SEI 8-K
Solaris Energy Infrastructure, Inc. (SEI)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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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.
Securities Purchase Agreement
On March 16, 2026, Solaris Energy Infrastructure, Inc., a Delaware corporation (the “Company”), entered into a Securities Purchase Agreement (the “Purchase Agreement”) with Solaris Energy Infrastructure, LLC, a Delaware limited liability company and operating subsidiary of the Company (“OpCo”), Project G Buyer, LLC, a Texas limited liability company and then a wholly owned subsidiary of the Company (the “Buyer”), Focus Genco Cayman Ltd., an exempted company with limited liability incorporated organized under the laws of the Cayman Islands (“Genco”), the holders of shares of Genco (each, a “Seller” and, collectively, the “Sellers”) and Alan Zelazo, solely in his capacity as the Sellers representative under the Purchase Agreement (the “Sellers Representative”).
Pursuant to the Purchase Agreement, the Buyer acquired 100% of the issued and outstanding ordinary shares of Genco from the Sellers in exchange for (i) 4,182,772 shares of Class A common stock, par value $0.01 per share (the “Common Stock”) of the Company (the “Equity Consideration”), and (ii) approximately $81 million in cash, subject to customary post-closing adjustments for cash, indebtedness, net working capital and transaction expenses.
The Purchase Agreement also provides for certain registration rights to the Sellers, pursuant to which the Company agreed to, upon the terms and subject to the conditions set forth in the Purchase Agreement, register for resale the shares of Common Stock received by the Sellers. In addition, the Purchase Agreement contains covenants by the Sellers, including confidentiality obligations, non-solicitation covenants, and a 90-day lockup restricting the Sellers’ ability to transfer, sell, or otherwise dispose of the Equity Consideration, subject to certain conditions. The Sellers have agreed to indemnify the Buyer and its affiliates for losses arising from breaches of the representations and warranties made by Genco and the Sellers, as well as breaches of covenants or agreements made by the Sellers, subject to customary survival periods, a deductible, and a cap on certain indemnification claims.
The Purchase Agreement contains customary representations and warranties for transactions of its type. The transaction closed simultaneously with the execution of the Purchase Agreement on March 16, 2026.
The representations, warranties and covenants contained in the Purchase Agreement have been made solely for the benefit of the parties thereto. In addition, such representations, warranties and covenants (i) have been made only for purposes of the Purchase Agreement, (ii) have been qualified by matters (a) with respect to the Company specifically disclosed in any reports filed by the Company with the Securities and Exchange Commission (the “SEC”) prior to the date of the Purchase Agreement and (b) made in confidential disclosure schedules delivered in connection with the Purchase Agreement, (iii) are subject to materiality qualifications contained in the Purchase Agreement which may differ from what may be viewed as material by investors, (iv) were made only as of the date of the Purchase Agreement or such other date as is specified in the Purchase Agreement and (v) have been included in the Purchase Agreement for the purpose of allocating risk between the contracting parties rather than establishing matters as fact. Accordingly, the Purchase Agreement is included with this filing only to provide investors with information regarding the terms of the Purchase Agreement, and not to provide investors with any other factual information regarding the parties thereto or their respective businesses. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties to the Purchase Agreement or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Purchase Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures. The Purchase Agreement should not be read alone, but should instead be read in conjunction with the
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other information regarding the Company that is or will be contained in, or incorporated by reference into, the Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and other documents that the Company files with the SEC.
Solaris Power Solutions, LLC, a Texas limited liability company and wholly owned subsidiary of OpCo (“Solaris Power”), is party to that certain Equipment Lease Agreement, dated March 12, 2025, as amended (the “Equipment Lease”), with Focus Genco LLC, a Delaware limited liability company and then a wholly owned subsidiary of Genco (“Genco Delaware”). Under the Equipment Lease, Solaris Power leased two gas turbine units from Genco Delaware, which were acquired as part of the Buyer’s acquisition of Genco.
The foregoing description of the Purchase Agreement does not purport to be complete and is subject to and qualified in its entirety by reference to the full text of the Purchase Agreement attached hereto as Exhibit 2.1.
Term Loan Agreement
On the March 16, 2026, the Company and certain of its subsidiaries entered into a senior secured term loan agreement (the “Term Loan Agreement”) with Goldman Sachs Bank USA, as administrative agent and collateral agent, and the lenders party thereto, pursuant to which the lenders provided term loans in an aggregate original principal amount of $300 million. The Company expects to use the proceeds of such term loans for working capital and other general corporate purposes.
Borrowings under the Term Loan Agreement bear interest, at OpCo’s option, at a rate equal to either (i) Term SOFR plus 3.00% or (ii) the Base Rate plus 2.00% (each as defined in the Term Loan Agreement).
The Term Loan Agreement contains certain covenants that the Company considers customary for a facility of this type, including, but not limited to, limitations on the Company’s and its subsidiaries’ incurrence of additional debt, granting liens, and making dispositions, investments and restricted payments. The Term Loan Agreement also includes financial covenants that require the Company and certain of its subsidiaries to maintain, (i) a ratio of consolidated EBITDA to interest expense of at least 3.00 to 1.00 as of the last day of each fiscal quarter, beginning with the fiscal quarter ending June 30, 2026, (ii) a ratio of consolidated net debt (subject to cash netting limitations) to consolidated EBITDA of not greater than 5.25 to 1.00 as of the last day of each fiscal quarter, beginning with the fiscal quarter ending June 30, 2026, or, for each of the four fiscal quarters immediately following the consummation of the Turbine Purchase Agreement (as defined below), 5.50 to 1.00; a (iii) a ratio of consolidated net secured debt (subject to cash netting limitations) to consolidated EBITDA of not greater than 3.50 to 1.00 as of the last day of each fiscal quarter, beginning with the fiscal quarter ending June 30, 2026; and (iv) minimum unrestricted cash of not less than $50 million.
Borrowings under the Term Loan Agreement may be voluntarily prepaid, without penalty or premium. OpCo is also required to make prepayments with the proceeds of certain indebtedness, upon the issuance of certain equity securities, and (subject to reinvestment rights) upon certain asset dispositions and casualty events. The outstanding amounts under the Term Loan Agreement will mature on March 15, 2027.
To secure borrowings under the Term Loan Agreement, the Company and its subsidiaries have pledged substantially all of their assets as collateral to the collateral agent for the benefit of the lenders.
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Borrowings under the Term Loan Agreement are subject to acceleration upon the occurrence of events of default that the Company considers customary, including, among others, the failure to pay principal or interest, violation of covenants and default on other indebtedness.
The foregoing description of the terms of the Term Loan Agreement is not complete and is qualified in its entirety by reference to the full text of the Term Loan Agreement attached hereto as Exhibit 10.1.
Loan and Security Agreement
On March 16, 2026, the Buyer entered into a Loan and Security Agreement (the “Loan and Security Agreement”) with Eldridge Asset Finance LLC, as administrative agent, and Stonebriar Commercial Finance LLC (“Stonebriar”), as initial lender, pursuant to which Stonebriar provided a term loan in an original principal amount of $148.61 million (the “Stonebriar Term Loan”). The Stonebriar Term Loan is evidenced by a promissory note (“Note”) in favor of the administrative agent for the benefit of the initial lender, indicating the fixed interest rate on the unpaid principal amount of the Stonebriar Term Loan. The Stonebriar Term Loan matures on April 1, 2032, unless paid in full prior to such date.
The Buyer will use the proceeds of the Stonebriar Term Loan to purchase the Stonebriar Collateral described in the Loan and Security Agreement (and described below).
The Loan and Security Agreement contains certain non-financial covenants including, but not limited to, affirmative and negative covenants regarding reporting obligations and limitations on further encumbrance of the Stonebriar Collateral. To secure the Buyer’s obligations under the Loan and Security Agreement and Note, the Buyer has assigned and granted to the administrative agent for the benefit of the lenders a first priority lien on certain of the Buyer’s equipment and related contracts, including the proceeds therefrom, as further described in the Loan and Security Agreement (the “Stonebriar Collateral”). The Buyer’s obligations under the Stonebriar Term Loan are guaranteed by OpCo.
The borrowing under the Loan and Security Agreement and the Note is subject to acceleration upon the occurrence of events of default that the Company considers customary, including, among others, the failure to pay principal or interest, violation of covenants (with certain cure period) and default on other material indebtedness.
The foregoing description of the terms of the Loan and Security Agreement and the Note is not complete and is qualified in its entirety by reference to the full text of the Loan and Security Agreement attached hereto as Exhibit 10.2.
Item 1.02 Termination of a Material Definitive Agreement.
Termination of ABL
On March 16, 2026, substantially concurrently with the closing of the Term Loan Agreement, the ABL Borrowers (as defined below) terminated that certain loan, security and guaranty agreement, dated as of October 2, 2024 (as amended, restated, supplemented or otherwise modified from time to time, the “LSA”), by and among the Company and certain of its subsidiaries, as borrowers (the “ABL Borrowers”), Bank of America, N.A., as agent, and the lenders party thereto. For a description of the LSA, please see “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Term Loan and Revolving Credit Facility” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2025.
In connection with the termination of the LSA, the ABL Borrowers paid all obligations outstanding thereunder and all liens and security interests granted to the agent and the lenders thereunder were released. As of the date of termination, there were no outstanding borrowings under the LSA.
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Item 2.01 Completion of Acquisition or Disposition of Assets.
The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
Item 3.02 Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02. The issuance of the Equity Consideration to the Sellers was completed in reliance upon the exemption from the registration requirements of the Securities Act of 1933, as amended, provided by Section 4(a)(2) thereof as a transaction by an issuer not involving any public offering. The Company relied on this exemption from registration based in part on representations made by the Sellers.
Item 8.01 Other Events.
On March 16, 2026, the Company announced the consummation of the transactions contemplated by the Assignment, Assumption, Novation and Amendment Agreement, dated March 13, 2026 (the “Assumption Agreement”), with Colusa Power Infrastructure Partners, LLC, a Delaware limited liability company (“Colusa”) and Baker Hughes Energy Services LLC, a Delaware limited liability company (“Baker Hughes”), pursuant to which Solaris Power assumed all of Colusa’s right, title, interest, duties, obligations and liabilities in, to and under a Contract Agreement (the “Turbine Purchase Agreement”), by and between Colusa and Baker Hughes. Pursuant to the Assumption Agreement and the Turbine Purchase Agreement, Solaris Power acquired 30 gas turbine generator delivery slots, which are expected to provide approximately 500 megawatts of power generation capacity between early 2027 and 2029.
Item 9.01 Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired
To be filed by amendment not later than 71 calendar days after the date this Current Report on Form 8-K is required to be filed.
(b) Pro Forma Financial Information
To be filed by amendment not later than 71 calendar days after the date this Current Report on Form 8-K is required to be filed.
(d) Exhibits.
| Exhibit Number |
Description | |
| 2.1 | Securities Purchase Agreement among the Company, OpCo, Buyer, Sellers, Target and Sellers Representative, dated as of March 16, 2026. | |
| 10.1 | Term Loan Agreement, dated March 16, 2026. | |
| 10.2 | Loan and Security Agreement, dated March 16, 2026. | |
| 104 | Cover Page Interactive Data File (formatted as inline XBRL). | |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: March 20, 2026
|
|
SOLARIS ENERGY INFRASTRUCTURE, INC. | |
| By: | /s/ STEPHAN E. TOMPSETT | |
| Name: | Stephan E. Tompsett | |
| Title: | Chief Financial Officer | |
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Exhibit 2.1
Execution Version
SECURITIES PURCHASE AGREEMENT
among
SOLARIS ENERGY INFRASTRUCTURE, LLC,
a Delaware limited liability company,
as OpCo,
PROJECT G BUYER, LLC,
a Texas limited liability company,
as the Buyer,
each of the parties listed on the signature pages hereto as a Seller,
FOCUS GENCO CAYMAN LTD.,
a Cayman Islands exempted company with limited liability,
as the Company,
ALAN ZELAZO,
as the Sellers Representative
and
SOLARIS ENERGY INFRASTRUCTURE, INC.,
a Delaware corporation,
as Parent
Dated as of March 16, 2026
TABLE OF CONTENTS
| ARTICLE I DEFINITIONS |
4 | |||||
| Section 1.1 |
Certain Defined Terms | 4 | ||||
| Section 1.2 |
Table of Definitions | 17 | ||||
| ARTICLE II PURCHASE AND SALE |
19 | |||||
| Section 2.1 |
Purchase and Sale of the Shares | 19 | ||||
| Section 2.2 |
Closing | 19 | ||||
| Section 2.3 |
Closing Estimates | 24 | ||||
| Section 2.4 |
Post-Closing Adjustment of Purchase Price | 24 | ||||
| Section 2.5 |
Sellers Representative | 28 | ||||
| Section 2.6 |
Withholding | 29 | ||||
| ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLERS |
29 | |||||
| Section 3.1 |
Organization and Qualification | 29 | ||||
| Section 3.2 |
Authority | 30 | ||||
| Section 3.3 |
No Conflict; Required Filings and Consents | 30 | ||||
| Section 3.4 |
Shares | 31 | ||||
| Section 3.5 |
Acquisition of Parent Common Shares | 31 | ||||
| ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
31 | |||||
| Section 4.1 |
Organization and Qualification | 31 | ||||
| Section 4.2 |
Authority | 32 | ||||
| Section 4.3 |
No Conflict; Required Filings and Consents | 32 | ||||
| Section 4.4 |
Capitalization | 33 | ||||
| Section 4.5 |
Equity Interests | 34 | ||||
| Section 4.6 |
Financial Statements; No Undisclosed Liabilities | 34 | ||||
| Section 4.7 |
Absence of Certain Changes or Events | 35 | ||||
| Section 4.8 |
Compliance with Law; Permits | 37 | ||||
| Section 4.9 |
Litigation | 37 | ||||
| Section 4.10 |
Employee Benefit Plans | 38 | ||||
| Section 4.11 |
Labor and Employment Matters | 40 | ||||
| Section 4.12 |
Title to, Sufficiency and Condition of Assets | 41 | ||||
| Section 4.13 |
Real Property | 42 | ||||
| Section 4.14 |
Intellectual Property | 43 | ||||
| Section 4.15 |
Taxes | 45 | ||||
| Section 4.16 |
Environmental Matters | 49 | ||||
| Section 4.17 |
Material Contracts | 50 | ||||
| Section 4.18 |
Affiliate Interests and Transactions | 52 | ||||
| Section 4.19 |
Insurance | 53 | ||||
| Section 4.20 |
Data Privacy and Cybersecurity | 53 | ||||
| Section 4.21 |
Customers and Suppliers | 54 | ||||
| Section 4.22 |
Accounts Receivable | 55 | ||||
| Section 4.23 |
Bank Accounts; Powers of Attorney | 55 | ||||
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TABLE OF CONTENTS
(Continued)
| Section 4.24 |
Relations With Governments, etc.; Anti-Corruption Matters; Export Control Matters; Sanctions Matters | 55 | ||||
| Section 4.25 |
Outbound Investment | 56 | ||||
| Section 4.26 |
No Critical Technologies, Infrastructure or Data U.S. Business | 56 | ||||
| Section 4.27 |
Brokers | 56 | ||||
| Section 4.28 |
Energy Regulatory | 56 | ||||
| Section 4.29 |
No Other Operations | 56 | ||||
| Section 4.30 |
No Other Representations or Warranties | 57 | ||||
| ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES |
57 | |||||
| Section 5.1 |
Organization | 57 | ||||
| Section 5.2 |
Authority | 57 | ||||
| Section 5.3 |
No Conflict; Required Filings and Consents | 57 | ||||
| Section 5.4 |
Financing | 58 | ||||
| Section 5.5 |
Litigation | 58 | ||||
| Section 5.6 |
Capitalization | 58 | ||||
| Section 5.7 |
Listing Exchange | 59 | ||||
| Section 5.8 |
Issuance of the Parent Common Shares | 59 | ||||
| Section 5.9 |
Brokers | 59 | ||||
| Section 5.10 |
Investment Intent | 60 | ||||
| Section 5.11 |
Reports | 60 | ||||
| Section 5.12 |
Internal Controls | 60 | ||||
| Section 5.13 |
No Other Representations or Warranties | 61 | ||||
| ARTICLE VI COVENANTS |
61 | |||||
| Section 6.1 |
Waiver and Release | 61 | ||||
| Section 6.2 |
Non-Solicitation | 61 | ||||
| Section 6.3 |
Participation Right | 63 | ||||
| Section 6.4 |
Confidentiality | 65 | ||||
| Section 6.5 |
Further Assurances | 65 | ||||
| Section 6.6 |
Public Announcements | 65 | ||||
| Section 6.7 |
Lockup | 66 | ||||
| Section 6.8 |
Books and Records | 67 | ||||
| Section 6.9 |
Indemnification and Insurance | 67 | ||||
| Section 6.10 |
Additional Listing Application | 68 | ||||
| Section 6.11 |
Registration Rights | 68 | ||||
| Section 6.12 |
Company Marks | 68 | ||||
| Section 6.13 |
Company 401(k) Plans | 69 | ||||
| Section 6.14 |
Code Section 280G | 69 | ||||
| Section 6.15 |
Excluded Equipment | 70 | ||||
| Section 6.16 |
R&W Policy | 71 | ||||
| ARTICLE VII TAX MATTERS |
71 | |||||
| Section 7.1 |
Cooperation | 71 | ||||
| Section 7.2 |
Transfer Taxes | 72 | ||||
| Section 7.3 |
Straddle Period Proration | 72 | ||||
| Section 7.4 |
Intended Tax Treatment | 72 | ||||
| Section 7.5 |
No Amended Tax Returns; Section 338(g) Election | 72 | ||||
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TABLE OF CONTENTS
(Continued)
| ARTICLE VIII INDEMNIFICATION |
73 | |||||
| Section 8.1 |
Survival | 73 | ||||
| Section 8.2 |
Indemnification by the Sellers | 73 | ||||
| Section 8.3 |
Indemnification by OpCo | 74 | ||||
| Section 8.4 |
Procedures | 74 | ||||
| Section 8.5 |
Limits on Indemnification; Sources of Recovery | 76 | ||||
| Section 8.6 |
Materiality Qualifications | 77 | ||||
| Section 8.7 |
No Double Recovery | 77 | ||||
| Section 8.8 |
Exclusive Remedy | 77 | ||||
| Section 8.9 |
Tax Treatment of Indemnity Payments | 77 | ||||
| Section 8.10 |
R&W Policy | 78 | ||||
| ARTICLE IX GENERAL PROVISIONS |
78 | |||||
| Section 9.1 |
Fees and Expenses | 78 | ||||
| Section 9.2 |
Amendment and Modification | 78 | ||||
| Section 9.3 |
Waiver | 78 | ||||
| Section 9.4 |
Notices | 78 | ||||
| Section 9.5 |
Interpretation | 79 | ||||
| Section 9.6 |
Entire Agreement | 80 | ||||
| Section 9.7 |
No Third-Party Beneficiaries | 80 | ||||
| Section 9.8 |
Governing Law | 80 | ||||
| Section 9.9 |
Submission to Jurisdiction | 80 | ||||
| Section 9.10 |
Assignment; Successors | 81 | ||||
| Section 9.11 |
Enforcement | 81 | ||||
| Section 9.12 |
Currency | 81 | ||||
| Section 9.13 |
Severability | 81 | ||||
| Section 9.14 |
Waiver of Jury Trial | 81 | ||||
| Section 9.15 |
Counterparts | 82 | ||||
| Section 9.16 |
Facsimile or .pdf Signature | 82 | ||||
| Section 9.17 |
Time of Essence | 82 | ||||
| Section 9.18 |
No Presumption Against Drafting Party | 82 | ||||
| Section 9.19 |
Independent Investigation; Waiver of Other Representations | 82 | ||||
| Section 9.20 |
Conflict Waiver; Attorney-Client Privilege | 84 | ||||
ANNEXES
Annex A – Registration Rights
EXHIBITS
Exhibit A – Indebtedness Example
Exhibit B – Net Working Capital Example
Exhibit C – Closing Statement
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SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of March 16, 2026 (this “Agreement”), among Solaris Energy Infrastructure, LLC, a Delaware limited liability company (“OpCo”), Project G Buyer, LLC, a Texas limited liability company and wholly owned subsidiary of Parent (the “Buyer”), the undersigned holders of shares of the Company (each, a “Seller” and, collectively, the “Sellers”), Focus Genco Cayman Ltd., an exempted company with limited liability incorporated organized under the Laws of the Cayman Islands (the “Company”), Alan Zelazo, solely in his capacity as the Sellers Representative hereunder (the “Sellers Representative”), and Solaris Energy Infrastructure, Inc., a Delaware corporation (“Parent”).
RECITALS
A. The Sellers collectively own 100% of the issued and outstanding ordinary shares, par value $1.00 per share (the “Shares”), of the Company.
B. The Sellers wish to sell to the Buyer, and the Buyer wishes to purchase from the Sellers, the Shares, upon the terms and subject to the conditions of this Agreement.
AGREEMENT
In consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms. For purposes of this Agreement:
“Action” means any claim, action, suit, inquiry, proceeding, demand, audit or investigation by or before any Governmental Authority, or any other arbitration, mediation or similar proceeding.
“Adjustment Escrow Amount” means $5,000,000.
“Adjustment Escrow Fund” means the Adjustment Escrow Amount deposited with the Escrow Agent, as such amount may be increased or decreased as provided in this Agreement and the Escrow Agreement, including any remaining interest or other amounts earned thereon.
“Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person.
“Aggregate Cash Closing Consideration” means (i) the Estimated Purchase Price, minus (ii) the product of the Aggregate Stock Closing Consideration Shares multiplied by the Price Per Share, minus (iii) the aggregate Fractional Share Cash Amount, minus (iv) the Adjustment Escrow Amount, minus (v) the product of the Indemnity Escrow Shares multiplied by the Price Per Share.
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“Aggregate Closing Consideration” means, collectively, the Aggregate Cash Closing Consideration, the Aggregate Stock Closing Consideration Shares and the aggregate Fractional Share Cash Amount.
“Aggregate Stock Closing Consideration Shares” means the Aggregate Stock Consideration minus the Indemnity Escrow Shares.
“Aggregate Stock Consideration” means 4,182,772 Parent Common Shares, which represents (i) 4,182,777 Parent Common Shares, less (ii) 5 Parent Common Shares reflecting the aggregate number of fractional share interests in respect of which Buyer will make a cash in lieu of payment pursuant to Section 2.2(c)(i) (rounded to the nearest share).
“Ancillary Agreements” means the Escrow Agreement and the Services Agreement Amendment.
“Applicable Accounting Principles” means (i) GAAP, as modified by those methods, policies, practices, procedures, classifications and methodologies identified on Section 1.1-AAP of the Disclosure Schedules, applied on a basis consistent with the accounting methods, policies, practices, and procedures, with consistent classification, judgments, and estimation methodology, as were used in preparing the Financial Statements as of and for the fiscal year ended December 31, 2025, and (ii) to the extent that the foregoing are not consistent with GAAP, with GAAP being subject to the modifications identified on Section 1.1-AAP of the Disclosure Schedules, GAAP, but in each case, not taking into account any events occurring or changes in circumstances at or after the Closing except as set forth in Section 6.15.
“Buyer Parties” means Buyer, OpCo and Parent collectively.
“Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in The City of New York.
“Calculation Time” means (i) with respect to the calculation of Net Working Capital, 11:59 p.m., Eastern Time, on the day immediately preceding the date hereof, and (ii) with respect to Cash, Indebtedness and Transaction Expenses, immediately prior to the Closing.
“Cash” means, as at a specified date, the aggregate amount of all cash and cash equivalents of the Company and its Subsidiaries, net of (i) any outstanding checks, wires and bank overdrafts of the Company or its Subsidiaries and (ii) any amounts relating to credit card receivables to the extent actually taken into account in the determination of Net Working Capital or Restricted Cash. For purposes of determining the Estimated Cash, Cash shall include an amount equal to the product of 0.5000 multiplied by $2,963,500, which equals the aggregate amount of the invoices set forth on Section 1.1-Cash of the Disclosure Schedules (the “Invoices”). For purposes of determining the Closing Cash, Cash shall include an amount equal to the product of 0.5000 multiplied by the aggregate amount of Cash actually received by the Buyer or any of its Subsidiaries (including, following the Closing, the Company and its Subsidiaries) in respect of such Invoices prior to the final determination of Closing Cash in accordance with Section 2.4.
“Company Owned IP” means Intellectual Property owned, or purported to be owned, in whole or in part by the Company or its Subsidiaries.
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“Contract” means any contract, agreement, arrangement or understanding (including purchase orders), whether written or oral.
“control,” including the terms “controlled by” and “under common control with,” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, as trustee or executor, as general partner or managing member, by Contract or otherwise, including the ownership, directly or indirectly, of securities having the power to elect a majority of the board of managers, directors or similar body governing the affairs of such Person.
“Data Protection Requirements” means, as they relate to data privacy, data or cybersecurity, data protection, data breach notification, data localization, artificial intelligence or automated decision-making technology, sending solicited or unsolicited electronic mail or text messages, cookies or other tracking technology, or the Processing of Personal Information (i) all applicable Laws and enforceable rules from Governmental Entities, including the European General Data Protection Regulation of April 27, 2016 (Regulation (EU) 2016/679) and/or any implementing or equivalent national Laws (collectively, the “GDPR”), the UK Data Protection Act 2018 and the GDPR as incorporated into UK Law pursuant to the European Union (Withdrawal) Act 2018, Section 5 of the Federal Trade Commission Act, the Fair Credit Reporting Act, the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003, the Telephone Consumer Protection Act, the California Online Privacy Protection Act of 2003 (CalOPPA), the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Delaware Personal Data Privacy Act, the Iowa Consumer Data Protection Act, the Montana Consumer Data Privacy Act, the Nebraska Data Privacy Act, the New Hampshire Privacy Act, the Oregon Consumer Privacy Act, the Texas Data Privacy and Security Act, the Utah Consumer Privacy Act, the Virginia Consumer Data Protection Act, the New York SHIELD Act, the Illinois Biometric Information Privacy Act, Texas’s Capture or Use of Biometric Identifier Act, the Washington Biometric Privacy Protection Act, Washington’s My Health My Data Act, and U.S. state consumer protection and data breach notification Laws (collectively, “Data Protection Laws”); (ii) generally accepted industry standards, including the Payment Card Industry Data Security Standard; (iii) all contractual obligations binding upon the Company or its Subsidiaries; and (iv) the Company’s and its Subsidiaries’ own public written policies.
“Encumbrance” means any charge, claim, limitation, condition, equitable interest, mortgage, lien, option, pledge, security interest, easement, encroachment, right of first refusal, adverse claim or restriction of any kind, including any restriction on transfer or other assignment, as security or otherwise, of or relating to use, quiet enjoyment, voting, transfer, receipt of income or exercise of any other attribute of ownership.
“Enterprise Value” means $678,540,000.
“Equipment” means, collectively, the Company’s or its Subsidiaries’ current and on-order fleet of gas turbine generators and balance of plant equipment set forth on Section 1.1-E of the Disclosure Schedules.
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“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means any trade or business, whether or not incorporated, under common control with the Company or any of its Subsidiaries and that, together with the Company or any of its Subsidiaries, is treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“Escrow Agent” means Truist Bank, or its successor under the Escrow Agreement.
“Escrow Agreement” means the Escrow Agreement dated the date hereof among OpCo, the Seller Representative and the Escrow Agent.
“Estimated Purchase Price” means an amount equal to (i) the Enterprise Value, plus (ii) the Estimated Cash, plus (iii) the Working Capital Overage, if any, minus (iv) the Estimated Indebtedness, minus (v) the Working Capital Underage, if any, minus (vi) the Estimated Transaction Expenses.
“Excluded Equipment” means the equipment specified on Section 6.15 of the Disclosure Schedules.
“Export Control Laws” means all applicable (a) export controls, import controls and customs, and antiboycott Laws and regulations of the United States, including, but not limited to, the United States Export Administration Act of 1979, as amended, the Export Control Reform Act of 2018, and implementing Export Administration Regulations; the Arms Export Control Act and implementing International Traffic in Arms Regulations; the anti-boycott regulations, guidelines, and reporting requirements under the Export Administration Regulations and Section 999 of the Code; U.S. customs Laws enforced by U.S. Customs and Border Protection; and (b) and any similar Laws in any other jurisdiction in which the Company or any of its Subsidiaries, or any of their respective agents or Representatives when acting on behalf of the Company or any of its Subsidiaries, conduct business.
“Financial Statements” means the Audited Financial Statements and the Interim Financial Statements.
“Fraud” means an actual, intentional common law fraud by a Person in the making of any representation or warranty expressly set forth in Article III, Article IV or Article V, as applicable. For the avoidance of doubt, “Fraud” does not include (x) constructive fraud, statutory fraud, equitable fraud, negligent misrepresentation or omission or promissory fraud or (y) any fraud based on constructive knowledge, negligent misrepresentation or recklessness.
“GAAP” means United States generally accepted accounting principles and practices as in effect on the date hereof.
“Governmental Authority” means any U.S., non-U.S., supranational, federal, territorial, state or local governmental entity, quasi-governmental entity, court, tribunal, judicial or arbitral body (public or private), commission, board, bureau, agency or instrumentality, or any regulatory, supervisory, administrative or other department, agency, or any political or other subdivision, department or branch of any of the foregoing (including any grand jury).
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“Immediate Family” means, with respect to any specified Person, such Person’s spouse, parents, children and siblings, including adoptive relationships and relationships through marriage, or any other relative of such Person that shares such Person’s home.
“Inbound License Agreement” means any Contract granting to the Company or any of its Subsidiaries any right under or with respect to any Intellectual Property owned by a third Person.
“Indebtedness” means, without duplication (but before taking account the consummation of the transactions contemplated hereby), (a) the unpaid principal amount of accrued interest, premiums, penalties and other fees, expenses (if any), and other payment obligations and amounts due (including such amounts that would become due as a result of the consummation of the transactions contemplated by this Agreement) of the Company and its Subsidiaries, in each case, in respect of (i) all indebtedness for borrowed money, (ii) indebtedness evidenced by notes, debentures, bonds or other similar instruments, and (iii) all obligations with respect to interest-rate hedging, swaps or similar financial arrangements (valued at the termination value thereof and net of all payments owed to the Company or its Affiliates thereunder); (b) all obligations of the Company and its Subsidiaries evidenced by any surety bonds, letters of credit or bankers’ acceptances or similar facilities, in each case, solely to the extent drawn upon; (c) all obligations under capital or finance leases with respect to which the Company or any of its Subsidiaries is liable, determined on a consolidated basis in accordance with the Applicable Accounting Principles, which for the avoidance of doubt shall exclude any impact of operating leases capitalized in accordance with the Financial Accounting Standards Board’s Accounting Standards Update 2016-02, Leases (Topic 842); (d) any amounts for the deferred purchase price of goods and services, including any earn out liabilities associated with past acquisitions; (e) all accrued liabilities and other payment obligations and amounts due with respect to any unfunded or underfunded defined benefit pension plan or deferred compensation plan or arrangement, any accrued but unpaid Company or Subsidiary contributions to any defined contribution retirement plan (excluding, for avoidance of doubt, any participant salary deferrals under a Section 401(k) of the Code plan made in the ordinary course), all accrued but unpaid severance or other termination amounts with respect to any employee, officer, service provider or director of the Company or any of its Subsidiaries whose employment or engagement is terminated prior to the Closing (excluding, for avoidance of doubt, any participant salary deferrals under a Section 401(k) of the Code plan made in the ordinary course), any liability in respect of accrued but unpaid bonuses or other incentive compensation for any completed performance periods, and any employment Taxes payable by the Company or any of its Subsidiaries with respect to the foregoing; (f) unpaid management fees owed to the Sellers or any of their respective Affiliates; (g) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by the Company or any of its Subsidiaries; (h) all obligations of the Company or any of its Subsidiaries in respect of committed (but unpaid or remaining) capital expenditures, purchase price installments, milestone payments, progress payments or similar amounts owed with respect to the Equipment, including pursuant to any Contracts for the purchase, manufacture, construction, delivery, installation, commissioning or completion of the Equipment; (i) all deposits and monies received in advance; (j) all obligations of the type referred to in clauses (a) through (i)
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of other Persons for the payment of which the Company or any of its Subsidiaries is responsible or liable, as obligor, guarantor, surety or otherwise, including any guarantee of such obligations; (k) all obligations of other Persons secured by an Encumbrance (other than Permitted Encumbrances) on any asset owned by the Company or its Subsidiaries, whether or not such obligations are assumed; and (l) any Unpaid Income Taxes. An example of Indebtedness, calculated in accordance with the definition of “Indebtedness” as of December 31, 2025, is set forth on Exhibit A.
“Indemnity Escrow Fund” means the Indemnity Escrow Shares deposited with the Escrow Agent, as such sum may be increased or decreased as provided in this Agreement and the Escrow Agreement, including any dividends or other amounts earned thereon.
“Indemnity Escrow Shares” means 33,314 Parent Common Shares.
“Intellectual Property” means all intellectual property rights arising from or associated with the following, whether protected, created or arising under the Laws of the United States or any other jurisdiction: (i) trade names, trademarks, service marks, trade dress and other indicia of source or origin, all registrations and applications (including intent to use applications and similar reservations of marks ) to register any of the foregoing, and the goodwill associated with all of the foregoing (collectively, “Marks”); (ii) patents and patent applications (collectively, “Patents”); (iii) works of authorship, copyrights therein and thereto and all registrations and applications to register any of the foregoing (collectively, “Copyrights”); (iv) trade secrets (“Trade Secrets”), know-how, inventions, methods, processes and processing instructions, technical data, specifications, research and development information, technology, product roadmaps, customer lists and any other confidential or proprietary information, whether tangible or intangible and whether stored, compiled or memorialized physically, electronically, graphically, photographically or in writing (collectively, “Proprietary Information”); (v) internet domain names, whether or not trademarks, registered in any top-level domain by any authorized private registrar or Governmental Authority, web addresses, web pages, websites and related content, accounts with social media companies (e.g., X, Facebook) and the content, handles and identifiers and designations found thereon and related thereto, and URLs (collectively, “Domain Names and Social Media Accounts”); and (vi) all other intellectual property or proprietary rights, including moral rights, publicity rights, and data base rights of any kind or nature.
“Knowledge” means, (a) with respect to the Company and its Subsidiaries, (i) the actual knowledge of each of Eduardo Dal Sasso Mendonca Cruz and Alan Zelazo, and (ii) any fact or other information which any such Person would reasonably be expected to have through the performance of his or her duties in the ordinary course, and (b) with respect to the Buyer Parties, (i) the actual knowledge of each of Kyle Ramachandran and Christopher Powell, and (ii) any fact or other information which any such Person would reasonably be expected to have through the performance of his or her duties in the ordinary course.
“Law” means any statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or order of any Governmental Authority.
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“Licensed Real Property” means all real property licensed to the Company or any of its Subsidiaries or which the Company or any of its Subsidiaries otherwise has a right or option to use or occupy.
“Losses” means any losses, damages, liabilities, deficiencies, claims, awards, judgments, penalties, costs and expenses (including reasonable attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing).
“Material Adverse Effect” means any event, change, circumstance, occurrence, effect, result or state of facts that, individually or in the aggregate, (a) would or would reasonably be expected to have a materially adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, or (b) materially impairs the ability of any Seller to consummate the transactions contemplated by this Agreement or the Ancillary Agreements or would reasonably be expected to do so; provided, however, that in the case of clause (a) only, Material Adverse Effect shall not include any event, change, circumstance, occurrence, effect or state of facts to the extent resulting from (i) changes or developments generally affecting the industries in which the Company or any of its Subsidiaries operate, or the economy or the financial or securities markets, in the United States, including effects on such industry, economy or markets resulting from any regulatory and political conditions or developments in general, (ii) the outbreak or escalation of hostilities or any acts of war or terrorism, (iii) changes in Law or GAAP, (iv) weather, seismic activity or other meteorological events or natural disasters, (v) crises affecting public health, safety or welfare, including any epidemic, pandemic, or disease outbreak, public health emergencies, including the continuation, escalation or worsening of such conditions, (vi) the failure of the Company or its Subsidiaries to meet, with respect to any period or periods, any internal projections, forecasts, estimates of earnings or revenues, or business plans (except that the underlying causes of any such changes may be considered in determining whether a Material Adverse Effect has occurred), or (vii) matters that arise solely from any actions or omissions of the Buyer or an Affiliate of the Buyer; provided further, that, with respect to the foregoing clauses (i)-(v), the impact of such event, change, circumstances, occurrence, effect or state of facts is not disproportionately adverse to the Company and its Subsidiaries, taken as a whole, in comparison to other similarly situated companies.
“Net Working Capital” means, as at a specified date and without duplication, an amount (which may be positive or negative) equal to (i) the current assets of Focus Genco LLC (“Focus Genco”) minus (ii) the consolidated current liabilities of Focus Genco, in each case before taking into account the consummation of the transactions contemplated hereby, and calculated in accordance with the Applicable Accounting Principles; provided, however, for the avoidance of doubt, Net Working Capital shall exclude any amounts relating to or included in Cash, Indebtedness and Transaction Expenses to the extent such amounts are reflected in the calculation of the Purchase Price (to avoid any double-counting with any other adjustments) and any current or deferred Tax assets. An example of Net Working Capital, calculated in accordance with the definition of “Net Working Capital” as of December 31, 2025, is set forth on Exhibit B.
“Open Source Materials” means any software that is licensed, distributed or conveyed under a Contract that requires as a condition of its use, modification or distribution that it, or other software into which such software is incorporated or with which such software is distributed or that is derived from such software, be disclosed or distributed in source code form, delivered at no charge or be licensed, distributed or conveyed under the same terms as such Contract.
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“Outbound Investment Rules” means the regulations administered and enforced, together with any related public guidance issued, by the United States Treasury Department, as codified at 31 C.F.R. § 850.101 et seq.
“Outbound License Agreement” means any Contract under which the Company or any of its Subsidiaries grants to a third party any rights under or with respect to Company Owned IP.
“Pandemic Response Law” means the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116–136 (116th Cong.) (Mar. 27, 2020), as amended (including by the Paycheck Protection Program Flexibility Act of 2020 (Pub. L. 116-142) (June 5, 2020) and the Consolidated Appropriations Act, 2021 (Pub. L. 116-260) (Dec. 27, 2020)), the Families First Coronavirus Response Act, Pub. L. No. 116-127 (116th Cong.) (Mar. 18, 2020), the American Rescue Plan Act of 2021, Pub. L. 117-2 (117th Cong.) (Mar. 11, 2021), the Executive Order Re: Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster (Aug. 8, 2020), and any other similar, future, or additional federal, state, local, or non-U.S. Law or administrative guidance that addresses or is intended to benefit taxpayers in response to the COVID-19 pandemic and associated economic downturn.
“Parent Common Shares” means shares of Class A common stock of Parent, par value $0.01 per share.
“Permitted Encumbrance” means (a) liens for Taxes not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings, and for which adequate reserves have been established in accordance with the Applicable Accounting Principles, (b) landlords’, lessors’, mechanics’, workmen’s, repairmen’s, warehousemen’s, carriers’ and similar statutory liens arising or incurred in the ordinary course of business of the Company or any of its Subsidiaries for amounts which are not yet due and payable or the amount or validity of which are being contested in good faith by appropriate proceedings and, in each case, for which adequate reserves have been established in accordance with the Applicable Accounting Principles, (c) any covenants, conditions, restrictions, easements and other similar matters of record, Encumbrances and other imperfections of title that do not, individually or in the aggregate, materially impair the continued ownership, occupancy, use or operation of the assets to which they relate for the current or contemplated use of such assets, (d) with respect to Licensed Real Property, Encumbrances which do not materially impair the occupancy or use of the real property with respect thereto in connection with the businesses of the Company or its Subsidiaries as currently conducted, (e) leases, subleases, licenses and occupancy and/or use agreements affecting any real property (or any portion thereof) set forth in the Disclosure Schedules, (f) Encumbrances to lenders incurred in deposits made in the ordinary course of business in connection with maintaining bank accounts, (g) deposits or pledges to secure the payment of workers’ compensation, unemployment insurance, social security benefits or obligations arising under similar Laws, or to secure the performance of public or statutory obligations, surety or appeal bonds, and other obligations of a like nature, (h) Encumbrances arising under original purchase price conditional sales contracts and
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equipment leases for personal property with third parties entered into in the ordinary course of business, (i) preemptive rights, subscription rights, transfer restrictions, rights of first refusal or offer, and other similar restrictions set forth in the organizational documents of the Company or its Subsidiaries, (j) restrictions on sale, transfer, assignment, pledge or hypothecation imposed by applicable securities Laws, (k) Encumbrances created by or through the Buyer or any of its Affiliates, (l) non-exclusive licenses or other non-exclusive rights to use Intellectual Property granted by the Company or its Subsidiaries to its customers or service providers in the ordinary course of business, and (m) encumbrances existing pursuant to the memorandum and articles of association of the Company.
“Person” means an individual, corporation, partnership, limited liability company, limited liability partnership, syndicate, person, trust, association, organization or other entity, including any Governmental Authority, and including any successor, by merger or otherwise, of any of the foregoing.
“Personal Information” means any information that identifies, relates to, describes, or is linked to, any identified or identifiable individual or household, and any information covered by definitions of “personal data,” “personally identifiable information,” “personal information,” or any substantial equivalent of these terms under any Laws.
“Plan” means any benefit or compensation plan, program, policy, agreement or other arrangement providing benefits or compensation to any current or former employee, officer, service provider or director of the Company or any of its Subsidiaries or providing substantial services to the Company or any of its Subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or is obligated to contribute or has any liability (whether actual or contingent), including any “employee welfare benefit plan” within the meaning of Section 3(1) of ERISA, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and any bonus, incentive, deferred compensation, vacation, equity purchase, equity option, severance, employment, change of control, health, welfare, retirement, or fringe benefit plan, program, agreement, arrangement or policy.
“Pre-Closing Tax Period” means any taxable period, or portion thereof, ending on or before the Closing Date.
“Price Per Share” means $50.92.
“Pro Rata Share” with respect to each Seller means the percentage set forth opposite each Seller’s name in the Sellers’ Allocation Schedule.
“Process”, “Processed” or “Processing” means any operation or set of operations performed, whether by manual or automated means, on Personal Information or on sets of Personal Information, including the collection, use, sale, storage, transfer, disclosure, analysis, deletion, or modification thereof.
“Purchase Price” means (i) the Estimated Purchase Price, subject to adjustment in accordance with Section 2.4 plus (ii) any amounts paid to the Sellers out of the Adjustment Escrow Fund or the Indemnity Escrow Fund.
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“Related Party,” with respect to any specified Person, means: (i) any Affiliate of such specified Person, or any director, manager, executive officer, general partner or managing member of such Affiliate; (ii) any Person who serves as a director, manager, executive officer, partner, member or in a similar capacity of such specified Person; or (iii) any Immediate Family member of a Person described in clause (ii).
“Representatives” means, with respect to any Person, the officers, managers, directors, principals, employees, individual independent contractors, agents, auditors, advisors, bankers and other representatives of such Person.
“Restricted Cash” means all cash and cash equivalents that are not freely useable and available to the Company or its Subsidiaries because they are subject to restrictions, limitations or taxes on use or distribution either by Contract or by Law; provided, that “Restricted Cash” shall not include any cash or cash equivalents referenced on Section 1.1-RC of the Disclosure Schedules.
“Sanctions” means all applicable (i) economic or financial sanctions Laws and regulations of the United States, including, but not limited to, sanctions Laws administered and enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control; and (ii) and any similar Laws in any other jurisdiction in which Sellers, the Company or any of its Subsidiaries, or any of their respective agents or Representatives when acting on behalf of Sellers, the Company or any of its Subsidiaries, conduct business.
“Sanctioned Jurisdiction” means a country or territory that is, or since April 24, 2019, has been, the subject or target of comprehensive sanctions (including Cuba; Iran; North Korea; Syria (until July 1, 2025); and the Crimea, so-called Donetsk People’s Republic, and so-called Luhansk People’s Republic regions of Ukraine).
“Sanctioned Person” means a Person (i) identified on the United States’ Specially Designated Nationals and Blocked Persons List, the United States’ Denied Persons List, Entity List or Debarred Parties List, the United Kingdom’s Consolidated List of Financial Sanctions Targets, or any other similar list maintained by any Government Authority having jurisdiction over the parties to this Agreement; (ii) located, operating, organized or ordinarily resident in a Sanctioned Jurisdiction or (iii) owned, 50% or more, individually or in the aggregate by, or as relevant and determined under applicable Sanctions, controlled by, or acting on behalf of, a Person described in clause (i) or (ii) above.
“Seller Note” means the Promissory Note, dated the date hereof, between the Buyer, as borrower, and the Sellers, as lender parties, in an aggregate amount equal to the Aggregate Cash Closing Consideration, plus the aggregate Fractional Share Cash Amount, plus the Adjustment Escrow Amount, plus the Excluded Share Cash Amount.
“Sensitive Business Information” means all non-public technical, economic, environmental, operational, financial or other business information (including books and records, presentations, communications, documents and other information) or material of one party which, prior to or following the date hereof, has been disclosed by the Buyer or any of its Affiliates (including the Company and its Subsidiaries following the Closing), on the one hand, or by the
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Company or any of its Subsidiaries, the Sellers or the Sellers Representative or any of its or their respective Affiliates, on the other hand, to the other party in written, oral (including by recording), electronic, or visual form to the other party, in each case including pursuant to the provisions of Section 6.8 hereof or any other provision of this Agreement or the Ancillary Agreements, including (a) ideas and concepts for existing products, processes and services, (b) specifications for products, equipment and processes, (c) manufacturing and performance specifications and procedures, (d) engineering drawings and graphs, (e) technical, research and engineering data, (f) formulations and material specifications, (g) laboratory studies and benchmark tests, (h) service and operation manuals, (i) quality assurance policies, procedures and specifications, (j) evaluation or validation studies, (k) pending patent applications and all other know-how, methodologies, procedures, techniques and trade secrets related to research, engineering, development and manufacturing and (l) business information, including marketing and development plans, forecasts, projections, research and development agreements and customer and vendor information.
“Subsidiary” means, with respect to any Person, any other Person controlled by such first Person, directly or indirectly, through one or more intermediaries.
“Target Net Working Capital” means $100,000.
“Tax” or “Taxes” means (i) any and all United States federal, state, local, or non-U.S. net income, alternative or add-on minimum tax, gross income, gross receipts, sales, use, ad valorem, personal property (tangible and intangible), real property (including general and special assessments), goods and services, value added, transfer, franchise, profits, license, withholding, payroll, employment, excise, severance, stamp, deed recording fee, occupation, premium, environmental or windfall profit tax, custom, duty or other tax, governmental fee or other like assessment or charge in the nature of a tax, together with any interest, penalty or addition thereto; (ii) any liability for payment of amounts described in clause (i) whether as a result of transferee liability, of being a member of an affiliated, consolidated, combined or unitary group for any period or otherwise through operation of Law; and (iii) any liability for the payment of amounts described in clauses (i) or (ii) as a result of any tax sharing, tax indemnity or tax allocation agreement or any other written agreement to indemnify any other Person (other than any customary Contracts entered into in the ordinary course of business and the principal purpose of which is not the allocation or sharing of Taxes).
“Tax Returns” means any return, report, information return or other document (including any related or supporting information) required to be filed with any Taxing Authority in connection with the determination, assessment, or collection of any Tax paid or payable by the Company or any of its Subsidiaries.
“Taxing Authority” means, with respect to any Tax, the Governmental Authority that imposes such Tax, and the agency (if any) charged with the collection of such Tax for such Governmental Authority.
“Transfer Taxes” means all transfer, sales, use, goods and services, value added, documentary, stamp duty, deed recording fee, gross receipts, excise, and conveyance Taxes and other similar Taxes, duties, fees or charges imposed by any Governmental Authority as a result of, or payable or collectible or incurred in connection with, the transaction contemplated by this Agreement.
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“Transaction Expenses” means the aggregate amount of (a) all fees and expenses of counsel, advisors, consultants, investment bankers, accountants, auditors and any other experts in connection with the transactions contemplated hereby incurred by or on behalf of, or to be paid directly by, the Company or any of its Subsidiaries or any Person that the Company or any of its Subsidiaries pays or reimburses or is otherwise legally obligated to pay or reimburse (including any such fees and expenses incurred by or on behalf of any Seller) in connection with the process of selling the Company or the negotiation, preparation or execution of this Agreement or the Ancillary Agreements or the performance or consummation of the transactions contemplated hereby or thereby; (b) any fees or expenses associated with the Company’s and its Subsidiaries’ obtaining the release and termination of any Encumbrances in connection with the transactions contemplated hereby (c) all brokers’, finders’ or similar fees incurred by or on behalf of the Company or any of its Subsidiaries in connection with the transactions contemplated hereby; (d) 50% of all costs and expenses related to the Tail Coverage; (e) any change of control payments, transaction incentive plan payments, bonuses, “single trigger” severance or termination benefits, or retention obligations or similar amounts payable in the future or due by the Company or any of its Subsidiaries as a result of the transactions contemplated hereby, excluding any payments made at the direction or in the sole discretion of the Buyer or any Affiliate of Buyer, including any employer payroll Taxes payable in connection therewith; (f) 50% of the Escrow Agent’s fee with respect to the Escrow Agreement; and (g) 100% of all premiums, fees, costs and expenses payable at or prior to the Closing with respect to or otherwise in connection with the binding and issuance of the R&W Policy.
“Transaction Expenses Payoff Instructions” means reasonably satisfactory documentation setting forth the amounts of all Transaction Expenses, including the identity of each payee, dollar amounts owed, wire instructions and any other information necessary to effect the final payment in full thereof, and copies of final invoices from each such payee for all services rendered to the Company or any of its Subsidiaries.
“Transaction Tax Deductions” means the sum of all items of losses, deductions or credits, to the extent deductible for Tax purposes (determined on a “more likely than not” basis) and without duplication, resulting from, or attributable to any payment to be made by or on behalf of the Company or any of its Subsidiaries in connection with the transactions contemplated by this Agreement, including (a) the Transaction Expenses (regardless of whether such items remain unpaid as of Closing), (b) the repayment of Indebtedness at Closing or as otherwise contemplated by this Agreement (including any capitalized financing fees, costs and expenses that become currently deductible as a result thereof) and (c) any bonus or similar compensatory payments made pursuant to or in connection with the transactions contemplated by this Agreement (including the employer portion of payroll Taxes payable with respect thereto). For this purpose, the parties agree to make any available elections under IRS Rev. Proc. 2011-29 to treat seventy percent (70%) of any success-based fees, within the meaning of Treasury Regulations Section 1.263(a)-5(f) and IRS Rev. Proc. 2011-29 as deductible in the taxable year that includes the Closing Date for U.S. federal income Tax purposes.
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“Unpaid Income Taxes” means an amount (which shall never be less than zero ($0) dollars for any jurisdiction) equal to the sum of the amount of any unpaid income Taxes of the Company and its Subsidiaries that are unpaid as of the Closing Date (as determined in accordance with Section 7.3), less the current income Tax assets of the Company and its Subsidiaries for any Pre-Closing Tax Period to the extent available to offset such unpaid income Taxes; provided, that the computation of Unpaid Income Taxes shall (i) take into account the Transaction Tax Deductions to the extent more-likely-than-not deductible in a Pre-Closing Tax Period, (ii) exclude any deferred income Tax assets and liabilities, (iii) exclude any income Taxes attributable to actions taken by the Company or any of its Subsidiaries on the Closing Date after the Closing that are outside of the ordinary course of business, (iv) exclude any reserves for uncertain Tax positions, (v) exclude any income Tax liabilities attributable to deferred revenue (or other deferred amounts) except to the extent required to be accelerated into a Pre-Closing Tax Period under applicable income Tax Law on account of the transactions contemplated by this Agreement, (vi) take into account any estimated Tax payments and overpayments of income Taxes with respect to any Pre-Closing Tax Period as reductions of the liability for income Taxes for such period, and (vii) except as otherwise provided in this definition, be made in accordance with the past practice of the Company and its Subsidiaries, as applicable, to the extent consistent with applicable Law; provided, however, that all such Taxes shall be excluded from the definition of Unpaid Income Taxes where arising as a result of Buyer or any of its Affiliates taking or causing the Company or any of its Subsidiaries to take any of the following actions after the Closing, but only to the extent such action affects the amount of Unpaid Income Taxes: (A) amending, re-filing or otherwise modifying any Tax Return of the Company or its Subsidiaries with respect to any Pre-Closing Tax Period; (B) initiating or entering into any voluntary disclosure program or similar process with respect to Taxes or Tax Returns of any the Company or its Subsidiaries with respect to any Pre-Closing Tax Period; (C) filing any Tax Return of any the Company or its Subsidiaries with respect to any Pre-Closing Tax Period in a jurisdiction in which the Company or the applicable Subsidiary had not previously filed Tax Returns or in which the Company or the applicable Subsidiary had not begun business on or before the Closing Date; or (D) making an election pursuant to Section 338 of the Code (or any similar provision of state, local or non-U.S. Law). Notwithstanding any provision herein to the contrary, Unpaid Income Taxes shall be determined in accordance with applicable Tax principles (and not GAAP or Applicable Accounting Principles).
“Working Capital Overage” means an amount equal to the amount by which the Estimated Net Working Capital exceeds the Target Net Working Capital, which amount shall not be less than zero.
“Working Capital Underage” means an amount equal to the amount by which the Target Net Working Capital exceeds the Estimated Net Working Capital, which amount shall not be less than zero.
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Section 1.2 Table of Definitions. The following terms have the meanings set forth in the Sections referenced below:
| Definition |
Location | |
| Affiliated Group |
4.15(p) | |
| Agreement |
Preamble | |
| Audited Financial Statements |
4.6(a) | |
| Balance Sheet |
4.6(a) | |
| Buyer |
Preamble | |
| Buyer Indemnified Parties |
8.2(a) | |
| Cap |
8.5(a) | |
| CERCLA |
4.16(f)(iii) | |
| Claim Notice |
8.4(a) | |
| Closing |
2.2(a) | |
| Closing Balance Sheet |
2.4(a) | |
| Closing Cash |
2.4(a) | |
| Closing Date |
2.2(a) | |
| Closing Indebtedness |
2.4(a) | |
| Closing Net Working Capital |
2.4(a) | |
| Closing Transaction Expenses |
2.4(a) | |
| Code |
4.10(a) | |
| Company |
Preamble | |
| Company 401(k) Plans |
6.13 | |
| Company Business IP |
4.14(c) | |
| Company Group Employees |
6.2(a) | |
| Company Marks |
6.12(a) | |
| Company Registered IP |
4.14(a) | |
| Company Service Provider |
4.11(a) | |
| Competing Business |
6.3(a) | |
| Competing Business Entity |
6.3(a) | |
| Competing Business Stock |
6.3(a) | |
| Competing Business Transaction |
6.3(a) | |
| Competing Business Transaction Notice |
6.3(b) | |
| Competing Business Transaction Terms |
6.3(a) | |
| Confidential Information |
6.4(b) | |
| Covered Opportunity |
6.3(f) | |
| Debt Payoff Letter |
2.2(b)(viii)(K) | |
| Deductible |
8.5(a) | |
| Direct Claim |
8.4(d) | |
| Directors |
6.8 | |
| Disclosure Schedules |
Article III | |
| Disqualified Individual |
6.14 | |
| DPA |
4.25 | |
| Environmental Laws |
4.16(f)(i) | |
| Environmental Permits |
4.16(f)(ii) | |
| Estimated Cash |
2.3 | |
| Estimated Indebtedness |
2.3 | |
| Estimated Net Working Capital |
2.3 | |
| Estimated Transaction Expenses |
2.3 | |
| Exchange Act |
5.7 |
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| Excluded Equipment Purchase Notice |
6.15 | |
| Excluded Share Cash Amount |
2.2(b)(i) | |
| Excluded Share Seller |
2.2(b)(i) | |
| Existing Stock |
6.12(b) | |
| FCPA |
4.23(a) | |
| Final Closing Statement |
2.4(a) | |
| Fractional Share Cash Amount |
2.2(b)(viii)(L) | |
| Hazardous Substances |
4.16(f)(iii) | |
| Holdings |
4.15(p) | |
| HSR Act |
3.3(b) | |
| Indemnification Claim |
8.4(d) | |
| Indemnified Party |
8.4(a) | |
| Indemnifying Party |
8.4(a) | |
| Independent Accounting Firm |
2.4(c) | |
| Intended Tax Treatment |
7.4 | |
| Interim Financial Statements |
4.6(a) | |
| Investor |
6.3(a) | |
| Invoices |
Definitions | |
| IRS |
4.10(a) | |
| IT Systems |
4.14(i) | |
| Lockup Period |
6.7(b) | |
| Lookback Date |
4.8(a) | |
| Material Contracts |
4.17(a) | |
| Multiemployer Plan |
4.10(b) | |
| Multiple Employer Plan |
4.10(b) | |
| Net Adjustment Amount |
2.4(f)(i) | |
| Non-U.S. Benefit Plans |
4.10(l) | |
| Notice of Disagreement |
2.4(b) | |
| NYSE |
5.7 | |
| Parent |
Preamble | |
| Parent SEC Filings |
5.11 | |
| Participation Notice |
6.3(b) | |
| Participation Offer Period |
6.3(b) | |
| Participation Right |
6.3(a) | |
| Payoff Indebtedness |
2.2(c)(ii) | |
| Permits |
4.8(a) | |
| Preliminary Closing Balance Sheet |
2.3 | |
| Privileged Communications |
9.20(c) | |
| Procurement Contract |
6.15 | |
| R&W Policy |
6.16 | |
| Real Property Licenses |
4.12(b) | |
| Release |
4.16(f)(iv) | |
| Remediation |
4.16(f)(v) | |
| Removal Deadline |
6.12(a) | |
| SEC |
5.11 | |
| Section 280G Approval |
6.14 |
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| Section 280G Waived Payments |
6.14 | |
| Section 280G Waiver |
6.14 | |
| Securities Act |
3.5 | |
| Security Incident |
4.20(c) | |
| Seller |
Preamble | |
| Seller Indemnified Parties |
8.3 | |
| Seller Releasees |
6.1 | |
| Seller Releasors |
6.1 | |
| Sellers |
Preamble | |
| Sellers Group Law Firm |
9.20(a) | |
| Sellers Representative |
Preamble | |
| Sellers’ Allocation Schedule |
2.2(b)(viii)(A) | |
| Services Agreement Amendment |
2.2(b)(vi) | |
| Share Transfer Instrument |
2.2(b)(viii)(B) | |
| Shares |
Recitals | |
| Straddle Period |
7.3 | |
| Supplemental Listing Application |
6.10 | |
| Tail Coverage |
2.2(b)(viii)(T) | |
| Tax Proceeding |
7.1 | |
| Third Party Claim |
8.4(a) | |
| Transferee Entity |
6.7(a) | |
| Turbines |
4.12(c) |
ARTICLE II
PURCHASE AND SALE
Section 2.1 Purchase and Sale of the Shares. Upon the terms and subject to the conditions of this Agreement, at the Closing, the Sellers shall sell, assign, transfer, convey and deliver the Shares to Buyer, free and clear of all Encumbrances (other than Encumbrances arising under securities Laws, created by the Buyer or arising pursuant to the memorandum and articles of association of the Company), and Buyer, in reliance on the representations, warranties and covenants of the Sellers and the Company contained herein, shall purchase the Shares from the Sellers in exchange for the payment of the Purchase Price as provided in this Article II.
Section 2.2 Closing.
(a) The closing of the sale and purchase of the Shares (the “Closing”) shall take place remotely via the exchange of documents and signatures and shall occur simultaneously with the execution and delivery of this Agreement. The date hereof is referred to herein as the “Closing Date”.
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(b) At the Closing:
(i) the Buyer shall deliver to each Seller its Pro Rata Share of the Aggregate Stock Closing Consideration Shares, free and clear of all Encumbrances (other than Encumbrances created by the applicable Seller or arising under applicable securities Laws); provided, however, that the Seller identified on Section 2.2(a)(i) of the Disclosure Schedules (the “Excluded Share Seller”) shall receive, in lieu of the issuance of such Seller’s Pro Rata Share of the Aggregate Stock Closing Consideration Shares, a cash payment equal to the product of such Seller’s Pro Rata Share of the Aggregate Stock Closing Consideration Shares multiplied by the Price Per Share (the “Excluded Share Cash Amount”) pursuant to Section 2.2(c)(i);
(ii) the Buyer shall deposit the Indemnity Escrow Shares with the Escrow Agent, to be managed and paid out by the Escrow Agent pursuant to the terms of the Escrow Agreement;
(iii) the Buyer shall deliver to the Sellers Representative evidence of (A) either, with respect to the letters of credit and guaranties set forth on Section 2.2(b)(iii) of the Disclosure Schedules, (x) replacement of such letters of credit or guaranties with newly issued letters of credit or guaranties acceptable to the beneficiary thereof or (y) the waiver of, or amendments removing, the requirements for such letters of credit or guaranties by the applicable beneficiaries thereof;
(iv) OpCo shall deliver to the Sellers Representative an executed counterpart of the Escrow Agreement;
(v) the Buyer shall deliver to the Sellers Representative the executed Seller Note;
(vi) the Buyer shall deliver to the Sellers Representative an executed counterpart on behalf of Holdings, Focus Genco, and Genco Power Services LLC to the Third Amendment to Cost Sharing Agreement (the “Services Agreement Amendment”);
(vii) the Buyer shall deliver to the Sellers Representative an executed counterpart on behalf of the Company and Focus Genco to the Transaction Bonus and Release Agreement (the “Transaction Bonus Agreement”);
(viii) the Sellers Representative shall deliver or cause to be delivered to the Buyer:
(A) a schedule allocating the Aggregate Closing Consideration among the Sellers and setting forth each Seller’s Pro Rata Share, which allocation schedule shall be executed by all of the Sellers (the “Sellers’ Allocation Schedule”), and the Buyer and its Affiliates shall have no responsibility for the accuracy of the allocations set forth in the Sellers’ Allocation Schedule;
(B) an instrument of transfer duly executed by each Seller as transferor in favor of the Buyer as transferee in respect of all the Shares (each a “Share Transfer Instrument”) together with the share certificate(s) relating to the Shares (if any have been issued) or a customary indemnity in respect of any certificate which was issued but subsequently lost or destroyed;
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(C) a copy of the updated register of members of the Company reflecting the transfer of the Shares to the Buyer, certified by the Company’s registered office as true and complete as of the date of Closing;
(D) an executed counterpart of the Escrow Agreement;
(E) an executed counterpart of the Seller Note by each Seller;
(F) an executed counterpart on behalf of Genco Energia Ltda. to the Services Agreement Amendment;
(G) an executed counterpart on behalf of Summa US Corp to the Transaction Bonus Agreement;
(H) an executed counterpart on behalf of Focus Genco and Gabriel Bernardo de Almeida Arruda to the Termination of Employment agreement;
(I) all books, records, registers and other property of the Company or any of its Subsidiaries in any Seller’s possession or under any Seller’s control, including those held by the registered office of the Company;
(J) appropriate evidence of releases of any Encumbrances (other than any Permitted Encumbrances) related to the Shares and the assets and properties of the Company and its Subsidiaries;
(K) a payoff letter duly executed or acknowledged by each holder of Payoff Indebtedness, any collateral release documents, or any letters of credit cancellation or termination letters, including any applicable UCC termination statements and other documentation required to evidence the termination and release of all Encumbrances, guarantees and letters of credit in connection with such Payoff Indebtedness or any Indebtedness surviving Closing that requires credit support from any Person that is not the Company or any of its Subsidiaries, each in form and substance reasonably acceptable to the Buyer (each such payoff letter, a “Debt Payoff Letter”);
(L) a calculation of the aggregate number of fractional share interests that would otherwise be delivered to the Sellers in exchange for the Shares, and the aggregate Fractional Share Cash Amount to be delivered in lieu thereof. Notwithstanding anything to the contrary contained herein, no fractional Parent Common Shares shall be delivered to the Sellers in exchange for Shares, no dividend or distribution with respect to Parent Common Shares shall be payable on or with respect to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. In lieu of the delivery of any such fractional share, the Buyer shall pay, or cause to be paid, pursuant to Section 2.2(c) to each applicable Seller who otherwise would receive any such fractional share, an amount in cash (rounded to the nearest cent) determined by multiplying (i) the Price Per Share by (ii) the fraction of a Parent Common Share (rounded to the nearest thousandth when expressed in decimal form) which the Seller would otherwise be entitled to receive pursuant to Section 2.2(c) (such amount, the “Fractional Share Cash Amount”);
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(M) copies of the third-party consents and/or waivers executed by the applicable holders of any Indebtedness surviving Closing (other than Payoff Indebtedness) to the extent required for such Indebtedness to survive Closing;
(N) a properly completed IRS Form W-9 for each Seller that is a U.S. person certifying that such Seller is not subject to U.S. federal backup withholding taxes, duly executed by each such Seller and dated as of the date hereof;
(O) a properly completed IRS Form W-8 (including, as applicable, Form W-8BEN, W-8BEN-E, W-8ECI, or W-8IMY) for each Seller that is not a U.S. person, certifying such Seller’s non-U.S. status for purposes of Sections 1441, 1442, 1445, and 1471 through 1474 of the Code and establishing any applicable exemption from, or reduction of, U.S. federal withholding Taxes, duly executed by each such Seller and dated as of the date hereof;
(P) the written resignations, dated as of the date hereof, of each officer, director and manager of the Company and its Subsidiaries;
(Q) copies of the relevant corporate authorities approving the resignation of each officer, director and manager of the Company;
(R) a copy of a certificate of good standing for the Company and each of its Subsidiaries, issued by the jurisdiction of the applicable entity’s formation, dated as of a date that is no earlier than five Business Days prior to the date hereof;
(S) a certificate from each Seller other than the Excluded Share Seller, duly executed relating to such Seller’s representations and certifications regarding such Seller’s status as an “accredited investor” (as defined under the Securities Act);
(T) evidence reasonably satisfactory to the Buyer of the Company’s procurement of “tail” insurance policies (“Tail Coverage”), with a claims period of at least six years from the Closing from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Closing;
(U) evidence reasonably satisfactory to the Buyer of the withdrawal from and termination of the Company 401(k) Plans effective at least one (1) Business Day prior to the Closing in accordance with Section 6.13 hereof; and.
