Attached files
| file | filename |
|---|---|
| EX-10.3 - FGI NOTE - CORE MOLDING TECHNOLOGIES INC | ex103.htm |
| EX-10.2 - SECURITY AGREEMENT - CORE MOLDING TECHNOLOGIES INC | ex102.htm |
| 8-K - 8-K DEBT AGREEMENT - CORE MOLDING TECHNOLOGIES INC | form8kdebtagreement.htm |
CREDIT AGREEMENT
by and among
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Agent,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Lead Arranger,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Book Runner,
THE LENDERS THAT ARE PARTIES HERETO
as the Lenders,
CORE MOLDING TECHNOLOGIES, INC.
as a Borrower
Dated as of October 27, 2020
EXHIBITS AND SCHEDULES
Exhibit A-1 Form of Assignment and Acceptance
Exhibit B-1 Form of Borrowing Base Certificate
Exhibit B-2 Form of Bank Product Provider Agreement
Exhibit C-1 Form of Compliance Certificate
Exhibit J-1 Form of Joinder
Exhibit L-1 Form of LIBOR Notice
Exhibit P-1 Form of Perfection Certificate
Schedule A-1 Agent's Account
Schedule A-2 Authorized Persons
Schedule B-1 BRP/Navistar Project Cap Ex
Schedule C-1 Commitments
Schedule D-1 Designated Account
Schedule E-2 Eligible Real Property Collateral
Schedule E-3 Eligible Mexican Account Debtors
Schedule P-1 Permitted Investments
Schedule P-2 Permitted Liens
Schedule R-1 Real Property Collateral
Schedule 3.1 Conditions Precedent
Schedule 3.6 Conditions Subsequent
Schedule 4.1(b) Capitalization of Borrowers
Schedule 4.1(c) Capitalization of Borrowers' Subsidiaries
Schedule 4.1(d) Subscriptions, Options, Warrants, Calls
Schedule 4.6(b) Litigation
Schedule 4.10 Employee Benefits
Schedule 4.11 Environmental Matters
Schedule 4.14 Permitted Indebtedness
Schedule 4.25 Location of Inventory and M&E
Schedule 5.1 Financial Statements, Reports, Certificates
Schedule 5.2 Collateral Reporting
Schedule 6.5 Nature of Business
CREDIT AGREEMENT
THIS CREDIT AGREEMENT
, is entered into as of October 27, 2020 by and
among the lenders identified on the signature pages hereof (each of such lenders, together with its
successors and permitted assigns, is referred to hereinafter as a "Lender", as that term is hereinafter
further defined),
WELLS FARGO BANK, NATIONAL ASSOCIATION
, a national banking
association, as administrative agent for each member of the Lender Group and the Bank Product
Providers (in such capacity, together with its successors and assigns in such capacity, "Agent"),
WELLS FARGO BANK, NATIONAL ASSOCIATION
, a national banking association, as lead
arranger (in such capacity, together with its successors and assigns in such capacity, the "Lead
Arranger"),
WELLS FARGO BANK, NATIONAL ASSOCIATION
, a national banking
association, as book runner (in such capacity, together with its successors and assigns in such
capacity, the "Book Runner"),
, a Delaware
corporation ("CMT"), and those additional Persons, if any, that are joined as a party hereto by
executing the form of Joinder attached hereto as Exhibit J-1 (each, a "Borrower" and individually
and collectively, jointly and severally, the "Borrowers").
The parties agree as follows:
1.
DEFINITIONS AND CONSTRUCTION.
1.1.
Definitions
. As used in this Agreement, the following terms shall have the
following definitions:
"Acceptable Appraisal" means, with respect to an appraisal of Inventory, M&E or
Real Property, the most recent appraisal of such property received by Agent (a) from an appraisal
company satisfactory to Agent, (b) the scope and methodology (including, to the extent relevant,
any sampling procedure employed by such appraisal company) of which are satisfactory to Agent,
and (c) the results of which are satisfactory to Agent, in each case, in Agent's Permitted Discretion.
