
Loan Party
or any
of its
Subsidiaries is
a party
with one
or more
third
Persons relative to a Loan
Party's or any of its
Subsidiaries' Indebtedness involving an aggregate
amount of $500,000
or more, and
such default (i)
occurs at the
final maturity of
the obligations
thereunder, or
(ii) results
in a
right by
such third
Person, irrespective
of whether
exercised, to
accelerate the maturity of such Loan Party's or its Subsidiary's obligations thereunder;
8.7.
Representations, etc
.
If any warranty, representation, certificate,
statement, or
Record made herein
or in any
other Loan Document or
delivered in writing
to Agent or any
Lender
in connection with
this Agreement or
any other Loan
Document proves to
be untrue in
any material
respect (except that
such materiality qualifier
shall not
be applicable to
any representations and
warranties that already are
qualified or modified by
materiality in the text
thereof) as of the
date
of issuance or making or deemed making thereof;
8.8.
Guaranty
.
If the obligation of any Guarantor under the guaranty
contained in
the Guaranty and Security Agreement or Canadian Guaranty is
limited or terminated by operation
of law or by such Guarantor (other than in accordance with the terms of this Agreement) or if any
Guarantor repudiates or revokes or purports to repudiate or revoke any such guaranty;
8.9.
Security Documents
.
If the Guaranty and Security Agreement, any Canadian
Security Document
or any
other Loan
Document that
purports to
create a
Lien, shall,
for any
reason, fail or
cease to create a
valid and perfected
and, (except to
the extent of Permitted
Liens
which are
non-consensual Permitted
Liens, permitted
purchase money
Liens or
the interests
of
lessors under Capital
Leases) first priority
Lien on the
Collateral covered thereby, except
as a result
of a disposition of the applicable Collateral in a transaction permitted under this Agreement;
8.10.
Loan Documents
.
The validity or enforceability of any Loan Document shall
at any time for any reason
(other than solely as the result of an action or failure to
act on the part
of Agent) be declared to be null and
void, or a proceeding shall be commenced
by a Loan Party or
its Subsidiaries, or
by any Governmental
Authority having jurisdiction
over a Loan
Party or its
Subsidiaries, seeking to establish the
invalidity or unenforceability thereof, or
a Loan Party or its
Subsidiaries shall
deny that
such Loan
Party or
its Subsidiaries
has any
liability or
obligation
purported to be created under any Loan Document; or
8.11.
Change of
Control
.
A Change
of Control
shall occur,
whether directly
or
indirectly.
9.
RIGHTS AND REMEDIES.
9.1.
Rights and Remedies
.
Upon the occurrence and during the continuation of an
Event of Default, Agent may, and, at
the instruction of the Required Lenders, shall, in addition to
any other
rights or
remedies provided
for hereunder
or under
any other
Loan Document
or by
applicable law, do any one or more of the following:
(a)
by written notice to Borrowers, (i) declare
the principal of, and any and all
accrued and unpaid interest and fees in respect of, the Loans and all other Obligations
(other than
the Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan
Documents to
be immediately
due and
payable, whereupon
the same
shall become
and be
immediately due and payable and Borrowers shall be obligated to repay all of such Obligations in
full, without presentment, demand, protest, or further notice or other
requirements of any kind, all
of which are hereby expressly
waived by each Borrower, and (ii) direct Borrowers
to provide (and
Borrowers agree that
upon receipt
of such
notice Borrowers will
provide) Letter of
Credit
Collateralization to
Agent to
be held
as security
for Borrowers'
reimbursement obligations
for
drawings that may subsequently occur under issued and outstanding Letters of Credit;
(b)
by written notice to Borrowers,
declare the Commitments terminated,
whereupon the Commitments shall immediately be
terminated together with (i) any obligation
of
any Revolving Lender to make Revolving Loans, (ii) the obligation of the Swing
Lender to make
Swing Loans, and (iii) the obligation of Issuing Bank to issue Letters of Credit; and
(c)
exercise all
other rights
and remedies
available to
Agent or
the Lenders
under the Loan Documents, under applicable law, or in equity.
The foregoing
to the
contrary notwithstanding,
upon the
occurrence of
any Event
of Default
described in Section
8.4 or Section
8.5, in addition
to the remedies
set forth above,
without any
notice to Borrowers or any
other Person or any act
by the Lender Group, the
Commitments shall
automatically terminate and the
Obligations (other than the Bank
Product Obligations), inclusive
of the principal
of, and any
and all accrued
and unpaid interest
and fees in
respect of, the
Loans
and all other
Obligations (other than
the Bank Product
Obligations), whether evidenced
by this
Agreement or by
any of the
other Loan Documents,
shall automatically become
and be
immediately due and payable and Borrowers shall automatically
be obligated to repay all of such
Obligations in full
(including Borrowers being
obligated to provide
(and Borrowers agree
that they
will provide) (1) Letter
of Credit Collateralization
to Agent to be
held as security for
Borrowers'
reimbursement obligations in
respect of drawings
that may subsequently occur
under issued and
outstanding Letters
of Credit
and (2)
Bank Product
Collateralization to
be held
as security
for
Borrowers' or
their Subsidiaries'
obligations in
respect of
outstanding Bank
Products), without
presentment, demand,
protest, or
notice or
other requirements
of any
kind, all
of which
are
expressly waived by Borrowers.
9.2.
Remedies Cumulative
.
The rights and
remedies of the
Lender Group under
this Agreement, the
other Loan Documents,
and all
other agreements shall
be cumulative.
The
Lender Group shall have all other
rights and remedies not inconsistent herewith
as provided under
the Code, by law,
or in equity.
No exercise by the Lender
Group of one right or
remedy shall be
deemed an election, and no waiver
by the Lender Group of
any Default or Event of
Default shall
be deemed a continuing waiver.
No delay by the Lender
Group shall constitute a waiver, election,
or acquiescence by it.
10.
WAIVERS;
INDEMNIFICATION.
10.1.
Demand; Protest;
etc
.
Each Borrower
waives demand,
protest, notice
of
protest, notice of
default or dishonor, notice of
payment and nonpayment, nonpayment
at maturity,
release, compromise, settlement, extension,
or renewal of documents,
instruments, chattel paper,
and guarantees at any time held by the
Lender Group on which any Borrower may in
any way be
liable.
10.2.
The Lender Group's Liability for
Collateral
.
Each Borrower hereby agrees
that:
(a) so long as Agent complies with its obligations, if any, under the Code, the Lender Group
shall not in any way
or manner be liable
or responsible for:
(i) the safekeeping of the
Collateral,
(ii) any loss or damage thereto occurring or arising in any manner or fashion from any cause, (iii)
any diminution in the
value thereof, or (iv)
any act or default
of any carrier, warehouseman, bailee,
forwarding agency, or other
Person, and (b)
all risk of
loss, damage, or
destruction of the
Collateral
shall be borne by the Loan Parties.
10.3.
Indemnification
.
Each Borrower shall
pay, indemnify,
defend, and hold
the
Agent-Related Persons, the Lender-Related Persons, the
Issuing Bank, and each
Participant (each,
an "Indemnified Person")
harmless (to the
fullest extent permitted
by law) from
and against any
and all claims, demands,
suits, actions, investigations, proceedings,
liabilities, fines, costs,
penalties, and
damages, and
all reasonable
fees and
disbursements of
attorneys, experts,
or
consultants and
all other
costs and
expenses actually
incurred in
connection therewith
or in
connection with
the enforcement
of this
indemnification (as
and when
they are
incurred and
irrespective of whether suit is brought),
at any time asserted against,
imposed upon, or incurred by
any of
them (a)
in connection
with or
as a
result of
or related
to the
execution and
delivery
(provided, that Borrowers shall not
be liable for costs and
expenses (including attorneys' fees) of
any Lender (other than Wells
Fargo) incurred in advising, structuring, drafting, reviewing,
administering or syndicating the Loan
Documents), enforcement, performance, or administration
(including any restructuring
or workout with
respect hereto) of
this Agreement, any
of the other
Loan Documents, or
the transactions contemplated
hereby or thereby
or the monitoring
of Loan
Parties' and their Subsidiaries' compliance
with the terms of
the Loan Documents (provided,
that
the indemnification in this clause (a) shall
not extend to (i) disputes
solely between or among the
Lenders that do
not involve any
acts or omissions
of any Loan
Party, or (ii) disputes solely
between
or among the Lenders and
their respective Affiliates that
do not involve any acts
or omissions of
any Loan Party;
it being
understood and agreed
that the
indemnification in
this clause
(a) shall
extend to
Agent (but
not the
Lenders unless the
dispute involves
an act
or omission
of a
Loan
Party) relative to disputes between or among Agent on the one hand, and one or more Lenders, or
one or more
of their
Affiliates, on
the other hand,
or (iii)
any claims for
Taxes, which
shall be
governed by
Section 16,
other than
Taxes which
relate to
primarily non-Tax
claims), (b)
with
respect to any
actual or prospective
investigation, litigation, or
proceeding related to
this
Agreement, any
other Loan
Document, the
making of
any Loans
or issuance
of any
Letters of
Credit hereunder,
or the
use of
the proceeds
of the
Loans or
the Letters
of Credit
provided
hereunder (irrespective of
whether any Indemnified
Person is a
party thereto), or
any act, omission,
event, or circumstance in any
manner related thereto, and (c) in
connection with or arising out
of
any presence or release
of Hazardous Materials
at, on, under,
to or from
any assets or properties
owned, leased
or operated
by any
Loan Party
or any
of its
Subsidiaries or
any Environmental
Actions, Environmental Liabilities or
Remedial Actions related in
any way to any
such assets or
properties of
any Loan
Party or
any of
its Subsidiaries
(each and
all of
the foregoing,
the
"Indemnified Liabilities").
The foregoing to the
contrary notwithstanding, no Borrower
shall have
any obligation to any Indemnified Person under this Section 10.3 with respect to any Indemnified
Liability that a court of
competent jurisdiction finally determines
to have resulted from
the gross
negligence or willful misconduct of such Indemnified Person or its officers, directors, employees,
attorneys, or
agents.
This provision
shall survive
the termination
of this
Agreement and
the
repayment in full of the Obligations.
If any Indemnified Person makes any payment to any
other
Indemnified Person with respect to an Indemnified Liability as to which Borrowers were required
to indemnify the
Indemnified Person receiving
such payment, the
Indemnified Person making
such
payment is entitled to
be indemnified and reimbursed
by Borrowers with
respect thereto.
WITHOUT LIMITATION,
THE FOREGOING INDEMNITY SHALL APPLY
TO EACH
INDEMNIFIED PERSON WITH
RESPECT TO
INDEMNIFIED LIABILITIES
WHICH
IN WHOLE
OR IN
PART
ARE CAUSED
BY OR
ARISE OUT
OF ANY
NEGLIGENT
ACT OR OMISSION
OF SUCH INDEMNIFIED
PERSON OR OF
ANY OTHER PERSON.
11.
NOTICES.
Unless otherwise provided
in this Agreement,
all notices or
demands relating to
this
Agreement or any
other Loan Document
shall be in
writing and (except
for financial statements
and other informational documents
which may be
sent by first-class
mail, postage prepaid)
shall
be personally
delivered or
sent by
registered or
certified mail
(postage prepaid,
return receipt
requested), overnight courier, electronic mail (at such email addresses as a party may designate in
accordance herewith), or
telefacsimile.
In the case
of notices or
demands to any
Loan Party or
Agent, as the case may be, they shall be sent to the respective address set forth below:
If to any Loan Party:
c/o Administrative Borrower
800 Manor Park Drive
Columbus, OH 43228
Attn: John P.
Zimmer
Fax No. (614) 870-5051
with copies to:
Squire Patton Boggs (US) LLP
2000 Huntington Bank Center
41 S.
High Street
Columbus, OH
43215
Attn:
Donald W.
Hughes, Esq.
Fax No.:
(614) 365-2499
If to Agent:
WELLS FARGO BANK, NATIONAL
ASSOCIATION
10 S. Wacker Drive 26th Floor
Chicago, IL 60606
Attn: Loan Portfolio Manager
Fax No.:
(312) 332-0424
with copies to:
GOLDBERG KOHN LTD.
55 E. Monroe Street, Suite 3300
Chicago, Illinois 60603
Attn:
Keith G. Radner, Esq.
Fax No.:
(312) 863-7445
Any party
hereto may
change the
address at
which they
are to
receive notices
hereunder, by notice
in writing in
the foregoing manner
given to the
other party.
All notices or
demands sent in
accordance with this
Section 11,
shall be deemed
received on the
earlier of the
date of actual
receipt or three
Business Days after
the deposit thereof
in the mail;
provided, that
(a) notices sent
by overnight courier service
shall be deemed
to have been
given when received,
(b) notices by facsimile
shall be deemed
to have been
given when sent
(except that, if
not given
during normal business hours for the recipient, shall be deemed to have been given at the opening
of business on the next Business Day for the
recipient) and (c) notices by electronic mail shall
be
deemed received upon
the sender's receipt
of an acknowledgment
from the intended
recipient (such
as by the
"return receipt
requested" function,
as available, return
email or
other written
acknowledgment).
12.
CHOICE OF
LAW
AND VENUE;
JURY TRIAL
WAIVER;
JUDICIAL
REFERENCE PROVISION.
(a)
THE VALIDITY
OF THIS AGREEMENT AND
THE OTHER LOAN
DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO
THE CONTRARY IN ANOTHER
LOAN DOCUMENT IN
RESPECT OF SUCH
OTHER LOAN DOCUMENT),
THE
CONSTRUCTION, INTERPRETATION,
AND ENFORCEMENT
HEREOF AND
THEREOF,
THE RIGHTS
OF THE
PARTIES
HERETO AND
THERETO WITH
RESPECT TO
ALL MATTERS
ARISING HEREUNDER
OR THEREUNDER
OR
RELATED HERETO
OR THERETO, AND
ANY CLAIMS, CONTROVERSIES
OR
DISPUTES ARISING
HEREUNDER OR
THEREUNDER OR
RELATED HERETO
OR
THERETO SHALL
BE DETERMINED
UNDER, GOVERNED BY,
AND CONSTRUED
IN ACCORDANCE WITH THE LAWS
OF THE STATE
OF ILLINOIS
.
(b)
THE PARTIES
AGREE THAT ALL ACTIONS OR PROCEEDINGS
ARISING IN
CONNECTION WITH
THIS AGREEMENT
AND THE
OTHER LOAN
DOCUMENTS SHALL BE
TRIED AND LITIGATED
ONLY
IN THE STATE
AND, TO
THE EXTENT PERMITTED
BY APPLICABLE LAW,
FEDERAL COURTS
LOCATED
IN THE
COUNTY OF
COOK, STATE
OF ILLINOIS;
PROVIDED, THAT
ANY SUIT
SEEKING ENFORCEMENT AGAINST
ANY COLLATERAL
OR OTHER PROPERTY
MAY
BE BROUGHT,
AT AGENT'S
OPTION, IN
THE COURTS
OF ANY
JURISDICTION WHERE
AGENT ELECTS
TO BRING
SUCH ACTION
OR WHERE
SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
EACH BORROWER
AND EACH
MEMBER OF
THE LENDER
GROUP WAIVE,
TO THE
EXTENT
PERMITTED UNDER APPLICABLE
LAW,
ANY RIGHT EACH
MAY
HAVE
TO
ASSERT THE DOCTRINE OF FORUM
NON CONVENIENS OR TO OBJECT
TO
VENUE TO THE EXTENT
ANY PROCEEDING IS BROUGHT IN ACCORDANCE
WITH THIS SECTION 12(b).
(c)
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW,
EACH BORROWER AND EACH MEMBER
OF THE LENDER GROUP HEREBY
WAIVE
THEIR RESPECTIVE RIGHTS, IF ANY,
TO A JURY TRIAL OF
ANY CLAIM,
CONTROVERSY,
DISPUTE OR
CAUSE OF
ACTION DIRECTLY
OR INDIRECTLY
BASED UPON OR ARISING OUT OF ANY OF THE LOAN
DOCUMENTS OR ANY OF
THE TRANSACTIONS CONTEMPLATED
THEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER
COMMON
LAW
OR STATUTORY
CLAIMS (EACH
A "CLAIM").
EACH BORROWER
AND
EACH MEMBER
OF THE
LENDER GROUP
REPRESENT THAT
EACH HAS
REVIEWED THIS WAIVER
AND EACH KNOWINGLY
AND VOLUNTARILY
WAIVES
ITS JURY
TRIAL RIGHTS
FOLLOWING CONSULTATION
WITH LEGAL
COUNSEL.
IN THE EVENT OF LITIGATION,
A COPY OF THIS AGREEMENT MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(d)
EACH BORROWER HEREBY IRREVOCABLY
AND
UNCONDITIONALLY
SUBMITS TO
THE EXCLUSIVE
JURISDICTION OF
THE
STATE
AND FEDERAL COURTS
LOCATED IN
THE COUNTY OF
COOK AND THE
STATE
OF ILLINOIS,
IN ANY
ACTION OR
PROCEEDING ARISING
OUT OF
OR
RELATING TO
ANY LOAN DOCUMENTS, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT.
EACH OF THE PARTIES
HERETO AGREES
THAT A
FINAL JUDGMENT IN
ANY SUCH
ACTION OR PROCEEDING
SHALL BE
CONCLUSIVE AND MAY
BE ENFORCED IN
OTHER JURISDICTIONS BY
SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN
THIS AGREEMENT
OR ANY
OTHER LOAN
DOCUMENT SHALL
AFFECT ANY
RIGHT THAT
AGENT MAY
OTHERWISE HAVE
TO BRING ANY
ACTION OR
PROCEEDING RELATING
TO THIS AGREEMENT
OR ANY OTHER
LOAN
DOCUMENT AGAINST ANY
LOAN PARTY
OR ITS PROPERTIES
IN THE COURTS
OF ANY JURISDICTION.
(e)
NO CLAIM
MAY
BE MADE
BY ANY
LOAN PARTY
AGAINST
THE AGENT,
THE SWING
LENDER, ANY
OTHER LENDER,
ISSUING BANK,
OR
ANY AFFILIATE,
DIRECTOR, OFFICER,
EMPLOYEE, COUNSEL,
REPRESENTATIVE,
AGENT, OR ATTORNEY-IN-FACT
OF ANY OF
THEM FOR ANY
SPECIAL, INDIRECT,
CONSEQUENTIAL, PUNITIVE
OR EXEMPLARY
DAMAGES
OR LOSSES IN
RESPECT OF ANY
CLAIM FOR BREACH
OF CONTRACT OR
ANY
OTHER THEORY
OF LIABILITY
ARISING OUT
OF OR
RELATED TO
THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY ACT,
OMISSION, OR EVENT OCCURRING IN CONNECTION
THEREWITH, AND
EACH LOAN
PARTY
HEREBY WAIVES,
RELEASES, AND
AGREES NOT
TO SUE
UPON ANY
CLAIM FOR
SUCH DAMAGES,
WHETHER OR
NOT ACCRUED AND
WHETHER OR
NOT KNOWN
OR SUSPECTED
TO EXIST
IN
ITS FAVOR.
(f)
IN THE EVENT
ANY LEGAL PROCEEDING
IS FILED IN
A
COURT OF
THE STATE
OF CALIFORNIA (THE
"COURT") BY
OR AGAINST
ANY
PARTY
HERETO IN
CONNECTION WITH
ANY CLAIM
AND THE
WAIVER
SET
FORTH IN
CLAUSE (C)
ABOVE IS
NOT ENFORCEABLE
IN SUCH
PROCEEDING,
THE PARTIES
HERETO AGREE AS FOLLOWS:
(i)
WITH THE
EXCEPTION OF
THE MATTERS
SPECIFIED
IN SUBCLAUSE (ii) BELOW, ANY CLAIM
SHALL BE DETERMINED BY
A GENERAL
REFERENCE PROCEEDING IN
ACCORDANCE WITH
THE PROVISIONS
OF
CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS
638 THROUGH 645.1.
THE
PARTIES
INTEND THIS
GENERAL REFERENCE
AGREEMENT TO
BE
SPECIFICALLY
ENFORCEABLE.
VENUE FOR
THE REFERENCE
PROCEEDING
SHALL BE IN THE COUNTY OF LOS ANGELES, CALIFORNIA.
(ii)
THE FOLLOWING
MATTERS
SHALL NOT
BE SUBJECT
TO A
GENERAL REFERENCE PROCEEDING:
(A) NON-JUDICIAL
FORECLOSURE
OF ANY SECURITY INTERESTS IN REAL OR PERSONAL PROPERTY,
(B)
EXERCISE OF SELF-HELP REMEDIES (INCLUDING
SET-OFF OR RECOUPMENT),
(C) APPOINTMENT
OF A
RECEIVER, AND
(D) TEMPORARY,
PROVISIONAL, OR
ANCILLARY REMEDIES
(INCLUDING WRITS
OF ATTACHMENT,
WRITS OF
POSSESSION, TEMPORARY
RESTRAINING ORDERS,
OR PRELIMINARY
INJUNCTIONS).
THIS AGREEMENT DOES
NOT LIMIT THE
RIGHT OF ANY
PARTY
TO EXERCISE OR OPPOSE ANY
OF THE RIGHTS AND REMEDIES DESCRIBED
IN
CLAUSES (A) - (D) AND ANY SUCH EXERCISE OR OPPOSITION
DOES NOT WAIVE
THE RIGHT
OF ANY
PARTY
TO PARTICIPATE
IN A
REFERENCE PROCEEDING
PURSUANT TO THIS AGREEMENT WITH RESPECT TO ANY OTHER MATTER.
(iii)
UPON THE
WRITTEN REQUEST
OF ANY
PARTY,
THE
PARTIES
SHALL SELECT A SINGLE
REFEREE, WHO SHALL BE
A RETIRED
JUDGE OR JUSTICE.
IF THE PARTIES DO NOT AGREE
UPON A REFEREE WITHIN
TEN DAYS
OF SUCH WRITTEN REQUEST,
THEN, ANY PARTY
SHALL HAVE
THE
RIGHT TO REQUEST
THE COURT TO
APPOINT A REFEREE
PURSUANT TO
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 640(B).
THE REFEREE
SHALL BE APPOINTED TO
SIT WITH ALL OF THE POWERS
PROVIDED BY LAW.
PENDING APPOINTMENT
OF THE
REFEREE, THE
COURT SHALL
HAVE
THE
POWER TO ISSUE TEMPORARY OR PROVISIONAL REMEDIES.
(iv)
EXCEPT AS
EXPRESSLY
SET FORTH
IN THIS
AGREEMENT, THE
REFEREE SHALL DETERMINE THE MANNER IN WHICH THE
REFERENCE PROCEEDING IS
CONDUCTED INCLUDING THE
TIME AND PLACE
OF HEARINGS, THE ORDER OF
PRESENTATION
OF EVIDENCE, AND ALL OTHER
QUESTIONS THAT ARISE WITH RESPECT TO THE COURSE OF THE REFERENCE
PROCEEDING.
ALL PROCEEDINGS AND
HEARINGS CONDUCTED BEFORE
THE
REFEREE, EXCEPT
FOR TRIAL,
SHALL BE
CONDUCTED WITHOUT
A COURT
REPORTER, EXCEPT
WHEN ANY
PARTY
SO REQUESTS
A COURT
REPORTER
AND A
TRANSCRIPT IS
ORDERED, A
COURT REPORTER
SHALL BE
USED AND
THE REFEREE SHALL BE PROVIDED
A COURTESY COPY
OF THE TRANSCRIPT.
THE PARTY
MAKING SUCH REQUEST
SHALL HAVE
THE OBLIGATION
TO
ARRANGE FOR
AND PAY
THE COSTS
OF THE
COURT REPORTER;
PROVIDED,
THAT SUCH
COSTS, ALONG WITH
THE REFEREE'S FEES,
SHALL ULTIMATELY
BE BORNE BY THE PARTY
WHO DOES NOT PREVAIL,
AS DETERMINED BY THE
REFEREE.