(V) evidence reasonably satisfactory to the Buyer that a vote of the shareholders of the Company or its Affiliates, as applicable, was solicited at least one (1) Business Day prior to the Closing, in accordance with Section 6.14 and that either the Section 280G Approval was obtained or the Section 280G Approval was not obtained.
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(c) On the Closing Date and promptly following the Closing:
(i) the Buyer shall, and OpCo shall cause the Buyer to, perform its payment obligations to the Sellers under the Seller Note, including, for the avoidance of doubt, the following: (x) the Buyer shall pay to each Seller its Pro Rata Share of the Aggregate Cash Closing Consideration plus such Seller’s Fractional Share Cash Amount; (y) the Buyer shall deposit the Adjustment Escrow Amount with the Escrow Agent, to be managed and paid out by the Escrow Agent pursuant to the terms of the Escrow Agreement; and (z) the Buyer shall pay to the Excluded Share Seller the Excluded Share Cash Amount;
(ii) the Buyer shall, and OpCo shall cause the Buyer to, deliver or cause to be delivered by or on behalf of the Company the amount payable to each counterparty or holder of Indebtedness identified on Section 2.2(c)(ii) of the Disclosure Schedules (the “Payoff Indebtedness”) in order to fully discharge such Payoff Indebtedness and terminate all applicable obligations and liabilities of the Company and any of its Affiliates related thereto, as specified in the Debt Payoff Letters and in accordance with this Agreement;
(iii) OpCo shall deliver or cause to be delivered to the Escrow Agent, the Escrow Agent’s fee with respect to the Escrow Agreement;
(iv) OpCo shall deliver or cause to be delivered by or on behalf of the Company the amount payable to each Person who is owed a portion of the Estimated Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions and in accordance with this Agreement; provided, that, notwithstanding the foregoing, OpCo shall deliver or cause to be delivered to the Company any Estimated Transaction Expenses that constitute compensation income to any employee or former employee of the Company or any of its Subsidiaries, and the Company shall pay or cause to be paid such amounts, less any required Taxes, to the employee or former employee on the next regularly scheduled payroll date of the Company’s or of its Subsidiary’s, as applicable, payroll system that is at least five Business Days following the Closing; and
(v) OpCo shall deliver or cause to be delivered to the Tail Coverage provider, all premiums, fees, costs and expenses payable at the Closing with respect to or in connection with the binding and issuance of the Tail Coverage.
(d) Except as set forth in Section 2.2(c)(iv) above, all cash payments hereunder shall be made by wire transfer of immediately available funds in United States dollars to such account as may be designated to the payor by the payee at least two Business Days prior to the applicable payment date.
(e) OpCo acknowledges and agrees that its obligations under Section 2.2(c)(i) to cause the Buyer to comply with Section 2.2(c)(i) represent a guaranty of payment when due, and not of collection only, and the Sellers shall not be obligated to enforce or exhaust their remedies against the Buyer or any other Person or under the Seller Note or any other agreement, before proceeding to enforce Section 2.2(c)(i) against OpCo. OpCo waives and will not exercise any rights that it may acquire by way of subrogation, reimbursement, or indemnification against the Buyer until the payment obligations under the Seller Note have been indefeasibly paid in full. OpCo’s obligations under Section 2.2(c)(i) shall continue to be effective or be reinstated, as the case may be, if at any time any payment obligation of the Buyer under the Seller Note is annulled, avoided, set aside, declared to be fraudulent or preferential or rescinded or must otherwise be restored or returned by a Seller for any reason, including as a result of any insolvency, bankruptcy
23
or reorganization proceeding, or upon or as a result of the appointment of a receiver or conservator of, or trustee for the Buyer or any other guarantor or any substantial part of its property or otherwise, all as though such payment had not been made. The obligations of OpCo under Section 2.2(c)(i) shall not be altered, limited, impaired, or otherwise affected by and OpCo waives any defense under or based upon (i) any proceeding, voluntary or involuntary, involving bankruptcy, insolvency, receivership, reorganization, liquidation, or arrangement of the Buyer, or any defense which the Buyer may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding, (ii) demands, diligence, presentment, notices and any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety, or (iii) any claim, set-off, counterclaim, defense or other rights that the Buyer may have at any time and from time to time against the Sellers (other than the indefeasible payment in full of the amounts due under the Seller Note).
Section 2.3 Closing Estimates. Set forth on Exhibit C are (a) a balance sheet of Focus Genco as of the Calculation Time (the “Preliminary Closing Balance Sheet”), (b) the Company’s good-faith estimate of (i) Net Working Capital based on the Preliminary Closing Balance Sheet (the “Estimated Net Working Capital”), (ii) Indebtedness (the “Estimated Indebtedness”), (iii) Cash (the “Estimated Cash”) and (iv) all Transaction Expenses that are accrued or due and remain unpaid (the “Estimated Transaction Expenses”) (with each of Estimated Net Working Capital, Estimated Cash and Estimated Indebtedness determined as of the Calculation Time and, except for Estimated Transaction Expenses, without giving effect to the transactions contemplated herein) and (b) on the basis of the foregoing, a calculation of the Estimated Purchase Price. Estimated Net Working Capital, Estimated Indebtedness and Estimated Cash shall be calculated in accordance with the Applicable Accounting Principles.
Section 2.4 Post-Closing Adjustment of Purchase Price.
(a) Within 60 days after the date hereof, OpCo shall prepare, or cause to be prepared, and deliver to the Sellers Representative a written statement (the “Final Closing Statement”) that shall include and set forth (i) a balance sheet of Focus Genco as of the Closing (except with respect to the calculation of the Closing Net Working Capital, which shall be as of the Calculation Time) (the “Closing Balance Sheet”) and (ii) a calculation of the actual (A) Net Working Capital based on the Closing Balance Sheet (the “Closing Net Working Capital”), (B) Indebtedness (the “Closing Indebtedness”), (C) Cash (the “Closing Cash”) and (D) Transaction Expenses (the “Closing Transaction Expenses”) (with each of Closing Net Working Capital, Closing Indebtedness and Closing Cash determined as of the Calculation Time and, except for Closing Transaction Expenses, without giving effect to the transactions contemplated herein). Closing Net Working Capital, Closing Indebtedness and Closing Cash shall be determined in a manner consistent with the definitions set forth herein and calculated in accordance with the Applicable Accounting Principles.
(b) The Final Closing Statement shall become final and binding on the 45th day following delivery thereof, unless prior to the end of such period, the Sellers Representative delivers to OpCo written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any dispute as to the Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Closing Transaction Expenses, as set forth in the Final Closing Statement. The Sellers Representative and the Sellers shall be deemed to have agreed with all items and
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amounts of Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Closing Transaction Expenses not specifically referenced in the Notice of Disagreement, and such items and amounts shall be deemed final, conclusive and binding for all purposes under this Agreement and no party may dispute such items or amounts. If OpCo fails to deliver the Final Closing Statement to the Sellers Representative within 60 days after the Closing Date in accordance with Section 2.4(a), the Sellers Representative may prepare and deliver the Final Closing Statement to OpCo within 60 days following such 60th day, and, in such case, OpCo shall have the Sellers Representative’s objection rights under Section 2.4(b) and Section 2.4(c), as applicable. If the Sellers Representative does not deliver a Final Closing Statement within such 60 day period, the Estimated Net Working Capital, Estimated Indebtedness, Estimated Cash and Estimated Transaction Expenses and the resulting Estimated Purchase Price shall be deemed final, conclusive and binding for all purposes under this Agreement and OpCo shall be deemed to have waived any and all objection rights in connection therewith.
(c) If a Notice of Disagreement is duly delivered pursuant to Section 2.4(b), during the 30-day period following delivery of a Notice of Disagreement by the Sellers Representative to OpCo (or any extension thereof mutually agreed to by OpCo and the Sellers Representative in writing), the parties in good faith shall seek to resolve in writing any differences that they may have with respect to the computation of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Closing Transaction Expenses as specified therein. Any disputed items resolved in writing between the Sellers Representative and OpCo within such 30-day period (or any extension thereof mutually agreed to by OpCo and the Sellers Representative in writing) shall be final, conclusive and binding with respect to such items, and if the Sellers Representative and OpCo agree in writing on the resolution of each disputed item specified by the Sellers Representative in the Notice of Disagreement and the amount of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses, the amounts so determined shall be final, conclusive and binding on the parties for all purposes hereunder. If the Sellers Representative and OpCo have not resolved all such differences by the end of such 30-day period (or any extension thereof mutually agreed to by OpCo and the Sellers Representative in writing), either OpCo or the Sellers Representative shall have the right to submit, in writing, to Grant Thornton LLP or, if such firm is unable or unwilling to act, such other nationally-recognized independent public accounting firm as shall be agreed in writing by the Sellers Representative and OpCo (the “Independent Accounting Firm”), each item in the Final Closing Statement remaining in dispute after such 30th day (or any extension thereof mutually agreed to by OpCo and the Sellers Representative in writing). Within 10 days of submission of any such disputed amount to the Independent Accounting Firm, both OpCo and the Sellers Representative shall promptly execute and deliver such documents and agreements as the Independent Accounting Firm shall reasonably request in connection with its engagement and shall instruct the Independent Accounting Firm to render its decision within 45 days of its referral. The Independent Accounting Firm shall make a written determination as to each such disputed item, which determination shall be final, conclusive and binding on the parties for all purposes hereunder and shall not be subject to appeal or further review. The Independent Accounting Firm shall consider only those items and amounts in the Notice of Disagreement that the Sellers Representative and OpCo have been unable to resolve. In resolving any disputed item, the Independent Accounting Firm may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. All communications with the Independent Accounting Firm shall include at least one Representative of each of the Sellers Representative and OpCo, and no
25
party shall be permitted to communicate with the Independent Accounting Firm other than as expressly set forth herein. The Sellers Representative and OpCo shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it as promptly as practicable, and in any event within 30 days following the submission thereof, and OpCo, the Sellers Representative and their respective Representatives shall cooperate with the Independent Accounting Firm during its resolution of any disputed items. The Independent Accounting Firm’s determination of any disputed items shall be based solely on written materials submitted by OpCo and the Sellers Representative (i.e., not on independent review), the Applicable Accounting Principles, this Agreement and the definitions included herein. Judgment may be entered upon the written determination of the Independent Accounting Firm in accordance with Section 9.9. In acting under this Agreement, the Independent Accounting Firm shall function solely as an expert and not as an arbitrator; provided, that the Independent Accounting Firm shall have the power to conclusively resolve differences in disputed items as specified in this Agreement.
(d) The costs of any dispute resolution pursuant to Section 2.4(c), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be borne by the Sellers Representative (on behalf of the Sellers) and OpCo in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. For example, if the Sellers Representative disputes $1,000,000 of a proposed Net Adjustment Amount but the Independent Accounting Firm determines that the Sellers Representative has a valid claim for only $400,000, the Sellers Representative (on behalf of the Sellers) shall bear 60% (i.e. $600,000/$1,000,000) of the fees and expenses of the Independent Accounting Firm and OpCo shall bear the other 40% of such fees and expenses (i.e. $400,000/$1,000,000). The fees and disbursements of the Representatives of each party incurred in connection with the preparation or review of the Final Closing Statement and preparation or review of any Notice of Disagreement, as applicable, shall be borne by the party retaining such Representative.
(e) OpCo (and its Affiliates, including post-Closing the Company and its Subsidiaries) and the Sellers Representative will afford (during the period from and after the date of delivery of the Final Closing Statement through the resolution of any adjustment to the Purchase Price contemplated by this Section 2.4) to OpCo and its Representatives, in the case of the Sellers Representative, and to the Sellers Representative and its Representatives, in the case of OpCo, reasonable access, during normal business hours and upon reasonable prior notice, to the personnel, properties, books and records of the Company, its Subsidiaries and OpCo and to any other information reasonably requested for purposes of preparing and reviewing the Final Closing Statement and the Notice of Disagreement. Each party shall authorize its accountants to disclose work papers generated by such accountants in connection with preparing and reviewing the calculations of the Net Working Capital, Cash, Indebtedness and Transaction Expenses as specified in this Section 2.4; provided, that such accountants shall not be obligated to make any work papers available except in accordance with such accountants’ disclosure procedures and then only after the non-client party has signed an agreement relating to access to such work papers in form and substance acceptable to such accountants.
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(f) The Estimated Purchase Price shall be adjusted, upwards or downwards, as follows:
(i) For the purposes of this Agreement, the “Net Adjustment Amount” means an amount, which may be positive or negative, equal to (A) the Closing Net Working Capital as finally determined pursuant to this Section 2.4 minus the Estimated Net Working Capital, plus (B) the Estimated Indebtedness minus the Closing Indebtedness as finally determined pursuant to this Section 2.4, plus (C) the Closing Cash as finally determined pursuant to this Section 2.4 minus the Estimated Cash, plus (D) the Estimated Transaction Expenses minus the Closing Transaction Expenses as finally determined pursuant to this Section 2.4.
(ii) If the Net Adjustment Amount is positive, the Estimated Purchase Price shall be adjusted upwards in an amount equal to the Net Adjustment Amount. In such event, (A) the Sellers Representative and OpCo shall execute and deliver a joint written notice to the Escrow Agent instructing the Escrow Agent to pay to each Seller their Pro Rata Share of all funds in the Adjustment Escrow Fund, and (B) OpCo shall pay to each Seller their respective Pro Rata Share of the Net Adjustment Amount.
(iii) If the Net Adjustment Amount is negative (in which case the “Net Adjustment Amount” for purposes of this clause (iii) shall be deemed to be equal to the absolute value of such amount), the Estimated Purchase Price shall be adjusted downwards in an amount equal to the Net Adjustment Amount. In such event, OpCo and the Sellers Representative shall execute and deliver a joint written notice to the Escrow Agent instructing the Escrow Agent to (A) pay from the Adjustment Escrow Fund to OpCo an amount equal to the Net Adjustment Amount, (B) in the event the Adjustment Escrow Fund exceeds the Net Adjustment Amount, pay to each Seller their respective Pro Rata Share of the remaining funds in the Adjustment Escrow Fund after paying to OpCo the Net Adjustment Amount as provided herein and (C) in the event the Adjustment Escrow Fund is insufficient to cover the entire amount payable to OpCo pursuant hereto, then the Escrow Agent shall distribute the entire Adjustment Escrow Fund to OpCo as provided in the Escrow Agreement, and the Sellers, on or prior to the same date as the Escrow Agent distributes the Adjustment Escrow Fund to OpCo pursuant to the Escrow Agreement, shall pay an amount to OpCo equal to their Pro Rata Share of the amount of such deficiency. In the event that any Seller shall fail to pay the amount of such deficiency within the time period specified in the immediately preceding sentence, OpCo may, in its sole discretion, deliver written notice to the Escrow Agent and the Sellers Representative specifying such amount, and the Escrow Agent shall deliver a number Parent Common Shares (rounded to the nearest share) from the Indemnity Escrow Fund to OpCo equal to (x) the amount of such deficiency divided by (y) the Price Per Share, in accordance with the terms of the Escrow Agreement; provided, that the defaulting Seller (A) shall promptly restore the Indemnity Escrow Fund to the extent any Parent Common Shares are so distributed therefrom and (B) shall remain liable in the event the Indemnity Escrow Fund is insufficient to cover the amount of such deficiency. No failure on the part of OpCo to deliver a notice as specified in the immediately preceding sentence shall relieve the Seller of the obligation to pay the amount of such deficiency to OpCo.
(iv) If the Net Adjustment Amount is zero or if the Estimated Net Working Capital, Estimated Indebtedness, Estimated Cash and Estimated Transaction Expenses and the resulting Estimated Purchase Price are deemed final, conclusive and binding pursuant to Section 2.4(b), OpCo and the Sellers Representative shall execute and deliver a joint written notice to the Escrow Agent instructing the Escrow Agent to pay to each Seller its respective Pro Rata Share of the funds in the Adjustment Escrow Fund.
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(g) Deliveries in respect of Section 2.4(f) shall be made within three Business Days of final determination of the Net Adjustment Amount pursuant to the provisions of this Section 2.4 by wire transfer of immediately available funds to such account or accounts as may be designated in writing by the party entitled to such payment at least two Business Days prior to such payment date.
(h) Any payment pursuant to this Section 2.4 shall be treated as an adjustment to the Purchase Price for U.S. federal income Tax purposes.
Section 2.5 Sellers Representative.
(a) Each Seller, by his, her or its execution of this Agreement, hereby consents to the terms of this Section 2.5 and to the appointment of Alan Zelazo as such Seller’s representative and attorney-in-fact, with full power of substitution to act on behalf of the Sellers to the extent and in the manner set forth in this Agreement and the Escrow Agreement. All decisions, actions, consents and instructions by the Sellers Representative with respect to this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby, including all decisions, actions, consents and instructions relating to the defense or settlement of any claims for indemnification, and the Sellers Representative’s allocation of the Aggregate Closing Consideration or any other payment made by the Buyer or OpCo hereunder among the Sellers, shall be binding upon all Sellers, and no Seller shall have the right to object to, protest or otherwise contest any such decision, action, consent or instruction. The Buyer Parties shall be entitled to rely on any decision, action, consent or instruction of the Sellers Representative in connection with this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby as being the decision, action, consent or instruction of the Sellers, and the Buyer and its Affiliates are hereby relieved from any liability to any Person for acts done in accordance with any such decision, act, consent or instruction. The provisions of this Section 2.5, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or more Sellers, or by operation of Law, whether by death or other event.
(b) In the event the Sellers Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Sellers (acting by the vote of the Sellers who immediately prior to the Closing held a projected interest in the Purchase Price equal to or greater than a majority of the projected Purchase Price) shall select another representative to fill the vacancy of the Sellers Representative, and such substituted representative shall be deemed to be the Sellers Representative for all purposes under this Agreement and the Ancillary Agreements.
(c) The Sellers Representative shall not be liable for any act done or omitted hereunder as the Sellers Representative while acting in good faith and in the exercise of reasonable judgment. The Sellers shall, severally (in proportions based on each Seller’s Pro Rata Share), indemnify the Sellers Representative and hold the Sellers Representative harmless against any
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loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Sellers Representative and arising out of or in connection with the acceptance or administration of the Sellers Representative’s duties under this Agreement and the Ancillary Agreements, including the reasonable fees and expenses of any legal counsel retained by the Sellers Representative. This right of indemnification shall survive the termination of this Agreement. Any Person dealing with the Sellers Representative, including the Buyer and its Affiliates, is entitled to rely on the actions taken by, and consents and approvals given by, the Sellers Representative without the need for further investigation, and upon the communications of the Sellers Representative relating to the foregoing as the communications of the Sellers. A Person shall be entitled to rely on the Sellers Representative’s actions, consents, approvals and communications notwithstanding any knowledge of the relying Person. No Person shall have any liability for relying on the Sellers Representative in the foregoing manner.
(d) Each of the Buyer and its Affiliates shall be entitled to unconditionally assume that any action taken or omitted, or any document executed by, Alan Zelazo, purporting to act as the Sellers Representative under or pursuant to this Agreement or the Ancillary Agreements or in connection with any of the transactions contemplated hereby, has been unconditionally authorized by Sellers to be taken, omitted to be taken, or executed on their behalf so that they will be legally bound thereby, and no Seller shall institute any claim, lawsuit, arbitration or other proceeding against the Buyer or any of its Affiliates alleging that Alan Zelazo did not have the authority to act as the Sellers Representative on behalf of Sellers in connection with any such action, omission or execution. No modification or revocation of the power of attorney granted by the Sellers herein to Alan Zelazo to serve as the Sellers Representative shall be effective as against the Buyer or any of its Affiliates until it has received a document effecting said modification or revocation signed by Sellers who immediately prior to the Closing collectively held a projected interest in the Purchase Price equal to or greater than a majority of the projected Purchase Price. The Buyer and its Affiliates are hereby relieved from any liability to any Person for any acts done by the Sellers Representative.
Section 2.6 Withholding. The Buyer shall be entitled to deduct and withhold from any consideration otherwise payable to any Person pursuant to this Agreement such amounts as it determines it is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state, local or non-U.S. Tax Law. Any amounts that are so deducted and withheld shall be timely paid to the relevant Governmental Authority and shall be treated for all purposes of this Agreement as having been paid to the applicable Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Except as set forth in the corresponding sections or subsections of the Disclosure Schedules attached hereto (collectively, the “Disclosure Schedules”), each Seller, severally and not jointly, hereby represents and warrants to the Buyer Parties as of the date hereof as follows:
Section 3.1 Organization and Qualification. If such Seller is a legal entity, such Seller is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization and has full corporate, limited liability company or limited partnership (as applicable) power and authority to own and dispose of the Shares owned by it.
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Section 3.2 Authority. If such Seller is a legal entity, such Seller has full corporate, limited liability company or limited partnership (as applicable) power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. If such Seller is a natural person, such Seller has legal capacity to execute and deliver this Agreement and each Ancillary Agreement to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by such Seller of this Agreement and each of the Ancillary Agreements to which it is a party and the consummation by such Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate, limited liability company, limited partnership or spousal or community property (as applicable) action. Each of this Agreement and the Ancillary Agreements to which such Seller is a party has been duly executed and delivered by such Seller and, assuming due execution and delivery by each of the other parties hereto and thereto, each of this Agreement and such Ancillary Agreements constitutes the legal, valid and binding obligations of such Seller, enforceable against such Seller in accordance with their respective terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity).
Section 3.3 No Conflict; Required Filings and Consents.
(a) The execution, delivery and performance by such Seller of this Agreement and each of the Ancillary Agreements to which such Seller is a party, and the consummation of the transactions contemplated hereby and thereby do not and will not:
(i) if such Seller is a legal entity, conflict with or violate the organizational documents of such Seller;
(ii) conflict with or violate any Law applicable to such Seller or by which the Shares owned by such Seller are subject or affected; or
(iii) conflict with or violate, result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would become a default) under, require any consent of or notice to any Person pursuant to, give to others any right of termination, amendment, modification, acceleration or cancellation of, allow the imposition of any fees or penalties under, require the offering or making of any payment or redemption under, give rise to any increased, guaranteed, accelerated or additional rights or entitlements of any Person under, or otherwise adversely affect any rights of such Seller under, or result in the creation of any Encumbrance on any of the Shares pursuant to, any Contract to which such Seller is bound, except, in the case of this clause (iii), for any such breaches, defaults or other occurrences that would not, individually or in the aggregate, materially impair the ability of such Seller to consummate, or prevent or materially delay, any of the transactions contemplated by this Agreement or the Ancillary Agreements or would reasonably be expected to do so.
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(b) Such Seller is not required to file, seek or obtain any notice, authorization, approval, order, permit or consent of or with any Governmental Authority in connection with the execution, delivery and performance by such Seller of this Agreement and each of the Ancillary Agreements to which such Seller is a party or the consummation of the transactions contemplated hereby or thereby, except for (i) any filings required to be made under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and (ii) such filings as may be required by any applicable federal or state securities or “blue sky” Laws.
Section 3.4 Shares. Such Seller is the record, legal and beneficial owner of the Shares listed as owned by such Seller on Section 3.4 of the Disclosure Schedules, free and clear of any Encumbrance (other than Encumbrances arising under securities Laws, created by the Buyer or any of its Affiliates or arising pursuant to the memorandum and articles of association of the Company). Such Seller has the full right, title, authority and power to sell, assign and transfer such Shares to the Buyer. Upon delivery to the Buyer of such Shares at the Closing and the Buyer’s payment of the Purchase Price, the Buyer shall acquire good, valid and marketable title to such Shares, free and clear of any Encumbrance (other than those arising under securities Laws or created by the Buyer or any of its Affiliates).
Section 3.5 Acquisition of Parent Common Shares. Such Seller is acquiring the Parent Common Shares for its own account, for investment purposes only and not with a view to the distribution of such Parent Common Shares. Such Seller understands that the offering and issuance of the Parent Common Shares hereunder has not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and that the Parent Common Shares cannot be offered or re-sold until such offer and sale is subsequently registered under the Securities Act or unless an exemption from such registration is available to such Seller. Such Seller, other than the Excluded Share Seller, is an “accredited investor” as that term is defined in Rule 501(a) promulgated under the Securities Act. Such Seller acknowledges that the Parent Common Shares issued hereunder will bear the following or substantially similar legend thereon:
“The shares represented by this certificate have not been registered under the Securities Act of 1933, as amended, or any state securities laws. The shares have been acquired for investment and may not be sold or transferred in the absence of an effective registration statement for the shares under such Act unless, in the opinion of counsel satisfactory to the issuer, registration is not required under such Act or any applicable state securities laws.”
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Disclosure Schedules, the Company hereby represents and warrants to the Buyer Parties as of the date hereof as follows:
Section 4.1 Organization and Qualification.
(a) Each of the Company and its Subsidiaries is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization, and has full power and authority to own, lease and operate its respective properties and assets and to carry on its business as now conducted and as currently proposed to be conducted. Each of the Company and its Subsidiaries is duly qualified or licensed to do business, and is in good standing, in each
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jurisdiction where the character of the properties and assets occupied, owned, leased or operated by it or the nature of its business makes such qualification or licensing necessary, except for any such failures to be so qualified or licensed and in good standing that, individually or in the aggregate, has not been and would not reasonably be expected to have a Material Adverse Effect.
(b) The Company has furnished to the Buyer a complete and correct copy of the certificate of formation, bylaws or equivalent organizational documents and statutory registers, each as amended to date, of the Company and each of its Subsidiaries. Such documents are in full force and effect and neither the Company nor any of its Subsidiaries is in violation of any of the applicable provisions thereof in any material respect. The transfer books and minute books or equivalent documentation of the Company and its Subsidiaries have been made available for inspection by the Buyer prior to the date hereof and are in all material respects true and complete.
Section 4.2 Authority.
(a) The Company has full power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by the Company of this Agreement and each of the Ancillary Agreements to which it is a party and the consummation by the Company of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary entity action. This Agreement and each of the Ancillary Agreements to which the Company is a party have been duly executed and delivered by the Company and, assuming due execution and delivery by each of the other parties hereto and thereto, each of this Agreement and such Ancillary Agreements constitutes the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity).
(b) No vote or approval by, or other action of, the holders of any equity interests of the Company is necessary under any Law or Contract in connection with the execution and delivery of this Agreement or any Ancillary Agreement or the consummation of transactions contemplated hereby or thereby.
Section 4.3 No Conflict; Required Filings and Consents.
(a) Except as set forth on Section 4.3 of the Disclosure Schedules, the execution, delivery and performance by the Company and the Sellers of this Agreement and each of the Ancillary Agreements to which the Company is or the Sellers are a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not:
(i) conflict with or violate the certificate of formation and bylaws or equivalent organizational documents of the Company or any of its Subsidiaries;
(ii) conflict with or violate any Law applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is subject or affected; or
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(iii) conflict with or violate, result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would become a default) under, require any consent of or notice to any Person pursuant to, give to others any right of termination, amendment, modification, acceleration or cancellation of, allow the imposition of any fees or penalties under, require the offering or making of any payment or redemption under, give rise to any increased, guaranteed, accelerated or additional rights or entitlements of any Person under, or otherwise adversely affect any rights of the Company or its Subsidiaries under, or result in the creation of any Encumbrance on any property, asset or right of the Company or its Subsidiaries pursuant to any Contract to which the Company or its Subsidiaries is a party or by which the Company or its Subsidiaries or any of its respective properties, assets or rights may be bound or affected;
except, in the case of the foregoing clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults or other occurrences that would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.
(b) None of the Company or any of its Subsidiaries is required to file, seek or obtain any notice, authorization, approval, order, permit or consent of or with any Governmental Authority in connection with the execution, delivery and performance by the Company or the Sellers of this Agreement or any of the Ancillary Agreements or the consummation of the transactions contemplated hereby or thereby or in order to prevent the termination of any right, privilege, license or qualification of the Company or any of its Subsidiaries, except for (i) any filings required to be made under the HSR Act, (ii) such filings as may be required by any applicable federal or state securities or “blue sky” Laws, and (iii) such actions or filings that the failure to take or make, as the case may be, would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.
(c) With respect to the Company and its Subsidiaries, no “fair price,” “interested shareholder,” “business combination” or similar provision of any state takeover Law is applicable to the transactions contemplated by this Agreement or any Ancillary Agreement.
Section 4.4 Capitalization. Section 4.4 of the Disclosure Schedules sets forth a complete and accurate list, as of the date of this Agreement, of all record owners of the issued and outstanding share capital of the Company and for each Subsidiary of the Company, indicating the respective number and class of shares held by each. Except for the Shares and except as set forth on Section 4.4 of the Disclosure Schedules, neither the Company nor any of its Subsidiaries has issued or agreed to issue any: (a) shares of capital stock or other equity or ownership interests; (b) options, warrants or interests convertible into or exchangeable or exercisable for shares of capital stock or other equity or ownership interests; (c) equity appreciation rights, phantom equity, interests in the ownership or earnings of the Company or any of its Subsidiaries or other equity equivalent or equity-based award or right; or (d) bonds, debentures or other Indebtedness having the right to vote or convertible or exchangeable for securities having the right to vote. Each outstanding share of capital stock or other equity or ownership interest of the Company and each of its Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and was not issued in violation of any preemptive or other rights of any Person to acquire securities of the Company or the applicable Subsidiary, and, in the case of its Subsidiaries, each such share or equity or ownership interest is owned by the Company or another Subsidiary, free and clear of any Encumbrance (other than those arising under securities Laws). All of the aforesaid shares of
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capital stock or other equity or ownership interests of the Company and its Subsidiaries have been offered, sold and delivered by the Company or the applicable Subsidiary in compliance with all applicable U.S. federal, state and non-U.S. foreign Laws. Except for rights granted to the Buyer under this Agreement, there are no outstanding obligations of the Company or any of its Subsidiaries to issue, sell or transfer or repurchase, redeem or otherwise acquire, or that relate to the holding, voting or disposition of or that restrict the transfer of, the issued or unissued shares of capital stock or other equity or ownership interests of the Company or its Subsidiaries. No shares of capital stock or other equity or ownership interests of the Company or any of its Subsidiaries have been issued in violation of any rights, agreements, arrangements or commitments under any provision of applicable Law, the certificate of formation or bylaws or equivalent organizational documents of the Company or any of its Subsidiaries or any Contract to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound. No shares of capital stock or other equity or ownership interests of the Company are owned by the Company or held by the Company in treasury. There are no declared or accumulated but unpaid distributions in respect of any shares of capital stock or other equity or ownership interests of the Company or any of its Subsidiaries.
Section 4.5 Equity Interests. Except for the Subsidiaries listed on Section 4.4 of the Disclosure Schedules, neither the Company nor any of its Subsidiaries directly or indirectly owns any equity, partnership, membership or similar interest in, or any interest convertible into, exercisable for the purchase of or exchangeable for any such equity, partnership, membership or similar interest, or is under any current or prospective obligation to form or participate in, provide funds to, make any loan, capital contribution or other investment in, any Person.
Section 4.6 Financial Statements; No Undisclosed Liabilities.
(a) True and complete copies of the (x) audited balance sheets of Focus Genco as of December 31, 2024 and the related audited statements of income, retained earnings, stockholders’ equity and changes in financial position of Focus Genco for the 12-month periods then ended, together with all related notes and schedules thereto, accompanied by the reports thereon of the Company’s independent auditors (collectively referred to as the “Audited Financial Statements”), and (y) the unaudited balance sheet of Focus Genco as of December 31, 2025 (the “Balance Sheet”), and the related statements of income, retained earnings, stockholders’ equity and changes in financial position of Focus Genco for the twelve-month period ended December 31, 2025 (collectively referred to as the “Interim Financial Statements”), are attached hereto as Section 4.6(a) of the Disclosure Schedules. Each of the Financial Statements (i) are correct and complete in all material respects and have been prepared in accordance with the books and records of Focus Genco, (ii) except as in conformity with the Applicable Accounting Principles, have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and (iii) fairly present, in all material respects, the financial position, results of operations and cash flows of Focus Genco as of the respective dates thereof and for the respective periods indicated therein, except as otherwise noted therein.
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(b) Except as and to the extent adequately accrued or reserved against in the Balance Sheet, neither the Company nor any of its Subsidiaries has any liability or obligation of any nature, whether accrued, absolute, contingent or otherwise, whether known or unknown and whether or not required by GAAP to be reflected in a consolidated balance sheet of the Company and its Subsidiaries (prepared on a consolidated basis) or disclosed in the notes thereto, except for (i) liabilities and obligations, incurred in the ordinary course of business consistent with past practice since the date of the Balance Sheet, that are not, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, (ii) liabilities and obligations incurred in connection with (A) non-delinquent executory Contracts with customers and leases and (B) trade payables and other items included in Net Working Capital, (iii) liabilities and obligations otherwise disclosed (or within any materiality threshold contained in any other representation) in this Agreement, including as part of any section of the Disclosure Schedules, and (iv) liabilities and obligations contemplated by or in connection with this Agreement or the transactions contemplated hereby.
(c) The books of account and financial records of the Company and its Subsidiaries are true and correct in all material respects and have been prepared and are maintained in accordance with sound accounting practice.
Section 4.7 Absence of Certain Changes or Events. Except as set forth in Section 4.7 of the Disclosure Schedules, since the date of the Balance Sheet: (i) the Company and its Subsidiaries have conducted their businesses only in the ordinary course consistent with past practice; (ii) there has not been any change, event or development or prospective change, event or development that, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect; (iii) neither the Company nor any of its Subsidiaries has suffered any material loss, damage, destruction or other casualty affecting any of its material properties or assets, whether or not covered by insurance; and (iv) neither the Company nor any of its Subsidiaries has taken any of the following actions:
(a) amended its certificate of formation or bylaws or equivalent organizational documents;
(b) issued, sold, pledged, transferred, disposed of or otherwise subjected to any Encumbrance (other than Permitted Encumbrances) (i) any equity or ownership interests of the Company or any of its Subsidiaries, (ii) any options, warrants, convertible securities or other rights of any kind to acquire any equity or ownership interests of the Company or any of its Subsidiaries, (iii) any material properties or assets of the Company or any of its Subsidiaries, other than sales or transfers of inventory in the ordinary course of business consistent with past practice or (iv) any stock appreciation rights, phantom stock, interests in the ownership or earnings of the Company or any of its Subsidiaries;
(c) declared, set aside, made or paid any non-cash dividend or other distribution on or with respect to any of its equity or ownership interest;
(d) reclassified, combined, split, subdivided or redeemed, or purchased or otherwise acquired, directly or indirectly, any of its equity or ownership interest, or made any other change with respect to its capital structure;
(e) directly or indirectly acquired any corporation, partnership, limited liability company, other business organization or division thereof or any material amount of assets, or entered into any joint venture, strategic alliance or similar contract or arrangement;
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(f) adopted a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, or otherwise materially altered the Company’s organizational structure;
(g) made any loans or advances, except in the ordinary course of business consistent with past practice;
(h) amended, waived, modified or consented to the termination of any Material Contract, or amended, waived, modified or consented to the termination of the Company’s or any of its Subsidiaries’ rights thereunder;
(i) authorized, or made any commitment with respect to, any single capital expenditure that is in excess of $100,000 or capital expenditures that are, in the aggregate, in excess of $500,000 for the Company or any of its Subsidiaries, taken as a whole;
(j) entered into any lease of real or personal property from any third party or any renewals thereof involving a term of more than six months or rental obligation exceeding $50,000 per year in any single case;
(k) increased the compensation payable or to become payable or the benefits provided to its employees or individual independent contractors (except in the ordinary course of business consistent with past practice), or granted any severance or termination payment to, or paid, loaned or advanced any amount to, any employee or individual independent contractor of the Company or any of its Subsidiaries, or established, adopted, entered into or amended any material Plan;
(l) entered into any collective bargaining agreement with any labor organization;
(m) entered into any Contract with any Related Party of the Company or any of its Subsidiaries;
(n) made any change in any method of accounting or accounting practice or policy, except as required by GAAP;
(o) made, revoked or modified any material Tax election, settled or compromised any material Tax liability or filed any material Tax Return other than on a basis consistent with past practice;
(p) paid, discharged or satisfied any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any such claims, liabilities or obligations in the ordinary course of business consistent with past practice;
(q) canceled, compromised, waived or released any right or claim of material value;
(r) commenced or settled any Action (other than immaterial Actions);
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(s) entered into any new line of business; or
(t) announced an intention, entered into any formal or informal agreement, or otherwise made a binding commitment to do any of the foregoing.
Section 4.8 Compliance with Law; Permits.
(a) Each of the Company and its Subsidiaries is, and as of March 1, 2023 (the “Lookback Date”) has been, in compliance in all material respects with all Laws applicable to it. None of the Company, any of its Subsidiaries or any of its or their executive officers has received since the Lookback Date, any written or, to the Knowledge of the Company, oral notice, order, complaint or other communication from any Governmental Authority or any other Person that the Company or any of its Subsidiaries is not in compliance in any material respect with any Law applicable to it.
(b) Since the Lookback Date, the Company and each of its Subsidiaries has obtained all material permits, licenses, franchises, approvals, certificates, consents, waivers, concessions, exemptions, orders, registrations, notices or other authorizations of any Governmental Authority necessary for each of the Company and its Subsidiaries to own, lease and operate its properties and to carry on its business in all material respects as currently conducted (the “Permits”). Each of the Company and its Subsidiaries is and has been since the Lookback Date in compliance in all material respects with all such Permits. No suspension, cancellation, adverse modification, revocation or nonrenewal of any Permit is pending or, to the Knowledge of the Company, threatened. No Permit is held in the name of any employee, individual independent contractor, officer, manager, equityholder, agent or otherwise on behalf of the Company or any of its Subsidiaries.
Section 4.9 Litigation. Except as set forth on Section 4.9 of the Disclosure Schedules, there is no Action pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, or any material property or asset of the Company or any of its Subsidiaries, nor, to the Knowledge of the Company, is there any basis for any such Action. There is no Action pending or, to the Knowledge of the Company, threatened seeking to prevent, hinder, modify, delay or challenge the transactions contemplated by this Agreement or the Ancillary Agreements. There is no outstanding order, writ, judgment, injunction, decree, determination or award of, or pending or, to the Knowledge of the Company, threatened investigation by, any Governmental Authority relating to the Company or any of its Subsidiaries, any of its or their properties or assets, or the transactions contemplated by this Agreement or the Ancillary Agreements. There is no material Action by the Company or any of its Subsidiaries pending, or which the Company or any of its Subsidiaries has commenced preparations to initiate, against any other Person.
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Section 4.10 Employee Benefit Plans.
(a) Section 4.10(a) of the Disclosure Schedules sets forth a true and complete list of each material Plan. The Company has furnished to the Buyer a true and complete copy of each such Plan and has delivered to the Buyer a true and complete copy of each material plan document, if any, governing each such Plan, including, as applicable, (i) a copy of each trust or other funding arrangement, (ii) the current summary plan description and any summaries of material modifications, (iii) the two most recently filed Internal Revenue Service (“IRS”) Form 5500s, (iv) the most recently received IRS determination letter for each such Plan, (v) the most recently prepared actuarial report and financial statement in connection with each such Plan, and (vi) any non-routine correspondence with any Governmental Authority with respect to such Plan since the Lookback Date. Neither the Company nor any of its Subsidiaries have any express or implied commitment (A) to create, incur liability with respect to or cause to exist any other employee benefit plan, program or arrangement, (B) to enter into any Contract to provide compensation or benefits to any individual or (C) to modify, change or terminate any Plan, other than with respect to a modification, change or termination required by ERISA or the Internal Revenue Code of 1986, as amended (the “Code”).
(b) None of the Plans referred to in Section 4.10(a) is a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA (a “Multiemployer Plan”) or a single employer pension plan within the meaning of Section 4001(a)(15) of ERISA for which the Company or any of its Subsidiaries could incur liability under Section 4063 or 4064 of ERISA (a “Multiple Employer Plan”). Except as set forth on Section 4.10(b) of the Disclosure Schedules, none of such Plans: (i) provides for the payment of separation, severance, termination or similar-type benefits to any person; (ii) obligates the Company or any of its Subsidiaries to pay separation, severance, termination or similar-type benefits solely or partially as a result of the transactions contemplated by this Agreement or the Ancillary Agreements; or (iii) obligates the Company or any of its Subsidiaries to make any payment or provide any benefit as a result of the transactions contemplated by this Agreement or the Ancillary Agreements. None of such Plans provides for or promises retiree medical, disability or life insurance benefits to any current or former employee, individual independent contractor, officer or manager of the Company or any of its Subsidiaries.
(c) Each Plan is now and has since the Lookback Date been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code. The Company and its Subsidiaries have in all material respects performed all obligations required to be performed by them and is not in any respect in default under or in violation under any Plan, nor to the Knowledge of the Company is there any such default or violation by any other party to any Plan.
(d) Each Plan that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has received a timely favorable determination letter from the IRS, covering all of the provisions applicable to the Plan for which determination letters are currently available, that the Plan is so qualified. No fact or event has occurred since the date of such determination letter or letters from the IRS that would reasonably be expected to adversely affect the qualified status of any such Plan.
(e) There has not been any non-exempt prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, with respect to any Plan. Neither the Company nor any of its Subsidiaries have incurred any liability under, arising out of or by operation of Title IV of ERISA (including on account of any ERISA Affiliate), other than liability for premiums to the Pension Benefit Guaranty Corporation arising in the ordinary course, including any liability in connection with (i) the termination or reorganization of any employee benefit plan subject to Title IV of ERISA or (ii) the withdrawal from any Multiemployer Plan or Multiple Employer Plan, and no fact or event exists that would give rise to any such liability.
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(f) All contributions, premiums or payments required to be made with respect to any Plan have in all material respects been made on or before their due dates. As of the date hereof, no Plan that is subject to Title IV of ERISA will have an “unfunded benefit liability” within the meaning of Section 4001(a)(18) of ERISA.
(g) There are no Actions (other than routine claims for benefits) pending or, to the Knowledge of the Company, threatened, anticipated or expected to be asserted with respect to any Plan or any related trust or other funding medium thereunder or with respect to the Company or any of its Subsidiaries or any ERISA Affiliate as the sponsor or fiduciary thereof or, to the Knowledge of the Company, with respect to any other fiduciary thereof.
(h) No Plan or any related trust or other funding medium thereunder or any fiduciary thereof is, to the Knowledge of the Company, the subject of an audit, investigation or examination by any Governmental Authority.
(i) The Company and its Subsidiaries and its ERISA Affiliates do not maintain any Plan which is a “group health plan,” as such term is defined in Section 5000(b)(1) of the Code, that has not been administered and operated in all material respects in compliance with the applicable requirements of Section 601 of ERISA, Section 4980B(b) of the Code and the applicable provisions of the Patient Protection and Affordable Care Act and the Health Insurance Portability and Accountability Act of 1986. The Company and its Subsidiaries are not subject to any liability, including additional contributions, taxes, fines, penalties or loss of tax deduction as a result of such administration and operation.
(j) With respect to each Plan that is a “nonqualified deferred compensation plan” (as defined for purposes of Section 409A(d)(1) of the Code), such plan or arrangement has been operated so as to avoid any tax, interest or penalty thereunder; and the document or documents that evidence each such plan or arrangement have conformed to the provisions of Section 409A of the Code and the final regulations under Section 409A of the Code. The Company and its Subsidiaries have no obligation to compensate any Person for any excise taxes that may be incurred by such Person under Section 409A of the Code.
(k) The Company and its Subsidiaries are not obligated to make any payments, including under any Plan, that reasonably could be expected to be “excess parachute payments” pursuant to Section 280G of the Code and the Company and its Subsidiaries have no obligation to compensate any Person for any excise taxes that may be incurred by such Person under Section 4999 of the Code.
(l) Without limiting the foregoing, (i) all Plans that are maintained primarily for the benefit of any current or former employee, officer, service provider or director of the Company or any of its Subsidiaries outside of the United States (or any of their beneficiaries or dependents) (“Non-U.S. Benefit Plans”) comply in all material respects with their terms and applicable local Law, and (ii) each Non-U.S. Benefit Plan which, under the Laws of the applicable non-U.S. country, is required to be registered or approved by any Governmental Entity, has been so registered or approved and each Non-U.S. Benefit Plan intended to qualify for special tax treatment meets all the requirements for such treatment.
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Section 4.11 Labor and Employment Matters.
(a) Section 4.11(a) of the Disclosure Schedules sets forth a materially complete and accurate list of each current employee and individual independent contractor of the Company or any of its Subsidiaries (each a “Company Service Provider”), and with respect to each Company Service Provider, (i) his or her (A) name or employee ID number; (B) title or position (including whether full or part time); (C) employment location, (D) employer entity, (E) status as exempt or non-exempt under the Fair Labor Standards Act (or analogous local Law), (F) hire date; (G) current annual base compensation or hourly wage rate; and (H) commission, bonus or other incentive-based compensation arrangements (including target bonus, if applicable); and (ii) whether such individual is currently actively employed and, if on leave of absence, when such leave began and the expected return to work date.
(b) Neither the Company nor its Subsidiaries are a party to any labor or collective bargaining Contract that pertains to employees of the Company or any of its Subsidiaries. There are no, and since the Lookback Date have been no, organizing activities or collective bargaining arrangements that could materially affect the Company or any of its Subsidiaries pending or, to the Knowledge of the Company, under discussion with any labor organization or group of employees providing services to the Company or its Subsidiaries. There is no, and since the Lookback Date have been no, labor dispute, strike, controversy, slowdown, work stoppage or lockout pending or, to the Knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has breached or otherwise failed to comply with the provisions of any collective bargaining or union Contract. There are no pending or, to the Knowledge of the Company, threatened union grievances or union representation questions involving employees providing services to the Company or its Subsidiaries.
(c) Each of the Company and its Subsidiaries is, and since the Lookback Date has been, in compliance in all material respects with all applicable Laws respecting employment, including discrimination or harassment in employment, terms and conditions of employment, termination of employment, wages, overtime classification, hours, occupational safety and health, employee whistle-blowing, immigration, employee privacy, employment practices and classification of employees, consultants and independent contractors. Neither the Company nor any of its Subsidiaries is engaged in any unfair labor practice, as defined in the National Labor Relations Act or other applicable Laws. No unfair labor practice or labor charge or complaint is pending or, to the Knowledge of the Company, threatened with respect to the Company or any of its Subsidiaries before the National Labor Relations Board, the Equal Employment Opportunity Commission or any other Governmental Authority.
(d) Each of the Company and its Subsidiaries has withheld and paid to the appropriate Governmental Authority or is holding for payment not yet due to such Governmental Authority all material amounts required to be withheld from employees of the Company or the applicable Subsidiaries and, to the Knowledge of the Company, is not liable for any arrears of wages, taxes, or penalties in connection with any services or work performed on behalf of the Company or any of its Subsidiaries. Each of the Company and its Subsidiaries has paid in full to all its employees for all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees.
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(e) Neither the Company nor any of its Subsidiaries is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Authority relating to employees or employment practices. Neither the Company nor any of its Subsidiaries or any of its or their officers or managers have received since the Lookback Date any notice of intent by any Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an investigation relating to the Company or any of its Subsidiaries and, to the Knowledge of the Company, no such investigation is in progress.
(f) There have been no written allegations, claims or investigations of harassment, discrimination, or retaliation against any senior manager, officer or director of the Company or its Subsidiaries at any time since the Lookback Date.
Section 4.12 Title to, Sufficiency and Condition of Assets.
(a) The Company and its Subsidiaries have good and valid title to or a valid leasehold interest in all of their assets, including all of the assets reflected on the Balance Sheet or acquired in the ordinary course of business since the date of the Balance Sheet, except those sold or otherwise disposed of for fair value since the date of the Balance Sheet in the ordinary course of business consistent with past practice. Except as set forth on Section 4.12 of the Disclosure Schedules, the assets owned or leased by the Company and its Subsidiaries constitute all of the assets reasonably necessary for the Company and its Subsidiaries to carry on their respective businesses as currently conducted in all material respects. None of the assets owned or leased by the Company or any of its Subsidiaries is subject to any Encumbrance, other than Permitted Encumbrances.
(b) All tangible assets owned or leased by the Company or its Subsidiaries have been maintained in all material respects in accordance with generally accepted industry practice, are in all material respects in good operating condition and repair, ordinary wear and tear excepted, and are adequate for the uses to which they are being put.
(c) Section 4.12(c) of the Disclosure Schedules sets forth a true and complete list, as of the date hereof, of (i) (A) each turbine owned by the Company or any of its Subsidiaries and (B) each turbine that has been ordered by the Company or any of its Subsidiaries but not yet delivered (clauses (A) and (B), collectively, the “Turbines” and each a “Turbine”), and (ii) the serial number (or, if the serial number cannot reasonably be obtained for Turbines covered by the foregoing clause (i)(B), such other reasonable identifier) of each such Turbine. None of the Turbines are subject to certificate of title statutes or regulations under which a security interest in such Turbines is perfected by an indication on the certificate of title of such Turbines (in lieu of filing of financing statements).
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(d) As of the date hereof, the Company or its Subsidiaries directly or indirectly owns, or has a valid and enforceable right to acquire pursuant to one or more binding Contracts, the Equipment. All tangible assets owned or leased by the Company or any of its Subsidiaries are located on Licensed Real Property, on location with a customer of the Company in accordance with the records of the Company or in transit between such customer location and Licensed Real Property in the ordinary course of business. The Company has not made any unfulfilled commitments for the acquisition of any turbines or other material tangible assets other than replacement parts in the ordinary course of business. To the Knowledge of the Company, none of the Turbines will require material maintenance or upgrade in the six months following the date hereof to remain in good operating condition and repair or continue operating in the ordinary course of business.
Section 4.13 Real Property.
(a) Except for the Licensed Real Property, neither the Company nor any Subsidiary owns, leases, subleases, or otherwise holds a fee, remainder, leasehold or sub-leasehold interest in any real property. None of the Company nor any of its Subsidiaries has ever owned any real property, nor is the Company or any of its Subsidiaries a party to any Contract to purchase, sell, lease, or sublease any real property or which provides the Company or any Subsidiary any option to purchase, sell, lease, or sublease any real property.
(b) Section 4.13(b) of the Disclosure Schedules sets forth a true and complete list of all Licensed Real Property. To the Knowledge of the Company, the Licensed Real Property is not subject to any governmental decree or order to be sold or is being condemned, expropriated, re-zoned or otherwise taken by any public authority with or without payment of compensation therefore, nor, to the Knowledge of the Company, has any such condemnation, expropriation or taking been proposed. The Company has delivered or made available to the Buyer true and complete copies of all material licenses, occupancy agreements, office services agreements, or other agreements providing the Company or any Subsidiary the right to use or occupy any Licensed Real Property and all amendments and modifications thereto (“Real Property Licenses”), and all such Real Property Licenses are in full force and effect, and there exists no default under any such Real Property Licenses by the Company, any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto.
(c) Neither the Company nor any of its Subsidiaries is party to any Contract that precludes or restricts the ability to use any Licensed Real Property by the Company or any of its Subsidiaries for the current use of such real property. To the Knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Licensed Real Property. All structures and other buildings or improvements on which the Company or any Subsidiary have a right to use or occupy pursuant to any Real Property Licenses are adequately maintained and are in good operating condition and repair for the requirements of the business of the Company and its Subsidiaries as currently conducted.
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Section 4.14 Intellectual Property.
(a) Section 4.14(a) of the Disclosure Schedules sets forth a true and complete list of all registered Marks, issued Patents, registered Copyrights, and Domain Names and Social Media Accounts, including any pending applications to register any of the foregoing, in each case included in the Company Owned IP (collectively, the “Company Registered IP”), and any material unregistered Marks. The Company or one of its Subsidiaries is the sole and exclusive beneficial and record owner of all of the Company Registered IP. All Company Registered IP is valid and subsisting and, to the Knowledge of the Company, enforceable, and the Company has not received any written notice or claim challenging the validity or enforceability of any Company Registered IP or alleging any misuse of such Company Registered IP. No Company Registered IP has been abandoned, cancelled, forfeited, relinquished or adjudicated invalid or unenforceable, or is subject to any outstanding order, writ, injunction, judgment, stipulation or decree of a Governmental Authority restricting its use or adversely affecting or reflecting the Company’s or its Subsidiaries’ rights thereto. Neither the Company nor any of its Subsidiaries has taken any action or, to the Knowledge of the Company, failed to take any action that could reasonably be expected to result in the abandonment, cancellation, forfeiture, relinquishment, invalidation or unenforceability of any of the Company Registered IP (including the failure to pay any filing, examination, issuance, post registration and maintenance fees, annuities and the like and the failure to disclose any known material prior art in connection with the prosecution of patent applications), other than (i) any failure to act in connection with the expiration of the statutory term for any Company Registered IP or (ii) with respect to any Company Registered IP that the Company has permitted to expire or allowed to be cancelled or abandoned in its reasonable business judgment.
(b) No Company Registered IP is now involved in any opposition, cancellation, interference, reissue, reexamination or similar proceeding and, to the Knowledge of the Company, no such proceeding is or has been threatened in writing with respect to any of such Company Registered IP.
(c) The Company or its Subsidiaries exclusively own, free and clear of any and all Encumbrances (other than Permitted Encumbrances), all Company Owned IP and holds valid rights to use all other Intellectual Property necessary for or used in the Company’s or its Subsidiaries’ businesses as presently conducted (together with the Company Owned IP, the “Company Business IP”). Neither the Company nor any of its Subsidiaries has received any notice or claim challenging the Company’s or its Subsidiaries’ ownership of any of the Company Owned IP or its Subsidiaries, nor to the Knowledge of the Company is there a reasonable basis for any claim that the Company or the applicable Subsidiary does not so own any of such Company Owned IP.
(d) The Company and its Subsidiaries have taken commercially reasonable steps to protect its and their rights in its Intellectual Property and at all times has maintained the secrecy, confidentiality and value of all material Trade Secrets included in the Company Owned IP or any of its Subsidiaries and material Proprietary Information in the possession or under the control of the Company and its Subsidiaries, including entering into appropriate confidentiality agreements with all Persons with access to such Trade Secrets or Proprietary Information. None of such Trade Secrets or Proprietary Information has been disclosed or authorized to be disclosed to any Person other than to employees or agents of the Company or its Subsidiaries for use in connection with the business of the Company or its Subsidiaries or pursuant to a confidentiality or non-disclosure agreement that reasonably protects the interest of the Company and its Subsidiaries in and to such Trade Secrets and Proprietary Information. To the Knowledge of the Company, no unauthorized disclosure of any such Trade Secrets or Proprietary Information has occurred.
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(e) No Company Owned IP developed by or for the Company and its Subsidiaries was conceived, invented, reduced to practice, authored or otherwise created by employees of the Company or its Subsidiaries acting within the scope of their employment or independent contractors of the Company or its Subsidiaries.
(f) The development, manufacture, sale, distribution or other commercial exploitation of products, and the provision of any services, by or on behalf of the Company or any of its Subsidiaries, and all of the other activities or operations of the Company or any of its Subsidiaries, have not in the past six years infringed upon, misappropriated, violated, diluted or constituted the unauthorized use of, any Intellectual Property of any third party, and neither the Company nor any of its Subsidiaries has received any written notice or claim in the past six years asserting or suggesting that any such infringement, misappropriation, violation, dilution or unauthorized use is or may be occurring or has or may have occurred, nor to the Knowledge of the Company, is there a reasonable basis therefor. No Intellectual Property owned by or licensed to the Company or any of its Subsidiaries, to the Knowledge of the Company with respect to Intellectual Property licensed to the Company or any of its Subsidiaries, is subject to any outstanding order, judgment, decree, stipulation or agreement restricting the use or licensing thereof by the Company or any of its Subsidiaries. Except as set forth on Section 4.14(f) of the Disclosure Schedules, to the Knowledge of the Company, in the past six years, no third party has or is misappropriating, infringing, diluting or violating any Intellectual Property owned by or exclusively licensed to the Company or any of its Subsidiaries in a material manner.
(g) Except as set forth on Section 4.14(g) of the Disclosure Schedules, neither the Company nor any of its Subsidiaries has transferred ownership of, or granted any exclusive license with respect to, any material Company Owned IP. Upon the consummation of the Closing, Buyer shall succeed to all of the material Company Owned IP necessary for the conduct of the Company’s and its Subsidiaries’ businesses as they are currently conducted and all of such rights shall be exercisable by Buyer to the same extent as by the Company and its Subsidiaries prior to the Closing. No loss of any of the material Company Owned IP used by the Company or any of its Subsidiaries in the conduct of its business is threatened, pending or reasonably foreseeable.
(h) The execution, delivery and performance by the Company and each Seller of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby, will not (i) alter or impair the ownership or right of the Company or its Subsidiaries to use any of the Company Business IP or any component thereof or (ii) give rise to any right of any third party to terminate or re-price or otherwise modify any of the Company’s or its Subsidiaries’ rights or obligations under any agreement under which any right or license of or under Intellectual Property is granted to or by the Company or its Subsidiaries. The Company Business IP constitutes all Intellectual Property necessary to operate the businesses of the Company and its Subsidiaries as currently conducted.
(i) The Company or one of its Subsidiaries, as the case may be, owns or has rights to access and use all computer hardware, servers, networks, platforms, firmware, applications, databases, peripherals, data communication lines and other information technology equipment and related systems, including any outsourced systems and processes, in each case, used in connection with the business of the Company and its Subsidiaries or otherwise necessary for the conduct of the business of the Company and its Subsidiaries (collectively, the “IT
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Systems”). The Company and its Subsidiaries have taken commercially reasonable steps in material accordance with industry standards to secure the IT Systems from unauthorized access or use by any Person, and to ensure the continued and materially uninterrupted and error-free operation of the IT Systems. The IT Systems are adequate in all material respects for their intended use and for the operation of the business of the Company and its Subsidiaries as currently operated by the Company and its Subsidiaries, and are in good working condition (normal wear and tear excepted), and, to the Knowledge of the Company, are free of all viruses, worms, Trojan horses and other known contaminants and do not contain any material bugs, errors or problems of a nature that would materially disrupt their operation or have a material adverse impact on the operation of the IT Systems. There has not been any material malfunction or vulnerability with respect to any of the IT Systems since the Lookback Date, that has not been remedied or replaced in all material respects. No material capital expenditures are necessary with respect to the use of the IT Systems other than capital expenditures in the ordinary course of business that are consistent with the past practice of the Company and its Subsidiaries since the Lookback Date.
Section 4.15 Taxes.
(a) All income and other material Tax Returns required to be filed by or with respect to each of the Company and its Subsidiaries have been timely filed on or before the due date thereof (taking into account any applicable extension of time within which to file), and such Tax Returns are true, correct and complete in all material respects. There are no Taxes of Sellers, the Company or any of its Subsidiaries, or any of the respective Affiliates of any of the foregoing for which Buyer (or any of its Affiliates) would reasonably be expected to be liable as a result of the transactions contemplated by this Agreement.
(b) All material Taxes of the Company and its Subsidiaries that are required by Law to be paid by the Company and its Subsidiaries (whether or not shown on any Tax Return) have been paid. Each of the Company and its Subsidiaries has adequately reserved in the Financial Statements in accordance with the Applicable Accounting Principles all Taxes (whether or not shown on any Tax Return) that have accrued but are not yet due or payable as of the dates thereof. Neither the Company nor any of its Subsidiaries has incurred any liability for Taxes outside the ordinary course of business or otherwise inconsistent with past custom and practice. Each of the Company and its Subsidiaries has complied in all material respects with applicable Tax Laws.
(c) Neither the Company nor any of its Subsidiaries is currently the subject of an audit, examination or other Actions relating to Taxes of the Company or any of its Subsidiaries by any Taxing Authority. Neither the Company nor any of its Subsidiaries has received any written notices from any Taxing Authority that such an audit, examination or other Actions is currently pending or being threatened. No deficiency for any material amount of Taxes has been asserted or assessed by any Taxing Authority in writing against the Company or any of its Subsidiaries, except for deficiencies which have been satisfied by payment, settled, withdrawn or otherwise resolved. To the Knowledge of the Company, there are no matters under discussion with any Taxing Authority with respect to the liability of the Company or any of its Subsidiaries with respect to Taxes that would reasonably be expected to result in an additional liability for Taxes with respect to the Company or any of its Subsidiaries.
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(d) All material Taxes that the Company or any of its Subsidiaries is (or was) required by Law to withhold or collect in connection with amounts paid or owing to any independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid or remitted over to the proper Taxing Authorities to the extent due and payable. Each of the Company and its Subsidiaries properly has requested, received, and retained material necessary exemption certificates and other documentation supporting any claimed exemption or waiver of Taxes on sales or other transaction as to which such Person otherwise would have been obligated to collect or withhold Taxes. Each of the Company and its Subsidiaries has complied with all material information reporting and record keeping requirements under all applicable Tax Laws, including retention and maintenance of required records with respect thereto.