"Account" means an account (as that term is defined in the Code or, to the extent
applicable, the PPSA).
"Account Debtor" means any Person who is obligated on an Account, chattel paper,
or a general intangible.
"Account Party" has the meaning specified therefor in Section 2.11(h) of this
Agreement.
"Accounting Changes " means changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants (or successor thereto
or any agency with similar functions).
"Acquired Indebtedness" means Indebtedness of a Person whose assets or Equity
Interests are acquired by a Loan Party or any of its Subsidiaries in a Permitted Acquisition;
provided, that such Indebtedness (a) is either purchase money Indebtedness or a Capital Lease with
respect to M&E or mortgage financing with respect to Real Property, (b) was in existence prior to
the date of such Permitted Acquisition, and (c) was not incurred in connection with, or in
contemplation of, such Permitted Acquisition.
"Acquisition" means (a) the purchase or other acquisition by a Person or its
Subsidiaries of all or substantially all of the assets of (or any division or business line of) any other
Person, or (b) the purchase or other acquisition (whether by means of a merger, consolidation, or
otherwise) by a Person or its Subsidiaries of all of the Equity Interests of any other Person.
"Additional Documents" has the meaning specified therefor in Section 5.12 of this
Agreement.
"Additional M/E Term Loan" has the meaning specified therefo r in Section 2.2(a)
of this Agreement.
"Additional M/E Term Loan Amount" means $9,000,000 less the then outstanding
principal balance of the Initial M/E Term Loan.
"Administrative Borrower" has the meaning specified therefor in Section 17.13 of
this Agreement.
"Administrative Questionnaire" has the meaning specified therefor in Section
13.1(a) of this Agreement.
"Affected Lender" has the meaning specified therefor in Section 2.13(b) of this
Agreement.
"Affiliate" means, as applied to any Person, any other Person who controls, is
controlled by, or is under common control with, such Person. For purposes of this definition,
"control" means the possession, directly or indirectly through one or more intermediaries, of the
power to direct the management and policies of a Person, whether through the ownership of Equity
Interests, by contract, or otherwise; provided, that for purposes of the definition of Eligible
Accounts and Section 6.10 of this Agreement: (a) if any Person owns directly or indirectly 10%
or more of the Equity Interests having ordinary voting power for the election of directors or other
members of the governing body of a Person or 10% or more of the partnership or other ownership
interests of a Person (other than as a limited partner of such Person), then both such Persons shall
be Affiliates of each other, (b) each director (or comparable manager) of a Person shall be deemed
to be an Affiliate of such Person, and (c) each partnership in which a Person is a general partner
shall be deemed an Affiliate of such Person.
"Agent" has the meaning specified therefor in the preamble to this Agreement.
"Agent-Related Persons" means Agent, together with its Affiliates, officers,
directors, employees, attorneys, and agents.
"Agent's Account" means the Deposit Account of Agent identified on Schedule A-
1 to this Agreement (or such other Deposit Account of Agent that has been designated as such, in
writing, by Agent to Borrowers and the Lenders).
"Agent's Liens" means the Liens granted by each Loan Party or its Subsidiaries to
Agent under the Loan Documents and securing the Obligations.
"Agreed Currency" means (a) Dollars and (b) Canadian Dollars.
"Agreement" means this Credit Agreement, as amended, restated, amended and
restated, supplemented or otherwise modified from time to time.
"Anti-Corruption Laws" means the FCPA, the U.K. Bribery Act of 2010, as
amended, and all other applicable laws and regulations or ordinances concerning or relating to
bribery or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or
Affiliates is located or is doing business.
"Anti-Money Laundering Laws" means the applicable laws or regulations in any
jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing
business that relates to money laundering, any predicate crime to money laundering, or any
financial record keeping and reporting requirements related thereto and includes Canadian Anti-
Money Laundering & Anti-Terrorism Legislation.