(v)
THE REFEREE MAY
REQUIRE ONE OR
MORE
PREHEARING CONFERENCES.
THE PARTIES
HERETO SHALL BE ENTITLED TO
DISCOVERY,
AND THE
REFEREE SHALL
OVERSEE DISCOVERY
IN
ACCORDANCE WITH
THE RULES
OF DISCOVERY,
AND SHALL
ENFORCE ALL
DISCOVERY ORDERS
IN THE SAME
MANNER AS ANY
TRIAL COURT
JUDGE IN
PROCEEDINGS AT LAW
IN THE STATE
OF CALIFORNIA.
(vi)
THE REFEREE SHALL
APPLY THE RULES OF
EVIDENCE
APPLICABLE TO
PROCEEDINGS AT
LAW
IN THE
STATE
OF CALIFORNIA
AND
SHALL DETERMINE
ALL ISSUES
IN ACCORDANCE
WITH CALIFORNIA
SUBSTANTIVE
AND PROCEDURAL LAW.
THE REFEREE SHALL
BE EMPOWERED
TO ENTER EQUITABLE AS WELL AS
LEGAL RELIEF AND
RULE ON ANY
MOTION
WHICH WOULD
BE AUTHORIZED IN
A TRIAL, INCLUDING
MOTIONS FOR
DEFAULT
JUDGMENT OR
SUMMARY JUDGMENT.
THE REFEREE
SHALL
REPORT HIS
OR HER
DECISION, WHICH
REPORT SHALL
ALSO INCLUDE
FINDINGS OF FACT
AND CONCLUSIONS OF
LAW.
THE REFEREE SHALL
ISSUE
A DECISION
AND PURSUANT
TO CALIFORNIA
CODE OF
CIVIL PROCEDURE,
SECTION 644,
THE REFEREE'S
DECISION SHALL
BE ENTERED
BY THE
COURT
AS A JUDGMENT
IN THE
SAME MANNER AS
IF THE ACTION
HAD BEEN TRIED
BY THE
COURT.
THE FINAL JUDGMENT
OR ORDER FROM
ANY APPEALABLE
DECISION OR
ORDER ENTERED
BY THE
REFEREE SHALL
BE FULLY
APPEALABLE AS IF IT HAS BEEN ENTERED BY THE COURT.
(vii)
THE PARTIES
RECOGNIZE AND
AGREE THAT
ALL
CLAIMS RESOLVED
IN A
GENERAL REFERENCE
PROCEEDING PURSUANT
HERETO WILL BE
DECIDED BY A REFEREE AND NOT BY A JURY.
AFTER
CONSULTING
(OR HAVING
HAD THE
OPPORTUNITY TO
CONSULT)
WITH
COUNSEL OF
THEIR OWN
CHOICE, EACH
PARTY
HERETO KNOWINGLY
AND
VOLUNTARILY
AND FOR
THEIR MUTUAL
BENEFIT AGREES
THAT THIS
REFERENCE PROVISION SHALL
APPLY TO
ANY DISPUTE BETWEEN
THEM
THAT ARISES
OUT OF OR
IS RELATED
TO THIS
AGREEMENT OR
THE OTHER
LOAN DOCUMENTS.
13.
ASSIGNMENTS AND PARTICIPATIONS;
SUCCESSORS.
13.1.
Assignments and Participations
.
(a)
(i) Subject to the conditions
set forth in
clause (a)(ii) below, any
Lender
may assign
and delegate
all or
any portion
of its
rights and
duties under
the Loan
Documents
(including the Obligations
owed to it
and its Commitments)
to one or
more assignees (each,
an
"Assignee"), with the
prior written consent
(such consent not
be unreasonably withheld
or delayed)
of:
(A)
Borrowers; provided, that no
consent of Borrowers shall
be
required (1) if a
Default or Event of
Default has occurred and
is continuing, or (2)
in connection
with an assignment
to a Person
that is a
Lender or an
Affiliate (other than
natural persons) of
a
Lender; provided
further,
that Borrowers
shall be
deemed to
have consented
to a
proposed
assignment unless Administrative Borrower objects thereto by written notice to Agent within five
Business Days after having received notice thereof; and
(B)
Agent, Swing Lender, and Issuing Bank.
(ii)
Assignments shall be subject to the
following additional conditions:
(A)
no assignment may be made to a natural person,
(B)
no assignment may be made to a Loan Party,
or an Affiliate
of a Loan Party,
(C)
the amount
of the
Commitments and
the other
rights and
obligations of the
assigning Lender hereunder
and under the other
Loan Documents subject
to each
such assignment (determined as
of the date the
Assignment and Acceptance with
respect to such
assignment is
delivered to
Agent) shall
be in
a minimum
amount (unless
waived by
Agent) of
$5,000,000 (except such
minimum amount shall
not apply to (I)
an assignment or
delegation by
any Lender to any other Lender,
an Affiliate of any Lender,
or a Related Fund of such Lender,
or
(II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such
new Lender to
the extent that
the aggregate amount
to be assigned
to all such
new Lenders is
at
least $5,000,000),
(D)
each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under this Agreement,
(E)
the parties to
each assignment
shall execute
and deliver
to
Agent an Assignment and Acceptance; provided, that
Borrowers and Agent may continue to deal
solely and
directly with
the assigning
Lender in
connection with
the interest
so assigned
to an
Assignee until written
notice of such
assignment, together with
payment instructions, addresses,
and related information with respect to the Assignee, have been given to Borrowers and Agent by
such Lender and the Assignee,
(F)
unless waived by
Agent, the assigning
Lender or Assignee
has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G)
the assignee, if
it is not
a Lender,
shall deliver to
Agent an
Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire").
(b)
From and after
the date that
Agent receives the
executed Assignment and
Acceptance and, if applicable, payment
of the required processing fee,
(i) the Assignee thereunder
shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned
to it pursuant
to such Assignment
and Acceptance, shall
be a "Lender"
and shall have
the rights
and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the
extent that
rights and
obligations hereunder
and under
the other
Loan Documents
have been
assigned by
it pursuant
to such
Assignment and
Acceptance, relinquish
its rights
(except with
respect to Section 10.3) and be released from any future obligations under this Agreement (and in
the case of an
Assignment and Acceptance covering
all or the remaining
portion of an assigning
Lender's rights and obligations under this
Agreement and the other Loan Documents, such
Lender
shall cease to be a party hereto
and thereto); provided, that nothing contained
herein shall release
any assigning Lender
from obligations that
survive the termination
of this Agreement,
including
such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c)
By executing and delivering an Assignment and
Acceptance, the assigning
Lender thereunder and the Assignee
thereunder confirm to and agree
with each other and the
other
parties hereto as
follows:
(i) other than
as provided in
such Assignment and
Acceptance, such
assigning Lender makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or
representations made in or in
connection with this Agreement or
the execution,
legality, validity,
enforceability, genuineness,
sufficiency or
value of
this
Agreement or
any other
Loan Document
furnished pursuant
hereto, (ii)
such assigning
Lender
makes no representation
or warranty and
assumes no responsibility
with respect to
the financial
condition of any
Loan Party or
the performance
or observance by
any Loan Party
of any of
its
obligations under this
Agreement or any
other Loan Document
furnished pursuant hereto,
(iii) such
Assignee confirms
that it
has received
a copy
of this
Agreement, together
with such
other
documents and
information as
it has
deemed appropriate
to make
its own
credit analysis
and
decision to enter
into such Assignment
and Acceptance, (iv)
such Assignee will,
independently
and without reliance upon
Agent, such assigning Lender
or any other Lender,
and based on such
documents and information
as it shall
deem appropriate at
the time, continue
to make its
own credit
decisions in
taking or
not taking
action under
this Agreement,
(v) such
Assignee appoints
and
authorizes Agent to take
such actions and to
exercise such powers under
this Agreement and the
other Loan Documents
as are delegated
to Agent, by
the terms hereof
and thereof, together
with
such powers as
are reasonably incidental thereto,
and (vi) such Assignee
agrees that it will
perform
all of the obligations which by the terms of this Agreement are required
to be performed by it as a
Lender.
(d)
Immediately upon
Agent's receipt
of the
required processing
fee, if
applicable, and
delivery of
notice to
the assigning
Lender pursuant
to Section
13.1(b), this
Agreement shall be deemed
to be amended to
the extent, but only
to the extent, necessary
to reflect
the addition of the
Assignee and the resulting adjustment
of the Commitments arising therefrom.
The Commitment
allocated to
each Assignee
shall reduce
such Commitments
of the
assigning
Lender
pro tanto
.
(e)
Any Lender may
at any time
sell to one
or more commercial
banks, financial
institutions, or
other Persons
(a "Participant")
participating interests
in all
or any
portion of
its
Obligations, its Commitment,
and the other
rights and interests
of that Lender
(the "Originating
Lender") hereunder and
under the other
Loan Documents; provided,
that (i) the
Originating Lender
shall remain a "Lender" for all purposes of
this Agreement and the other Loan Documents and
the
Participant receiving the participating interest in the Obligations, the Commitments, and the other
rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder
or under the
other Loan Documents and
the Originating Lender's obligations
under this Agreement
shall remain
unchanged, (ii)
the Originating
Lender shall
remain solely
responsible for
the
performance of such
obligations, (iii)
Borrowers, Agent, and
the Lenders shall
continue to deal
solely and directly with the Originating Lender in connection with the Originating Lender's rights
and obligations under this Agreement
and the other Loan
Documents, (iv) no Lender shall
transfer
or grant
any participating
interest under
which the
Participant has
the right
to approve
any
amendment to,
or any
consent or
waiver with
respect to,
this Agreement
or any
other Loan
Document, except
to the
extent such
amendment to,
or consent
or waiver
with respect
to this
Agreement or
of any
other Loan
Document would
(A) extend
the final
maturity date
of the
Obligations hereunder
in which
such Participant
is participating,
(B) reduce
the interest
rate
applicable to the Obligations
hereunder in which such
Participant is participating, (C)
release all
or substantially all of
the Collateral or guaranties
(except to the extent
expressly provided herein
or in any of the Loan Documents) supporting the Obligations hereunder
in which such Participant
is participating, (D) postpone the payment
of, or reduce the amount of, the interest
or fees payable
to such Participant through
such Lender (other than
a waiver of default
interest), or (E) decrease
the amount
or postpone
the due
dates of
scheduled principal
repayments or
prepayments or
premiums payable to such Participant through such
Lender, (v) no participation shall
be sold to a
natural person, (vi) no participation shall
be sold to a Loan Party,
or an Affiliate of a
Loan Party,
and (vii) all amounts
payable by Borrowers hereunder
shall be determined as
if such Lender had
not sold such participation, except that, if amounts outstanding under this
Agreement are due and
unpaid, or shall have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each
Participant shall be deemed to
have the right of set
off in respect of
its
participating interest in amounts owing under this
Agreement to the same extent as
if the amount
of its participating interest were owing directly to
it as a Lender under this Agreement.
The rights
of any
Participant only
shall be
derivative through
the Originating
Lender with
whom such
Participant participates and no Participant shall have any rights under this Agreement or the other
Loan Documents or any direct rights as to the other Lenders, Agent, Borrowers, the Collateral, or
otherwise in respect of the Obligations.
No Participant shall have the right
to participate directly
in the making of decisions by the Lenders among themselves.
(f)
In connection with any
such assignment or participation
or proposed
assignment or participation or any grant of a security interest in, or pledge of, its
rights under and
interest in this
Agreement, a Lender
may, subject
to the provisions
of Section 17.9,
disclose all
documents and information which it now or hereafter may have relating to any Loan Party and its
Subsidiaries and their respective businesses.
(g)
Any other provision in this Agreement notwithstanding,
any Lender may at
any time create a security interest
in, or pledge, all or any
portion of its rights under and
interest in
this Agreement to secure obligations of such
Lender, including any pledge in favor of any Federal
Reserve Bank
in accordance
with Regulation
A of
the Federal
Reserve Bank
or U.S.
Treasury
Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge
or security
interest in any manner permitted under applicable law; provided, that no such pledge shall release
such Lender from any
of its obligations hereunder
or substitute any such
pledgee or assignee for
such Lender as a party hereto.
(h)
Agent (as a non-fiduciary agent on
behalf of Borrowers) shall maintain,
or
cause to be maintained, a register
(the "Register") on which it enters the name
and address of each
Lender as
the registered
owner of
the Term
Loan (and
the principal
amount thereof
and stated
interest thereon) held by such Lender (each, a "Registered Loan").
Other than in connection with
an assignment by a Lender of
all or any portion of
its portion of the Term
Loan to an Affiliate of
such Lender or
a Related Fund
of such Lender
(i) a Registered
Loan (and the
registered note, if
any, evidencing the same) may be assigned or sold in whole or in part only
by registration of such
assignment or sale
on the Register
(and each registered
note shall expressly
so provide) and
(ii)
any assignment
or sale
of all
or part
of such
Registered Loan
(and the
registered note,
if any,
evidencing the
same) may
be effected
only by
registration of
such assignment
or sale
on the
Register, together
with the
surrender of
the registered
note, if
any, evidencing
the same
duly
endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the
holder of such registered note, whereupon, at
the request of the designated assignee(s)
or
transferee(s), one or
more new registered
notes in the
same aggregate principal
amount shall be
issued to the designated assignee(s)
or transferee(s).
Prior to the registration of
assignment or sale
of any Registered Loan
(and the registered note,
if any evidencing the
same), Borrowers shall treat
the Person in
whose name such
Registered Loan (and
the registered note,
if any,
evidencing the
same) is registered as the owner thereof for the purpose of receiving all payments thereon and for
all other
purposes, notwithstanding
notice to
the contrary.
In the
case of
any assignment
by a
Lender of all or any portion
of its Term
Loan to an Affiliate of such
Lender or a Related Fund of
such Lender, and which
assignment is not recorded
in the Register, the
assigning Lender, on behalf
of Borrowers, shall maintain a register comparable to the Register.
(i)
In the event that
a Lender sells participations
in the Registered Loan,
such
Lender, as a non-fiduciary
agent on behalf
of Borrowers, shall
maintain (or cause
to be maintained)
a register on which it
enters the name of
all participants in the Registered
Loans held by it
(and the
principal amount
(and stated
interest thereon)
of the
portion of
such Registered
Loans that
is
subject to such participations)
(the "Participant Register").
A Registered Loan (and
the Registered
Note, if any,
evidencing the same) may be participated
in whole or in part only
by registration of
such participation on
the Participant Register (and
each registered note
shall expressly so provide).
Any participation of such
Registered Loan (and the
registered note, if any,
evidencing the same)
may be
effected only
by the
registration of
such participation
on the
Participant Register.
No
Lender shall have
any obligation to
disclose all or
any portion of
the Participant Register
(including
the identity
of any
Participant or
any information
relating to
a Participant's
interest in
any
commitments, loans,
letters of credit
or its other
obligations under any
Loan Document) to
any
Person except to
the extent that
such disclosure is
necessary to establish
that such commitment,
loan, letter of
credit or other
obligation is in
registered form under
Section 5f.103-1(c) of
the United
States Treasury
Regulations.
The entries
in the
Participant Register
shall be
conclusive absent
manifest error, and such Lender shall treat
each person whose name is recorded in the Participant
Register as the owner
of such participation for
all purposes of this Agreement
notwithstanding any
notice to the contrary.
For the avoidance of doubt, the Agent (in its capacity as Agent) shall have
no responsibility for maintaining a Participant Register.
(j)
Agent shall make
a copy of
the Register (and
each Lender shall
make a copy
of its Participant Register to the extent it has one) available for review by Borrowers from time to
time as Borrowers may reasonably request.
13.2.
Successors
.
This Agreement shall bind
and inure to the
benefit of the
respective successors and
assigns of each
of the parties;
provided, that no
Borrower may assign
this Agreement or
any rights or
duties hereunder without
the Lenders' prior
written consent and
any prohibited
assignment shall
be absolutely void
ab
initio
.
No consent to
assignment by the
Lenders shall release
any Borrower from
its Obligations.
A Lender may
assign this Agreement
and the
other Loan
Documents and
its rights
and duties
hereunder and
thereunder pursuant
to
Section 13.1 and, except as
expressly required pursuant to Section
13.1, no consent or
approval by
any Borrower is required in connection with any such assignment.
14.
AMENDMENTS; WAIVERS.
14.1.
Amendments and Waivers
.
(a)
No amendment,
waiver or
other modification
of any
provision of
this
Agreement or any other Loan
Document (other than the
Fee Letter), and no consent
with respect
to any departure by
any Borrower therefrom, shall be effective unless
the same shall be in writing
and signed by the Required Lenders (or
by Agent at the written request
of the Required Lenders)
and the Loan Parties that are party thereto and then any such waiver
or consent shall be effective,
but only in
the specific instance
and for the
specific purpose for
which given; provided,
that no
such waiver,
amendment, or
consent shall,
unless in
writing and
signed by
all of
the Lenders
directly affected thereby and all of the Loan
Parties that are party thereto, do any
of the following:
(i)
increase the
amount of
or extend
the expiration
date of
any
Commitment of any Lender or amend, modify, or eliminate the last sentence of Section 2.4(c)(i),
(ii)
postpone or
delay any
date fixed
by this
Agreement or
any other
Loan Document for
any payment of
principal, interest, fees,
or other amounts
due hereunder or
under any other Loan Document,
(iii)
reduce the principal of,
or the rate
of interest on,
any loan or other
extension of credit hereunder, or reduce
any fees or other amounts
payable hereunder or under
any
other Loan Document (except (y) in connection
with the waiver of applicability of Section
2.6(c)
(which waiver shall be effective with the written consent of the Required Lenders),
(iv)
amend, modify,
or eliminate
this Section
or any
provision of
this
Agreement providing for consent or other action by all Lenders,
(v)
amend, modify, or eliminate Section 3.1 or 3.2,
(vi)
amend, modify, or eliminate Section 15.11
,
(vii)
other than
as permitted
by Section
15.11, release
or contractually
subordinate Agent's Lien in and to any of the Collateral,
(viii)
amend, modify, or
eliminate the definitions of "Required Lenders",
Supermajority Lenders or "Pro Rata Share",
(ix)
other than in connection
with a merger,
amalgamation, liquidation,
dissolution or
sale of
such Person
expressly permitted
by the
terms hereof
or the
other Loan
Documents, release any
Borrower or any Guarantor
from any obligation for
the payment of money
or consent to the assignment
or transfer by any Borrower
or any Guarantor of
any of its rights or
duties under this Agreement or the other Loan Documents,
(x)
amend, modify,
or eliminate any
of the provisions
of Section
2.4(b)(i),
(ii) or (iii) or Section 2.4(e) or (f),
(xi)
at any time that any Real Property
is included in the Collateral, add,
increase, renew or extend
any Loan, Letter of
Credit or Commitment hereunder
until the
completion of flood due diligence, documentation and coverage as required by the Flood Laws or
as otherwise satisfactory to all Lenders, or
(xii)
amend, modify,
or eliminate any
of the provisions
of Section 13.1
with respect to assignments to, or participations with,
Persons who are Loan Parties, or Affiliates
of a Loan Party;
(b)
No amendment,
waiver, modification,
or consent
shall amend,
modify,
waive, or eliminate,
(i)
the definition of, or
any of the terms
or provisions of, the
Fee Letter,
without the written consent
of Agent and Borrowers (and
shall not require the
written consent of
any of the Lenders),
(ii)
any provision of Section 15 pertaining to Agent, or any other rights
or duties of Agent
under this Agreement or
the other Loan Documents,
without the written consent
of Agent, Borrowers, and the Required Lenders;
(c)
No amendment, waiver, modification, elimination, or consent shall amend,
without written consent of Agent,
Borrowers and the Supermajority Lenders, modify, or eliminate
the definition of Borrowing Base or any of the defined terms
(including the definitions of Eligible
Accounts, Eligible Finished Goods
Inventory, Eligible Raw Material Inventory, Eligible Work-in-
Process Inventory,
Eligible Inventory,
Eligible Investment Grade
Accounts, Eli
gible Non-
Investment Grade
Accounts, Eligible
M&E and
Eligible Real
Property) that
are used
in such
definition to
the extent
that any
such change
results in
more credit
being made
available to
Borrowers based
upon the
Borrowing Base,
but not
otherwise, or
the definition
of Maximum
Revolver Amount, or change Section 2.1(c);
(d)
No amendment, waiver, modification, elimination, or consent shall amend,
modify, or
waive any
provision of
this Agreement
or the
other Loan
Documents pertaining
to
Issuing Bank, or any
other rights or duties
of Issuing Bank under
this Agreement or the other
Loan
Documents, without
the written
consent of
Issuing Bank,
Agent, Borrowers,
and the
Required
Lenders;
(e)
No amendment, waiver, modification, elimination, or consent shall amend,
modify, or
waive any
provision of
this Agreement
or the
other Loan
Documents pertaining
to
Swing Lender,
or any other
rights or duties
of Swing Lender
under this Agreement
or the other
Loan Documents,
without the
written consent
of Swing
Lender, Agent,
Borrowers, and
the
Required Lenders; and
(f)
Anything in
this Section
14.1 to
the contrary
notwithstanding, (i)
any
amendment, modification, elimination, waiver, consent, termination, or release of, or with respect
to, any provision of this Agreement or any other Loan Document that relates only to the
relationship of
the Lender
Group among
themselves, and
that does
not affect
the rights
or
obligations of any
Loan Party,
shall not require
consent by or
the agreement of
any Loan Party,
(ii) any amendment,
waiver, modification,
elimination, or
consent of
or with
respect to
any
provision of this Agreement or any
other Loan Document may be entered
into without the consent
of, or
over the
objection of,
any Defaulting
Lender other
than any
of the
matters governed
by
Section 14.1(a)(i) through (iii) that affect
such Lender, and (iii)
any amendment contemplated by
Section 2.12(d)(iii)
of this
Agreement in
connection with
a Benchmark
Transition Event
or an
Early Opt-in Election shall be effective as contemplated by such Section 2.12(d)(iii) hereof.
14.2.
Replacement of Certain Lenders
.
(a)
If (i)
any action
to be
taken by
the Lender
Group or
Agent hereunder
requires the consent,
authorization, or agreement of
all Lenders or all
Lenders affected thereby and
if such action has
received the consent,
authorization, or agreement
of the Required
Lenders but
not of all Lenders or
all Lenders affected thereby,
or (ii) any Lender makes
a claim for
compensation under Section 16, then Borrowers
or Agent, upon at least
five Business Days prior
irrevocable notice,
may permanently
replace any
Lender that
failed to
give its
consent,
authorization, or
agreement (a "Non-Consenting
Lender") or
any Lender
that made
a claim
for
compensation (a "Tax Lender") with
one or more Replacement Lenders, and the Non-Consenting
Lender or Tax Lender,
as applicable, shall have no right to refuse to be replaced hereunder.
Such
notice to
replace the
Non-Consenting Lender
or Tax
Lender, as
applicable, shall
specify an
effective date for such replacement,
which date shall not be
later than 15 Business Days after
the
date such notice is given.
(b)
Prior to the effective date of such replacement, the
Non-Consenting Lender
or Tax
Lender, as applicable,
and each Replacement Lender
shall execute and deliver
an
Assignment and
Acceptance, subject
only to
the Non-Consenting
Lender or
Tax Lender,
as
applicable, being repaid in
full its share of
the outstanding Obligations (without
any premium or
penalty of any kind whatsoever,
but including (i) all interest,
fees and other amounts that
may be
due in payable in respect
thereof, (ii) an assumption of
its Pro Rata Share of
participations in the
Letters of
Credit, and
(iii) Funding
Losses).