(e) There are no material Encumbrances (other than Permitted Encumbrances) on any of the assets of or the equity interests in the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries is a party to or bound by any Tax sharing, indemnification or allocation agreement or other similar Contract, other than (i) any Tax sharing, indemnification or allocation agreement or Contract the only parties to which are any the Company or any of its Subsidiaries and (ii) any customary Contracts entered into in the ordinary course of business and the principal purpose of which is not the allocation or sharing of Taxes.
(g) Neither the Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 or Section 361 of the Code.
(h) Neither the Company nor any of its Subsidiaries has received a written material claim to pay Taxes or file Tax Returns from a Taxing Authority of a certain type in a jurisdiction where the Company or such Subsidiary has not filed Tax Returns of such type, which such claim has not been resolved.
(i) Neither the Company nor any of its Subsidiaries has participated in any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(1) (or any corresponding or comparable U.S. state or local or non-U.S. Tax Law) that has not been disclosed in the relevant Tax Return of the Company or such Subsidiary.
(j) Each of the Company and its Subsidiaries is in material compliance with all applicable transfer pricing Laws and regulations, including the execution and maintenance of contemporaneous documentation substantiating the transfer pricing practices and methodology of such Person, and the prices charged, paid, or incurred between (or among) the Company and its Subsidiaries and their respective Affiliates, or any combination thereof, for any property or services (or for the use of money or any other property) are arm’s-length prices for purposes of all applicable transfer pricing Laws (and no other material consideration has been charged, paid, or incurred for any such property or services other than those documented prices that were charged, paid, and incurred for such property and services).
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(k) Each of the Company and its Subsidiaries has previously delivered or made available to the Buyer (and, if any such Person is a member of an “affiliated group” within the meaning of Section 1504(a)(1) of the Code, the common parent of such affiliated group has previously delivered or made available to the Buyer) complete and accurate copies of all material U.S. federal, state, local, and non-U.S. Tax Returns of such Person (or, if applicable, the common parent of its affiliated group) for all taxable years since the formation of the Company and its Subsidiaries, as applicable, including, if available, for the most recent taxable year, and complete and accurate copies of all audit or examination reports and statements of deficiencies assessed against or agreed to by the Company or any of its Subsidiaries (or, if applicable, the common parent of its affiliated group) for all taxable years remaining open under the applicable statutes of limitations.
(l) Neither the Company nor any of its Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to the assessment or collection of any Tax which such waiver or extension is currently in effect, nor has any request been made in writing for any such extension or waiver other than extensions automatically available by statute that do not result in the imposition of any penalty or addition to Tax. There are no powers of attorney in effect with respect to Taxes of the Company or any of its Subsidiaries.
(m) Neither the Company nor any of its Subsidiaries has sought or received any benefit in respect of any Pandemic Response Law.
(n) Neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting or use of an improper method of accounting for a taxable period ending on or prior to the Closing Date (whether pursuant to Code Section 481, Code Section 263A, or otherwise); (ii) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of state, local or non-U.S. Tax Law) executed on or prior to the Closing Date; (iii) installment sale or open transaction disposition made prior to the Closing; (iv) intercompany transactions or any excess loss account described in Treasury Regulations under Code Section 1502 (or any corresponding or similar provision of applicable state, local, or non-U.S. Law); (v) prepaid amount received on or prior to the Closing Date; or (vi) deferred revenue accrued prior to the Closing Date; (vii) deferred gains arising prior to the Closing Date; or (viii) any election under Section 965(h) of the Code. Each of the Company and its Subsidiaries is, and has been at all times on and subsequent to its formation, an “accrual method” taxpayer under the Code. The Company’s taxable year is the calendar year.
(o) Neither the Company nor any of its Subsidiaries will have any liability for the Taxes of any other Person (other than the Company or its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by contract, operation of Law or otherwise.
(p) Neither the Company nor any of its Subsidiaries ever has been included in (or is includible in) any “affiliated group” within the meaning of Section 1504(a)(1) of the Code (other than an “affiliated group” within the meaning of Section 1504(a)(1) of the Code of which Genco Power Solutions Holding LLC (“Holdings”)) is the common parent within the meaning of
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Section 1504(a)(1) of the Code. Holdings is the common parent of such an affiliated group consisting solely of Holdings and Focus Genco (the “Affiliated Group”). Since September 11, 2025, Focus Genco has been a member of the Affiliated Group of which Holdings is the common parent. Since its formation, Genco Power Services LLC has been classified as an entity disregarded as separate from Holdings for U.S. federal income tax purposes.
(q) The tax classification for U.S. federal income tax purposes of each of the Company and its Subsidiaries at all times on and after the date of formation of each such entity and as of the Closing Date is set forth on Section 4.15(q) of the Disclosure Schedules (and, if the applicable Person has had more than one tax classification for U.S. federal income tax purposes on or subsequent to its formation, then each tax classification of such Person is set forth on Section 4.15(q) of the Disclosure Schedules, along with the dates indicating the period in which such Person was classified as such an entity for U.S. federal income tax purposes).
(r) Except as set forth on Section 4.15(r) of the Disclosure Schedules, each of the Company’s Subsidiaries (x) is a “United States person” (as defined in Section 7701(a)(30) of the Code), (y) is a resident for Tax purposes in the “United States” (as defined in Section 7701(a)(9) of the Code), and (z) is not nor has ever had any branch, agency, permanent establishment, or other taxable presence other than in the “United States” (as defined in Section 7701(a)(9) of the Code). The Company (x) is not, and never has been, a “United States Person” (as defined in Section 7701(a)(30) of the Code) and is not treated as a U.S. corporation for U.S. federal income tax purposes pursuant to Section 7874 of the Code, Section 897(i) of the Code, Section 953(d) of the Code, or otherwise, (y) is a resident for Tax purposes in the Cayman Islands, and (z) has not engaged and does not engage in a trade or business within the United States within the meaning of Section 864(b) of the Code and does not have, and has not had, any income that is effectively connected with the conduct of a trade or business within the United States within the meaning of Section 864(c) of the Code or any similar provision of an applicable bilateral tax treaty.
(s) Each of the Company and its Subsidiaries has complied with any rules relevant to any applicable Tax holiday or similar or analogous Tax incentives, and neither such compliance nor such holiday or other incentive shall be negatively affected by the transactions contemplated by this Agreement.
(t) Neither the Company nor any of its Subsidiaries has forgiven any debt (other than the write-off of certain accounts receivable or work in process in the ordinary course of business) or received forgiveness of any debt, in any taxable period.
(u) Neither the Company nor any of its Subsidiaries is, or ever has been, a partnership described in Treasury Regulations Section 1.1445-11T(d)(1).
(v) Except as set forth on Section 4.15(v) of the Disclosure Schedules, the Company is not a “controlled foreign corporation” within the meaning of Code Section 957, a “passive foreign investment company” within the meaning of Code Section 1297 a “United States real property holding corporation” within the meaning of Code Section 897, or a “surrogate foreign corporation” within the meaning of Code Section 7874(a)(2)(B). Except as set forth on Section 4.15(v) of the Disclosure Schedules, none of the Company’s Subsidiaries is, nor has any of the Company’s Subsidiaries ever been, a “passive foreign investment company” within the meaning of Code Section 1297 or a “United States real property holding corporation” within the meaning of Code Section 897.
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(w) Each of the Company and its Subsidiaries has complied with applicable information reporting and record maintenance requirements in Code Sections 6038, 6038A, and 6038B and the Treasury Regulations thereunder (and any similar provision of state, local, or non-U.S. Law).
All references to the Company or its Subsidiaries in this Section 4.15 shall include references to any Person which merged with and into or liquidated into the Company or such Subsidiary in a transaction in which tax attributes were carried over pursuant to Section 381 of the Code.
Section 4.16 Environmental Matters.
(a) Each of the Company and its Subsidiaries is, and since the Lookback Date has been, in compliance in all material respects with all applicable Environmental Laws.
(b) Except in material compliance with applicable Environmental Law, no Hazardous Substances are or have been present, and there is and has been no Release or threatened Release of Hazardous Substances nor any Remediation or corrective action of any kind relating thereto, on, in, at or under any properties (including any buildings, structures, improvements, soils or subsurface strata, surface water bodies or drainage ways, and ground waters thereof) (i) currently or formerly owned, leased or operated by or for the Company or any of its Subsidiaries or any predecessor company (which shall not include any customer facilities at which the Company may operate); (ii) to which the Company or any of its Subsidiaries has sent for disposal any Hazardous Substances; or (iii) to the Knowledge of the Company, with respect to which the Company or any of its Subsidiaries may be liable. No underground improvement, including any treatment or storage tank or water, gas or oil well, is or has been located on any property described in the foregoing sentence. There has been no Release of, threatened Release of or contamination by Hazardous Substances for which the Company or any of its Subsidiaries is actually, contingently, potentially or allegedly liable under any Environmental Law.
(c) There is no pending or, to the Knowledge of the Company, threatened investigation by any Governmental Authority, nor any pending or, to the Knowledge of the Company, threatened Action with respect to the Company or any of its Subsidiaries relating to Hazardous Substances or otherwise under any Environmental Law.
(d) Since the Lookback Date, no Environmental Permits have been necessary for the operation of the Company’s and its Subsidiaries’ normal business operations.
(e) The Company and its Subsidiaries have made available to the Buyer all Environmental Permits, audits and other material reports pertaining to compliance with Environmental Law and all “Phase I,” “Phase II” or other environmental reports in their possession, or to which they have reasonable access, addressing every location owned, operated or leased by the Company or any of its Subsidiaries.
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(f) For purposes of this Agreement:
(i) “Environmental Laws” means: any Laws of any Governmental Authority relating to (A) Releases or threatened Releases of Hazardous Substances or materials containing Hazardous Substances; (B) the manufacture, handling, transport, use, treatment, storage or disposal of Hazardous Substances or materials containing Hazardous Substances; or (C) pollution or protection of the environment, health, safety or natural resources.
(ii) “Environmental Permits” means all Permits required under any Environmental Law.
(iii) “Hazardous Substances” means: (A) those substances defined in or regulated under the Hazardous Materials Transportation Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the Clean Water Act, the Safe Drinking Water Act, the Atomic Energy Act, the Toxic Substances Control Act, the Federal Insecticide, Fungicide, and Rodenticide Act and the Clean Air Act, and their state counterparts, as each may be amended from time to time, and all regulations thereunder; (B) petroleum and petroleum products, including crude oil and any fractions thereof; (C) natural gas, synthetic gas, and any mixtures thereof; (D) lead, polychlorinated biphenyls, perfluoroalkyl and polyfluoroalkyl substances, asbestos and radon; and (E) any pollutant, contaminant, substance, material, waste, or words of similar import regulated by any Governmental Authority pursuant to any Environmental Law.
(iv) “Release” has the meaning set forth in Section 101(22) of CERCLA (42 U.S.C. § 9601(22)), but not subject to the exceptions in Subsections (A) and (D) of 42 U.S.C. § 9601(22).
(v) “Remediation” means (A) any remedial action, remedy, response or removal action as those terms are defined in 42 U.S.C. § 9601, (B) any corrective action as that term has been construed pursuant to 42 U.S.C. § 6924, and (C) any measures or actions required or undertaken to investigate, assess, evaluate, monitor, or otherwise delineate the presence or Release of any Hazardous Substance in or into the environment or to prevent, clean up or minimize a Release or threatened release of Hazardous Substances.
Section 4.17 Material Contracts.
(a) Except as set forth in Section 4.17(a) of the Disclosure Schedules, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract of the following nature (such Contracts, which are required to be set forth in Section 4.17(a) of the Disclosure Schedules, being “Material Contracts”):
(i) any Contract for the purchase of materials, supplies or services involving payment of more than $100,000;
(ii) any Contract relating to or evidencing Indebtedness (including solely for purposes of this Section 4.17(a)(ii), notwithstanding the definition of Indebtedness, any letters of credit, whether drawn or undrawn and specifying the letter of credit number, the obligors, the issuing bank, the face amount, the expiry date, the credit or lease facility such letter of credit is required under, whether such letter of credit has been drawn, and if so, the drawn amount) or, other than Permitted Encumbrances, mortgaging, pledging or otherwise placing an Encumbrance on any of the assets or properties of the Company and or its Subsidiaries;
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(iii) any Contract pursuant to which the Company or any of its Subsidiaries has provided funds to or made any loan, capital contribution or other investment in any Person, including take-or-pay contracts or keepwell agreements;
(iv) any Contract with any Governmental Authority;
(v) other than the organizational documents of the Company or its Subsidiaries, any Contract with any Related Party of the Company or any of its Subsidiaries;
(vi) any Contract that limits, or purports to limit, the ability of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area or during any period of time, or that restricts the right of the Company and its Subsidiaries to sell to or purchase from any Person or to hire any Person, or that grants the other party or any third person “most favored nation” status or any type of special discount rights;
(vii) any Contract pursuant to which the Company or any of its Subsidiaries is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than the Company or any of its Subsidiaries), (A) any real property or (B) any tangible personal property and, in the case of clause (B), that involves an aggregate future or potential liability or receivable, as the case may be, in excess of $100,000;
(viii) any Contract for the sale or purchase of any real property, or for the sale or purchase of any tangible personal property in an amount in excess of $100,000;
(ix) any Contract providing for indemnification to or from any Person with respect to liabilities relating to any current or former business of the Company, any of its Subsidiaries or any predecessor Person, excluding indemnification provided by the Company or any of its Subsidiaries in the ordinary course of business;
(x) any (A) Inbound License Agreement other than (1) a nonexclusive license of commercially available “off-the-shelf” software, for an aggregate license fee of no more than $50,000 annually, (2) a license for Open Source Materials, and (3) Contracts including licenses for software preinstalled as a standard part of hardware or equipment purchased or used by the Company or its Subsidiaries; (B) exclusive Outbound License Agreement; or (C) Contract that limits the Company’s or any of its Subsidiaries’ rights to use, or enforce or register Intellectual Property owned, used, or held for use by the Company or any of its Subsidiaries, including covenants not to sue and co-existence agreements;
(xi) any Contract relating to any joint venture, partnership or other similar agreement or arrangement;
(xii) any Contract providing for any merger, acquisition or disposition transaction involving any Person or any business unit or division thereof, or any other assets or liabilities that are material to the Company or its Subsidiaries;
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(xiii) any Contract with any labor union;
(xiv) any Contract relating to settlement or other final disposition of any Action since the Lookback Date;
(xv) any hedging, futures, options or other derivative Contract;
(xvi) any Contract that contains rights or obligations for the purchase of any debt or equity security or other ownership interest of any Person, or for the issuance of any debt or equity security or other ownership interest, or the conversion of any obligation, instrument or security into debt or equity securities or other ownership interests of, the Company or any of its Subsidiaries, in each case, that remain unsatisfied as of immediately prior to the execution of this Agreement;
(xvii) any Contract that results in any Person holding a power of attorney from the Company or any of its Subsidiaries that relates to the Company, any of its Subsidiaries or its or their respective businesses other than in the ordinary course of business;
(xviii) any Contract to which the Company or any of its Subsidiaries is a party, or to which any Seller or any of their Affiliates is a party and that relates primarily to the Equipment.
(b) Each Material Contract is a legal, valid, binding and enforceable agreement and is in full force and effect. None of the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party is in breach or violation of, or (with or without notice or lapse of time or both) default under, any Material Contract in any material respect, nor has the Company or any of its Subsidiaries received any written claim or, to the Knowledge of the Company, oral notice of any such breach, violation or default. The Company has delivered or made available to the Buyer true and complete copies of all Material Contracts, including any amendments thereto.
Section 4.18 Affiliate Interests and Transactions.
(a) Except as set forth on Section 4.18 of the Disclosure Schedules, no Related Party of the Sellers or the Company or any of its Subsidiaries: (i) owns or has owned, directly or indirectly, any equity or other financial or voting interest in any material competitor, supplier, licensor, lessor, distributor, independent contractor or customer of the Company or any of its Subsidiaries or its or their business; (ii) owns or has owned since the Lookback Date, directly or indirectly, or has or has had any interest in any property (real or personal, tangible or intangible) that the Company or any of its Subsidiaries uses or has used in or pertaining to the business of the Company or any of its Subsidiaries; or (iii) has or has had any business dealings or a financial interest in any transaction with the Company or any of its Subsidiaries or involving any assets or property of the Company or any of its Subsidiaries, other than business dealings or transactions conducted in the ordinary course of business at prevailing market prices and on prevailing market terms. Ownership of securities that are registered under the Securities Exchange Act of 5% or less of any class of such securities shall not be deemed to be a financial interest for purposes of this Section 4.18.
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(b) Except for this Agreement, Contracts to provide the services in accordance with the Services Agreement (including as amended by the Services Agreement Amendment) or as set forth on Section 4.18 of the Disclosure Schedules, there are no Contracts by and between the Company or any of its Subsidiaries, on the one hand, and any Related Party of the Company or any of its Subsidiaries, on the other hand, pursuant to which such Related Party provides or receives any information, assets, properties, support or other services to or from the Company or any of its Subsidiaries (including Contracts relating to billing, financial, tax, accounting, data processing, human resources, administration, legal services, information technology and other corporate overhead matters).
(c) There are no outstanding notes payable to, accounts receivables from or advances by the Company or any of its Subsidiaries to, and neither the Company nor any of its Subsidiaries is otherwise a debtor or creditor of, or has any liability or other obligation of any nature to, any Related Party of the Sellers or the Company or any of its Subsidiaries. Except as set forth on Section 4.18 of the Disclosure Schedules, since the date of the Balance Sheet, neither the Company nor any of its Subsidiaries has incurred any obligation or liability to, or entered into or agreed to enter into any transaction with or for the benefit of, any Related Party of the Sellers or the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement and the Ancillary Agreements.
Section 4.19 Insurance. Section 4.19 of the Disclosure Schedules sets forth a true and complete list of all casualty, directors and officers liability, general liability, workers compensation, product liability and all other types of insurance policies maintained by the Company or any of its Subsidiaries, and any claims made under each such policy since January 1, 2024. All such policies are in full force and effect and no application therefor included a material misstatement or omission. All premiums with respect thereto have been paid to the extent due. None of the Company or any of its Subsidiaries has received written notice of, nor to the Knowledge of the Company is there threatened, any cancellation, termination, reduction of coverage or material premium increases with respect to any such policy. The activities and operations of the Company and its Subsidiaries have been conducted in a manner so as to conform in all material respects to all applicable provisions of such insurance policies.
Section 4.20 Data Privacy and Cybersecurity.
(a) The Company and its Subsidiaries, and their respective officers, directors, employees, contractors, agents and any processors acting on their behalf, are and have since the Lookback Date been in compliance in all material respects with all applicable Data Protection Requirements. Neither the Company nor any of its Subsidiaries has received any written notice, or is currently or, to the Knowledge of the Company, has ever been subject to any audit or investigation, in each case regarding the Processing of Personal Information or alleging a material violation of any Data Protection Requirements.
(b) The Company and its Subsidiaries have established, implemented, maintain and enforce commercially reasonable technical, physical, administrative and organizational measures designed to ensure the confidentiality, integrity, availability and security of all Company data and all Personal Information that is Processed by or on behalf of the Company or any of its Subsidiaries and to prevent any unlawful, accidental or unauthorized access thereto or use, disclosure, acquisition, exfiltration, theft, loss, alteration, corruption, destruction, or unavailability thereof. Since the Lookback Date, the Company and its Subsidiaries have routinely monitored and assessed security risks on a regular basis and remediated all material threats, deficiencies and vulnerabilities identified in each such assessment.
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(c) Since the Lookback Date, to the Knowledge of the Company, neither the Company nor any of its Subsidiaries have experienced any incident, including any breach of security, in which any Personal Information that is or was Processed by or on behalf of the Company or any of its Subsidiaries was or may have been accessed, used, disclosed, acquired, exfiltrated, stolen, lost, altered, corrupted, destroyed or rendered unavailable unlawfully, accidentally or without authorization (a “Security Incident”). Neither the Company nor any of its Subsidiaries has notified or been required by any Data Protection Requirement to notify any Governmental Authority of a Security Incident.
(d) The performance of this Agreement will not violate, or require any notices to (or consents from) any Person under, any Data Protection Requirements.
(e) Neither the Company nor any of its Subsidiaries have used or are currently using, including through the Company’s or any of its Subsidiaries’ use of products or services licensed from or otherwise provided by a third-party vendor, artificial intelligence or automated decision-making technology (i) as a component of any of the Company’s or any of its Subsidiary’s products or services, (ii) for high-risk purposes, including significant or consequential decisions concerning a Person or profiling of a Person, or (iii) to develop any Intellectual Property in a manner that would materially affect the Company’s or its Subsidiaries’ ownership or rights therein.
Section 4.21 Customers and Suppliers.
(a) Section 4.21(a) of the Disclosure Schedules sets forth a true and complete list of (i) all customers of the Company and its Subsidiaries with a billing for each such customer of $250,000 or more during the 12 months ended December 31, 2025, and (ii) the amount for which each such customer was invoiced during such period. Neither the Company nor any of its Subsidiaries has received any written notice or, to the Knowledge of the Company, oral notice that any of such customers (A) has ceased or substantially reduced, or will cease or substantially reduce, use of products or services of the Company or its Subsidiaries or (B) has sought, or is seeking, to materially reduce the price it will pay for the services of the Company or its Subsidiaries. None of such customers has otherwise threatened in writing to take any action described in the preceding sentence as a result of the consummation of the transactions contemplated by this Agreement.
(b) Section 4.21(b) of the Disclosure Schedules sets forth a true and complete list of (i) all suppliers of the Company and its Subsidiaries from which the Company or a Subsidiary thereof ordered supplies or services with an aggregate purchase price for each such supplier of $250,000 or more during for the 12 months ended December 31, 2025, and (ii) the amount for which each such supplier invoiced the Company or such Subsidiary during such period. Neither the Company nor any of its Subsidiaries has received any written notice or, to the Knowledge of the Company, oral notice that there has been any material adverse change in the price of such supplies or services provided by any such supplier, or that any such supplier will not
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sell supplies or services to the Company and its Subsidiaries at any time after the date hereof on terms and conditions substantially the same as those used in its current sales to the Company and its Subsidiaries, subject to general and customary price increases. No such supplier has otherwise threatened in writing to take any action described in the preceding sentence as a result of the consummation of the transactions contemplated by this Agreement.
Section 4.22 Accounts Receivable. All accounts receivable reflected on the balance sheets of the Company and its Subsidiaries represent bona fide and valid obligations arising from sales actually made or services actually performed in the ordinary course of business. There is no contest, claim or right of set-off, other than returns in the ordinary course of business, under any Contract with any obligor of any accounts receivable related to the amount or validity of such accounts receivable.
Section 4.23 Bank Accounts; Powers of Attorney. Section 4.23 of the Disclosure Schedules sets forth a true and complete list of (a) all bank accounts or safe deposit boxes under the control or for the benefit of the Company or any of its Subsidiaries, (b) the names of all persons authorized to draw on or have access to such accounts and safe deposit boxes and (c) all outstanding powers of attorney or similar authorizations granted by the Company or any of its Subsidiaries, copies of which have been furnished to the Buyer.
Section 4.24 Relations With Governments, etc.; Anti-Corruption Matters; Export Control Matters; Sanctions Matters.
(a) None of the Company, any of its Subsidiaries, or any of their Affiliates, nor to the Knowledge of the Company, any other agent or person acting on behalf of the Company or any of its Subsidiaries or their respective Affiliates has taken any action, directly or indirectly, that would result in a violation by any of the foregoing of: the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”); or any similar anticorruption Laws applicable to the Company or any of its Subsidiaries or their respective Affiliates.
(b) The Company and its Subsidiaries have been for the past five years in material compliance with Export Control Laws. No approval from any Governmental Authority for the transfer of any export licenses to the Buyer is required, or if required, no such approval is expected to result in a material delay to Closing or impose a material cost on the Buyer.
(c) The Company and its Subsidiaries are, and have been since April 24, 2019, in material compliance with Sanctions.
(d) None of the Sellers, the Company or its Subsidiaries, including any of their respective directors, executives, officers, or, to the Knowledge of the Company, any representatives, agents and employees, acting for or on behalf of the Sellers, the Company, or any of their Subsidiaries, currently or since April 24, 2019: (i) is or has been a Sanctioned Person or has acted, directly or indirectly, on behalf of a Sanctioned Person; or (ii) has owned or has been owned, 50% or more, individually or in the aggregate, directly or indirectly, by, or, as relevant and determined under applicable Sanctions, controlled by any Sanctioned Person.
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(e) The Sellers, the Company and its Subsidiaries have not received and, after due inquiry and care, are not aware of any current or threatened investigation, inquiry, audit, complaint, lawsuit, voluntary or involuntary disclosure, warning letter, penalty notice, or other regulatory action, whether internal, by a Government Authority, or a private party, alleging any violation of Export Control Laws (in the past five years) or Sanctions (since April 24, 2019), nor have the Sellers, the Company or any of its Subsidiaries been convicted of violating any Export Control Laws (in the past five years) or Sanctions (since April 24, 2019).
Section 4.25 Outbound Investment. Neither the Company nor any of its Subsidiaries is a “covered foreign person” as that term is used in the Outbound Investment Rules. Neither the Company nor any of its Subsidiaries currently engages, or has any present intention to engage in the future, directly or indirectly, in any “prohibited transaction” (as defined in the Outbound Investment Rules) or any other activity that would cause the Buyer to be in violation of the Outbound Investment Rules or cause the Buyer to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
Section 4.26 No Critical Technologies, Infrastructure or Data U.S. Business. Neither the Company nor any of its Subsidiaries engages in (a) the design, fabrication, development, testing, production or manufacture of one or more “critical technologies” within the meaning of Section 721 of the U.S. Defense Production Act of 1950, as amended, including all implementing regulations thereof (the “DPA”); (b) the ownership, operation, maintenance, supply, or servicing of “covered investment critical infrastructure” within the meaning of the DPA (where such activities are covered by column 2 of Appendix A to 31 C.F.R. Part 800); or (c) the maintenance or collection, directly or indirectly, of “sensitive personal data” of U.S. citizens within the meaning of the DPA. Neither the Company nor any of its Subsidiaries has any current intention of engaging in such activities in the future.
Section 4.27 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Sellers, the Company or any of its Subsidiaries.
Section 4.28 Energy Regulatory. Neither the Company nor any of its Subsidiaries is, or owns any entity that is, regulated as a public utility, public service corporation, public service company, electric utility, power generation company, power marketer, retail gas or electric supplier, natural gas company, natural gas utility, natural gas distribution company, oil pipeline, or similar regulated utility entity under United States federal or state Law or regulation.
Section 4.29 No Other Operations. Except as set forth on Section 4.29(i) of the Disclosure Schedules and except for its ownership of Holdings, the Company does not (a) own, and has never owned, any assets other than Cash, (b) have, and has never had, any employees, (c) have, and has never had, any operating liabilities or obligations, or (d) conduct, and has never conducted, any business or operations. Except as set forth on Section 4.29(ii) of the Disclosure Schedules, and except for its ownership of each of Focus Genco and Genco Power Services LLC, Holdings does not (i) own, and has never owned, any assets other than Cash, (ii) have, and has never had, any employees, (iii) have, and has never had, any operating liabilities or obligations, or (iv) conduct, and has never conducted, any business or operations.
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Section 4.30 No Other Representations or Warranties. Except for the representations and warranties of the Sellers, the Company and its Subsidiaries set forth in this Agreement, the Ancillary Agreements and any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby, none of the Sellers, the Company or any of its Subsidiaries or any other Person, whether or not acting on behalf of any of the foregoing, makes any other representation or warranty, express or implied, either written or oral, regarding the Sellers, the Company or its Subsidiaries, the Shares or otherwise in connection with this Agreement and the transactions contemplated hereby.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES
The Buyer, OpCo and, as applicable, Parent, hereby represent and warrant to each Seller as of the date hereof as follows:
Section 5.1 Organization. Each of the Buyer and OpCo is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Texas and the Laws of the State of Delaware, respectively, and has full power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted. Parent is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware and has full power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted.
Section 5.2 Authority. Each of the Buyer Parties has full limited liability company or corporate (as applicable) power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by each of the Buyer Parties of this Agreement and each of the Ancillary Agreements to which it is a party and the consummation by each of the Buyer Parties of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary limited liability company or corporate (as applicable) action. This Agreement and each of the Ancillary Agreements to which each of the Buyer Parties is a party have been duly executed and delivered by such Buyer Party, as applicable, and, assuming due execution and delivery by each of the other parties hereto and thereto, each of this Agreement and such Ancillary Agreements constitutes the legal, valid and binding obligations of such Buyer Party, as applicable, enforceable against such Buyer Party in accordance with their respective terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity).
Section 5.3 No Conflict; Required Filings and Consents.
(a) The execution, delivery and performance by each of the Buyer Parties of this Agreement and the Ancillary Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby, do not and will not:
(i) conflict with or violate the organizational documents of such Buyer Party;
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(ii) conflict with or violate any Law applicable to such Buyer Party; or
(iii) result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would become a default) under or require any consent of any Person pursuant to, give to others any right of termination, amendment, modification, acceleration or cancellation of, allow the imposition of any fees or penalties under, require the offering or making of any payment or redemption under, give rise to any increased, guaranteed, accelerated or additional rights or entitlements of any Person under, or otherwise adversely affect any rights of the Buyer Parties under any Contract to which such Buyer Party is bound;
except, in the case of the foregoing Section 5.3(a)(ii) and Section 5.3(a)(iii), for any such conflicts, violations, breaches, defaults or other occurrences that would not, individually or in the aggregate, materially impair the ability of the Buyer Parties to consummate, or prevent or materially delay, any of the transactions contemplated by this Agreement or the Ancillary Agreements or would reasonably be expected to do so.
(b) None of the Buyer Parties are required to file, seek or obtain any notice, authorization, approval, order, permit or consent of or with any Governmental Authority in connection with the execution, delivery and performance by the Buyer Parties of this Agreement and each of the Ancillary Agreements to which it is a party or the consummation of the transactions contemplated hereby or thereby, except for (i) any filings required to be made under the HSR Act, (ii) any filings required under the U.S. federal securities Laws or as contemplated by ANNEX A, (iii) any filings or listing applications with a national securities exchange with respect to the issuance of the Parent Common Shares hereunder, and (iv) such other notices, authorizations, approvals, orders, permits or consents the failure of which to be obtained or made, individually or in the aggregate, would not and would not reasonably be expected to materially impair, or prevent or materially delay, the ability of each of the Buyer Parties to consummate the transactions contemplated by this Agreement or any Ancillary Agreement.
Section 5.4 Financing. The Buyer and OpCo have sufficient funds to permit the Buyer Parties to consummate the transactions contemplated by this Agreement and the Ancillary Agreements.
Section 5.5 Litigation. There is no Action pending or, to the Knowledge of the Buyer, threatened against any of the Buyer Parties or any of their respective Affiliates seeking to prevent, hinder, modify, delay or challenge the transactions contemplated by this Agreement or the Ancillary Agreements.
Section 5.6 Capitalization.
(a) As of March 11, 2026, the authorized capital of Parent consisted solely of (i) 600,000,000 shares of Class A common stock, par value $0.01 per share, of which 53,955,663 shares were issued and outstanding, (ii) 180,000,000 shares of Class B common stock, par value $0.00 per share, of which 15,350,605 shares were issued and outstanding, and (iii) 50,000,000 shares of preferred stock, par value $0.01 per share, of which no shares were issued and outstanding.
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(b) All of the issued and outstanding Parent Common Shares are duly authorized and validly issued in accordance with the organizational documents of Parent, are fully paid and non-assessable, and were not issued in violation of any preemptive rights, rights of first refusal or other similar rights of any Person.
(c) There are no preemptive rights or, except as disclosed in the Parent SEC Filings (as defined below), other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, subscription agreements, commitments or rights of any kind that obligate Parent to issue or sell any equity interests of Parent or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any equity interests in Parent, and, except as disclosed in the Parent SEC Filings, no securities or obligations evidencing such rights are authorized, issued or outstanding.
(d) Except as disclosed in the Parent SEC Filings, Parent does not have any outstanding bonds, debentures, notes, or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the holders of equity interests in Parent on any matter pursuant to such outstanding bonds, debentures, notes or other obligations.
Section 5.7 Listing Exchange. The Parent Common Shares are listed on the New York Stock Exchange (the “NYSE”), and Parent has not received any notice of delisting from the NYSE. No judgment, order, ruling, decree, injunction, or award of any securities commission or similar securities regulatory authority or any other Governmental Authority, or of the NYSE, preventing or suspending trading in any securities of Parent has been issued, and no proceedings for such purpose are, to Parent’s knowledge, pending, contemplated or threatened. Parent has taken no action that is designed to terminate the registration of the Parent Common Shares under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Section 5.8 Issuance of the Parent Common Shares. Parent represents that the Aggregate Stock Closing Consideration Shares and the Indemnity Escrow Shares delivered hereunder are duly authorized, validly issued, fully paid and nonassessable, and free and clear of all Encumbrances (other than those arising under securities Laws or created by the Sellers), and have not been issued in violation of any preemptive right, purchase option, call option, right of first refusal or similar options or rights or, assuming the accuracy of the representations in Section 3.5, in violation of the Securities Act and any applicable state securities Laws. Parent has a sufficient number of Parent Common Shares authorized for issuing the Aggregate Stock Closing Consideration Shares and the Indemnity Escrow Shares.
Section 5.9 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Buyer Parties.
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Section 5.10 Investment Intent. The Buyer is acquiring the Shares for its own account for investment purposes only and not with a view to any public distribution thereof or with any intention of selling, distributing or otherwise disposing of the Shares in a manner that would violate the registration requirements of the Securities Act.
Section 5.11 Reports. Parent’s Annual Reports on Form 10-K for the years ended December 31, 2023, 2024 and 2025, and all other reports, registration statements, definitive proxy statements or information statements filed by it subsequent to December 31, 2024, under the Securities Act, or under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the form filed or as thereafter amended prior to the date hereof (collectively, the “Parent SEC Filings”) with the United States Securities and Exchange Commission (the “SEC”), as of the date filed or amended prior to the date hereof, as the case may be, (i) complied in all material respects as to form with the applicable requirements under the Securities Act or the Exchange Act, as the case may be, and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Except as set forth on Section 5.11 of the Disclosure Schedules, and other than with respect to this Agreement and the transactions contemplated hereby, as of immediately prior to the execution of this Agreement, no Buyer Party was in possession of any material non-public information of or regarding Parent and its Subsidiaries taken as a whole. The audited or unaudited financial statements included in the Parent SEC Filings, including any notes thereto or schedules, (x) were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or the omission of notes to the extent permitted by Regulation S-K or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC) and subject, in the case of interim financial statements, to normal and recurring year-end adjustments, and (y) fairly present in all material respects the financial position, results of operations and cash flows of Parent as at the respective dates thereof and for the respective periods indicated therein.
Section 5.12 Internal Controls.
(a) Parent has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act, such disclosure controls and procedures are reasonably designed to ensure that material information required to be disclosed by Parent in the reports it files or submits to the SEC under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the rules and forms of the SEC, and that such material information is accumulated and communicated to Parent’s management as appropriate to allow timely decisions regarding required disclosure.
(b) Since the Lookback Date, (i) except as disclosed in any Parent SEC Filing, there have not been any changes in Parent’s internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that are reasonably likely to materially affect Parent’s internal control over financial reporting; (ii) Parent has disclosed, based on the most recent evaluation of its chief executive officer and its chief financial officer prior to the date of this Agreement, to Parent’s outside auditors and the audit committee of Parent’s board of directors any “significant deficiency” or “material weakness” in the design or operation of Parent’s internal control over financial reporting which are reasonably likely to adversely affect in any material
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respect Parent’s ability to record, process, summarize, and report financial information; and (iii) none of Parent, Parent’s outside auditors or the audit committee of the board of directors of Parent has received any oral or written notification of any fraud, whether or not material, that involves management or other employees of Parent who have a significant role in Parent’s internal control over financial reporting.
Section 5.13 No Other Representations or Warranties. Except for the representations and warranties of each of the Buyer Parties set forth in this Agreement, the Ancillary Agreements and any schedule, certificate or other document delivered pursuant hereto or in connection with the transactions contemplated hereby, none of the Buyer Parties nor any other Person, whether or not acting on behalf of any of the foregoing, makes any other representation or warranty, express or implied, either written or oral, regarding any of the Buyer Parties, the Parent Common Shares or otherwise in connection with this Agreement and the transactions contemplated hereby.
ARTICLE VI
COVENANTS
Section 6.1 Waiver and Release. Each of the Sellers and the Sellers Representative (on behalf of each of them and each such Person’s successors and assigns) (collectively, the “Seller Releasors”) hereby irrevocably and unconditionally releases and forever discharges the Company and its Subsidiaries (collectively, the “Seller Releasees”) from any and all Actions, claims, charges, complaints, causes of action, damages, Losses, costs, expenses and liabilities of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, fixed or contingent, and whether at Law or in equity, that such Seller Releasor has, had, or may have, in any capacity, against any Seller Releasee, whether directly or derivatively through another Person, arising prior to the transactions contemplated by this Agreement, or on account of, arising out of or related to any act, omission, transaction, matter, cause or event occurring prior to the Closing related to the Company or its Subsidiaries; provided, that nothing contained in this Section 6.1 shall be deemed to release, waive or limit (i) any rights pursuant to this Agreement or any Ancillary Agreement, or (ii) any rights of the Seller Releasors in the case of Fraud; provided, further, that each Seller Releasor agrees not to make, and to waive any claim for, indemnification, advancement of expenses, exculpation or contribution from any Seller Releasee under the certificate of formation or bylaws or equivalent governing documents of the Company or any of its Subsidiaries, or any indemnification agreement, arrangement or understanding with any Seller Releasee, arising out of or related to any dispute between any Seller Releasee, on the one hand, and a Seller Releasor (acting in any capacity), on the other hand, with respect to any matter arising out of or related to this Agreement or any Ancillary Agreement, other than as may be specifically provided for in Article VIII herein.
Section 6.2 Non-Solicitation.
(a) From the date of this Agreement until 11:59 p.m. Eastern time on March 16, 2029, each of the Sellers (except for Gabriel Arruda) shall not, and shall cause their respective controlled Affiliates not to, directly or indirectly through any Person or contractual arrangement:
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(i) solicit, recruit or hire any person who is a Company Group Employee (as hereinafter defined); provided, that the foregoing shall not prohibit (i) a general solicitation to the public of general advertising or similar methods of solicitation by search firms not specifically directed at Company Group Employees or (ii) any Seller or any of their respective Affiliates from soliciting, recruiting or hiring any Company Group Employee who has ceased to be employed or retained by the Company, the Buyer, OpCo or any of their respective Affiliates for at least three months. For purposes of this Section 6.2, “Company Group Employees” means, collectively, Persons who are employees or individual independent contractors of the Company or its Subsidiaries as of the date hereof. Notwithstanding anything to the contrary, “Company Group Employees” shall not include any employees or individual independent contractors of the Company or any of its Subsidiaries whose employment or service, as applicable, is terminated by Parent or its Subsidiaries (including the Company and its Subsidiaries) within five days after the Closing Date; or
(ii) approach or seek any business of gas fired power generation assets in the continental United States of America from any Customer (as hereinafter defined), refer any such business from any Customer to any Person or be paid commissions based on any such business sales received from any Customer by any Person. For purposes of this Section 6.2(a)(ii), the term “Customer” means any Person identified on Schedule 6.2(a)(ii); provided, that the foregoing shall not prohibit any referral of any such business by any Seller or the Company to the Buyer or any of its Affiliates.
(b) Each of the Sellers (except for Gabriel Arruda) acknowledges that the covenants of the Sellers set forth in this Section 6.2 are an essential element of this Agreement and that any breach by any Seller of any provision of this Section 6.2 will result in irreparable injury to the Buyer Parties. Each of the Sellers acknowledges that in the event of such a breach, in addition to all other remedies available at Law, the Buyer Parties shall be entitled to equitable relief, including injunctive relief, and an equitable accounting of all earnings, profits or other benefits arising therefrom, as well as such other damages as may be appropriate. Each of the Sellers has independently consulted with its respective counsel and after such consultation agrees that the covenants set forth in this Section 6.2 are reasonable and proper to protect the legitimate interest of the Buyer Parties.
(c) If a court of competent jurisdiction determines that the character, duration or geographical scope of the provisions of this Section 6.2 are unreasonable, it is the intention and the agreement of the parties that these provisions shall be construed by the court in such a manner as to impose only those restrictions on each Seller’s conduct that are reasonable in light of the circumstances and as are necessary to assure to the Buyer Parties the benefits of this Agreement. If, in any judicial proceeding, a court shall refuse to enforce all of the separate covenants of this Section 6.2 because taken together they are more extensive than necessary to assure to the Buyer Parties the intended benefits of this Agreement, it is expressly understood and agreed by the parties that the provisions hereof that, if eliminated, would permit the remaining separate provisions to be enforced in such proceeding, shall be deemed eliminated, for the purposes of such proceeding, from this Agreement.
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Section 6.3 Participation Right.
(a) From the date of this Agreement until 11:59 p.m. Eastern time on March 16, 2029, if either Eduardo Dal Sasso Mendonca Cruz or Alan Zelazo or any of their respective controlled Affiliates (each, an “Investor”) directly or indirectly proposes to acquire 10% or more of the outstanding voting securities (“Competing Business Stock”) of any Person (“Competing Business Entity”) that is in the business of gas fired power generation in the continental United States of America (the “Competing Business”) and for which the Competing Business generated 20% or more of such Competing Business Entity’s consolidated annual revenues in the last completed fiscal year of such Competing Business Entity (such transaction, the “Competing Business Transaction”), except where prohibited by Law, the Buyer Parties shall have the right (the “Participation Right”), but not the obligation, to purchase from the Competing Business Entity up to 50% of the aggregate Competing Business Stock proposed to be acquired by the Investors on the same terms and conditions as the applicable Investor(s) is to provide or receive, as applicable, in connection with the Investor(s) proposed acquisition of the Competing Business Stock (the “Competing Business Transaction Terms”), pursuant to the procedures set forth in this Section 6.3.
(b) In the event any Investor proposes to enter into a Competing Business Transaction, no less than 30 days prior to the proposed closing of the Competing Business Transaction, the applicable Investor(s) shall deliver a notice of the proposed Competing Business Transaction to the Buyer Parties that sets forth the material terms and conditions of the Competing Business Transaction, including (i) the name of the Competing Business Entity, (ii) the securities to be acquired, (iii) the purchase price and the other material terms and conditions of the Competing Business Transaction, and (iv) if then-available (and if not then-available, promptly after it becomes available), a copy of the draft agreement to be executed in connection therewith (the “Competing Business Transaction Notice”). The Buyer Parties may exercise the Participation Right in the Competing Business Transaction by delivering to the applicable Investor(s), within 30 days after receipt of the Competing Business Transaction Notice (the “Participation Offer Period”), a notice (the “Participation Notice”) stating that the Buyer Parties intend to exercise the Participation Right and the quantity of Competing Business Stock to be purchased by the Buyer Parties, which exercise must be in accordance with the Competing Business Transaction Terms. If the Buyer Parties do not deliver a Participation Notice to the applicable Investor(s) prior to the expiration of the Participation Offer Period, the Buyer Parties shall be deemed to have waived the Participation Rights hereunder.
(c) If the applicable Investor(s) receive a Participation Notice from the Buyer Parties within the Participation Offer Period, then the applicable Investor(s) and the Buyer Parties shall cooperate in good faith to execute and deliver within 30 days after the end of the Participation Offer Period all agreements, instruments and other documents reasonably necessary to effect the sale to the Buyer Parties, on the same terms and conditions described in the Competing Business Transaction Terms and for the same consideration per share or interest, the quantity of Competing Business Stock set forth in the Participation Notice.
(d) Nothing in this Agreement shall restrict any Investor or its controlled Affiliates at any time from, and the Participation Rights in this Section 6.3 shall not apply to the Investors or their controlled Affiliates:
(i) owning 10% or less of the outstanding voting securities of any Competing Business Entity; provided, that (A) such Investor or Affiliate does not have the right to appoint any member of the board of directors or similar governing body of such Competing Business Entity, and (B) such Investor or Affiliate does not control, and is not a member of a group that controls, such Competing Business Entity; or
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(ii) acquiring and, after such acquisition, owning any interest in a Person that is engaged in a Competing Business and operating such Competing Business if such Competing Business generated less than 20% of such Person’s consolidated annual revenues in the last completed fiscal year of such Person (provided, that no Sensitive Business Information of the Buyer Parties or any of their respective Affiliates (excluding, if applicable, any Seller) shall be disclosed by a Seller or their respective controlled Affiliates to employees that are engaged on a day-to-day basis with such Competing Business Entity).
(e) The Investors shall not consummate any Competing Business Transaction unless they have complied in all material respects with this Section 6.3 and the Participation Offer Period has expired or been waived (and, if the Buyer Parties timely deliver a Participation Notice, the Buyer Parties has been afforded the opportunity to participate on the Competing Business Transaction Terms). If the Competing Business Transaction Terms change in any material respect, the Investors shall promptly deliver an updated Competing Business Transaction Notice and the Participation Offer Period shall recommence from the Buyer Parties’ receipt thereof. If the Competing Business Transaction is not consummated within 180 days after delivery of the applicable Competing Business Transaction Notice, the Investors may not consummate such Competing Business Transaction unless they first re-deliver a Competing Business Transaction Notice and again comply with this Section 6.3.
(f) Except together with an Investor and in accordance with the terms of the Participation Right, each of the Buyer Parties shall not, and shall cause its respective Affiliates not to, directly or indirectly, (i) enter into or otherwise participate in any Competing Business Transaction for which an Investor has either (x) sent to a Buyer Party a Competing Business Transaction Notice, or (y) provided a Buyer Party or one of their respective controlled Affiliates with information, introductions or materials regarding a Competing Business Transaction in reasonable anticipation of such Competing Business Transaction becoming the subject of a Competing Business Transaction Notice (collectively, a “Covered Opportunity”), or (ii) solicit, encourage or accept any proposal from any third party to engage in any such Covered Opportunity; provided, that for purposes of this Section 6.3, a “Covered Opportunity” shall not include any Competing Business Transaction with respect to which a Buyer Party (x) was already participating in discussions with respect to, or otherwise evaluating, at the time of delivery of such Competing Business Transaction Notice or provision of such information, introduction or materials and (y) certifies in good faith to such Investor promptly, and in no event more than ten Business Days, after receipt of an applicable Competing Business Transaction Notice, that such Buyer Party has supporting documentation thereof.
(g) The Buyer Parties’ receipt of any Competing Business Transaction Notice shall be deemed to be the Buyer Parties’ and their respective Affiliates’ agreement to keep (i) the existence and terms of any Competing Business Transaction, and (ii) any confidential information or documentation regarding the applicable Competing Business Entity and the Competing Business, in each case, confidential, including in accordance with the terms of any non-disclosure agreement between or among the Investors or their respective Affiliates, on one hand, and the Competing Business Entity or its respective Affiliates, on the other hand.
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Section 6.4 Confidentiality. For a period of five years following the date hereof, the Sellers shall not, and each Seller shall cause its Affiliates and the respective Representatives of such Seller not to, use for its or their own benefit or divulge or convey to any third party, any Confidential Information; provided, however, that each Seller or its Affiliates may furnish such portion (and only such portion) of the Confidential Information as such Seller or such Affiliate reasonably determines it is legally obligated to disclose if: (i) it receives a request to disclose under the terms of a subpoena, civil investigative demand or order issued by a Governmental Authority or is otherwise required by Law to disclose all or any part of the Confidential Information; (ii) to the extent not inconsistent with such request and permitted by applicable Law, it notifies OpCo of the existence, terms and circumstances surrounding such request and consults with OpCo on the advisability of taking steps available under applicable Law to resist or narrow such request; and (iii) it exercises its commercially reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information. Notwithstanding the foregoing, (i) Sellers and their Affiliates may disclose and use Confidential Information as necessary to enforce this Agreement or any Ancillary Agreement or perform any obligation under this Agreement or any Ancillary Agreement, and (ii) Sellers and their Affiliates may furnish such portion (and only such portion) of such information as may be necessary in connection with the filing of Tax Returns or claims for refund or in defending, prosecuting of otherwise conducting any examination, audit or administrative or judicial proceeding regarding any Tax Return or Taxes. For purposes of this Agreement, “Confidential Information” consists of all information and data relating to the Company or its Subsidiaries or the transactions contemplated hereby (other than data or information that is or becomes available to the public other than as a result of a breach of this Section 6.4 or is later lawfully acquired by such Seller, its Affiliates or its or their respective Representatives from sources other than those related to such Seller’s prior ownership of the Shares).
Section 6.5 Further Assurances.
(a) The Sellers and the Buyer Parties agree that, in the event that any consent, approval or authorization necessary or desirable to preserve for the Company or any of its Subsidiaries any right or benefit under any lease, license, commitment or other Contract to which the Company or any of its Subsidiaries is a party is not obtained prior to the Closing, the Sellers shall, subsequent to the Closing, cooperate with the Buyer Parties, the Company and its Subsidiaries in attempting to obtain such consent, approval or authorization as promptly thereafter as practicable.
(b) From time to time after the Closing, and for no further consideration, each of the parties shall, as reasonably requested by the other party, execute, acknowledge and deliver such assignments, transfers, consents, assumptions and other documents and instruments and take such other actions as may be necessary or desirable to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements.
Section 6.6 Public Announcements. No party shall, and each shall cause its respective Affiliates and its and their Representatives not to, issue any press release or make any other public statement with respect to this Agreement or the transactions contemplated hereby without first consulting with, in the case of a press release or public statement by any Seller, OpCo or, in the case of a press release or public statement by a Buyer Party, the Sellers Representative, giving
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such other party a reasonable opportunity to review and comment upon such proposed disclosure, and obtaining the prior written consent of such other party to such proposed disclosure; provided, that the Buyer Parties may issue or make such release or statement (a) as may be required by the rules or regulations of any securities exchange on which securities of OpCo or Parent are listed, in which case the Buyer Parties shall, for a period of 12 months from the date hereof and to the extent reasonably practicable, (i) allow the Sellers Representative reasonable time to comment on such release or announcement in advance of such issuance and (ii) consider in good faith any reasonable comments of the Sellers Representative, (b) to the extent the contents of such release or announcement have previously been released publicly by the parties or are consistent in all material respects with materials or disclosures that have previously been released publicly, in each case, without violation of this Section 6.6 or (c) to its employees or in the ordinary course of business to its customers and suppliers.
Section 6.7 Lockup.
(a) The Sellers hereby irrevocably agree, without the prior written consent of Parent, not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to result or would be reasonably likely to result in the disposition by any Person at any time in the future of) any Parent Common Shares issued as Aggregate Stock Closing Consideration Shares or Indemnity Escrow Shares, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of any Parent Common Shares issued as Aggregate Stock Closing Consideration Shares or Indemnity Escrow Shares, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of any Parent Common Shares, other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing; provided, that, notwithstanding the foregoing, prior to the expiration of the Lockup Period, each Seller shall be permitted a one-time transfer of the Parent Common Shares issued to such Seller as Aggregate Stock Closing Consideration Shares to an entity that is wholly-owned by such Seller (each, a “Transferee Entity”) so long as such Transferee Entity, prior to such transfer, executes a joinder to this Section 6.7 in a form reasonably acceptable to Parent. Any purported transfer to such Transferee Entity in violation of this Section 6.7 shall be null and void, ab initio, and Parent shall not recognize any such transfer or accord to any purported Transferee Entity any rights as a holder of Parent Common Shares delivered to the applicable Seller as Aggregate Stock Closing Consideration Shares pursuant to the terms and conditions of this Agreement.
(b) The restrictions set forth in Section 6.7(a) shall terminate on the date that is 90 days following the date hereof (the “Lockup Period”).
(c) Notwithstanding anything to the contrary, and for the avoidance of doubt, this Section 6.7 shall not prevent, prohibit or otherwise limit any Seller from making bona fide pledges of the Aggregate Stock Closing Consideration Shares to any financial institution (including during the Lockup Period) or any Person from executing, foreclosing or otherwise exercising any rights that such Person may have under, with respect to or as a result of any such pledge, in each case in compliance with the Securities Act and the rules promulgated thereunder.
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Section 6.8 Books and Records.
(a) Each Seller acknowledges and agrees that from and after the Closing, the Buyer will be entitled to the originals of all books and records of the Company and its Subsidiaries. At the Closing, the Sellers will promptly deliver to the Buyer such originals or copies of all books and records of the Company and its Subsidiaries or otherwise confirm such books and records are located at the offices of the Company and its Subsidiaries, as requested by the Buyer. Subject to Section 6.4, each Seller and Sellers Representative shall have the right to retain, at their sole cost and expense, copies of (i) all books and records and all Tax Returns and other information and documents (A) relating to Tax matters of the Company and its Subsidiaries applicable to such Seller, in each case, relating to periods ending on or prior to the Closing Date, (B) as required by any legal or regulatory authority, including any applicable Law or regulatory request or (C) as may be necessary for such Seller, the Sellers Representative or their respective Affiliates to perform their respective obligations pursuant to this Agreement and the other Ancillary Agreement, in each case subject to compliance in all material respects with applicable Laws, (ii) all data room materials, and (iii) all books and records prepared in connection with the transactions contemplated herein, including any books and records that may be relevant in connection with the defense of disputes arising under this Agreement or financial information and all other accounting books and records prepared or used in connection with the preparation of financial statements of the Company and its Subsidiaries.
(b) The Buyer agrees that it shall, and shall cause the Company and its Subsidiaries to, use reasonable best efforts to preserve and keep the books and records of the Company and its Subsidiaries in existence as of the Closing for a period of six years after the date hereof or such longer time as may be required by applicable Law. The Buyer shall cooperate in all reasonable respects with the Sellers and will make available to the Sellers, during normal business hours, the books and records of the Company and its Subsidiaries which relate to any period that includes or precedes the date hereof and which are necessary in connection with the preparation or filing of any Tax Return, audit or similar investigation or any dispute, arbitration or litigation, or in order to enable any Seller to comply with its obligations under this Agreement or the Ancillary Agreements. For a period of seven years from the date hereof, the Buyer shall not, and shall cause the Company and its Subsidiaries not to, dispose of or destroy any of the books and records of the Company and its Subsidiaries in existence as of the Closing without first offering to turn over possession thereof to the Sellers Representative by written notice to the Sellers Representative at least ten days prior to the proposed date of such disposition or destruction.
Section 6.9 Indemnification and Insurance.
(a) OpCo agrees that all rights to indemnification for acts or omissions occurring prior to the date hereof now existing in favor of the current or former directors, officers, employees and other fiduciaries of the Company (collectively, the “Directors”) as provided as of the date hereof in the Company certificate of formation or bylaws or equivalent governance documents or in any contractual indemnification agreements or other indemnification arrangements between the Company and any Director shall survive the transactions contemplated by this Agreement and the Ancillary Agreements and shall continue in full force and effect in accordance with their terms for a period of not less than six years from the date hereof. OpCo shall not, and shall cause its Affiliates (including the Company and its Subsidiaries after the Closing) not to, repeal such Contracts or arrangements in any manner that would adversely affect the rights of the Directors thereunder.
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(b) In the event OpCo, the Company or its Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of OpCo, the Company or its Subsidiaries, as the case may be, shall assume all of the obligations set forth in this Section 6.9 as a condition to the consummation of any such transaction.
(c) The obligations of OpCo under this Section 6.9 shall not be terminated or modified in such a manner as to adversely affect any Director to whom this Section 6.9 applies without the consent of such Director so adversely affected.
Section 6.10 Additional Listing Application. As promptly as practicable after the date of this Agreement, but in any event after taking into consideration the rules and regulations of the NYSE with respect to the timing of the Supplemental Listing Application (as hereinafter defined) and the supporting documents required to accompany the Supplemental Listing Application, Parent shall submit to the NYSE a supplemental listing application relating to the Aggregate Stock Closing Consideration Shares and the Indemnity Escrow Shares (the “Supplemental Listing Application”) and shall use its commercially reasonable efforts to secure the NYSE’s approval of the Supplemental Listing Application, subject to official notice of issuance.
Section 6.11 Registration Rights. Parent hereby agrees to comply with the agreements, covenants and obligations set forth on ANNEX A with respect to each Seller; provided, that for purposes of this Section 6.11 and ANNEX A, “Seller” shall be deemed to include each Transferee Entity that holds Parent Common Shares issued to a Seller as Aggregate Stock Closing Consideration Shares.
Section 6.12 Company Marks.
(a) Notwithstanding anything to the contrary, including in this Agreement, the Buyer shall not acquire or otherwise be entitled to, and none of the Company or its Subsidiaries shall retain, any right, title, interest, license or any other right (other than the license granted in this Section 6.12) to use any Marks owned or used by the Sellers, any of their Affiliates, the Company or its Subsidiaries, including the name “Genco” or any variation thereof, or constituting an abbreviation, derivation or extension thereof (the “Company Marks”). The Buyer Parties shall, as promptly as practicable, but in any event within 180 days after the Closing Date (the “Removal Deadline”), eliminate and remove (or cause to be eliminated and removed) any and all of the Company Marks from the Company’s and its Subsidiaries’ assets and properties (excluding any Contracts or similar documentation). Prior to the Removal Deadline, the Buyer Parties shall amend the organizational documents for each of the Company and its Subsidiaries and make the necessary filings with the applicable Secretaries of State or similar bodies to change the legal name of such entities to a name that does not include “Genco” or other similar identifiers or any abbreviation, derivation or extension thereof. From and after the Removal Deadline, the Buyer Parties shall not, and each Buyer Party shall cause its respective Subsidiaries (including the Company and its Subsidiaries) not to, use any of the Company Marks in connection with Parent’s and its Subsidiaries (including the Company’s and its Subsidiaries’) businesses, their assets or properties or otherwise.
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(b) Each of the Buyer Parties hereby acknowledges that all right, title and interest in and to the Company Marks shall remain exclusively owned by the Sellers. The Sellers hereby grant to the Buyer Parties a non-exclusive, royalty-free, limited license to, from the date hereof to the Removal Deadline, use, solely in connection with the operation of the Company’s or its Subsidiaries’ businesses as operated immediately prior to the Closing, all of the existing stocks of signs, letterheads, invoice stock, advertisements and promotional materials, inventory and other documents and materials (“Existing Stock”) of the Sellers containing the Company Marks. After the Removal Deadline, the Buyer Parties shall cause the Company and its Subsidiaries to remove or obliterate all Company Marks from such Existing Stock or cease using such Existing Stock. Notwithstanding anything to the contrary herein, from and after the Closing, each of the Buyer Parties has the perpetual right to use (i) plain-text, non-stylized versions of the Company Marks in a neutral, non-trademark manner to describe the history of the parties’ relationship or otherwise as required by Law and (ii) the Company Marks in historical legal and business documents and internal materials not visible to the public.
Section 6.13 Company 401(k) Plans. The Company shall (or shall cause its applicable Subsidiary to) (i) adopt written resolutions and take other necessary and appropriate actions to terminate the participation of the Company and all of the Company’s Subsidiaries in the G&A Partners, Inc. Multiple Employer 401(k) Plan and each other Plan that is a defined contribution plan qualified under Section 401(a) of the Code (collectively, the “Company 401(k) Plans”), including through any necessary spin-off and termination of any component of such Company 401(k) Plans attributable to the Company and its Subsidiaries, in compliance with the terms of the respective Company 401(k) Plan and the requirements of applicable Law, effective as of no later than one (1) Business Day prior to the Closing, and (ii) fully vest all benefits of participants under each of the Company 401(k) Plans, effective as of no later than one (1) Business Day prior to the Closing. As soon as practicable following Closing, OpCo shall permit each Company Service Provider with a balance in such Company 401(k) Plan to roll over their account balances in such Company 401(k) Plan (including loan promissory notes) to a tax-qualified defined contribution plan sponsored by OpCo or an Affiliate of OpCo. This Section 6.13 shall be binding upon and inure solely to the benefit of each of the Parties, and nothing in this Section 6.13, express or implied, shall confer upon any other Person (including any Company Service Provider) any rights or remedies of any nature whatsoever under or by reason of this Section 6.13, including any third-party beneficiary rights. Nothing contained in this Section 6.13, express or implied, shall be construed to establish, amend or modify any Plan or similar employee benefit plan of OpCo. The Parties acknowledge and agree that the terms set forth in this Section 6.13 shall not create any right in any employee of the Company or its Subsidiaries or any other Person to any continued employment with the Company, its Subsidiaries, Opco, the Buyer or any of their respective Affiliates, or compensation or benefits of any nature or kind whatsoever.
Section 6.14 Code Section 280G. Prior to the Closing, to the extent that any “disqualified individual” (within the meaning of Section 280G of the Code and the Treasury Regulations thereunder (collectively, “Section 280G”)) has the right to receive or retain any payments or benefits in connection with the transactions contemplated hereby that reasonably would be expected to constitute “parachute payments” (within the meaning of Section 280G), the Company covenants and agrees that it has (i) solicited and used best efforts to obtain, from each such Person whom the Company reasonably determines to be a “disqualified individual” (which determination shall be subject to review and approval by OpCo, each a “Disqualified Individual”), a waiver (each,
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a “Section 280G Waiver”) of all or a portion of such Disqualified Individual’s rights or potential rights to receive or retain any such payments and/or benefits (the “Section 280G Waived Payments”), such that none of the remaining payments and/or benefits applicable to such Disqualified Individual shall be deemed to be “excess parachute payments” pursuant to Section 280G, and (ii) thereafter but in no event later than one (1) Business Day prior to the Closing Date, with respect to each Disqualified Individual who executed a Section 280G Waiver, submitted for approval the right of any such Disqualified Individual to receive or retain the Section 280G Waived Payments to a vote of the shareholders of the Company or its Affiliates, as applicable, entitled to vote on such matters, in a manner intended to satisfy the requirements under Section 280G(b)(5) of the Code and the Treasury Regulations thereunder (including Q&A-7 of Section 1.280G-1 of the Treasury Regulations). Prior to the Closing Date, the Company has delivered to OpCo evidence reasonably satisfactory to OpCo that a vote of the shareholders of the Company or its Affiliates, as applicable, was solicited in accordance with the foregoing provisions of this Section 6.14 and that either (A) the requisite number of votes of the shareholders was obtained to approve the right of such Disqualified Individuals to receive or retain the Section 280G Waived Payments (the “Section 280G Approval”), or (B) the Section 280G Approval was not obtained. The Company agrees that, in the event that the Section 280G Approval is not obtained, no Section 280G Waived Payments shall be made.