"Applicable Margin" means, as of any date of determination and with respect to
Base Rate Loans or LIBOR Rate Loans, as applicable, the applicable margin set forth in the
following table that corresponds to the Average Excess Availability of Borrowers for the most
recently completed quarter; provided, that for the period from the Closing Date through and
including March 31, 2021, the Applicable Margin shall be set at the margin in the row styled
"Level III"; provided further, that any time an Event of Default has occurred and is continuing, the
Applicable Margin shall be set at the margin in the row styled "Level III":
Level
Average Excess
Availability
Applicable
Margin for Base
Rate Loans
which are
Revolving Loans
(the "Revolving
Loan Base Rate
Margin")
Applicable
Margin for
LIBOR Rate
Loans which are
Revolving Loans
(the "Revolving
Loan LIBOR
Rate Margin")
Applicable
Margin for Base
Rate Loans
which are Term
Loans (the
"Term Loan
Base Rate
Margin")
Applicable
Margin for
LIBOR Rate
Loans which are
Term Loans (the
"Term Loan
LIBOR Rate
Margin")
I
> 66 2/3% of the
Maximum
Revolver Amount
1.00 percentage
points
2.00 percentage
points
2.00 percentage
points
3.00 percentage
points
II
< 66 2/3% of the
Maximum
Revolver Amount
and > 33 1/3% of
the Maximum
Revolver Amount
1.25 percentage
points
2.25 percentage
points
2.00 percentage
points
3.00 percentage
points
III
< 33 1/3% of the
Maximum
Revolver Amount
1.50 percentage
points
2.50 percentage
points
2.00 percentage
points
3.00 percentage
points
The Applicable Margin shall be re-determined as of the first day of each quarter.
"Application Event" means the occurrence of (a) a failure by Borrowers to repay
all of the Obligations in full on the Maturity Date, or (b) an Event of Default and the election by
Agent or the Required Lenders to require that payments and proceeds of Collateral be applied
pursuant to Section 2.4(b)(iii) of this Agreement.
"Assignee" has the meaning specified therefor in Section 13.1(a) of this Agreement.
"Assignment and Acceptance" means an Assignment and Acceptance Agreement
substantially in the form of Exhibit A-1 to this Agreement.
"Authorized Person" means any one of the individuals identified as an officer of a
Borrower on Schedule A-2 to this Agreement, or any other individual identified by Administrative
Borrower as an authorized person and authenticated through Agent's electronic platform or portal
in accordance with its procedures for such authentication.
"Availability" means, as of any date of determination, the amount that Borrowers
are entitled to borrow as Revolving Loans under Section 2.1 of this Agreement (after giving effect
to the then outstanding Revolver Usage).
"Available Increase Amount" means, as of any date of determination, an amount
equal to the result of (a) $10,000,000,
minus
Revolver Commitments previously made pursuant to Section 2.14 of this Agreement.
"Average Excess Availability" means, with respect to any period, the sum of the
aggregate amount of Availability for each day in such period (as calculated by Agent as of the end
of each respective day)
divided by
"Average Revolver Usage" means, with respect to any period, the sum of the
aggregate amount of Revolver Usage for each day in such period (calculated as of the end of each
respective day)
divided by
"Bail-In Action" means the exercise of any Write-Down and Conversion Powers
by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial
Institution.
"Bail-In Legislation" means, with respect to any EEA Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council
of the European Union, the implementing law for such EEA Member Country from time to time
which is described in the EU Bail-In Legislation Schedule.
"Bank Product" means any one or more of the following financial products or
accommodations extended to any Loan Party or any of its Subsidiaries by a Bank Product Provider:
(a) credit cards (including commercial cards (including so-called "purchase cards", "procurement
cards" or "p-cards")), (b) payment card processing services, (c) debit cards, (d) stored value cards,
(e) Cash Management Services, or (f) transactions under Hedge Agreements.
"Bank Product Agreements" means those agreements entered into from time to time
by any Loan Party or any of its Subsidiaries with a Bank Product Provider in connection with the
obtaining of any of the Bank Products.