If the
Non-Consenting Lender
or Tax
Lender, as
applicable, shall refuse or
fail to execute and
deliver any such Assignment
and Acceptance prior
to the
effective date
of such
replacement, Agent may,
but shall
not be
required to, execute
and
deliver such
Assignment and
Acceptance in
the name
or and
on behalf
of the
Non-Consenting
Lender or Tax Lender, as applicable, and
irrespective of whether Agent
executes and delivers such
Assignment and Acceptance,
the Non-Consenting Lender
or Tax
Lender, as
applicable, shall be
deemed to have
executed and delivered
such Assignment and
Acceptance.
The replacement of
any Non-Consenting Lender
or Tax
Lender, as applicable,
shall be made
in accordance with
the
terms of Section 13.1.
Until such time as
one or more Replacement Lenders
shall have acquired
all of
the Obligations,
the Commitments,
and the
other rights and obligations
of the
Non-
Consenting Lender or Tax Lender, as applicable, hereunder and under the other Loan Documents,
the Non-Consenting Lender or
Tax Lender, as applicable, shall remain obligated to
make the Non-
Consenting Lender's or
Tax Lender's,
as applicable,
Pro Rata Share
of Revolving Loans
and to
purchase a
participation in
each Letter
of Credit,
in an
amount equal
to its
Pro Rata
Share of
participations in such Letters of Credit.
14.3.
No Waivers;
Cumulative Remedies
.
No failure by
Agent or any
Lender to
exercise any right, remedy, or option under this Agreement or any other
Loan Document, or delay
by Agent or
any Lender in
exercising the same,
will operate as
a waiver thereof.
No waiver by
Agent or any Lender
will be effective unless
it is in writing,
and then only to
the extent specifically
stated.
No waiver by Agent
or any Lender on
any occasion shall
affect or diminish
Agent's and
each Lender's rights thereafter to require strict performance by Borrowers of any provision of this
Agreement.
Agent's and each
Lender's rights under
this Agreement and
the other Loan
Documents
will be cumulative and
not exclusive of any other
right or remedy that Agent
or any Lender may
have.
15.
AGENT; THE LENDER GROUP.
15.1.
Appointment and Authorization
of Agent
.
Each Lender hereby
designates
and appoints Wells
Fargo as its
agent under this
Agreement and the
other Loan Documents
and
each Lender hereby irrevocably authorizes (and by entering into a Bank Product Agreement,
each
Bank Product Provider shall
be deemed to designate, appoint,
and authorize) Agent to execute
and
deliver each of the other Loan Documents on its behalf and to take such other action on its behalf
under the provisions
of this Agreement
and each other
Loan Document and
to exercise such
powers
and perform such duties
as are expressly delegated to
Agent by the terms
of this Agreement or any
other Loan
Document, together
with such
powers as
are reasonably
incidental thereto.
Agent
agrees to act
as agent for
and on behalf
of the Lenders
(and the Bank
Product Providers) on
the
conditions contained in this Section 15.
Any provision to the contrary contained
elsewhere in this
Agreement or in
any other Loan
Document notwithstanding, Agent
shall not have
any duties or
responsibilities, except those expressly set forth herein or in
the other Loan Documents, nor shall
Agent have or
be deemed
to have any
fiduciary relationship
with any Lender
(or Bank Product
Provider), and no
implied covenants,
functions, responsibilities,
duties, obligations or
liabilities
shall be read into
this Agreement or any
other Loan Document or
otherwise exist against Agent.
Without limiting the generality of
the foregoing, the use of the term "agent"
in this Agreement or
the other
Loan Documents
with reference to
Agent is
not intended
to connote
any fiduciary or
other implied
(or express)
obligations arising
under agency
doctrine of
any applicable
law.
Instead, such term is used merely as
a matter of market custom, and is intended
to create or reflect
only a representative relationship
between independent contracting parties.
Each Lender hereby
further authorizes (and by entering
into a Bank Product
Agreement, each Bank Product
Provider
shall be deemed to authorize) Agent
to act as the secured party
under each of the Loan Documents
that create
a Lien
on any
item of
Collateral.
Except as
expressly otherwise
provided in
this
Agreement, Agent shall
have and may
use its sole
discretion with respect
to exercising or
refraining
from exercising any discretionary rights
or taking or refraining from taking
any actions that Agent
expressly is
entitled to
take or
assert under
or pursuant
to this
Agreement and
the other
Loan
Documents.
Without limiting the generality
of the foregoing, or
of any other
provision of the
Loan
Documents that provides rights or powers to Agent, Lenders agree that Agent shall have the right
to exercise
the following
powers as
long as
this Agreement
remains in
effect:
(a) maintain,
in
accordance with its customary
business practices, ledgers
and records reflecting the
status of the
Obligations, the Collateral, payments and proceeds
of Collateral, and related matters, (b)
execute
or file any and all financing or
similar statements or notices, amendments, renewals, supplements,
documents, instruments, proofs of claim, notices and other written agreements with respect to the
Loan Documents, or
to take any
other action with
respect to any
Collateral or Loan
Documents
which may be necessary to
perfect, and maintain perfected, the
security interests and Liens
upon
Collateral pursuant to the
Loan Documents, (c) make
Revolving Loans, for itself
or on behalf of
Lenders, as
provided in
the Loan
Documents, (d)
exclusively receive,
apply, and
distribute
payments and proceeds
of the Collateral
as provided in
the Loan Documents,
(e) open and
maintain
such bank accounts
and cash management
arrangements as Agent
deems necessary and
appropriate
in accordance
with the
Loan Documents
for the
foregoing purposes,
(f) perform,
exercise, and
enforce any and all other rights and remedies of the Lender Group with respect to any Loan Party
or its Subsidiaries, the Obligations, the Collateral, or otherwise
related to any of same as provided
in the Loan Documents, and
(g) incur and pay such
Lender Group Expenses as Agent
may deem
necessary or appropriate for the performance and fulfillment of its functions and powers pursuant
to the Loan Documents.
15.2.
Delegation of Duties
.
Agent may execute
any of its
duties under this
Agreement or any other Loan Document by or through agents, employees or attorneys in fact and
shall be entitled to advice of counsel concerning all matters pertaining
to such duties.
Agent shall
not be responsible for the negligence or
misconduct of any agent or attorney in fact
that it selects
as long as such selection was made without gross negligence or willful misconduct.
15.3.
Liability of Agent
.
None of the Agent-Related
Persons shall (a) be
liable for
any action taken or
omitted to be taken
by any of them
under or in connection
with this Agreement
or any other
Loan Document or
the transactions contemplated
hereby (except
for its own
gross
negligence or willful misconduct),
or (b) be responsible
in any manner to
any of the Lenders
(or
Bank Product Providers) for any recital, statement,
representation or warranty made by any Loan
Party or any
of its Subsidiaries
or Affiliates,
or any officer
or director thereof,
contained in this
Agreement or
in any
other Loan
Document, or
in any
certificate, report,
statement or
other
document referred to
or provided for
in, or received
by Agent under
or in connection
with, this
Agreement or any
other Loan Document,
or the validity, effectiveness, genuineness,
enforceability
or sufficiency of this Agreement
or any other Loan
Document, or for any
failure of any Loan
Party
or its Subsidiaries or any
other party to any Loan
Document to perform its obligations
hereunder
or thereunder.
No Agent-Related Person
shall be under
any obligation to
any Lenders (or
Bank
Product Providers) to
ascertain or to
inquire as
to the
observance or performance
of any of
the
agreements contained
in, or
conditions of,
this Agreement
or any
other Loan
Document, or
to
inspect the
books and
records or
properties of
any Loan
Party or
its Subsidiaries.
No Agent-
Related Person shall
have any liability
to any Lender,
and Loan Party
or any of
their respective
Affiliates if any request for
a Loan, Letter of
Credit or other extension of
credit was not authorized
by the applicable Borrower.
Agent shall not be
required to take any action
that, in its opinion
or
in the opinion of
its counsel, may expose
it to liability or
that is contrary to
any Loan Document
or applicable law or regulation.
15.4.
Reliance by Agent
.
Agent shall be entitled to rely, and shall be fully
protected
in relying,
upon any
writing, resolution,
notice, consent,
certificate, affidavit,
letter, telegram,
telefacsimile or other electronic method of transmission, telex or telephone message, statement or
other document or conversation believed by it to be genuine and
correct and to have been signed,
sent, or made
by the proper
Person or Persons,
and upon advice
and statements of
legal counsel
(including counsel
to Borrowers
or counsel
to any
Lender), independent
accountants and
other
experts selected by Agent.
Agent shall be fully
justified in failing
or refusing to take
any action
under this Agreement or any other Loan Document unless Agent shall first receive such advice or
concurrence of the Lenders as it
deems appropriate and until such instructions are
received, Agent
shall act,
or refrain
from acting,
as it
deems advisable.
If Agent
so requests,
it shall
first be
indemnified to
its reasonable
satisfaction by
the Lenders
(and, if it
so elects,
the Bank
Product
Providers) against any and all liability and expense that may be incurred by it by reason of taking
or continuing to
take any such
action.
Agent shall in
all cases be fully
protected in acting,
or in
refraining from acting,
under this Agreement
or any other
Loan Document in
accordance with a
request or consent of the Required Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders (and Bank Product Providers).
15.5.
Notice of
Default or
Event of
Default
.
Agent shall
not be
deemed to have
knowledge or notice of the
occurrence of any Default or
Event of Default, except
with respect to
defaults in the payment of
principal, interest, fees, and
expenses required to be
paid to Agent for
the account of the
Lenders and, except with
respect to Events of
Default of which Agent
has actual
knowledge, unless Agent shall have received written notice from a Lender or Borrowers referring
to this Agreement,
describing such Default
or Event of
Default, and stating
that such notice
is a
"notice of default."
Agent promptly will notify the Lenders of its receipt of any
such notice or of
any Event
of Default
of which
Agent has
actual knowledge.
If any
Lender obtains
actual
knowledge of any
Event of Default,
such Lender promptly
shall notify the
other Lenders and
Agent
of such Event
of Default.
Each Lender shall
be solely responsible
for giving any
notices to
its
Participants, if
any.
Subject to
Section 15.4,
Agent shall
take such action
with respect to
such
Default or
Event of
Default as
may be
requested by
the Required
Lenders in
accordance with
Section 9; provided,
that unless and
until Agent has
received any such
request, Agent may
(but
shall not be obligated to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable.
15.6.
Credit Decision
.
Each Lender (and
Bank Product Provider) acknowledges
that
none of the Agent-Related Persons
has made any representation or
warranty to it, and that
no act
by Agent hereinafter taken, including any review of the affairs of any Loan Party and its
Subsidiaries or
Affiliates, shall
be deemed
to constitute
any representation
or warranty
by any
Agent-Related Person to any Lender (or Bank
Product Provider).
Each Lender represents (and by
entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to
represent) to Agent that
it has, independently and
without reliance upon any
Agent-Related Person
and based on such due diligence,
documents and information as it
has deemed appropriate, made
its own appraisal of and
investigation into the business, prospects,
operations, property, financial
and other condition
and creditworthiness of
each Borrower or
any other Person
party to a
Loan
Document, and
all applicable
bank regulatory
laws relating
to the
transactions contemplated
hereby, and made its own decision to enter into this Agreement and
to extend credit to Borrowers.
Each Lender also represents (and by entering into a Bank Product Agreement, each Bank Product
Provider shall be
deemed to represent)
that it will,
independently and without
reliance upon any
Agent-Related Person and based on such documents and information
as it shall deem appropriate
at the
time, continue
to make
its own
credit analysis,
appraisals and
decisions in
taking or
not
taking action
under this
Agreement and
the other
Loan Documents,
and to
make such
investigations as
it deems
necessary to
inform itself
as to
the business,
prospects, operations,
property, financial and other condition and creditworthiness of each
Borrower or any other Person
party to
a Loan
Document.
Except for
notices, reports,
and other
documents expressly
herein
required to be furnished to the Lenders
by Agent, Agent shall not have
any duty or responsibility
to provide any Lender (or
Bank Product Provider) with any
credit or other information concerning
the business, prospects, operations, property,
financial and other condition
or creditworthiness of
any Borrower or any other
Person party to a Loan
Document that may come into the
possession of
any of
the Agent-Related
Persons.
Each Lender
acknowledges (and
by entering
into a
Bank
Product Agreement, each
Bank Product Provider
shall be deemed
to acknowledge) that
Agent does
not have any duty or
responsibility, either
initially or on a
continuing basis (except to
the extent,
if any, that is
expressly specified herein) to provide such Lender (or Bank Product Provider)
with
any credit or
other information with
respect to any
Borrower, its Affiliates or
any of their
respective
business, legal, financial or other
affairs, and irrespective of
whether such information came into
Agent's or
its Affiliates'
or representatives'
possession before
or after
the date
on which
such
Lender became
a party
to this
Agreement (or such
Bank Product
Provider entered
into a
Bank
Product Agreement).
15.7.
Costs and
Expenses; Indemnification
.
Agent may
incur and
pay Lender
Group Expenses
to the
extent Agent
reasonably deems
necessary or
appropriate for
the
performance and fulfillment of its functions, powers, and obligations pursuant to the Loan
Documents, including
court costs,
attorneys' fees
and expenses,
fees and
expenses of
financial
accountants, advisors, consultants, and
appraisers, costs of collection
by outside collection
agencies, auctioneer fees and
expenses, and costs of
security guards or insurance
premiums paid
to maintain the Collateral, whether or not Borrowers are obligated to reimburse Agent or Lenders
for such expenses
pursuant to this
Agreement or otherwise.
Agent is authorized
and directed to
deduct and
retain sufficient
amounts from
payments or
proceeds of
the Collateral
received by
Agent to reimburse
Agent for such
out-of-pocket costs and
expenses prior to
the distribution of
any amounts to
Lenders (or Bank
Product Providers).
In the event
Agent is
not reimbursed for
such costs and expenses
by the Loan Parties
and their Subsidiaries, each
Lender hereby agrees that
it is and shall be obligated
to pay to Agent such Lender's
ratable share thereof.
Whether or not the
transactions contemplated hereby are consummated, each of the
Lenders, on a ratable basis, shall
indemnify and defend the Agent-Related Persons (to the extent not reimbursed by or on behalf of
Borrowers and without limiting the obligation
of Borrowers to do so)
from and against any and
all
Indemnified Liabilities;
provided, that
no Lender
shall be
liable for the
payment to
any Agent-
Related Person of any portion of
such Indemnified Liabilities resulting solely from
such Person's
gross negligence or
willful misconduct nor
shall any Lender
be liable for
the obligations of
any
Defaulting Lender
in failing
to make
a Revolving
Loan or other
extension of
credit hereunder.
Without limitation
of the
foregoing, each
Lender shall
reimburse Agent
upon demand
for such
Lender's ratable share
of any costs
or out of
pocket expenses
(including attorneys, accountants,
advisors, and consultants
fees and expenses)
incurred by Agent in
connection with the preparation,
execution, delivery,
administration, modification, amendment,
or enforcement (whether
through
negotiations, legal
proceedings or
otherwise) of,
or legal
advice in
respect of
rights or
responsibilities under, this Agreement or any other Loan Document to the extent that Agent is not
reimbursed for such expenses by or on behalf
of Borrowers.
The undertaking in this Section shall
survive the payment of all Obligations hereunder and the resignation or replacement of Agent.
15.8.
Agent in Individual Capacity
.
Wells
Fargo and its Affiliates may make loans
to, issue letters
of credit for
the account of,
accept deposits from,
provide Bank Products
to, acquire
Equity Interests in,
and generally
engage in
any kind
of banking,
trust, financial
advisory,
underwriting, or other
business with any
Loan Party and
its Subsidiaries and
Affiliates and
any
other Person party to any Loan Document as though Wells
Fargo were not Agent hereunder, and,
in each case, without
notice to or consent
of the other members
of the Lender Group.
The other
members of the
Lender Group acknowledge
(and by entering
into a Bank
Product Agreement, each
Bank Product Provider
shall be deemed
to acknowledge) that,
pursuant to such
activities, Wells
Fargo or its Affiliates may
receive information regarding a
Loan Party or its
Affiliates or any other
Person party to any Loan Documents that is subject to confidentiality obligations in favor of such
Loan Party or such
other Person and that
prohibit the disclosure of
such information to the
Lenders
(or Bank Product Providers), and the Lenders
acknowledge (and by entering into
a Bank Product
Agreement, each
Bank Product
Provider shall
be deemed
to acknowledge)
that, in
such
circumstances (and in
the absence of
a waiver of
such confidentiality obligations,
which waiver
Agent will use
its reasonable best
efforts to
obtain), Agent shall
not be under
any obligation to
provide such information to them.
The terms "Lender" and "Lenders"
include Wells
Fargo in its
individual capacity.
15.9.
Successor Agent
.
Agent may
resign as
Agent upon
30 days
(ten days
if an
Event of Default has occurred
and is continuing) prior
written notice to the
Lenders (unless such
notice is
waived by
the Required
Lenders) and
Borrowers (unless
such notice
is waived
by
Borrowers or a Default
or Event of Default has
occurred and is continuing) and
without any notice
to the Bank Product
Providers.
If Agent resigns under
this Agreement, the Required Lenders
shall
be entitled, with
(so long as
no Event of
Default has occurred
and is continuing)
the consent of
Borrowers (such
consent not
to be
unreasonably withheld,
delayed, or
conditioned), appoint
a
successor Agent for
the Lenders
(and the Bank
Product Providers).
If, at the
time that Agent's
resignation is effective,
it is acting
as Issuing Bank
or the Swing
Lender, such
resignation shall
also operate to effectuate
its resignation as Issuing
Bank or the Swing Lender,
as applicable, and
it shall automatically
be relieved of
any further obligation
to issue Letters
of Credit, or
to make
Swing Loans.
If no successor Agent is
appointed prior to the
effective date of the
resignation of
Agent, Agent may appoint,
after consulting with the
Lenders and Borrowers, a
successor Agent.
If Agent has materially breached or failed to perform any material provision of this Agreement or
of applicable law, the Required Lenders may agree in writing to remove and replace Agent with a
successor Agent from among
the Lenders with (so
long as no Event
of Default has occurred
and
is continuing) the consent
of Borrowers (such consent
not to be unreasonably
withheld, delayed,
or conditioned).
In any such
event, upon the
acceptance of its
appointment as successor
Agent
hereunder, such successor
Agent shall succeed to all
the rights, powers, and duties
of the retiring
Agent and the
term "Agent" shall
mean such successor
Agent and the
retiring Agent's appointment,
powers, and duties as Agent shall be terminated.
After any retiring Agent's resignation hereunder
as Agent,
the provisions
of this
Section 15
shall inure
to its
benefit as
to any
actions taken
or
omitted to
be taken by
it while
it was Agent
under this
Agreement.
If no successor
Agent has
accepted appointment as Agent by the date which
is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the
Lenders shall perform all of
the duties of Agent hereunder
until such time, if
any, as the
Lenders
appoint a successor Agent as provided for above.
15.10.
Lender in Individual Capacity
.
Any Lender and its respective
Affiliates may
make loans
to, issue
letters of
credit for
the account
of, accept
deposits from,
provide Bank
Products to, acquire
Equity Interests in
and generally engage
in any kind
of banking, trust,
financial
advisory, underwriting,
or other business with
any Loan Party and
its Subsidiaries and Affiliates
and any
other Person
party to
any Loan
Documents as
though such
Lender were
not a
Lender
hereunder without notice
to or consent
of the other
members of the
Lender Group (or
the Bank
Product Providers).
The other members of the
Lender Group acknowledge (and by
entering into
a Bank Product
Agreement, each Bank
Product Provider shall
be deemed to
acknowledge) that,
pursuant to
such activities,
such Lender
and its
respective Affiliates
may receive
information
regarding a Loan Party
or its Affiliates
or any other Person
party to any Loan
Documents that is
subject to confidentiality
obligations in favor
of such
Loan Party or
such other
Person and
that
prohibit the disclosure of such information
to the Lenders, and the Lenders
acknowledge (and by
entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to
acknowledge) that, in such
circumstances (and in the
absence of a waiver
of such confidentiality
obligations, which waiver such Lender will use its reasonable best efforts
to obtain), such Lender
shall not be under any obligation to provide such information to them.
15.11.
Collateral Matters
.
(a)
The Lenders
hereby irrevocably
authorize (and
by entering
into a
Bank
Product Agreement, each
Bank Product Provider
shall be deemed
to authorize) Agent
to release
any Lien
on any
Collateral (i)
upon the
termination of
the Commitments
and payment
and
satisfaction in
full by
the Loan
Parties and
their Subsidiaries
of all
of the
Obligations, (ii)
constituting property being sold
or disposed of
if a release
is required or
desirable in connection
therewith and if Borrowers certify to Agent that the sale or disposition is permitted under Section
6.4 (and
Agent may
rely conclusively
on any
such certificate,
without further
inquiry), (iii)
constituting property in which
no Loan Party or
any of its Subsidiaries
owned any interest at
the
time Agent's
Lien was
granted nor
at any
time thereafter,
(iv) constituting
property leased
or
licensed to a
Loan Party or
its Subsidiaries under
a lease or
license that has expired
or is terminated
in a transaction permitted under this Agreement, or (v)
in connection with a credit bid or purchase
authorized under
this Section
15.11.
The Loan
Parties and
the Lenders
hereby irrevocably
authorize (and by entering
into a Bank Product
Agreement, each Bank Product
Provider shall be
deemed to authorize) Agent, based upon the instruction of the Required Lenders, to (a) consent to
the sale of, credit bid, or purchase (either directly or indirectly through
one or more entities) all or
any portion of the Collateral at any sale thereof conducted under
the provisions of the Bankruptcy
Code, or similar Insolvency Laws
in any other relevant
jurisdiction, including Section 363 of
the
Bankruptcy Code or in connection with any other Insolvency Proceeding in any other jurisdiction
to which a
Loan Party is
subject, (b) credit
bid or purchase
(either directly or
indirectly through
one or more
entities) all or
any portion of
the Collateral at
any sale or
other disposition
thereof
conducted under the provisions of the Code, including pursuant to Sections 9-610
or 9-620 of the
Code, the PPSA, including pursuant to Sections
9-610 or 9-620 of the Code, the
PPSA or similar
Insolvency Laws in
any other relevant
jurisdiction or any
similar provision
of the PPSA,
or (c)
credit bid or purchase (either directly or indirectly through one or more entities) all or
any portion
of the Collateral at
any other sale or
foreclosure conducted or consented
to by Agent in
accordance
with applicable law in
any judicial action or
proceeding or by
the exercise of any
legal or equitable
remedy.
In connection
with any
such credit
bid or
purchase, (i)
the Obligations
owed to
the
Lenders and the Bank
Product Providers shall be entitled
to be, and shall
be, credit bid on a
ratable
basis (with Obligations with respect to contingent or unliquidated claims
being estimated for such
purpose if the fixing or
liquidation thereof would not impair
or unduly delay the ability
of Agent
to credit bid or purchase at such
sale or other disposition of the
Collateral and, if such contingent
or unliquidated
claims cannot
be estimated
without impairing
or unduly delaying
the ability
of
Agent to
credit bid
at such sale
or other disposition,
then such
claims shall
be disregarded, not
credit bid, and not entitled to
any interest in the Collateral that is
the subject of such credit bid
or
purchase) and the Lenders and the Bank Product Providers whose Obligations
are credit bid shall
be entitled to receive interests (ratably based upon
the proportion of their Obligations credit bid in
relation to the aggregate
amount of Obligations so
credit bid) in the
Collateral that is the
subject
of such
credit bid
or purchase
(or in
the Equity
Interests of
the any
entities that
are used
to
consummate such
credit bid
or purchase),
and (ii)
Agent, based
upon the
instruction of
the
Required Lenders, may accept non-cash consideration, including debt and
equity securities issued
by any entities used to
consummate such credit bid or
purchase and in connection therewith
Agent
may reduce the
Obligations owed to
the Lenders and
the Bank Product
Providers (ratably based
upon the proportion of their Obligations credit bid in relation to
the aggregate amount of
Obligations so
credit bid)
based upon
the value
of such
non-cash consideration;
provided, that
Bank Product Obligations not entitled to the application set forth in Section 2.4(b)(iii)(J) shall not
be entitled to be, and shall
not be, credit bid, or used in
the calculation of the ratable interest
of the
Lenders and Bank Product Providers in the
Obligations which are credit bid.