Section 6.15 Excluded Equipment. Within 45 days after the Closing Date, OpCo shall deliver a written notice to the Sellers Representative informing the Sellers Representative of its determination regarding whether to acquire the Excluded Equipment (such notice, the “Excluded Equipment Purchase Notice”); provided, that if OpCo does not timely deliver an Excluded Equipment Purchase Notice, then for purposes of this Agreement OpCo will be deemed to have elected to acquire the Excluded Equipment. If Opco elects in the Equipment Purchase Notice to acquire the Excluded Equipment, (i) OpCo or one of its Subsidiaries shall enter into the related procurement Contract for the Excluded Equipment (the “Procurement Contract”); and (ii) for all purposes of this Agreement, (w) the Enterprise Value shall be increased by $37,960,000, (x) Indebtedness shall be increased to the extent provided under clause (h) of the definition thereof with respect to the Excluded Equipment; provided, that the increase in Indebtedness attributable to the Procurement Contract (including pursuant to this clause (x)) may not exceed $32,960,000, (y) the Net Adjustment Amount shall be adjusted to give effect to the foregoing clauses (w) and (x), and (z) such Excluded Equipment shall be deemed disclosed on Section 1.1-E of the Disclosure Schedules as of Closing for all purposes hereof. If OpCo elects in the Equipment Purchase Notice not to acquire the Excluded Equipment, at the written election of Sellers Representative, OpCo shall, and shall cause its Affiliates (including the Company and its Subsidiaries) to, (A) use commercially reasonable efforts (at Sellers’ cost and expense, but not to be incurred without the prior consent of the Sellers Representative) to assign, convey and deliver, in consultation and cooperation with the Sellers Representative (or his applicable designee), all rights (for the account of the Sellers and not OpCo, the Company or any of their respective Subsidiaries) to seek and obtain the return of the deposit of funds made by the Company or its applicable Subsidiary in respect of the Procurement Contract, which assignment, conveyance and delivery, at the Sellers Representative’s election, may include taking assignment of the Procurement Contract, or (B) reasonably cooperate with the Sellers Representative (or his applicable designee), at Sellers’ cost and expense (but not to be incurred without the prior consent of the Sellers Representative), to seek and obtain the return of the deposit of funds made by the Company or its applicable Subsidiaries in respect of the Procurement Contract and, upon the return of any such funds to or
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on behalf of the Company or any of its Subsidiaries, OpCo shall, and shall cause its Affiliates to, pay to each Seller its Pro Rata Share of any such funds, less any reasonable and documented third-party costs and expenses incurred in accordance with this Section 6.15 by OpCo or any of its Affiliates in such cooperation efforts; for the avoidance of doubt, the maximum aggregate amount that may be payable to all of the Sellers under this clause (B) is the aggregate amount actually received by OpCo and its Affiliates in respect of the return of the deposit made in respect of the Procurement Contract, less such costs and expenses incurred in accordance with this Section 6.15.
Section 6.16 R&W Policy. Concurrently with the execution and delivery of this Agreement, OpCo is conditionally binding a representation and warranty insurance policy covering certain representations and warranties set forth in this Agreement (the “R&W Policy”). OpCo shall cause the R&W Policy to (a) name OpCo as the insured, (b) expressly provide that the insurer(s) issuing such policy shall waive or otherwise not pursue any subrogation rights against either Sellers or any of their Affiliates and/or any of their respective Representatives, except in the case of Fraud by a Seller (with the insurer(s) agreeing that the Fraud of any one Seller shall not be imputed to any other Seller), (c) provide that each Seller, its Affiliates and their respective Representatives are express third-party beneficiaries of such waiver of subrogation provision, and (d) provide that the subrogation provisions in the R&W Policy shall not be amended, modified, or otherwise changed without the prior written consent of the Sellers Representative. From and after the Closing, OpCo shall not (and shall cause its Affiliates to not) grant any right of subrogation or otherwise amend, modify, terminate, or waive any term or condition of the binder agreement for the R&W Policy or the R&W Policy, in each case, without the prior written consent of the Sellers’ Representative. The Sellers’ Representative (on behalf of the Sellers) shall pay or cause to be paid, all costs and expenses related to the R&W Policy, including the total premium, underwriting costs, brokerage commission, and other fees and expenses of such policy but excluding the cost and expenses of legal counsel and any diligence provider who provided services to or on behalf of OpCo or any of its Affiliates in connection with obtaining the R&W Policy.
ARTICLE VII
TAX MATTERS
Section 7.1 Cooperation. The Buyer Parties and the Sellers Representative shall cooperate fully, and shall cause their respective Affiliates to cooperate fully, as and to the extent reasonably requested by either one or more of the Buyer Parties or the Sellers Representative, in connection with the filing of Tax Returns with respect to a Pre-Closing Period and any audit, litigation or other proceeding (each a “Tax Proceeding”) with respect to such Tax Returns. Such cooperation shall include the retention and (upon a Buyer Party’s or the Sellers Representative’s request) the provision of records and information which are reasonably relevant to any such Tax Proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Any reasonable out-of-pocket costs or expenses associated with this Section 7.1 shall be borne by the party requesting such cooperation.
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Section 7.2 Transfer Taxes. In the event that any Transfer Taxes (but, for the avoidance of doubt, not any Taxes based on or measured by income) are payable in connection with this Agreement or the transactions contemplated hereby, the Sellers, severally and not jointly, in accordance with each such Seller’s Pro Rata Share, on the one hand, and the Buyer, on the other hand, shall each be liable for fifty percent of any and all Transfer Taxes. The Sellers Representative and the Buyer agree to cooperate in the execution and delivery of all instruments and certificates reasonably necessary to remit and/or minimize the amount of any Transfer Taxes. If any Seller is required by Law to pay any such Transfer Taxes, the Buyer shall promptly reimburse such Seller within ten days of receipt of written request from such Seller for fifty percent of such Transfer Taxes. If the Buyer is required by Law to pay any such Transfer Taxes, the Sellers, severally and not jointly, in accordance with each such Seller’s Pro Rata Share, shall promptly reimburse the Buyer within ten days of receipt of written request from the Buyer for fifty percent of such Transfer Taxes. The Buyer shall timely file any Tax Returns for Transfer Taxes as required by Law and shall notify the Sellers Representative when such filings have been made. The Sellers Representative and the Buyer shall cooperate and consult with each other prior to filing any Tax Returns for Transfer Taxes to ensure that all such Tax Returns are filed in a consistent manner.
Section 7.3 Straddle Period Proration. For purposes of this Agreement, in the case of any taxable period that includes but does not end on, the Closing Date (a “Straddle Period”), (i) any property Taxes for the portion of the Straddle Period ending on the date hereof shall be equal to the amount of such property Taxes for such entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in the portion of the Straddle Period ending on the date hereof and the denominator of which is the number of days in the Straddle Period; and (ii) all other Taxes for the portion of the Straddle Period ending on the date hereof shall be determined based on an actual closing of the books used to calculate such Taxes as if such Tax period ended as of the close of business on the date hereof. In the case of clause (ii), exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions computed as if the date hereof was the last day of the Straddle Period) shall be allocated between the portion of the Straddle Period ending on the date hereof and the portion of the Straddle Period thereafter in proportion to the number of days in each such portion.
Section 7.4 Intended Tax Treatment. The parties hereto intend for U.S. federal and applicable state and local income tax purposes that the purchase and sale of the Shares pursuant to Article II be treated as the purchase and sale of the equity interests of Sellers in the Company (the “Intended Tax Treatment”). The Parties hereto shall act for all tax purposes, including filing Tax Returns, consistently with the Intended Tax Treatment unless otherwise required by a “determination” within the meaning of Section 1313(a) of the Code.
Section 7.5 No Amended Tax Returns; Section 338(g) Election. Neither the Buyer Parties nor any of their respective Affiliates shall amend, refile, revoke or otherwise modify any Tax Return or Tax election of the Company or the Subsidiaries that would affect the amount of Unpaid Income Taxes without the prior written consent of the Seller Representative. The Sellers acknowledge that Parent will make an election pursuant to Section 338(g) of the Code with respect to the acquisition of the Shares.
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ARTICLE VIII
INDEMNIFICATION
Section 8.1 Survival.
(a) The representations and warranties of the Sellers, the Company and the Buyer Parties contained in this Agreement shall survive the Closing until the 12-month anniversary of the date hereof; provided, however, that (i) each of the representations and warranties of the Sellers and the Company set forth in Section 3.1 (Organization and Qualification), Section 3.2 (Authority), Section 3.3(a)(i) (No Conflicts; Required Filings and Consents), Section 3.4 (Shares), Section 4.1 (Organization and Qualification), Section 4.2 (Authority), Section 4.3(a)(i) (No Conflicts; Required Filings and Consents), Section 4.4 (Capitalization), Section 4.5 (Equity Interests) and Section 4.27 (Brokers) and (ii) each of the representations and warranties of the Buyer Parties set forth in Section 5.1 (Organization), Section 5.2 (Authority), Section 5.3(a)(i) (No Conflicts; Required Filings and Consents), Section 5.6 (Capitalization), Section 5.8 (Issuance of Parent Common Shares) and Section 5.9 (Brokers) shall survive for a period of six years following the Closing Date.
(b) The respective covenants and agreements of the Sellers, the Company and the Buyer Parties contained in this Agreement shall survive the Closing until the full satisfaction or full performance of such covenant and agreement.
(c) Neither the Sellers nor the Buyer Parties shall have any liability with respect to any representations, warranties, covenants or agreements unless valid notice of an actual or threatened claim, or of discovery of any facts or circumstances that the Sellers or the Buyer Parties, as the case may be, reasonably believes may result in a claim, hereunder is given in accordance with Section 8.4 to the other party prior to the expiration of the survival period, if any, for such representation, warranty, covenant or agreement, in which case such representation, warranty, covenant or agreement shall survive as to such claim until such claim has been finally resolved, without the requirement of commencing any Action in order to extend such survival period or preserve such claim.
(d) This Section 8.1 does not relate to the Ancillary Agreements, the provisions of each of which shall survive in accordance with their terms. The survival periods set forth in this Section 8.1 are in lieu of, and the parties expressly waive, any applicable statute of limitations, whether arising at Law or in equity.
(e) Notwithstanding anything to the contrary in the foregoing, nothing in this Section 8.1 will limit or otherwise restrict in any respect any claim for Fraud.
Section 8.2 Indemnification by the Sellers.
(a) Subject to the limitations set forth in this Article VIII, the Sellers, jointly and severally, shall save, defend, indemnify and hold harmless the Buyer Parties and their respective Affiliates (including the Company and its Subsidiaries) and the respective Representatives, successors and assigns of each of the foregoing (the “Buyer Indemnified Parties”) from and against any and all Losses asserted against, incurred, sustained or suffered by any of the foregoing as a result of, arising out of or relating to any breach of any representation or warranty made by the Company in Article IV.
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(b) Subject to the limitations set forth in this Article VIII, each Seller, solely with respect to any breach by such Seller, shall, severally with respect to itself only and not jointly and severally, save, defend, indemnify and hold harmless the Buyer Indemnified Parties from and against any and all Losses asserted against, incurred, sustained or suffered by any of the foregoing as a result of, arising out of or relating to:
(i) any breach of any representation or warranty made by such Seller in Article III; and
(ii) any breach of any covenant or agreement of such Seller contained in this Agreement.
Section 8.3 Indemnification by OpCo. OpCo shall save, defend, indemnify and hold harmless each Seller and its Affiliates, and the respective Representatives, successors and assigns of each of the foregoing (the “Seller Indemnified Parties”) from and against any and all Losses asserted against, incurred, sustained or suffered by any of the foregoing as a result of, arising out of or relating to:
(a) any breach of any representation or warranty made by the Buyer Parties in Article V; and
(b) any breach of any covenant or agreement by the Buyer Parties or the Company contained in this Agreement.
Section 8.4 Procedures.
(a) A party seeking indemnification (the “Indemnified Party”) in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Indemnified Party (a “Third Party Claim”) shall deliver notice thereof (a “Claim Notice”) to the Sellers (by means of delivery to the Sellers Representative) or OpCo, as applicable (the Sellers or OpCo in such case are referred to herein as the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party of notice of the Third Party Claim and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. Each Claim Notice shall set forth in reasonable detail the facts and circumstances of such Third Party Claim, the amount thereof and the basis for indemnification in respect thereof, including the specific Section or Sections hereof that the Indemnified Party claims to have been breached (in each case, taking into account the information then available to the Indemnified Party); provided, that the failure of a Claim Notice to include any of the foregoing information shall not impact the validity of such Claim Notice except to the extent such failure actually and materially prejudices the Indemnifying Party. Subject to survival limitations set forth in Section 8.1, the failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is actually and materially prejudiced by such failure.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of a Claim Notice from the Indemnified Party in respect of such Third Party Claim, to assume the defense of such Third Party Claim; provided, however, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to defend, at the expense of the
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Indemnifying Party, any such Third Party Claim and shall include notice of its intention to do so to the Indemnifying Party in the applicable Claim Notice, which Claim Notice shall also identify in reasonable detail which of the above circumstances exists with respect to the Third Party Claim. If the Indemnifying Party elects to assume the defense of any Third Party Claim, the Indemnified Party shall reasonably cooperate, and cause its Affiliates to cooperate, with the Indemnifying Party with respect thereto, including, upon reasonable request and at the expense of the Indemnifying Party, providing access to information, making documents available for inspection and copying and making employees available for interviews, depositions and trial.
(c) If the Indemnifying Party elects to assume the defense of a Third Party Claim, then:
(i) the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (A) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (B) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and the Indemnified Party may present such counsel with a conflict of interest; and
(ii) the Indemnified Party shall make available to the Indemnifying Party all pertinent books, records and other documents and materials in the Indemnified Party’s possession or under its or its Affiliates’ control as are reasonably required by the Indemnifying Party for the defense of such Third Party Claim, and shall execute such documents and use commercially reasonable efforts to take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such Third Party Claim, and shall otherwise cooperate as reasonably requested by Indemnifying Party in the defense of such Third Party Claim; provided, that notwithstanding anything herein to the contrary, if the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or judgment (A) involves a finding or admission of wrongdoing, (B) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party and its Affiliates from all liability in respect of such Third Party Claim, or (C) imposes equitable remedies or any obligation on the Indemnified Party or any of its Affiliates.
(d) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim” and, together with a Third-Party Claim, an “Indemnification Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. Each Claim Notice with respect to a Direct Claim shall set forth in reasonable detail the facts and circumstances of such Direct Claim, the amount thereof and the basis for indemnification in respect thereof,
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including the specific Section or Sections hereof that the Indemnified Party claims to have been breached (in each case, taking into account the information then available to the Indemnified Party); provided, that the failure of a Claim Notice to include any of the foregoing information shall not impact the validity of such Claim Notice except to the extent such failure actually and materially prejudices the Indemnifying Party. Subject to survival limitations set forth in Section 8.1, the failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is actually and materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII.
Section 8.5 Limits on Indemnification; Sources of Recovery.
(a) Notwithstanding anything to the contrary contained in this Agreement (other than Article VII): (a) an Indemnifying Party shall not be liable for any claim for indemnification pursuant to Section 8.2(a), Section 8.2(b)(i) or Section 8.3(a) unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Indemnifying Party under Section 8.2(a)(i), Section 8.2(b)(i) or Section 8.3(a), as applicable, exceeds $1,696,350 (“Deductible”), in which case the Indemnifying Party shall be liable only for the amount of such Losses in excess thereof, and (b) the maximum aggregate amount of indemnifiable Losses which may be recovered from the Sellers in the aggregate or OpCo arising out of or relating to the causes set forth in Section 8.2(a), Section 8.2(b)(i) or Section 8.3(a) as the case may be, shall be an amount equal to $1,696,350 (“Cap”), provided, that the foregoing clauses (a) and (b) shall not apply to Fraud.
(b) Except in the case of Fraud, in no event shall the Sellers in the aggregate be liable for indemnifiable Losses in excess of the Purchase Price in the aggregate.
(c) Except for (i) indemnifiable Losses up to the amount of the Cap (and subject to the Deductible) and (ii) claims for Fraud, claims made by the Buyer Indemnified Parties against the R&W Policy shall be the sole and exclusive remedy of the Buyer Indemnified Parties for any indemnifiable Losses arising under Section 8.2(a) and Section 8.2(b)(i). In furtherance of the foregoing, subject to the limitations set forth in this Article VIII, in the event the Buyer Indemnified Parties are entitled to indemnifiable Losses arising under Section 8.2(a) and Section 8.2(b)(i) from any Seller (other than with respect to any claim for Fraud), the Buyer Indemnified Parties’ first source of recovery shall be recourse to the Indemnity Escrow Fund until the Indemnity Escrow Fund has been fully exhausted or disbursed in accordance with the terms of the Escrow Agreement, at which point (x) the Buyer Indemnified Parties’ sole source of recovery for indemnifiable Losses arising under Section 8.2(a) and Section 8.2(b)(i) shall be through the R&W Policy in accordance with the terms of the R&W Policy. Other than with respect to claims for Fraud, with respect to indemnifiable Losses arising under Section 8.2(a) and Section 8.2(b)(i), no Seller will have any liability for, and no Buyer Indemnified Party will claim, any indemnifiable Losses in excess of the Cap other than from the R&W Policy. For purposes of this Section 8.5, the amount of indemnifiable Losses recovered by the Buyer Parties with respect to any distribution of Indemnity Escrow Shares to the Buyer Parties from the Indemnity Escrow Fund shall be deemed to equal (x) the Price Per Share multiplied by (y) the number of Indemnity Escrow Shares distributed to the Buyer Parties from the Indemnity Escrow Fund. To the extent the Indemnity Escrow Shares in the Indemnity Escrow Fund have been exhausted or distributed or are being held subject to the resolution of other outstanding claims hereunder, the Buyer Indemnified Parties may recover with respect to such Losses directly from the Sellers subject to the limitations set forth in this Article VIII.
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(d) The amount of any and all Losses under this Article VIII shall be determined net of any insurance or other recoveries actually received by the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification, less any costs incurred to recover such amounts and any increase in premiums resulting from such claim. The Indemnified Parties shall use commercially reasonable efforts to pursue recovery for indemnifiable Losses under any available insurance coverage.
Section 8.6 Materiality Qualifications. Both for purposes of determining breach and for calculating the amount of any Loss arising from a breach of any representation or warranty subject to indemnification under Section 8.2(a) or Section 8.2(b)(i) (other than the representation and warranty in the third sentence of Section 4.6(a) (Financial Statements), Section 4.7 (Absence of Changes), the term “Material Contract,” or the term or definition “Material Adverse Effect”), all “material,” “materially,” “in all material respects,” “Material Adverse Effect,” and other like qualifications shall be disregarded.
Section 8.7 No Double Recovery. Notwithstanding the fact that any Indemnified Party may have the right to assert claims for indemnification under or in respect of more than one provision of this Agreement in respect of any fact, event, condition or circumstance, no Indemnified Party shall be entitled to recover the amount of any Losses suffered by such Person more than once, regardless of whether such Losses may be as a result of a breach of more than one representation or warranty or covenant. Notwithstanding anything to the contrary, any item included in the calculation of Closing Net Working Capital, Closing Transaction Expenses or Closing Indebtedness, in each case, that resulted in an actual reduction to the Purchase Price or was otherwise accrued as a specific payable, reserve or expense on the Closing Balance Sheet shall not, to the extent of such reduction or accrual, form the basis for a claim for indemnification under this Agreement.
Section 8.8 Exclusive Remedy. Except (a) as provided in Section 2.4, (b) for specific performance or injunctive relief, (c) for legal or equitable relief for any claim for Fraud, or (d) where not permitted by Law, the right to indemnification under this Article VIII (including recourse to the R&W Policy) shall constitute the sole and exclusive right and remedy available to any party hereto for any breach of any representation, warranty, covenant, agreement or obligation set forth herein, and no party hereto or any of its Affiliates or Representatives shall seek, assert, initiate or maintain any action at Law or in equity against any party hereto which is directly or indirectly related to or arises out of any breach of any representation, warranty, covenant, agreement or obligation set forth herein. Each Party hereby waives its right to seek any other remedy therefor, whether at Law, in equity or otherwise, including any common law claims for breach of contract, contribution or indemnification.
Section 8.9 Tax Treatment of Indemnity Payments. To the maximum extent permitted by Law, it is the intention of the parties to treat any indemnity payment made under this Agreement as an adjustment to the Purchase Price for all Tax purposes, and the parties agree to file their Tax Returns accordingly.
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Section 8.10 R&W Policy. Nothing in this Agreement shall in any way limit the Buyer or its Affiliates from making any claims or receiving any recoveries under the R&W Policy, whether for breaches under this Agreement or any other claim that may be permitted to be made under the R&W Policy.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Fees and Expenses. Except as otherwise provided herein, all fees and expenses incurred in connection with or related to this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby shall be paid by the party incurring such fees or expenses; provided, that Transaction Expenses shall be borne and paid as provided in this Agreement.
Section 9.2 Amendment and Modification. This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each party.
Section 9.3 Waiver. No failure or delay of either party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder. Any agreement on the part of either party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such party.
Section 9.4 Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by e-mail, upon receipt, (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:
(i) if to the Sellers or the Sellers Representative, to:
c/o Genco Energia
4800 Magalhaes de Castro Avenue
Continental Tower, 9th Floor, Suite 92
Cidade Jardim, São Paulo – SP, Brazil, CEP 05676-120
Attention: Legal Department
E-mail: [email protected]
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with a copy (which shall not constitute notice) to:
Troutman Pepper Locke LLP
600 Peachtree Street, NE, Suite 3000
Atlanta, Georgia 30308
Attention: Vaughn Morrison; Andrea Farley
E-mail: [email protected]; [email protected]
and
Stocche Forbes Advogados
Avenida Brigadeiro Faria Lima, nº 4.100, 10º andar, 04538-132
São Paulo/SP, Brazil
Attention: Fabiano Milani; Rafael de Almeida Rosa Andrade
E-mail: [email protected]; [email protected]
(ii) if to a Buyer Party or the Company, to:
Solaris Energy Infrastructure, Inc.
9651 Katy Freeway, Suite 300
Houston, Texas 77024
Attention: Christopher Powell
E-mail: [email protected]
with a copy (which shall not constitute notice) to:
Gibson, Dunn & Crutcher LLP
811 Main Street, Suite 3000
Houston, Texas 77002
Attention: Tull R. Florey
Email: [email protected]
Section 9.5 Interpretation. When a reference is made in this Agreement to a Section, Article, Exhibit or Schedule such reference shall be to a Section, Article, Exhibit or Schedule of this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement or in any Exhibit or Schedule are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth herein. The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,” unless otherwise specified. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to the Agreement as a whole
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and not to any particular provision in this Agreement. The term “or” is not exclusive. The word “will” shall be construed to have the same meaning and effect as the word “shall.” References to days mean calendar days unless otherwise specified. References to documents or other materials “provided” or “made available” to the Buyer shall mean that such documents or other materials were present prior to the Closing in the on-line data room maintained by the Sellers and the Company for purposes of the transactions contemplated herein and accessible by Buyer.
Section 9.6 Entire Agreement. This Agreement (including the Exhibits and Schedules hereto), the Ancillary Agreements and the Mutual Confidentiality & Non-Disclosure Agreement, dated as of January 23, 2026, between the Company and OpCo, constitute the entire agreement, and supersede all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings between the parties with respect to the subject matter hereof and thereof.
Section 9.7 No Third-Party Beneficiaries. Except as provided in Section 6.1, Section 6.9, Article VIII and Section 9.20, nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
Section 9.8 Governing Law. This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal Laws of the State of Delaware, without regard to the Laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of Delaware.
Section 9.9 Submission to Jurisdiction. Each of the parties irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement brought by any party or its successors or assigns against the other party shall be brought and determined in the Court of Chancery of the State of Delaware, provided, that if jurisdiction is not then available in the Court of Chancery of the State of Delaware, then any such legal action or proceeding may be brought in any federal court located in the State of Delaware or any other Delaware state court. Each of the parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby. Each of the parties agrees not to commence any action, suit or proceeding relating thereto except in the courts described above in Delaware, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described herein. Each of the parties further agrees that notice as provided herein shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and
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(c) that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Notwithstanding the foregoing, the parties agree that disputes with respect to the matters referenced in Section 2.4 shall be resolved by the Independent Accounting Firm as provided therein.
Section 9.10 Assignment; Successors. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of Law or otherwise, by either party without the prior written consent of the other party, and any such assignment without such prior written consent shall be null and void; provided, however, that the Buyer Parties may assign this Agreement to any Affiliate of the Buyer without the prior consent of the Sellers; provided further, that no assignment shall limit the assignor’s obligations hereunder. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.
Section 9.11 Enforcement. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each of the parties shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any Delaware state or federal court sitting in Delaware (or, if such court lacks subject matter jurisdiction, in any appropriate Delaware state or federal court), this being in addition to any other remedy to which such party is entitled at Law or in equity. Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at Law would be adequate and (b) any requirement under any Law to post security as a prerequisite to obtaining equitable relief.
Section 9.12 Currency. All references to “dollars” or “$” or “US$” in this Agreement or any Ancillary Agreement refer to United States dollars, which is the currency used for all purposes in this Agreement and any Ancillary Agreement.
Section 9.13 Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.
Section 9.14 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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Section 9.15 Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party.
Section 9.16 Facsimile or .pdf Signature. This Agreement may be executed by facsimile or .pdf signature and a facsimile or .pdf signature shall constitute an original for all purposes.
Section 9.17 Time of Essence. The parties hereto acknowledge and agree that the required timing and content of all notices that are required or permitted to be delivered pursuant to this Agreement are material to the bargain between each of the parties hereto. Time is of the essence with regard to all dates and time periods set forth or referred to in this Agreement.
Section 9.18 No Presumption Against Drafting Party. Each of the Buyer Parties and the Sellers acknowledges that each party to this Agreement has been represented by legal counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of Law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.
Section 9.19 Independent Investigation; Waiver of Other Representations.
(a) EACH OF THE BUYER PARTIES HEREBY ACKNOWLEDGES THAT (I) IT HAS MADE ITS OWN INDEPENDENT EXAMINATION, INVESTIGATION, ANALYSIS AND EVALUATION OF THE BUSINESS, OPERATIONS, ASSETS AND PROPERTIES, LIABILITIES, RESULTS OF OPERATIONS, FINANCIAL CONDITION, TECHNOLOGY AND PROSPECTS OF THE COMPANY AND ITS SUBSIDIARIES, (II) IT HAS BEEN PROVIDED ACCESS TO PERSONNEL, PROPERTIES, PREMISES AND RECORDS OF THE COMPANY AND ITS SUBSIDIARIES (INCLUDING THE BOOKS AND RECORDS OF THE COMPANY AND ITS SUBSIDIARIES) FOR SUCH PURPOSE AND HAS RECEIVED AND REVIEWED SUCH INFORMATION AND HAS HAD A REASONABLE OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVE ANSWERS RELATING TO SUCH MATTERS AS IT DEEMED NECESSARY OR APPROPRIATE TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREIN AND (III) IT HAS SUCH KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT IT IS CAPABLE OF EVALUATING THE MERITS AND RISKS OF THE COMPANY AND ITS SUBSIDIARIES AND AN INVESTMENT IN THE COMPANY.
(b) IN ENTERING INTO THIS AGREEMENT AND THE ANCILLARY AGREEMENTS, EACH OF THE BUYER PARTIES HAS RELIED SOLELY UPON ITS OWN DUE DILIGENCE INVESTIGATION AND ANALYSIS OF THE COMPANY AND THE ASSETS AND PROPERTIES OF THE COMPANY AND ITS SUBSIDIARIES AND THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN Article III AND Article IV AND IN ANY ANCILLARY AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH OF THE BUYER PARTIES:
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(i) ACKNOWLEDGES AND AGREES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ARTICLE III OR ARTICLE IV AND THE ANCILLARY AGREEMENTS (A) THE COMPANY, SELLERS REPRESENTATIVE AND THE SELLERS, ON BEHALF OF THEMSELVES AND THEIR AFFILIATES, EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING AS TO (1) THE CONTENTS, CHARACTER OR NATURE OF ANY DESCRIPTIVE MEMORANDUM RELATING TO THE BUSINESS, THE SHARES OR THE ASSETS AND PROPERTIES OF THE COMPANY AND ITS SUBSIDIARIES, (2) ANY ESTIMATES OF THE VALUE OF THE BUSINESSES OF THE COMPANY AND ITS SUBSIDIARIES, THE SHARES OR THE ASSETS AND PROPERTIES OF THE COMPANY AND ITS SUBSIDIARIES, OR FUTURE REVENUES GENERATED THEREBY, OR (3) THE MAINTENANCE, REPAIR, CONDITION, QUALITY, SUITABILITY, DESIGN, MARKETABILITY, PROSPECTS (FINANCIAL OR OTHERWISE) OR RISKS AND OTHER INCIDENTS OF THE BUSINESSES OF THE COMPANY AND ITS SUBSIDIARIES, THE SHARES OR THE ASSETS AND PROPERTIES OF THE COMPANY AND ITS SUBSIDIARIES AND FURTHER DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR CONFORMITY TO MODELS OR SAMPLES;
(ii) ACKNOWLEDGES AND AGREES THAT NEITHER THE COMPANY NOR ITS SUBSIDIARIES NOR ANY OF THE SELLERS OR SELLERS REPRESENTATIVE NOR ANY OF THEIR RESPECTIVE AFFILIATES NOR ANY OF THEIR RESPECTIVE REPRESENTATIVES MAKES OR HAS MADE ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF ANY OF THE INFORMATION PROVIDED OR MADE AVAILABLE TO THE BUYER PARTIES OR THEIR RESPECTIVE AFFILIATES OR ITS OR THEIR RESPECTIVE REPRESENTATIVES, INCLUDING ANY INFORMATION, DOCUMENT, OR MATERIAL PROVIDED OR MADE AVAILABLE, OR STATEMENTS MADE, TO THE BUYER PARTIES OR THEIR RESPECTIVE AFFILIATES OR ITS OR THEIR RESPECTIVE REPRESENTATIVES DURING SITE OR OFFICE VISITS, IN ANY “DATA ROOMS” (INCLUDING INTERNET-BASED DATA ROOMS), MANAGEMENT PRESENTATIONS OR SUPPLEMENTAL DUE DILIGENCE INFORMATION PROVIDED TO THE BUYER PARTIES OR THEIR RESPECTIVE AFFILIATES OR ITS OR THEIR RESPECTIVE REPRESENTATIVES IN CONNECTION WITH DISCUSSIONS OR ACCESS TO MANAGEMENT OF THE COMPANY OR IN ANY OTHER FORM IN EXPECTATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT IN EACH CASE TO THE EXTENT EXPRESSLY SET FORTH IN THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE III OR ARTICLE IV (EACH AS MODIFIED BY THE DISCLOSURE SCHEDULES) AND THE ANCILLARY AGREEMENTS; AND
(iii) ACKNOWLEDGES AND AGREES THAT, EXCEPT AS OTHERWISE SET FORTH IN ARTICLE III OR ARTICLE IV (EACH AS MODIFIED BY THE DISCLOSURE SCHEDULES) OR THE ANCILLARY AGREEMENTS, IN ACQUIRING THE SHARES, THE BUYER IS ACQUIRING THE ASSETS ON AN “AS IS, WHERE IS” BASIS.
(iv) THE STATEMENTS AND DISCLAIMERS MADE UNDER THIS SECTION 9.19 EXPRESSLY SURVIVE THE CLOSING DATE.
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Section 9.20 Conflict Waiver; Attorney-Client Privilege. Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its Affiliates and Representatives, that:
(a) Each of Troutman Pepper Locke LLP and Stocche Forbes Advogados has acted as counsel to the Sellers Representative and the Company in connection with the negotiation, preparation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. The Buyer Parties and the Company agree, and shall cause the Company’s Subsidiaries to agree, that following consummation of the transactions contemplated hereby, such representation and any prior representation of the Company by Troutman Pepper Locke LLP and/or Stocche Forbes Advogados (or any successor) (either, a “Sellers Group Law Firm”) shall not preclude either Sellers Group Law Firm from serving as counsel to any Seller (or the Sellers Representative) or any director, member, shareholder, partner, officer or employee of any Seller or the Sellers Representative, in connection with any Action or obligation arising out of or relating to this Agreement or the transactions contemplated hereby.
(b) The Buyer Parties and the Company shall not, and shall cause the Company’s Subsidiaries not to, seek or have either Sellers Group Law Firm disqualified from any such representation based upon the prior representation of the Company by either Sellers Group Law Firm. Each of the parties hereto hereby consents thereto and waives any conflict of interest arising from such prior representation, and each of such parties shall cause any of its Affiliates to consent to waive any conflict of interest arising from such representation. Each of the parties acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the Parties have consulted with counsel or have been advised they should do so in connection herewith. The covenants, consent and waiver contained in this Section 9.20 shall not be deemed exclusive of any other rights to which either Sellers Group Law Firm is entitled whether pursuant to Law, contract or otherwise.
(c) All communications between the Sellers, Sellers Representative or the Company (including the Company’s Subsidiaries), on the one hand, and either or both Sellers Group Law Firms, on the other hand, relating to the negotiation, preparation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (the “Privileged Communications”) shall be deemed to be attorney-client privileged and the expectation of client confidence relating thereto shall belong solely to the Sellers or the Sellers Representative and shall not pass to or be claimed by the Buyer Parties, the Company or the Company’s Subsidiaries post-Closing. Notwithstanding anything to the contrary contained in this Section 9.20, the Sellers Representative and the Sellers may withhold any document (or portions thereof) or information that would reasonably be expected to constitute Privileged Communications. Without limiting the generality of the foregoing, from and after the Closing, (i) the Sellers (and not the Buyer Parties, the Company or any of the Company’s Subsidiaries) shall be the sole holders of the attorney-client privilege with respect to such engagement, and none of the Buyer Parties, the Company or the Company’s Subsidiaries shall be a holder thereof, (ii) to the extent that files of either Sellers Group Law Firm in respect of such engagement constitute property of the client, only the Sellers or the Sellers Representative (and neither the Buyer Parties, the Company nor the Company’s Subsidiaries) shall hold such property rights and (iii) neither Sellers Group Law Firm shall have any duty whatsoever to reveal or disclose any such attorney-client communications or files to the Buyer Parties, the Company or the Company’s Subsidiaries by
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reason of any attorney-client relationship between either Sellers Group Law Firm and the Company or otherwise. Without limitation of the foregoing, none of the Buyer Parties or any of their respective Affiliates (including the Company) may use or rely upon any communications described in the immediately preceding sentence in any dispute against or involving the any of the Sellers or the Sellers Representative. Notwithstanding the foregoing, in the event that a dispute arises between any Buyer Party or its Affiliates (including the Company), on the one hand, and a third party other than any of the Sellers or the Sellers Representative, on the other hand, such Buyer Party and its Affiliates (including the Company) may assert the attorney-client privilege to prevent disclosure of confidential communications to such third party; provided, however, that neither the Buyer Parties nor any of their respective Affiliates (including the Company and its Subsidiaries) may waive such privilege without the prior written consent of the Sellers Representative, which consent shall not be unreasonably withheld, conditioned or delayed. In the event that the Buyer Parties or any of their respective Affiliates (including the Company and its Subsidiaries) is legally required by an order or otherwise legally required to access or obtain a copy of all or a portion of the Privileged Communications, to the extent permitted by applicable Law, then the Buyer Parties shall immediately (and, in any event, within five Business Days) notify the Sellers Representative in writing so that the Sellers Representative can seek a protective order.
(d) This Section 9.20 is intended for the benefit of, and shall be enforceable by, each Sellers Group Law Firm. This Section 9.20 shall be irrevocable, and no term of this Section 9.20 may be amended, waived or modified, without the prior written consent of each Sellers Group Law Firm, which consent shall not be unreasonably withheld, conditioned or delayed.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| BUYER | ||
| PROJECT G BUYER, LLC | ||
| By: | /s/ Stephan Tompsett | |
| Name: Stephan Tompsett | ||
| Title: Chief Financial Officer | ||
| OPCO | ||
| SOLARIS ENERGY INFRASTRUCTURE, LLC | ||
| By: | /s/ Stephan Tompsett | |
| Name: Stephan Tompsett | ||
| Title: Chief Financial Officer | ||
| PARENT | ||
| SOLARIS ENERGY INFRASTRUCTURE, INC. | ||
| By: | /s/ Stephan Tompsett | |
| Name: Stephan Tompsett | ||
| Title: Chief Financial Officer | ||
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| COMPANY | ||
| FOCUS GENCO CAYMAN LTD. | ||
| By: | /s/ Eduardo Dal Sasso Mendonça Cruz | |
| Name: Eduardo Dal Sasso Mendonça Cruz | ||
| Title: Director | ||
| By: | /s/ Alan Zelazo | |
| Name: Alan Zelazo | ||
| Title: Director | ||
| SELLERS REPRESENTATIVE | ||
| By: | /s/ Alan Zelazo | |
| Name: Alan Zelazo | ||
| SELLERS | ||
| GOLEM INTERNATIONAL LIMITED | ||
| By: | /s/ Alan Zelazo | |
| Name: Alan Zelazo | ||
| Title: Authorized Signatory | ||
| /s/ Eduardo Dal Sasso Mendonça Cruz | ||
| Eduardo Dal Sasso Mendonça Cruz | ||
| /s/ Carlos Baccan Netto | ||
| Carlos Baccan Netto | ||
| /s/ Henrique Coelho Casotti | ||
| Henrique Coelho Casotti | ||
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| /s/ Marcia Pacianotto Ribeiro |
| Marcia Pacianotto Ribeiro |
| /s/ Gabriel Bernardo De Almeida Arruda |
| Gabriel Bernardo De Almeida Arruda |
| /s/ Adriano Cezário De Oliveira |
| Adriano Cezário De Oliveira |
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ANNEX A
Registration Rights
1.1. Definitions. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement.
“Automatic Shelf Registration Statement” means an “automatic shelf registration statement” as defined under Rule 405.
“Effective Date” means the time and date that a Registration Statement is first declared effective by the SEC or otherwise becomes effective.
“Effectiveness Period” means the period beginning on the Effective Date for any applicable Registration Statement and ending on the earlier of (i) the date that all Registrable Securities covered by such Registration Statement have been sold and (ii) the date that is one year after the Effective Date.
“Parent Stock” means the Parent Common Stock together with any other equity interests of Parent or equity interests in any successor of Parent issued by Parent including by reason of or in connection with any stock dividend, stock split, combination, reorganization, recapitalization, conversion to another type of entity or similar event involving a change in the capital structure of Parent.
“Prospectus” means the prospectus included in a Registration Statement (including a prospectus that includes any information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A, Rule 430B or Rule 430C promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
“Registrable Securities” means any Parent Common Shares issued to Sellers pursuant to the terms of the Agreement; provided, however, that Registrable Securities shall not include: (i) any such Parent Common Shares that have been registered under the Securities Act and disposed of pursuant to an effective Registration Statement or otherwise transferred to a Person who is not entitled to the registration and other rights hereunder; (ii) any such Parent Common Shares that have been sold or transferred by the holder thereof pursuant to Rule 144 (or any similar provision then in force under the Securities Act) and the transferee thereof does not receive “restricted securities” as defined in Rule 144; and (iii) any such Parent Common Shares that cease to be outstanding (whether as a result of repurchase and cancellation, conversion or otherwise).
“Registration Expenses” means, without limitation, (i) all registration and filing fees (including fees and expenses (A) with respect to filings required to be made with the Trading Market and (B) in compliance with applicable state securities or “Blue Sky” Laws), (ii) printing expenses (including expenses of printing certificates for Parent Stock and of printing Prospectuses
if the printing of Prospectuses is reasonably requested by a Seller included in the Registration Statement), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel, auditors and accountants for Parent, (v) Securities Act liability insurance, if Parent so desires such insurance, and (vi) fees and expenses of all other Persons retained by Parent in connection with the consummation of the transactions contemplated by this ANNEX A.
“Registration Statement” means a registration statement of Parent in the form required to register under the Securities Act and other applicable Law the resale of the Registrable Securities in accordance with the intended plan of distribution of each Seller included therein, and including any Prospectus, amendments and supplements to each such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.
“Shelf Registration Statement” means a Registration Statement of Parent filed with the SEC on Form S-3 (or any successor form or other appropriate form under the Securities Act) for an offering to be made on a continuous or delayed basis pursuant to Rule 415 (or any similar rule that may be adopted by the SEC) covering the Registrable Securities, as applicable.
“Trading Market” means the principal national securities exchange on which Registrable Securities are listed.
“WKSI” means a “well known seasoned issuer” as defined under Rule 405.
1.2. Registration.
(a) Pursuant to the terms of and subject to the other provisions of the Agreement and this ANNEX A, Parent shall file within 30 days after the Closing Date, a Shelf Registration Statement covering the resale from time to time by the Sellers, on a delayed or continuous basis pursuant to Rule 415 of the Securities Act of all of the Registrable Securities, if any, and shall use its reasonable best efforts to cause such Shelf Registration Statement to become effective or be declared effective by the SEC as soon as practicable after the filing thereof, but no later than 30 days following the filing date. Such Shelf Registration Statement shall provide for the registration of such Registrable Securities for resale by such Sellers in accordance with any reasonable method of distribution elected by the Sellers and permitted pursuant to the form of registration statement used and the rules, regulations and guidance of the SEC (such registration, the “Shelf Registration”).
(b) Parent may include in any Shelf Registration other Parent Stock for sale for its own account or for the account of any other Person.
(c) If available to Parent, the Shelf Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act.
(d) Without limiting Section 1.3 of this ANNEX A, in connection with any Shelf Registration pursuant to and in accordance with this Section 1.2, Parent shall promptly prepare and file or cause to be prepared and filed (x) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Shelf Registration, including under the securities Laws of such U.S. jurisdictions as the Sellers shall reasonably request; provided that no such qualification shall be required in any jurisdiction where, as a result thereof, Parent would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (y) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Shelf Registration on the Trading Market.
1.3. Registration Procedures. The procedures to be followed by Parent and a Seller electing to sell Registrable Securities in a Shelf Registration Statement or Registration Statement pursuant to this ANNEX A are as follows:
(a) In connection with a Shelf Registration, Parent will, at least two Business Days prior to the anticipated filing of the Shelf Registration Statement or Registration Statement, as applicable, and any related Prospectus or any amendment or supplement thereto relating to any Registrable Securities (other than, after effectiveness of such Shelf Registration Statement or such Registration Statement any filing made under the Exchange Act that is incorporated by reference into such Shelf Registration Statement or such Registration Statement), (i) furnish to such Seller copies of all such documents prior to filing and (ii) use commercially reasonable efforts to address in each such document when so filed with the SEC such comments as such Seller shall reasonably propose prior to the filing thereof.
(b) Parent will use commercially reasonable efforts to as promptly as reasonably practicable (i) prepare and file with the SEC such amendments, including post-effective amendments, and supplements to each Shelf Registration Statement, Registration Statement and the Prospectus used in connection therewith as may be necessary under applicable Law to keep such Shelf Registration Statement or such Registration Statement continuously effective with respect to the disposition of all Registrable Securities covered thereby for its Effectiveness Period and, subject to the other provisions of the Agreement and this ANNEX A, prepare and file with the SEC such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities held by the Sellers; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; and (iii) respond to any comments received from the SEC with respect to each Shelf Registration Statement or Registration Statement or any amendment thereto and, as promptly as reasonably practicable provide such Seller true and complete copies of all correspondence from and to the SEC relating to such Shelf Registration Statement or such Registration Statement that pertains to such Seller as selling stockholders but not any comments that would result in the disclosure to such Seller of material and non-public information concerning Parent.
(c) Parent will comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to any Shelf Registration Statement or the Registration Statement and the disposition of all Registrable Securities covered by each such Shelf Registration Statement and Registration Statement until the end of the Effectiveness Period.
(d) Parent will notify the Seller(s) included in a Shelf Registration Statement or Registration Statement as promptly as reasonably practicable: (i) (x) when a Prospectus or any prospectus supplement or post-effective amendment to a Shelf Registration Statement or Registration Statement in which such Seller is included has been filed; (y) when the SEC notifies Parent whether there will be a “review” of the applicable Shelf Registration Statement or Registration Statement and whenever the SEC comments in writing on such Shelf Registration Statement or such Registration Statement (in which case Parent shall provide true and complete copies thereof and all written responses thereto to each of such Sellers that pertain to such Sellers as selling stockholders); and (z) with respect to each applicable Shelf Registration Statement, Registration Statement or any post-effective amendment thereto, when the same has been declared effective; (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to such Shelf Registration Statement or such Registration Statement or Prospectus or for additional information that pertains to such Sellers as sellers of Registrable Securities; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Shelf Registration Statement or such Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by Parent of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (v) of the occurrence of any event or passage of time that makes any statement made in such Shelf Registration Statement, Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to such Shelf Registration Statement, Registration Statement, Prospectus or other documents so that, in the case of such Shelf Registration Statement, Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided, however, that no notice by Parent shall be required pursuant to this clause (v) in the event that Parent either promptly files a prospectus supplement to update the Prospectus or a Form 8-K or other appropriate Exchange Act report that is incorporated by reference into the Shelf Registration Statement or the Registration Statement, which in either case, contains the requisite information that results in such Shelf Registration Statement or such Registration Statement no longer containing any untrue statement of material fact or omitting to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading).
(e) Parent will use commercially reasonable efforts to avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a Shelf Registration Statement or Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as promptly as reasonably practicable.
(f) During the Effectiveness Period, Parent will furnish to such Seller, without charge, at least one conformed copy of each Shelf Registration Statement, Registration Statement and each amendment thereto and all exhibits to the extent requested by such Seller (including those incorporated by reference) promptly after the filing of such documents with the SEC; provided that the SEC will not have any obligation to provide any document pursuant to this clause that is available on the SEC’s EDGAR system.
(g) Parent will promptly deliver to each Seller, without charge, as many copies of each Prospectus or Prospectuses (including each form of prospectus) authorized by Parent for use and each amendment or supplement thereto as such Seller may reasonably request during the Effectiveness Period. Subject to the other provisions of the Agreement and this ANNEX A, Parent consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Sellers in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Parent will cooperate with such Seller to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Shelf Registration Statement or Registration Statement, which certificates shall be free of all restrictive legends indicating that the Registrable Securities are unregistered or unqualified for resale under the Securities Act, Exchange Act or other applicable securities Laws, and to enable such Registrable Securities to be in such denominations and registered in such names as such Seller may request in writing. In connection therewith, if required by Parent’s transfer agent, Parent will promptly, after the Effective Date of the Shelf Registration Statement or Registration Statement, cause an opinion of counsel as to the effectiveness of the Shelf Registration Statement or Registration Statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any such legend upon sale by the Seller of such Registrable Securities under the Shelf Registration Statement or Registration Statement; provided that Parent may, in its discretion, require letters of representation from such Sellers and any applicable custodians/brokers prior to the delivery of such opinion.
(i) Upon the occurrence of any event contemplated by Section 1.3(d)(v) of this ANNEX A, as promptly as reasonably practicable, Parent will prepare a supplement or amendment, including a post-effective amendment, if required by applicable Law, to the affected Shelf Registration Statement or Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, no Shelf Registration Statement nor Registration Statement nor any Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
1.4. Registration Expenses. All Registration Expenses incident to Parent’s performance of or compliance with its obligations under this ANNEX A or otherwise in connection with any Shelf Registration shall be borne by Parent, whether or not any Registrable Securities are sold pursuant to a Registration Statement.
1.5 Blackout Period. Notwithstanding any other provision of the Agreement or this ANNEX A, Parent shall not be required to file a Registration Statement (or any amendment thereto) (or, if Parent has filed a Shelf Registration Statement and has included Registrable Securities therein, Parent shall be entitled to suspend the offer and sale of Registrable Securities
pursuant to such Registration Statement) for a period of up to 30 days if (i) Parent’s board of directors determines such registration would render Parent unable to comply with applicable securities laws, (ii) Parent’s board of directors determines such registration would require disclosure of material information that Parent has a bona fide business purpose for preserving as confidential or (iii) Parent’s board of directors determines such registration is reasonably likely to adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving Parent or otherwise have a material adverse effect on Parent (any such period, a “Blackout Period”). Notwithstanding anything to the contrary in the Agreement or this ANNEX A, in no event shall any Blackout Periods and any Suspension Periods continue for more than 60 days in the aggregate during any 365-day period.
1.6. Indemnification for Registration Rights.
(a) Parent shall indemnify and hold harmless each Seller Indemnified Party, to the fullest extent permitted by applicable Law, from and against any and all losses, claims, damages, liabilities, joint or several, costs (including reasonable costs of preparation and reasonable attorneys’ fees) and expenses, judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any Seller Indemnified Party may be involved, or is threatened to be involved, as a party or otherwise, under the Securities Act or otherwise (collectively, “Registration Rights Related Losses”), as incurred, (i) in the case of any Registration Statement, arising out of or relating to any untrue or alleged untrue statement of a material fact, contained in any such Registration Statement under which any Registrable Securities were registered, required to be stated therein or necessary to make the statements therein not misleading, or (ii) in the case of any preliminary prospectus (if Parent authorized the use of such preliminary prospectus prior to the Effective Date), or in any summary or final prospectus or free writing prospectus (if such free writing prospectus was authorized for use by Parent) or in any amendment or supplement thereto (if used during the period Parent is required to keep the Registration Statement current), or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact necessary to make the statements made therein, in the light of the circumstances in which they were made, not misleading; provided that Parent shall not be liable to any Seller Indemnified Party to the extent that any such claim arises out of, is based upon or results from an untrue or alleged untrue statement or omission or alleged omission made in such Registration Statement, such preliminary, summary or final prospectus or free writing prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to Parent by or on behalf of such Seller Indemnified Party specifically for use in the preparation thereof. Parent shall notify the Sellers promptly of the institution, threat or assertion of any Action of which Parent is aware in connection with the transactions contemplated by this ANNEX A. This indemnity shall be in addition to any liability Parent may otherwise have and shall remain in full force and effect regardless of any investigation made by or on behalf of such Seller Indemnified Party or any indemnified party and shall survive the transfer of such securities by such Seller. Notwithstanding anything to the contrary herein, this Section 1.6 shall survive any termination or expiration of the Agreement and this ANNEX A indefinitely.
(b) In connection with any Registration Statement in which a Seller participates, such Seller shall, severally and not jointly, indemnify and hold harmless the Buyer Indemnified Parties, to the fullest extent permitted by applicable Law, from and against any and all Registration Rights Related Losses as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any such Registration Statement required to be stated therein or necessary to make the statements therein not misleading, in any preliminary prospectus (if used prior to the Effective Date of such Registration Statement), or in any summary or final prospectus or free writing prospectus or in any amendment or supplement thereto (if used during the period Parent is required to keep the Registration Statement current), or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact necessary to make the statements made therein, in the light of the circumstances in which they were made, not misleading, but only to the extent that the same are made in reliance and in conformity with information relating to the Seller furnished in writing to Parent by such Seller for use therein. This indemnity shall be in addition to any liability such Seller may otherwise have and shall remain in full force and effect regardless of any investigation made by or on behalf of Parent or any indemnified party. In no event shall the liability of any selling Seller hereunder be greater in amount than the dollar amount of the proceeds received by such Seller from the sale of the Registrable Securities giving rise to such indemnification obligation.
(c) If the indemnification provided for in this Section 1.6 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any Registration Rights Related Losses referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall to the extent permitted by applicable Law contribute to the amount paid or payable by such indemnified party as a result of such Registration Rights Related Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other, in connection with the untrue or alleged untrue statement of a material fact or the omission to state a material fact that resulted in such Registration Rights Related Losses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by a court of Law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided that in no event shall any contribution by a Seller exceed the net proceeds from the offering received by such Seller. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of fraudulent misrepresentation.
1.7. Facilitation of Sales Pursuant to Rule 144. To the extent it shall be required to do so under the Exchange Act, Parent shall timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144) to the extent required from time to time to enable Sellers to sell Registrable Securities without registration under the Securities Act pursuant to Rule 144, and to take such further action as a Seller may reasonably request, all to the extent required from time to time to enable the Sellers to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144, including providing (i) opinion(s) of counsel, at Parent’s sole cost and expense, as may be reasonably necessary in order for each Seller to avail itself of Rule 144 to allow a Seller to sell
such Parent Stock without registration, and (ii) any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to remove any applicable Securities Act legend or restriction that may be placed on the Registrable Securities; provided that Parent may, in its discretion, require letters of representation from such Sellers and any applicable custodians/brokers prior to the delivery of such opinion. Upon the request of any Seller that owns Registrable Securities in connection with that Seller’s sale pursuant to Rule 144, Parent shall deliver to such Seller a written statement as to whether it has complied with such requirements.
1.8. Discontinued Disposition. Each Seller agrees that, upon receipt of a notice from Parent of a Blackout Period or the occurrence of any event of the kind described in clauses (ii) through (v) of Section 1.3(d) of this ANNEX A, such Seller will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Seller’s receipt of the copies of the supplemental Prospectus or amended Registration Statement as contemplated by Section 1.3(i) of this ANNEX A or until it is advised in writing by Parent that the Blackout Period has ended or the use of the applicable Prospectus may be resumed, and, in any case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement (a “Suspension Period”).
Exhibit 10.1
Execution Version
SENIOR SECURED TERM LOAN AGREEMENT
Dated as of March 16, 2026
SOLARIS ENERGY INFRASTRUCTURE, LLC,
as Borrower,
SOLARIS ENERGY INFRASTRUCTURE, INC.,
as Parent
THE OTHER OBLIGORS PARTY HERETO,
THE LENDERS PARTY HERETO
AND
GOLDMAN SACHS BANK USA,
as Administrative Agent
BANCO SANTANDER, S.A., NEW YORK BRANCH and
GOLDMAN SACHS BANK USA,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
| Section 1. | DEFINITIONS; RULES OF CONSTRUCTION |
1 | ||||
| 1.1 |
Definitions | 1 | ||||
| 1.2 |
Accounting Terms | 32 | ||||
| 1.3 |
Uniform Commercial Code | 32 | ||||
| 1.4 |
Certain Matters of Construction | 33 | ||||
| 1.5 |
Division | 33 | ||||
| Section 2. | CREDIT FACILITIES |
33 | ||||
| 2.1 |
Loan Commitments | 33 | ||||
| 2.2 |
Borrowing Request. | 34 | ||||
| 2.3 |
Evidence of Debt; Register; Lender’s Books and Records; Loans | 34 | ||||
| 2.4 |
Fees | 35 | ||||
| 2.5 |
Interest | 36 | ||||
| 2.6 |
Repayment of Loans | 37 | ||||
| 2.7 |
Voluntary Prepayments | 37 | ||||
| 2.8 |
Mandatory Prepayments | 38 | ||||
| 2.9 |
Application of Payments | 39 | ||||
| 2.10 |
General Provisions Regarding Payments | 39 | ||||
| 2.11 |
Ratable Sharing | 40 | ||||
| 2.12 |
Increased Costs | 40 | ||||
| 2.13 |
Taxes; Withholding, etc. | 41 | ||||
| 2.14 |
Tax Treatment | 45 | ||||
| 2.15 |
[Reserved] | 45 | ||||
| 2.16 |
Designation of a Different Lending Office | 45 | ||||
| 2.17 |
Inability to Determine Rates; Replacing Benchmarks | 45 | ||||
| Section 3. | [RESERVED] |
47 | ||||
| Section 4. | [RESERVED] |
47 | ||||
| Section 5. | [RESERVED] |
47 | ||||
| Section 6. | CONDITIONS PRECEDENT |
47 | ||||
| 6.1 |
Conditions Precedent to Closing | 47 | ||||
| Section 7. | [RESERVED] |
49 | ||||
| Section 8. | [RESERVED] |
49 | ||||
| Section 9. | REPRESENTATIONS AND WARRANTIES |
49 | ||||
| 9.1 |
General Representations and Warranties | 49 | ||||
| Section 10. | COVENANTS AND CONTINUING AGREEMENTS |
54 | ||||
| 10.1 |
Affirmative Covenants | 54 | ||||
| 10.2 |
Negative Covenants | 59 | ||||
| 10.3 |
Financial Covenant | 70 | ||||
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| Section 11. |
EVENTS OF DEFAULT; REMEDIES ON DEFAULT | 71 | ||||
| 11.1 |
Events of Default | 71 | ||||
| 11.2 |
Remedies upon Default | 73 | ||||
| 11.3 |
License | 74 | ||||
| 11.4 |
Setoff | 74 | ||||
| 11.5 |
Remedies Cumulative; No Waiver | 74 | ||||
| Section 12. |
AGENT | 75 | ||||
| 12.1 |
Appointment, Authority and Duties of Agent | 75 | ||||
| 12.2 |
Agreements Regarding Collateral and Borrower Materials | 76 | ||||
| 12.3 |
Reliance By Agent | 76 | ||||
| 12.4 |
Action Upon Default | 77 | ||||
| 12.5 |
Ratable Sharing | 77 | ||||
| 12.6 |
Indemnification | 77 | ||||
| 12.7 |
Limitation on Responsibilities of Agent | 78 | ||||
| 12.8 |
Successor Agent and Co-Agents | 78 | ||||
| 12.9 |
Due Diligence and Non-Reliance | 79 | ||||
| 12.10 |
Remittance of Payments and Collections | 79 | ||||
| 12.11 |
[Reserved] | 82 | ||||
| 12.12 |
Titles | 82 | ||||
| 12.13 |
Certain ERISA Matters | 82 | ||||
| 12.14 |
[Reserved] | 83 | ||||
| 12.15 |
[Reserved] | 83 | ||||
| Section 13. |
BENEFIT OF AGREEMENT; ASSIGNMENTS | 83 | ||||
| 13.1 |
Successors and Assigns | 83 | ||||
| 13.2 |
Participations | 83 | ||||
| 13.3 |
Assignments | 84 | ||||
| 13.4 |
Replacement of Certain Lenders | 85 | ||||
| Section 14. |
MISCELLANEOUS | 85 | ||||
| 14.1 |
Consents, Amendments and Waivers | 85 | ||||
| 14.2 |
Indemnity | 86 | ||||
| 14.3 |
Notices and Communications | 87 | ||||
| 14.4 |
Performance of Obligors’ Obligations | 89 | ||||
| 14.5 |
Credit Inquiries | 90 | ||||
| 14.6 |
Severability | 90 | ||||
| 14.7 |
Cumulative Effect; Conflict of Terms | 90 | ||||
| 14.8 |
Execution; Electronic Records | 90 | ||||
| 14.9 |
Entire Agreement | 91 | ||||
| 14.10 |
Relationship with Lenders | 91 | ||||
| 14.11 |
No Advisory or Fiduciary Responsibility | 91 | ||||
| 14.12 |
Confidentiality | 91 | ||||
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| 14.13 |
[Reserved] | 92 | ||||
| 14.14 |
GOVERNING LAW | 92 | ||||
| 14.15 |
Consent to Forum | 92 | ||||
| 14.16 |
Waivers | 93 | ||||
| 14.17 |
Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 93 | ||||
| 14.18 |
Patriot Act Notice | 94 | ||||
| 14.19 |
Acknowledgement Regarding Any Supported QFCs. | 94 | ||||
| 14.20 |
NO ORAL AGREEMENT | 95 |
LIST OF EXHIBITS AND SCHEDULES
| EXHIBIT A | Assignment | |
| EXHIBIT B | Compliance Certificate | |
| SCHEDULE 1.1 | Commitments of Lenders | |
| SCHEDULE 9.1.12 | Names and Capital Structure | |
| SCHEDULE 9.1.22 | Material Contracts | |
| SCHEDULE 10.1.14 | Post-Closing Obligations | |
| SCHEDULE 10.2.1 | Existing Debt | |
| SCHEDULE 10.2.2 | Existing Liens | |
| SCHEDULE 10.2.2(b) | Specified Genco Assets | |
| SCHEDULE 10.2.4 | Existing Investments | |
| SCHEDULE 10.2.17 | Permitted Parent Convertible Debt Transactions |
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SENIOR SECURED TERM LOAN AGREEMENT
This SENIOR SECURED TERM LOAN AGREEMENT is dated as of March 16, 2026 (as amended, amended and restated, modified or supplemented from time to time, this “Agreement”), among SOLARIS ENERGY INFRASTRUCTURE, LLC, a Delaware limited liability company (“Borrower”), SOLARIS OILFIELD SITE SERVICES OPERATING, LLC, a Texas limited liability company, SOLARIS OILFIELD EARLY PROPERTY, LLC, a Texas limited liability company, SOLARIS OILFIELD SITE SERVICES PERSONNEL LLC, a Delaware limited liability company, SOLARIS LOGISTICS, LLC, a Delaware limited liability company, SOLARIS OILFIELD TECHNOLOGIES, LLC, a Delaware limited liability company, SOLARIS TRANSPORTATION, LLC, a Delaware limited liability company, SOLARIS POWER SOLUTIONS, LLC, a Texas limited liability company (“Solaris Power Solutions”), SOLARIS POWER DISTRIBUTION SOLUTIONS, LLC, a Texas limited liability company, PROJECT G BUYER, LLC, a Texas limited liability company (“Genco Buyer”), SOLARIS POWER SOLUTIONS STATELINE OPERATING, LLC, a Delaware limited liability company, and SOLARIS ENERGY INFRASTRUCTURE, INC., a Delaware corporation (“Parent”), the financial institutions party to this Agreement from time to time as Lenders and GOLDMAN SACHS BANK USA, as administrative agent (in such capacity, “Administrative Agent”), and GOLDMAN SACHS BANK USA, as collateral agent (in such capacity, “Collateral Agent”).
R E C I T A L S:
Borrower has requested that Lenders provide a 364-day term loan credit facility to Borrower to finance the Obligors’ mutual and collective business enterprise. Lenders are willing to provide the term loan credit facility on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows:
Section 1. DEFINITIONS; RULES OF CONSTRUCTION.
1.1 Definitions. As used herein, the following terms have the meanings set forth below:
Acquisition: a transaction or series of related transactions resulting in (a) the acquisition of (i) a business or division of another Person or (ii) substantially all assets of another Person; (b) record or beneficial ownership of 50% or more of the Equity Interests of a Person (other than another Obligor); or (c) merger, consolidation or combination of an Obligor or Subsidiary with another Person.
Administrative Agent: as defined in the introductory paragraph hereof and subject to Section 12.8.
Administrative Agent Indemnitees: Administrative Agent and its officers, directors, employees, Affiliates and Administrative Agent Professionals.
Administrative Agent Professionals: attorneys, accountants, advisors, and agents of Administrative Agent.
Affected Financial Institution: any EEA Financial Institution or UK Financial Institution.
Affiliate: with respect to a specified Person, any other Person that directly, or indirectly through intermediaries, Controls, is Controlled by or is under common Control with the specified Person. Without limitation to the foregoing, any Person that directly or indirectly holds 20% or more of the Equity Interests of another Person shall be deemed to be an Affiliate of that Person for purposes of this Agreement. For the avoidance of doubt, Excluded Subsidiaries are Affiliates of Obligors.
Agent: means, collectively, Collateral Agent and Administrative Agent.
Agent Professionals: means Administrative Agent Professionals and Collateral Agent Professionals.
Agreement: as defined in the introductory paragraph hereof.
Anti-Corruption Law: any law relating to bribery or corruption, including the U.S. Foreign Corrupt Practices Act of 1977, UK Bribery Act 2010 and Patriot Act.
Anti-Terrorism Law: any law relating to terrorism or money laundering, including the Patriot Act.
Applicable Law: all laws, rules, regulations and governmental guidelines applicable to the Person or matter in question, including statutory law, common law and equitable principles, as well as (i) provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities and (ii) programs, permits and guidance promulgated by regulators.
Applicable Margin: for any day, (i) for any Base Rate Loans, 2.00% per annum, and (ii) for any Term SOFR Loans, 3.00% per annum.
Applicable Office: the office (including any domestic or foreign Affiliate or branch) designated as such by a Lender by notice to the Administrative Agent.
Approved Fund: any entity owned or Controlled by a Lender or Affiliate of a Lender, if such entity is engaged in making or investing in commercial loans in its ordinary course of activities.
Arranger Indemnitees: Arrangers and their officers, directors, employees, Affiliates, agents, advisors, attorneys, consultants, service providers and other representatives.