"Bank Product Collateralization" means providing cash collateral (pursuant to
documentation reasonably satisfactory to Agent) to be held by Agent for the benefit of the Bank
Product Providers (other than the Hedge Providers) in an amount determined by Agent as sufficient
to satisfy the reasonably estimated credit exposure, operational risk or processing risk with respect
to the then existing Bank Product Obligations (other than Hedge Obligations).
"Bank Product Obligations" means (a) all obligations, liabilities, reimbursement
obligations, fees, or expenses owing by each Loan Party and its Subsidiaries to any Bank Product
Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for
the payment of money, whether direct or indirect, absolute or contingent, due or to become due,
now existing or hereafter arising, (b) all Hedge Obligations, and (c) all amounts that Agent or any
Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender
purchasing participations from, or executing guarantees or indemnities or reimbursement
obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank
Product Provider to a Loan Party or its Subsidiaries.
"Bank Product Provider" means any Lender or any of its Affiliates, including each
of the foregoing in its capacity, if applicable, as a Hedge Provider; provided, that no such Person
(other than Wells Fargo or its Affiliates) shall constitute a Bank Product Provider with respect to
a Bank Product unless and until Agent receives a Bank Product Provider Agreement from such
Person (a) on or prior to the Closing Date (or such later date as Agent shall agree to in writing in
its sole discretion) with respect to Bank Products provided on or prior to the Closing Date, or (b) on
or prior to the date that is 10 days after the provision of such Bank Product to a Loan Party or its
Subsidiaries (or such later date as Agent shall agree to in writing in its sole discretion) with respect
to Bank Products provided after the Closing Date; provided further, that if, at any time, a Lender
ceases to be a Lender under this Agreement (prior to the payment in full of the Obligations), then,
from and after the date on which it so ceases to be a Lender hereunder, neither it nor any of its
Affiliates shall constitute Bank Product Providers and the obligations with respect to Bank
Products provided by such former Lender or any of its Affiliates shall no longer constitute Bank
Product Obligations.
"Bank Product Provider Agreement" means an agreement in substantially the form
attached hereto as Exhibit B-2 to this Agreement, in form and substance satisfactory to Agent, duly
executed by the applicable Bank Product Provider, the applicable Loan Parties, and Agent.
"Bank Product Reserves" means, as of any date of determination, those reserves
that Agent deems necessary or appropriate, subject to Section 2.1(c), to establish (based upon the
Bank Product Providers' reasonable determination of the liabilities and obligations of each Loan
Party and its Subsidiaries in respect of Bank Product Obligations) in respect of Bank Products then
provided or outstanding.
"Bankruptcy Code" means title 11 of the United States Code, as in effect from time
to time.
"Base Rate " means the greatest of (a) 1.00 percent
per annum
, (b) the Federal
Funds Rate
plus
Period of one month and shall be determined on a daily basis),
plus
(d) the rate of interest announced, from time to time, within Wells Fargo at its principal office in
San Francisco as its "prime rate", with the understanding that the "prime rate" is one of Wells
Fargo's base rates (not necessarily the lowest of such rates) and serves as the basis upon which
effective rates of interest are calculated for those loans making reference thereto and is evidenced
by the recording thereof after its announcement in such internal publications as Wells Fargo may
designate (and, if any such announced rate is below zero, then the rate determined pursuant to this
clause (d) shall be deemed to be zero).
"Base Rate Loan" means each portion of the Revolving Loans or the Term Loan
that bears interest at a rate determined by reference to the Base Rate.
"Base Rate Margin" means the Revolving Loan Base Rate Margin or the Term Loan
Base Rate Margin, as applicable.
"Benchmark Replacement " means the sum of: (a) the alternate benchmark rate
(which may include Term SOFR) that has been selected by Agent and Administrative Borrower
giving due consideration to (i) any selection or recommendation of a replacement rate or the
mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving
or then-prevailing market convention for determining a rate of interest as a replacement to the
LIBOR Rate for United States dollar-denominated syndicated credit facilities and (b) the
Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so
determined would be less than zero, the Benchmark Replacement shall be deemed to be zero for
the purposes of this Agreement.