Except as provided
above, Agent will not execute
and deliver a release of any
Lien on any Collateral without the
prior
written authorization of
(y) if the
release is of
all or substantially
all of the
Collateral, all of
the
Lenders (without requiring the authorization of the Bank Product Providers), or (z) otherwise, the
Required Lenders
(without requiring
the authorization
of the
Bank Product
Providers).
Upon
request by Agent or
Borrowers at any time,
the Lenders will (and
if so requested, the
Bank Product
Providers will) confirm in writing
Agent's authority to release any
such Liens on particular types
or items of
Collateral pursuant to
this Section 15.11
;
provided, that (1)
anything to the
contrary
contained in any of the
Loan Documents notwithstanding, Agent shall
not be required to execute
any document
or take
any action
necessary to
evidence such
release on
terms that,
in Agent's
opinion, could expose Agent
to liability or create
any obligation or entail
any consequence other
than the release
of such Lien
without recourse, representation,
or warranty,
and (2) such
release
shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those
expressly released) upon (or obligations of Borrowers
in respect of) any and all
interests retained
by any Borrower, including, the proceeds of any sale, all
of which shall continue to constitute part
of the Collateral.
Each Lender further hereby irrevocably authorizes (and by entering into a Bank
Product Agreement, each Bank
Product Provider shall be deemed
to irrevocably authorize) Agent,
at its option and
in its sole discretion,
to subordinate (by contract
or otherwise) any Lien
granted
to or held by Agent on any property under any Loan Document (a) to
the holder of any Permitted
Lien on
such property
if such
Permitted Lien
secures purchase
money Indebtedness
(including
Capitalized Lease
Obligations) which
constitute Permitted
Indebtedness and
(b) to
the extent
Agent has
the authority
under this
Section 15.11
to release
its Lien
on such
property.
Notwithstanding the provisions
of this Section
15.11,
the Agent shall
be authorized, without
the
consent of any
Lender and without the
requirement that an
asset sale consisting
of the sale, transfer
or other disposition having
occurred, to release any
security interest in any
building, structure or
improvement located in
an area determined
by the
Federal Emergency
Management Agency
to
have special flood hazards.
(b)
Agent shall
have no
obligation whatsoever
to any
of the
Lenders (or
the
Bank Product Providers)
(i) to verify
or assure that
the Collateral exists
or is owned
by a Loan
Party or any of its
Subsidiaries or is cared for,
protected, or insured or has
been encumbered, (ii)
to verify
or assure
that Agent's
Liens have
been properly
or sufficiently
or lawfully
created,
perfected, protected, or enforced
or are entitled
to any particular priority,
(iii) to verify
or assure
that any particular items of
Collateral meet the eligibility
criteria applicable in respect thereof,
(iv)
to impose, maintain, increase, reduce, implement, or
eliminate any particular reserve hereunder or
to determine whether the amount of any reserve is appropriate or not, or (v) to exercise at all
or in
any particular manner or
under any duty of care,
disclosure or fidelity,
or to continue exercising,
any of the rights, authorities and
powers granted or available to Agent pursuant to
any of the Loan
Documents, it being understood and agreed that in
respect of the Collateral, or any act,
omission,
or event related
thereto, subject to
the terms and
conditions contained herein,
Agent may act
in
any manner
it may
deem appropriate,
in its
sole discretion
given Agent's
own interest
in the
Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability
whatsoever to
any Lender
(or Bank
Product Provider)
as to
any of
the foregoing,
except as
otherwise expressly provided herein.
15.12.
Restrictions on Actions by Lenders; Sharing of Payments
.
(a)
Each of
the Lenders
agrees that
it shall
not, without
the express
written
consent of Agent,
and that it
shall, to the
extent it is
lawfully entitled to
do so, upon
the written
request of Agent, set off against the Obligations, any amounts owing by such Lender to any Loan
Party or
its Subsidiaries
or any
deposit accounts
of any
Loan Party
or its
Subsidiaries now
or
hereafter maintained with such Lender.
Each of the Lenders further agrees that it shall
not, unless
specifically requested to do
so in writing by
Agent, take or cause to
be taken any action,
including,
the commencement of any legal
or equitable proceedings to
enforce any Loan Document against
any Borrower
or any
Guarantor or
to foreclose
any Lien
on, or
otherwise enforce
any security
interest in, any of the Collateral.
(b)
If, at any
time or times any
Lender shall receive
(i) by payment,
foreclosure,
setoff, or otherwise,
any proceeds of Collateral
or any payments
with respect to the
Obligations,
except for any
such proceeds or
payments received by
such Lender from
Agent pursuant to
the
terms of this Agreement,
or (ii) payments from
Agent in excess of
such Lender's Pro Rata
Share
of all such distributions by Agent, such Lender promptly shall (A) turn
the same over to Agent, in
kind, and
with such
endorsements as
may be
required to
negotiate the
same to
Agent, or
in
immediately available funds,
as applicable, for
the account of
all of the
Lenders and for
application
to the Obligations
in accordance with
the applicable provisions
of this Agreement, or
(B) purchase,
without recourse or
warranty, an
undivided interest and
participation in the
Obligations owed to
the other
Lenders so
that such
excess payment
received shall
be applied
ratably as
among the
Lenders in accordance
with their
Pro Rata Shares;
provided, that
to the extent
that such
excess
payment received
by the
purchasing party
is thereafter
recovered from
it, those
purchases of
participations shall be
rescinded in whole
or in part,
as applicable, and
the applicable portion
of
the purchase price
paid therefor
shall be returned
to such purchasing
party, but
without interest
except to the
extent that such
purchasing party is
required to pay
interest in connection
with the
recovery of the excess payment.
15.13.
Agency for Perfection
.
Agent hereby appoints
each other Lender
(and each
Bank Product Provider) as its agent (and
each Lender hereby accepts (and by entering into
a Bank
Product Agreement, each Bank
Product Provider shall be
deemed to accept) such
appointment) for
the purpose of perfecting Agent's Liens in assets which, in accordance with Article 8 or Article 9,
as applicable, of
the Code or
the STA,
as applicable, can
be perfected by
possession or control.
Should any Lender
obtain possession or
control of any
such Collateral, such
Lender shall notify
Agent thereof, and, promptly upon
Agent's request therefor shall
deliver possession or control
of
such Collateral to Agent or in accordance with Agent's instructions.
15.14.
Payments by Agent to the
Lenders
.
All payments to be made
by Agent to the
Lenders (or Bank Product
Providers) shall be made
by bank wire transfer
of immediately available
funds pursuant to such wire transfer instructions
as each party may designate for itself
by written
notice to Agent.
Concurrently with each
such payment, Agent
shall identify whether
such payment
(or any portion thereof) represents principal, premium, fees, or interest of the Obligations.
15.15.
Concerning the Collateral and Related Loan Documents
.
Each member of
the Lender Group
authorizes and directs
Agent to enter
into this Agreement
and the other
Loan
Documents.
Each member
of the
Lender Group
agrees (and
by entering
into a
Bank Product
Agreement, each Bank Product Provider shall be deemed to
agree) that any action taken by Agent
in accordance
with the
terms of
this Agreement
or the
other Loan
Documents relating
to the
Collateral and the exercise
by Agent of
its powers set
forth therein or
herein, together with
such
other powers that are reasonably
incidental thereto, shall be binding
upon all of the Lenders
(and
such Bank Product Provider).
15.16.
Field Examination Reports;
Confidentiality; Disclaimers
by Lenders;
Other Reports and Information
.
By becoming a party to this Agreement, each Lender:
(a)
is deemed to have requested that
Agent furnish such Lender, promptly after
it becomes
available, a
copy of
each field
examination report
respecting any
Loan Party
or its
Subsidiaries (each, a "Report") prepared by or at the
request of Agent, and Agent shall so furnish
each Lender with such Reports,
(b)
expressly agrees and acknowledges that Agent does not (i) make any
representation or warranty
as to
the accuracy of
any Report,
and (ii)
shall not
be liable
for any
information contained in any Report,
(c)
expressly agrees and acknowledges that the Reports are not comprehensive
audits or examinations,
that Agent or
other party performing
any field examination
will inspect
only specific information
regarding the Loan
Parties and their
Subsidiaries and will
rely
significantly upon
Borrowers' and
their Subsidiaries'
books and
records, as
well as
on
representations of Borrowers' personnel,
(d)
agrees to keep all Reports and other material, non-public
information
regarding the
Loan Parties
and their
Subsidiaries and
their operations,
assets, and
existing and
contemplated business plans in a confidential manner in accordance with Section 17.9, and
(e)
without limiting the generality of any other indemnification
provision
contained in this Agreement,
agrees:
(i) to hold Agent
and any other Lender
preparing a Report
harmless from any action the indemnifying
Lender may take or fail to
take or any conclusion the
indemnifying Lender may
reach or draw
from any Report
in connection with
any loans or
other
credit accommodations that the indemnifying Lender has made or may make to Borrowers, or the
indemnifying Lender's participation in, or the
indemnifying Lender's purchase of, a loan
or loans
of Borrowers, and
(ii) to pay
and protect, and
indemnify, defend
and hold
Agent, and any
such
other Lender
preparing a
Report harmless
from and
against, the
claims, actions,
proceedings,
damages, costs,
expenses, and
other amounts
(including, attorneys'
fees and
costs) incurred
by
Agent and any
such other Lender
preparing a Report
as the direct
or indirect result
of any third
parties who might obtain all or part of any Report through the indemnifying Lender.
In addition to the
foregoing, (x) any Lender
may from time to time
request of Agent in
writing that
Agent provide to such Lender a copy of
any report or document provided by any Loan Party
or its
Subsidiaries to Agent that has
not been contemporaneously provided by
such Loan Party or such
Subsidiary to such Lender, and, upon
receipt of such request, Agent
promptly shall provide a copy
of same to
such Lender, (y)
to the extent
that Agent is
entitled, under any
provision of the
Loan
Documents, to request additional
reports or information from
any Loan Party or
its Subsidiaries,
any Lender may,
from time to
time, reasonably request Agent
to exercise such
right as specified
in such
Lender's notice
to Agent,
whereupon Agent
promptly shall
request of
Borrowers the
additional reports or
information reasonably specified
by such Lender,
and, upon receipt
thereof
from such Loan
Party or such
Subsidiary, Agent
promptly shall provide
a copy of
same to such
Lender, and (z) any time
that Agent renders to
Borrowers a statement regarding
the Loan Account,
Agent shall send a copy of such statement to each Lender.
15.17.
Several Obligations; No
Liability
.
Notwithstanding that certain of
the Loan
Documents now or hereafter may have been
or will be executed only by or
in favor of Agent in its
capacity as such, and
not by or in
favor of the Lenders,
any and all obligations on
the part of Agent
(if any) to make any credit available hereunder shall constitute the several (and not joint)
obligations of
the respective
Lenders on
a ratable
basis, according
to their
respective
Commitments, to make
an amount of
such credit not
to exceed, in
principal amount, at
any one
time outstanding, the
amount of their
respective Commitments.
Nothing contained herein
shall
confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect of,
the business, assets, profits, losses, or liabilities of any other Lender.
Each Lender shall be solely
responsible for
notifying its
Participants of
any matters
relating to
the Loan
Documents to
the
extent any such notice may be required, and
no Lender shall have any obligation, duty, or liability
to any Participant
of any
other Lender.
Except as
provided in
Section 15.7,
no member
of the
Lender Group shall have any liability for
the acts of any other member
of the Lender Group.
No
Lender shall
be responsible
to any
Borrower or
any other
Person for
any failure
by any
other
Lender (or Bank Product Provider)
to fulfill its obligations
to make credit available hereunder, nor
to advance for
such Lender (or
Bank Product Provider)
or on its behalf,
nor to take
any other action
on behalf of
such Lender (or
Bank Product Provider)
hereunder or in
connection with the
financing
contemplated herein.
15.18.
Lead Arranger,
and Book
Runner
.
Each of
the Lead
Arranger and
Book
Runner, in such capacities,
shall not have any right, power,
obligation, liability,
responsibility, or
duty under this Agreement
other than those applicable
to it in its
capacity as a Lender,
as Agent,
as Swing Lender, or as Issuing Bank.
Without limiting the generality of the foregoing,
each of the
J Lead Arranger
and Book Runner,
in such capacities,
shall not have
or be deemed
to have any
fiduciary relationship with
any Lender or
any Loan Party.
Each Lender,
Agent, Swing Lender,
Issuing Bank, and
each Loan Party
acknowledges that it
has not relied,
and will not
rely, on
the
Lead Arranger and Book
Runner in deciding to
enter into this Agreement
or in taking or
not taking
action hereunder.
Each of the
Lead Arranger and
Book Runner, in such
capacities, shall be
entitled
to resign at any time by giving notice to Agent and Borrowers.
15.19.
Appointment for the Province of Quebec
.
(a)
Hypothecary Representative
.
For greater certainty,
and without limiting
the powers of Agent, each Lender and each Bank Product Provider hereby irrevocably constitutes
Agent as the hypothecary representative
within the meaning of
Article 2692 of the CCQ
in order
to hold hypothecs and security granted by any Loan
Party on property pursuant to the laws of the
Province of Québec in
order to secure obligations
of any Loan Party
hereunder and under the
other
Loan Documents.
The execution
by Agent,
acting as
hypothecary representative
prior to
this
Agreement of any deeds
of hypothec or other
security documents is hereby
ratified and confirmed.
(b)
Ratification of Hypothecary
Representative by
Successors and
Assignees, Etc.
The constitution of Agent as hypothecary representative shall be deemed to have
been ratified and
confirmed by each
Person accepting an
assignment of, a
participation in or
an
arrangement in respect of,
all or any portion
of the rights and
obligations of any Lender
or Bank
Product Provider
under this
Agreement by the
execution of
an assignment
(or other
agreement
pursuant to which
it becomes such
assignee or participant)
and by each
successor Agent by
the
compliance with
such formalities
pursuant to
which it
becomes a
successor Agent
under this
Agreement.
(c)
Rights, Etc. of
Hypothecary Representative.
Agent acting as
hypothecary representative
shall have
the same
rights, powers,
immunities, indemnities
and
exclusions from liability as are prescribed in favor of Agent in
this Agreement, which shall apply
mutatis mutandis to Agent acting as hypothecary
representative.
In the event of the resignation
of
Agent (which shall
include its
resignation as the
hypothecary representative as
contemplated in
Section
15.19(a)
and appointment
of a
successor Agent
under this
Agreement, such
successor
Agent shall also act as the hypothecary representative, as contemplated by Section 15.19.1.
16.
WITHHOLDING TAXES.
16.1.
Payments
.
All payments made by any Loan
Party under any Loan Document
will be made
free and clear
of, and without
deduction or withholding
for, any
Taxes, except
as
otherwise required by applicable
law, and
in the event
any deduction or
withholding of Taxes
is
required, the applicable Loan Party shall
make the requisite withholding, promptly pay
over to the
applicable Governmental Authority the withheld
tax, and furnish to Agent as
promptly as possible
after the date
the payment of
any such Tax
is due pursuant
to applicable law,
certified copies of
tax receipts evidencing
such payment by
the Loan
Parties.
Furthermore, if any
such Tax
is an
Indemnified Taxes
or an Indemnified
Tax is
so levied or imposed,
the Loan Parties agree
to pay
the full amount
of such Indemnified
Taxes and
such additional amounts
as may be
necessary so
that every
payment of
all amounts
due under
this Agreement,
any note,
or Loan
Document,
including any amount paid
pursuant to this Section
16.1 after withholding or
deduction for or on
account of any Indemnified
Taxes, will not be less than the
amount provided for herein.
The Loan
Parties will promptly pay any Other Taxes or reimburse Agent for such Other
Taxes upon Agent's
demand.
The Loan
Parties shall
jointly and
severally indemnify
each Indemnified
Person (as
defined in
Section 10.3)
(collectively a
"Tax Indemnitee")
for the
full amount
of Indemnified
Taxes arising
in connection with
this Agreement or
any other Loan
Document or breach
thereof
by any Loan
Party (including any
Indemnified Taxes
imposed or asserted
on, or attributable
to,
amounts payable
under this
Section 16)
imposed on,
or paid
by, such
Tax
Indemnitee and
all
reasonable costs and expenses related
thereto (including fees and disbursements
of attorneys and
other tax professionals), as and when they
are incurred and irrespective of whether suit
is brought,
whether or
not such
Indemnified Taxes
were correctly
or legally
imposed or
asserted by
the
relevant Governmental
Authority (other
than Indemnified
Taxes and
additional amounts
that a
court of competent
jurisdiction finally determines
to have resulted
from the gross
negligence or
willful misconduct of
such Tax Indemnitee).
The obligations of
the Loan Parties
under this Section
16 shall survive the termination of this Agreement, the resignation and
replacement of the Agent,
and the repayment of the Obligations.
16.2.
Exemptions
.
(a)
If a Lender
or Participant is
entitled to claim
an exemption or
reduction from
United States withholding
tax, such Lender
or Participant
agrees with and
in favor of
Agent, to
deliver to Agent (or, in the case of a Participant,
to the Lender granting the participation only)
and
the Administrative Borrower on behalf of
all Borrowers one of the following
before receiving its
first payment under this Agreement:
(i)
if such Lender or Participant is entitled to claim an exemption from
United States withholding tax
pursuant to the
portfolio interest exception,
(A) a statement of
the
Lender or Participant, signed under penalty of
perjury, that
it is not a (I) a
"bank" as described in
Section 881(c)(3)(A) of the IRC,
(II) a 10% shareholder of
any Borrower (within the meaning
of
Section 871(h)(3)(B) of
the IRC), or
(III) a
controlled foreign corporation
related to Borrowers
within the meaning of
Section 864(d)(4) of
the IRC, and
(B) a properly completed
and executed
IRS Form W-8BEN, Form W-8BEN-E or
Form W-8IMY (with proper attachments
as applicable);
(ii)
if such Lender or Participant is
entitled to claim an exemption from,
or a
reduction of,
withholding tax
under a
United States
tax treaty,
a properly
completed and
executed copy of IRS Form W-8BEN or Form W-8BEN-E,
as applicable;
(iii)
if such
Lender or Participant
is entitled
to claim
that interest
paid
under this
Agreement is
exempt from
United States
withholding tax
because it
is effectively
connected with
a United
States trade
or business
of such
Lender, a
properly completed
and
executed copy of IRS Form W-8ECI;
(iv)
if such
Lender or Participant
is entitled
to claim
that interest
paid
under this
Agreement is
exempt from
United States
withholding tax
because such
Lender or
Participant serves as
an intermediary,
a properly completed
and executed copy
of IRS Form
W-
8IMY (including a withholding statement and copies of the tax certification documentation for its
beneficial owner(s) of the income
paid to the intermediary, if required based on
its status provided
on the Form W-8IMY); or
(v)
a properly completed and
executed copy of any
other form or forms,
including IRS Form W-9,
as may be required under the IRC
or other laws of the United States
as
a condition to exemption from, or reduction of, United
States withholding or backup withholding
tax.
(b)
Each Lender or
Participant shall
provide new forms
(or successor forms)
upon the
expiration or
obsolescence of
any previously
delivered forms
and to
promptly notify
Agent and Administrative
Borrower (or,
in the case
of a Participant,
to the Lender
granting the
participation only)
of any
change in
circumstances which
would modify
or render
invalid any
claimed exemption or reduction.
(c)
If a Lender
or Participant
claims an exemption
from withholding tax
in a
jurisdiction other than the United States, such Lender or such Participant agrees with and in favor
of Agent and
Borrowers, to deliver
to Agent
and Administrative
Borrower (or,
in the
case of a
Participant, to
the Lender
granting the
participation only)
any such
form or
forms, as
may be
required under the
laws of
such jurisdiction
as a condition
to exemption
from, or
reduction of,
foreign withholding
or backup
withholding tax
before receiving
its first
payment under
this
Agreement, but only if such Lender
or such Participant is legally
able to deliver such forms, or
the
providing of or delivery
of such forms in
the Lender's reasonable judgment
would not subject such
Lender to any material
unreimbursed cost or expense
or materially prejudice the legal
or
commercial position
of such
Lender (or
its Affiliates);
provided, further,
that nothing
in this
Section 16.2(c) shall
require a Lender or
Participant to disclose
any information that
it deems to
be confidential (including
its tax
returns).
Each Lender and
each Participant shall
provide new
forms (or successor forms) upon the expiration or
obsolescence of any previously delivered forms
and promptly notify
Agent and Administrative
Borrower (or,
in the case
of a Participant,
to the
Lender granting the
participation only) of
any change in
circumstances which would
modify or
render invalid any claimed exemption or reduction.
(d)
If a
Lender or
Participant claims
exemption from,
or reduction
of,
withholding tax and
such Lender or
Participant sells, assigns,
grants a participation
in, or otherwise
transfers all or part of the Obligations of Borrowers to such Lender or Participant, such Lender or
Participant agrees
to notify
Agent and
Administrative Borrower
(or, in
the case
of a
sale of
a
participation interest, to
the Lender granting
the participation only)
of the percentage
amount in
which it
is no
longer the
beneficial owner
of Obligations
of Borrowers
to such
Lender or
Participant.
To the
extent of such
percentage amount, Agent
and Administrative Borrower
will
treat such Lender's
or such
Participant's documentation
provided pursuant
to Section
16.2(a) or
16.2(c) as no longer valid.
With respect to such percentage amount, such Participant or
Assignee
may provide new documentation, pursuant to Section 16.2(a) or 16.2(c), if
applicable.
Borrowers
agree that each
Participant shall
be entitled to
the benefits of
this Section
16 with respect
to its
participation in any portion
of the Commitments
and the Obligations
so long as
such Participant
complies with the obligations set forth in this Section 16 with respect thereto.
(e)
If a payment made to a
Lender under any Loan Document would
be subject
to U.S. federal withholding
tax imposed by FATCA
if such Lender were
to fail to comply with
the
applicable due
diligence and
reporting requirements
of FATCA
(including those
contained in
Section 1471(b) or 1472(b)
of the IRC, as
applicable), such Lender shall
deliver to Agent (or,
in
the case
of a
Participant, to
the Lender
granting the
participation only)
at the
time or
times
prescribed by law
and at such
time or times
reasonably requested by
Agent (or,
in the case
of a
Participant, the
Lender granting the
participation) such
documentation prescribed by
applicable
law (including as prescribed
by Section 1471(b)(3)(C)(i)
of the IRC)
and such additional
documentation reasonably requested by
Agent (or, in the case of
a Participant, the Lender
granting
the participation) as
may be necessary
for Agent or
Borrowers to comply
with their obligations
under FATCA
and to
determine that
such Lender
has complied
with such
Lender's obligations
under FATCA
or to determine the amount to deduct and withhold from such payment.
Solely for
purposes of this
clause (e), "FATCA"
shall include
any amendments made
to FATCA
after the
date of this Agreement.
16.3.
Reductions
.
(a)
If a
Lender or
a Participant
is subject
to an
applicable withholding
tax,
Agent (or, in
the case of a
Participant, the Lender
granting the participation) may
withhold from
any payment to
such Lender or
such Participant
an amount equivalent
to the applicable
withholding tax.
If the forms
or other documentation
required by Section
16.2(a) or 16.2(c)
are
not delivered to
Agent (or, in
the case of
a Participant, to
the Lender granting
the participation),
then Agent (or, in the case of a Participant, to the
Lender granting the participation) may withhold
from any payment to
such Lender or such
Participant not providing
such forms or other
documentation an amount equivalent to the applicable withholding tax.