Arrangers: Goldman Sachs Bank USA and Banco Santander, S.A., New York, in their capacities as joint lead arrangers and joint bookrunners.
Assignment: an assignment agreement between a Lender and Eligible Assignee, in the form of Exhibit A or otherwise reasonably satisfactory to Administrative Agent.
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Attorney Costs: includes all reasonable and documented fees, expenses and disbursements of any law firm or other external legal counsel.
Available Tenor: as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Interest Period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.17.2.
Bail-In Action: the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
Bail-In Legislation: with respect to (a) 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, or (b) the United Kingdom, Part I of the United Kingdom Banking Act 2009 and any other law applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
Bankruptcy Code: Title 11 of the United States Code.
Base Rate: for any day, a per annum rate equal to the greater of (a) the Prime Rate for such day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) Term SOFR for a one-month interest period as of such day, plus 1.0%; provided, that in no event shall the Base Rate be less than the Floor.
Base Rate Loan: a Loan that bears interest based on the Base Rate.
Benchmark: initially, the Term SOFR Screen Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Screen Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.17.2.
Benchmark Replacement: with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark 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 benchmark rate as a replacement to the then-current Benchmark for dollar-denominated syndicated credit facilities and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
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Benchmark Replacement Adjustment: with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, 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 the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) 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 such Benchmark with the applicable Unadjusted Benchmark Replacement for dollar-denominated syndicated credit facilities at such time.
Benchmark Replacement Date: the earlier to occur of the following events with respect to the then-current Benchmark:
(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 such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which all Available Tenors of such Benchmark (or the published component used in the calculation thereof) has been or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) have been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
Benchmark Transition Event: the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
4
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, if such Benchmark is a term rate, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
Benchmark Transition Start Date: in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) 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).
Benchmark Unavailability Period: the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any other Loan Document in accordance with Section 2.17.2 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any other Loan Document in accordance with Section 2.17.2.
Beneficial Ownership Certification: a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation, in form and substance reasonably satisfactory to each Lender.
Beneficial Ownership Regulation: as defined in 31 C.F.R. §1010.230.
Benefit Plan: any (a) employee benefit plan (as defined in ERISA) subject to Title I of ERISA, (b) plan (as defined in and subject to Section 4975 of the Code), or (c) Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such employee benefit plan or plan.
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Borrowed Money: with respect to Parent or any of its Subsidiaries, without duplication, (a) any obligation that (i) arises from the lending of money by any Person to Parent or such Subsidiaries, (ii) is evidenced by notes, loan agreements, drafts, bonds, debentures, credit documents or similar instruments, (iii) accrues interest or is a type upon which interest charges are customarily paid (excluding trade payables owing in the Ordinary Course of Business and not more than 60 days past due), or (iv) was issued or assumed as full or partial payment for Property or services; (b) Capital Leases; (c) letter of credit reimbursement obligations; and (d) guaranties of any of the foregoing owing by another Person. For the avoidance of doubt, “Borrowed Money” shall not include obligations arising under “operating leases” as defined in Accounting Standards Codification (“ASC”) 842.
Borrower: as defined in the introductory paragraph hereof.
Borrower Materials: Compliance Certificates, Notices of Borrowing, Notices of Conversion/Continuation, and other information, reports, financial statements and materials delivered by Obligors under the Loan Documents, as well as Reports and other information provided at Borrower’s discretion by Administrative Agent to Lenders in connection with the credit facility established by this Agreement.
Borrowing: Loans made or converted together on the same day, with the same interest option and, if applicable, Interest Period.
Budget: as of any date, a twelve-month budget of the Borrower, presented on a quarterly basis, which shall set forth in reasonable detail the projected plan and forecast (including projected consolidated balance sheet, income statement and funds flow statement) of the Borrower for the period of four fiscal quarters commencing with the fiscal quarter in which such Budget is delivered.
Business Day: any day except a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, New York City.
Capital Lease Obligations: of any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as finance leases on a balance sheet of such Person under GAAP (a “Capital Lease”), and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP (but excluding, for the avoidance of doubt, “operating leases” as defined in ASC 842).
Capital Stock: means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
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Cash Adjustment: as of any date, the lesser of (a) $50,000,000 and (b) the amount on such date of unrestricted cash and cash equivalents of the Borrower and its Subsidiaries in deposit accounts and securities accounts (other than Excluded Accounts) of the Borrower and its Subsidiaries; provided that, from and after the date that is 60 days after the Closing Date (or such later date as the Administrative Agent may agree to in its reasonable discretion), such accounts are subject to a perfected Lien in favor of the Collateral Agent (such amount in this clause (b), the “Liquidity Amount”).
Casualty Event: any loss, casualty or other insured damage to, or any nationalization, taking under power of eminent domain or by condemnation or similar proceeding of, any Property of the Borrower or any of its Subsidiaries having a fair market value in excess of $5,000,000.
CAT Facility: Master Loan Agreement, dated as of September 26, 2024, by and between Caterpillar Financial Services Corp. and Project G Buyer, LLC, a Texas limited liability company (as successor-in-interest to Focus Genco LLC), as amended, restated, amended and restated, supplemented, or otherwise modified from time to time to the extent permitted hereunder, including by the Waiver and First Amendment to Master Loan Agreement, dated as of January 30, 2025, the Second Amendment to the Master Loan Agreement, dated as of March 20, 2025, and the Third Amendment to the Master Loan Agreement, dated as of March 16, 2026.
CERCLA: the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. §9601 et seq.).
Change in Law: the occurrence, after the date hereof, of (a) the adoption, taking effect or phasing in of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof; or (c) the making, issuance or application of any request, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided, that “Change in Law” shall include, regardless of the date enacted, adopted or issued, all requests, rules, guidelines, requirements or directives (i) under or relating to the Dodd-Frank Wall Street Reform and Consumer Protection Act, or (ii) promulgated pursuant to Basel III by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any similar authority) or any other Governmental Authority.
Change of Control: the occurrence of any of the following events or series of events:
(a) Parent shall cease to be the sole managing member of Borrower; or
(b) Except in a transaction expressly permitted under the Loan Documents and after giving effect thereto, Borrower shall cease to own 100% of the Equity Interests of another Obligor; or
(c) any Person (excluding any Qualifying Owner or any group of Qualifying Owners acting together which would constitute a “group” for purposes of Section 13(d) of the Securities Exchange Act, and excluding a corporation or other entity owned, directly or indirectly, by the stockholders of Parent in substantially the same proportions as their ownership of stock of Parent) is or becomes the beneficial owner, directly or indirectly, of securities of Parent representing more than 50% of the combined voting power of Parent’s then outstanding voting securities; or
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(d) there is consummated a merger or consolidation of Parent with any other corporation or other entity, and, immediately after the consummation of such merger or consolidation, the voting securities of Parent immediately prior to such merger or consolidation do not continue to represent or are not converted into more than 50% of the combined voting power of the then-outstanding voting securities of the Person resulting from such merger or consolidation or, if the surviving company is a Subsidiary, the ultimate parent thereof; or
(e) the stockholders of Parent approve a plan of complete liquidation or dissolution of Parent or there is consummated an agreement or series of related agreements for the sale or other disposition, directly or indirectly, by Parent of all or substantially all of Parent’s assets, other than such sale or other disposition by Parent of all or substantially all of Parent’s assets to an entity, at least 50% of the combined voting power of the voting securities of which are owned by stockholders of Parent in substantially the same proportions as their ownership of Parent immediately prior to such sale; or
(f) a “change of control” or similar event occurs under any Material Debt.
Notwithstanding the foregoing, except with respect to clause (b) above, a Change of Control shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the record holders of the shares of Parent immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in, and own substantially all of the shares of, an entity which owns, either directly or through a Subsidiary, all or substantially all of the assets of Parent immediately following such transaction or series of transactions.
Claims: all claims, liabilities, obligations, losses, damages, penalties, judgments, proceedings, interest, costs and expenses of any kind (including remedial response costs, reasonable and documented out-of-pocket attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment of the Obligations or exit of Administrative Agent or any Lender) incurred by or asserted against any Indemnitee by an Obligor or other Person, relating to any (a) Loan, Loan Document, Borrower Materials or related transaction, (b) action taken or omitted in connection with this credit facility, (c) existence or perfection of Liens or realization on Collateral, (d) exercise of rights or remedies under a Loan Document or Applicable Law, (e) failure by an Obligor to perform or observe any term of a Loan Document, or (f) reliance by an Indemnitee on an electronic signature, record or Communication, in each case including all costs and expenses relating to any investigation, litigation, arbitration or other proceeding (including an appeal or Insolvency Proceeding), whether or not an Indemnitee or Obligor is a party.
Closing Date: as defined in Section 6.1.
CME: CME Group Benchmark Administration Limited.
Code: the Internal Revenue Code of 1986, as amended from time to time.
Collateral: all Property described in the Security Agreement and any Security Documents as security for any Obligations, and all other Property that now or hereafter secures (or is intended to secure) any Obligations, in each case, other than Excluded Property.
Collateral Agent: as defined in the introductory paragraph hereof and subject to Section 12.8.
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Collateral Agent Indemnitees: Collateral Agent and its officers, directors, employees, Affiliates and Collateral Agent Professionals.
Collateral Agent Professionals: attorneys, accountants, advisors, and agents of Collateral Agent.
Colusa Acquisition: the acquisition by Solaris Power Solutions, LLC of certain assets pursuant to that certain Contract Agreement No. 0627-2025, dated as of June 27, 2025 (as amended, restated, supplemented and/or otherwise modified from time to time), between Colusa Power Infrastructure Partners, LLC, a Delaware limited liability company (“Colusa”) and Baker Hughes Energy Services LLC, a Delaware limited liability company (“Baker Hughes”), as assigned, transferred, novated, conveyed, and/or delivered to Solaris Power Solutions by that certain Assignment, Assumption, Novation and Amendment Agreement, dated as of March 13, 2026, by and among Colusa, Solaris Power Solutions, and Baker Hughes.
Commitment: with respect to each Lender, its commitment to make Loans in an aggregate amount not to exceed the amount set forth opposite such Lender’s name on Schedule 1.1 under the caption “Commitment”; provided that such commitment shall be automatically terminated upon the funding of the Loans pursuant to Section 2.1. The aggregate amount of the Lenders’ Commitments on the Closing Date (prior to funding of the Loans) is $300,000,000.
Commodity Exchange Act: the Commodity Exchange Act (7 U.S.C. §1 et seq.).
Communication: any notice, request, election, representation, certificate, report, disclosure, statement, authorization, approval, consent, waiver, document, amendment or transmittal of information of any kind in connection with a Loan Document, including any Borrower Materials or Modification of a Loan Document.
Compliance Certificate: a certificate, in the form of Exhibit B or otherwise reasonably satisfactory to the Administrative Agent, by which Obligors (a) make certain representations and warranties, (b) certify (i) the calculations of the Interest Coverage Ratio, Secured Leverage Ratio and Total Leverage Ratio and compliance with Section 10.3, (ii) as to whether a Default has occurred and is continuing and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (iii) certain financial statements, and (c) state whether any change in GAAP or in the application thereof has occurred since the Closing Date or the date of the last Compliance Certificate and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate and (d)(i) setting forth as of such date, a true and complete list of all Material Contracts, which shall be in the form of a supplement to Schedule 9.1.22 and (ii) attaching true, correct and complete copies of (A) any Material Contracts entered into since the later of the Closing Date and the date of the previous Compliance Certificate and (B) any material amendment, supplement or modification to any existing Material Contract that has not previously been provided (including by public filing) or that has been entered into since the date of the previous Compliance Certificate.
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Conforming Changes: with respect to use, administration of or conventions associated with SOFR, Term SOFR or any proposed Benchmark Replacement, as applicable, any conforming changes to the definitions of Base Rate, SOFR, Term SOFR and Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of Business Day and U.S. Government Securities Business Day, timing of borrowing requests or prepayment, conversion or continuation notices, and length of lookback periods) as may be appropriate, in Administrative Agent’s reasonable discretion, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as Administrative Agent determines is reasonably necessary in connection with the administration of any Loan Document).
Consolidated Net Tangible Assets: as of any date of determination, for Parent, Borrower and Subsidiaries of Parent or Borrower, on a consolidated basis, the aggregate amount of total assets included in such Persons’ most recent quarterly or annual consolidated balance sheet prepared in accordance with GAAP less applicable reserves reflected in such balance sheet, after deducting the following amounts: (a) all current liabilities reflected in such balance sheet, (b) all goodwill, trademarks, patents, unamortized debt discounts and expenses and other like intangibles reflected in such balance sheet, and (c) to the extent included in such Persons’ most recent quarterly or annual consolidated balance sheet, all such assets of any Subsidiary that is not a Wholly-Owned Subsidiary of a Borrower.
Control: possession, directly or indirectly, of the power to direct or cause direction of a Person’s management or policies, whether through the ability to exercise voting power, by contract or otherwise.
Covered Party: as defined in Section 14.19.
Current Expected Credit Loss Standard: Accounting Standards Codification 326, which sets forth ASU 2016-13, Financial Instruments-Credit Losses (Topic 326); Measurement of Credit Losses on Financial Instruments.
Debt: as applied to any Person, without duplication, (a) all Borrowed Money; (b) all Guarantees; (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; (d) in the case of an Obligor, the Obligations; (e) all obligations to pay the deferred purchase price of Property or services, including any purchase price adjustments or earnouts and indemnities with respect to the purchase of Property or services, but excluding current accounts payable incurred in the Ordinary Course of Business; (f) all obligations created or arising under any conditional sale or other title retention agreement, regardless of whether the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property; (g) all obligations, whether or not contingent, in respect of Disqualified Equity Interests valued at, in the case of redeemable preferred Equity Interests, the greater of the voluntary liquidation preference and the involuntary liquidation preference of such Equity Interests plus accrued and unpaid dividends; and (h) all payments that would be required to be made in respect of any Swap after giving effect to any netting agreement with respect thereto in the event of a termination (including an early termination) on the date of determination; provided, that, for purposes of this clause (h), the obligation or option of the Borrower to deliver
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Equity Interests or cash in full or partial satisfaction of Debt incurred pursuant to Section 10.2.1(f) shall not constitute a payment required to be made in respect of a Swap. The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer. For the avoidance of doubt, “Debt” shall not include obligations arising under “operating leases” as defined in ASC 842. For the avoidance of doubt, no Permitted Capped Call Transaction shall be considered Debt of the Parent.
Default: an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default.
Default Rate: for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate or fee (including margin) otherwise applicable thereto.
Deposit Account Control Agreement: control agreement reasonably satisfactory to Collateral Agent executed by an institution maintaining a Deposit Account for an Obligor, to perfect Collateral Agent’s Lien on such account.
Disposition: the sale, transfer, license, lease, consignment or other disposition (in one transaction, a series of transactions or otherwise) of property of a Person, including a sale-leaseback transaction, synthetic lease, issuance of Equity Interests by a subsidiary, Division, or sale, assignment, transfer or other disposal, with or without recourse, of any notes, accounts receivable or related rights.
Disqualified Equity Interests: any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to 180 days after the Termination Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt or (ii) any Equity Interests referred to in clause (a) above, in each case at any time on or prior to 180 days after the Termination Date, or (c) contains any mandatory repurchase obligation which may come into effect prior to Full Payment of all Obligations; provided, that any Equity Interests that would not constitute Disqualified Equity Interests but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Equity Interests upon the occurrence of a change in control or an asset sale occurring prior to the 180 days after the Termination Date shall not constitute Disqualified Equity Interests if such Equity Interests provide that the issuer thereof will not redeem any such Equity Interests pursuant to such provisions prior to the Full Payment of the Obligations.
Division: the division of assets, liabilities and/or obligations of a Person among two or more Persons (whether pursuant to a “plan of division” or similar arrangement, including under Texas law with respect to a divisive merger), which may or may not include the original dividing Person and pursuant to which the original dividing Person may or may not survive.
Dollars: lawful money of the United States.
Domestic Subsidiary: any Subsidiary that is not a Foreign Subsidiary.
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EBITDA: without duplication, for any period:
(a) the consolidated net income (excluding any extraordinary, unusual or non-recurring gains, losses or expenses) of Parent and its Wholly-Owned Subsidiaries (which for this purpose shall include Borrower); plus
(b) to the extent deducted in calculating such consolidated net income, (i) depreciation, amortization, and other non-cash items (including, for the avoidance of doubt, non-cash expenses accrued in accordance with the Current Expected Credit Loss Standard), (ii) Interest Expense, (iii) federal and state income tax expense (or, without duplication, Permitted Tax Distributions) (including state margin, franchise, gross receipts or similar Taxes), (iv) [reserved], and (v) fees and expenses related to the Transactions, the Genco Acquisition, the Genco Facilities, or the Colusa Acquisition, in each case on or prior to the Closing Date in an aggregate amount not exceeding $16,000,000, minus,
(c) to the extent added in calculating such consolidated net income, any non-cash income; plus
(d) the net income of any Person in which the Borrower or any of its Subsidiaries has a joint interest with a third party (including any Person that is a Subsidiary that is not Wholly-Owned and including any Excluded Subsidiary) but only to the extent such income (i) is actually paid in cash to the Borrower or any of its Wholly-Owned Subsidiaries by dividend or other distribution during such period and (ii) is at the time such distribution or dividend is made, permitted under such Person’s charter or any organizational agreement and not prohibited by any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Person, provided that the amount included as EBITDA pursuant to this clause (d) shall not exceed 30% of unadjusted EBITDA for such period.
Notwithstanding the foregoing, income relating to the Management Agreement and other fees from Excluded Subsidiaries shall only be included in EBITDA to the extent received by an Obligor in cash.
EEA Financial Institution: (a) any credit institution or investment firm established in an EEA Member Country that is subject to the supervision of an EEA Resolution Authority; (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) above; or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in the foregoing clauses and is subject to consolidated supervision with its parent.
EEA Member Country: any of the member states of the European Union, Iceland, Liechtenstein and Norway.
EEA Resolution Authority: any public administrative authority or any Person entrusted with public administrative authority of an EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Electronic Copy: as defined in Section 14.8.
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Electronic Record and Electronic Signature: as defined in 15 U.S.C. §7006.
Eligible Assignee: (a) a Lender, Affiliate of a Lender or Approved Fund that satisfies Section 12.13; (b) an assignee approved by Borrower (which approval shall not be unreasonably withheld or delayed, and shall be deemed given if no objection is made within ten (10) Business Days after written notice of the proposed assignment) and Administrative Agent; or (c) during an Event of Default, any Person to whom assignment would not violate Applicable Laws.
Enforcement Action: any action to enforce any Obligations or Loan Documents or to exercise any rights or remedies relating to any Collateral, whether by judicial action, self-help, notification of Account Debtors, setoff or recoupment, credit bid, deed in lieu of foreclosure, action in an Insolvency Proceeding or otherwise.
Environmental Laws: Applicable Laws relating to public health (other than occupational safety and health regulated by OSHA and in so far as relates to exposure to Hazardous Materials) or the protection or pollution of the environment, including the Resource Conservation and Recovery Act (42 U.S.C. §§6991-6991i), Clean Water Act (33 U.S.C. §1251 et seq.) and CERCLA.
Environmental Liability: any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Obligor or Subsidiary resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) a Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is expressly assumed or imposed with respect to any of the foregoing.
Equity Interest: the interest of any (a) shareholder in a corporation; (b) partner in a partnership (whether general, limited, limited liability or joint venture); (c) member in a limited liability company; or (d) other Person having any other form of equity security or ownership interest, including without limitation, warrants, options, or other rights to purchase or acquire, and securities convertible into or exchangeable for, an equity security or ownership interest, provided that instruments evidencing Borrowed Money that by their terms are convertible or exchangeable into or for Equity Interests and/or cash or any combination thereof shall not constitute Equity Interests under this definition prior to the settlement, conversion, exchange or exercise thereof into or for interests that would otherwise constitute Equity Interests under this definition.
ERISA: the Employee Retirement Income Security Act of 1974.
ERISA Affiliate: any trade or business (whether or not incorporated) under common control with an Obligor within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
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ERISA Event: (a) a Reportable Event with respect to a Pension Plan; (b) withdrawal of an Obligor or ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) complete or partial withdrawal of an Obligor or ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (d) filing of a notice of intent to terminate, treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, or institution of proceedings by the PBGC to terminate a Pension Plan; (e) determination that a Pension Plan is considered an at-risk plan or a plan in critical or endangered status under the Code or ERISA; (f) an event or condition that constitutes grounds under Section 4042 of ERISA for termination of, or appointment of a trustee to administer, any Pension Plan; (g) imposition of any liability on an Obligor or ERISA Affiliate under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA; or (h) failure by an Obligor or ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or to make a required contribution to a Multiemployer Plan.
Erroneous Payment: as defined in Section 12.10.2(a).
Erroneous Payment Subrogation Rights: as defined in Section 12.10.2(d).
EU Bail-In Legislation Schedule: the EU Bail-In Legislation Schedule published by the Loan Market Association, as in effect from time to time.
Event of Default: as defined in Section 11.1.
Excluded Account: any Deposit Account (a) exclusively used for purposes of (i) funding payroll, (ii) payroll taxes or (iii) employee benefit payments; provided that the aggregate amount of cash and cash qualified in Excluded Accounts pursuant to clause (a)(i) shall not exceed the Borrower’s good faith estimate of one month of payroll at any time, (b) constituting zero-balance disbursement accounts, and (c) constituting petty cash accounts containing not more than $250,000 on deposit therein at any time (but no more than $500,000 for all such accounts in the aggregate).
Excluded Property: each of the following: (a) (i) all leasehold estates with respect to office space used by Borrower or any of its Subsidiaries and (ii) all other real property interests (other than Material Real Estate), (b) (i) all light-duty vehicles, including F-150s, F-250s and F-350s and similar trucks, and (ii) other motor vehicles having an aggregate book value of not greater than $5,000,000; provided that trailers shall not constitute “Excluded Property”, (c) Commercial Tort Claims having an aggregate book value of not greater than $100,000, (d) the outstanding voting Equity Interests in each Foreign Subsidiary or Foreign Subsidiary Holdings Company which is owned directly by Borrower or any of its Domestic Subsidiaries in excess of 65% of issued and outstanding voting Equity Interests of such Foreign Subsidiary or such Foreign Subsidiary Holdings Company, and Equity Interests issued by Foreign Subsidiaries or Foreign Subsidiary Holdings Companies that are owned by Foreign Subsidiaries, (e) any property owned by an Excluded Subsidiary or any Foreign Subsidiary, (f) any property with respect to which the Borrower and Collateral Agent reasonably determine, in writing, that the cost or other consequence of obtaining a Lien thereon or perfection thereof is excessive in relation to the benefit to the secured party of the security to be afforded thereby, (g) any asset in respect of which granting a Lien to the Agent or the pledge or creation of a security interest in which (x) is restricted by applicable laws or (y) would require governmental or third party (other than Parent, the Borrower, or any of its Subsidiaries) consent, approval, license or authorization that has not been obtained, in each case
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of clauses (x) and (y), to the extent that such prohibition or limitation existed at the time of the acquisition thereof or entry into of the contract with such third party in respect of such asset and was not created or made binding on the assets in contemplation of or in connection with the acquisition of such assets, applicable law or regulation (in each case, except to the extent such prohibition or limitation (i) could be waived by an Obligor or any Subsidiary, (ii) is the result of an attempt to circumvent the collateral requirements of the Loan Documents or (iii) is rendered ineffective under the UCC (including, without limitation, pursuant to Sections 9.406, 9.407, 9.408 or 9.409 of the UCC, and any successor provision thereto) or other applicable law notwithstanding such prohibition); provided, that the foregoing shall cease to be treated as “Excluded Property” (and shall constitute Collateral) immediately at such time as the restriction, prohibition and/or requirement of consent shall no longer be applicable and to the extent severable, such security interest shall attach immediately to any portion of such asset not subject to the prohibitions specified above and (h) until the termination of the Genco Facilities and the release of the Liens granted thereunder, the Specified Genco Assets; provided, further, that, notwithstanding the foregoing in each case, “Excluded Property” shall not include any proceeds, products, substitutions or replacements of Excluded Property, including monies due or to become due to an Obligor (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property).
Excluded Subsidiary: collectively, Stateline Power, LLC, a Texas limited liability company, and Solaris Power Solutions Stateline, LLC, a Delaware limited liability company.
Excluded Taxes: means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by a Recipient’s net income (however denominated), franchise Taxes and branch profits Taxes (i) as a result of such Recipient being organized under the laws of, or having its principal office or applicable Lending Office located in, the jurisdiction imposing such Tax, or (ii) constituting Other Connection Taxes; (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of a Lender with respect to its interest in a Loan or Commitment pursuant to a law in effect when the Lender acquires such interest (except pursuant to an assignment request by Borrower under Section 13.4) or changes its Lending Office, unless the Taxes were payable to its assignor immediately prior to such assignment or to the Lender immediately prior to its change in Lending Office; (c) withholding Taxes imposed pursuant to FATCA; and (d) Taxes attributable to a Recipient’s failure to comply with Section 2.13.6.
Extraordinary Expenses: all costs, expenses or advances incurred by any Agent Indemnitee during an Event of Default or Obligor’s Insolvency Proceeding, including those relating to any (a) audit, inspection, repossession, storage, repair, appraisal, insurance, processing, preparation or advertising for sale, sale, collection, or other preservation of or realization upon Collateral; (b) action, arbitration or other proceeding (whether instituted by or against Administrative Agent, Collateral Agent, any Lender, any Obligor, any creditor(s) of an Obligor or any other Person) in any way relating to any Collateral, Collateral Agent’s Liens, Loan Documents or Obligations, including any lender liability or other Claims; (c) Enforcement Action or exercise of any rights or remedies in, or the monitoring of, an Insolvency Proceeding; (d) settlement or satisfaction of taxes, charges or Liens with respect to any Collateral; and (e) negotiation and documentation of any Modification, workout, restructuring, forbearance, liquidation or collection with respect to any Loan Document, Collateral or Obligations. Such costs, expenses and advances include transfer fees, Other Taxes, storage and insurance costs, permit fees, utility expenses, legal and accounting fees and expenses, appraisal costs, brokers’ and auctioneers’ commissions, environmental study costs, wages and salaries paid to employees of any Obligor or independent contractors in liquidating Collateral, and travel expenses.
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FATCA: Sections 1471 through 1474 of the Code (including any amended or successor version if substantively comparable and not materially more onerous to comply with), any agreement entered into pursuant to Section 1471(b)(1) of the Code, and any applicable treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an applicable intergovernmental agreement between the U.S. and any other jurisdiction which (in either case) facilitates the implementation of the foregoing.
Federal Funds Rate: for any day, the per annum rate calculated by FRBNY based on such day’s federal funds transactions by depository institutions (as determined in such manner as FRBNY shall set forth on its public website from time to time) and published on the next Business Day by FRBNY as the federal funds effective rate; provided, that in no event shall the Federal Funds Rate be less than the Floor.
Financial Officer: the chief financial officer, principal accounting officer, treasurer or controller of the applicable Obligor.
Fiscal Quarter: each period of three months, commencing on the first day of a Fiscal Year.
Fiscal Year: the fiscal year of Obligors and Subsidiaries for accounting and tax purposes, ending on December 31 of each year.
Flood Laws: the National Flood Insurance Act of 1968, Flood Disaster Protection Act of 1973 and related laws.
Floor: 0.00%.
FLSA: the Fair Labor Standards Act of 1938.
Foreign Plan: any employee benefit plan or arrangement (a) maintained or contributed to by any Obligor or Subsidiary that is not subject to the laws of the United States; or (b) mandated by a government other than the United States for employees of any Obligor or Subsidiary.
Foreign Subsidiary: a Subsidiary that is a “controlled foreign corporation” under Section 957 of the Code, such that a guaranty by such Subsidiary of the Obligations or a Lien on the assets of such Subsidiary to secure the Obligations would reasonably be expected to result in material tax liability to Borrower (or the regarded owner of any Borrower if a Borrower is a partnership or disregarded entity for US income tax purposes).
Foreign Subsidiary Holding Company: any Subsidiary substantially all of the assets of which are Equity Interests (including any debt instrument treated as equity for U.S. federal income tax purposes) or Equity Interests and debt of one or more (x) Foreign Subsidiaries and (y) other Subsidiaries that are Foreign Subsidiary Holding Companies pursuant to clause (x) of this definition.
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FRBNY: the Federal Reserve Bank of New York.
Full Payment: with respect to any Obligations, the full and indefeasible cash payment thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding (whether or not allowed in the proceeding).
GAAP: generally accepted accounting principles in effect in the United States from time to time, subject to Section 1.2.
Genco Acquisition: the acquisition of Focus Genco Cayman Ltd., an exempted company with limited liability organized under the Laws of the Cayman Islands (“Focus Genco”) by Genco Buyer pursuant to that certain Securities Purchase Agreement, dated as of March 16, 2026, among the Borrower, Genco Buyer, the parties thereto as “Sellers,” Focus Genco, Alan Zelazo, as seller representative, and Parent.
Genco Acquisition Steps: the structure steps to effectuate the Genco Acquisition described in the steps plan dated March 8, 2026, previously shared with the Administrative Agent.
Genco Buyer: Project G Buyer, LLC, a Texas limited liability company.
Genco Facilities: the Stonebriar Facility and the CAT Facility.
Governmental Approvals: all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and required reports to, all Governmental Authorities.
Governmental Authority: any federal, state, local, foreign or other agency, authority, body, commission, court, instrumentality, political subdivision, central bank, or other entity or officer exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions for any governmental, judicial, investigative, regulatory or self-regulatory authority (including the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies such as the European Union or European Central Bank).
Guarantee: of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Debt or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Debt or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Debt or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Debt or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the Ordinary Course of Business.
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Guarantors: each Subsidiary of the Borrower that guarantees payment or performance of Obligations, including as of the Closing Date, for the avoidance of doubt, the Subsidiaries of the Borrower party to this Agreement on the Closing Date.
Guaranty: each guaranty agreement executed by a Guarantor in favor of Collateral Agent, including the Security Agreement.
Hazardous Materials: all hazardous, toxic, explosive or radioactive substances or wastes, and all other chemicals, pollutants, contaminants, substances or wastes of any nature regulated under any Environmental Law because of their hazardous, toxic, dangerous or deleterious characteristics or properties, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas and toxic mold.
Immaterial Subsidiary: subject to Section 10.2.15, any (a) Domestic Subsidiary which (i) for any twelve (12) month period ending on the last day of any Fiscal Quarter had less than $10,000 of revenues and (ii) as of the last day of such Fiscal Quarter was the owner of less than $25,000 of assets, (b) any Foreign Subsidiary, which as of the last day of such fiscal quarter was the owner of less than $15,000,000 of assets all as shown on the consolidated financial statements of Obligors, and (c) until March 31, 2026, Focus Genco, so long as Focus Genco owns no assets on and after the Closing Date. All Immaterial Subsidiaries as of the Closing Date, other than the Guarantors, are identified as such on Schedule 9.1.12 attached hereto.
Indemnified Liability: as defined in Section 14.2.
Indemnified Taxes: (a) Taxes, other than Excluded Taxes, imposed on or relating to any payment of an Obligation; and (b) to the extent not otherwise described in clause (a), Other Taxes.
Indemnitees: Agent Indemnitees, Lender Indemnitees, Collateral Agent Indemnitees and Arranger Indemnitees.
Insolvency Proceeding: any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an order for relief under the Bankruptcy Code, or any other insolvency, debtor relief or debt adjustment law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator or other custodian for such Person or any part of its Property; or (c) an assignment or trust mortgage for the benefit of creditors.
Intellectual Property: all intellectual and similar Property of a Person, including inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets, confidential or proprietary information, customer lists, know-how, software and databases; all embodiments or fixations thereof and all related documentation, applications, registrations and franchises; all licenses or other rights to use any of the foregoing; and all books and records relating to the foregoing.
Interest Coverage Ratio: the ratio, determined on a consolidated basis for Parent and its Subsidiaries for the most recent 12 months, of (a) EBITDA to (b) Interest Expense.
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Interest Expense: for any period, total interest expense accruing on Debt of Parent and its Subsidiaries, on a consolidated basis, during such period (including interest expense attributable to Capital Lease Obligations and amounts attributable to interest incurred under Swaps), determined in accordance with GAAP.
Interest Payment Date: (a) for each Term SOFR Loan, the last day of the applicable Interest Period; and (b) for all other Loans, the last day of each Fiscal Quarter.
Interest Period: a period of one, three or six months applicable to each Term SOFR Loan; provided, that (a) the Interest Period shall begin on the date the Loan is made or continued as, or converted into, a Term SOFR Loan, and shall expire one, three or six months thereafter, as applicable; (b) if any Interest Period begins on the last day of a calendar month or on a day for which there is no numerically corresponding day in the calendar month at its end, or if such corresponding day falls after the last Business Day of the end month, then the Interest Period shall expire on the end month’s last Business Day; and if any Interest Period would otherwise expire on a day that is not a Business Day, the period shall expire on the next Business Day; and (c) no Interest Period shall extend beyond the Termination Date.
Investment: as defined in Section 10.2.4.
IRS: the United States Internal Revenue Service and any Governmental Authority succeeding to any of its principal functions under the Code.
Lender Indemnitees: Lenders and their officers, directors, employees, Affiliates, agents, advisors, attorneys, consultants, service providers and other representatives.
Lenders: lenders party to this Agreement and any Person who hereafter becomes a “Lender” pursuant to an Assignment, including any Lending Office of the foregoing.
Lending Office: the office (including any domestic or foreign Affiliate or branch) designated as such by Administrative Agent or a Lender by notice to Borrower and, if applicable, Administrative Agent.
License: any license or agreement under which an Obligor is authorized to use Intellectual Property in connection with any manufacture, marketing, distribution or disposition of Collateral, any use of Property or any other conduct of its business.
Licensor: any Person from whom an Obligor obtains the right to use any Intellectual Property.
Lien: an interest in Property securing an obligation or claim, including any lien, security interest, pledge, hypothecation, assignment, trust, reservation, assessment right, encroachment, easement, right-of-way, covenant, condition, restriction, lease, or other title exception or encumbrance.
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Lien Waiver: an agreement, in form and substance reasonably satisfactory to Collateral Agent, by which (a) for any material Collateral located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and allows Collateral Agent to enter the premises and remove, store and dispose of Collateral; (b) for any Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any Documents in its possession relating to the Collateral as agent for Collateral Agent, and agrees to deliver Collateral to Collateral Agent upon request or provide Collateral Agent access to remove the Collateral; (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges Collateral Agent’s Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver Collateral to Collateral Agent upon request; and (d) for any Collateral subject to a Licensor’s Intellectual Property rights, the Licensor grants to Collateral Agent the right, vis-à-vis such Licensor, to enforce Collateral Agent’s Liens with respect to the Collateral, including the right to dispose of it with the benefit of the Intellectual Property, whether or not a default exists under any applicable License.
Loan: a loan made by a Lender under the credit facility established by this Agreement.
Loan Documents: this Agreement, Other Agreements and Security Documents.
Management Agreement: that certain Agreement for Shared Management Services dated as of April 28, 2025, by and between Stateline Power, LLC, a Texas limited liability company and Solaris Power Solutions Stateline Operating, LLC, a Delaware limited liability company, as in effect on the date hereof.
Margin Stock: as defined in Regulation U of the Federal Reserve Board of Governors.
Material Adverse Effect: the effect of any event or circumstance that, taken alone or in conjunction with other events or circumstances, (a) has or could be reasonably expected to have a material adverse effect on the business, operations, Properties or financial condition of the Obligors and their Subsidiaries, taken as a whole, the value of any material Collateral, the enforceability of any Loan Document, or the validity or priority of Collateral Agent’s Lien on any Collateral; or (b) impairs the ability of the Obligors, taken as a whole, to perform their obligations under the Loan Documents, including repayment of any Obligations; or (c) otherwise impairs the ability of Collateral Agent to enforce or collect any Obligations or to realize upon any Collateral.
Material Contract: the contracts identified on Schedule 9.1.22 and any other contract the breach or termination of which would reasonably be expected to result in a Material Adverse Effect.
Material Debt: Debt (other than the Obligations) of any one or more of Parent, the Obligors or Subsidiaries in an aggregate principal amount exceeding $10,000,000. For purposes of determining Material Debt, the “principal amount” of the obligations of any Obligor or Subsidiary in respect of any Swap at any time shall be the Swap Termination Value of such Swap.
Material Real Estate: Real Estate with a fair market value in excess of $12,000,000 individually (or $22,000,000, in the aggregate).
Modification: any amendment, supplement, extension, approval, consent, waiver, change or other modification of a Loan Document, including any waiver of a Default or Event of Default.
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Moody’s: Moody’s Investors Service, Inc. or any successor acceptable to Administrative Agent.
Mortgage: a mortgage, deed of trust or similar security interest on Real Estate granted to Collateral Agent by an Obligor to secure any Obligations.
Multiemployer Plan: any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which an Obligor or ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
Net Proceeds: proceeds (including, when received, any deferred or escrowed payments) received by Parent, an Obligor or Subsidiary in cash from a Disposition, Casualty Event, incurrence of Debt, Equity Issuance or any other sale, lease, conveyance, disposition or other transfer of property, net of (a) reasonable and customary costs and expenses actually incurred in connection therewith, including legal fees and sales commissions; (b) amounts applied to repayment of Debt secured by a Permitted Lien senior to Collateral Agent’s Liens on Collateral sold; (c) Taxes paid or payable by Obligors as a result thereof (after taking into account any available tax credits or deductions and any tax-sharing arrangements), including sales, use, transfer or similar taxes; and (d) reserves for indemnities, until such reserves are no longer needed.
Notice of Borrowing: notice by Borrower of a Borrowing, in form reasonably satisfactory to Administrative Agent.
Notice of Conversion/Continuation: written notice by Borrower for conversion or continuation of a Loan as a Term SOFR Loan, in form reasonably satisfactory to Administrative Agent.
Obligations: all (a) principal of and premium, if any, on the Loans, (b) interest, expenses, fees, indemnification obligations, Claims and other amounts payable by Obligors under Loan Documents, (c) the Obligors’ obligations to pay, discharge and satisfy the Erroneous Payment Subrogation Rights, and (d) other Debts, obligations and liabilities of any kind owing by Obligors pursuant to the Loan Documents, in each case whether now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in any Insolvency Proceeding, whether arising from an extension of credit, loan, guaranty, indemnification or otherwise, and whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several.
Obligor: Borrower and each Guarantor.
Ordinary Course of Business: the ordinary course of business of any Obligor or Subsidiary, undertaken in good faith and consistent with Applicable Law and past practices.
Organic Documents: with respect to any Person, its charter, certificate or articles of incorporation, bylaws, articles of organization, limited liability agreement, operating agreement, members agreement, shareholders agreement, partnership agreement, certificate of partnership, certificate of formation, voting trust agreement, or similar agreement or instrument governing the formation or operation of such Person.
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OSHA: the Occupational Safety and Hazard Act of 1970.
Other Agreement: each fee letter, Lien Waiver, Related Real Estate Document, Borrower Material, Communication, note, assignment, document, instrument or agreement of any kind (other than this Agreement or a Security Document) now or hereafter delivered by an Obligor or other Person (at an Obligor’s direction) to Administrative Agent, Collateral Agent or a Lender in connection with any transaction relating hereto.
Other Connection Taxes: Taxes imposed on a Recipient due to a present or former connection between it and the taxing jurisdiction (other than connections arising from the Recipient having executed, delivered, become party to, performed obligations or received payments under, received or perfected a Lien or engaged in any other transaction pursuant to, enforced, or sold or assigned an interest in, any Loan or Loan Document).
Other Taxes: all present or future stamp, court, 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 Lien under, or otherwise with respect to, any Loan Document, except Other Connection Taxes imposed with respect to an assignment (other than an assignment made at the request of the Borrower pursuant to Section 13.4).
Outbound Investment Rules: the regulations administered and enforced, together with any related public guidance issued, by the United States Treasury Department under U.S. Executive Order 14105 of August 9, 2023, or any similar law or regulation; as of the date of this Agreement, and as codified at 31 C.F.R. § 850.101 et. seq.
Parent: as defined in the introductory paragraph hereof.
Participant: as defined in Section 13.2.1.
Patriot Act: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
Payment Recipient: as defined in Section 12.10.2(a).
PBGC: the Pension Benefit Guaranty Corporation.
Pension Funding Rules: Code and ERISA rules regarding minimum required contributions (including installment payments) to Pension Plans set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
Pension Plan: any employee pension benefit plan (as defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Obligor or ERISA Affiliate or to which the Obligor or ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the preceding five plan years.
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Perfection Certificate: a certificate in form reasonably satisfactory to Agent that provides information with respect to the assets of each Obligor.
Permitted Acquisition: an Acquisition permitted by Section 10.2.4(m).
Permitted Capped Call Transaction: one or more customary capped call share option(s) (or substantively equivalent derivative transaction(s)) relating to the Equity Interests of Parent (or other securities or property following a merger event or other change of the Equity Interests of Parent) entered into and purchased by Parent in connection with the issuance of any Permitted Convertible Debt and settled in Equity Interests (other than Disqualified Equity Interests) of Parent (or such other securities or property), cash or a combination thereof (with the amount of such cash or such combination determined by reference to the market price of such Equity Interests of Parent or such other securities), and cash in lieu of any fractional share; provided that the purchase of any such Permitted Capped Call Transaction is made in full with the net proceeds received in connection with the issuance of such Permitted Convertible Debt; provided further that the other terms, conditions and covenants of such transaction are customary for transactions of such type (as determined by Parent in good faith).
Permitted Convertible Debt: as defined in Section 10.2.17.
Permitted Disposition: a Disposition permitted by Section 10.2.5.
Permitted Encumbrances:
(a)Liens imposed by law for Taxes that are not yet delinquent or are being Properly Contested;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the Ordinary Course of Business and securing obligations that are not overdue by more than 30 days or are being Properly Contested;
(c) pledges and deposits made in the Ordinary Course of Business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;
(d) deposits (including letters of credit) to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds, commodity, currency or other hedges permitted hereunder and other obligations of a like nature, in each case in the Ordinary Course of Business;
(e) judgment liens in respect of judgments that do not constitute an Event of Default and pre-judgment Liens created by or existing from any litigation or legal proceedings that are being Properly Contested, and which would not, upon becoming Liens securing judgments for the payment of money, constitute an Event of Default;
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on Real Estate imposed by law or arising in the Ordinary Course of Business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of any Obligor or Subsidiary;
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(g) Liens in favor of a banking or other financial institution arising as a matter of law or in the Ordinary Course of Business under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and that are within the general parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions;
(h) Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods in the Ordinary Course of Business;
(i) 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;
(j) Liens arising from the filing of precautionary UCC financing statements regarding operating leases or any consignment arrangements;
(k) leases, subleases, licenses, sublicenses granted to others in the Ordinary Course of Business;
(l) any interest or title of a lessor or sublessor, licensor or sublicensor under any lease or license not prohibited by this Agreement or the other Loan Documents; and
(m) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the Ordinary Course of Business and not for speculative purposes.
Permitted Intercompany Note: collectively, the unsecured Debt of Borrower in the form of the 0.25% Convertible Note due 2031 issued by Solaris Energy Infrastructure, LLC to Solaris Energy Infrastructure, Inc. and the 4.75% Convertible Note due 2030 issued by Solaris Energy Infrastructure, LLC to Solaris Energy Infrastructure, Inc., in each case, that was initially incurred to Parent with the issuance by Parent of the Permitted Convertible Debt.
Permitted Investments:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;
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(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within 365 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above;
(e) money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000;
(f) investment funds investing at least 95% of their assets in securities of the types described in clauses (a) through (e) above; and
(g) in the case of any Foreign Subsidiary, other short-term investments that are analogous to the foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such Foreign Subsidiary for cash management purposes.
Permitted Lien: as defined in Section 10.2.2.
Permitted Tax Distributions: (i) for any calendar year or portion thereof during which Borrower is either a pass-through entity for U.S. federal income Tax purposes or filing an affiliated, combined, consolidated, unitary or similar Tax return with or that includes any of its direct or indirect members or partners, payments and distributions to the members or partners of Borrower in an amount not to exceed the product of (a) the highest combined marginal federal and applicable state and local income tax rates for individuals or corporations, if higher, residing in New York, New York (taking into account the character of the taxable income (e.g., long-term capital gain, qualified dividend income, ordinary income, etc.) and the deductibility for individuals (or lack thereof) of state and local income Taxes), multiplied by (b) the total aggregate taxable income of Borrower and its Subsidiaries during the relevant calendar year or portion thereof, calculated without regard to, any Tax deductions or basis adjustments arising under Code Section 743 attributable to the assets of Borrower or its Subsidiaries, and (ii) cash distributions to any direct or indirect members or partners of Borrower to the extent necessary for Parent to make payments when due and payable pursuant to the Tax Receivable Agreement. Notwithstanding the foregoing, payments and distributions to the members or partners of Borrower in respect of the taxable income of Excluded Subsidiaries shall not constitute “Permitted Tax Distributions” except to the extent that a like amount therefor is received by Borrower in cash from such Excluded Subsidiaries.
Person: any individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, Governmental Authority or other entity of any kind.
Plan: any Benefit Plan maintained for employees of an Obligor or ERISA Affiliate, or to which an Obligor or ERISA Affiliate is required to contribute on behalf of its employees.
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Platform: as defined in Section 14.3.3.
Pledge Agreement: that certain Parent Pledge Agreement entered into as of the date hereof among the Parent and the Collateral Agent.
Prime Rate: the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Administrative Agent and applied to similarly situated companies) or any similar release by the Federal Reserve Board (as reasonably determined by the Administrative Agent).
Pro Rata: with respect to any Lender, a percentage (rounded to the ninth decimal place) determined by dividing the amount of such Lender’s Loans by the aggregate outstanding Loans or, if all Loans have been paid in full, by dividing such Lender’s and its Affiliates’ remaining Obligations by the aggregate remaining Obligations.
Properly Contested: with respect to any obligation of an Obligor or Subsidiary, (a) the obligation is subject to a bona fide dispute regarding amount or the Obligor’s or Subsidiary’s liability to pay; (b) the obligation is being properly contested in good faith by appropriate proceedings diligently pursued; (c) appropriate reserves have been established in accordance with GAAP; and (d) such contest effectively suspends collection of the contested obligation and the enforcement of any Lien securing such obligation.
Property: any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.
PTE: a prohibited transaction class exemption issued by the U.S. Department of Labor, as amended from time to time.
QFC Credit Support: as defined in Section 14.19. Qualifying Owners: (i) William A. Zartler, or any company of which he is the manager, managing member or otherwise controls, including Solaris Energy Capital, LLC, (ii) any wife, lineal descendant, legal guardian or other legal representative or estate of the principal member named in clause (i) above; (iii) any trust of which at least one of the trustees is a person described in clauses (i) or (ii) above, (iv) Yorktown Energy Partners X, L.P. and any affiliated funds or investment vehicles managed by Yorktown Partners LLC, (v) J Turbines, Inc. and any affiliated funds or investment vehicles managed by J Turbines, Inc., (vi) KTR Management Company, LLC and any affiliated funds or investment vehicles managed by KTR Management Company, LLC, (vii) any affiliated funds or investment vehicles managed by any of the persons described in clauses (iv), (v) or(vi) above, and (viii) any general partner, managing member, principal or managing director of any of the persons described in clause (vii) above.
Real Estate: all right, title and interest (whether as owner or lessee) in any real Property or any buildings, structures, parking areas or other improvements thereon.
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Recipient: Administrative Agent, Collateral Agent or any Lender or any other recipient of a payment to be made by an Obligor under a Loan Document or on account of an Obligation.
Related Real Estate Documents: with respect to any Real Estate subject to a Mortgage, the following, in form and substance reasonably satisfactory to Collateral Agent and received by Collateral Agent for review: (a) at least 45 days prior to the effective date of the Mortgage, all information reasonably requested by Collateral Agent for due diligence pursuant to Flood Laws; and (b) at least 15 days (or such shorter period as Collateral Agent shall permit) prior to the effective date of the Mortgage: (i) a pro forma lender’s title policy (or binder therefor) covering Collateral Agent’s interest under the Mortgage, by an insurer reasonably acceptable to Collateral Agent, which must be fully paid on such effective date; (ii) such assignments of leases, estoppel letters, attornment agreements, consents, waivers and releases as Collateral Agent may require with respect to other Persons having an interest in the Real Estate; (iii) a current, as-built survey of the Real Estate, containing a metes-and-bounds property description and certified by a licensed surveyor reasonably acceptable to Collateral Agent; (iv) a life-of-loan flood hazard determination and, if any Real Estate is located in a special flood hazard zone, flood insurance documentation and coverage reasonably satisfactory to Collateral Agent; (v) a current appraisal of the Real Estate, prepared by an appraiser engaged by Collateral Agent, and in form and substance reasonably satisfactory to Collateral Agent; (vi) an environmental assessment, prepared by environmental engineers reasonably acceptable to Collateral Agent, an environmental indemnity agreement if appropriate, and such other reports, certificates, studies or data as Collateral Agent may reasonably require; and (vii) such other information, documents, instruments or agreements as Collateral Agent may reasonably request.
Release: any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection, migration or leaching on. into or through the Environment or into, from or through any building, structure or facility.
Relevant Governmental Body: the Federal Reserve Board and/or FRBNY, or a committee officially endorsed or convened by the Federal Reserve Board and/or FRBNY.
Report: as defined in Section 12.2.3.
Reportable Event: any event set forth in Section 4043(c) of ERISA, other than an event for which the 30-day notice period has been waived.
Required Lenders: two or more unaffiliated Lenders holding more than fifty percent (50%) of the aggregate outstanding Loans; provided, that in the event there is only one Lender at any time, such Lender shall constitute Required Lenders.
Resolution Authority: an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
Restricted Payment: any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in any Obligor or Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in any Obligor or Subsidiary or any option, warrant or other right to acquire any such Equity Interests in any Obligor or Subsidiary. The term “Restricted Payments” as used herein shall include management fees paid to any Person owning any Equity Interests in and to any Obligor or Subsidiary (other than cost reimbursement arrangements) and Permitted Tax Distributions.
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S&P: S&P Global Ratings, a division of S&P Global Inc., or any successor acceptable to Administrative Agent.
Sanction: a trade or financial sanction administered or enforced by the U.S. Department of Treasury Office of Foreign Assets Control (OFAC), the Department of State, or the Department of Commerce, including restrictions imposed with respect to OFAC’s Specially Designated Nationals and Blocked Persons List, and equivalent sanctions administered and enforced by the UN Security Council, European Union or its Member States, and His Majesty’s Treasury of the United Kingdom.
Secured Leverage Ratio: as of any testing day, the ratio of (a) Debt as of such date that is secured by a Lien on the Collateral as of such date minus the Cash Adjustment as of such date to (b) EBITDA for the 12 month period ended on the last day of the most recently ended fiscal quarter, determined in each case on a consolidated basis for Parent and its Subsidiaries.
Securities Account Control Agreement: a control agreement reasonably satisfactory to Collateral Agent executed by an institution maintaining a securities account for an Obligor, to perfect Collateral Agent’s Lien on such account.
Security Agreement: that certain Guarantee and Collateral Agreement entered into as of the date hereof among the Obligors party thereto and the Collateral Agent.
Security Documents: the Guaranties, Security Agreement, Pledge Agreement, Mortgages, Deposit Account Control Agreements, Securities Account Control Agreements, and all other documents, instruments and agreements now or hereafter securing (or given with the intent to secure) any Obligations.
Senior Officer: the chairman of the board, president, chief executive officer or chief financial officer of the applicable Obligor.
SOFR: the secured overnight financing rate as administered by FRBNY (or a successor administrator).
SOFR Borrowing: as to any Borrowing, the SOFR Loans comprising such Borrowing.
SOFR Loan: a Loan that bears interest at a rate based on Term SOFR.
Solvent: as to any Person, such Person (a) owns Property whose fair value is greater than the amount required to pay all of its debts (including contingent, subordinated, unmatured and unliquidated liabilities); (b) owns Property whose present fair value is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person as they become absolute and matured; (c) is able to pay its debts as they mature in the ordinary course of business; (d) has capital that is not unreasonably small for its business and is
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sufficient to carry on its business and transactions and all business and transactions in which it intends to engage; and (e) has not incurred (by way of assumption or otherwise) any obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any conveyance in connection therewith, with actual intent to hinder, delay or defraud either present or future creditors of such Person or any of its Affiliates. The amount of contingent and unmatured liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Specified BofA LC: the letter of credit issued by Bank of America, N.A. with the face amount of $215,000, for the benefit of Zurich American Insurance Company, reference number 68205471.
Specified BofA Obligations: obligations in connection with purchase cards, gas cards, corporate credit cards and similar transactions in the Ordinary Course of Business with Bank of America, N.A..
Specified Genco Assets: to the extent constituting assets of Genco Buyer, (x)(i) the assets described on Part I of Schedule 10.2.2(b), together with all present and future additions, parts, accessories, attachments, substitutions, repairs, improvements and replacements thereof or thereto, and any and all proceeds thereof, including, without limitation, proceeds of insurance (the “Stonebriar Assets”), (ii) the Purchase Order (as defined in the Stonebriar Facility as in effect on the Closing Date) and all other contracts and agreements providing Genco Buyer with rights to purchase or otherwise obtain title to the Stonebriar Assets, and (iii) all proceeds of each of the foregoing; and (y)(i) the assets described on Part II of Schedule 10.2.2(b) (the “CAT Assets”), including, all replacements, repairs, additions, attachments, accessories and Accessions (as defined in the CAT Facility as in effect on the Closing Date) thereto, (ii) all invoices, supply contracts, purchase orders, purchase agreements or other documentation relating to the order, fabrication, construction and/or purchase of such CAT Assets, (iii) any and all warranty agreements, extended services agreements and other instruments and documents that relate to the acquisition, installation, maintenance or warranty of such CAT Assets (including all claims for damages arising as a result of any default by the supplier or other parties obligated pursuant to the foregoing, including claims under all warranty and indemnity provisions contained therein and any and all rights of Genco Buyer to compel performance of the terms of such documents), (iv) any amounts and proceeds of any kind payable in respect of any casualty (whether or not covered by insurance) or any taking, exercise of rights of eminent domain, public improvement, inverse condemnation, condemnation or similar action of or proceeding by any Governmental Authority (as defined in the CAT Facility as in effect on the Closing Date) relating to such CAT Assets or any material part thereof, and all indemnity, warranty or guaranty payable by reason of a Casualty Event (as defined in the CAT Facility as in effect on the Closing Date) related to any of the foregoing, (v) proceeds and products, whether tangible or intangible, of any of the foregoing, including, as such terms are defined in the UCC, chattel paper, instruments, accounts, rents, proceeds of insurance or any other property resulting from the sale, lease or other disposition of the foregoing, (vi) any lease or sublease of the foregoing and all rental payments made thereunder.
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Stonebriar Facility: Loan and Security Agreement, dated as of March 16, 2026, by and between Eldridge Asset Finance LLC, as administrative agent, Stonebriar Commercial Finance LLC, as initial lender and Project G Buyer, LLC, as borrower, as amended, restated, amended and restated, supplemented, or otherwise modified from time to time to the extent permitted hereunder.
Subsidiary: with respect to any Person, any entity at least 50% of whose voting securities is owned by such Person (including indirect ownership through other entities in which such Person directly or indirectly owns 50% of the voting securities) or is otherwise consolidated with such Person under GAAP; provided that an Excluded Subsidiary shall not constitute a “Subsidiary” under the terms of this Agreement or any other Loan Document (other than for purposes of Section 9.1.19 and Section 10.1.10(b)).
Subordinated Debt: Debt incurred by an Obligor that is expressly subordinate and junior in right of payment to Full Payment of all Obligations, and is on terms (including maturity, interest, fees, repayment, covenants and subordination) reasonably satisfactory to the Administrative Agent.
Subordinated Debt Documents: any indenture or note or other instrument under which any Subordinated Debt is issued and all other instruments, agreements and other documents evidencing or governing any Subordinated Debt or providing for any Guarantee or other right in respect thereof.
Swap: as defined in §1a(47) of the Commodity Exchange Act. For the avoidance of doubt, the definition of “Swap” shall not include any Permitted Capped Call transaction.
Swap Termination Value: in respect of any one or more Swaps, after taking into account the effect of any legally enforceable netting agreement relating to such Swaps, (a) for any date on or after the date such Swaps have been closed out and settlement amounts, early termination amounts or termination value(s) determined in accordance therewith, such settlement amounts, early termination amounts or termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swaps, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer which is a party to such Swap.
Tax Receivable Agreement: the Tax Receivable Agreement dated as of May 17, 2017, by and among Parent and the other parties thereto and any similar agreement entered into by Parent after the date hereof.
Taxes: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed, administered, assessed or collected by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Term SOFR: (a) for any Interest Period relating to a Loan (other than a Base Rate Loan), the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period, provided that if such rate is not published prior to 11:00 a.m. on such determination date, then the Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto; and (b) for any interest calculation relating to a Base Rate Loan on any day, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government
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Securities Business Days prior to such date with a term of one month commencing that day, provided that if the rate is not published prior to 11:00 a.m. on such determination date, then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto; provided, that if Term SOFR determined in accordance with either of the foregoing provisions (a) or (b) would otherwise be less than the Floor, Term SOFR shall be deemed the Floor for purposes of this Agreement.
Term SOFR Loan: a Loan that bears interest based on clause (a) of the definition of Term SOFR.
Term SOFR Screen Rate: the forward-looking SOFR term rate administered by CME (or any successor administrator reasonably satisfactory to the Administrative Agent and the Borrower) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Administrative Agent from time to time).
Termination Date: March 15, 2027.
Total Leverage Ratio: as of any testing day, the ratio of (a) Debt as of such date minus the Cash Adjustment as of such date to (b) EBITDA for the 12 month period ended on the last day of the most recently ended fiscal quarter, determined in each case on a consolidated basis for Parent and its Subsidiaries.
Transactions: (a) the execution, delivery and performance by Parent and each Obligor of the Loan Documents to which it is to be a party, the borrowing of Loans and the use of the proceeds thereof and (b) the execution, delivery and performance by Parent and each Obligor of each other document and instrument required to satisfy the conditions precedent to the initial Loan hereunder.
UCC: the Uniform Commercial Code as in effect in the State of New York or, when used in reference to a Lien for which the laws of another jurisdiction govern perfection or enforcement, the Uniform Commercial Code of such other jurisdiction, as applicable.
UK Financial Institution: any BRRD Undertaking (as defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
UK Resolution Authority: the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
Unadjusted Benchmark Replacement: the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
United States Person: “United States person” as defined in Section 7701(a)(30) of the Code.
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U.S. Government Securities Business Day: any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
U.S Special Resolution Regimes: as defined in Section 14.19.
Wholly-Owned: with respect to a Subsidiary, that all of the Equity Interests of such Subsidiary are, directly or indirectly, owned or controlled by an Obligor and/or one or more of its Wholly-Owned Subsidiaries.
Write-Down and Conversion Powers: (a) the write-down and conversion powers of the applicable EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which powers are described in the EU Bail-In Legislation Schedule; or (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.2 Accounting Terms. Under the Loan Documents (except as otherwise specified therein), all accounting terms shall be interpreted, all accounting determinations shall be made, and all financial statements shall be prepared, in accordance with GAAP applied on a basis consistent with the most recent audited financial statements of Obligors delivered to Agent before the Closing Date and using the same inventory valuation method and lease accounting treatment as used in such financial statements; provided, that Obligors may adopt a change required or permitted by GAAP after the Closing Date as long as Obligors’ certified public accountants concur in such change, it is disclosed to Agent and the Loan Documents are amended in a manner reasonably satisfactory to Collateral Agent and Required Lenders to address the change. Upon request by the Administrative Agent, Collateral Agent or Required Lenders, Borrower’s financial statements and Borrower Materials shall set forth a reconciliation between calculations made before and after giving effect to any change in GAAP. In addition, all accounting terms shall be interpreted, all accounting determinations shall be made and all financial statements shall be prepared without giving effect to any election under FASB Accounting Standards Codification Topic 825, Financial Instruments, or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Debt at “fair value”, as defined therein.
1.3 Uniform Commercial Code. As used herein, the following terms are defined in accordance with the UCC in effect in the State of New York: “Account,” “Account Debtor,” “Chattel Paper,” “Commercial Tort Claim,” “Deposit Account,” “Document,” “General Intangibles,” “Goods,” “Instrument,” “Investment Property,” “Letter-of-Credit Right,” “Payment Intangible,” “Securities Account” and “Supporting Obligation.”
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1.4 Certain Matters of Construction. The rules of construction and interpretation included in this Section apply to all Loan Documents. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to the applicable document as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” mean “including, without limitation”, “or” includes “and/or”, and the rule of ejusdem generis does not apply. Section titles appear as a matter of convenience only and will not affect the interpretation of a Loan Document. Reference to any (a) law includes all related regulations, interpretations, supplements, amendments and successor provisions; (b) document, instrument or agreement includes any amendment, extension, supplement, waiver, replacement and other modification thereto (to the extent permitted by the Loan Documents and except as otherwise specified herein); (c) section means, unless the context otherwise requires, a section of the applicable document; (d) exhibit or schedule means, unless the context otherwise requires, an exhibit or schedule to the applicable document, which is thereby incorporated by reference; (e) Person includes its permitted successors and assigns; (f) time of day means the time at Administrative Agent’s notice address under Section 14.3.1; or (g) unless otherwise set forth herein, discretion or satisfaction of Administrative Agent, the Collateral Agent or Required Lenders means the sole and absolute discretion of such Person exercised from time to time. Any references to Loans, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and any determination (including calculation of financial covenants) made from time to time by Obligors under the Loan Documents shall be made in light of the circumstances existing at such time. Obligors have the burden of establishing any alleged negligence, misconduct or lack of good faith by any Indemnitee under a Loan Document. No provision of a Loan Document shall be construed against a party by reason of it having, or being deemed to have, drafted the provision. Reference to an Obligor’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. References herein to the consolidated financial results of Parent, Obligors or Borrower and Subsidiaries shall not include the financial results of any Excluded Subsidiary unless explicitly stated otherwise (including, without limitation, pursuant to clause (d) of the definition of EBITDA), provided that certain reporting delivered under Section 10.1.1(a) and (b) may include the results of Excluded Subsidiaries if the consolidating and other information is also provided in compliance with such Section.
1.5 Division. Any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a Division, or an allocation of assets to a series of any such entity (or the unwinding of a Division or allocation) as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer or similar term, as applicable, to, of or with a separate Person. Any Division of Person shall constitute a separate Person hereunder.
Section 2. CREDIT FACILITIES.
2.1 Loan Commitments.
2.1.1 Commitments. Subject to the conditions set forth herein (including Section 6), each Lender agrees, severally and not jointly, to make Loans to Borrower on the Closing Date in an aggregate principal amount equal to such Lender’s Commitment. The Commitments shall be permanently reduced in full by the making of the Loans on the Closing Date and amounts paid or prepaid in respect of the Loans may not be reborrowed.
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2.1.2 Notes. Loans and interest accruing thereon shall be evidenced by the records of Administrative Agent and the applicable Lender. At the request of a Lender, Borrower shall deliver promissory note(s) to such Lender, evidencing its Loans.
2.1.3 Use of Proceeds. The proceeds of the Loans shall be used by Borrower solely (a) to satisfy existing Debt; (b) to pay fees and transaction expenses associated with the closing of this credit facility; (c) to finance and/or reimburse the Obligors in connection with the Genco Acquisition; (d) to pay Obligations in accordance with this Agreement; and (e) for lawful corporate purposes, including working capital. Borrower shall not, directly or indirectly, use any Loan proceeds, nor use, lend, contribute or otherwise make available any Loan proceeds to any Subsidiary, joint venture partner or other Person, (i) to purchase or carry, or to reduce or refinance any debt incurred to purchase or carry, any Margin Stock or for any related purpose as governed by any regulation (including Regulation U) of the Federal Reserve Board of Governors; (ii) to fund any activities of or business with any Person, or in any country or territory, that is the target of any Sanction; or (iii) in any manner that would result in a violation of a Sanction, Anti-Corruption Law, Anti-Terrorism Law, or other Applicable Law by any Person (including any Lender or other individual or entity participating in any transaction).
2.2 Borrowing Request. .
2.2.1 Notice by Borrower. Each Borrowing shall be made upon the Borrower’s irrevocable notice to the Administrative Agent. Each such notice shall be in the form of a written Notice of Borrowing, appropriately completed and signed by an officer of Parent and must be received by the Administrative Agent not later than 12:00 p.m. (New York City time) (a) in the case of a SOFR Borrowing, three (3) U.S. Government Securities Business Days prior to the date of the requested Borrowing or (b) in the case of a Borrowing of Base Rate Loans, on the date of the requested Borrowing.
2.2.2 Content of Borrowing Requests. Each Notice of Borrowing shall specify the following information: (i) the aggregate amount of the requested Borrowing; (ii) the date of such Borrowing (which shall be a Business Day); (iii) in the case of a SOFR Borrowing, the Interest Period therefor; and (iv) the location and number of the Borrower’s account to which funds are to be disbursed.
2.2.3 Notice by Administrative Agent to Lenders. Promptly following receipt of a Notice of Borrowing, the Administrative Agent shall advise each Lender of the details thereof and such Lender’s portion of each resulting Borrowing.
2.3 Evidence of Debt; Register; Lender’s Books and Records; Loans.
2.3.1 Lenders’ Evidence of Debt. Each Lender shall maintain in its internal records an account or accounts evidencing the Obligations of the Borrower to such Lender, including the amounts of the Loans made by such Lender and each repayment and prepayment in respect thereof. The failure to make any such recordation, or any error in such recordation, shall not affect any Obligations in respect of any applicable Loans; and provided, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall be presumed correct absent manifest error.
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2.3.2 Register. The Administrative Agent shall maintain a register for the recordation of the names and addresses of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The Register shall be available for inspection by the Borrower and the Lenders, at any reasonable time and from time to time upon reasonable prior written notice. The entries in the Register shall be presumed correct, absent manifest error; provided, failure to make any such recordation, or any error in such recordation, shall not affect the Obligors’ Obligations in respect of any Loan. The Borrower, the Administrative Agent and the Lenders shall treat each Person in whose name any Loan shall be registered as the owner and the Lender thereof for all purposes hereof. The Borrower hereby designates the entity serving as the Administrative Agent to serve as the Borrower’s non-fiduciary agent solely for purposes of maintaining the Register as provided in this Section 2.3.2, and the Borrower hereby agrees that, to the extent such entity serves in such capacity, the entity serving as the Administrative Agent and its officers, directors, employees, agents and affiliates shall constitute “Indemnitees.”
2.3.3 Timing. In recognition of the anticipated timing of closing and funding under this Agreement, the Administrative Agent (in its sole discretion) may make Loans available to Borrower on behalf of the Lenders on the Closing Date in an aggregate amount up to the full amount of the Commitments in anticipation of the funding by Banco Santander, S.A., New York (“Santander”) of its Commitments in the event that Santander does not or is not able to wire funds to the Administrative Agent for purposes of funding its Loans to Borrower by 8:00 a.m. (New York time) on the Closing Date. In the event that the Administrative Agent funds such Loans to Borrower on behalf of Santander, Santander agrees to promptly pay to the Administrative Agent (and in any event within one (1) Business Day of the Closing Date), such fronted amount, with, to the extent that such amount is not paid to the Administrative Agent on the Closing Date, interest thereon from the Closing Date to but excluding the date of payment to the Administrative Agent, calculated at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. In making such Loans available to Borrower on behalf of Santander, the Administrative Agent shall be entitled to all of the rights and protections afforded to the Administrative Agent under Section 12 of the Credit Agreement.
2.4 Fees.
2.4.1 Borrower shall pay all fees set forth in any fee letter executed by it in connection with this Agreement.
2.4.2 Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, a duration fee in an aggregate amount equal to (i) 0.50% of the aggregate principal amount of the Loans outstanding on the date that is 90 calendar days after the Closing Date, due and payable on such date (or if such date is not a Business Day, the next Business Day); (ii) 0.75% of the aggregate principal amount of the Loans outstanding on the date that is 180 calendar days after the Closing Date, due and payable on such 180th day (or if such day is not a Business Day, the next Business Day); and (iii) 1.00% of the aggregate principal amount of the Loans outstanding on the date that is 270 calendar days after the Closing Date, due and payable on such 270th day (or if such day is not a Business Day, the next Business Day).
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2.4.3 All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent, Collateral Agent or any Lender, as applicable. Fees paid shall not be refundable under any circumstances (unless expressly set forth in any such fee letter).
2.4.4 Unless otherwise indicated herein, all computation of fees shall be made on the basis of a 360-day year and shall be payable for the actual days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of a fee hereunder shall be presumed correct, absent manifest error.
2.5 Interest.
2.5.1 Interest. Each Loan shall at all times bear interest (i) if a Base Rate Loan, at the Base Rate in effect from time to time, plus the Applicable Margin or (ii) if a Term SOFR Loan, at a rate equal to the sum of Term SOFR plus the Applicable Margin (the “Interest”).
2.5.2 Interest Payment Dates. Interest on each Loan shall be due and payable in cash in arrears on each Interest Payment Date. Interest payable hereunder shall be computed for the actual amount of days elapsed (including the first day but excluding the last day) (i) for Term SOFR Loans and Base Rate Loans (other than Loans in respect of which the Base Rate is calculated based on the Prime Rate), on the basis of a 360-day year or (ii) for all other Base Rate Loans, on the basis of a 365 or 366-day year, as applicable; provided that in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment.
2.5.3 Default Interest. Upon the occurrence and during the continuance of any Event of Default under Section 11, (x) with respect to any Event of Default under Section 11.1(a), 11.1(i), or 11.1(j), automatically, or (y) with respect to any other Event of Default, at the election of the Required Lenders (with notice to the Borrower), the principal amount of all Loans outstanding and, to the extent permitted by applicable law, any interest payments on the Loans or any fees or other amounts owed hereunder, shall automatically, commencing on the date of such Event of Default (or such later date as the Required Lenders may agree to in their sole discretion), bear interest (including post-petition interest in any proceeding under the Bankruptcy Code, any other Debtor Relief Laws or other applicable bankruptcy laws, whether or not allowed in such a proceeding) payable in cash on demand at the Default Rate. Payment or acceptance of the increased rates of interest provided for in this Section 2.5.3 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative Agent, Collateral Agent or any Lender.
2.5.4 Application of Term SOFR to Outstanding Loans.
(a) Borrower may elect to convert any portion of Base Rate Loans to, or to continue any Term SOFR Loan at the end of its Interest Period as, a Term SOFR Loan. During any Default or Event of Default, Agent may (and shall at the direction of Required Lenders) declare that no Loan may be converted or continued as a Term SOFR Loan.
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(b) Borrower shall give Administrative Agent a Notice of Conversion/Continuation by 12:00 p.m. (New York time) at least three Business Days before the requested conversion or continuation date. Promptly after receiving such notice, Administrative Agent shall notify each Lender thereof. Each Notice of Conversion/Continuation is irrevocable, and shall specify the amount of Loans to be converted or continued, the conversion or continuation date (which shall be a Business Day), and the duration of the Interest Period (which shall be deemed to be one month if not specified). If, at expiration of an Interest Period for a Term SOFR Loan, Borrower has failed to deliver a Notice of Conversion/Continuation, the Loan shall convert to a Base Rate Loan. Administrative Agent does not warrant or accept responsibility for, nor shall it have any liability with respect to, administration, submission or any other matter related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternate, replacement or successor to such rate (including any Benchmark Replacement), or any component thereof, or the effect of any of the foregoing, or of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation, any Benchmark Replacement) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to the Borrower. Administrative Agent may select information source(s) in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including any Benchmark Replacement), or any component thereof, in each case pursuant to the terms hereof, and shall have no liability to any Lender, Obligor or other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise, and whether at law or in equity) for any error or other act or omission related to or affecting the selection, determination or calculation of any rate (or component thereof) provided by such information source(s).
2.5.5 Interest Periods. Borrower shall select an Interest Period to apply to each Term SOFR Loan.
2.6 Repayment of Loans. If any principal or interest amount payable under the Loans remains outstanding on the Termination Date, such amount will be paid in full (other than contingent obligations for which no claim has been made) or otherwise satisfied by Borrower to the Lenders in immediately available funds on the Termination Date.
2.7 Voluntary Prepayments. The Borrower may, from time to time, prepay the Loans on any Business Day in whole or in part (together with any amounts due and payable pursuant to Section 2.5) in an aggregate minimum amount equal to if being paid in whole, the Obligations (other than contingent obligations for which no claim has been made) and if being paid in part, $1,000,000 and integral multiples of $500,000 in excess of that amount (or such lower amounts as the Administrative Agent may agree). All such prepayments shall be made upon not less than three (3) Business Days’ prior written notice, in each case given to the Administrative Agent by 12:00 p.m. (New York time) on the date required. Upon the giving of any such notice, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein, provided that a notice of prepayment delivered by the Borrower may state that such notice is conditioned upon one or more conditions precedent thereto, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if any such condition is not satisfied. Any such voluntary prepayment shall be applied as specified in Section 2.9.
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2.8 Mandatory Prepayments.
2.8.1 Debt for Borrowed Money. If Parent, the Borrower or any Subsidiary issues any Debt for borrowed money not permitted hereunder (including, for the avoidance of doubt, the issuance or incurrence by Borrower or any of its Subsidiaries of any revolving credit or working capital facility or warehouse facility or the issuance of any debt securities by Parent, the Borrower or any Subsidiary) then the Borrower shall prepay the Loans in amount equal to 100% of the Net Proceeds of such issuance at the time of such issuance.
2.8.2 Disposition or Casualty Event. If the Borrower or any Subsidiary receives any Net Proceeds from a Disposition or Casualty Event under Section 10.2.5(c) or Section 10.2.5(h), then the Borrower shall prepay the Loans in amount equal to 100% of such Net Proceeds within five (5) Business Days after such receipt of such Net Proceeds; provided that, to the extent the Net Proceeds in respect of such Disposition or Casualty Event received by the Borrower and its Subsidiaries (a) are used to acquire assets that are substantially similar or serve substantially the same operational function as the assets that were the subject of such Disposition or Casualty Event, or (b) are otherwise less than $15,000,000 in the aggregate during the term of this Agreement, then in each case the Borrower shall not be required to prepay the Loans pursuant to this Section 2.8.2 so long as the Borrower notifies the Administrative Agent within five (5) Business Days following its receipt of the applicable Net Proceeds that it intends to reinvest such Net Proceeds (or portion thereof) in its business within 365 days following receipt of such Net Proceeds (which 365-day period may be extended by an additional 365 days if within the initial such 365-day period the Borrower or any of its Subsidiaries enters into a legally binding commitment to reinvest such proceeds in accordance with this Agreement) and so reinvests such Net Proceeds prior to the expiration of such timeframe.
2.8.3 Equity Issuances. If Parent, the Borrower or any Subsidiary (a) issues any Equity Interests other than to Parent or an Obligor or a Subsidiary thereof (including in connection with the exercise of options or warrants or the conversion of any debt securities to equity) or (b) receives any capital contribution from any Person that is not Parent or an Obligor or a Subsidiary thereof (clauses (a) and (b), collectively, an “Equity Issuance”), then the Borrower shall prepay the Loans in an amount equal to 50% of the Net Proceeds of such Equity Issuance (other than the exercise price on stock options issued as part of employee compensation) within five (5) Business Days following its receipt of the applicable Net Proceeds.
2.8.4 Covenant Cure Payment. If the Borrower or any Subsidiary makes a Covenant Cure Payment hereunder then the Borrower shall prepay the Loans in amount equal to 100% of the Net Proceeds of such issuance at the time of Covenant Cure Payment.
2.8.5 Prepayment Certificate. Concurrently with or prior to any prepayment of the Loans pursuant to this Section 2.8, the Borrower shall deliver to the Agent a certificate of a Financial Officer demonstrating the calculation of the amount of the applicable proceeds giving rise to the prepayment and the amount required to be prepaid. In the event that the Borrower shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, the Borrower shall promptly make an additional prepayment of the Loans in an amount equal to such excess, and the Borrower shall concurrently therewith deliver to the Agent a certificate of a Financial Officer demonstrating the calculation of such excess.
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2.9 Application of Payments. Any payment of any Loan made pursuant to Sections 2.6, Section 2.7, Section 2.8 or Section 2.10 shall be applied as follows:
first, to pay all unpaid expenses, fees and actual, incurred indemnities of the Collateral Agent and Administrative Agent in their capacity as such due hereunder to the full extent thereof;
second, ratably to pay all unpaid expenses, fees and actual, incurred indemnities due hereunder to any Lender to the full extent thereof;
third, ratably to pay any accrued unpaid Interest (including interest at the Default Rate, if any) on Loans until paid in full;
fourth, [reserved];
fifth, ratably to prepay the principal amount of all Loans then outstanding in the order set forth in Section 2.10(b) until paid in full; and
sixth, ratably to pay any other Obligations then due and payable.
2.10 General Provisions Regarding Payments.
(a) All payments by the Borrower in respect of the Obligations shall be made in Dollars in same day funds, without, recoupment, setoff, counterclaim or other defense, free of any restriction or condition, and delivered on the date due to the Administrative Agent for the account of Lenders not later than 2:00 p.m. (New York time); funds received by the Administrative Agent after that time on such due date may, in the Administrative Agent’s reasonable discretion, be deemed paid by the Borrower on the next Business Day.
(b) All prepayments in respect of the principal amount of any Loan shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid. All prepayments in respect of the principal amount of the Loans shall be applied to any principal repayment obligations on the Loans in the direct order of maturity.
(c) The Administrative Agent shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s Pro Rata share of Obligations due hereunder, together with all other amounts due thereto, including all fees payable with respect thereto, to the extent received by the Administrative Agent.
(d) Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest hereunder.
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2.11 Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise provided in the Security Agreement with respect to amounts realized from the exercise of rights with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code or any other Debtor Relief Laws, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees and other amounts then due and owing to such Lender hereunder or under the other Loan Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment (the “Receiving Lender”) shall notify the Administrative Agent and each other Lender of the receipt of such payment and apply a portion of such payment to make loans (the “Lender Loans”) (which it shall be deemed to have made simultaneously upon the receipt by each such other Lender of its portion of such payment) in the ratable Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided, if all or part of such proportionately greater payment received by such Receiving Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of the Borrower or otherwise, those Lender Loans made to the other Lenders shall be rescinded and the principal amounts of such Lender Loans shall be returned to the Receiving Lender ratably to the extent of such recovery, but without interest. The Borrower expressly consents to the foregoing arrangement and agrees that any Lender may exercise any and all rights of banker’s lien, set off or counterclaim with respect to any and all monies owing by the Borrower to that Lender with respect thereto as fully as if that Lender were owed the amount of the Loans made by that Lender.
2.12 Increased Costs. Subject to the provisions of Section 2.13 (which shall be controlling with respect to the matters covered thereby), in the event that any Change in Law: (a) subjects such Lender (or its Applicable Office) or the Administrative Agent to any additional Tax (other than (i) any Indemnified Tax or (ii) any Excluded Tax) with respect to its loans, loan principal, commitments, other obligations, deposits, reserves, other liabilities, or capital attributable thereto; (b) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender; or (c) imposes any other condition, cost or expense (in each case, other than Taxes) on or affecting such Lender (or its Applicable Office) or its obligations hereunder; and the result of any of the foregoing is to increase the cost to such Lender of maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its Applicable Office) with respect thereto; then, in any such case, Borrower shall promptly pay to such Lender or the Administrative Agent, upon receipt of the certificate referred to in the next sentence, such additional amount or amounts as may be necessary to compensate such Lender or the Administrative Agent for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender or the Administrative Agent shall deliver to Borrower (in the case of a Lender, with a copy to the Administrative Agent) a written certificate, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender or the Administrative Agent under this Section 2.12, which statement shall be presumed correct absent manifest error. Notwithstanding the foregoing, any demands by any Lender or the Administrative Agent for compensation under this Section 2.12 (Increased Costs) shall be made consistently with respect to similarly situated borrowers entering into loan agreements with such Lender or the Administrative Agent.
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2.13 Taxes; Withholding, etc.
2.13.1 Payments to be Free and Clear. All sums payable by or on account of any Obligor hereunder and under the other Loan Documents shall (except to the extent otherwise required by law) be paid free and clear of, and without any deduction or withholding on account of, any Tax.
2.13.2 Withholding Taxes. If any Obligor or the Administrative Agent is required by law to make any deduction or withholding for or on account of any Tax from any sum paid or payable under any of the Loan Documents (as determined by the applicable Obligor or the Administrative Agent in its good faith discretion): (i) the applicable Obligor or the Administrative Agent, as applicable, shall be entitled to make such deduction or withholding and shall pay (or cause to be paid) any such withheld or deducted Tax to the relevant Governmental Authority before the date on which penalties attach thereto; and (ii) to the extent the withholding or deduction is made on account of Indemnified Taxes, the sum payable by such Obligor in respect of which the relevant deduction or withholding is required shall be increased to the extent necessary to ensure that, after any such deduction or withholding (including such deductions and withholdings applicable to additional Indemnified Taxes payable under this Section 2.13), the Administrative Agent or such Lender, as the case may be, receives a net sum equal to what it would have received had no such deduction or withholding been required.
2.13.3 Other Taxes. In addition, the Obligors shall timely pay all Other Taxes to the relevant Governmental Authorities in accordance with applicable law, or, at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes. The Borrower shall deliver to the Administrative Agent official receipts or other evidence of payment of Taxes or Other Taxes pursuant to this Section 2.13 reasonably satisfactory to the Administrative Agent promptly after payment of such Taxes or Other Taxes.
2.13.4 Indemnification. The Obligors shall indemnify the Administrative Agent and each Lender, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes paid or incurred by the Administrative Agent or such Lender, as the case may be, relating to, arising out of, or in connection with any Loan Document or any payment or transaction contemplated hereby or thereby, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority and all reasonable costs and expenses arising therefrom or with respect thereto (including any Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.13). A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
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2.13.5 Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after written demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.2.3 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 2.13.5.
2.13.6 Administrative Requirements; Forms Provision.
(a) Any Recipient that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Recipient, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.13.6(b)(A), Section 2.13.6(b)(B) and Section 2.13.6(b)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(b) Without limiting the generality of the foregoing,
| (A) | Each Lender that is a United States Person shall deliver to the Borrower and the Administrative Agent, on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax. |
| (B) | Each Lender that is not a United States Person (a “Non-U.S. Lender”) shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent, on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable: |
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| (1) | In the case of a Non-U.S. Lender eligible to claim the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, two executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty, and (y) with respect to any other applicable payments under any Loan Document, two executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; |
| (2) | two executed copies of IRS Form W-8ECI; |
| (3) | in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Non-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower (or regarded owner of the Borrower for U.S. federal income tax purposes), within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” related the regarded owner of the Borrower for U.S. federal income tax purposes, as described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) two executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or |
| (4) | to the extent a Non-U.S. Lender is not the beneficial owner of a Loan, two executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are eligible to claim the portfolio interest exemption, such Non-U.S. Lender shall provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner. |
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| (C) | Each Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Administrative Agent to determine the withholding or deduction required to be made; and |
| (D) | If a payment made to a Recipient under any Loan Document would be subject to withholding Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to the Administrative Agent and the Borrower at the time or times prescribed by law and at such time or times reasonably requested by the Administrative Agent or the Borrower such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient 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 Section 2.13.6(b)(D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. |
(c) or before the date on which Goldman Sachs Bank USA (and any successor or replacement Administrative Agent) becomes the Administrative Agent hereunder, it shall deliver to the Borrower copies of either (i) IRS Form W-9 certifying that such Administrative Agent is exempt from U.S. federal backup withholding tax, or (ii) a U.S. branch withholding certificate on IRS Form W-8IMY (or any successor form) evidencing its agreement with the Borrower to be treated as a United States Person (with respect to amounts received on account of any Lender) and IRS Form W-8ECI (or any successor form) (with respect to amounts received on its own account).
Each Recipient agrees that if any form or certification it previously delivered pursuant to this Section 2.13 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and Administrative Agent in writing of its legal inability to do so.
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2.13.7 Refunds of Tax. If a Recipient determines in its reasonable discretion that it has received a refund of Taxes that were indemnified pursuant to this Section 2.13 or with respect to which any Obligor paid additional amounts pursuant to this Section 2.13, it shall pay the amount of such refund to Borrower (but only to the extent of indemnity payments or additional amounts actually paid by the Obligors with respect to the Taxes giving rise to the refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient and without interest (other than interest paid by the relevant Governmental Authority with respect to such refund). The Obligors shall, upon request by the Recipient, repay to the Recipient such amount paid over to the Obligors (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) if the Recipient is required to repay such refund to the Governmental Authority. Notwithstanding anything herein to the contrary, no Recipient shall be required to pay any amount to the Obligors if such payment would place it in a less favorable net after-Tax position than it 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.
2.14 Tax Treatment. The parties agree (i) that for U.S. federal and other applicable income tax purposes to the maximum extent permitted by law, (a) the Loans shall be treated as “debt”, and (b) the Loans shall not be treated as “contingent payment debt instruments” under Section 1.1275-4 of the United States Treasury Regulations (or any corresponding provision of state income tax law) and (ii) to file all U.S. federal income tax and state income tax and franchise tax returns in a manner consistent with (i), except, in each case, to the extent otherwise required by a final “determination” within the meaning of Section 1313(a)(1) of the Code or other resolution following a challenge of such treatment by the IRS.
2.15 [Reserved].
2.16 Designation of a Different Lending Office. If any Lender requests compensation under Section 2.12, or requires the Borrower to pay any Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.13, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.12 or Section 2.13, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
2.17 Inability to Determine Rates; Replacing Benchmarks.
2.17.1 Circumstances Affecting Benchmark Availability. Subject to Section 2.17.2 below, in connection with any request for a Term SOFR Loan, if (i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that reasonable and adequate means do not exist for ascertaining Term SOFR for the applicable Interest Period with respect to a proposed Term SOFR Loan on or prior to the first day of such Interest Period or (ii) the Required Lenders shall determine (which determination shall be conclusive and binding absent manifest error) that Term SOFR does not adequately and fairly reflect the cost to such Lenders of making or maintaining such Loans during such Interest Period and, in the case of
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clause (ii), the Required Lenders have provided notice of such determination to the Administrative Agent, then, in each case, the Administrative Agent shall promptly give notice thereof to the Borrower. Upon notice thereof by the Administrative Agent to the Borrower, any obligation of the Lenders to make Term SOFR Loans shall be suspended (to the extent of the affected Term SOFR Loans or the affected Interest Periods) until the Administrative Agent (with respect to clause (ii), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of Term SOFR Loans (to the extent of the affected Term SOFR Loans or the affected Interest Periods).
2.17.2 Benchmark Replacement Setting.
(a) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark 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 the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.17.2(a) will occur prior to the applicable Benchmark Transition Start Date.
(b) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(c) The Administrative Agent will promptly notify the Borrower and the Lenders of (A) any occurrence of a Benchmark Transition Event, (B) the implementation of any Benchmark Replacement, (C) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement, (D) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.17.2(d) below and (E) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.17.2, 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 or any selection, 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 to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.17.2.
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(d) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate (including the Term SOFR Screen Rate) and either (1) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned tenor and (B) if a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(e) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a borrowing of SOFR Loans to be made during any Benchmark Unavailability Period.
Section 3. [RESERVED].
Section 4. [RESERVED].
Section 5. [RESERVED].
Section 6. CONDITIONS PRECEDENT.
6.1 Conditions Precedent to Closing. The Lenders shall not be required to fund any requested Loan or otherwise extend credit to Borrower hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Each Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect Collateral Agent’s Liens in the Collateral, insofar as the same may be perfected by filing UCC-1 financing statements, as well as UCC and Lien searches and other evidence reasonably satisfactory to the Lenders that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) [Reserved].
(d) Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of Borrower certifying (i) that, after giving effect to the initial Loans and transactions hereunder, (A) the Obligors and their Subsidiaries, on a consolidated basis, are Solvent; (B) no Default or Event of Default exists; and (C) the representations and warranties set forth in Section 9 are true and correct; and (ii) that attached thereto are true, correct and complete copies of the material Genco Facilities documentation.
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(e) Agent shall have received a certificate of a duly authorized officer of each Obligor and Parent, certifying (i) that attached copies of such Obligor’s and Parent’s, as applicable, Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery by Parent and the Obligors of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor or Parent, as applicable, in writing.
(f) Agent shall have received a written opinion of Gibson, Dunn & Crutcher LLP, as well as any local counsel to Obligors or Parent, in form and substance reasonably satisfactory to the Lenders.
(g) Agent shall have received copies of the charter documents of each Obligor and Parent, certified by the Secretary of State or other appropriate official of such Obligor’s or Parent’s, as applicable, jurisdiction of organization as of a recent date. Collateral Agent shall have received good standing certificates as of a recent date for each Obligor and Parent, issued by the Secretary of State or other appropriate official of such Obligor’s or Parent’s, as applicable, jurisdiction of organization.
(h) Agent and the Lenders shall have received a Budget for the four-fiscal quarter period commencing with the fiscal quarter in which the Closing Date occurs.
(i) [Reserved].
(j) Each Obligor and Parent shall have provided, in form and substance reasonably satisfactory to Administrative Agent and each Lender, all documentation and other information as Administrative Agent or any Lender deems appropriate in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If any Obligor or Parent qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to Administrative Agent and Lenders in relation to such Obligor or Parent, as applicable.
(k) The closing of the Genco Facilities (on terms satisfactory to the Lenders) shall have been consummated on or substantially concurrently with the Closing Date.
(l) Obligors shall have paid all fees and expenses required to be paid to Administrative Agent, Collateral Agent, Arrangers and Lenders on the Closing Date, including fees and expenses of counsel (to the extent invoiced prior to the Closing Date) and other advisors and under any fee letter to which such Obligor is a party.
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(m) Agent shall have received a Notice of Borrowing in accordance with Section 2.2.
(n) Agent shall have received a duly executed payoff letter in form and substance reasonably satisfactory to it and dated on or prior to the Closing Date with respect to that certain Loan, Security and Guaranty Agreement dated as of October 2, 2024 (as amended), among Borrower and the Obligors, as borrowers, Bank of America, N.A., as agent, and the lending institutions party thereto, together with evidence reasonably satisfactory to it (including UCC-3 financing statement terminations and other termination documents) that on the Closing Date such Debt will be repaid in full and the Liens securing such Debt have been released, subject only to the filing of applicable terminations and releases.
Section 7. [RESERVED].
Section 8. [RESERVED].
Section 9. REPRESENTATIONS AND WARRANTIES.
9.1 General Representations and Warranties. To induce Administrative Agent, Collateral Agent and Lenders to enter into this Agreement and to make available the Commitments and Loans, each Obligor represents and warrants that:
9.1.1 Organization; Powers. Each Obligor and Subsidiary is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.
9.1.2 Authorization; Enforceability. The Transactions to be entered into by each Obligor are within such Obligor’s powers and have been duly authorized by all necessary corporate or limited liability company action. This Agreement has been duly executed and delivered by the Obligors and constitutes, and each other Loan Document to which any Obligor is to be a party, when executed and delivered by such Obligor, will constitute, a legal, valid and binding obligation of the Obligor, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
9.1.3 Governmental Approvals; No Conflicts. The Transactions (a) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect and except filings necessary to perfect Liens created under the Loan Documents, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of any Obligor or Subsidiary or any order of any Governmental Authority in each case, as are applicable to Obligors or Subsidiaries, (c) will not violate or result in a default under any material indenture, agreement or other instrument binding upon Obligors or Subsidiaries or their assets, or give rise to a right thereunder to require any payment to be made by any Obligor or Subsidiary, and (d) will not result in the creation or imposition of any Lien on any asset of any Obligor or Subsidiary, except Liens created under the Loan Documents.
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9.1.4 Financial Condition. Obligors have heretofore furnished to Agent Parent’s consolidated balance sheet and related statements of operations, shareholders’ equity and cash flows as of and for the Fiscal Year ended December 31, 2025, certified by a Financial Officer of Borrower. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Obligors and their consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes. Since December 31, 2025, there has been no material adverse change in the business, assets, operations or condition, financial or otherwise, of the Obligors and their Subsidiaries, taken as a whole. Except as set forth on Schedule 10.2.1, after giving effect to the Transactions, none of the Obligors or their Subsidiaries have, as of the Closing Date, any material contingent liabilities or unrealized losses.
9.1.5 Properties; Priority of Liens. Each Obligor and Subsidiary has good title to, or valid leasehold interests in, all of its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes. Each Obligor and Subsidiary owns, or is licensed to use, all trademarks, trade names, copyrights, patents and other Intellectual Property material to its business, and the use thereof by the Obligors and Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that could not reasonably be expected to result in a Material Adverse Effect. All Liens of Collateral Agent in the Collateral are duly perfected, first priority Liens, subject only to Permitted Liens.
9.1.6 Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of Obligors, threatened in writing against or directly affecting any Obligor or Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect or (ii) that directly involve any of the Loan Documents or the Transactions.
(b) Except with respect to any other matters that could not reasonably be expected to result in a Material Adverse Effect, no Obligor or Subsidiary (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
9.1.7 Compliance with Laws and Agreements. Each Obligor and Subsidiary is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, including all Material Contracts and any agreements or other instruments governing any Material Debt of the Obligors or their Subsidiaries, except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is continuing.
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9.1.8 Investment Company Status. No Obligor or Subsidiary is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.
9.1.9 Taxes. Each Obligor and Subsidiary has timely (taking into account any valid extensions) filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being Properly Contested or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
9.1.10 ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. To the extent applicable, the present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plan, and the present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of all such underfunded Plans, in each of such cases so as to cause a Material Adverse Effect.
9.1.11 Disclosure. As of the Closing Date, Obligors have disclosed to Lenders all agreements, instruments and corporate or other restrictions to which any Obligor or Subsidiary is subject, and all other matters known to any of them that could, in each case, reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of any Obligor or Subsidiary to Administrative Agent, Collateral Agent or any Lender in connection with the negotiation of this Agreement or any other Loan Document, other than projected financial information, forward looking information and information of a general economic or industry specific nature (the “Information”), taken as a whole (after giving effect to all supplements and updates provided thereto) contained, as of the time it was furnished or delivered hereunder or thereunder (as modified or supplemented by other information so furnished), any misstatement of a material fact or omitted, as of such time, to state any material fact necessary in order to make the statements therein taken as a whole not materially misleading, in light of the circumstances under which they were made. With respect to projected financial information, Obligors only represent that such information, taken as a whole, has been prepared in good faith based upon assumptions believed to be reasonable at the time prepared and at the time furnished to the Administrative Agent, Collateral Agent, or any Lender, it being understood that such projections are subject to significant uncertainties and contingencies, and that actual results during the period or periods covered by any such projections may differ significantly from the projected results and such difference may be material, and that no assurance can be given that the projected results will be realized. As of the Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all respects.
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9.1.12 Capital Structure. Schedule 9.1.12 shows as of the Closing Date, for each Obligor and Subsidiary, its name, jurisdiction of organization, issued Equity Interests, holders of its Equity Interests, and agreements binding on such holders with respect to such Equity Interests. Except as disclosed on Schedule 9.1.12, in the five years preceding the Closing Date, no Obligor or Subsidiary has acquired any substantial assets from any other Person nor been the surviving entity in a merger or combination. Each Obligor has good title to its Equity Interests in its Subsidiaries, subject only to Collateral Agent’s Lien, and all such Equity Interests are duly issued, and, to the extent such concepts are applicable, fully paid and non-assessable. As of the Closing Date and except as disclosed on Schedule 9.1.12, there are no outstanding purchase options, warrants, subscription rights, agreements to issue or sell, convertible interests, phantom rights or powers of attorney relating to Equity Interests of any Obligor or Subsidiary. As of the Closing Date, Obligors have no Subsidiaries other than as set forth on Schedule 9.1.12 hereto. Obligors owns all of the Equity Interests in and to each Subsidiary listed on Schedule 9.1.12 hereto.
9.1.13 Insurance. As of the Closing Date, the Obligors and Subsidiaries maintain insurance in compliance with Section 10.1.7 and all premiums due in respect of such insurance have been paid.
9.1.14 Labor Matters. As of the Closing Date, there are no strikes, lockouts or slowdowns against any Obligor or Subsidiary pending or, to the knowledge of any Obligor, threatened. The hours worked by and payments made to employees of Obligors and Subsidiaries have not been in violation of the FLSA or any other applicable federal, state, local or foreign law dealing with such matters, except where such violation could not reasonably be expected to have a Material Adverse Effect. All payments due from any Obligor or Subsidiary, or for which any claim may be made against any Obligor or Subsidiary, 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 such Obligor or Subsidiary, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect. The consummation of the Transactions will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any Obligor or Subsidiary is bound, except where such right could not reasonably be expected to have a Material Adverse Effect.
9.1.15 Solvency. On the Closing Date, and after giving effect to the Transactions to be consummated on the Closing Date and immediately following the making of each Loan and after giving effect to the application of the proceeds of such Loans, Obligors and their Subsidiaries, on a consolidated basis, are Solvent.
9.1.16 Material Property Subject to Security Documents. The Collateral constitutes all of the real and material personal property owned by any Obligor (other than Excluded Property).
9.1.17 Property of Foreign Subsidiaries. As of the Closing Date, the aggregate book value of the total assets owned by Foreign Subsidiaries of any Obligor is no greater than 5% of the aggregate book value of the total assets owned by such Obligor and all of its Subsidiaries.
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9.1.18 Property of Immaterial Subsidiaries. As of the Closing Date, the aggregate revenues of the Immaterial Subsidiaries (other than Focus Genco or any Guarantor) for the twelve-month period ending on the last day of the most recently ended Fiscal Quarter did not exceed $100,000 and the aggregate value of assets owned by the Immaterial Subsidiaries (other than Focus Genco or any Guarantor) as of the last day of such Fiscal Quarter, together with the aggregate value of assets owned by Focus Genco as of the Closing Date, did not exceed $250,000.
9.1.19 Sanctions; Anti-Corruption Laws. No Obligor or Subsidiary, nor to the knowledge of any Obligor or Subsidiary, any director, officer, employee, agent, affiliate or representative thereof, is or is owned or controlled by any individual or entity that is currently the target of any Sanction or is located, organized or resident in a country or territory that is the target of any Sanction. Each Obligor and Subsidiary has conducted its business in compliance with all applicable Sanction, Anti-Corruption Laws and Anti-Terrorism Laws.
9.1.20 Affected Financial Institution. No Obligor or Subsidiary is an Affected Financial Institution.
9.1.21 Margin Stock. No Obligor or Subsidiary 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 Loan proceeds will be used by Obligors to purchase or carry, or to reduce or refinance any Debt incurred to purchase or carry, any Margin Stock or for any related purpose governed by Regulations T, U or X of the Federal Reserve Board of Governors.
9.1.22 Material Licenses and Permits; Material Contracts. Each of the Obligors and its Subsidiaries holds all permits, licenses, registrations, certificates, approvals, consents, clearances and other authorizations from any Governmental Authority required under any currently Applicable Laws for the operation of the business of such Persons as presently conducted, except where failure to hold any of the foregoing would not reasonably be expected to result in a Material Adverse Effect. Schedule 9.1.22 sets forth a list of all Material Contracts as in effect on the Closing Date, true and complete copies of which have been provided to the Administrative Agent.
9.1.23 Outbound Investment Rules. No Obligor or Subsidiary is a ‘covered foreign person’ as that term is used in the Outbound Investment Rules. No Obligor or Subsidiary currently engages, or has any present intention to engage in the future, directly or indirectly, in (i) a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if Borrower were a United States Person or (iii) any other activity that would cause Agent to be in violation of the Outbound Investment Rules or cause Agent to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
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Section 10. COVENANTS AND CONTINUING AGREEMENTS.
10.1 Affirmative Covenants. As long as any Obligations (other than contingent indemnification or reimbursement obligations for which no claim has been asserted) are outstanding, each Obligor shall, and shall cause each Subsidiary to:
10.1.1 Financial Statements and Other Information. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to Agent and Lenders:
(a) within 90 days after the end of each Fiscal Year, (i) the audited consolidated balance sheet of Parent and related statements of operations, shareholders’ equity and cash flows (including cash flows attributable solely to an Acquisition within the prior four quarter period) as of the end of and for such year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all reported on by independent public accountants of recognized national standing (without a “going concern” or like qualification, commentary or exception and without any qualification, commentary or exception as to the scope of such audit except to the extent such “going concern” qualification is solely attributable to (x) the Termination Date occurring within the next twelve months or (y) an actual or projected financial covenant default within the next twelve months), (ii) if, at any time, any Subsidiary of any Obligor is not a Wholly-Owned Subsidiary or any Excluded Subsidiary exists, the internally prepared consolidating balance sheet of Parent and related statements of operations, shareholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous Fiscal Year, and (iii) a schedule prepared by Obligors and certified by a Financial Officer of Borrower showing any adjustments to the audited consolidated financial statements which are necessary to demonstrate the financial condition and results of operations of Obligors and their consolidated Subsidiaries (excluding Excluded Subsidiaries), to the effect that such consolidated financial statements together with such schedule present fairly in all material respects the financial condition and results of operations of Obligors and their consolidated Subsidiaries (excluding Excluded Subsidiaries) on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, (i) the consolidated and consolidating balance sheet of Parent and related statements of operations, shareholders’ equity and cash flows (including cash flows attributable solely to an Acquisition within the prior four quarter period) as of the end of and for such Fiscal Quarter and the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year and (ii) a schedule prepared by Obligors showing any adjustments to the consolidated financial statements which are necessary to demonstrate the financial condition and results of operations of Obligors and their consolidated Subsidiaries (excluding Excluded Subsidiaries), all certified by Borrower’s chief financial officer as presenting fairly in all material respects the financial condition and results of operations of Obligors and their consolidated Subsidiaries (excluding Excluded Subsidiaries) on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with delivery of financial statements under clauses (a) and (b) above, a list of all Swaps then outstanding;
(d) concurrently with delivery of financial statements under clauses (a) and (b) above, a Compliance Certificate executed by a Financial Officer of Borrower (which shall calculate the Interest Coverage Ratio, Secured Leverage Ratio and Total Leverage Ratio, as applicable);
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(e) if, at any time, any Subsidiary is not a Wholly-Owned Subsidiary or any Excluded Subsidiary exists, then concurrently with any delivery of financial statements under clauses (a), (b), or (c) above, a certificate of a Financial Officer of Borrower setting forth consolidating spreadsheets that show all Subsidiaries that are not Wholly-Owned Subsidiaries and all Excluded Subsidiaries and the eliminating entries applicable to the preparation of consolidating financial statements, in such form as would be presentable to the auditors of Obligors;
(f) concurrently with delivery of financial statements under clauses (a) and (b) above, a Budget for the four-fiscal quarter period commencing with such fiscal quarter;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Parent or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by Parent to its shareholders generally, as the case may be;
(h) promptly upon receipt thereof, copies of (i) all material notices or requests regarding any Material Contract (including notices of cancellation, termination, rejection and/or counterparty default) and (ii) any construction progress or other reports in respect of material projects of the Obligors or their Subsidiaries prepared for the board of Parent; and
(i) such other reports and information (financial or otherwise) as Administrative Agent or Collateral Agent may reasonably request from time to time in connection with any Collateral or Borrower’s, Subsidiary’s or other Obligor’s financial condition, ownership or business, including information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation (to the extent applicable).
(j) Documents required to be delivered pursuant to Section 10.1.1(a), (b), (g) or (i) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which such documents are electronically filed with the SEC or (ii) on which such documents are delivered on Parent’s behalf to Administrative Agent for posting on an Internet or intranet website, if any, including Intralinks, administered by Administrative Agent and to which each Lender and Collateral Agent have access (whether a commercial, third-party website or whether sponsored by Agent); provided that Agent shall provide such of the foregoing information as it deems material to Lenders promptly upon receipt thereof from Obligors.
10.1.2 Notices. Notify Administrative Agent and Lenders in writing, promptly after a Borrower’s obtaining knowledge thereof, of any of the following affecting an Obligor: (a) a Default or Event of Default (each as therein defined) under any document evidencing any Material Debt; (b) existence of a Default or Event of Default; (c) material change in any accounting or financial reporting practice that affects calculation of the any covenant hereunder; (d) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting any Obligor or Subsidiary that could reasonably be expected to result in a Material Adverse Effect; (e) any material schedule delays (beyond nine (9) months) or variances from the most recently delivered Budget (of 30% or more), in each case, in respect of
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any material project exceeding; or (f) any other development that results in, or would reasonably be expected to result in, a Material Adverse Effect. Each notice delivered under this Section 10.1.2 shall be accompanied by a statement of a Senior Officer of Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
10.1.3 Information Regarding Obligors.
(a) Borrower will furnish to Agent prior written notice of any change (i) in any Obligor’s jurisdiction of organization, corporate name or in any trade name used to identify it in the conduct of its business or in the ownership of its properties, (ii) in the location of any Obligor’s chief executive office, its principal place of business, any office in which it maintains books or records relating to Collateral owned by it or any office or facility at which Collateral owned by it is located (including the establishment of any such new office or facility), (iii) in any Obligor’s or Subsidiary’s identity or corporate structure or (iv) in any Obligor’s Federal Taxpayer Identification Number. Obligors agree not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral. Obligors also agree promptly to notify Agent if any material portion of the Collateral is damaged or destroyed.
(b) After the Closing Date, Borrower will notify Agent in writing promptly upon any Obligor’s or any of their Wholly-Owned Subsidiaries’ acquisition or ownership of any personal property (other than Excluded Property) not already covered by this Agreement and the Security Documents (such acquisition or ownership being herein called an “Additional Collateral Event” and the property so acquired or owned being herein called “Additional Collateral”). As soon as practicable and in any event within sixty (60) days (or such longer period of time as may be acceptable to Administrative Agent in its sole discretion) after an Additional Collateral Event, the applicable Obligor shall (i) execute and deliver or cause to be executed and delivered Security Documents, in form and substance reasonably satisfactory to Collateral Agent, in favor of Collateral Agent and duly executed by such Obligor or such Subsidiary, covering and affecting and granting a first-priority Lien upon the applicable Additional Collateral, and such other documents (including, without limitation, all items required by Collateral Agent in connection with the Security Documents executed prior to the initial Loans being made hereunder, such as surveys, environmental assessments, certificates, legal opinions, all in form and substance reasonably satisfactory to Collateral Agent) as may be reasonably requested by Collateral Agent in connection with the execution and delivery of such Security Documents; and (ii) deliver or cause to be delivered by such Subsidiaries of such Obligor such other documents or certificates consistent with the terms of this Agreement and relating to the transactions contemplated hereby as Collateral Agent may reasonably request, it being understood and agreed that no Excluded Subsidiary shall be required to sign any Security Documents or grant any Liens in favor of the Collateral Agent.
10.1.4 Existence; Conduct of Business. (a) Do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence under the Applicable Laws of the jurisdiction of its organization and (b) take all reasonable action to maintain the rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of its business, the failure of which could not reasonably be expected to have a Material Adverse Effect; provided that the foregoing shall not prohibit any transaction permitted under Section 10.2.3.
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10.1.5 Payment of Obligations. Pay its Debt and other obligations, including liabilities for all material Taxes, before the same shall become delinquent or in default, except to the extent that the failure to so pay could not reasonably be expected to have a Material Adverse Effect or where the validity or amount thereof is being Properly Contested.
10.1.6 Maintenance of Properties. Obligors will, and will cause each Subsidiary to, keep and maintain all property necessary to the conduct of its business in good working order and condition, ordinary wear and tear excepted and except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
10.1.7 Insurance. Maintain, with financially sound and reputable insurance companies, insurance in such amounts (with no greater risk retention) and against such risks as are customarily maintained by companies of established repute engaged in the same or similar businesses operating in the same or similar locations. Obligors will furnish to the Lenders, upon request of Agent, information in reasonable detail as to the insurance so maintained.
10.1.8 Casualty and Condemnation. Borrower will furnish to the Collateral Agent prompt written notice of any casualty or other insured damage to any material portion of the Collateral or the commencement of any legal action or proceeding for the taking of any Collateral or any part thereof or interest therein under power of eminent domain or by condemnation or similar legal proceeding.
10.1.9 Books and Records; Inspections.
(a) Keep proper books of record and account in which full, true and correct entries, in all material respects in accordance with GAAP, are made, and permit representatives designated by Agent from time to time, subject (unless a Default or Event of Default exists) to reasonable notice and compliance with applicable health and safety protocols, and during normal business hours, to visit and inspect the Properties of any Obligor or Subsidiary, inspect, audit and make extracts from any Obligor’s or Subsidiary’s books and records, and discuss with its officers, employees, agents, advisors and independent accountants such Obligor’s or Subsidiary’s business, financial condition, assets, prospects and results of operations; provided that so long as no Default or Event of Default shall have occurred and be continuing, Agent shall only be permitted to conduct one such inspection during any twelve (12) month period for which the Borrower shall reimburse Agent for its reasonable and documented out-of-pocket charges, costs and expenses in connection therewith (and, for the avoidance of doubt, if a visit or inspection is initiated during a Default or Event of Default, all such charges, costs and expenses relating thereto shall be reimbursed by Obligors without regard to such limits on the frequency of inspections). Lenders may participate in any such visit or inspection, at their own expense. Agent shall not have any duty to any Obligor to make any inspection, nor to share any results of any inspection or report with any Obligor. Obligors acknowledge that all inspections and reports are prepared by Agent for its and the Lenders’ purposes, and Obligors shall not be entitled to rely upon them.
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(b) Reimburse Agent for all its reasonable and documented out-of-pocket charges, costs and expenses in connection with examinations of Obligors’ books and records or any other financial or Collateral matters as it deems appropriate, up to one time per calendar year; provided, that if an examination is initiated during a Default or Event of Default, all such charges, costs and expenses relating thereto shall be reimbursed by Obligors without regard to such limits on the frequency of examinations. Obligors shall pay Agent then standard charges for examination activities, including charges for its internal examination group, as well as the charges of any third party used for such purposes.
10.1.10 Compliance with Laws.
(a) Comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except (other than failure to comply with Anti-Terrorism Laws) where the failure to do so would not reasonably be expected to result in a Material Adverse Effect.
(b) Parent and each Subsidiary shall maintain policies and procedures designed to promote and achieve compliance with applicable Anti-Corruption Laws and Sanctions.
(c) Perform its obligations under material agreements (including all Material Contracts) to which it is a party, except, where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
10.1.11 Accuracy of Information. Obligors will ensure that any information, including financial statements or other documents (but excluding any projections and forecast financial information and information of a general economic nature or industry specific information), furnished in writing by or on behalf of any Obligor to the Agent or the Lenders in connection with this Agreement or any amendment or modification hereof or waiver hereunder (in each case, as modified or supplemented by other information so furnished) contains no material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading when taken as a whole with other previously provided information in any material respect, and the furnishing of such information shall be deemed to be a representation and warranty by Obligors on the date thereof as to the matters specified in this Section 10.1.11; provided however, that, notwithstanding the foregoing, with respect to projected financial information, Obligors will ensure that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
10.1.12 Future Subsidiaries. Promptly (and in any event within 10 days) notify Agent if any Person becomes a Subsidiary (other than an Immaterial Subsidiary) and deliver any know-your customer or other background diligence information reasonably requested by Agent or any Lender with respect to such Subsidiary; and (provided it is not a Foreign Subsidiary) cause it to become a “Guarantor” under this Agreement and to guaranty and grant Liens securing the Obligations, in each case in a manner reasonably satisfactory to Collateral Agent, and to execute and deliver such documents, instruments and agreements and to take such other actions as Collateral Agent shall reasonably require to evidence and perfect Liens in favor of Collateral Agent on all assets of such Person, including delivery of legal opinions, in form and substance reasonably
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satisfactory to Collateral Agent. Obligors shall not permit any Foreign Subsidiary to form, create or acquire a Domestic Subsidiary or Property that is located in the United States. If an Immaterial Subsidiary shall cease on any date to satisfy the conditions for qualification as an Immaterial Subsidiary, such Subsidiary shall be required to comply with the provisions of this Section 10.1.12 as if it had been newly formed or acquired on such date.
10.1.13 [Reserved].
10.1.14 Post-Closing Obligations. Each Obligor will complete each of the actions described in Schedule 10.1.14 as soon as commercially reasonable following the Closing Date, but in any event no later than the date set forth in Schedule 10.1.14 with respect to such action, or such later date as Administrative Agent in its sole discretion.
10.2 Negative Covenants. As long as any Commitment or Obligations (other than contingent indemnification or reimbursement obligations for which no claim has been asserted) are outstanding, each Obligor shall not, and shall cause each Subsidiary not to:
10.2.1 Permitted Debt. Create, incur, guarantee or permit to exist any Debt, except:
(a) the Obligations;
(b) Debt incurred or which may be deemed to exist pursuant to any Guarantees, performance, statutory or similar obligations (including in connection with workers’ compensation) or obligations in respect of letters of credit, surety bonds, bank guarantees or similar instruments related thereto incurred in the ordinary course of business, or pursuant to any appeal obligation, appeal bond or letter of credit in respect of judgments that do not constitute an Event of Default under Section 11.1(h);
(c) Debt existing on the date hereof and set forth in Schedule 10.2.1(c) with the outstanding principal amount set forth on such Schedule and extensions, renewals, refinancings and replacements of all or any part thereof that do not increase the outstanding principal amount thereof by more than a reasonable premium or other reasonable amount of fees and expenses incurred in connection with such extension, renewal, refinancing or replacement; provided that, no Obligor or Subsidiary shall be obligated thereunder, either as a borrower or guarantor, unless such Person was obligated thereunder on the date hereof or required to be added thereto in the documentation evidencing same on the closing date hereof;
(d) (i) Debt of any Obligor to any other Obligor; and (ii) Debt of any Domestic Subsidiary that is not an Obligor to any Obligor to the extent such investment is permitted under Section 10.2.4;
(e) Guarantees of Debt permitted under this Section 10.2.1 subject to the same restrictions that would otherwise apply to such Debt;
(f) Unsecured convertible Subordinated Debt of Borrower incurred in connection with the Permitted Convertible Debt and the related Permitted Intercompany Note in an aggregate principal amount not to exceed the amount outstanding as of the Closing Date (i.e., $902,500,000);
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(g) Exposure resulting from any Swap permitted under Section 10.2.7 hereof;
(h) Debt in respect of netting services, overdraft protection and similar arrangements, in each case, in connection with cash management and deposit accounts incurred in the Ordinary Course of Business;
(i) customer deposits and advance payments received by an Obligor or any Subsidiary in the Ordinary Course of Business from customers for goods and services purchased in the Ordinary Course of Business;
(j) Debt representing deferred compensation to directors, officers, employees, members of management and consultants of the Obligors or any Subsidiary in the Ordinary Course of Business;
(k) Debt arising from the financing of any insurance premium of any Obligor or Subsidiary in the Ordinary Course of Business, so long as (i) such Debt shall not be in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the underlying term of such insurance policy, (ii) any unpaid amount of such Debt is fully cancelled upon termination of the underlying insurance policy, and (iii) the aggregate principal amount of Debt at any time outstanding pursuant to this clause shall not exceed $15,000,000;
(l) Debt incurred by the Obligors or Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(m) obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Obligors or Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the Ordinary Course of Business;
(n) other Debt of the Obligors or their Subsidiaries in an aggregate principal amount not to exceed $10,000,000, so long as, immediately before and after giving effect to the creation, incurrence or assumption thereof, no Default or Event of Default shall have occurred and be continuing;
(o) Debt of Borrower and Genco Buyer under the Genco Facilities existing on the date hereof in an aggregate amount not to exceed $163,949,583.58;
(p) the Specified BofA Obligations in an aggregate amount not to exceed $500,000 at any time outstanding; and
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(q) obligations under the Specified BofA LC in an aggregate principal amount not to exceed $215,000.
Notwithstanding the foregoing, Obligors and their Subsidiaries shall not Guarantee any Debt of Parent.
10.2.2 Permitted Liens. Create or permit to exist any Lien upon any of its Property, except the following (collectively, “Permitted Liens”):
(a) Liens in favor of Collateral Agent;
(b) Liens on the Specified Genco Assets, to the extent securing Debt permitted under Section 10.2.1(o);
(c) any Lien on any property or asset of an Obligor or Subsidiary existing on the date hereof and set forth in Schedule 10.2.2 and any renewals and extensions thereof that do not increase the outstanding principal amount secured (other than for reasonable and customary transaction costs incurred in connection with such renewal or extension) or the properties or assets (or replacements thereof) covered thereby;
(d) Liens on cash collateral securing Debt permitted under Section 10.2.1(p) or 10.2.1(q);
(e) [reserved];
(f) [reserved];
(g) Liens securing Debt permitted under Section 10.2.1(k) hereof; provided that such Liens shall encumber only the insurance proceeds of the insurance financed thereby;
(h) Liens deemed to arise in connection with Investments permitted under Section 10.2.4; and
(i) Permitted Encumbrances.
10.2.3 Fundamental Changes.
(a) Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that (i) any Subsidiary may merge into a Borrower in a transaction in which such Borrower is the surviving Person, (ii) any Subsidiary may merge into any Domestic Subsidiary in a transaction in which the surviving entity is a Domestic Subsidiary and any Foreign Subsidiary may merge into any other Foreign Subsidiary; provided that, if an Obligor is involved, an Obligor must be the surviving entity, (iii) any Subsidiary of Borrower may liquidate or dissolve if Borrower determines in good faith that such liquidation or dissolution is in the best interests of Borrower and is not materially disadvantageous to the Lenders and if such Subsidiary is a Domestic Subsidiary, its assets are transferred to a Borrower or a Domestic Subsidiary; provided that, if such Subsidiary is a Guarantor, its assets must be transferred to an Obligor, (iv) Borrower or any Subsidiary may give
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effect to a merger or consolidation the purpose of which is to effect an Investment, Disposition or Acquisition permitted under Section 10 so long as Borrower continues in existence and the surviving entity is a Domestic Subsidiary; provided that, if a Subsidiary that is an Obligor is involved then the surviving entity must be an Obligor, and (v) the Obligors and their Subsidiaries may take the actions contemplated by the Genco Acquisition Steps;
(b) engage to any material extent in any business other than businesses of the type conducted by Obligors and Subsidiaries on the Closing Date and businesses reasonably related thereto and reasonable extensions thereof.
10.2.4 Investments, Loans, Advances, Guarantees and Acquisitions. Purchase, hold or acquire (including pursuant to any merger with any Person that was not a Wholly-Owned Subsidiary of Borrower or that is a Foreign Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other similar interest in, any other Person, or consummate any Acquisition (each, an “Investment”), except:
(a) Investments existing on the date hereof and set forth on Schedule 10.2.4;
(b) Permitted Investments;
(c) loans or advances by Obligors or any of their Subsidiaries to their respective employees, directors, managers, officers, agents, customers, or suppliers in the Ordinary Course of Business, not to exceed $1,000,000 in the aggregate at any one time outstanding;
(d) Accounts receivable owned by Obligors or any of their Subsidiaries, if created in the Ordinary Course of Business and payable or dischargeable in accordance with customary trade terms;
(e) (i) Guarantees of the obligations (other than Debt) of any Domestic Subsidiary that is not a Wholly-Owned Subsidiary by any other Domestic Subsidiary that is not a Wholly-Owned Subsidiary, and (ii) Guarantees of the obligations (other than Debt) of an Obligor by any other Obligor;
(f) the grant of trade credit in the Ordinary Course of Business and payable or dischargeable in accordance with customary trade terms and Investments (i) received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the Ordinary Course of Business or (ii) received in settlement of debts created in the Ordinary Course of Business and owing to any Obligor or Subsidiary or in satisfaction of judgments;
(g) Investments (i) by any Obligor in any other Obligor, (ii) by any Domestic Subsidiary that is not an Obligor in any other Domestic Subsidiary that is not an Obligor, (iii) by any Foreign Subsidiary in any other Foreign Subsidiary, or (iv) by a Borrower or any Domestic Subsidiary in Foreign Subsidiaries in an aggregate amount not exceeding the sum of (A) $1,000,000 in the form of cash plus (B) $15,000,000 in the form of tangible Property plus (C) the amount of third party equity contributions made to the Borrower that are used to fund such Investments;
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(h) so long as no Event of Default has occurred and remains continuing or would result from any such Investment, Investments in an Excluded Subsidiary in an aggregate amount (determined at the time such Investment is made) not to exceed (after the Closing Date) $25,000,000; provided that, no Investments under this Section 10.2.4(h) shall be permitted unless and until all Equity Interests directly owned by any Obligor in an Excluded Subsidiary are pledged in favor of the Collateral Agent;
(i) Investments consisting of lease deposits, utility deposits, deposits under commercial contracts or pursuant to Permitted Acquisitions, and other similar deposits in the Ordinary Course of Business;
(j) (i) Investments in assets useful in the business of any Obligor using the proceeds of any disposition made by an Obligor permitted by Section 10.2.5, and (ii) Investments in assets useful in the business of any Subsidiary that is not an Obligor using the proceeds of any disposition made by any Subsidiary that is not an Obligor permitted by Section 10.2.5;
(k) [reserved];
(l) to the extent constituting an Investment, any Permitted Capped Call Transaction (including the economic benefit of such Permitted Capped Call Transaction embedded into the terms of the Permitted Intercompany Note);
(m) Investments consisting of the Genco Acquisition and the Colusa Acquisition (each, a “Permitted Acquisition”);
(n) Investments acquired after the Closing Date as the result of a Permitted Acquisition to the extent that such Investments were not made in contemplation of such Permitted Acquisition and were in existence on the date of such Permitted Acquisition; and
(o) other Investments in an aggregate amount not to exceed at any one time outstanding $25,000,000; provided that before and after giving effect to such Investment, no Default or Event of Default shall have occurred and be continuing.
10.2.5 Asset Sales. Make any Disposition, except:
(a) sales of inventory, used, obsolete, worn out, worthless or surplus equipment, and cash and cash equivalents in the Ordinary Course of Business;
(b) (i) Dispositions solely between or among Obligors and (ii) Dispositions solely between or among Subsidiaries that are not Obligors;
(c) Dispositions not otherwise permitted hereunder which are made for fair market value provided, that (i) at the time of any such disposition, no Default or Event of Default shall exist or shall result from such disposition, and (ii) the aggregate fair market value in any Fiscal Year of all assets so sold by Obligors or any of their Subsidiaries pursuant to this clause (c) shall not exceed $25,000,000;
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(d) Dispositions to an Excluded Subsidiary made as Investments therein but only to the extent such Investments are permitted under Section 10.2.4(h);
(e) Investments permitted by Section 10.2.4;
(f) Dispositions of (i) Equity Interests of the Borrower in full or partial satisfaction of Debt incurred pursuant to Section 10.2.1(f) and (ii) cash and cash equivalents to the extent necessary to cash settle fractional Equity Interests of Parent or Borrower in connection with the full or partial satisfaction of Debt incurred pursuant to Section 10.2.1(f);
(g) Dispositions of Accounts, in the Ordinary Course of Business, in connection with the compromise or settlement thereof;
(h) Dispositions resulting from any casualty or other insured damage to, or any taking under the power of eminent domain or by condemnation or similar proceeding of, any property or asset of Obligors and Subsidiaries;
(i) Dispositions of property made or deemed made solely because of the creation of Liens permitted under 10.2.2; and
(j) leases, subleases, licenses or sublicenses, in each case in the Ordinary Course of Business and which do not materially interfere with the business of Obligors and Subsidiaries.
provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by clauses (b), (d), (e), (f), (i), and (j) above) shall be made for fair value and solely for cash consideration, provided further that, notwithstanding anything in this Agreement or any other Loan Document to the contrary, no Disposition of any material Intellectual Property shall be made by any Obligor or Subsidiary to an Excluded Subsidiary except to the extent such Disposition constitutes the granting of a non-exclusive license therefor.
10.2.6 Sale and Leaseback Transactions. Enter into any arrangement, directly or indirectly, whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereinafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred.
10.2.7 Swaps. Enter into any Swap, other than Swaps entered into in the Ordinary Course of Business to hedge or mitigate risks to which an Obligor or any Subsidiary is exposed in the conduct of its business or the management of its liabilities.
10.2.8 Restricted Payments. Declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
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(a) Borrower may declare and pay dividends with respect to its Equity Interests (i) payable or settleable solely in additional shares of its Equity Interests (other than Disqualified Equity Interests) (including for satisfaction of Debt incurred pursuant to Section 10.2.1(f)) and (ii) to the extent necessary to cash settle fractional Equity Interests of Parent or Borrower in connection with satisfaction of Debt incurred pursuant to Section 10.2.1(f);
(b) (i) Subsidiaries that are not Obligors may declare and pay dividends ratably with respect to their Equity Interests and (ii) Obligors may make Restricted Payments to other Obligors;
(c) Borrower may pay Permitted Tax Distributions and Subsidiaries may make cash dividends to Borrower for purposes of Borrower making such Permitted Tax Distributions;
(d) so long as, both at the time of, and immediately after effect has been given to, such proposed action, no Default or Event of Default shall have occurred and be continuing:
| (A) | Borrower may make distributions to Parent to be used to pay operating expenses of Parent to the extent incurred in the Ordinary Course of Business, together with other corporate overhead costs and expenses (including legal, administrative, accounting and similar expenses and franchise Taxes and other fees, Taxes and expenses required to maintain the corporate existence of Parent), which are reasonable and customary, provided that no such distribution may be made in respect of costs and expenses attributable to Excluded Subsidiaries except to the extent a like amount therefor has been received by Obligors from Excluded Subsidiaries (including by payments under the Management Agreement), |
| (B) | Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management, directors or employees of Borrower or Parent, |
| (C) | Borrower may make Restricted Payments, including, without limitation, to purchase, redeem, retire, or otherwise acquire its Equity Interests, to the extent such Restricted Payments are made from the substantially concurrent receipt by Borrower of third-party capital contributions or the substantially concurrent issuance of new Equity Interests of Borrower, and |
| (D) | Borrower may make repurchases, redemptions or exchanges of Equity Interests of Borrower or Parent deemed to occur upon exercise of stock options or exchange of exchangeable shares if such Equity Interests represent a portion of the exercise price of such options and may make repurchases, redemptions or other acquisitions or retirements for value of Equity Interests of Borrower or Parent made in lieu of withholding Taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; and |
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(e) so long as, both at the time of declaration thereof, and after giving pro forma effect thereto, no Default or Event of Default shall have occurred and be continuing, Borrower may declare and pay dividends with respect to its Equity Interests to allow Parent to make dividends to the holders of its “Class A” common stock up to $0.12 per share quarterly.