(b)
If the IRS
or any other
Governmental Authority of
the United States
or other
jurisdiction asserts a claim
that Agent (or,
in the case of
a Participant, to the
Lender granting the
participation) did not properly withhold
tax from amounts paid to
or for the account
of any Lender
or any
Participant due
to a
failure on
the part
of the
Lender or
any Participant
(because the
appropriate form was not
delivered, was not properly
executed, or because such
Lender failed to
notify Agent (or such
Participant failed to notify
the Lender granting the
participation) of a change
in circumstances which rendered the
exemption from, or reduction of,
withholding tax ineffective,
or for any other reason) such Lender
shall indemnify and hold Agent harmless (or, in the case of
a
Participant, such
Participant shall
indemnify and
hold the
Lender granting
the participation
harmless) for all amounts paid, directly or indirectly,
by Agent (or, in the
case of a Participant, to
the Lender granting
the participation),
as tax
or otherwise, including
penalties and interest,
and
including any taxes imposed by any jurisdiction
on the amounts payable to Agent (or,
in the case
of a Participant, to the Lender granting the
participation only) under this Section 16, together with
all costs and expenses (including
attorneys' fees and expenses).
The obligation of the Lenders
and
the Participants under this subsection shall survive the payment of all Obligations and the
resignation or replacement of Agent.
16.4.
Refunds
.
If Agent or a Lender determines, in its
sole discretion acting in good
faith, that it has
received a refund of any
Indemnified Taxes
to which the Loan Parties
have paid
additional amounts
pursuant to
this Section
16, so
long as
no Default
or Event
of Default
has
occurred and is continuing, it
shall pay over such refund
to the Administrative Borrower on
behalf
of the Loan Parties
(but only to
the extent of payments
made, or additional amounts
paid, by the
Loan Parties under this Section
16 with respect to Indemnified
Taxes giving rise to such a refund),
net of
all out-of-pocket
expenses of
Agent or
such Lender
and without
interest (other
than any
interest paid by the
applicable Governmental Authority with
respect to such a
refund); provided,
that the Loan Parties, upon
the request of Agent or
such Lender, agrees to
repay the amount paid
over to the Loan
Parties (plus any penalties,
interest or other charges,
imposed by the applicable
Governmental Authority, other than such penalties, interest
or other charges imposed as
a result of
the willful misconduct or gross negligence of Agent or
Lender hereunder as finally determined by
a court of
competent jurisdiction) to
Agent or such
Lender in the
event Agent or
such Lender is
required to repay such refund to such Governmental Authority.
Notwithstanding anything in this
Agreement to the contrary,
this Section 16 shall not
be construed to require Agent
or any Lender
to make available
its tax returns
(or any other
information which it
deems confidential) to
Loan
Parties or any other Person or require Agent or any Lender to pay any amount to an indemnifying
party pursuant to Section 16.4, the payment of
which would place Agent or such Lender
(or their
Affiliates) in a
less favorable net
after-Tax
position than such
Person would have
been in if
the
Tax subject
to indemnification and giving rise to
such refund had not been deducted,
withheld or
otherwise imposed and the
indemnification payments or additional
amounts with respect to
such
Tax had never been paid.
17.
GENERAL PROVISIONS.
17.1.
Effectiveness
.
This Agreement shall
be binding and
deemed effective
when
executed by
each Borrower,
Agent, and
each Lender
whose signature
is provided
for on
the
signature pages hereof.
17.2.
Section Headings
.
Headings and
numbers have
been set
forth herein
for
convenience only.
Unless the contrary is compelled by the context,
everything contained in each
Section applies equally to this entire Agreement.
17.3.
Interpretation
.
Neither this
Agreement nor
any uncertainty
or ambiguity
herein shall be
construed against the
Lender Group or
any Borrower,
whether under any
rule of
construction or otherwise.
On the contrary,
this Agreement has been reviewed
by all parties and
shall be construed
and interpreted according
to the ordinary
meaning of the
words used so
as to
accomplish fairly the purposes and intentions of all parties hereto.
17.4.
Severability of Provisions
.
Each provision of
this Agreement shall
be
severable from every other
provision of this
Agreement for the
purpose of determining
the legal
enforceability of any specific provision.
17.5.
Bank Product Providers
.
Each Bank Product Provider in its capacity as such
shall be deemed
a third party
beneficiary hereof and
of the provisions
of the other
Loan Documents
for purposes of any reference in a
Loan Document to the parties for whom Agent
is acting.
Agent
hereby agrees to
act as agent
for such Bank
Product Providers
and, by virtue
of entering into
a
Bank Product Agreement, the applicable Bank Product Provider shall be automatically deemed to
have appointed Agent as its agent and to have accepted the benefits of the Loan Documents.
It is
understood and agreed that the rights and benefits
of each Bank Product Provider under the Loan
Documents consist exclusively of
such Bank Product
Provider's being a beneficiary
of the Liens
and security interests
(and, if applicable,
guarantees) granted to
Agent and
the right to
share in
payments and collections
out of the
Collateral as more
fully set forth
herein. In addition,
each Bank
Product Provider,
by virtue
of entering
into a
Bank Product
Agreement, shall
be automatically
deemed to have agreed
that Agent shall
have the right, but
shall have no obligation,
to establish,
maintain, relax, or release reserves in respect of the Bank Product Obligations and that if reserves
are established
there is
no obligation
on the
part of
Agent to
determine or
insure whether
the
amount of
any such
reserve is
appropriate or
not.
In connection with
any such
distribution of
payments or proceeds
of Collateral, Agent shall
be entitled to assume
no amounts are due
or owing
to any Bank Product
Provider unless such Bank
Product Provider has provided
a written
certification (setting forth
a reasonably detailed
calculation) to Agent
as to the
amounts that are
due and owing to it and
such written certification is received by
Agent a reasonable period of time
prior to the
making of such
distribution.
Agent shall have
no obligation to
calculate the amount
due and payable with respect to any Bank Products, but may rely upon the written certification of
the amount
due and
payable from
the applicable
Bank Product
Provider.
In the absence
of an
updated certification,
Agent shall
be entitled
to assume that
the amount
due and payable
to the
applicable Bank
Product Provider
is the
amount last
certified to
Agent by
such Bank
Product
Provider as being due and payable (
less
any distributions made to such Bank Product Provider on
account thereof).
Borrowers may obtain
Bank Products from
any Bank Product Provider,
although
Borrowers are
not required
to do
so.
Each Borrower
acknowledges and
agrees that
no Bank
Product Provider
has committed
to provide
any Bank
Products and
that the
providing of
Bank
Products by any Bank
Product Provider is in the
sole and absolute discretion
of such Bank Product
Provider.
Notwithstanding anything to the contrary in
this Agreement or any other Loan
Document, no provider
or holder of
any Bank Product
shall have any
voting or approval
rights
hereunder (or be deemed a Lender)
solely by virtue of its
status as the provider or
holder of such
agreements or
products or
the Obligations
owing thereunder,
nor shall
the consent
of any
such
provider or holder be required
(other than in their capacities
as Lenders, to the extent
applicable)
for any matter
hereunder or under
any of the
other Loan Documents,
including as to
any matter
relating to the Collateral or the release of Collateral or Guarantors.
17.6.
Debtor-Creditor Relationship
.
The relationship
between the
Lenders and
Agent, on
the one
hand, and
the Loan
Parties, on
the other
hand, is
solely that
of creditor
and
debtor.
No member
of the
Lender Group
has (or
shall be
deemed to
have) any
fiduciary
relationship or duty to any Loan Party
arising out of or in connection with the
Loan Documents or
the transactions contemplated
thereby, and there is no
agency or joint
venture relationship between
the members of
the Lender Group,
on the one
hand, and the
Loan Parties, on
the other hand,
by
virtue of any Loan Document or any transaction contemplated therein.
17.7.
Counterparts; Electronic
Execution
.
This Agreement
may be
executed in
any number of counterparts and
by different parties on separate
counterparts, each of which, when
executed and delivered, shall be deemed to be
an original, and all of which,
when taken together,
shall constitute
but one
and the
same Agreement.
Delivery of
an executed
counterpart of
this
Agreement by telefacsimile
or other electronic
method of transmission
shall be equally
as effective
as delivery
of an
original executed
counterpart of
this Agreement.
Any party
delivering an
executed counterpart of
this Agreement by
telefacsimile or other
electronic method of
transmission
also shall deliver an
original executed counterpart of
this Agreement but the
failure to deliver an
original executed counterpart shall not affect
the validity, enforceability,
and binding effect of this
Agreement.
The foregoing shall apply to each other Loan Document mutatis mutandis.
17.8.
Revival and Reinstatement of Obligations; Certain Waivers
.
(a)
If any member of the
Lender Group or any Bank
Product Provider repays,
refunds, restores, or returns in whole or in part,
any payment or property (including any proceeds
of Collateral) previously
paid or transferred
to such member
of the Lender
Group or such
Bank
Product Provider
in full
or partial
satisfaction of
any Obligation
or on
account of
any other
obligation of any Loan Party
under any Loan Document or any
Bank Product Agreement, because
the payment, transfer, or
the incurrence of the obligation so
satisfied is asserted or declared
to be
void, voidable,
or otherwise
recoverable under
any law
relating to
creditors' rights,
including
provisions of
the Bankruptcy
Code or
other Insolvency
Laws relating
to fraudulent
transfers,
preferences, or other
voidable or recoverable
obligations or transfers
(each, a "Voidable
Transfer"), or because such member of the
Lender Group or Bank Product
Provider elects to do so
on the reasonable
advice of its
counsel in connection
with a claim
that the payment,
transfer, or
incurrence is or may
be a Voidable Transfer,
then, as to any
such Voidable
Transfer, or the amount
thereof that such member of
the Lender Group or Bank
Product Provider elects to repay,
restore,
or return
(including pursuant
to a
settlement of
any claim
in respect
thereof), and
as to
all
reasonable costs,
expenses, and
attorneys' fees
of such
member of
the Lender
Group or
Bank
Product Provider related thereto, (i) the liability of the Loan Parties with
respect to the amount or
property paid,
refunded, restored,
or returned
will automatically
and immediately
be revived,
reinstated, and
restored and
will exist,
and (ii)
Agent's Liens
securing such
liability shall
be
effective, revived, and
remain in full
force and effect,
in each case,
as fully as
if such Voidable
Transfer had never been made.
If, prior to any
of the foregoing, (A) Agent's
Liens shall have been
released or
terminated, or
(B) any
provision of
this Agreement
shall have
been terminated
or
cancelled, Agent's Liens, or such provision of this Agreement, shall be reinstated in full force and
effect and
such prior
release, termination,
cancellation or
surrender shall
not diminish,
release,
discharge, impair or otherwise
affect the obligation
of any Loan Party in
respect of such liability
or any
Collateral securing
such liability.
This provision
shall survive
the termination
of this
Agreement and the repayment in full of the Obligations.
17.9.
Confidentiality
.
(a)
Agent and Lenders
each individually (and
not jointly or
jointly and
severally) agree that material, non-public information
regarding the Loan Parties and their
Subsidiaries, their operations, assets, and existing and
contemplated business plans ("Confidential
Information") shall be treated by Agent and the
Lenders in a confidential manner, and shall not be
disclosed by Agent and the Lenders to Persons who
are not parties to this Agreement, except:
(i)
to attorneys for
and other advisors,
accountants, auditors, and
consultants to any
member of the
Lender Group and to
employees, directors and officers
of any member of
the Lender Group (the
Persons in this clause (i), "Lender Group Representatives")
on a "need to know" basis in
connection with this
Agreement and the
transactions contemplated hereby
and on a
confidential
basis, (ii) to Subsidiaries
and Affiliates of any
member of the Lender
Group (including the Bank
Product Providers); provided,
that any such
Subsidiary or Affiliate
shall have agreed
to receive
such information hereunder
subject to the
terms of this
Section 17.9, (iii)
as may be
required by
regulatory authorities so
long as such
authorities are informed
of the confidential
nature of such
information, (iv) as may be required
by statute, decision, or judicial
or administrative order, rule,
or regulation; provided, that (x) prior to any disclosure under this
clause (iv), the disclosing party
agrees to provide Borrowers
with prior notice thereof,
to the extent
that it is practicable
to do so
and to the
extent that the
disclosing party is permitted
to provide such
prior notice to
Borrowers
pursuant to the
terms of the
applicable statute, decision,
or judicial or
administrative order, rule,
or regulation and
(y) any disclosure
under this
clause (iv) shall
be limited to
the portion
of the
Confidential Information as may
be required by
such statute, decision, or
judicial or administrative
order, rule,
or regulation,
(v) as
may be
agreed to
in advance
in writing
by Borrowers,
(vi) as
requested or
required by
any Governmental
Authority pursuant
to any
subpoena or
other legal
process; provided, that (x) prior to
any disclosure under this clause (vi)
the disclosing party agrees
to provide Borrowers with prior
written notice thereof, to the
extent that it is
practicable to do so
and to
the extent
that the
disclosing party
is permitted
to provide
such prior
written notice
to
Borrowers pursuant
to the
terms of
the subpoena
or other
legal process
and (y)
any disclosure
under this
clause (vi)
shall be
limited to
the portion
of the
Confidential Information
as may
be
required by such Governmental Authority
pursuant to such subpoena
or other legal process, (vii)
as to any
such information
that is
or becomes
generally available to
the public
(other than as
a
result of
prohibited disclosure
by Agent
or the
Lenders or
the Lender
Group Representatives),
(viii) in connection
with any assignment, participation
or pledge of any
Lender's interest under this
Agreement; provided, that
prior to receipt
of Confidential Information
any such assignee,
participant, or pledgee shall
have agreed in writing
to receive such Confidential
Information either
subject to the terms
of this Section
17.9 or pursuant to
confidentiality requirements substantially
similar to those
contained in this
Section 17.9 (and
such Person may
disclose such Confidential
Information to
Persons employed
or engaged
by them
as described
in clause
(i) above),
(ix) in
connection with any litigation or
other adversary proceeding involving parties
hereto which such
litigation or adversary
proceeding involves
claims related
to the
rights or
duties of such
parties
under this Agreement or the
other Loan Documents; provided, that
prior to any disclosure to
any
Person (other than any
Loan Party,
Agent, any Lender,
any of their respective
Affiliates, or their
respective counsel)
under this
clause (ix)
with respect to
litigation involving
any Person
(other
than any
Borrower, Agent,
any Lender,
any of
their respective
Affiliates, or
their respective
counsel), the disclosing
party agrees to
provide Borrowers with
prior written notice
thereof, and
(x) in
connection with,
and to
the extent
reasonably necessary
for, the
exercise of
any secured
creditor remedy under this Agreement or under any other Loan Document.
(b)
Anything in
this Agreement
to the
contrary notwithstanding,
Agent may
disclose information concerning
the terms and
conditions of this
Agreement and the
other Loan
Documents to loan
syndication and pricing reporting
services or in
its marketing or promotional
materials, with such information to consist of deal terms and other information customarily found
in such publications
or marketing or
promotional materials and
may otherwise use
the name, logos,
and other
insignia of
any Borrower
or the
other Loan
Parties and
the Commitments
provided
hereunder in
any "tombstone"
or other
advertisements, on
its website
or in
other marketing
materials of the Agent.
(c)
Each Loan
Party agrees
that Agent
may make
materials or
information
provided by or on
behalf of Borrowers hereunder (collectively, "Borrower Materials")
available to
the Lenders by
posting the
Communications on
IntraLinks, SyndTrak
or a
substantially similar
secure electronic transmission system
(the "Platform").
The Platform is provided
"as is" and "as
available."
Agent does not
warrant the accuracy
or completeness of
the Borrower Materials,
or
the adequacy
of the
Platform and
expressly disclaim
liability for
errors or
omissions in
the
communications.
No warranty of any kind, express, implied or statutory,
including any warranty
of merchantability,
fitness for
a particular
purpose, non-infringement
of third
party rights
or
freedom from viruses
or other code
defects, is made
by Agent in
connection with the
Borrower
Materials or the Platform.
In no event shall Agent or any of the
Agent-Related Persons have any
liability to the
Loan Parties, any
Lender or any
other person for
damages of any
kind, including
direct or indirect,
special, incidental or consequential
damages, losses or
expenses (whether in tort,
contract or otherwise) arising out of any Loan Party's or Agent's
transmission of communications
through the
Internet, except
to the
extent the
liability of
such person
is found
in a
final non-
appealable judgment by
a court of competent
jurisdiction to have resulted
from such person's gross
negligence or willful misconduct.
Each Loan Party further agrees that certain of the Lenders may
be "public-side" Lenders (i.e.,
Lenders that do not
wish to receive material
non-public information
with respect to
the Loan Parties
or their securities)
(each, a "Public
Lender").
The Loan Parties
shall be
deemed to
have authorized
Agent and
its Affiliates
and the
Lenders to
treat Borrower
Materials marked "PUBLIC"
or otherwise at
any time filed
with the SEC
as not containing
any
material non-public information with respect to the
Loan Parties or their securities for
purposes of
United States
federal and
state securities
laws.
All Borrower
Materials marked
"PUBLIC" are
permitted to be made available
through a portion of
the Platform designated as
"Public Investor"
(or another similar
term).
Agent and its
Affiliates and the
Lenders shall be
entitled to treat
any
Borrower Materials that are not marked
"PUBLIC" or that are not at
any time filed with the
SEC
as being suitable only for posting on a portion of the Platform not
marked as "Public Investor" (or
such other similar term).
17.10.
Survival
.
All representations and
warranties made by
the Loan Parties
in the
Loan Documents
and in
the certificates
or other
instruments delivered
in connection
with or
pursuant to this
Agreement or any other
Loan Document shall be
considered to have been
relied
upon by
the other
parties hereto
and shall
survive the
execution and
delivery of
the Loan
Documents and the making of any Loans
and issuance of any Letters of Credit,
regardless of any
investigation made by
any such other
party or on
its behalf and
notwithstanding that Agent, Issuing
Bank, or any
Lender may have
had notice or
knowledge of
any Default
or Event
of Default or
incorrect representation or
warranty at the
time any credit
is extended hereunder,
and shall continue
in full force and effect as long as the principal
of, or any accrued interest on, any Loan or any fee
or any other amount
payable under this Agreement
is outstanding or unpaid
or any Letter of
Credit
is outstanding and so long as the Commitments have not expired or been terminated.
17.11.
Patriot Act; Due Diligence
.
(a)
Each Lender that
is subject
to the
requirements of
the Patriot
Act hereby
notifies the Loan
Parties that pursuant
to the requirements
of the Patriot
Act, it is
required to obtain,
verify and record
information that identifies
each Loan Party, which
information includes the
name
and address of each Loan Party and other information that will
allow such Lender to identify each
Loan Party in accordance with the Patriot Act.
In addition, Agent and each Lender shall have the
right to periodically conduct
due diligence on all
Loan Parties, their senior
management and key
principals and legal and beneficial owners.
Each Loan Party agrees to cooperate in respect of the
conduct of such due
diligence and further agrees
that the reasonable costs
and charges for any
such
due diligence by Agent shall constitute Lender Group Expenses hereunder and
be for the account
of Borrowers.
(b)
Each Loan Party acknowledges
that, pursuant to the provisions
of Canadian
Anti-Money Laundering
& Anti-Terrorism
Legislation, Agent
and Lenders
may be
required to
obtain, verify and
record information regarding
each Loan Party,
its respective directors,
authorized signing officers, direct
or indirect shareholders or
other Persons in control
of such Loan
Party, and the transactions contemplated hereby.
The Loan Parties shall
promptly provide all such
information, including
supporting documentation
and other
evidence, as may
be reasonably
requested by any Lender or Agent, or any
prospective assign or participant of a
Lender or Agent,
necessary in
order to
comply with
any applicable
Canadian Anti-Money
Laundering &
Anti-
Terrorism
Legislation, whether now
or hereafter in
existence.
If Agent has
ascertained the identity
of any Loan Party or
any authorized signatories of any
Loan Party for the purposes
of applicable
Canadian Anti-Money Laundering & Anti-Terrorism
Legislation, then the Agent:
(i)
shall be deemed
to have done
so as an
agent for each
Lender, and
this Agreement shall constitute a "written
agreement" in such regard between each
Lender and the
Agent within
the meaning
of applicable
Canadian Anti-Money
Laundering &
Anti-Terrorism
Legislation;
(ii)
shall provide to
each Lender copies
of all information
obtained in
such regard without any representation or warranty as to its accuracy or completeness.
Notwithstanding the provisions of this Section and except as may
otherwise be agreed in writing,
each Lender agrees that
Agent has no obligation
to ascertain the identity
of the Loan Parties
or any
authorized signatories of the Loan
Parties on behalf of any
Lender, or to confirm the completeness
or accuracy of any information
it obtains from the Loan
Parties or any such
authorized signatory
in doing so.
17.12.
Integration
.
This Agreement, together with the
other Loan Documents,
reflects the entire
understanding of the
parties with respect
to the transactions
contemplated hereby
and shall not be contradicted or qualified
by any other agreement, oral or
written, before the date
hereof.
The foregoing to the
contrary notwithstanding, all Bank
Product Agreements, if any,
are
independent agreements governed
by the
written provisions
of such Bank
Product Agreements,
which will remain
in full force
and effect, unaffected by
any repayment, prepayments,
acceleration,
reduction, increase, or change in
the terms of any credit
extended hereunder, except
as otherwise
expressly provided in such Bank Product Agreement.
17.13.
CMT as Agent
for Borrowers
.
Each Borrower hereby
irrevocably appoints
CMT as
the borrowing agent
and attorney-in
-fact for all
Borrowers (the
"Administrative
Borrower") which appointment
shall remain in
full force and
effect unless and
until Agent shall
have received
prior written
notice signed
by each
Borrower that
such appointment
has been
revoked and that another Borrower has been appointed Administrative Borrower.
Each Borrower
hereby irrevocably appoints and
authorizes the Administrative Borrower
(a) to provide Agent
with
all notices with
respect to Revolving Loans
and Letters of
Credit obtained for
the benefit of
any
Borrower and all other notices
and instructions under this Agreement
and the other Loan
Documents (and any notice or
instruction provided by Administrative
Borrower shall be deemed
to be
given by
Borrowers hereunder
and shall
bind each
Borrower), (b)
to receive
notices and
instructions from members
of the Lender
Group (and any
notice or instruction
provided by any
member of the Lender Group to the Administrative Borrower in accordance with the terms
hereof
shall be deemed
to have been
given to each
Borrower), (c) to
enter into Bank
Product Provider
Agreements on
behalf of
Borrowers and
their Subsidiaries,
and (d)
to take
such action
as the
Administrative Borrower deems appropriate
on its behalf to
obtain Revolving Loans
and Letters
of Credit and
to exercise such
other powers as
are reasonably incidental
thereto to carry
out the
purposes of this Agreement.
It is understood that the
handling of the Loan Account
and Collateral
in a
combined fashion,
as more
fully set
forth herein,
is done
solely as
an accommodation
to
Borrowers in order to
utilize the collective
borrowing powers of
Borrowers in the
most efficient
and economical manner and at their request, and that Lender Group shall not incur liability to any
Borrower as a result hereof.
Each Borrower expects to derive benefit, directly or indirectly,
from
the handling of
the Loan Account
and the Collateral
in a combined
fashion since the
successful
operation of each
Borrower is dependent
on the continued
successful performance of
the integrated
group.