10.2.9 Transactions with Affiliates. Sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) transactions in the Ordinary Course of Business that are at prices and on terms and conditions not less favorable to such Person than could be obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among Obligors not involving any other Affiliates, (c) any Restricted Payment permitted by Section 10.2.8 and other intercompany transactions expressly permitted by this Agreement and (d)(i) Investments in (to the extent permitted under Section 10.2.4), (ii) Dispositions to (to the extent permitted under Section 10.2.5) and (iii) the provision of management and support services and seconding of employees to (pursuant to the Management Agreement in the case of this clause (iii)), an Excluded Subsidiary.
10.2.10 Restrictive Agreements. Directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of Obligors or Subsidiaries to create, incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to Obligors or any other Subsidiary or to Guarantee Debt of any Obligor or Subsidiary; provided that the foregoing shall not apply to (i) restrictions and conditions imposed by law or by any Loan Document or any permitted extension, renewal, refinancing or replacement thereof, (ii) customary restrictions and conditions in agreements relating to the sale of an asset or a Subsidiary which sale is otherwise permitted hereunder, (iii) customary restrictions and provisions in joint venture agreements and other similar agreements applicable to joint ventures to the extent such joint ventures are permitted hereunder, (iv) customary provisions in commercial agreements arising in the Ordinary Course of Business and restricting leases, subleases, licenses, or sublicenses, (v) customary restrictions and conditions contained in any agreement relating to any agreement that is permitted under Section 10.2.1, Section 10.2.2, Section 10.2.5, or is otherwise permitted by this Agreement, or (vi) restrictions or conditions in agreements already in existence as of the Closing Date and disclosed to Agent in writing and any renewal, extension, or replacement thereof.
10.2.11 Amendment of Material Documents. Amend, modify or waive any of its rights under Material Debt, the Tax Receivable Agreement, the Management Agreement, or its organizational documents, in each case, in any manner adverse to the Lenders.
10.2.12 [Reserved].
10.2.13 Prepayment of Certain Debt. Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of the subordination terms of, any Debt except:
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(a) the prepayment of the Obligations in accordance with the terms of this Agreement;
(b) regularly scheduled or required prepayments, repayments or redemptions of Debt permitted under Section 10.2.1 (other than Debt permitted under Section 10.2.1(f) and Guarantees of the foregoing) and refinancings and refundings of such Debt so long as such refinancings and refundings would otherwise comply with Section 10.2.1;
(c) [reserved];
(d) the prepayment, redemption, purchase, defeasance or other satisfaction of intercompany Debt permitted under Section 10.2.1 solely between and among Obligors subject to any subordination provisions in the Guaranty;
(e) with respect to Debt incurred pursuant to Section 10.2.1(f), (i) regularly scheduled payments of interest (in cash or Equity Interests) so long as no Event of Default exists or would result therefrom and (ii) the prepayment, redemption, conversion or other satisfaction of such Debt, in the case of this clause (ii), prior to the stated maturity date thereof solely to the extent paid in, converted to or satisfied with Equity Interests (other than Disqualified Equity Interests) of Borrower and/or any cash necessary to settle fractional Equity Interests of Borrower in connection such prepayment, redemption, conversion or other satisfaction.; and
(f) the prepayment, redemption, purchase, defeasance or other satisfaction of intercompany Debt permitted under Section 10.2.1 owing by any Subsidiary that is not an Obligor to an Obligor or owing by an Obligor to an Obligor.
No Obligor shall, nor shall it permit any of its Subsidiaries to, make any payments of principal or interest with respect to Subordinated Debt, except to the extent permitted under the subordination terms set forth in the Subordinated Debt Documents; provided, that Debt incurred pursuant to Section 10.2.1(f) may be paid as set forth in clause (e) above. Notwithstanding the foregoing, no principal, redemption, repurchase or conversion payments may be made in cash (other than cash settlements for fractional Equity Interests of Parent or Borrower) with respect to Debt incurred pursuant to Section 10.2.1(f) during the term of this Agreement or if an Event of Default exists or would result therefrom.
10.2.14 Property of Foreign Subsidiaries. Permit the aggregate book value of the total assets owned by Foreign Subsidiaries of Obligors to exceed 10% of the aggregate book value of the total assets owned by Obligors and all of their Subsidiaries, unless one or more Foreign Subsidiaries that are organized under the laws of Canada (or any province or territory thereof) or another jurisdiction approved by Required Lenders in their discretion become Guarantors and grant Liens on their assets to secure the Obligations such that, after giving effect to such actions, the aggregate book value of the total assets owned by Foreign Subsidiaries that are not Obligors does not exceed such percentage.
10.2.15 Property of Immaterial Subsidiaries. Permit the aggregate of all revenues of the Immaterial Subsidiaries (other than, with respect to periods prior to the Closing Date, Focus Genco) for any twelve month period ending on the last day of any Fiscal Quarter to exceed $200,000 and will not permit the aggregate value of assets owned by the Immaterial
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Subsidiaries to exceed $500,000, unless the assets of one or more Immaterial Subsidiaries are pledged, on terms reasonably satisfactory to the Administrative Agent, to secure the Obligations and such Immaterial Subsidiary shall execute a Guaranty of the Obligations, on terms reasonably satisfactory to Administrative Agent (whereupon such Subsidiary shall no longer be deemed an Immaterial Subsidiary), within 45 calendar days (or such longer period as the Administrative Agent may agree in its sole discretion) after a Senior Officer of Borrower has knowledge of the existence of such excess, in any event such that after giving effect to such pledge and guaranty, the aggregate of all such revenues and assets of any then-remaining Immaterial Subsidiaries (other than, in the case of revenues for periods prior to the Closing Date, Focus Genco) would not exceed the amounts set forth above for such period.
10.2.16 [Reserved].
10.2.17 Parent and Debt. Obligors shall at all times be and remain consolidated subsidiaries of Parent under GAAP. Parent shall not hold any material assets, become liable for any material obligations, engage in any trade or business or conduct any business activity, other than:
(a) pursuant to the Genco Acquisition Steps;
(b) the maintenance of its legal existence in compliance with Applicable Law,
(c) the issuance of its Equity Interests to its shareholders,
(d) the making of dividends or distributions on its Equity Interests,
(e) the ownership of the Equity Interests of Borrower,
(f) the filing of registration statements, and compliance with applicable reporting and other obligations, under federal, state or other securities laws,
(g) the performance of obligations under and compliance with its organizational documents, or any applicable law, ordinance, regulation, rule, order, judgment, decree or permit, including as a result of or in connection with the activities of its Subsidiaries, or the customary conduct of the activities of a publicly traded holding company,
(h) the incurrence and payment of its operating and business expenses and any Taxes for which it may be liable,
(i) the execution and delivery of any Loan Documents to which it is a party and the performance of its obligations thereunder (and the acknowledgment of any related intercreditor agreement),
(j) the making of payments under the Tax Receivable Agreement (and the compliance with other obligations thereunder),
(k) the unsecured convertible Debt in existence as of the Closing Date and set forth on Schedule 10.2.17 (the “Permitted Convertible Debt”), the Permitted Intercompany Note, the Permitted Capped Call Transactions entered into in connection with the foregoing and the acquisition of Equity Interests and/or Debt of Borrower in connection with same,
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(l) activities incidental to any of the foregoing, and
(m) the management and payment for legal, tax and accounting matters in connection with any of the foregoing.
10.2.18 Excluded Subsidiaries. Permit any Excluded Subsidiary to (i) create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Debt pursuant to which a lender or any other Person has recourse to Parent, any Obligor or any Subsidiary other than an Excluded Subsidiary or any of the assets of Parent, any Obligor or any Subsidiary other than an Excluded Subsidiary, (ii) be party to any agreement or arrangement with Parent, any Obligor or any Subsidiary other than an Excluded Subsidiary unless the terms of any such agreement or arrangement are permitted under Section 10.2.9, (iii) own (directly or indirectly) Equity Interests in Parent, any Obligor or any Subsidiary other than an Excluded Subsidiary, or (iv) hold any Debt of, or Liens on, Parent, any Obligor or any Subsidiary other than an Excluded Subsidiary (or any of their respective assets); (b) make any Investment in or to any Excluded Subsidiary or their subsidiaries other than as permitted under Section 10.2.4(h); or (c) provide, or permit Parent to provide, any credit support of any kind for, Guarantee or otherwise become directly or indirectly liable for any Debt or other obligations of Excluded Subsidiaries or their subsidiaries.
10.2.19 Material Contracts. (a) Enter into any Material Contract except on an arm’s length basis, (b) cancel or terminate any Material Contracts (other than in accordance with the terms of such Material Contract) or consent to or accept any cancellation or termination (other than in accordance with the terms of such Material Contract), materially amend or otherwise materially modify any Material Contract or waive any material default under or material breach of any Material Contract, in each case, if such cancellation, termination, material amendment or modification or waiver is materially adverse to the Lenders or (c) agree in any manner to any other material amendment, modification or change of any material term or condition of any Material Contract or take any other material action in connection with any Material Contract that would (as reasonably determined by Borrower) materially impair the value of the interest or rights of Obligor or any Subsidiary, as applicable, thereunder or that would (as reasonably determined by Borrower) materially impair the interest, rights, remedies or benefits available to Agent or any Lender.
10.2.20 Outbound Investment Rules. Permit any Obligor or Subsidiary to, (a) be or become a “covered foreign person”, as that term is defined in the Outbound Investment Rules, or (b) engage, directly or indirectly, in (i) a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if Borrower were a United States Person or (iii) any other activity that would cause Agent to be in violation of the Outbound Investment Rules or cause Agent to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
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10.3 Financial Covenant.
10.3.1 As long as any Obligations (other than contingent indemnification or reimbursement obligations for which no claim has been asserted) are outstanding, Parent and Obligors shall maintain:
(a) an Interest Coverage Ratio of at least 3.00 to 1.00 as of the last day of each fiscal quarter of Parent, beginning with the fiscal quarter ending June 30, 2026;
(b) a Total Leverage Ratio of not greater than 5.25 to 1.00 as of the last day of each fiscal quarter of Parent, beginning with the fiscal quarter ending June 30, 2026; provided, that upon the consummation of the Genco Acquisition, for each of the four fiscal quarters of Parent immediately following the consummation of the Genco Acquisition (including the fiscal quarter of Parent in which the Genco Acquisition was consummated), the ratio set forth above shall be increased by 0.25:1.00 (such period, the “Leverage Increase Period”); provided, further, that after the consummation of the Genco Acquisition, each Leverage Increase Period shall only apply with respect to the calculation of the Total Leverage Ratio as of the end of any fiscal quarter of Parent for purposes of determining compliance with this Section 10.3.1(b);
(c) a Secured Leverage Ratio of not greater than 3.50 to 1.00 as of the last day of each fiscal quarter of Parent, beginning with the fiscal quarter ending June 30, 2026; and
(d) a Liquidity Amount of not less than $50,000,000.
10.3.2 Notwithstanding anything to the contrary contained in Section 11.1, in the event that Borrower fails to comply with any covenant set forth in Section 10.3.1 for any applicable period (a “Financial Covenant Default”), and until the expiration of the tenth (10th) Business Day after the date on which financial statements are required to be delivered for such period pursuant to Section 10.1.1(a) or (b) and the corresponding Compliance Certificate to be delivered pursuant to Section 10.1.1(d) with respect to the applicable fiscal quarterly period hereunder, the Borrower may (in accordance with applicable law) sell or issue common Equity Interests to any Person that is not a Obligor (to the extent such transaction would not result in a Change of Control) or otherwise obtain cash capital contributions on account of common Equity Interests and, in either case, apply the proceeds of such issuance of Equity Interests to increase EBITDA (such application, a “Covenant Cure Payment”); provided that (i) the proceeds of such issuance of Equity Interests or cash capital contribution, as applicable, are actually received by the Borrower no later than ten (10) Business Days after the date on which financial statements, for the applicable period for which such Financial Covenant Default has occurred, are required to be delivered pursuant to Section 10.1.1(a) or (b) and the corresponding Compliance Certificate to be delivered pursuant to Section 10.1.1(d) with respect to such fiscal quarter hereunder and (ii) the amount of the Covenant Cure Payment shall not exceed the amount necessary to bring the Borrower into compliance with Section 10.3.1, if any. Upon (A) application of the proceeds of such issuance of Equity Interests or cash capital contribution, as applicable, as provided above within the ten (10) Business Day period described above in such amounts sufficient to cure the Events of Default under the covenants set forth in Section 10.3.1, and (B) delivery of an updated Compliance Certificate executed by a financial officer to the Administrative Agent reflecting compliance with the covenants set forth in Section 10.3.1, as applicable, the Borrower shall be deemed to have satisfied the requirements of such covenants as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such
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date, and the applicable breach of the covenant and any related default that had occurred shall be deemed cured and no longer in existence. For the avoidance of doubt, the amount of any Covenant Cure Payment made in accordance with the terms of this Section 10.3.2 shall be deemed to increase EBITDA by a like amount for purposes of calculating the Interest Coverage Ratio, Secured Leverage Ratio or Total Leverage Ratio for the relevant fiscal quarter.
The parties hereby acknowledge and agree that this Section 10.3.2 may not be relied on for purposes of calculating any financial ratios or other conditions or compliances other than the financial covenants set forth in Section 10.3.1 and shall not result in any adjustment to any amounts (including, for the avoidance of doubt, any decrease to Debt with the proceeds of such issuance of Equity Interests or other cash capital contribution, as applicable) other than the amount of EBITDA referred to in Section 10.3.1 above for purposes of determining the Borrower’s compliance with Section 10.3.1. To the extent a Covenant Cure Payment is applied to increase EBITDA, such Covenant Cure Payment shall only be taken into account in connection with the calculations of the covenants contained in Section 10.3.1 as of a particular fiscal quarter end and any subsequent calculations of such covenants which contain such particular fiscal quarter as part of its trailing twelve-month period or trailing four quarter period.
The cure rights provided in this Section 10.3.2 may not be exercised in any two consecutive quarters. The Borrower may not utilize more than five cures provided in this Section 10.3.2 during the duration of this Agreement.
Section 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT.
11.1 Events of Default. Each of the following shall be an “Event of Default” if it occurs for any reason whatsoever, whether voluntary or involuntary, by operation of law or otherwise:
(a) Borrower fails to pay any principal of any Loan when due (whether at stated maturity, upon acceleration or otherwise);
(b) Borrower fails to pay any interest, fee or other Obligation payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three (3) Business Days;
(c) Any written representation or warranty made by an Obligor made in connection with any Loan Documents or transactions contemplated thereby is incorrect or misleading in any material respect when given or made;
(d) Parent (with respect only to Section 10.3), an Obligor or Subsidiary breaches or fails to perform any covenant contained in Section 2.1.3, 10.1.1(a), (b), (d), (e) and (f), 10.1.2, 10.1.3(b), 10.1.12 (but only to the extent such breach or failure relates to the notice period set forth therein), 10.1.14, 10.2 or 10.3;
(e) Parent, an Obligor or Subsidiary breaches or fails to perform any other covenant contained in any Loan Document, and such breach or failure is not cured within 30 days after a Senior Officer of Parent, such Obligor or Subsidiary has knowledge thereof or receives notice thereof from Administrative Agent, whichever is sooner;
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(f) A Guarantor repudiates, revokes or attempts to revoke its Guaranty; Parent or an Obligor denies or contests the validity or enforceability of any Loan Documents or Obligations, or the perfection or priority of any Lien granted to Collateral Agent; it is unlawful for an Obligor to perform any of its material obligations under a Loan Document; or any Loan Document ceases to be in full force or effect for any reason (other than as a result of a waiver or release by Administrative Agent and Lenders or as otherwise permitted hereunder or thereunder);
(g) (i) Any event or condition occurs that results in any Material Debt becoming due prior to its scheduled maturity or (ii) any event or condition occurs that enables or permits (after giving effect to all applicable notice and cure periods) the holder or holders of any Material Debt or any trustee or agent on its or their behalf to cause any Material Debt to become due, or to require the redemption thereof or any offer to redeem to be made in respect thereof, prior to its scheduled maturity or require Parent, any Obligor or Subsidiary to make an offer in respect thereto; provided, however, that none of the following events will, in and of themselves, be a Default or Event of Default under this Section 11.1(g): (x) the occurrence of any customary event or condition that vests the right of any holder of convertible Debt to submit any such Debt for conversion in accordance with its terms (including any corresponding right of Parent pursuant to the Permitted Intercompany Note vis-à-vis Borrower), provided such event or condition does not result from a breach by Parent or any Obligor of the terms of such Debt; or (y) any actual conversion of any convertible Debt in accordance with its terms;
(h) One or more judgments for the payment of money in an aggregate amount in excess of $5,000,000 (exclusive of amounts covered by insurance that has not been denied by the insurer) shall be rendered against any Obligor or Subsidiary and the same shall remain undischarged for a period of sixty (60) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Obligor or Subsidiary to enforce any such judgment;
(i) An Obligor agrees to or commences any liquidation, dissolution or winding up of its affairs; or Obligors, on a consolidated basis, are not Solvent;
(j) (i) An Insolvency Proceeding is commenced by an Obligor, Excluded Subsidiary or Subsidiary; (ii) an Obligor, Excluded Subsidiary or Subsidiary makes an offer of settlement, extension or composition to its unsecured creditors generally; (iii) a trustee is appointed to take possession of any substantial Property of or to operate any business of an Obligor, Excluded Subsidiary or Subsidiary; or (iv) an Insolvency Proceeding is commenced against an Obligor, Excluded Subsidiary or Subsidiary, and the Obligor, Excluded Subsidiary or Subsidiary consents to institution of the proceeding, the petition commencing the proceeding is not timely contested by the Obligor, Excluded Subsidiary or Subsidiary, the petition is not dismissed within 60 days after filing or an order for relief is entered;
(k) (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan that has resulted or could reasonably be expected to result in liability of an Obligor to a Pension Plan, Multiemployer Plan or the PBGC; (ii) an Obligor or ERISA Affiliate fails to pay when due any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan; or (iii) any event similar to the foregoing occurs or exists with respect to a Foreign Plan; in the case of subclause (i), (ii) or (iii) has resulted or could reasonably expected to result in liability of an Obligor to a Pension Plan, Multiemployer Plan or the PBGC that, when taken together with all similar events that have occurred, in the reasonable opinion of the Administrative Agent could reasonably be expected to result in a Material Adverse Effect;
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(l) any Lien purported to be created under any Security Document shall be asserted by Parent, any Obligor or Subsidiary not to be a valid and perfected Lien on any Collateral, with the priority required by the applicable Security Document, except as a result of the sale or other disposition of the applicable Collateral in a transaction permitted under the Loan Documents; and
(m) A Change of Control occurs.
11.2 Remedies upon Default. If an Event of Default under Section 11.1(j) occurs with respect to any Obligor, then to the extent permitted by Applicable Law, all Obligations shall become automatically due and payable, without any action by Agent or notice of any kind. In addition, or if any other Event of Default exists, Agent may in its reasonable discretion (and shall upon written direction of Required Lenders) do any one or more of the following from time to time:
(a) declare any Obligations immediately due and payable, whereupon they shall be due and payable without diligence, presentment, demand, protest or notice of any kind, all of which are hereby waived by Obligors to the fullest extent permitted by law; and
(b) exercise any other rights or remedies afforded under any agreement, by law, at equity or otherwise, including the rights and remedies of a secured party under the UCC. Such rights and remedies include the rights to (i) take possession of any Collateral; (ii) require Obligors to assemble Collateral, at Obligors’ expense, and make it available to Collateral Agent at a place designated by Collateral Agent; (iii) subject to the terms of any applicable Lien Waiver, enter any premises where Collateral is located and store Collateral on such premises until sold (and if the premises are owned or leased by an Obligor, Obligors agree not to charge for such storage); and (iv) sell or otherwise dispose of any Collateral in its then condition, or after any further manufacturing or processing thereof, at public or private sale, with such notice as may be required by Applicable Law, in lots or in bulk, at such locations, all as Collateral Agent, in its reasonable discretion, deems advisable. Each Obligor agrees that 10 days’ notice of any proposed sale or other disposition of Collateral by Collateral Agent shall be reasonable, and that any sale conducted on the internet or to a licensor of Intellectual Property shall be commercially reasonable. Collateral Agent may conduct sales on any Obligor’s premises, without charge, and any sale may be adjourned from time to time in accordance with Applicable Law. Collateral Agent shall have the right to sell, lease or otherwise dispose of any Collateral for cash, credit or any combination thereof, and Collateral Agent may purchase any Collateral at public or, if permitted by law, private sale and, in lieu of actual payment of the purchase price, may credit bid and set off the amount of such price against the Obligations. The Collateral Agent will only take such action or exercise such remedies at the direction or with the consent of the Required Lenders. Any proceeds received from such actions will be applied as set forth in Section 2.9.
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11.3 License. For the purpose of enabling Collateral Agent, upon the occurrence and during the continuance of an Event of Default, to exercise the rights and remedies under Section 11.2 at such time as Collateral Agent shall be lawfully entitled to exercise such rights and remedies, and for no other purpose, Collateral Agent is hereby granted an irrevocable, non-exclusive license or other right to use, license or sub-license (without payment of royalty or other compensation to any Person) any or all Intellectual Property of Obligors, computer hardware and software, trade secrets, brochures, customer lists, promotional and advertising materials, labels, packaging materials and other Property, in advertising for sale, marketing, selling, collecting, completing manufacture of, or otherwise exercising any rights or remedies with respect to, any Collateral. Each Obligor’s rights and interests under Intellectual Property shall inure to Collateral Agent’s benefit for the benefit of the Lenders.
11.4 Setoff. At any time during an Event of Default, Administrative Agent, Lenders, and any of their Affiliates are authorized, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency other than tax, payroll or employee benefit accounts) at any time held and other obligations (in whatever currency) at any time owing by Administrative Agent, such Lender or such Affiliate to or for the credit or the account of an Obligor against the Obligations, whether or not Administrative Agent, such Lender or such Affiliate shall have made any demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or are owed to a branch or office of Administrative Agent, such Lender or such Affiliate different from the branch or office holding such deposit or obligated on such indebtedness. The rights of Administrative Agent, each Lender and each such Affiliate under this Section 11.4 are in addition to other rights and remedies (including other rights of setoff) that such Person may have.
11.5 Remedies Cumulative; No Waiver.
11.5.1 Cumulative Rights.11.5.2 All agreements, warranties, guaranties, indemnities and other undertakings of Obligors under the Loan Documents are cumulative and not in derogation of each other. The rights and remedies of Agent and Lenders under the Loan Documents are cumulative, may be exercised at any time and from time to time, concurrently or in any order, and are not exclusive of any other rights or remedies available by agreement, by law, at equity or otherwise. All such rights and remedies shall continue in full force and effect until Full Payment of all Obligations.
11.5.3 Waivers.11.5.4 No waiver or course of dealing shall be established by (a) the failure or delay of Agent or any Lender to require strict performance by any Obligor under any Loan Document, or to exercise any rights or remedies with respect to Collateral or otherwise; (b) the making of any Loan during a Default, Event of Default or other failure to satisfy any conditions precedent; or (c) acceptance by Agent or any Lender of any payment or performance by an Obligor under any Loan Documents in a manner other than that specified therein. Any failure to satisfy a financial covenant on a measurement date shall not be cured or remedied by satisfaction of such covenant on a subsequent date.
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Section 12. AGENT.
12.1 Appointment, Authority and Duties of Agent.
12.1.1 Appointment and Authority. Each Lender appoints and designates (i) Goldman Sachs Bank USA, as Collateral Agent under all Loan Documents and (ii) Goldman Sachs Bank USA, as Administrative Agent under all Loan Documents. Collateral Agent or Administrative Agent, as applicable may, and each Lender authorizes Collateral Agent and Administrative Agent to, enter into all Loan Documents to which such Person is intended to be a party and accept all Security Documents. Any action taken by Agent in accordance with the provisions of the Loan Documents, and the exercise by Agent of any rights or remedies set forth therein, together with all other powers reasonably incidental thereto, shall be authorized by and binding upon all Lenders. Without limiting the generality of the foregoing, (i) Administrative Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection with the Loan Documents; and (b) execute and deliver as Administrative Agent each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document and (ii) Collateral Agent shall have the sole and exclusive authority to (a) act as collateral agent for Lenders for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (b) manage, supervise or otherwise deal with Collateral; and (c) take any Enforcement Action or otherwise exercise any rights or remedies with respect to any Collateral or under any Loan Documents, Applicable Law or otherwise.
12.1.2 Duties. The titles of “Administrative Agent”, “Collateral Agent” and “Agent” are used solely as a matter of market custom and the duties of Agent are administrative in nature only. Agent has no duties except those expressly set forth in the Loan Documents, and in no event does Agent have any agency, fiduciary or implied duty to or relationship with any Lender or other Person by reason of any Loan Document or related transaction, even if a Default exists. The conferral upon Agent of any right shall not imply a duty to exercise such right, unless instructed to do so by Lenders in accordance with this Agreement.
12.1.3 Agent Professionals. Administrative Agent and Collateral Agent may perform their respective duties through their respective employees and agents. Administrative Agent may consult with and employ Administrative Agent Professionals, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by an Administrative Agent Professional. Collateral Agent may consult with and employ Collateral Agent Professionals, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by a Collateral Agent Professional. Agent shall not be responsible for the negligence or misconduct of any agents, employees or Agent Professionals, in each case, selected by it with reasonable care.
12.1.4 Instructions of Required Lenders. The rights and remedies conferred upon Agent under the Loan Documents may be exercised without the necessity of joining any other party, unless required by Applicable Law. In determining compliance with a condition for any action hereunder, including satisfaction of any condition in Section 6, Agent may presume that the condition is satisfactory to a Lender unless Administrative Agent and Collateral Agent have received notice to the contrary from such Lender before Administrative Agent or Collateral Agent, as applicable, takes the action. Agent may request instructions from Required Lenders or other Lenders with respect to any act (including the failure to act) in connection with any Loan Documents or Collateral, and may seek assurances to its satisfaction from Lenders of their indemnification obligations against Claims that could be incurred by Agent. Agent may refrain
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from any act until it has received such instructions or assurances and shall not incur liability to any Person by reason of so refraining. Instructions of Required Lenders shall be binding upon all Lenders, and no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting pursuant to instructions of Required Lenders. Notwithstanding the foregoing, instructions by and consent of specific parties shall be required to the extent provided in Section 14.1.1. In no event shall Agent be required to take any action that it determines in its reasonable discretion is contrary to Applicable Law or any Loan Documents or could expose any Agent Indemnitee to potential liability.
12.2 Agreements Regarding Collateral and Borrower Materials.
12.2.1 Lien Releases; Care of Collateral. Lenders authorize Collateral Agent to release any Lien on any Collateral (a) upon Full Payment of the Obligations; (b) that is the subject of a disposition or Lien that Borrower certifies in writing is a Permitted Disposition or a Permitted Lien entitled to priority over Agent’s Liens (and Agent may rely conclusively on such certificate without further inquiry); (c) that does not constitute a material part of the Collateral; or (d) subject to Section 14.1, with the consent of Required Lenders. Lenders authorize Collateral Agent to subordinate its Liens to any Lien entitled to priority hereunder. Agent has no obligation to assure that any Collateral exists or is owned by an Obligor, or is cared for, protected or insured, nor to assure that Collateral Agent’s Liens have been properly created, perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care with respect to any Collateral. To the extent required under the laws of any foreign jurisdiction, each Lender hereby grants to Collateral Agent any required power of attorney to take any action with respect to Collateral or to execute any Loan Document on the Lender’s behalf.
12.2.2 [Reserved].
12.2.3 Reports. Administrative Agent shall promptly provide to Lenders and Collateral Agent, and Collateral Agent shall promptly provide to Lenders and Administrative Agent, when complete, any field examination, audit, appraisal or consultant report prepared for Administrative Agent or Collateral Agent with respect to any Obligor or Collateral (“Report”). Reports and other Borrower Materials may be made available to Lenders by posting them on the Platform, but Administrative Agent shall not be responsible for system failures or access issues that may occur from time to time. Each Lender agrees (a) that Reports are not intended to be comprehensive audits or examinations, and that Agent or any other Person performing an audit or examination will inspect only limited information and will rely significantly upon Borrower’s books, records and representations; (b) that Agent makes no representation or warranty as to the accuracy or completeness of any Borrower Materials and shall not be liable for any information contained in or omitted from any Borrower Materials; and (c) to keep all Borrower Materials confidential and strictly for such Lender’s internal use, not to distribute any Report or other Borrower Materials (or contents thereof) to any Person (except to such Lender’s Participants, attorneys and accountants), and to use all Borrower Materials solely for administration of the Obligations.
12.3 Reliance By Agent. Agent shall be entitled to rely, and shall be fully protected in relying, upon any Communication (including those by telephone, e-mail or other electronic means) believed by it to be genuine and correct and to have been signed, sent or made by the proper Person. Agent shall have a reasonable and practicable amount of time to act on any Communication and shall not be liable for any delay in acting.
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12.4 Action Upon Default. Agent shall not be deemed to have knowledge of any Default or Event of Default, or of any failure to satisfy any conditions in Section 6, unless it has received written notice from a Borrower or Required Lenders specifying the occurrence and nature thereof. If a Lender acquires knowledge of a Default, Event of Default or failure of such conditions, it shall promptly notify Agent and the other Lenders thereof in writing. Each Lender agrees that, except as otherwise provided in any Loan Documents or with the written consent of Collateral Agent and Required Lenders, it will not take any Enforcement Action, accelerate Obligations or assert any rights relating to any Collateral. Collateral Agent is hereby authorized, on behalf on the Lenders to file a proof of claim and vote claims for the Obligations in any proceeding under the Bankruptcy Code. At any foreclosure or other realization event with respect to the Collateral (including any sale authorized pursuant to the Bankruptcy Code), Collateral Agent shall be entitled to credit bid the Obligations and establish vehicles and procedures therefor, at the direction of the Required Lenders and on behalf of the Lenders.
12.5 Ratable Sharing. If any Lender obtains any payment or reduction of any Obligation, whether through set-off or otherwise, in excess of its ratable share of such Obligation, such Lender shall forthwith purchase from the other Lenders participations in the affected Obligation as are necessary to share the excess payment or reduction on a Pro Rata basis or in accordance with Section 2.11, as applicable. If any of such payment or reduction is thereafter recovered from the purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. No Lender shall set off against a Deposit Account without Collateral Agent’s prior consent.
12.6 Indemnification. EACH LENDER SHALL INDEMNIFY AND HOLD HARMLESS, ON A PRO RATA BASIS, ADMINISTRATIVE AGENT INDEMNITEES AND COLLATERAL AGENT INDEMNITEES, TO THE EXTENT NOT REIMBURSED BY OR ON BEHALF OF OBLIGORS, AGAINST ALL CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY SUCH AGENT INDEMNITEE, PROVIDED THAT ANY CLAIM AGAINST (I) AN ADMINISTRATIVE AGENT INDEMNITEE RELATES TO OR ARISES FROM ITS ACTING AS OR FOR ADMINISTRATIVE AGENT (IN THE CAPACITY OF ADMINISTRATIVE AGENT) AND (II) A COLLATERAL AGENT INDEMNITEE RELATES TO OR ARISES FROM ITS ACTING AS OR FOR COLLATERAL AGENT (IN THE CAPACITY COLLATERAL AGENT). In Collateral Agent’s discretion, it may reserve for any Claims made against an Administrative Agent Indemnitee or Collateral Agent Indemnitee, and may satisfy any judgment, order or settlement relating thereto, from proceeds of Collateral prior to making any distribution of Collateral proceeds to Lenders. If Agent is sued by any receiver, trustee or other Person for any alleged preference or fraudulent transfer, then any monies paid by Agent in settlement or satisfaction of such proceeding, together with all interest, costs and expenses (including attorneys’ fees) incurred in the defense of same, shall be promptly reimbursed to Agent by each Lender to the extent of its Pro Rata share.
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12.7 Limitation on Responsibilities of Agent. Agent shall not be liable to any Lender for any action taken or omitted to be taken under the Loan Documents, except for losses directly and solely caused by Agent’s gross negligence or willful misconduct. Agent does not assume any responsibility for any failure or delay in performance or any breach by any Obligor or Lender of any obligations under the Loan Documents. Agent does not make any express or implied representation, warranty or guarantee to Lenders with respect to any Obligations, Collateral, Liens, Loan Documents or Obligor. No Agent Indemnitee shall be responsible to Lenders for any recitals, statements, information, representations or warranties contained in any Loan Documents or Borrower Materials; the execution, validity, genuineness, effectiveness or enforceability of any Loan Documents; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Obligations; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor or Account Debtor. No Agent Indemnitee shall have any obligation to any Lender to ascertain or inquire into the existence of any Default or Event of Default, the observance by any Obligor of any terms of the Loan Documents, or the satisfaction of any conditions precedent contained in any Loan Documents.
12.8 Successor Agent and Co-Agents.
12.8.1 Resignation; Successor Agent.
(a) Administrative Agent may resign at any time by giving at least 30 days written notice thereof to Collateral Agent, Lenders and Borrower. Required Lenders may appoint a successor that is (a) a Lender or Affiliate of a Lender; or (b) a financial institution reasonably acceptable to Required Lenders and (provided no Default or Event of Default exists) Borrower. If no successor is appointed by the effective date of Administrative Agent’s resignation, then on such date, Administrative Agent may appoint a successor acceptable to it in its reasonable discretion (which shall be a Lender unless no Lender accepts the role) or, in the absence of such appointment, Collateral Agent shall automatically assume all rights and duties of Administrative Agent. The successor Administrative Agent shall thereupon succeed to and become vested with all the powers and duties of the retiring Administrative Agent without further act. The retiring Administrative Agent shall be discharged from its duties hereunder on the effective date of its resignation, but shall continue to have all rights and protections available to Administrative Agent under the Loan Documents with respect to actions, omissions, circumstances or Claims relating to or arising while it was acting or transferring responsibilities as Administrative Agent, including indemnification under Sections 12.6 and 14.2, and all rights and protections under this Section 12. Any successor to Goldman Sachs Bank USA by merger or acquisition of stock or this loan shall continue to be Administrative Agent hereunder without further act on the part of any Lender or Obligor.
(b) Collateral Agent may resign at any time by giving at least 30 days written notice thereof to Administrative Agent, Lenders and Borrower. Required Lenders may appoint a successor that is (a) a Lender or Affiliate of a Lender; or (b) a financial institution reasonably acceptable to Required Lenders and (provided no Default or Event of Default exists) Borrower. If no successor is appointed by the effective date of Collateral Agent’s resignation, then on such date, Collateral Agent may appoint a successor acceptable to it in its reasonable discretion (which shall be a Lender unless no Lender accepts the role) or, in the absence of such appointment, Administrative Agent shall automatically assume all rights and duties of Collateral Agent. The successor Collateral Agent shall thereupon succeed to and become vested with all the powers and duties of the retiring Collateral Agent without further act. The retiring Collateral Agent shall be
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discharged from its duties hereunder on the effective date of its resignation, but shall continue to have all rights and protections available to Collateral Agent under the Loan Documents with respect to actions, omissions, circumstances or Claims relating to or arising while it was acting or transferring responsibilities as Collateral Agent or holding any Collateral on behalf of Lenders, including indemnification under Sections 12.6 and 14.2, and all rights and protections under this Section 12.
12.8.2 Co-Collateral Agent. If appropriate under Applicable Law, Collateral Agent may appoint a Person to serve as a co-collateral agent or separate collateral agent under any Loan Document. Each right, remedy and protection intended to be available to Collateral Agent under the Loan Documents shall also be vested in such agent. Lenders shall execute and deliver any instrument or agreement that Collateral Agent may request to effect such appointment. If any such agent shall die, dissolve, become incapable of acting, resign or be removed, then all the rights and remedies of the agent, to the extent permitted by Applicable Law, shall vest in and be exercised by Collateral Agent until appointment of a new agent.
12.9 Due Diligence and Non-Reliance. Each Lender acknowledges and agrees that it has, independently and without reliance upon Agent or any other Lenders, and based upon such documents, information and analyses as it has deemed appropriate, made its own credit analysis of each Obligor and its own decision to enter into this Agreement and to fund Loans. Each Lender has made such inquiries as it feels necessary concerning the Loan Documents, Collateral and Obligors. Each Lender acknowledges and agrees that the other Lenders have made no representations or warranties concerning any Obligor, any Collateral or the legality, validity, sufficiency or enforceability of any Loan Documents or Obligations. No act by Agent, including any consent, amendment, acceptance of assignment or due diligence by Agent, shall be deemed to constitute a representation by Agent to any Lender as to any matter, including whether Agent has disclosed material information in its possession. Each Lender will, independently and without reliance upon any other Lender, and based upon such financial statements, documents and information as it deems appropriate at the time, continue to make and rely upon its own credit decisions in making Loans, and in taking or refraining from any action under any Loan Documents. Except for notices, reports and other information expressly requested by a Lender, Agent shall have no duty or responsibility to provide any Lender with any notices, reports or certificates furnished to Agent by any Obligor or any credit or other information concerning the affairs, financial condition, business or Properties of any Obligor (or any of its Affiliates) which may come into possession of Agent or its Affiliates. Each Lender represents and warrants that (a) the Loan Documents set forth the terms of a commercial lending facility, and (b) it is engaged in making, acquiring or holding commercial loans in the ordinary course, is sophisticated with respect to making such decisions and holding such loans, and is entering into this Agreement for the purpose of making, acquiring or holding commercial loans and providing other facilities as set forth herein, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument. Each Lender agrees not to assert any claim in contravention of the foregoing.
12.10 Remittance of Payments and Collections.
12.10.1 Remittances Generally. Payments by any Lender to Agent shall be made by the time and date provided herein, in immediately available funds. Payment by Agent to any Lender shall be made by wire transfer, in the type of funds received by Agent. Any such payment shall be subject to Agent’s right of offset for any amounts due from such payee under the Loan Documents.
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12.10.2 Recovery of Erroneous Payments.
(a) If the Administrative Agent (x) notifies a Lender or any Person who has received funds on behalf of a Lender (any such Lender or other recipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof) (provided, that, without limiting any other rights or remedies (whether at law or in equity), the Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within 5 Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 12.10.2 and held in trust for the benefit of the Administrative Agent, and such Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each such case:
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(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 12.10.2(b).
For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.10.2(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.10.2(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount that the Administrative Agent has demanded to be returned under immediately preceding clause (a).
(d) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such Lender, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Obligor; provided that this Section 12.10.2 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower for the purpose of a payment on the Obligations.
(e) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including, without limitation, any defense based on “discharge for value” or any similar doctrine.
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(f) Each party’s obligations, agreements and waivers under this Section 12.10.2 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
12.10.3 Distributions. If Agent determines that an amount received by it must be returned or paid to an Obligor or other Person pursuant to Applicable Law or otherwise, then Agent shall not be required to distribute such amount to any Lender. If Agent is required to return any amounts applied by it to Obligations held by a Lender, such Lender shall pay to Agent, on demand, its share of the amounts required to be returned.
12.11 [Reserved].
12.12 Titles. Each Lender, other than Goldman Sachs Bank USA, that is designated in connection with this credit facility as an “Arranger,” “Bookrunner” or “Agent” of any kind shall have no right or duty under any Loan Documents other than those applicable to all Lenders and shall in no event have any fiduciary duty to any Obligor.
12.13 Certain ERISA Matters.
12.13.1 Lender Representations. Each Lender represents and warrants, as of the date it became a Lender party hereto, and covenants, from the date it became a Lender party hereto to the date it ceases being a Lender party hereto, for the benefit of, Agent and not, for the avoidance of doubt, to or for the benefit of Obligors, that at least one of the following is and will be true: (a) Lender is not using “plan assets” (within the meaning of ERISA Section 3(42) or otherwise) of one or more Benefit Plans with respect to Lender’s entrance into, participation in, administration of and performance of the Loans, Commitments or Loan Documents; (b) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to Lender’s entrance into, participation in, administration of and performance of the Loans, Commitments and Loan Documents; (c)(i) Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Section VI of PTE 84-14), (ii) such Qualified Professional Asset Manager made the investment decision on behalf of Lender to enter into, participate in, administer and perform the Loans, Commitments and Loan Documents, (iii) the entrance into, participation in, administration of and performance of the Loans, Commitments and Loan Documents satisfies the requirements of sub-sections (b) through (g) of Section I of PTE 84-14, and (iv) to the best knowledge of Lender, the requirements of subsection (a) of Section I of PTE 84-14 are satisfied with respect to Lender’s entrance into, participation in, administration of and performance of the Loans, Commitments and Loan Documents; or (d) such other representation, warranty and covenant as may be agreed in writing between Agent, in its discretion, and Lender.
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12.13.2 Further Lender Representation. Unless Section 12.13.1(a) or (d) is true with respect to a Lender, such Lender further represents and warrants, as of the date it became a Lender hereunder, and covenants, from the date it became a Lender to the date it ceases to be a Lender hereunder, for the benefit of, Agent and not, for the avoidance of doubt, to or for the benefit of any Obligor, that Agent is not a fiduciary with respect to the assets of such Lender involved in its entrance into, participation in, administration of and performance of the Loans, Commitments and Loan Documents (including in connection with the reservation or exercise of any rights by Agent under any Loan Document).
12.14 [Reserved].
12.15 [Reserved].
Section 13. BENEFIT OF AGREEMENT; ASSIGNMENTS.
13.1 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Obligors, Administrative Agent, Collateral Agent, Lenders, and their respective successors and assigns, except that (a) no Obligor may assign or delegate its rights or obligations under any Loan Documents; and (b) any assignment by a Lender must be made in compliance with Section 13.3. Administrative Agent may treat the Person which made any Loan as the owner thereof for all purposes until such Person makes an assignment in accordance with Section 13.3. Any authorization or consent of a Lender shall be conclusive and binding on any subsequent transferee or assignee of such Lender.
13.2 Participations.
13.2.1 Permitted Participants; Effect. Subject to Section 13.3.3, any Lender may sell to a financial institution (“Participant”) a participating interest in the rights and obligations of such Lender under any Loan Documents. Despite any sale by a Lender of participating interests to a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged, it shall remain solely responsible to the other parties hereto for performance of such obligations, it shall remain the holder of its Loans and Commitments for all purposes, all amounts payable by Borrower shall be determined as if it had not sold such participating interests, and Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with the Loan Documents. Each Lender shall be solely responsible for notifying its Participants of any matters under the Loan Documents, and Administrative Agent and the other Lenders shall not have any obligation or liability to any such Participant.
13.2.2 Voting Rights. Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, waiver or other modification of a Loan Document other than that which forgives principal, interest or fees, reduces the stated interest rate or fees payable with respect to any Loan or Commitment in which such Participant has an interest, postpones the Termination Date or any date fixed for any regularly scheduled payment of principal, interest or fees on such Loan or Commitment, or releases Borrower, Guarantor or substantially all Collateral.
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13.2.3 Participant Register. Each Lender that sells a participation shall, acting as a non-fiduciary agent of Borrower (solely for tax purposes), maintain a register (the “Participant Register”) in which it enters the Participant’s name, address and interest in Loans (and stated interest). Entries in the Participant Register shall be conclusive, absent manifest error, and such Lender shall treat each Person recorded in the Participant Register as the owner of the participation for all purposes, notwithstanding any notice to the contrary. No Lender shall have an obligation to disclose any information in such Participant Register except to the extent necessary to establish that a Participant’s interest is in registered form under the Code.
13.2.4 Benefit of Setoff. Each Participant shall have a right of set-off in respect of its participating interest to the same extent as if such interest were owing directly to a Lender, and each Lender shall also retain the right of set-off with respect to any participating interests sold by it. By exercising any right of set-off, a Participant agrees to share with Lenders all amounts received through its set-off, in accordance with Section 12.5 as if such Participant were a Lender.
13.3 Assignments.
13.3.1 Permitted Assignments. A Lender may assign to an Eligible Assignee any of its rights and obligations under the Loan Documents, as long as (a) each assignment is of a constant, and not a varying, percentage of the transferor Lender’s rights and obligations under the Loan Documents and, in the case of a partial assignment, is in a minimum principal amount of $5,000,000 (unless otherwise agreed by Administrative Agent in its discretion) and integral multiples of $1,000,000 in excess of that amount; (b) except in the case of an assignment in whole of a Lender’s rights and obligations, the aggregate amount of the Loans retained by the transferor Lender is at least $5,000,000 (unless such partial assignment is to a Lender, an Affiliate of a Lender, an Approved Fund or otherwise agreed to by Borrower and Administrative Agent in their discretion); and (c) the parties to each such assignment shall execute and deliver an Assignment to Administrative Agent for acceptance and recording. Nothing herein shall limit the right of a Lender to pledge or assign any rights under the Loan Documents to secure obligations of such Lender, including a pledge or assignment to a Federal Reserve Bank; provided, that no such pledge or assignment shall release the Lender from its obligations hereunder nor substitute the pledgee or assignee for such Lender as a party hereto.
13.3.2 Effect; Effective Date. Upon delivery to Administrative Agent of a fully executed and completed Assignment accompanied by a processing fee of $3,500 (unless otherwise agreed by Administrative Agent in its discretion), the assignment specified therein shall be effective as provided in the Assignment as long as it complies with this Section 13.3. From such effective date, the Eligible Assignee shall for all purposes be a Lender under the Loan Documents and shall have all rights and obligations of a Lender thereunder. Upon consummation of an assignment, the transferor Lender, Administrative Agent and Borrower shall make appropriate arrangements for issuance of replacement and/or new notes, if applicable.
13.3.3 Certain Assignees. No assignment or participation may be made to an Obligor, an Affiliate of an Obligor, or one or more natural persons. Administrative Agent shall have no obligation to determine whether any assignment is permitted under the Loan Documents.
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13.3.4 Register. Administrative Agent, acting as a non-fiduciary agent of Borrower (solely for tax purposes), shall maintain (a) a copy (or electronic equivalent) of each Assignment delivered to it, and (b) a register for recordation of the names, addresses and the Loans and interest owing to, each Lender. Entries in the register shall be conclusive, absent manifest error, and Borrower, Administrative Agent and Lenders shall treat each Person recorded in such register as a Lender for all purposes under the Loan Documents, notwithstanding any notice to the contrary. Administrative Agent may choose to show only one Borrower as the borrower in the register, without any effect on the liability of any Obligor with respect to the Obligations. The register shall be available for inspection by Borrower or any Lender, from time to time upon reasonable notice.
13.4 Replacement of Certain Lenders. If a Lender has failed to give its consent to any amendment, waiver or action for which consent of all Lenders was required and Required Lenders consented, then Administrative Agent or Borrower may, upon 5 days’ notice to such Lender, require it to assign its rights and obligations under the Loan Documents to Eligible Assignee(s), pursuant to appropriate Assignment(s). Administrative Agent is irrevocably appointed as attorney-in-fact to execute any such Assignment if the Lender fails to execute it. Such Lender shall be entitled to receive, in cash, concurrently with such assignment, all amounts owed to it under the Loan Documents through the date of assignment.
Section 14. MISCELLANEOUS.
14.1 Consents, Amendments and Waivers.
14.1.1 Amendment. No Modification of a Loan Document shall be effective without the prior written agreement of Administrative Agent (with the consent of Required Lenders and with a fully executed copy thereof delivered to Collateral Agent) and each affected Obligor party to such Loan Document; provided, that:
(a) (i) any Modification that does not alter any provision in a Loan Document that relates to any rights, duties or discretion of Administrative Agent shall not require the consent of Administrative Agent, and (ii) without the prior written consent of Collateral Agent, no Modification shall alter any provision in a Loan Document that relates to any rights, duties or discretion of Collateral Agent;
(b) without the prior written consent of each affected Lender, no Modification shall (i) increase the Commitment of such Lender; (ii) reduce the amount of, or waive or delay payment of, any principal, interest or fees payable to such Lender (excluding any waiver of the Default Rate of interest); (iii) extend the Termination Date applicable to such Lender’s Obligations; or (iv) amend this clause (b);
(c) without the prior written consent of all Lenders, no Modification shall (i) alter this Section 14.1.1; (ii) amend the definition of (A) Pro Rata or (B) Required Lenders, or; (iii) subordinate, or have the effect of subordinating, the Obligations hereunder to any other Debt or other obligation; (iv) subordinate, or have the effect of subordinating, the Liens on the Collateral securing the Obligations to Liens securing any other Debt or other obligation (other than to Liens securing Debt permitted to have priority hereunder); (v) except in connection with a transaction
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expressly permitted hereby, release all or substantially all Collateral; (vi) except in connection with a merger, disposition or similar transaction expressly permitted hereby, release any Obligor from liability for any Obligations; or (vii) change any Loan Document provision requiring consent or action by all Lenders; and
(d) if Real Estate secures any Obligations, no Modification of a Loan Document shall add, increase, renew or extend any credit line hereunder until the completion of flood diligence and documentation as required by Flood Laws or as otherwise reasonably satisfactory to all Lenders.
14.1.2 Limitations. Notwithstanding anything in any Loan Document to the contrary, Administrative Agent may, in consultation with Borrower, make or adopt Conforming Changes from time to time and any amendment or notice implementing such changes will become effective without further action or consent of any other party; provided, that Administrative Agent shall post or otherwise provide same to Borrower and Lenders reasonably promptly after it becomes effective. No agreement of any Obligor shall be required for any Modification of a Loan Document that deals solely with the rights and duties of Lenders and/or Administrative Agent as among themselves. Only the consent of the parties to any agreement relating to fees shall be required for Modification of such agreement. Any waiver or consent granted by Administrative Agent or Lenders hereunder shall be effective only if in writing and only for the matter specified. Each Lender irrevocably authorizes the Administrative Agent on its behalf, and without further consent of any Lender (but with the consent of Borrower and Collateral Agent), to amend and restate this Agreement and other Loan Documents if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), such Lender shall have no other commitment or other obligation hereunder and shall have be paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement and the other Loan Documents.
14.1.3 Corrections. Without action or consent by any other party to this Agreement, (a) Collateral Agent and Borrower may amend a Loan Document to cure an ambiguity, omission, mistake, typographical error, or other defect in any provision, schedule or exhibit thereof; and (b) Administrative Agent may revise Schedule 1.1 to reflect changes in Commitments from time to time.
14.2 Indemnity. Whether or not the transactions contemplated hereby are consummated, the Obligors shall indemnify and hold harmless each Indemnitee from and against any and all losses, liabilities, damages, claims, and reasonable and documented out-of-pocket fees and expenses (limited to reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each applicable jurisdiction material to the interests of the Indemnitees, taken as a whole (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, solely in the case of an actual or reasonably perceived conflict of interest, where the Indemnitee affected by such conflict informs Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for the affected Indemnitees that are similarly situated, taken as a whole)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by any Obligor, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transactions, including
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the financing contemplated hereby, which may at any time be imposed on, incurred by or asserted against any such Indemnitee relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the Transactions and the other transactions contemplated thereby, or (b) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the partners, officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transactions (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (z) disputes brought by an Indemnitee against any other Indemnitee to the extent such disputes do not arise from any act or omission of Borrower, the other Obligors or any of their respective Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision)). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 14.2 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Obligor, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 14.2 shall be paid within ten (10) Business Days after demand therefor; provided, however, if the Obligors have reimbursed any Indemnitee for any legal or other expenses in connection with any Indemnified Liabilities and there is a final non-appealable judgment of a court of competent jurisdiction that the Indemnitee was not entitled to indemnification or contribution with respect to such Indemnified Liabilities pursuant to the express terms of this Section 14.2, then the Indemnitee shall promptly refund such expenses paid by the Borrower to the Indemnitee. The agreements in this Section 14.2 shall survive the resignation of the Administrative Agent, the replacement of any Lender and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 14.2 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
14.3 Notices and Communications.
14.3.1 Notice Address. Subject to Section 14.3.2, all Communications by or to a party hereto shall be in writing and shall be given to any Obligor, at Borrower’s address shown on the signature pages hereof, and to any other Person at its address shown on the signature pages hereof (or, in the case of a Person who becomes a Lender after the Closing Date, at the address
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shown on its Assignment), or at such other address as a party may hereafter specify by notice in accordance with this Section 14.3. In addition, a Communication from Administrative Agent to Lenders may, to the extent permitted by law, be delivered electronically (i) by transmitting the Communication to the electronic address specified to Administrative Agent in writing by the applicable Lender from time to time, or (ii) by posting the Communication on a website and sending the Lender notice (electronically or otherwise) that the Communication has been posted and providing instructions (at such time or prior to delivery of such Communication) for viewing it. Each Communication shall be effective only (a) if given by mail, three Business Days after deposit in the U.S. mail, with first-class postage pre-paid, addressed to the applicable address; (b) if given by personal delivery, when duly delivered to the notice address with receipt acknowledged; or (c) if provided electronically by Administrative Agent to Lenders, when the Communication (or notice advising of its posting to a website) is sent to the Lender’s electronic address. Any written Communication not sent in conformity with the foregoing provisions shall nevertheless be effective on the date actually received by the noticed party. Any notice received by Borrower shall be deemed received by all Obligors.
14.3.2 Communications. Electronic and telephonic Communications (including e-mail, messaging, voice mail and websites) may be used only for routine communications, such as the delivery of financial statements and other information required by Section 10.1.1, administrative matters, distribution of Loan Documents for execution and delivery of executed signature pages and such other communications as agreed by Administrative Agent and Borrower. Administrative Agent makes no assurance as to the privacy or security of electronic or telephonic Communications. E-mail and voice mail shall not be effective notices under the Loan Documents.
14.3.3 Platform. Borrower Materials shall be delivered pursuant to procedures approved by Administrative Agent, including electronic delivery (if requested by Administrative Agent) to an electronic system maintained by it (“Platform”). Borrower shall notify Administrative Agent of each posting of Borrower Materials on the Platform (which notice may be communicated electronically in accordance with Section 14.3.2) and the Borrower Materials on the Platform shall be deemed received by Administrative Agent only upon its receipt of such notice. Communications, Borrower Materials and other information relating to this credit facility may be made available to Lenders on the Platform. The Platform is provided “as is” and “as available.” Administrative Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, and expressly disclaims liability for any errors or omissions in the Borrower Materials or any issues involving the Platform. 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 WITH RESPECT TO BORROWER MATERIALS OR THE PLATFORM. No Administrative Agent Indemnitee shall have any liability to Obligors, Lenders or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) relating to use by any Person of the Platform, including any unintended recipient, nor for delivery of Borrower Materials and other information via the Platform, internet, e-mail, or any other electronic platform or messaging system. Administrative Agent may, but is not obligated to, make Communications available to Obligors and Lenders by posting them on IntraLinksTM, DebtDomain, SyndTrak, ClearPar or other electronic platform.
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14.3.4 Public Information. Obligors and Lenders acknowledge that “public” information may not be segregated from material non-public information on the Platform. Lenders acknowledge that Borrower Materials may include Obligors’ material non-public information, which should not be made available to personnel who do not wish to receive such information or may be engaged in trading, investment or other market-related activities with respect to an Obligor’s securities.
14.3.5 Non-Conforming Communications. Administrative Agent and Lenders may rely on any Communication purportedly given by or on behalf of an Obligor even if it is not made in a manner specified herein, incomplete or not confirmed, or if the terms thereof, as understood by the recipient, vary from an earlier Communication or later confirmation. Each Obligor shall indemnify and hold harmless each Indemnitee from any liabilities, losses, costs and expenses arising from any Communication purportedly given by or on behalf of any Obligor.
14.3.6 Reliance on Communications. No Lender shall be responsible for or have any duty to ascertain or inquire into the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document (including, for the avoidance of doubt, in connection with an Electronic Signature transmitted by telecopy, emailed .pdf or other electronic means). Lenders may rely on, and shall incur no liability under or in respect of any Loan Document by acting on, any written Communication (which may be a fax, electronic message, internet or intranet website posting, or other distribution, or signed by an Electronic Signature) reasonably believed by it to be genuine and signed or sent or otherwise authenticated (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof). Agent shall be entitled to rely on the e-mail addresses and telephone numbers provided by Obligors, Lenders and their authorized representatives. Each Obligor hereby waives (a) any argument, defense or right to contest the legal effect, validity or enforceability of any Loan Document or other Communication based solely on the lack of a paper original copy thereof, and (b) waives any claim against any Indemnitee for liabilities arising from its reliance on or use of Electronic Signatures, including liabilities relating to an Obligor’s failure to use a security measure in connection with execution, delivery or transmission of an Electronic Signature.
14.4 Performance of Obligors’ Obligations. Administrative Agent or Collateral Agent may, as applicable, in their reasonable discretion and good faith business judgment, at any time and from time to time, at Obligors’ expense with, unless an Event of Default is continuing, five (5) days prior written notice to the Borrower, pay any amount or do any act required of an Obligor under any Loan Documents or otherwise lawfully requested by Administrative Agent to (a) enforce any Loan Documents or collect any Obligations; (b) protect, insure, maintain or realize upon any Collateral; or (c) defend or maintain the validity or priority of Collateral Agent’s Liens in any Collateral, including any payment of a judgment, insurance premium, warehouse charge, finishing or processing charge, or landlord claim, or any discharge of a Lien. All payments, costs and expenses (including Extraordinary Expenses) of Collateral Agent and Administrative Agent under this Section 14.4 shall be reimbursed to such party by Obligors, promptly following written demand therefor, with interest from the date incurred until paid in full, at the Default Rate applicable to Base Rate Loans. Any payment made or action taken by Collateral Agent or Administrative Agent under this Section 14.4 shall be without prejudice to any right to assert an Event of Default or to exercise any other rights or remedies under the Loan Documents.
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14.5 Credit Inquiries. Administrative Agent and Lenders may (but shall have no obligation) to respond to usual and customary credit inquiries from third parties concerning any Obligor or Subsidiary.
14.6 Severability. Wherever possible, each provision of the Loan Documents shall be interpreted in such manner as to be valid under Applicable Law. If any provision is found to be invalid under Applicable Law, it shall be ineffective only to the extent of such invalidity and the remaining provisions of the Loan Documents shall remain in full force and effect.
14.7 Cumulative Effect; Conflict of Terms. The provisions of the Loan Documents are cumulative. The parties acknowledge that the Loan Documents may use several limitations or measurements to regulate similar matters, and they agree that these are cumulative and that each must be performed as provided. Except as otherwise provided in another Loan Document (by specific reference to the applicable provision of this Agreement), if any provision contained herein is in direct conflict with any provision in another Loan Document, the provision herein shall govern and control.
14.8 Execution; Electronic Records. Any Loan Document, including any required to be in writing, may (if agreed by Administrative Agent) be in the form of an Electronic Record and may be executed using Electronic Signatures. An Electronic Signature on or associated with any Communication shall be valid and binding on each Obligor and other party thereto to the same extent as a manual, original signature, and any Communication entered into by Electronic Signature shall constitute the legal, valid and binding obligation of each party, enforceable to the same extent as if a manually executed original signature were delivered. A Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. The parties may use or accept manually signed paper Communications converted into electronic form (such as scanned into pdf), or electronically signed Communications converted into other formats, for transmission, delivery and/or retention. Administrative Agent and Lenders may, at their option, create one or more copies of a Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of the Person’s business, and may destroy the original paper document. Any Communication in the form or format of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything herein, (a) Administrative Agent is under no obligation to accept an Electronic Signature in any form unless expressly agreed by it pursuant to procedures approved by it; (b) each Lender shall be entitled to rely on any Electronic Signature purportedly given by or on behalf of an Obligor without further verification and regardless of the appearance or form of such Electronic Signature; and (c) upon request by Administrative Agent, any Loan Document using an Electronic Signature shall be promptly followed by a manually executed original counterpart.
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14.9 Entire Agreement. Time is of the essence with respect to all Loan Documents and Obligations. The Loan Documents constitute the entire agreement, and supersede all prior understandings and agreements, among the parties relating to the subject matter thereof.
14.10 Relationship with Lenders. The obligations of each Lender hereunder are several, and no Lender shall be responsible for the obligations or Commitments of any other Lender. Amounts payable hereunder to each Lender shall be a separate and independent debt. It shall not be necessary for Administrative Agent or any Lender to be joined as an additional party in any proceeding for such purposes. Nothing in this Agreement and no action of Administrative Agent or Lenders pursuant to the Loan Documents or otherwise shall be deemed to constitute Administrative Agent and any Lender to be a partnership, joint venture or similar arrangement, nor to constitute control of any Obligor.
14.11 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated by any Loan Document, Obligors acknowledge and agree that (a)(i) this credit facility and any arranging or other services by Administrative Agent, any Lender, any of their Affiliates or any arranger are arm’s-length commercial transactions between Obligors and their Affiliates, on one hand, and Administrative Agent, any Lender, any of their Affiliates or any arranger, on the other hand; (ii) Obligors have consulted their own legal, accounting, regulatory, tax and other advisors to the extent they have deemed appropriate; and (iii) Obligors are capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated by the Loan Documents; (b) each of Administrative Agent, Lenders, their Affiliates and any arranger is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for Obligors, their Affiliates or any other Person, and has no obligation with respect to the transactions contemplated by the Loan Documents except as expressly set forth therein; and (c) Administrative Agent, Lenders, their Affiliates and any arranger may be engaged in a broad range of transactions that involve interests that differ from those of Obligors and their Affiliates, and have no obligation to disclose any of such interests to Obligors or their Affiliates. To the fullest extent permitted by Applicable Law, each Obligor hereby waives and releases any claims that it may have against Administrative Agent, Lenders, their Affiliates and any arranger with respect to any breach of agency or fiduciary duty in connection with any transaction contemplated by a Loan Document.
14.12 Confidentiality. Each of Administrative Agent and Lenders shall maintain the confidentiality of all Information (as defined below), except that Information may be disclosed (a) to its Affiliates, and to its and their partners, directors, officers, employees, agents, auditors, advisors, attorneys, consultants, service providers and other representatives (provided they are informed of the confidential nature of the Information and instructed to keep it confidential); (b) to the extent requested by any governmental, regulatory or self-regulatory authority purporting to have jurisdiction over it or its Affiliates; (c) to the extent required by Applicable Law or by any subpoena or other legal process; (d) to any other party hereto; (e) in connection with any action or proceeding relating to any Loan Documents or Obligations; (f) to the extent such Information is (i) publicly available other than as a result of a breach of this Section 14.12, (ii) available to Administrative Agent and any Lender or any of their Affiliates on a nonconfidential basis from a source other than Borrower, or (iii) independently discovered or developed by a party hereto without utilizing any Information or violating this Section 14.12; (g) on a confidential basis to any
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rating agency in connection with rating the Borrower or any Subsidiary or any credit facility established by this Agreement; (h) on a confidential basis to a provider of a Platform; (i) with the consent of Borrower; (j) subject to an agreement containing provisions substantially the same as (or no less restrictive than) those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, or (ii) any actual or prospective party (or its partners, directors, officers, employees, agents, auditors, advisors, attorneys, consultants, service providers and other representatives) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder; or (k) to the extent required by a potential or actual insurer or reinsurer in connection with providing insurance, reinsurance or credit risk mitigation coverage under which payments are to be made or may be made by reference to this Agreement. Obligors consent to the publication by Administrative Agent and Lenders of customary advertising material relating to transactions contemplated hereby, using the names, product photographs, logos or trademarks of Obligors and Subsidiaries. Administrative Agent and Lenders may disclose information regarding this Agreement and the credit facility hereunder to market data collectors, similar service providers to the lending industry, and service providers to Administrative Agent and Lenders in connection with the Loan Documents and Commitments. As used herein, “Information” means information received from an Obligor or Subsidiary relating to it or its business that is identified as confidential when delivered. A Person required to maintain confidentiality of Information pursuant to this Section 14.12 shall be deemed to have complied if it exercises a degree of care similar to that accorded its own confidential information. Each of Administrative Agent and Lenders acknowledge that (i) Information may include material non-public information; (ii) it has developed compliance procedures regarding the use of such information; and (iii) it will handle the material non-public information in accordance with Applicable Law. For the avoidance of doubt, nothing herein prohibits any individual from communicating or disclosing information regarding suspected violations of laws, rules or regulations to a governmental, regulatory, or self-regulatory authority without any notification to any person and, in any event, nothing in this Agreement shall restrict or impede any Person from reporting possible legal violations to any regulatory authority.
14.13 [Reserved].
14.14 GOVERNING LAW. UNLESS EXPRESSLY PROVIDED IN ANY LOAN DOCUMENT, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ALL CLAIMS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES EXCEPT FEDERAL LAWS RELATING TO NATIONAL BANKS.
14.15 Consent to Forum.
14.15.1 Forum. PARENT, EACH LENDER AND EACH OBLIGOR HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF ANY STATE COURT SITTING IN NEW YORK COUNTY, NEW YORK, OR THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, IN ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, AND AGREE THAT ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. PARENT, EACH LENDER AND
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EACH OBLIGOR IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL CLAIMS, OBJECTIONS AND DEFENSES THAT IT MAY HAVE REGARDING ANY SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE OR INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 14.3.1. A final judgment in any proceeding of any such court shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or any other manner provided by Applicable Law.
14.15.2 Other Jurisdictions. Nothing herein shall limit the right of any party to bring proceedings against any other party in any other court, nor limit the right of any party to serve process in any other manner permitted by Applicable Law. Nothing in this Agreement shall be deemed to preclude enforcement by any party hereto of any judgment or order obtained in any forum or jurisdiction.
14.16 Waivers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO WAIVES (A) THE RIGHT TO TRIAL BY JURY (WHICH EACH LENDER HEREBY ALSO WAIVES) IN ANY PROCEEDING OR DISPUTE OF ANY KIND RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, OBLIGATIONS OR COLLATERAL; (B) PRESENTMENT, DEMAND, PROTEST, NOTICE OF PRESENTMENT, DEFAULT, NON-PAYMENT, MATURITY, RELEASE, COMPROMISE, SETTLEMENT, EXTENSION OR RENEWAL OF ANY COMMERCIAL PAPER, ACCOUNTS, DOCUMENTS, INSTRUMENTS, CHATTEL PAPER AND GUARANTIES AT ANY TIME HELD BY COLLATERAL AGENT ON WHICH PARENT OR AN OBLIGOR MAY IN ANY WAY BE LIABLE, AND HEREBY RATIFIES ANYTHING COLLATERAL AGENT MAY DO IN THIS REGARD; (C) NOTICE PRIOR TO TAKING POSSESSION OR CONTROL OF ANY COLLATERAL; (D) ANY BOND OR SECURITY THAT MIGHT BE REQUIRED BY A COURT PRIOR TO ALLOWING COLLATERAL AGENT TO EXERCISE ANY RIGHTS OR REMEDIES; (E) THE BENEFIT OF ALL VALUATION, APPRAISEMENT AND EXEMPTION LAWS; (F) ANY CLAIM AGAINST AN INDEMNITEE ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) IN ANY WAY RELATING TO ANY ENFORCEMENT ACTION, OBLIGATIONS, LOAN DOCUMENTS OR TRANSACTIONS RELATING THERETO; AND (G) NOTICE OF ACCEPTANCE HEREOF. EACH PARTY HERETO ACKNOWLEDGES THAT THE FOREGOING WAIVERS ARE A MATERIAL INDUCEMENT TO THE OTHER PARTIES HERETO ENTERING INTO THIS AGREEMENT AND THAT THEY ARE RELYING UPON THE FOREGOING IN THEIR DEALINGS WITH EACH PARTY HERETO. Each party hereto has reviewed the foregoing waivers with its legal counsel and has knowingly and voluntarily waived its jury trial and other rights following consultation with legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.
14.17 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among the parties, each party hereto (including each Lender) acknowledges that, with respect to any Lender that is an Affected Financial Institution, any liability of such Lender arising under a Loan Document, to the extent such liability is unsecured, may be
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subject to the Write-Down and Conversion Powers of the applicable Resolution Authority, and each party hereto agrees and consents to, and acknowledges and agrees to be bound by, (a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liability which may be payable to it by such Lender; and (b) the effects of any Bail-In Action on any such liability, including (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 Affected 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 any Loan Document; or (iii) the variation of the terms of such liability in connection with the exercise of any Write-Down and Conversion Powers.
14.18 Patriot Act Notice. Administrative Agent and Lenders hereby notify Obligors that pursuant to the Patriot Act, Administrative Agent and Lenders are required to obtain, verify and record information that identifies each Obligor, including its legal name, address, tax ID number and other information that will allow Administrative Agent and Lenders to identify it in accordance with the Patriot Act. Administrative Agent and Lenders will also require information regarding any personal guarantor and may require information regarding Obligors’ management and owners, such as legal name, address, social security number and date of birth. Obligors shall, promptly upon request, provide all documentation and other information as Administrative Agent or any Lender may request from time to time for purposes of complying with any “know your customer,” anti-money laundering or other requirements of Applicable Law, including the Patriot Act and Beneficial Ownership Regulation.
14.19 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Contracts 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 or of the United States or any other state of the United States):
(a) 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.
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(b) As used in this Section 14.19, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b)
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“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.
“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).
14.20 NO ORAL AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
[Remainder of Page Intentionally Left Blank; Signatures Begin on Following Page]
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date set forth above.
| BORROWER: | ||
| SOLARIS ENERGY INFRASTRUCTURE, LLC | ||
| By: | /s/ Stephan Tompsett | |
| Name: | Stephan Tompsett | |
| Title: | Chief Financial Officer | |
| GUARANTORS: | ||
| SOLARIS OILFIELD SITE SERVICES OPERATING, LLC | ||
| By: | /s/ Stephan Tompsett | |
| Name: | Stephan Tompsett | |
| Title: | Chief Financial Officer | |
Signature Page to
Senior Secured Term Loan Agreement
| SOLARIS OILFIELD EARLY PROPERTY, LLC | ||
| By: | /s/ Stephan Tompsett | |
| Name: | Stephan Tompsett | |
| Title: | Chief Financial Officer | |
| SOLARIS OILFIELD SITE SERVICES PERSONNEL LLC | ||
| By: | /s/ Stephan Tompsett | |
| Name: | Stephan Tompsett | |
| Title: | Chief Financial Officer | |
| SOLARIS LOGISTICS, LLC | ||
| By: | /s/ Stephan Tompsett | |
| Name: | Stephan Tompsett | |
| Title: | Chief Financial Officer | |
| SOLARIS OILFIELD TECHNOLOGIES, LLC | ||
| By: | /s/ Stephan Tompsett | |
| Name: | Stephan Tompsett | |
| Title: | Chief Financial Officer | |
Signature Page to
Senior Secured Term Loan Agreement
| SOLARIS TRANSPORTATION, LLC | ||
| By: | /s/ Stephan Tompsett | |
| Name: | Stephan Tompsett | |
| Title: | Chief Financial Officer | |
| SOLARIS POWER SOLUTIONS, LLC | ||
| By: | /s/ Stephan Tompsett | |
| Name: | Stephan Tompsett | |
| Title: | Chief Financial Officer | |
| SOLARIS POWER DISTRIBUTION SOLUTIONS, LLC | ||
| By: | /s/ Stephan Tompsett | |
| Name: | Stephan Tompsett | |
| Title: | Chief Financial Officer | |
| PROJECT G BUYER, LLC | ||
| By: | /s/ Stephan Tompsett | |
| Name: | Stephan Tompsett | |
| Title: | Chief Financial Officer | |
Signature Page to
Senior Secured Term Loan Agreement
| SOLARIS POWER SOLUTIONS STATELINE OPERATING, LLC | ||
| By: | /s/ Stephan Tompsett | |
| Name: | Stephan Tompsett | |
| Title: | Chief Financial Officer | |
Signature Page to
Senior Secured Term Loan Agreement
| PARENT: | ||
| SOLARIS ENERGY INFRASTRUCTURE, INC. | ||
| By: | /s/ Stephan Tompsett | |
| Name: | Stephan Tompsett | |
| Title: | Chief Financial Officer | |
Signature Page to
Senior Secured Term Loan Agreement
| AGENTS AND LENDERS: | ||
| GOLDMAN SACHS BANK USA, as Administrative Agent, Collateral Agent and Lender | ||
| By: | /s/ Thomas Manning | |
| Name: | Thomas Manning | |
| Title: | Authorized Signatory | |
| BANCO SANTANDER, S.A., NEW YORK BRANCH, as Lender | ||
| By: | /s/ D. Andrew Maletta | |
| Name: | D. Andrew Maletta | |
| Title: | Authorized Signatory | |
| By: | /s/ Ryan Peters | |
| Name: | Ryan Peters | |
| Title: | Authorized Signatory | |
Signature Page to
Senior Secured Term Loan Agreement
Exhibit 10.2
LOAN & SECURITY AGREEMENT
THIS LOAN & SECURITY AGREEMENT, dated as of March 16, 2026 (this “Agreement”), is by PROJECT G BUYER, LLC (the “Borrower”), a limited liability company duly organized and existing under the laws of the State of Texas, in favor of Lenders (defined below) from time to time party hereto, ELDRIDGE ASSET FINANCE LLC, a Delaware limited liability company (“Eldridge”), as Administrative Agent (defined below), having its principal office at 5525 Granite Parkway, Suite 1800, Plano, Texas 75024, and STONEBRIAR COMMERCIAL FINANCE LLC, a Delaware limited liability company (“SCF”), as Initial Lender (defined below), having its principal office at 5525 Granite Parkway, Suite 1800, Plano, Texas 75024.
WHEREAS, Borrower has applied to Initial Lender for a term loan, and Initial Lender has agreed to extend a term loan to Borrower in an original principal amount of One Hundred Forty Eight Million, Six Hundred Ten Thousand and No/100 Dollars ($148,610,000), and concurrently herewith, Borrower is executing a note (as amended, restated, supplemented or otherwise modified from time to time, together with all promissory notes given in substitution therefor or replacement thereof, the “Note”), in favor of Administrative Agent, for the benefit of Initial Lender.
NOW THEREFORE, in consideration of the premises, provisions and covenants contained herein, the parties hereto agree as follows:
1. Definitions. The following terms will have the following meanings, and will be equally applicable to both the singular and plural forms of the terms defined:
“Administrative Agent” means Eldridge, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Advance” means a disbursement by Lenders to or for the benefit of Borrower pursuant hereto or to the Note.
“Affiliate” means, with respect to any Person, another Person that directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, “controls” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.
“Applicable Law” means the laws of the State of New York or the laws of the United States of America, whichever laws allow the greater interest; as such laws now exist or may be changed or amended or come into effect in the future.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 12(c)), and accepted by Administrative Agent, in substantially the form of Exhibit A or any other form approved by Administrative Agent.
“Business Day” will mean any day other than a Saturday, Sunday or public holiday or the equivalent for banks operating in the State of New York.
“Collateral” has the meaning given to such term in Section 3 of this Agreement.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” means any event or circumstance that, with the passage of time or notice, could constitute an Event of Default.
“Event of Default” means any event specified in Section 8 of this Agreement.
“GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time.
“Generators” means the twelve (12) SMT 130 mobile gas turbine generators as set forth on Schedule A attached hereto or delivered pursuant to the Purchase Order.
“Guarantor” means Solaris Energy Infrastructure, LLC, a Delaware limited liability company.
“Guaranty” means the Continuing Guaranty dated as of the date hereof by Guarantor in favor of Administrative Agent and the Lenders, as the same may be amended, supplemented or otherwise modified as permitted.
“Initial Lender” means SCF and its successors that have acquired all or substantially all of the assets of SCF.
| Loan & Security Agreement (Project G) | Page 1 |
“Lender” means the Initial Lender and each of the Persons that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Lien” means a Person’s interest in any right, title or interest in any property securing an obligation owed to, or a claim by, such Person (or the Persons that such Person serves as agent or trustee for), including any mortgage, deed of trust, lien (whether statutory or otherwise), security interest, pledge, hypothecation, assignment, trust, reservation, assessment right, encroachment, easement, right-of-way, covenant, condition, restriction, lease, or other title exception or encumbrance.
“Loan” means the aggregate amount of all Advances made pursuant hereto or to the Note.
“Loan Documents” means, collectively, this Agreement, the Note, the Guaranty and all other documents, agreements, certificates and instruments executed and delivered in connection herewith and therewith, as the same may be modified, extended, restated or supplemented from time to time.
“Loan Party” or “Loan Parties” means Borrower and any guarantor (including Guarantor) of any or all of Obligations under the Loan Documents.
“Material Adverse Change” means, with respect to any Person, a material adverse change in the business, operations, results of operations, assets, liabilities or condition (financial or otherwise) of such Person taken as a whole.
“Material Adverse Effect” means, with respect to any Person, a material adverse effect on the business, operations, results of operations, assets, liabilities or condition (financial or otherwise) of such Person taken as a whole.
“Maturity Date” means the earlier to occur of (a) the Stated Maturity Date and (b) the date of Payment in Full.
“Obligations” means all indebtedness, obligations and liabilities of Borrower under the Note and under this Agreement, whether on account of principal, interest, indemnities, fees (including, without limitation, attorneys’ fees, remarketing fees, origination fees, collection fees and all other professionals’ fees), costs, expenses, taxes or otherwise.
“Origination Fee” means a fee paid to Agent on the date hereof in the amount of Seven Hundred Forty-Three Thousand, Fifty and No/100 Dollars ($743,050.00) in immediately available funds, such fee to be fully earned as of the date hereof and non-refundable for any reason hereafter.
“Paid in Full” or “Payment in Full” means the indefeasible payment in full in cash of all Obligations (including, e.g., all reimbursable expenses and other Obligations other than any Obligations (or portion thereof) that are contingent in nature or unliquidated at such time for which no claim has been made and other obligations expressly stated to survive such payment and termination of this Agreement), together with accrued and unpaid interest thereon.
“Parent” means Solaris Energy Infrastructure, Inc., a Delaware corporation.
“Payment Date” means the first (1st) calendar day of each month.
“Permitted Liens” means (a) Liens and security interests in favor of Lender securing any Obligations and (b) Liens for fees, taxes, levies, duties or other governmental charges of any kind, Liens of mechanics, materialmen, laborers, employees or suppliers and similar Liens, in each case, not yet delinquent or that are being contested in good faith by negotiations or by appropriate proceedings which suspend the collection thereof and that, in each case, do not involve any risk (as determined in Lender’s reasonable discretion) of the sale, forfeiture or loss of any Collateral, or any interest of Borrower or Lender therein.
“Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated organization, association, corporation, company, institution, entity, party or government (including any division, agency or department thereof), and the successors, heirs and assigns of each.
“Purchase Order” [INTENTIONALLY OMITTED].
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Required Lenders” means, as of any date of determination, Lenders holding more than fifty percent (50%) of the aggregate outstanding principal amount of the Loan after giving effect to any borrowings, prepayments or repayments of the Loan occurring on or prior to such date.
“Stated Maturity Date” means April 1, 2032.
| Loan & Security Agreement (Project G) | Page 2 |
2. The Loan.
(a) General Procedures. On the date hereof, Initial Lender may make a Loan to Borrower; provided, however, that prior to making any Loan, Administrative Agent shall have received all such items and documents pertaining to such Loan as Administrative Agent may reasonably require.
(b) Promise to Pay. For value received, Borrower promises to repay the Loan, with interest, as and when due in accordance with the Note, this Agreement and the other Loan Documents. Amounts borrowed hereunder and that are repaid or prepaid may not be reborrowed.
(c) Term and Rate. The term and annual interest rate applicable for the Loan shall be set forth in the Note. The obligation of Borrower to repay the Loan, together with interest as provided in the Note, shall commence upon the funding of the Loan and shall be unconditional.
(d) Lenders’ Records. Each Lender shall record in its records the date and amount of the Loan and each repayment thereof. The amounts so recorded shall be conclusive evidence, absent manifest error, of the principal amount owing and unpaid with respect to the Loan; provided, however, that the failure to so record any such amount or any error in so recording any such amount shall not limit or otherwise affect the obligations of Borrower hereunder or under the Note or any other Loan Document to repay the principal amount of the Loan together with all interest accruing thereon.
(e) Use of Proceeds. The proceeds of the Loan will be used by Borrower to purchase the Collateral.
(f) Conditions Precedent. Initial Lender shall have no obligation to make the Loan unless each of the conditions precedent set forth on Schedule B hereto shall have been satisfied in a manner reasonably satisfactory to Administrative Agent.
(g) Payments. During the term of the Loan, Borrower shall make payments on each Payment Date as required by the Note. Payments of principal, interest and all other amounts due under the Note and this Agreement shall be made by wire transfer. All such payments shall be payable to Administrative Agent, for the account of Lenders, as to such account or place as Administrative Agent may designate in writing from time to time. Administrative Agent will promptly distribute to each Lender its ratable share of such payment in like funds as received to such Lender (or otherwise distribute such payment in like funds as received to the Person or Persons entitled thereto as provided herein or in the Note). If an Event of Default has occurred and is continuing, Administrative Agent may apply payments received or collected from Borrower or for the account of Borrower (including, the monetary proceeds of collection or of realization upon any Collateral) to the Obligations in such order and manner as Administrative Agent determines in its sole discretion. If no Event of Default shall have occurred and be continuing, all payments shall be applied as set forth in this Agreement and the Loan Documents.
(h) No Deductions or Setoff; Reinstatement of Obligations. Borrower shall make all payments to Administrative Agent, for the account of Lenders, on the Obligations free and clear of, and without deduction or withholding for or on account of, any setoff, counterclaim, defense, duties, taxes, levies, imposts, fees, deductions, withholding, restriction or conditions of any kind. If after receipt of any payment of, or proceeds of Collateral applied to the payment of, any of the Obligations, any Lender is required to surrender or return such payment or proceeds to any Person for any reason, then the Obligations intended to be satisfied by such payment or proceeds shall be reinstated and continue, and this Agreement shall continue in full force and effect as if such payment or proceeds has not been received by such Lender. Borrower shall be liable to pay to each Lender, and does hereby indemnify and hold each Lender harmless for, the amount of any payments or proceeds surrendered or returned. This Section 2(h) shall remain effective notwithstanding any contrary action which may be taken by any Lender in reliance upon such payment or proceeds, and this Section 2(h) shall survive the payment of the Obligations and the termination of this Agreement.
3. Creation of Security Interest; Collateral. To secure the payment and performance of all Obligations, Borrower hereby assigns and grants to Lender a continuing general, first priority Lien on and security interest in, all Borrower’s right, title and interest in and to:
| (a) | all of the assets, whether or not affixed to realty, described on Schedule A attached hereto, together with all present and future additions, parts, accessories, attachments, substitutions, repairs, improvements and replacements thereof or thereto, and any and all proceeds thereof, including, without limitation, proceeds of insurance (the “Equipment Collateral”); |
| (b) | the Purchase Order and all other contracts and agreements providing Borrower with rights to purchase or otherwise obtain title to the Equipment Collateral; and |
| (c) | all proceeds of each of the foregoing. |
All of the property and interests in property described in this Section 3 are herein collectively referred to as the “Collateral.”
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4. Borrower’s Representations and Warranties. Borrower represents and warrants to Administrative Agent and each Lender that:
(a) Good Standing; Qualified to do Business. Borrower (i) is a “registered organization” (as defined in the Uniform Commercial Code) duly organized, validly existing and in good standing under the laws of the State indicated in the first paragraph of this Agreement and Borrower’s exact legal name is as set forth in the first paragraph of this Agreement; (ii) has the power and authority to own its properties and assets and to transact the businesses in which it is presently, or proposes to be, engaged and (iii) is duly qualified and authorized to do business and is in good standing in every jurisdiction in which the failure to be so qualified could have a Material Adverse Effect on (A) Borrower, (B) Borrower’s ability to perform its obligations under the Loan Documents or (C) the rights of Lenders hereunder or under any other Loan Documents.
(b) Due Execution, etc. The execution, delivery and performance by Borrower of each of the Loan Documents to which it is a party are within the powers of Borrower, do not contravene the organizational documents of Borrower, and do not (i) violate any law or regulation, or any order or decree of any court or governmental authority, (ii) conflict with or result in a breach of, or constitute a default under, any material indenture, mortgage or deed of trust or any material lease, agreement or other instrument binding on Borrower or any of its properties, or (iii) require the consent, authorization by or approval of or notice to or filing or registration with any governmental authority or other Person. This Agreement is, and each of the other Loan Documents to which Borrower is or will be a party, when delivered hereunder or thereunder, will be, the legal, valid and binding obligation of Borrower enforceable against Borrower in accordance with its terms.
(c) Financial Statements; Material Liabilities. Borrower has delivered to Administrative Agent copies of the financial statements of Borrower or Parent. All of such financial statements (including in each case the related statements and notes) fairly present in all material respects the financial position of Borrower or Parent for the respective periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as may be set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments).
(d) Solvency; No Liens. Borrower, Parent and each other Loan Party is solvent, is paying its debts as they become due and has sufficient capital to conduct its business. The fair salable value of Borrower’s, Parent’s and each other Loan Party’s assets is in excess of the total amount of its liabilities (including contingent liabilities) as they become absolute and matured. The security interests granted herein constitute and will at all times constitute the first and only Liens on the Collateral other than Permitted Liens. Borrower is, or will be at the time additional Collateral is acquired by it, the absolute owner of the Collateral with full right to pledge, sell, consign, transfer and create a security interest therein, free and clear of any and all claims or Liens in favor of any other Person other than Permitted Liens.
(e) No Judgments, Litigation. No judgments are outstanding against Borrower. Parent or any other Loan Party nor is there now pending or, to the best of Borrower’s knowledge after diligent inquiry, threatened, any litigation, contested claim, or governmental proceeding by or against Borrower, Parent or any other Loan Party except judgments and pending or threatened litigation, contested claims and governmental proceedings which would not, in the aggregate, have a Material Adverse Effect.
(f) No Defaults. Borrower is not in default under any material contract, lease, or commitment to which it is a party or by which it is bound. Borrower knows of no dispute regarding any contract, lease, or commitment which could have a Material Adverse Effect on Borrower.
(g) Collateral Locations. On the date hereof, the Collateral is located at the place of business specified in Schedule A hereto.
(h) No Events of Default. No Event of Default has occurred and is continuing nor has any event occurred which, with the giving of notice or the passage of time, or both, would constitute an Event of Default.
(i) No Limitation on Administrative Agent’s or any Lender’s Rights. Except as permitted herein, none of the Collateral is subject to contractual obligations that may materially restrict or inhibit Administrative Agent’s or any Lender’s rights or abilities to sell or dispose of the Collateral or any part thereof after the occurrence of an Event of Default.
(j) Perfection and Priority of Security Interest. This Agreement creates a valid and, upon completion of all required filings of financing statements, perfected, first-priority and exclusive security interest in the Collateral, securing the payment of all the Obligations.
(k) Model and Serial Numbers. Schedule A hereto sets forth the true and correct model number, serial number and vehicle identification number (if applicable) of each item of Collateral that is the type of equipment or other asset that is generally assigned a model, serial number or vehicle identification number.
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(l) Foreign Assets Control Regulations, Etc.
(i) Neither Borrower nor any Affiliate is (A) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, United States Department of the Treasury (“OFAC”) (an “OFAC Listed Person”) (B) an agent, department, or instrumentality of, or is otherwise beneficially owned by, controlled by or acting on behalf of, directly or indirectly, (1) any OFAC Listed Person or (2) any Person, entity, organization, foreign country or regime that is subject to any OFAC sanctions program, or (C) otherwise blocked, subject to sanctions under or engaged in any activity in violation of other United States economic sanctions (collectively, “U.S. Economic Sanctions”) (each OFAC Listed Person and each other Person, entity, organization and government of a country described in clause (A), clause (B) or clause (C), a “Blocked Person”).
(ii) No part of the proceeds from the Loan hereunder constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used by Borrower or any Affiliate, directly or indirectly, (A) in connection with any investment in, or any transactions or dealings with, any Blocked Person, or (B) otherwise in violation of U.S. Economic Sanctions.
(iii) Neither Borrower nor any Affiliate (A) has been found in violation of, charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), the USA PATRIOT Act or any other United States law or regulation governing such activities (collectively, “Anti-Money Laundering Laws”) or any U.S. Economic Sanctions violations, (B) to Borrower’s actual knowledge after making due inquiry, is under investigation by any Governmental Authority for possible violation of Anti-Money Laundering Laws or any U.S. Economic Sanctions violations, (C) has been assessed civil penalties under any Anti-Money Laundering Laws or any U.S. Economic Sanctions, or (D) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws.
5. Borrower Covenants.
(a) Existence, Compliance with Laws, Fundamental Changes. Borrower will maintain its existence and its current yearly accounting cycle, and will maintain in full force and effect all licenses, bonds, franchises, leases, trademarks, patents, contracts and other rights necessary or desirable to the profitable conduct of its business. Borrower will continue in, and limit its operations to, the same general lines of business as those presently conducted by it and will comply with all applicable laws and regulations of any federal, state or local governmental authority, except for such laws and regulations the violations of which would not, in the aggregate, have a Material Adverse Effect on Borrower. Borrower will give Administrative Agent at least two (2) Business Days’ prior written notice of any intent to change Borrower’s name or state of incorporation or organization.
(b) Merger, Consolidation, Etc. Without the prior written consent of Administrative Agent (such consent to be granted or withheld at Administrative Agent’s sole discretion), Borrower will not merge or consolidate with any other Person, divide itself or be divided, amend or modify its capital structure, sell or otherwise dispose of all or substantially all of its assets, or otherwise allow a Change of Control. As used herein, “Change of Control” means (i) 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 shares representing more than twenty-five percent (25%) of the aggregate ordinary voting power represented by the issued and outstanding capital stock or membership interests (as applicable) of Parent, any guarantor (including Guarantor) or Borrower or (ii) occupation of a majority of the seats (other than vacant seats) on the board of directors of Borrower by persons who were neither (A) nominated by the board of directors of Borrower, nor (B) appointed by directors so nominated. For the avoidance of doubt, the occurrence of either one or both of the actions described in clauses (i) and (ii) above shall constitute a Change of Control.
(c) Maintenance of Books and Records. Borrower will maintain books and records pertaining to the Collateral in such detail, form and scope as Administrative Agent will require in its commercially reasonable judgment.
(d) Insurance. Borrower will maintain insurance on the Collateral under such policies of insurance, with such insurance companies, in such amounts and covering such risks as are at all times satisfactory to Administrative Agent, including, but not limited to, all risk physical damage insurance for the Collateral itself and liability coverage for personal injuries, death and/or property damage on terms satisfactory to Administrative Agent. All such policies will be made payable to Administrative Agent and its successors and assigns, in case of loss, under a standard non-contributory “lender” or “secured party” endorsement, shall name Administrative Agent, Lenders, each of their respective affiliates and any such party’s respective successors and/or assigns as an additional insured, and are to contain such other provisions as Administrative Agent may reasonably require to protect Administrative Agent and Lenders’ interests in the Collateral and
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to any payments to be made under such policies, and will provide that intentional acts of Borrower do not affect the insured’s obligations to Administrative Agent and Lenders under such endorsement. All policies shall contain a clause requiring the insurer to give Administrative Agent at least thirty (30) days’ prior written notice of any material change in the terms or cancellation of the policy and shall include a waiver of subrogation as respects Administrative Agent’s and each Lender’s insurance policies. If Borrower fails to maintain such insurance, Administrative Agent may arrange for (at Borrower’s expense and without any responsibility on Administrative Agent or any Lender’s part for) obtaining the insurance. Unless Administrative Agent otherwise agrees with Borrower in writing, Administrative Agent will have the sole right, in the name of Administrative Agent or Borrower, to file claims under any insurance policies, to receive and give acquittance for any payments that may be payable thereunder, and to execute any 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. Administrative Agent may, at Administrative Agent’s option, apply proceeds of insurance, in whole or in part, (i) to repair or comparably replace the Collateral or any portion of it or (ii) to satisfy any of the Obligations. Upon the request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence reasonably satisfactory to Administrative Agent that Borrower is in compliance with all insurance requirements set forth in this Section, which evidence so requested may include insurance certificates from each relevant insurer.
(e) Taxes. Borrower will pay, when due, all taxes, assessments, claims and other charges (herein “taxes”) lawfully levied or assessed against Borrower or the Collateral and that may impact the Collateral other than taxes that are being diligently contested in good faith by Borrower by appropriate proceedings promptly instituted and (i) for which an adequate reserve is being maintained by Borrower in accordance with GAAP or (ii) so long as Borrower has a reasonable expectation of succeeding in such contest and, in Lender’s opinion, there is no material risk of any Collateral being seized or forfeited in connection with such contest. If any taxes remain unpaid after the date fixed for the payment thereof, or if any lien will be claimed therefore, then, without notice to Borrower, but on Borrower’s behalf, Administrative Agent may pay such taxes or cause such taxes to be paid, and the amount thereof will be included in the Obligations.
(f) Borrower to Defend Collateral against Claims; Fees on Collateral. Borrower will defend the Collateral against all claims and demands of all Persons at any time claiming the same or any interest therein. Borrower will not permit any notice creating or otherwise relating to Liens on the Collateral or any portion thereof (other than Permitted Liens) to exist or be on file in any public office. Borrower will promptly pay, when due, all material transportation, storage and warehousing charges and license fees, registration fees, assessments, charges, permit fees and taxes (municipal, state and federal) which may now or hereafter be imposed upon the ownership, leasing, renting, possession, sale or use of the Collateral, excluding however, all taxes on or measured by any Lender’s net income.
(g) No Change of Location, Borrower will not move or permit the movement of any Collateral from the location specified in Schedule A hereto, except that Borrower may, provided no Default or Event of Default has occurred and remains uncured, move the Collateral to other locations within the United States provided that (a) upon the request of the Administrative Agent, Borrower shall promptly deliver to the Administrative Agent an updated Schedule A to reflect the then current location of the Equipment Collateral and deliver any agreements and instruments (all in form and substance satisfactory to Lender) necessary or, in the opinion of Administrative Agent, desirable to perfect and maintain in favor of Administrative Agent a first priority security interest in the Collateral; and (b) Borrower may keep any Collateral consisting of motor vehicles, rolling stock or other mobile equipment at any location in the United States provided that it notifies Administrative Agent of such locations from time to time upon Administrative Agent’s request and if the Collateral is a titled motor vehicle, Administrative Agent’s security interest in any such Collateral remains conspicuously marked on the certificate of title thereof.
(h) Use of Collateral; Licenses. The Collateral will be operated by competent, qualified personnel in connection with Borrower’s business purposes, for the purpose for which the Collateral was designed and in accordance with applicable operating instructions, laws and government regulations and Borrower will use every reasonable precaution to prevent loss or damage to the Collateral from fire and other hazards. Borrower will maintain the Collateral in its original condition and working order, ordinary wear and tear excepted, and, at the request of Lender, furnish all proof of maintenance. The Collateral will not be used or operated for personal, family or household purposes. Borrower will procure and maintain in effect all orders, licenses, certificates, permits, approvals and consents required by federal, state or local laws or by any governmental body, agency or authority in connection with the delivery, installation, use and operation of the Collateral.
(i) Further Assurances; Financing Statements. Borrower will, promptly upon request by Administrative Agent, execute and deliver or obtain any document reasonably required by Administrative Agent (including, without limitation, warehouseman or processor disclaimers, mortgagee waivers, landlord disclaimers, or subordination agreements with respect to the Obligations and the Collateral), give any notices, execute (if applicable) and file any financing statements, mortgages or other documents (all in form and substance satisfactory to Administrative Agent), mark any chattel paper,
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deliver any chattel paper or instruments to Administrative Agent, and take any other actions that are necessary or, in the opinion of Administrative Agent, desirable to perfect or continue the perfection and the first priority of Administrative Agent’s security interest in the Collateral, to protect the Collateral against the rights, claims, or interests of any Persons, or to effect the purposes of this Agreement. Borrower hereby authorizes Administrative Agent to file one or more financing or continuation statements, and amendments thereto, relating to all or any part of the Collateral. A carbon, photographic or other reproduction of this Agreement or any financing statement covering the Collateral or any part thereof will be sufficient as a financing statement where permitted by law. All costs incurred in connection with any of the foregoing shall be for the account of Borrower.
(j) No Disposition of Collateral. Borrower will not in any way hypothecate or create or permit to exist any Lien, security interest, charge or encumbrance on or other interest in any of the Collateral, except for Permitted Liens, and Borrower will not sell, transfer, assign, pledge, collaterally assign, exchange or otherwise dispose of any of the Collateral, including, but not limited to, transfer to any entity with the same or similar name as Borrower and organized under the laws of a state other than the state of Borrower’s organization on the date hereof. In the event the Collateral, or any part thereof, is sold, transferred, assigned, exchanged, or otherwise disposed of in violation of these provisions, the security interest of Administrative Agent will continue in such Collateral or part thereof notwithstanding such sale, transfer, assignment, exchange or other disposition, and Borrower will hold the proceeds thereof in a separate account for the benefit of Administrative Agent and Lenders. Following such a sale, Borrower will transfer such proceeds to Administrative Agent in kind, and all of the Obligations will survive until otherwise satisfied in accordance with the terms hereof and under any of the other Loan Documents.
(k) No Limitation on Lender’s Rights. Borrower will not enter into any contractual obligations which may restrict or inhibit Administrative Agent or Lenders’ rights or ability to sell or otherwise dispose of the Collateral or any part thereof.
(l) Protection of Collateral. Administrative Agent will have the right at any time to make any payments and do any other acts Administrative Agent may deem necessary to protect its security interests in the Collateral, including, without limitation, the rights to satisfy, purchase, contest or compromise any encumbrance, charge or Lien which, in the reasonable judgment of Administrative Agent, appears to be prior to or superior to the security interests granted hereunder, and appear in and defend any action or proceeding purporting to affect its security interests in, or the value of, any of the Collateral. Borrower hereby agrees to reimburse Administrative Agent for all payments made and all expenses incurred under this Agreement including documented fees, expenses and disbursements of attorneys and paralegals acting for Administrative Agent or any Lender, including any of the foregoing payments under, or acts taken to protect its security interests in, any of the Collateral, which amounts will be secured under this Agreement, and agrees Borrower will be bound by any payment made or act taken by Administrative Agent or any Lender hereunder absent such party’s gross negligence or willful misconduct. Neither Administrative Agent nor any Lender will have any obligation to make any of the foregoing payments or perform any of the foregoing acts.
(m) Delivery of Items. Borrower will promptly (but in no event later than three (3) Business Days) after its receipt thereof, deliver to Administrative Agent any documents or certificates of title issued with respect to any property included in the Collateral, and any promissory notes, letters of credit or instruments related to or otherwise in connection with any property included in the Collateral, which in any such case come into the possession of Borrower, or will cause the issuer thereof to deliver any of the same directly to Administrative Agent, in each case with any necessary endorsements in favor of Administrative Agent.
(n) Terrorism Sanctions Regulations. Neither Loan Party, nor Parent nor any of their respective Affiliates will (i) become (including by virtue of being owned or controlled by a Blocked Person), own or control a Blocked Person or any Person that is the target of any U.S. Economic Sanctions program sanctions imposed by the United Nations or by the European Union, or (ii) directly or indirectly to have any investment in or engage in any dealing or transaction with any Person if such investment, dealing or transaction would cause any holder to be in violation of any U.S. Economic Sanctions or any similar law or regulation with respect to any country that is subject to U.S. Economic Sanctions.
(o) Inspections. Administrative Agent may, at a reasonable time during normal business hours, at Borrower’s expense, inspect the Collateral and/or have the Collateral professionally appraised upon Administrative Agent’s request; provided, however, that so long as no Default or Event of Default has occurred and is continuing: (i) Administrative Agent shall not conduct more than one (1) inspection within any twelve (12) month period and (ii) Administrative Agent shall give Borrower at least two (2) Business Days prior notice of any inspection or on-site appraisal. Should Administrative Agent reasonably determine following any such inspection or appraisal that the Collateral is not in the condition required under this Agreement or any other Loan Document, Borrower shall promptly repair such Collateral and take all other actions reasonably necessary to restore the Collateral to the required condition, and Administrative Agent shall be entitled to reinspect the Collateral as necessary to confirm such restoration has been completed. Notwithstanding anything to the contrary herein, all reasonable and documented costs attributable to such reinspections and any restoration shall be for the account of Borrower.
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(p) Value Maintenance. Should Administrative Agent, in its reasonable discretion, determine that Borrower’s obligations under the Loan Documents exceed ninety percent (90%) of the fair market value of the Collateral, then Borrower shall, within ten (10) Business Days of Administrative Agent’s request therefor, either (i) repay the Loan in an amount or (ii) pledge additional Collateral (acceptable to Administrative Agent in its sole discretion), in each case sufficient to reduce the obligations under the Loan Documents to an amount no greater than ninety percent (90%) of the fair market value of the Collateral; provided, however, that any payment made pursuant to this clause shall not require the payment of the Prepayment Fee (as such term is defined in the Note).
(q) Condition Subsequent. On or before the date thirty (30) days from the date hereof (or such longer period reasonably acceptable to the Administrative Agent), Borrower shall deliver to Administrative Agent a collateral assignment of the Purchase Order by the applicable supplier and Borrower to Administrative Agent (for the benefit of the Lenders), such collateral assignment to be in form and substance reasonably acceptable to Administrative Agent.
For the avoidance of doubt, all covenants set forth in this Agreement or the other Loan Documents shall be given independent effect so that if a particular action or condition is not permitted by any one or more of such covenants, the fact that such action or condition would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not act to permit such action or condition.
6. [Reserved]
7. Financial Business Information. Until the payment and satisfaction in full of all Obligations, Borrower will deliver to Administrative Agent the following financial information:
(a) Annual Financial Statements. As soon as available, but not later than one hundred twenty (120) days after the end of each fiscal year of Parent and its consolidated subsidiaries, the consolidated and consolidating balance sheet, income statement and statements of cash flows and shareholders’ equity for Parent and its consolidated subsidiaries (the “Financial Statements”) for such year, prepared in reasonable detail in accordance with GAAP and certified and accompanied by an opinion (which opinion shall not be qualified as to scope or contain any going concern or other qualification or exemption) of independent certified public accountants of recognized standing.
(b) Quarterly Financial Statements. As soon as available, but not later than sixty (60) days after the end of each fiscal quarter, internally-prepared Financial Statements for such fiscal quarter together with a certification duly executed by a responsible officer of Parent that such Financial Statements have, to Parent’s knowledge, been prepared materially in accordance with GAAP and are fairly stated in all material respects (subject to normal adjustments).
(c) Notices. As soon as practicable, and in any event within five (5) days after any Loan Party or Parent learns of the following, Borrower will give written notice to Administrative Agent of (i) any proceeding instituted or threatened to be instituted by or against Borrower in any federal, state, local or foreign court or before any commission or other regulatory body (federal, state, local or foreign), the outcome of which could have a Material Adverse Effect on a Loan Party or Parent, (ii) the occurrence of any Material Adverse Change with respect to Borrower, (iii) the occurrence of any Event of Default or event or condition which, with notice or lapse of time or both, would constitute an Event of Default, together with a statement of the action which Borrower has taken or proposes to take with respect thereto or (iv) the occurrence of any material loss or damage with respect to any Collateral.
(d) Electronic Delivery. Financial statements, opinions of independent certified public accountants and other certificates and information required to be delivered by Parent pursuant to Sections 7(a) and 7(b) above shall be deemed to have been delivered if Parent shall have timely filed an SEC Form 10-Q or Form 10-K, satisfying the requirements of clauses (a) or (b) above, as the case may be, with the SEC or EDGAR, or such financial statements are timely posted by or on behalf of Parent on a website to which Administrative Agent has free access; provided, that upon request of Administrative Agent to receive paper copies of such deliverables, Parent will promptly deliver such paper copies to Administrative Agent.
8. Events of Default. The occurrence of any of the following events will constitute an Event of Default hereunder:
(a) failure of Borrower to pay any of the Obligations, whether at stated maturity, by acceleration, or otherwise within five (5) Business Days of the stated due date;
(b) failure of Borrower to obtain and maintain the insurance required herein;
(c) failure of a Loan Party to perform, comply with or observe any other term, covenant or agreement applicable to it contained in any of the Loan Documents and such failure will continue unremedied for a period of thirty (30) days after the earlier to occur of (i) Lender’s written notice thereof to Borrower and (ii) any Loan Party’s or Parent’s knowledge of such failure;
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(d) any representation or warranty made or deemed made by a Loan Party or Parent hereunder, under or in connection with the Financial Statements, under any other Loan Document or under any document, instrument or certificate executed by any of the Loan Parties in favor of Administrative Agent or any Lender in connection with any Loan Document, will prove to have been false, misleading, inaccurate or incorrect in any material respect when made;
(e) the admission in writing by any of the Loan Parties of its inability to pay its debts as they mature, or the calling of a meeting of any of the Loan Parties’ creditors for purposes of compromising any of the Loan Parties’ debts;
(f) the commencement by or against any of the Loan Parties of any bankruptcy, insolvency, reorganization, receivership or similar proceedings under any federal or state law and, in the case of any such involuntary proceeding, such proceeding remains undismissed or unstayed for sixty (60) days following the commencement thereof, or any Loan Party or Parent takes any action authorizing any such proceedings;
(g) Parent fails to own, directly or indirectly, one hundred percent (100%) of the voting equity interests of Borrower;
(h) Guarantor fails to own, directly or indirectly, one hundred percent (100%) of Borrower;
(i) a Loan Party or Parent defaults (i) in the payment of principal of or interest on any indebtedness (other than the Obligations) that is outstanding in an aggregate principal amount of at least Ten Million and No/100 Dollars ($10,000,000) beyond any grace period provided with respect thereto and where the effect of such payment default would permit the holder or holders of such indebtedness to cause, with the giving of notice if required, such indebtedness to become due prior to its stated maturity; (ii) in the observance or performance of any other agreement or condition relating to any such indebtedness described in the foregoing clause (i) or contained in any instrument or agreement relating thereto, or any other event will occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such indebtedness to cause, with the giving of notice if required, such indebtedness to become due prior to its stated maturity; or (iii) under any other agreement with Administrative Agent or any of Administrative Agent’s Affiliates, beyond any applicable grace period;
(j) one or more final judgments are rendered against any of the Loan Parties which will not be stayed, vacated, bonded or discharged within sixty (60) days, which judgments, alone or in the aggregate could have a Material Adverse Effect on any Loan Party or Parent; or
(k) any material covenant, agreement or obligation of any Loan Party or Parent contained in or evidenced by any of the Loan Documents is determined by a court of competent jurisdiction to be unenforceable, in accordance with its terms; provided that the relevant provision for such covenant, agreement or obligation is not replaced to the reasonable satisfaction of the Lender with a valid provision within fifteen (15) Business Days after any Loan Party or Parent has obtained knowledge or notice that such provision is unenforceable; any Loan Party or Parent denies or disaffirm its obligations under any of the Loan Documents or any Liens granted in connection therewith, or any Lien granted on any of the Collateral under any Loan Document is determined to be void, voidable or invalid, is subordinated or is not given the priority contemplated by this Agreement (except as otherwise agreed to in writing by Administrative Agent).
9. Remedies. If any Event of Default will have occurred and be continuing:
(a) Administrative Agent may, without prejudice to any of its other rights under any Loan Document or applicable law, declare all Obligations to be immediately due and payable (except with respect to any Event of Default set forth in Section 8(f) hereof, in which case all Obligations will automatically become immediately due and payable without necessity of any declaration) without presentment, representation, demand of payment or protest, which are hereby expressly waived;
(b) Administrative Agent may take possession of the Collateral and, for that purpose may enter, with the aid and assistance of any person or persons, any premises where the Collateral or any part hereof is, or may be placed, and remove the same;
(c) the obligation of Lenders, if any, to give additional (or to continue) financial accommodations of any kind to Borrower will immediately terminate;
(d) Administrative Agent may exercise in respect of the Collateral, in addition to other rights and remedies provided for herein (or in any Loan Document) or otherwise available to it, all the rights and remedies of a secured party under the Uniform Commercial Code (the “Code”) whether or not the Code applies to the affected Collateral and also may (i) require Borrower to, and Borrower hereby agrees that it will at its expense and upon request of Administrative Agent forthwith, assemble all or part of the Collateral as directed by Administrative Agent and make it available to Administrative Agent
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at a place to be designated by Administrative Agent that is reasonably convenient to both parties and (ii) without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of Administrative Agent’s offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as Administrative Agent may deem commercially reasonable. Borrower agrees that, to the extent notice of sale will be required by law, at least ten (10) days’ notice to Borrower of the time and place of any public sale or the time after which any private sale is to be made will constitute reasonable notification. Neither Administrative Agent nor any Lender will be obligated to make any sale of Collateral regardless of notice of sale having been given. Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned;
(e) all cash proceeds received by Administrative Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral may, in the discretion of Administrative Agent, be held by Administrative Agent as collateral for, or then or at any time thereafter applied in whole or in part by Administrative Agent against all or any part of the Obligations (including, without limitation, any prepayment or other penalties owed by Borrower) in such order as Administrative Agent will elect. Any surplus of such cash or cash proceeds held by Administrative Agent or Lenders and remaining after the full and final payment of all the Obligations will be paid over to Borrower or to such other Person to which Administrative Agent or Lenders may be required under applicable law, or directed by a court of competent jurisdiction, to make payment of such surplus; and
(f) Administrative Agent may pursue any other rights or remedies available at law or in equity, including, without limitation, rights or remedies seeking damages, specific performance and injunctive relief, and Administrative Agent shall have the right, in its sole discretion, to exercise any one or more of the remedies described in this Section 9 or otherwise.
10. [Reserved].
11. Agency Provisions.
(a) Appointment and Authority. Each Lender hereby irrevocably appoints Eldridge to act on its behalf as Administrative Agent hereunder and under the other Loan Documents and authorizes Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Section 11 are solely for the benefit of Administrative Agent and Lenders, and neither Borrower, nor Parent nor any other Loan Party shall have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to Administrative 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 as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each Lender hereby irrevocably appoints and authorizes Administrative Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by Administrative Agent for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted hereunder, or for exercising any rights and remedies thereunder at the direction of Administrative Agent, shall be entitled to the benefits of all provisions of this Section 11 and Section 12(i) as if set forth in full herein with respect thereto.
(b) Rights as a Lender. The Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its branches and Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, any Loan Party or Parent or any subsidiary or other Affiliate thereof as if such Person were not Administrative Agent hereunder and without any duty to account therefor to Lenders or to provide notice to or consent of Lenders with respect thereto.
(c) Exculpatory Provisions.
(i). Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, Administrative Agent: (A) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing; (B) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
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contemplated hereby or by the other Loan Documents that Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law; and (C) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity.
(ii). Administrative Agent shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Required Lenders (or such other number or percentage of Lenders as shall be necessary, or as Administrative Agent shall believe in good faith shall be necessary), or (B) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to Administrative Agent in writing by Borrower or a Lender.
(iii). Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (B) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (D) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created hereby or (E) the satisfaction of any condition set forth herein, other than to confirm receipt of items expressly required to be delivered to Administrative Agent.
(d) Reliance by Administrative Agent. Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of the Loan that by its terms must be fulfilled to the satisfaction of a Lender, Administrative Agent may presume that such condition is satisfactory to such Lender unless Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Administrative Agent may consult with legal counsel (who may be counsel for the Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(e) Delegation of Duties. Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub agents appointed by Administrative Agent. Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions hereof shall apply to any such sub agent and to the Related Parties of Administrative Agent and any such sub-agent. Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
(f) Non-Reliance on Administrative Agent and Other Lenders. Each Lender expressly acknowledges that Administrative Agent has not made any representation or warranty to it, and that no act by Administrative Agent hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party or Parent or any Affiliate thereof, shall be deemed to constitute any representation or any warranty by Administrative Agent to any Lender as to any matter, including whether Administrative Agent has disclosed material information in its (or its Related Parties’) possession. Each Lender represents to Administrative Agent that it has, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and its subsidiaries, and all applicable bank or other regulatory laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to Borrower hereunder. Each Lender also acknowledges that it will, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own credit
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analysis, appraisal and decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder, 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 Borrower. Each Lender represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender for the purpose of making, acquiring or holding commercial loans set forth herein as may be applicable to such Lender, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender agrees not to assert a claim in contravention of the foregoing. Each Lender represents and warrants that it is sophisticated with respect to decisions to make, acquire or hold commercial loans, as may be applicable to such Lender, and either it, or the Person exercising discretion in making its decision to make, acquire or hold such commercial loans, is experienced in making, acquiring or holding such commercial loans.
(g) Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party or Parent, Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(i). to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loan and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of Lenders and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of Lenders and Administrative Agent and their respective agents and counsel and all other amounts due to Lenders and Administrative Agent allowed in such judicial proceeding); and
(ii). to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under this Agreement or any other Loan Document.
(h) Collateral and Guaranty Matters.
(i). Each Lender irrevocably authorizes Administrative Agent, at Administrative Agent’s option and in Administrative Agent’s discretion and upon Borrower’s request to release any Lien on any property granted to or held by Administrative Agent under any Loan Document (A) upon the Payment in Full of the Obligations and the termination of this Agreement, (B) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or under any other Loan Document, (C) that is reasonably determined by Administrative Agent to be of immaterial value with respect to the Collateral as a whole or (D) if approved, authorized or ratified in writing by the Required Lenders.
(ii). In each case as specified in this clause (h), Administrative Agent will, at Borrower’s expense, execute and deliver to the applicable Loan Party or Parent such documents as such Loan Party or Parent may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted hereunder.
(iii). Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party or Parent in connection therewith, nor shall Administrative Agent be responsible or liable to Lenders for any failure to monitor or maintain any portion of the Collateral.
12. Miscellaneous Provisions.
(a) Notices. Except as otherwise provided herein, all notices, approvals, consents, correspondence or other communications required or desired to be given hereunder will be given in writing and will be delivered by overnight courier, hand delivery or certified or registered mail, postage prepaid to the addresses stated below. All such notices and correspondence will be effective when received:
If to Administrative Agent or any Lender: 5525 Granite Parkway, Suite 1800, Plano, Texas 75024, ATTN: General Counsel; or such other address as will be designated by Administrative Agent to Borrower.
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If to Borrower: 9651 Katy Freeway, Suite 300, Houston, Texas 77024, ATTN: Legal Department; or such other address as will be designated by Borrower to Administrative Agent.
(b) Headings. The headings in this Agreement are for purposes of reference only and will not affect the meaning or construction of any provision of this Agreement.
(c) Assignments, etc.
(i) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that none of Borrower, Parent or any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Administrative Agent, such consent to be granted at Administrative Agent’s sole and absolute discretion.
(ii) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of the Loan at the time owing to it); provided that any such assignment shall be subject to the following conditions: (A) the consent of Administrative Agent shall be required for assignments to a Person that is not a Lender; and (B) the parties to each assignment shall execute and deliver to Administrative Agent an Assignment and Assumption (with a copy to be promptly provided to Borrower). Subject to acceptance and recording thereof by Administrative Agent, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). Upon request by a Lender or Administrative Agent, Borrower promptly shall execute and deliver at the direction of Administrative Agent a new Note (or new Notes) to the assignee (and, if applicable, to the assigning Lender) in exchange for the Note (or Notes) of the assigning Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with the applicable terms hereof.
(iii) Register. Administrative Agent, acting solely for this purpose as an agent of Borrower, shall maintain at one of Administrative Agent’s offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of Lenders, and the principal amounts (and stated interest) of the Loan owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and Borrower, Administrative Agent and Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(iv) Participations. Any Lender may at any time, without the consent of, or notice to, Borrower or Administrative Agent, sell participations to any Person (other than Borrower or any of Borrower’s Affiliates or subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights or obligations under this Agreement (including all or a portion of the Loan owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (C) Borrower, Administrative Agent and Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver of a Sacred Term that affects such Participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loan or other obligations under the Loan Documents (the “Participant Register”); provided that 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 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 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
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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, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(v) Each Lender may provide to any one or more purchasers, or potential purchasers, any information or knowledge about Borrower, the other Loan Parties and the Loan. Borrower additionally waives any and all notices of sales of participation interests, as well as all notices of any repurchase of any participation interests. Borrower also agrees that the purchasers of any such participation interests will be considered as the economic owners of such interests in the Loan and will have all the rights under the agreement(s) governing the sale of such participation interests or other assignment of any Lender’s interests. Borrower unconditionally agrees that a Lender or such purchaser (through a Lender) may enforce Borrower’s obligations under the Loan irrespective of the failure or insolvency of any holder of any interest in the Loan. Borrower further agrees that the purchaser or assignee of any such interests may, unless it is a controlled Affiliate of the selling or assigning Lender, enforce its interests irrespective of any personal claims or defenses that Borrower may have against a Lender.
(d) Amendments, Waivers and Consents. Except as otherwise expressly set forth in this Agreement, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by Borrower therefrom, shall be effective unless such amendment, waiver or consent is in writing executed by Borrower and the Required Lenders, and acknowledged by Administrative Agent, or by Borrower and Administrative Agent with the consent of the Required Lenders, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no such amendment, waiver or consent shall: (i) reduce the principal of, or rate of interest specified herein on, any Loan, or any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of each Lender directly and adversely affected thereby (provided that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive the obligation of Borrower to pay interest at the Default Rate); (ii) postpone any date scheduled for any payment of principal of, or interest on, any Loan, or any fees or other amounts payable hereunder or under any other Loan Document, or reduce the amount of, waive or excuse any such payment, without the written consent of each Lender directly and adversely affected thereby; (iii) release (A) Borrower from its Obligations under the Loan Documents or (B) any guarantor (including Guarantor) of the Obligations from its guaranty (including the Guaranty) or limit such guarantor’s liability in respect of such guaranty, in each case, without the written consent of each Lender (unless the Borrower is making Payment in Full of the Obligations); (iv) except as expressly otherwise provided in this Agreement, release all or substantially all of the Collateral from the Liens without the written consent of each Lender (unless the Borrower is making Payment in Full of the Obligations); (v) change Section 2(g) in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender directly and adversely affected thereby; or (vi) change any provision of this clause (d) or the percentage in the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender (clauses (i)-(vi), “Sacred Terms”).
(e) Interpretation of Agreement. Time is of the essence in each provision of this Agreement and in each other Loan Document of which time is an element, and Borrower expressly agrees not to assert, by way of motion, as a defense or otherwise, that performance by Borrower, Parent or any other Loan Party inconsistent with the time requirements set forth in this Agreement or any other Loan Document constitutes effective performance hereunder or thereunder. All terms not defined herein or in the Note will have the meaning set forth in the applicable Code, except where the context otherwise requires. To the extent a term or provision of this Agreement conflicts with the Note and is not dealt with herein with more specificity, the Note will control with respect to the subject matter of such term or provision. Acceptance of or acquiescence in a course of performance rendered under this Agreement will not be relevant in determining the meaning of this Agreement even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection.
(f) Continuing Security Interest. This Agreement will create a continuing security interest in the Collateral and will (i) remain in full force and effect until the indefeasible payment in full of the Obligations, (ii) be binding upon Borrower and its successors and assigns and (iii) inure, together with the rights and remedies of Administrative Agent and each Lender hereunder, to the benefit of Administrative Agent, each Lender and its respective successors, transferees and assigns. Upon payment in full of the Obligations, this Agreement, all other Loan Documents, and the security interest and all other rights granted hereby or thereby shall automatically terminate and, if applicable, all rights to the Collateral shall revert to Borrower; provided that all terms intended to survive termination of this Agreement or any other Loan Document shall continue in full force and effect in accordance with their terms. Following Borrower’s full, final and indefeasible payment of all the Obligations in immediately available funds, Administrative Agent will deliver or cause to be delivered
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such termination statements, releases, documents and other agreements as Borrower or its counsel may reasonably determine are necessary or appropriate in connection with Administrative Agent’s release and termination of its Liens and security interests in the Collateral. The reasonable and documented costs, if any, incurred by Administrative Agent or any Lender in connection with the preparation and delivery of such documents and agreements shall be paid by Borrower upon Administrative Agent’s demand therefor.
(g) Reinstatement. To the extent permitted by law, this Agreement and the rights and powers granted to Administrative Agent and any Lender hereunder and under the Loan Documents will continue to be effective or be reinstated if at any time any amount received by Administrative Agent or any Lender in respect of the Obligations is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Borrower or upon the appointment of any receiver, intervenor, conservator, trustee or similar official for Borrower or any substantial part of its assets, or otherwise, all as though such payments had not been made.
(h) Survival of Provisions. All representations, warranties and covenants of Borrower contained herein will survive the execution and delivery of this Agreement and will terminate only upon the full and final payment and performance by Borrower of the Obligations secured hereby.
(i) Indemnification. Borrower agrees to indemnify and hold harmless Administrative Agent, each Lender and each of Administrative Agent’s and each Lender’s successors and assigns and each of its and their agents, officers, directors, members, managers, employees and all affiliates of each of the foregoing (each an “Indemnitee”) against, and hold each such Indemnitee harmless from and against any and all Claims (other than such as may result solely from the gross negligence or willful misconduct of such Indemnitee), by paying (on an after-tax basis) or otherwise discharging same, when and as such Claims shall become due. It is the express intention of Borrower that the indemnity provided for herein includes the agreement by Borrower to indemnify the Indemnitees from the consequences of such Indemnitees’ own simple negligence, whether that negligence is the sole or concurring cause of the Claims, and to further indemnify such Indemnitees with respect to Claims for which the Indemnitees are strictly liable. The term “Claims” shall mean all claims, allegations, harms, judgments, good faith settlements entered into, suits, actions, debts, obligations, damages (whether incidental, consequential or direct), demands (for compensation, indemnification, reimbursement or otherwise), losses, penalties, fines, liabilities (including strict liability), charges that any Indemnitee has incurred or for which it is responsible, in the nature of interest, Liens, and costs (including reasonable and documented attorneys’ fees and disbursements and any other documented legal or non-legal expenses of investigation or defense of any Claim, whether or not such Claim is ultimately defeated or incurred in enforcing the rights, remedies or indemnities provided for hereunder, or otherwise available at law or equity to Lender), of whatever kind or nature, contingent or otherwise, matured or unmatured, foreseeable or unforeseeable, by or against any person, related to or arising out of this Agreement, any other Loan Document, the Collateral or any Indemnitee’s interest in any of the foregoing. For avoidance of doubt, the indemnity is not limited to claims by third parties (other than ordinary and usual operating and overhead expenses). The provisions of this clause shall survive the expiration or termination of this Agreement and the other Loan Documents.
(j) Governing Law; Consent to Jurisdiction. This Agreement and the rights and obligations of Borrower, Administrative Agent and each Lender (collectively, the “Parties”) hereunder will in all respects be governed by, and construed in accordance with, the substantive laws of the State of New York (without regard to the conflict of laws principles of such state other than Section 5-1401 and Section 5-1402 of the New York General Obligations Law), including all matters of construction, validity and performance. The Parties agree that any action or proceeding arising under or related to this agreement may be commenced in any federal or state court sitting in the Eastern Federal District of Texas or the Southern Federal District of New York, and the Parties irrevocably submit to the jurisdiction of each such court and each of the Parties agrees not to assert, by way of motion, as a defense or otherwise, in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of such suit, action or proceeding is improper, or that this Agreement or the subject matter hereof or the transaction contemplated hereby may not be enforced in or by such court. The Parties agree that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Notwithstanding the foregoing, nothing in this Agreement or in any other Loan Document shall limit or restrict Administrative Agent’s right to commence any proceeding in the federal or state courts located in the state in which any Collateral is located to the extent Administrative Agent deems such proceeding necessary or advisable to exercise remedies available under any Loan Document or to commence legal proceedings or otherwise proceed against Borrower in any other jurisdiction.
(k) Waiver of Jury Trial. BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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(l) Delays; Partial Exercise of Remedies. No delay or omission of Administrative Agent or any Lender to exercise any right or remedy hereunder, whether before or after the happening of any Event of Default, will impair any such right or will operate as a waiver thereof or as a waiver of any such Event of Default. No single or partial exercise by Administrative Agent or any Lender of any right or remedy will preclude any other or further exercise thereof, or preclude any other right or remedy.
(m) Disclaimer. BORROWER ACKNOWLEDGES THAT IT HAS SELECTED THE COLLATERAL WITHOUT ANY ASSISTANCE FROM ADMINISTRATIVE AGENT, ANY LENDER, OR ADMINISTRATIVE AGENT’S OR ANY LENDER’S AGENTS OR EMPLOYEES. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER MAKES, HAS MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO ANY COLLATERAL OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE. ALL SUCH RISKS, AS BETWEEN LENDER AND BORROWER, ARE TO BE BORNE BY BORROWER. BORROWER FURTHER AGREES THAT NONE OF ADMINISTRATIVE AGENT, ANY LENDER NOR ANY REPRESENTATIVE THEREOF SHALL HAVE ANY LIABILITY TO BORROWER FOR ANY PENAL, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES SUCH AS LOST PROFIT OR REVENUE. ANY CLAIM RELATED TO THIS AGREEMENT WILL BE COVERED SOLELY BY COMMERCIAL LEGAL PRINCIPLES. NONE OF ADMINISTRATIVE AGENT, ANY LENDER, NOR ANY REPRESENTATIVE OR ASSIGN THEREOF SHALL HAVE ANY NEGLIGENCE OR OTHER TORT LIABILITY TO BORROWER OR ANY PERSON, ARISING FROM THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY USE OF ANY COLLATERAL
(n) Entire Agreement. Borrower, Administrative Agent and Lenders agree that this Agreement and the other Loan Documents are the complete and exclusive statement and agreement between the parties with respect to the subject matter hereof, superseding all proposals and prior agreements, oral or written, and all other communications between the parties with respect to the subject matter hereof. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
(o) Severability. If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Agreement. Unless otherwise required by Applicable Law, the illegality, invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement.
(p) Counterparts. This Agreement and each other Loan Document may be executed in any number of counterparts and by different parties in separate counterparts, each of which, when so executed, shall be deemed an original and all of which, taken together, shall constitute one integrated agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.
(q) Effectiveness. This Agreement shall only become effective upon execution by Administrative Agent, Initial Lender and Borrower in the appropriate spaces set forth below.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned Borrower has caused this Agreement to be duly executed and delivered by its proper and duly authorized officer as of the date first set forth above.
| PROJECT G BUYER, LLC, | ||
| as Borrower | ||
| By: | /s/ Stephan Tompsett | |
| Name: Stephan Tompsett | ||
| Title: Chief Financial Officer | ||
| ELDRIDGE ASSET FINANCE LLC, | ||
| as Administrative Agent | ||
| By: | /s/ Harrison P. Smith | |
| Name: Harrison P. Smith | ||
| Title: Senior Vice President | ||
| STONEBRIAR COMMERCIAL FINANCE LLC, | ||
| as Initial Lender | ||
| By: | /s/ Harrison P. Smith | |
| Name: Harrison P. Smith | ||
| Title: Senior Vice President | ||
| Loan & Security Agreement (Project G) | (Signature Page) |
Schedule A
Collateral
[INTENTIONALLY OMITTED]
| Loan & Security Agreement (Project G) | (Schedule B) |
Schedule B
Conditions Precedent
[INTENTIONALLY OMITTED]
| Loan & Security Agreement (Project G) | (Schedule B) |
Exhibit A
Form of Assignment & Assumption
[INTENTIONALLY OMITTED]