To induce the Lender Group
to do so, and in consideration thereof, each Borrower hereby
jointly and severally
agrees to indemnify
each member of
the Lender Group
and hold each
member
of the Lender
Group harmless against
any and all
liability, expense,
loss or claim
of damage or
injury, made against
the Lender Group by any Borrower or by
any third party whosoever, arising
from or incurred by reason of (i)
the handling of the Loan Account and
Collateral of Borrowers as
herein provided,
or (ii)
the Lender
Group's relying
on any
instructions of
the Administrative
Borrower, except
that Borrowers
will have
no liability
to the
relevant Agent-Related
Person or
Lender-Related Person under this Section
17.13 with respect to any
liability that has been finally
determined by a court of competent jurisdiction to have resulted solely from
the gross negligence
or willful misconduct
of such Agent-Related
Person or
Lender-Related Person, as
the case may
be.
17.14.
Acknowledgement and Consent
to Bail
-In of
EEA Financial Institutions
.
Notwithstanding anything
to the
contrary in
any Loan
Document or
in any
other agreement,
arrangement or understanding
among any such
parties, each party
hereto acknowledges that
any
liability of any
EEA Financial
Institution arising under
any Loan Document,
to the extent
such
liability is
unsecured, may
be subject
to the
write-down and
conversion powers
of an
EEA
Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)
the application
of any
Write-Down and
Conversion Powers
by an
EEA
Resolution Authority to any
such liabilities arising hereunder
which may be payable
to it by any
party hereto that is an EEA Financial Institution; and
(b)
the effects of
any Bail-in Action
on any such
liability, including,
if
applicable:
(i)
a reduction in full or in part or cancellation of any such liability;
(ii)
a conversion of all, or
a portion of, such liability
into shares or other
instruments of
ownership in
such EEA Financial
Institution, its
parent undertaking, or
a bridge
institution that
may be
issued to
it or
otherwise conferred
on it,
and that
such shares
or other
instruments of
ownership will
be accepted
by it
in lieu
of any
rights with
respect to
any such
liability under this Agreement or any other Loan Document; or
(iii)
the variation
of the
terms of
such liability
in connection
with the
exercise of the write-down and conversion powers of any EEA Resolution Authority.
17.15.
Acknowledgement Regarding Any Supported QFCs
.
To the extent
that the
Loan Documents provide support,
through a guarantee or
otherwise, for Hedge Agreements
or any
other agreement or instrument that
is a QFC (such support,
"QFC Credit Support" and each
such
QFC a
"Supported QFC"),
the parties
acknowledge and
agree as
follows with
respect to
the
resolution power of
the Federal Deposit
Insurance Corporation under the
Federal Deposit
Insurance Act and
Title II of
the Dodd-Frank Wall
Street Reform and
Consumer Protection Act
(together with the regulations promulgated thereunder, the "U.S. Special Resolution Regimes") in
respect of such
Supported QFC
and QFC Credit
Support (with
the provisions
below applicable
notwithstanding that
the Loan
Documents and
any Supported
QFC may
in fact
be stated
to be
governed by the
laws of the
State of New
York
and/or of the
United States or
any other state
of
the United
States).
In the
event a
Covered Entity
that is
party to
a Supported
QFC (each,
a
"Covered Party") becomes
subject to a
proceeding under a
U.S. Special Resolution
Regime, the
transfer of such Supported QFC and the benefit of such QFC Credit Support (and
any interest and
obligation in
or under
such Supported
QFC and
such QFC
Credit Support,
and any
rights in
property securing such
Supported QFC or such
QFC Credit Support) from
such Covered Party
will
be effective to the same
extent as the transfer
would be effective under
the U.S. Special Resolution
Regime if the Supported
QFC and such QFC Credit
Support (and any such interest,
obligation and
rights in property) were governed by the
laws of the United States or
a state of the United States.
In the
event a
Covered Party
or a
BHC Act
Affiliate of
a Covered
Party becomes
subject to
a
proceeding under a
U.S. Special Resolution
Regime, Default Rights
under the Loan
Documents
that might
otherwise apply
to such
Supported QFC
or any
QFC Credit
Support that
may be
exercised against such Covered Party are permitted
to be exercised to no greater extent
than such
Default Rights could
be exercised under
the U.S. Special
Resolution Regime if
the Supported QFC
and the Loan Documents were
governed by the laws of
the United States or a
state of the United
States. Without limitation of the foregoing, it is understood and agreed
that rights and remedies of
the parties with respect
to a Defaulting Lender
shall in no
event affect the rights
of any Covered
Party with respect to a Supported QFC or any QFC Credit Support.
17.16.
Judgment Currency
.
If, for the purposes of obtaining judgment in any court,
it is necessary to convert
a sum due hereunder or
any other Loan Document
in one currency into
another currency,
the rate
of exchange
used shall
be that
at which
in accordance
with normal
banking procedures
Agent could
purchase the
first currency
with such
other currency
on the
Business Day preceding that on which
final judgment is given.
The obligation of each Borrower
in respect of any such sum due from it to
Agent or any Lender hereunder or under the other Loan
Documents shall, notwithstanding
any judgment in
a currency (the
"Judgment Currency") other
than that in which
such sum is
denominated in accordance with
the applicable provisions
of this
Agreement (the "Agreement Currency"),
be discharged only to the
extent that on the
Business Day
following receipt by Agent or such Lender, as the case
may be, of any sum adjudged to be so due
in the
Judgment Currency,
Agent or
such Lender,
as the
case may
be, may
in accordance
with
normal banking procedures purchase
the Agreement Currency with the
Judgment Currency.
If the
amount of the Agreement
Currency so purchased is
less than the sum
originally due to
Agent or
any Lender from any
Borrower in the Agreement
Currency, such
Borrower agrees, as a
separate
obligation and notwithstanding
any such judgment,
to indemnify Agent
or such Lender, as
the case
may be, against such loss.
If the amount of the Agreement Currency so purchased is greater than
the sum originally due to
Agent or any Lender in
such currency, Agent or such Lender, as the case
may be, agrees to return
the amount of any excess
to such Borrower (or to
any other Person who
may be entitled thereto under applicable law).
[Signature pages to follow.]
[
SIGNATURE PAGE
TO CREDIT AGREEMENT
]
IN WITNESS WHEREOF
, the parties
hereto have caused this
Agreement to be
executed and delivered as of the date first above written.
BORROWERS:
CORE MOLDING TECHNOLOGIES, INC.
a Delaware corporation
By:
/s/ John P.
Zimmer
Name: John P.
Zimmer
Title: Chief Financial Officer
[
SIGNATURE PAGE
TO CREDIT AGREEMENT
]
WELLS FARGO BANK, NATIONAL
ASSOCIATION
, a national banking association, as
Agent
,
as Lead Arranger, as Book Runner
and as a
Lender
By:
/s/ Matthew J. Barich
Name: Matthew J.
Barich
Its Authorized Signatory
ex102
1
MASTER SECURITY AGREEMENT
Dated as of October 20, 2020
THIS MASTER SECURITY
AGREEMENT
(as amended, supplemented or
otherwise modified
from time to time, this
“
Master Agreement
”) is between (i) FGI
Equipment Finance LLC (“
FGIEF
”), a
Delaware limited liability company, with
an office located at 777 Yamato
Road, Office 135, Boca Raton,
FL 33431, (ii)
Core Molding Technologies,
Inc (“
Debtor
”), a corporation
existing under the
laws of the
State of Delaware,
with principal offices located
at 800 Manor Park
Drive, Columbus, OH
43228, (iii) Core
Composites Corporation, (“
US Guarantor
”), a corporation
existing under the
laws of the
State of Delaware,
with principal offices
located at 800
Manor Park Drive,
Columbus, OH 43228,
and (iv) CC
HPM, S. de
R.L. de C.V.
(“
Mexican Guarantor
” and together
with US Guarantor,
shall be jointly referred
to as the
“
Guarantors
” or a
“
Guarantor
”), a corporation
existing under the
laws of the
United Mexican States,
with
principal offices located
at Avenida Internacional #220,
Parque Industrial VYNMSA
Escobedo, C.P. 66053,
Escobedo, Nuevo Leon,
Mexico.
This Master Agreement
contains the general
terms that apply
to financing
that may be provided from time
to time by Secured Party (defined below)
to Debtor.
Additional terms that
apply to
the financing and
the Collateral
(defined below) shall
be contained on
the Collateral
Schedule
(defined below) and the Note (defined below).
US Guarantor shall enter into the Collateral Schedule with
respect to its own Collateral for the benefit of
Secured Party.
Mexican Guarantor has entered into a Non-
Possessory Pledge Agreement under Mexican laws (
Contrato de Prenda Sin Transmisión
de Posesión
, as
defined in the Spanish language) (the “
Mexican Pledge
”) with respect to its own Collateral for the benefit
of Secured Party.
The Collateral Schedule,
the Mexican Pledge and
this Master Agreement
are collectively
referred to as
a “
CSMA
”.
Each CSMA together
with the Note
shall constitute a
“
Loan Document
”.
Debtor
and Guarantors hereby
agree that FGIEF
shall enter into
and execute the
Collateral Schedule or
the Mexican
Pledge, and that
FGIEF, together with its
successors and assigns,
if any, shall be the
named “
Secured Party
”
in connection with the
loan to be made
by Secured Party to
Debtor under the Note (the
“
Loan
”) and any
other related Debt Documents (defined below).
Secured Party (including its successors and assigns)
may
appoint any
agent to
act on
its behalf.
This Master
Agreement, each
Loan Document
and each
other
document
relating to the Loan, including any additional personal or corporate guaranty, mortgage, pledge,
security agreement, guaranty trust
or any other
act entered into
by Debtor or
Guarantors or by
any other
third party
to guarantee
Debtor’s obligations
under the
Loan (an
“
Obligor
”), is
hereinafter referred
to
individually as a “
Debt Document
” and collectively the “
Debt Documents
”.
Capitalized terms used but
not defined in
this Master Agreement
shall have the
meanings assigned to
such terms as
set forth in
the
applicable Collateral Schedule or Note.
2
1.
SECURITY INTEREST
:
It is agreed
that: (i) US
Guarantor grants to
Secured Party a
security
interest in and
against all property
listed on the
collateral schedule to
be executed as
of the date
hereof,
pursuant hereto and made a part
hereof (each a “
Collateral Schedule
”), and (ii) Mexican Guarantor grants
to Secured Party a security interest in and against all property listed on the Mexican Pledge executed as of
October 13, 2020 to be effective on October 20, 2020, pursuant hereto and made a part hereof , and in and
against any and
all additions, attachments,
accessories and accessions
to such property,
all substitutions,
replacements or exchanges therefor,
and all insurance and/or
other proceeds thereof
(all of the
foregoing
being hereinafter individually
and collectively referred
to as
the “
Collateral
”).
This security interest
is
given to secure the
payment and performance
of all debts,
obligations and liabilities
of any kind whatsoever
of Debtor to Secured Party,
now existing or arising in the future, including but
not limited to the payment
and performance of certain promissory
note to be executed by
Debtor for the benefit of Secured
Party as of
the date
hereof, identified on
the Collateral Schedule
and in
the Mexican Pledge
(the “
Note
”), and
any
renewals, extensions and modifications
of such Note (such
Note, debts, obligations
and liabilities are called
the “
Indebtedness
”).
Debtor and US
Guarantor each authorizes
Secured Party to file
a financing statement
and amendments thereto
describing the Collateral
and containing any
other information required
by the
applicable Uniform Commercial
Code.
In connection with
the Collateral secured
under the Mexican
Pledge,
Mexican Guarantor authorizes
Secured Party to file
such Mexican Pledge
in the Unique Registry
of Mobile
Guarantees in Mexico (
Registro Único de Garantías Mobiliarias
, as its name is in the
Spanish language).
Debtor and
Guarantors acknowledge
and agree
that Secured
Party may
perfect the
security interest
hereunder and
any Loan
Document directly
or through
any current
or future
agents, representatives
or
bailees.
Debtor and
Guarantors irrevocably grant
to Secured
Party the
power to
sign on
Debtor’s and
Guarantor’s name and generally to act on behalf of Debtor and Guarantors to execute and file applications
for title, transfers of title, financing statements,
notices of lien and other documents pertaining
to any or all
of the Collateral;
this power is coupled with Secured Party’s interest in the Collateral.
Guarantors shall, if
any certificate of title is required or permitted
by law for any of the Collateral, obtain
and promptly deliver
to Secured Party such certificate showing the lien created by the applicable
Debt Documents.
3
2.
COLLATERAL
:
(a) Debtor and
Guarantor agree at all
times during the term
of any Loan that:
(i) subject to Secured Party’s rights under this Master Agreement, any
Loan Document and any other Debt
Documents, Guarantors shall remain
in possession of the Collateral,
except for maintenance and repair
and
except as contemplated
by and subject
to, a consent
to use or
similar agreement, in
form and substance
acceptable to
Secured Party,
in its
sole discretion
(each such
consent to
use agreement,
as amended,
amended and restated or
otherwise modified from time to
time pursuant to the terms
thereof, a “
Consent
to Use Agreement
”), entered into among Secured Party, Debtor,
Guarantors and a subsidiary of Debtor or
Guarantors organized and existing under
the laws of Mexico (“
Subsidiary User
”), with whom Debtor
or
Guarantors have entered into a bailment, operation, manufacturing
or similar agreement pursuant to which
such Subsidiary User has acquired possession and has
agreed to act as depository of
certain Collateral for
all legal effects, except
that Secured Party
shall have the
right to possess
(A) any chattel
paper or instrument
that constitutes
a part
of the
Collateral and
(B) any
other Collateral
in which
Secured Party’s
security
interest may be
perfected only by
possession; (ii) the
Collateral is and
will remain, free
and clear of
all liens,
claims and encumbrances of any kind whatsoever, except for (A) liens in favor of Secured Party, (B) liens
for taxes not yet due or for taxes being contested in good faith and which do not involve,
in
the reasonable
judgment of
Secured Party,
a material
risk of
the sale,
forfeiture or
loss of
any material
amount of
the
Collateral, (C) inchoate materialmen’s,
mechanic’s, repairmen’s
and similar liens arising
by operation of
law in the ordinary
course of business for
amounts which are not
delinquent, (all of such
liens are called
“
Permitted Liens
”); (iii) the
Collateral is and
will be (A) used
only in Guarantors’
or Subsidiary User’s
trade or business (and not for personal, family or household purposes),
as contemplated under the terms of
the applicable Consent to Use Agreement,
(B) maintained in good operating order and repair, normal wear
and tear
excepted, (C)
used and
maintained in
all material
respects in
compliance with
manufacturers
recommendations and
all applicable
laws and
regulations, and
(D) personal
property that
is solely
and
lawfully owned and
possessed by Guarantors
or by Subsidiary
User, as
contemplated under the
terms of
the applicable Consent to Use Agreement; (iv) Guarantors have the sole right to grant the security interest
in the Collateral
as described herein;
and (v) Guarantors
shall not remove any
of the Collateral
from the
continental United States or Mexico (except as contemplated under the terms of the applicable
Consent to
Use Agreement), or sell, rent, lease, mortgage, license,
grant a security interest in or otherwise
transfer or
encumber (except for Permitted Liens) any of
the Collateral, (b) Guarantors and/or Subsidiary User
shall,
at all times, keep accurate and complete records of the
Collateral, and Secured Party shall have the right to
(i) inspect and make
copies of all of Guarantors’
and/or Subsidiary User’s books
and records relating to the
Collateral and (ii) inspect any
of the Collateral, in each
case, during normal business hours
and after giving
Debtor reasonable prior notice, (c) if Secured
Party asks, Guarantors will promptly notify Secured
Party in
writing of the
location of any
Collateral, and if
an Event of
Default has occurred
and continuing, Guarantors
will not move the Collateral
from its then current location
.
Debtor shall cause each Subsidiary User,
and
shall be responsible for each Subsidiary User, to comply with such covenants.
3.
REPORTS
:
(a) If not or no longer publicly available on or before the applicable due
date for any
financial statements or
reports specified below,
Debtor and Guarantors
will deliver or
make available to
Secured Party
(i) complete
financial statements
of Debtor
and Guarantors
prepared in
accordance with
generally accepted accounting principles,
consistently applied, certified by
a recognized firm of
certified
public accountants within
120 days
of the close of Debtor’s and
Guarantors’ fiscal year and (ii) copies of
Debtor’s and Guarantors’
quarterly financial report
certified by the
chief financial officer
of Debtor and
Guarantor within
60 days
of the close of each of
their respective fiscal quarters, (b)
Debtor and Guarantors
will furnish annually
with the annual
financial statements provided
pursuant to clause
(a) above, and
at
other times, within
30 days
of Secured Party’s request, a certificate of an authorized officer of Debtor and
Guarantor stating that
to the best
of such officer’s
knowledge, there exists
no Event of
Default or event
which with notice or lapse of time (or both) would become
an Event of Default.
4
4.
INSURANCE
:
(a) Guarantors shall at all times
bear the entire risk of any
loss, theft, damage to,
or destruction
of, any
of the
Collateral from
any cause
whatsoever, (b)
Guarantors agree,
at their
own
expense, to keep the Collateral insured with companies
acceptable to Secured Party for such amounts and
against such
hazards as
Secured Party
may reasonably
require, including,
but not
limited to,
all risks
physical damage insurance for
the Collateral itself, including,
but not limited to, loss
or damage by fire and
extended coverage perils, theft,
burglary, and
for any or all
Collateral which are vehicles,
for risk of loss
by collision.
If the Collateral is
used, operated and located
in Mexico, then such
insurance policy shall also
comply with the requirements
established under applicable Mexican
law and shall provide
coverage for the
Collateral at all times that it
is located and operated in Mexico.
The physical insurance coverage shall be
in an amount no
less than the full
replacement value of the
Collateral, and deductible
amounts, insurers and
policies shall be reasonably
acceptable to Secured Party.
Debtor and/or Guarantors
shall deliver to Secured
Party evidence of
insurance reasonably satisfactory
to Secured Party,
within
10 days
of Secured Party’s
request therefor.
Each policy shall
name Secured Party
as loss payee, shall
provide for coverage
to Secured
Party regardless of
the breach by
Debtor or Guarantors
of any warranty
or representation made
therein,
shall not be subject to co-insurance, and shall provide that coverage may not be canceled or
altered by the
insurer except upon 30 days prior written notice to
Secured Party.
Guarantors irrevocably appoint, which
appointment is coupled with an interest,
Secured Party as its attorney-in-fact to
make proof of loss, claim
for insurance
and adjustments
with insurers,
and to
receive payment
of and
execute or
endorse all
documents, checks or
drafts in connection
with insurance payments,
but Secured Party
will not exercise
such power of
attorney unless an
Event of Default
has occurred and
is continuing.
Guarantors will
not
make adjustments with insurers without the prior written consent of Secured Party.
Proceeds of insurance
shall be applied, at
the option of Secured
Party,
to repair or replace
the Collateral or to
reduce any of the
Indebtedness under the Debt Documents; provided
that, so long as no Event of Default
has occurred and is
continuing, within sixty (60) days following receipt of any proceeds of insurance, Guarantors may elect to
apply such proceeds to repair or replace the Collateral.
5
5.
DEFAULTS
:
Debtor and Guarantors
shall be in
default under this
Master Agreement and
each
Loan Document upon
the occurrence of
any of the following
(each an “
Event of Default
”, and collectively,
the “
Events of Default
”):
(i) Debtor fails to pay,
within
10 days
after its due date any installment or other
amount due under this Master
Agreement, any Loan Document
or any other Debt Document;
(ii) Debtor or
Guarantors, without the prior written
consent of Secured Party, attempts to or does
sell all or any fractional
interest in, rent, lease, license,
charter, mortgage, assign, grant a lien on
or security interest in, or otherwise
transfer or encumber (except
for Permitted Liens) any
of the Collateral or
any part thereof; (iii)
a Guarantor
breaches any of its
insurance obligations under this Master
Agreement, any Loan Document or
any other
Debt Document; (iv) Debtor or Guarantors breach any of their covenants or other
obligations under any of
this Agreement, any Loan Document (other than those described elsewhere in this
Section 5) or any other
Debt Document,
and fail
to cure
that breach
within
30 days
after the
earlier of
any officer
of Debtor
becoming aware of
the occurrence thereof
or the giving
of written notice
thereof to Debtor
by Secured Party;
(v) any warranty,
representation or statement
made by Debtor
,
Guarantors or any
Obligor in this
Master
Agreement, any Loan Document or
any other Debt Document or
otherwise in connection with any
of the
Indebtedness shall be false or misleading in
any material respect when made;
(vi) any material amount of
the Collateral
(as determined
by Secured
Party in
its reasonable
discretion) is
subjected to
attachment,
execution, levy,
seizure or confiscation
in any legal
proceeding or otherwise,
or if any
legal or
administrative proceeding is commenced against
Debtor, a Guarantor or any of the Collateral,
which in the
good faith judgment of
Secured Party subjects any material
amount of the Collateral
to a material risk
of
attachment, execution, levy,
seizure or confiscation and no
bond is posted or
protective order obtained to
sufficiently (as determined by Secured
Party in its reasonable
discretion) negate such risk; (vii)
Debtor, a
Guarantor or
any Obligor
breaches or
is in
default in
any material
respect, after
giving effect
to any
applicable cure periods, under any
other agreement by and between
Secured Party (or any of
its affiliates
or parent entities)
on the one
hand, and Debtor
,
a Guarantor or
such Obligor (or
any of their
respective
affiliates or parent entities) on the other hand;
(viii) (A) there is any dissolution or
termination of existence
of Debtor, a
Guarantor or any Obligor
or a Subsidiary User,
(B) Debtor, a
Guarantor or any Obligor
or a
Subsidiary User becomes
insolvent or ceases
to do business
as a going
concern, (C) if
any Obligor or
a
Subsidiary User is a
natural person, any
death or incompetency of
such Obligor, (D) a receiver
is appointed
for all or of any part of the property of Debtor,
a Guarantor or any Obligor or a Subsidiary User, or Debtor
or a Guarantor or
any Obligor or a
Subsidiary User makes any assignment for
the benefit of its
creditors,
or in the event
an such appointment or
assignment is involuntarily
made against Debtor,
a Guarantor or any
Obligor or a Subsidiary User, such appointment or
assignment is not dismissed within
30 days
thereof, or
(E) Debtor
or a
Guarantor or
any Obligor
or a
Subsidiary User
files a
petition under
any bankruptcy,
insolvency or similar law,
or in the event an
involuntary petition is filed against Debtor or
a Guarantor or
any Obligor or a Subsidiary
User under any bankruptcy
or insolvency laws, such
involuntary petition is not
dismissed within
30 days
of the filing date; (ix) Debtor or a Guarantor or any Obligor improperly files, or
causes to be filed,
an amendment or termination
statement relating to a
filed financing statement describing
the Collateral; (x) any
Obligor revokes or attempts
to revoke its obligations
under any guarantee or
Debt
Documents to which it is a party or fails to observe or perform
any covenant, condition or agreement to be
performed under such guarantee or Debt Documents to which it is a party; (xi) Debtor, a Guarantor or any
Obligor defaults
under any
other contract
or obli
gation for
indebtedness in
an amount
greater than
$500,000.00 if such
default results in
the other party
to the agreement
either accelerating the obligations
thereunder or being permitted to
cause such indebtedness to become
due prior to its
stated maturity; (xii)
without the prior written consent of Secured Party,
(A) there is a Change of Control (as defined below) or
(B) there is any
merger or consolidation of Debtor
unless Debtor is the
surviving entity or of
any Guarantor
or Obligor unless Debtor or another Guarantor or another Obligor
is the surviving entity; (xiii) without the
prior written
consent of Secured
Party, either
Debtor, a
Guarantor or any
Obligor sells or
leases all,
or
substantially all,
of its
assets; or
(xiv) (A)
Secured Party
is unable
to register
(1) any
Consent to
Use
Agreement or
(2) any
Debt Document
or other
guaranty granted
by a
Guarantor or
Obligor to
secure
Debtor’s obligations under a Loan
Document, or (3) the Mexican
Pledge, in the Mexican Public
Registry
of Property and Commerce, including
the Section of Sole
Registry of Mobile Guaranties (or
in any other
6
Public Registry whereby a Consent to Use Agreement or a Debt Document has to be registered in Mexico
to have legal
effect against third
parties), or (B)
if there shall
occur a default
under any Consent
to Use
Agreement,
subject to any
materiality thresholds or
cure periods set
forth therein.
Any provision of
this
Master Agreement,
any Loan
Document or
any other
Debt Document
to the
contrary notwithstanding,
Secured Party may exercise all rights and remedies hereunder independently
with respect to the Loan.
For purposes of
this Section 5, “
Change in Control
” means (a) the
acquisition of ownership, directly
or
indirectly, beneficially or of record,
by any person or
group (within the meaning
of the Securities Exchange
Act of 1934 and
the rules of the
Securities and Exchange Commission thereunder as
in effect on the
date
hereof), of equity interests
representing more than 35%
of the aggregate ordinary
voting power represented
by the issued and outstanding equity interests of Debtor, a Guarantor or an Obligor;
or (b) occupation of a
majority of the seats
(other than vacant
seats) on the board
of directors of Debtor,
a Guarantor or
an Obligor
by persons who were neither (i) directors of such parties on the date hereof, (ii) nominated by the board of
directors of such
parties,
nor (iii) appointed
by directors so
nominated; or (c)
Debtor, a
Guarantor or an
Obligor at any time ceases, directly or indirectly to own, free and clear of all liens or other encumbrances,
the majority stake of the issued and outstanding equity interests of
a Subsidiary User or a Guarantor or an
Obligor which is a related party of Debtor as of the date hereof.
7
6.
REMEDIES
:
(a) Upon the
occurrence of any
Event of Default
described in Section
5(viii)(E), any
and all of
the Indebtedness shall automatically
become immediately due and
payable, without any action
by any person
or entity.
Upon the occurrence of
any other Event
of Default and during
the continuation
thereof, Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and
payable, upon demand and
notice to Debtor or
any Guarantor or any
Obligor.
All obligations and liabilities
then due and
payable under the
Debt Documents shall
bear interest from
the occurrence of
the Event of
Default (both before
and after any
judgment) until paid
in full at
a per annum
rate equal to
the lower of
12.50% and
the maximum rate
not prohibited by
applicable law (the
“
Per Diem
Interest Rate
”).
The
application of such Per Diem Interest Rate shall
not be interpreted or deemed to extend any
cure period set
forth herein, cure any default or
otherwise limit Secured Party’s right or remedies hereunder.
(b) Upon the
occurrence of any Event of Default and during the continuation
thereof, Secured Party shall have all of the
rights and remedies
of a secured
party under the
Uniform Commercial Code,
and under any
other applicable
law, including, without limitation, to (i) notify any
account Debtor or any Guarantor
or any Obligor on any
instrument which constitutes proceeds
of the Collateral to
make payment to Secured
Party, (ii)
enter any
premises where the Collateral may be and take possession of and remove the Collateral from the premises
or store it on the premises, (iii) sell
the Collateral at public or private sale,
in whole or in part, and have
the
right to
bid and
purchase at such
sale or (iv
)
lease or
otherwise dispose of
all or
part of
the Collateral,
applying proceeds from such disposition to the obligations then in default.
If requested by Secured Party,
Guarantors shall promptly assemble the
Collateral and make it available
to Secured Party at a
place to be
designated by Secured
Party which is
reasonably convenient to
both parties.
Secured Party may
also render
any or all
of the Collateral
unusable at any
Guarantors’ premises and
may dispose of
such Collateral on
such premises without liability
for rent or costs.
Any notice that Secured
Party is required to
give to Debtor
or Guarantors under
the Uniform Commercial
Code of the
time and place
of any public
sale or the
time
after which any private sale
or other intended disposition of
the Collateral is to be made
shall be deemed to
constitute reasonable notice if such
notice is personally served on
or mailed, postage prepaid, to
the Debtor
or to any Guarantor at
their last known address
at least
15 days
prior to such action.
Debtor and Guarantors
shall cause Subsidiary User, and shall
be responsible for Subsidiary User, to cooperate and
assist with the
compliance of the provisions
set forth in this Section 6 and
to acknowledge each of such Secured Party’s
rights and remedies. (c) Upon the occurrence of any Event of Default and during the
continuation thereof,
Secured Party shall have
the right to any
proceeds of sale,
lease or other disposition
of the Collateral, if
any,
and the right to apply any amounts so collected
or (as the case may be) otherwise collected
from Debtor or
Guarantors
or any
Obligor
pursuant to
this Section
6 or
under any
Loan Document or
any other
Debt
Document in the following order
of priorities:
(i) to pay all of Secured Party’s costs, charges
and expenses
incurred in
enforcing its
rights under
this Master
Agreement, any
Loan Document
or any
other Debt
Document or in taking, removing, holding, repairing,
refurbishing, selling, leasing or otherwise disposing
of the Collateral;
then, (ii) to
pay any and
all late fees,
per diem fees,
other such charges
due under this
Master Agreement, any Loan
Document or any other
Debt Document, any and
all interest due under
this
Master Agreement, any Loan Document or any
other Debt Document, and all amounts owing
pursuant to
any indemnity claims; then (iii)
to pay all principal due under
any Loans; then (iv) to
pay all other amounts
due and
owing to
Secured Party
under this
Master Agreement, any
Loan Document
or any
other Debt
Document; then (v) any surplus shall be
remitted to Debtor, Guarantor
or Obligor or (as the case
may be)
any other party legally
entitled thereto.
Debtor shall remain liable
for and pay any
deficiency in (i),
(ii),
(iii) and (iv) promptly upon
demand.
(d) Debtor and Guarantors agree
to pay all reasonable attorneys’
fees
and other
costs incurred
by Secured
Party in
connection with
the enforcement,
assertion, defense
or
preservation of Secured Party’s rights and remedies under this
Master Agreement, any Loan Document or
any other Debt Document,
or if prohibited by
law, such
lesser sum as may
be permitted, and
Debtor and
Guarantors further agree that such fees and
costs shall constitute Indebtedness.
(e) Secured Party’s rights
and remedies
under this
Master Agreement,
any Loan
Document and
the other
Debt Documents
or
otherwise arising are cumulative
and nonexclusive of any
other rights and remedies
that Secured Party may
have under any other agreement or
at law or in equity and
may be exercised individually or concurrently,
and any or all
thereof may be exercised
instead of or in
addition to each other
or any remedies at
law, in
8
equity, or under statute.
Neither the failure nor
any delay on the
part of Secured Party
to exercise any right,
power or privilege under
this Master Agreement or
any other Debt Document
shall operate as a
waiver, nor
shall any single or partial exercise
of any right, power or privilege
preclude any other or further
exercise of
that or any other
right, power or privilege.
SECURED PARTY
SHALL NOT BE DEEMED
TO HAVE
WAIVED ANY
OF ITS RIGHTS
UNDER THIS MASTER
AGREEMENT OR UNDER ANY
OTHER
DEBT DOCUMENT
UNLESS SUCH
WAIVER
IS EXPRESSED
IN WRITING
AND SIGNED
BY
SECURED PARTY.
A waiver on any
one occasion shall not
be construed as a
bar to or waiver
of any right
or remedy on any
future occasion.
Except as provided in
Section 6(b) above, Debtor
and Guarantors waive
notice of
sale or
other disposition
(and the
time and
place thereof),
and the
manner and
place of
any
advertising, and any other
notice required to be
given under the Uniform
Commercial Code.
Secured Party
shall have no obligation to marshal any of the Collateral.
7.
ASSIGNMENT
:
DEBTOR SHALL
NOT SELL,
TRANSFER, ASSIGN,
ENCUMBER OR
SUBLET ANY COLLATERAL
OR THE INTEREST OF DEBTOR IN THIS MASTER
AGREEMENT,
ANY LOAN DOCUMENT,
ANY OTHER
DEBT DOCUMENTS OR
ANY LOAN, IN
EACH CASE
WITHOUT THE PRIOR
WRITTEN CONSENT OF
SECURED PARTY.
Secured Party may,
without
notice to or the consent of Debtor or Guarantors, assign, sell,
or transfer in whole or in part its interests in
this Master
Agreement, any
Loan, any
Loan Document,
any other
Debt Document,
its interest
in any
Collateral, the right to enter into
any Loan Document or any
of its rights under this Master
Agreement, any
Loan Document
or any
other Debt
Documents (in
each case,
a “
Secured Party
Transfer
”).
Upon a
Secured Party Transfer of Secured Party’s entire right and interest under this Master Agreement, any
Loan
Document or any other Debt Documents, Secured Party shall automatically be relieved,
from and after the
date of such
Secured Party Transfer,
of liability for
the performance of
any obligation of
Secured Party
contained in
this Master Agreement,
any such
Loan Document or
any such Debt
Documents arising or
accruing from
or after
such Secured
Party Transfer.
Debtor and
Guarantors agree
that, if
Debtor or
Guarantors receive written notice
of an assignment from
Secured Party, Debtor and Guarantors will pay
all
installments and other amounts
due under any assigned Loan
Document to such assignee or
as instructed
by Secured Party.
Debtor and Guarantors
also agree to
confirm in writing,
and to cause
any Obligor to
confirm in writing, receipt
of the notice of
assignment as may be
reasonably requested by assignee.
Debtor
and Guarantors
hereby waive
and agree
not to
assert against
any such
assignee any
defense, set-off,
recoupment claim
or counterclaim
which Debtor
or Guarantors
have or
may at
any time
have against
Secured Party for any reason whatsoever.
9
8.
INDEMNIFICATION
:
DEBTOR AND GUARANTORS HEREBY AGREE
TO INDEMNIFY,
DEFEND AND
HOLD HARMLESS
EACH OF
(1) SECURED
PARTY,
(2) THE
AFFILIATES OF
SECURED PARTY,
(3) ANY PARTICIPANTS,
(4) ANY SUCCESSORS AND ASSIGNS OF ANY OF
THE FOREGOING AND
(5) ALL
OF THEIR RESPECTIVE
DIRECTORS, SHAREHOLDERS,
OFFICERS, EMPLOYEES,
AGENTS, PREDECESSORS, ATTORNEYS
-IN-FACT AND
LAWYERS
(EACH AN “
INDEMNIFIED PARTY
”) (ON AN AFTER-TAX
BASIS) FROM AND AGAINST ANY
AND ALL LOSSES,
DISPUTES, PENALTIES,
CLAIMS, EXPENSES (INCLUDING WITHOUT
LIMITATION
LEGAL EXPENSES, INCLUDING
WITHOUT LIMITATION
THOSE INCURRED IN
CONNECTION WITH
RESPONDING TO
SUBPOENAS, THIRD
PARTY
OR OTHERWISE)
DAMAGES AND LIABILITIES (INCLUDING WITHOUT LIMITATION
ENVIRONMENTAL
LIABILITIES) OF WHATSOEVER
KIND AND NATURE
ARISING OUT OF OR
IN CONNECTION
WITH OR
RELATING
TO ANY
COLLATERAL,
THIS MASTER
AGREEMENT OR
ANY LOAN
DOCUMENT OR ANY
OTHER DEBT DOCUMENT
(COLLECTIVELY,
“
CLAIMS
”), REGARDLESS
OF WHETHER SUCH
INDEMNIFIED PARTY
IS A PARTY
THERETO AND WHETHER
IN LAW
OR EQUITY,
OR IN
CONTRACT, TORT
OR OTHERWISE;
PROVIDED, HOWEVER,
THAT
NO
INDEMNIFIED PARTY
SHALL BE
ENTITLED TO
INDEMNITY HEREUNDER IN
RESPECT OF
ANY CLAIM TO THE
EXTENT THAT SUCH CLAIM IS FOUND BY
A FINAL, NON-APPEALABLE
JUDGMENT OF A
COURT OF
COMPETENT JURISDICTION TO
HAVE
RESULTED DIRECTLY
FROM THE GROSS
NEGLIGENCE OR
WILLFUL MISCONDUCT OF
SUCH INDEMNIFIED
PARTY.
Debtor and Guarantors shall
pay on demand to
each Indemnified Party any
and all amounts
necessary to
indemnify such
Indemnified Party from
and against
any Claims.
In the
event an
Indemnified Party
is
notified, served or otherwise make aware of a
Claim against such Indemnified Party, it shall notify of such
claim to Debtor
and shall provide
to Debtor with
a copy of
the Claim’s documentation
that is on
Indemnified
Party’s possession.
Debtor shall have the right to be informed
of the proceeding related to each Claim and
may issue recommendations to
Indemnified Party, as per the advice
of its legal advisors;
provided however
that Indemnified Party shall not be obliged
to follow or accept any of Debtor’s recommendations
or advice
and such shall
not release, reduce,
nullify, invalidate or otherwise
affect Debtor’s or
Guarantors’ obligations
under this Section.
Indemnified Party shall defend itself
in such Claim following its
own legal counsel’s
recommendations, advise and
actions.
The rights, privileges
and indemnities set
forth in this
Section 8 shall
survive the expiration or other cancellation or termination of this Master
Agreement.
10
9.
REPRESENTATIONS,
WARRANTIES &
COVENANTS OF
DEBTOR AND
GUARANTORS
:
(a) Debtor and Guarantors make each of the following representations and
warranties
to Secured Party
on the date
hereof and on
the date of
the making
of each Loan:
(i) Debtor’s and
Guarantors’
exact legal name and jurisdiction of organization or formation
is as set forth in the preamble of this Master
Agreement and such jurisdiction is Debtor’s and Guarantors’
“location” (within the meaning given
to such
term in Article
9 of the Uniform
Commercial Code); (ii) Debtor
and each Guarantor has
adequate power
and capacity to enter into, and
to perform its obligations under this
Master Agreement and the other Debt
Documents; (iii) this
Master Agreement and
the other Debt
Documents have been
duly authorized, executed
and delivered by Debtor and Guarantors and constitute legal, valid and binding agreements enforceable in
accordance with their
terms, except to
the extent that
the enforcement of
remedies may be
limited under
applicable bankruptcy
and insolvency
laws; (iv)
no approval,
consent or
withholding of
objections is
required from, and no
notice is required to be
given to, any governmental authority or
instrumentality, or
any other person or entity, with respect to the entry into, or performance,
by Debtor and Guarantors of any
of the Debt Documents,
except any already obtained;
(v) the entry into,
and performance,
by Debtor and
Guarantors of the Debt
Documents will not (A) violate
any of the organizational
documents of Debtor or
Guarantors or any judgment, order, law or regulation applicable to such parties,
or (B) result in any breach
of or
constitute a default
under any contract
to which Debtor
or Guarantors are
a party,
or result in
the
creation of any lien, claim or encumbrance on any of Debtor’s or Guarantors’ property (except for liens in
favor of Secured Party) pursuant to any indenture, mortgage, deed of trust, bank loan, credit
agreement, or
other agreement
or instrument
to which
Debtor or
Guarantors are
a party;
(vi) there
are no
suits or
proceedings pending in any court or before any commission, board or
other administrative agency against
or affecting Debtor or Guarantors which could, in
the aggregate, have a material adverse effect
on Debtor
or Guarantors,
their business
or operations,
or their
ability to
perform their
obligations under
the Debt
Documents, nor does Debtor or
a Guarantor have reason to
believe that any such suits or
proceedings are
threatened.
(b) Debtor and Guarantors hereby covenant
to Secured Party that at
all times during the term
of the Loan that
Debtor and each Guarantor
is, and will remain,
(i) validly existing and
in good standing
under the laws
of the state
of its
formation (specified in
the preamble of
this Master Agreement)
and a
“registered organization” (within the meaning given to such term in Article 9
of the Uniform Commercial
Code); (ii) duly qualified and
licensed in every jurisdiction wherever
necessary to carry on its business
and
operations, including the jurisdiction(s) where the
Collateral is or is
to be located; (iii)
in full compliance
with all
laws and
regulations applicable
to it,
including, without
limitation, compliance
with the
USA
PATRIOT
ACT and all applicable Bank Secrecy Act (“
BSA
”) laws, regulations and government guidance
on BSA
compliance and
on the
prevention and
detection of
money laundering
violations and
terrorist
financings; and
shall ensure that
neither Debtor nor
Guarantors nor any
person who owns
a controlling
interest in or otherwise controls Debtor or Guarantors is or shall be (A) listed on
the Specially Designated
Nationals and
Blocked Person
List maintained
by the
Office of
Foreign Assets
Control (“
OFAC
”),
Department of the Treasury, and/or
any other similar
lists maintained by
OFAC pursuant to any authorizing
statute, Executive Order or
regulation or (B) a
person designated under Section
1(b), (c) or (d)
of Executive
Order No.
13224 (September 23,
2001), any related
enabling legislation or
any other
similar Executive
Orders.
(c) Debtor
and Guarantors
shall report
and pay
promptly when
due all
taxes, license
fees,
assessments and public
and private charges levied
or assessed on
any of the Collateral,
on its use,
operation,
purchase, ownership, delivery,
leasing or possession
thereof, or on
this Master Agreement
or any of
the
other Debt Documents
(or any receipts
hereunder and thereunder),
by any governmental
entity or taxing
authority, including foreign
authorities, during or related
to the term of
this Master Agreement, or
to any
other period during
which Debtor or
Guarantors or
a Subsidiary User
had use or
possession of the
Collateral,
including, without limitation, all license and registration fees, and all sales, use, personal property,
excise,
gross receipts, franchise,
stamp or other
taxes, imposts, duties
and charges,
together with any
penalties,
fines or interest
thereon (collectively “
Taxes
”).
Debtor and Guarantors
shall have no
liability for Taxes
imposed by
the United
States of
America or
any state
or political
subdivision thereof
which are
on or
measured by the net
income of Secured Party.
Debtor and Guarantors shall
promptly reimburse Secured
Party (on an after-tax basis) for any Taxes
charged to or assessed against or paid by Secured Party.
Upon
11
request of Secured Party,
Debtor and Guarantors shall send
Secured Party a copy of
each report or return
and evidence
of Debtor’s
and Guarantors’
payment of
Taxes.
(d) At
its option, Secured
Party may (i)
discharge taxes, liens,
security interests or
other encumbrances at
any time levied
or placed on
the Collateral
and (ii) pay for
the maintenance, insurance and
preservation of the Collateral
and effect compliance with
the terms
of this
Master Agreement
or any
of the
other Debt
Documents; provided
that Secured
Party
provides five business
days’ advance notice
before making any
such payment; provided
further that, the
foregoing proviso shall
not apply with
respect to any
payment owing by Debtor
or Guarantors under
the
Debt Documents.
Debtor and Guarantors agree to reimburse Secured Party, on demand, for all reasonable
costs and expenses incurred by Secured Party in connection with
such payment or performance and agrees
that such reimbursement obligation shall constitute Indebtedness.
12
10.
MISCELLANEOUS
:
(a) THE PARTIES HERETO, TO THE
EXTENT PERMITTED BY
LAW,
WAIVE
ALL RIGHT TO
TRIAL BY JURY
IN ANY ACTION,
SUIT, OR
PROCEEDING ARISING
OUT OF, IN CONNECTION WITH OR RELATING TO,
THIS MASTER AGREEMENT, ANY LOAN,
ANY LOAN DOCUMENT, ANY OTHER DEBT DOCUMENTS AND ANY OTHER TRANSACTION
CONTEMPLATED HEREBY
AND THEREBY.
THIS WAIVER
APPLIES TO ANY
ACTION, SUIT
OR PROCEEDING WHETHER ARISING IN TORT,
CONTRACT OR OTHERWISE.
The laws of the
State of
New York
shall govern all
matters arising out
of, in connection
with or relating
to this
Master
Agreement or any Loan Document, including, without limitation,
its validity, interpretation, construction,
performance and enforcement
(including, without limitation, any
claims sounding in
contract or tort
law
arising out of
the subject matter
hereof and any
determinations with respect
to post-judgment interest).
Any
legal action
or proceeding with
respect to
this Master Agreement,
any Loan Document,
any other Debt
Document (except if such Debt Document establishes express and exclusive submission of the parties to a
foreign jurisdiction,
in which
case such
foreign jurisdiction
shall apply)
or any
Loan shall
be brought
exclusively in the federal or state
courts located in the State
of New York,
the County of New York,
and,
by execution and delivery
of this Master Agreement
or any Loan Document,
Debtor and Guarantors hereby
accept for themselves and in
respect of their property, generally and unconditionally, the jurisdiction of
the
aforesaid courts.
Debtor and Guarantors hereby irrevocably waive any objection, including any objection
to the laying of
venue or based on
the grounds of forum
non conveniens, that they
may now or
hereafter
have to
the bringing
of any
such action
or proceeding
in such
courts.
Notwithstanding the
foregoing,
Secured Party shall
have the right
to apply to
a court of
competent jurisdiction in
the United States
or abroad
for equitable relief
as is necessary
to preserve, protect
and enforce its
rights relating to and/or
under this
Master Agreement,
any Loan Document and
any Debt Document,
including without limitation, orders
of
attachment, execution
of foreign
guaranties or
injunction necessary
to maintain
the status
quo pending
litigation or to enforce judgments against Debtor,
any Guarantor, any Obligor,
any Subsidiary User or the
Collateral or to
gain possession of
the Collateral or
any other collateral
or property pledge or
mortgaged
under any Debt Document.
Mexican Guarantor hereby irrevocably
designates and appoints Debtor, with
an
address at 800
Manor Park Drive,
P.O.
Box 28183, Columbus,
Ohio, 43228-0183, United
States of America,
as its attorney-in-fact to
receive service of process
in any such action,
suit or proceeding, it
being agreed
that actual service upon
such attorney-in-fact shall constitute
valid service upon Mexican
Guarantor, and
its successors
or assigns
as appropriate.
For such
purposes, Mexican
Guarantor grants
to Debtor
an
irrevocable power of attorney in
order for Debtor to,
on behalf of Mexican
Guarantor, hear,
receive, sign
or accept any kind
of summons, service of
process, including personal summons or
notifications, service
of process resulting
from third parties
actions, judicial proceedings or
filings and any
kind of judicial
or
private notification made by
any judicial or administrative authority
of the United States of
America and of
any of
its states,
counties, cities
or entities
that are
part of
such country,
in any
jurisdiction, all
of the
foregoing, in connection with this Master Agreement. When requested by Secured
Party,
Mexican
Guarantor shall grant an irrevocable power of attorney in accordance with Mexican laws, to be attested by
a Mexican Notary
Public, in the
form and substance
requested by Secured
Party.
Mexican Guarantor hereby
agrees that the designation of Debtor
set forth above is made for
the express benefit of Secured Party and
its successors and
assigns or any
other beneficiary of
this Master Agreement.
Mexican Guarantor covenants
and agrees that so long as this Master Agreement shall be in effect, it shall maintain Debtor
(or such other
agent as Secured Party
shall consent to in
writing) as its duly
appointed agent for the
service of process and
other legal processes in the United States of
America.
(b) It is the intention of the parties
hereto to comply
with any applicable usury
laws; accordingly, it is agreed
that, any provisions in
this Master Agreement, any
Loan Document, or any
other Debt Document to
the contrary notwithstanding,
in no event shall
this Master
Agreement, any Loan Document or any
other Debt Document require the payment or
permit the collection
of interest or any amount
in the nature of
interest or fees in
excess of the maximum amount permitted
by
applicable law
as now
or hereafter
construed by
a court
of competent
jurisdiction.
If any
such excess
interest is contracted for,
charged or received pursuant
to this Master Agreement, any
Loan Document or
any other Debt
Document, or in
the event that
all of the
principal balance under
this Master Agreement,
any Loan Document or any
other Debt Document shall be
prepaid, so that under any
of such circumstances
13
the amount of
interest contracted for,
charged or received
shall exceed the
maximum amount of
interest
permitted by applicable
law as so
construed, then in
such event
any such
excess which
may have been
collected shall,
at Secured
Party’s option,
either be
credited to
the unpaid
principal balance of
or other
amounts payable
under this
Master Agreement, any
Loan Document
or any
other Debt Document
as a
prepayment of principal or
such other amounts, without
any prepayment fee, or
refunded to Debtor, and the
effective rate
of interest
shall automatically
be reduced
to the
maximum lawful
rate allowed
under
applicable law as
now or hereafter
construed by a
court of competent
jurisdiction.
Without limiting the
foregoing, all calculations
of the rate
of interest contracted
for, charged
or received with
respect to this
Master Agreement, any Loan Document or
any other Debt Document, which are
made for the purpose of
determining whether
such rate
exceeds the
maximum lawful
contract rate,
shall be
made, to
the fullest
extent permitted by applicable
law, by amortizing, prorating, allocating and
spreading in equal parts
during
the period of the
full stated term of the
Indebtedness, all interest at any time
contracted for, charged
to or
received from Debtor or
Guarantors in connection with
such Indebtedness.
Notwithstanding the foregoing,
if any applicable law is amended or the law of the
United States of America preempts any applicable law,
so that it
becomes lawful for
Secured Party to
receive a greater
interest per annum
rate than is
presently
allowed, Debtor and Guarantors agree that, on the effective date of such amendment or preemption, as the
case may be,
the lawful maximum hereunder
shall be increased to
the maximum interest
per annum rate
allowed by the
amended law or
the law of the
United States of
America.
(c) All notices required
to be given
under this Master
Agreement and any Loan
Document shall be deemed
adequately given if delivered
by
hand, or sent by registered or certified
mail to the addressee at its address above, or
at such other place as
such addressee may
have designated
in writing.
(d) Secured
Party may upon
10
days written notice
to
Debtor or
Guarantors correct patent
errors and
fill in
all blanks
in this
Master Agreement, in
any Loan
Document or in any other Debt Document consistent with the agreement of the
parties.
(e) Time is of the
essence of this Master Agreement.
This Master Agreement shall be
binding, jointly and severally, upon all
parties described
as the
“Debtor” or
“Guarantors” and their
respective heirs, executors,
representatives,
successors and assigns, and shall inure to the
benefit of Secured Party,
its successors and assigns.
(f) The
unenforceability of any
provisions hereof or
of the Debt
Documents shall not
affect the validity of
any other
provision hereof or thereof.
(g) Debtor and Guarantors hereby acknowledge and agree that Secured Party
reserves the right to impose fees or
charges for returned checks and certain
optional services that Secured
Party may
offer or
provide to
Debtor during
the term
of this
Master Agreement
or any
other Debt
Documents.
Secured Party will notify
Debtor the amount of the
applicable fee or charge if
Debtor requests
such optional
services.
In addition,
Secured Party may
make available
to Debtor
a schedule
of fees or
charges for such
optional services from time
to time or
upon demand, provided, however,
that such fees
and charges are subject
to change in
Secured Party’s sole discretion
without notice to
Debtor.
(h) Any Loan
and Debt Documents
relating thereto constitute
the entire agreement
of the parties
with respect to
the subject
matter thereof.
NO VARIATION
OR MODIFICATION
OF ANY
DEBT DOCUMENT
SHALL BE
VALID
UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE
OF
SECURED PARTY
AND THE PARTIES
THERETO.
(i) This Master
Agreement shall continue in
full
force and
effect until
all of
the Indebtedness
has been
indefeasibly paid
in full
to Secured
Party or
its
successor or
assignee.
The surrender,
upon payment
or otherwise,
of any
Note or
any of
the other
documents evidencing
any of
the Indebtedness
shall not
affect the
right of
Secured Party
to retain
the
Collateral for such
other Indebtedness as
may then exist.
This Master Agreement shall
automatically be
reinstated if Secured
Party is ever
required to return
or restore the
payment of all
or any portion
of the
Indebtedness (all
as though
such payment
had never
been made).
(j) This
Master Agreement
and any
amendments, waivers,
consents or
supplements hereto
in connection
herewith may
be executed
in any
number of counterparts, all of which
taken together shall constitute one
and the same instrument.
Delivery
of an
executed signature
page of
this Master
Agreement or
of any
other Debt
Document by
electronic
transmission shall be as effective as delivery
of a manually executed counterpart thereof.
(k) To the extent
that any Note
and Collateral Schedule
would constitute chattel
paper, as such term
is defined in
the Uniform
Commercial Code as
in effect
in any applicable
jurisdiction, no security
interest therein may
be created
through the
transfer or
possession of
this Master
Agreement in
and of
itself without
the transfer
or
14
possession of
the original
of a
such Note
and Collateral
Schedule executed
pursuant to
this Master
Agreement and
incorporating this
Master Agreement
by reference.
(1) Credit
to Debtor’s
account for
payments made under
any Loan Document
may be delayed
if payment is
(i) not received
at the Secured
Party’s payment address indicated in
Secured Party’s invoice or other
instructions from Secured
Party from
time to
time or
(ii) not
accompanied by Secured
Party’s invoice
number.
Preferred forms
of payment
include direct debit,
wires, company checks and
certified checks.
Payment in any other
form may delay
processing or be
returned to Debtor.
Delayed credit may
cause Debtor to
incur a late
payment fee.
All
credits for payments
of Debtor’s account
for any Loan
are subject to
final payment by
the institution on
which the item of payment
was drawn.
(m) Without prejudice to any of
the rights and remedies of
Secured
Party under any
Loan Document or
any of the
other Debt Documents,
all written communication
concerning
disputed amounts,
including any
check or
other payment
instrument that
(i) indicates
that the
written
payment constitutes
“payment in full”
or is
tendered as
full satisfaction
of a
disputed amount or
(ii) is
tendered with other conditions
or limitation must be mailed
or delivered to the Secured
Party at the address
for billing
inquiries and/or
correspondence shown
on the
invoice or
statement and
not to
the payment
address.
(n) Debtor
and each
of Debtor’s
affiliates and
Guarantors and
each of
Guarantors’ affiliates
authorize Secured Party to disclose information about Debtor, Debtor’s affiliates, Guarantors, Guarantors’
affiliates, any Collateral
and any Debt
Document that Secured
Party may at
any time possess
to any Secured
Party affiliate, successor,
assign and/or participant,
whether such information wa
s
supplied by Debtor
or
Guarantors to Secured
Party or otherwise
obtained by Secured
Party.
(o) Debtor and
Guarantors shall, upon
request of Secured Party, furnish to Secured Party
such further information, execute and
deliver to Secured
Party such documents
and instruments (including,
without limitation, Uniform
Commercial Code financing
statements) and shall
do such other
acts and things as
Secured Party may at
any time reasonably request
relating to the perfection or protection of the security interest created by this Master Agreement, any Loan
Document or any
other Debt Document
or for the
purpose of carrying
out the intent
of such Debt
Document,
including without limitation providing any subordinations, releases, landlord waivers, mortgagee waivers,
or control agreements, and similar documents
as may be from time to
time requested by,
and in form and
substance satisfactory
to, Secured
Party.
(p) DEBTOR
AND GUARANTORS
HEREBY
ACKNOWLEDGE THAT
THEY HA
VE NOT
RECEIVED OR
RELIED ON
ANY LEGAL,
TAX,
FINANCIAL OR ACCOUNTING
ADVICE FROM
SECURED PARTY
AND THAT
DEBTOR AND
GUARANTORS HAVE
HAD THE
OPPORTUNITY TO
SEEK ADVICE FROM
THEIR OWN
ADVISORS AND PROFESSIONALS IN THAT REGARD.
[REMAINDER OF PAGE INTENTIONALLY
IN BLANK]
IN WITNESS WHEREOF, Debtor, Guarantors and FGIEF have caused this Master Agreement to be
executed by their duly authorized representatives as of the date first above
written.
FGIEF
DEBTOR:
FGI EQUIPMENT FINANCE LLC
CORE MOLDING TECHNOLOGIES,
INC.
By:
/s/ Joseph Albertelli
By:
/s/ John P.
Zimmer
Name: Joseph Albertelli
Title: Legal Representative
Name: John P.
Zimmer
Title: Chief Financial Officer
GUARANTORS:
CORE COMPOSITES CORPORATION
CC HPM, S. DE R.L. DE C.V.
By:
/s/ John P.
Zimmer
By:
/s/ John P.
Zimmer
Name: John P.
Zimmer
Title: Chief Financial Officer
Name: John P.
Zimmer
Title: Sole Manager
ex103
1
PROMISSORY NOTE
October 20, 2020
FOR VALUE
RECEIVED,
Core Molding Technologies, Inc.
, a corporation existing
under the laws of the
State of Delaware,
with principal offices located at 800
Manor Park Drive, Columbus, OH 43228, United
States of America (“
Maker
”) promises, jointly and severally if
more than one, to pay to
the order of FGI
Equipment Finance LLC at its
office located at 777
Yamato Road,
Office 135, Boca Raton,
FL 33431 or
any subsequent holder hereof (each, a “
Payee
”) or at such other place as Payee may designate as follows:
(a)
the principal sum of
Thirteen Million Two Hundred Thousand and 00/100
United States Dollars
($13,200,000.00), and
(b)
interest on the unpaid principal balance from November
1
st
, 2020 through and including the dates
of payme
nt, at
a fixed
interest rate
of eight
and one
-quarter percen
t
(8.25%) per
annum (the
“
Contract Rate
”) in seventy-two (72)
consecutive monthly installments of principal
and interest
as follows:
Periodic Installment
Amount
12 (twelve)
59 (Fifty-Nine)
01 (one)
@
@
@
$116,607.75
$246,431.33
$1,446,431.33
(each, a “
Periodic Installment
”) plus any
outstanding and unpaid
accrued interest and
any and all
other
amounts due
hereunder and
under the
other Debt
Documents (as
defined below).
For the
period from
October 27, 2020
(the “
Funding Date
”), through but not
including the date
of the first Periodic
Installment,
Maker shall pay Payee interests on
the unpaid principal balance in the
amount of
Twelve Thousand One
Hundred and
00/100 United
States Dollars
($12,100.00)
; such
payment shall
be due
and payable
on
November 1
st
, 2020.
The first Periodic
Installment, plus (as
applicable) interest accrued
at the Contract
Rate on the
unpaid principal balance
hereunder for the
period from November
1
st
, 2020 through
but not
including the starting
date covered by
such first Periodic
Installment, shall be
due and payable
on December
1
st
, 2020
and the following Periodic
Installments including the final
installment shall be due
and payable
on the first
day of each
succeeding month (each,
a “
Payment Date
”), with the
last Payment Date
being
November 1, 2026.
All payments shall be applied:
first, to interest due
and unpaid hereunder and under
the other Debt
Documents; second, to
all other amounts (other
than principal) due and
unpaid hereunder
and under
the other
Debt Documents,
and then
to principal
due hereunder
and under
the other
Debt
Documents.
The acceptance by Payee
of any payment
which is less
than payment in full
of all amounts
due and owing at such time shall not constitute a waiver
of Payee’s right to receive payment in full at such
time or at
any prior or
subsequent time.
Interest shall be
calculated on the
basis of a
365-day year (or
a
366-day leap year, as applicable) and will be charged
at the Contract Rate for each calendar day on which
any principal is
outstanding.
The payment of
any Periodic Installment
after its due
date shall result
in a
corresponding decrease in
the portion of the
Periodic Installment credited
to the remaining
unpaid principal
balance.
The payment
of any
Periodic Installment
prior to
its due
date shall
result in
a corresponding
increase in the portion of the Periodic Installment credited to the remaining
unpaid principal balance.
2
All amounts due hereunder and under the other Debt Documents are payable in the lawful
currency of the
United States of
America.
Maker hereby expressly
authorizes Payee to
insert the date
value is actually
given in the blank space on the face hereof and on all related documents
pertaining hereto.
This Note is secured
by (i) that certain
Master Security Agreement
dated as of this date,
entered into by and
among Payee,
Maker, Core
Composites Corporation
and CC
HPM, S.
de R.L.
de C.V.
(the “
Master
Agreement
”), and its Collateral
Schedule (the “
Collateral Schedule
”), (ii) that certain
Non-Possessory
Pledge Agreement
under Mexican laws (
Contrato de Prenda Sin Transmisión
de Posesión
, as defined in
the Spanish language) dated
as of October
13, 2020 to
be effective on
October 20, 2020, entered
into by
and among Maker,
CC HPM, S.
de R.L. de
C.V.
and Payee (the
“
Pledge Agreement
”), (iii) that
certain
Irrevocable Unilateral Declaration Granting a
Second Priority Real Estate
Mortgage under Mexican laws
(
Declaración Unilateral de la Voluntad
Irrevocable Sobre Constitución
de Hipoteca en Segundo Lugar y
Grado
, as defined
in the Spanish
language) dated as
of this date,
to be granted
by Corecomposites
de México,
S. de R.L. de C.V. in favor of Payee (the “
Real Estate Mortgage
”), and may also be secured by a
security
agreement, chattel mortgage,
pledge agreement or
like instrument (each
of which is
hereinafter called a
“
Security Agreement
”, and collectively
with this Note,
the Master Agreement,
the Collateral Schedule,
the Pledge Agreement, the Real
Estate Mortgage and any other
document or agreement related thereto
or
to this Note, the
“
Debt Documents
”), in each case
signed by Maker or
one of its subsidiaries in
favor of
Payee.
3
Conditions Precedent to
Funding
.
Payee’s obligation
to make the
loan evidenced by
this Note on
the
Funding Date is subject
to the satisfaction of
all the following conditions precedent
no later than the
date
hereof, each in form
and substance satisfactory
to Payee at its sole
discretion:
(i) Payee shall have
received
an executed
original of
the Collateral
Schedule describing
the Collateral
that secures
this Note
(the
“
Collateral Schedule Collateral
”), duly executed by Core Composites Corporation; (ii) Payee shall have
a first
priority perfected
security interest
in the
Collateral Schedule
Collateral; (iii)
Payee shall
have
received, to
Payee’s complete
satisfaction, an
executed original
of the
public deed
issued by
Mexican
Notary Public containing
the granting of
the Real Estate
Mortgage granted as
of this date
by Corecomposites
de México, S. de R.L. de C.V.
in favor of Payee, in connection with the
real estate located in Matamoros,
Tamaulipas, Mexico that is
described in the
Real Estate Mortgage;
(iv) Payee shall
have received, to
Payee’s
complete satisfaction,
a copy
of the
Preemptive Notice
(
Aviso Preventivo
, as
defined in
the Spanish
language) corresponding to the granting of such Real Estate Mortgage, duly filed in the Public Registry of
Property and Commerce of Matamoros, Tamaulipas,
Mexico, by the Mexican Notary Public who
attested
the Real
Estate Mortgage; (v)
Payee shall
have received, to
Payee’s complete
satisfaction, an executed
original of the Pledge
Agreement, duly executed
by all parties
thereto, with their
representatives’ signatures
duly ratified
by Mexican
or United
States Notary
Public and
with the
Apostille affixed
(only for
such
signatures ratified by United
States Notary Publics)
;
(vi) Payee shall
have received, to
Payee’s complete
satisfaction, an executed
copy of
a pay
-off letter
issued by
KeyBank National Association
, as
administrative agent (“
Lien Holder
”), to Maker confirming (a) the amount that is owed by Maker to Lien
Holder computed as
of the Funding
Date (the “
Pay-off Amount
”), (b) the
wire transfer instructions (the
“Wire Instructions”) in
order for the Pay
-off Amount to be
paid to Lien Holder,
and (c) that immediately
after Lien Holder
has received the
Pay-off Amount in
accordance with the
Wire Instructions, it
shall proceed
to execute and release
the corresponding lien release documents
as required under Mexican laws
in order
to release any and
all liens set on
the Collateral Schedule Collateral,
on the assets that
are pledged under
the Pledge Agreement and
on the Real Estate Mortgage
(the “
Release Documents
”); (vii) Payee shall have
received, to Payee’s complete satisfaction,
written evidence confirming that,
Wells Fargo
Bank, National
Association (“Wells Fargo”)
will, upon receipt from Payee of the proceeds of the loan documented in this
Note, pay,
for the
benefit of
Maker, the
Pay-Off Amount
to Lien
Holder in
accordance with
the Wire
Instructions;
(viii) no
Event of Default
(as defined in
the Security Agreement)
or event
which with the
passage of time or
the giving of notice
would become an Event
of Default (a “
Default
”) has occurred under
the Debt Documents;
(ix) Maker shall
have paid to
Payee: (a) an
opening fee in
the amount of
One Hundred
Sixty Five Thousand and 00/100
United States Dollars
($165,000.00), and (b) a closing
fee in the amount
of
Ten Thousand and 00/100
United States Dollars
($10,000.00), both fees payable on or before October
23, 2020; and (x) as of the date hereof, there will have been no material adverse change (as determined by
Payee in its sole discretion) in the business prospects or
projections, operations, management, financial or
other conditions of the Maker or any Guarantor or
any Obligor (as defined in the Master Agreement)
since
the date of
the Master Agreement.
If any such condition
precedent is not so
satisfied by the date
hereof,
Payee shall have
no obligation to
make the loan
contemplated under this
Note or any
other Debt Documents
related to this Note.
4
Time is
of the
essence hereof.
If Payee
does not
receive from
Maker payment
in full
of any
Periodic
Installment or any other
sum due under this
Note or any other
Debt Document is not
received within ten
(10) days after
its due date: (i)
Maker agrees to
pay a late
fee equal to
four percent (4.00%) on
such late
Periodic Installment or other sum, but not exceeding any lawful maximum, plus such other costs, fees and
expenses that Maker
may owe as
a result of
such late payment;
and (ii) interests
on the due
and unpaid
Periodic Installment, together with all accrued interest thereon and any other
due and unpaid sum payable
under this Note or any other Debt Document, shall
accrue penalty interests payable at demand at the
lesser
of 12.50%
per annum or the highest rate
not prohibited by applicable law until all
such amounts are paid.
Additionally, if
an Event of Default
(as defined in the
Master Agreement) occurs and
is continuing, then
the entire principal
sum remaining unpaid,
together with all
accrued interest thereon
and any other
sum
payable under this Note or
any other Debt Document, at
the election of Payee, shall
immediately become
due and payable with interest thereon at the lesser
of 12.25% per annum or the highest rate not
prohibited
by applicable law
from the date
of such accelerated
maturity until paid
(both before and
after any judgment).
The application of such 12.
25% interest rate shall not
be interpreted or deemed to
extend any cure period
set forth
in this
Note or any
other Debt
Document, cure any
default or
otherwise limit Payee’s
right or
remedies hereunder or under any Debt Document.
Maker may prepay in
full or in part
(but not less than
the amount equal to
20% of the original
principal
amount of this Note) outstanding amounts hereunder before
they are due on any scheduled
Payment Date
upon at least thirty (30) days’ prior
written notice to Payee.
Payee is authorized and entitled to apply any
amounts paid by Maker
as a prepayment of
indebtedness to delinquent
interest or other amounts
(other than
principal) due
and owing from
Maker to
Payee hereunder
and under
any other Debt
Documents before
application of such funds to principal outstanding hereunder.
If Maker makes a prepayment of this
Note for any reason, Maker shall pay
irrevocably and in full to Payee
(i) the principal
amount to be prepaid, (ii) all accrued interest thereon,
(iii) the Prepayment Fee (as defined
below) and
(iv) any
and all
other amounts
due hereunder
or under
the other
Debt Documents.
Maker
specifically acknowledges that,
to the
fullest extent allowed
by applicable law,
it shall
be liable
for the
Prepayment Fee
on any
acceleration hereof
or under
the other
Debt Documents.
In the
event of
an
acceleration hereof or under
the other Debt Documents,
the Prepayment Fee shall
be determined as if
(a)
Maker prepaid this
Note in full
immediately before such
acceleration and (b)
the prepayment notice
referred
to above was received by Payee thirty (30) days prior to such date.
For purposes hereof, the term “
Prepayment Fee
” shall be an amount
equal to an additional
sum equal to
the following percentage of the principal amount to be prepaid for prepayments occurring in the
indicated
period:
four percent (4.0%) (for
prepayments occurring prior to
the first anniversary of
the date hereof);
three percent (3.0%) (for
prepayments occurring on and
thereafter and prior to
the second anniversary of
the date hereof);
two percent (2.0%)
(for prepayments occurring
on and thereafter
and prior to
the third
anniversary of the date hereof); and one percent (1.0%) (for prepayments
occurring any time thereafter).
Maker hereby consents
to any and
all extensions of
time, renewals, waivers
or modifications of,
and all
substitutions or releases of,
security or of any
party primarily or secondarily
liable on this Note
or any other
Debt Document or any
term and provision of
either, which may be
made, granted or consented
to by Payee,
and agrees that suit
may be brought and
maintained against Maker and/or any
and all sureties, endorsers,
guarantors or any others
who may at any
time become liable for
payments and performance
under this Note
and any other Debt Documents,
at the election of Payee without
joinder of any other as a
party thereto, and
that Payee shall not be required
first to foreclose, proceed against, or exhaust
any security hereof in order
to enforce
payment of
this Note.
Maker hereby
waives presentment,
demand for
payment, notice
of
nonpayment, protest, notice
of protest, notice
of dishonor,
and all other
notices in connection
herewith,
except for such notices as are expressly provided for herein or in the Master Agreement,
and agrees to pay
(if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
5
The consent to jurisdiction, jury trial
waiver and usury provisions contained in
the Master Agreement are
hereby incorporated by
reference as if
fully set forth
herein.
The laws of
the State of
New York shall govern
all matters
arising out
of, in
connection with
or relating to
this Note
and any
related Debt
Documents,
without limitation, validity, interpretation,
construction, performance and enforcement thereof (including,
without limitation, any claims sounding in contract or tort law arising out of the
subject matter hereof and
any determinations with respect to post-judgment interest).
This Note and the other Debt Documents constitute the entire agreement of Maker and Payee with respect
to the subject
matter hereof and
supersede all prior
understandings, agreements and
representations, express
or implied.
No variation or modification
of this Note,
or any waiver
of any of its
provisions or conditions,
shall be valid
unless in writing
and signed by
an authorized representative
of Maker and
Payee.
Any such waiver,
consent,
modification or change shall be effective only in the specific instance and for the specific
purpose given.
Payment Authorization.
Payee is hereby irrevocably directed and authorized by Maker to advance
and/or apply the proceeds of the loan as evidenced by this Note following
the instructions set forth below:
Amount to be advanced:
Twelve Million and 00/100
United States Dollars
($12,000,000.00), to be
disbursed directly to Wells Fargo to be applied by it for payment of the Pay-off Amount, to the following
bank account:
Bank Information
:
Bank Name:
Wells Fargo Bank, National Association
Bank Address:
420 Montgomery Street, San Francisco, CA.
ABA:
XXX-XXX-XXX
Beneficiary Information:
Account Name:
Wells Fargo Bank, National Association
Account Number:
XXXXXXXXXXXXXX
Reference:
CORE MOLDING TECHNOLOGIES
Address:
2450 Colorado Avenue.
Suite 3000W, Santa Monica, CA 90404.
Payee is
hereby irrevocably
authorized and
directed by
Maker to
apply from
the proceeds
of the
loan
evidenced by this
Note, the sum
of
One Million
Two Hundred
Thousand and 00/100
United States
Dollars) ($1,200,000.00
), to constitute and deliver to
Payee the Security Deposit pursuant to
the terms of
Collateral Schedule No. 1 that is part of the Debt Documents.
Any provision in this Note or
any of the other Debt
Documents which is in conflict
with any statute, law or
applicable rule shall be deemed omitted, modified or altered to conform
thereto.
6
Core Molding Technologies,
Inc.
By:
/s/ John P.
Zimmer
Name:
John P.
Zimmer
Title:
Chief Financial Officer
Federal Tax ID Number:
31-1481870
Address:
800 Manor Park Drive
Columbus, OH
43228