"Benchmark Replacement Adjustment" means, with respect to any replacement of
the LIBOR Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period,
the spread adjustment, or method for calculating or determining such spread adjustment, (which
may be a positive or negative value or zero) that has been selected by Agent and Administrative
Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment,
or method for calculating or determining such spread adjustment, for the replacement of the
LIBOR Rate with the applicable Unadjusted Benchmark Replacement by the Relevant
Governmental Body or (ii) any evolving or then-prevailing market convention for determining a
spread adjustment, or method for calculating or determining such spread adjustment, for the
replacement of the LIBOR Rate with the applicable Unadjusted Benchmark Replacement for
United States dollar-denominated syndicated credit facilities at such time.
"Benchmark Replacement Conforming Changes" means, with respect to any
Benchmark Replacement, any technical, administrative or operational changes (including changes
to the definition of "Base Rate", the definition of "Interest Period", timing and frequency of
determining rates and making payments of interest and other administrative matters) that Agent
decides may be appropriate to reflect the adoption and implementation of such Benchmark
Replacement and to permit the administration thereof by Agent in a manner substantially
consistent with market practice (or, if Agent decides that adoption of any portion of such market
practice is not administratively feasible or if Agent determines that no market practice for the
administration of the Benchmark Replacement exists, in such other manner of administration as
Agent decides is reasonably necessary in connection with the administration of this Agreement).
"Benchmark Replacement Date" means the earlier to occur of the following events
with respect to the LIBOR Rate:
(a)
in the case of clause (a) or (b) of the definition of "Benchmark Transition
Event," the later of (i) the date of the public statement or publication of information referenced
therein and (ii) the date on which the administrator of the LIBOR Rate permanently or indefinitely
ceases to provide the LIBOR Rate; or
(b)
in the case of clause (c) of the definition of "Benchmark Transition Event,"
the date of the public statement or publication of information referenced therein.
"Benchmark Transition Event" means the occurrence of one or more of the
following events with respect to the LIBOR Rate:
(a)
a public statement or publication of information by or on behalf of the
administrator of the LIBOR Rate announcing that such administrator has ceased or will cease to
provide the LIBOR Rate, permanently or indefinitely, provided that, at the time of such statement
or publication, there is no successor administrator that will continue to provide the LIBOR Rate;
(b)
a public statement or publication of information by the regulatory
supervisor for the administrator of the LIBOR Rate, the Federal Reserve System of the United
States (or any successor), an insolvency official with jurisdiction over the administrator for the
LIBOR Rate, a resolution authority with jurisdiction over the administrator for the LIBOR Rate or
a court or an entity with similar insolvency or resolution authority over the administrator for the
LIBOR Rate, which states that the administrator of the LIBOR Rate has ceased or will cease to
provide the LIBOR Rate permanently or indefinitely, provided that, at the time of such statement
or publication, there is no successor administrator that will continue to provide the LIBOR Rate;
or
(c)
a public statement or publication of information by the regulatory
supervisor for the administrator of the LIBOR Rate announcing that the LIBOR Rate is no longer
representative.
"Benchmark Transition Start Date" means (a) in the case of a Benchmark
Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such
Benchmark Transition Event is a public statement or publication of information of a prospective
event, the 90th day prior to the expected date of such event as of such public statement or
publication of information (or if the expected date of such prospective event is fewer than 90 days
after such statement or publication, the date of such statement or publication) and (b) in the case
of an Early Opt-in Election, the date specified by Agent or the Required Lenders, as applicable,
by notice to Administrative Borrower, Agent (in the case of such notice by the Required Lenders)
and the Lenders.
"Benchmark Unavailability Period" means, if a Benchmark Transition Event and
its related Benchmark Replacement Date have occurred with respect to the LIBOR Rate and solely
to the extent that the LIBOR Rate has not been replaced with a Benchmark Replacement, the period
(x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no
Benchmark Replacement has replaced the LIBOR Rate for all purposes hereunder in accordance
with Section 2.12(d)(iii) and (y) ending at the time that a Benchmark Replacement has replaced
the LIBOR Rate for all purposes hereunder pursuant to Section 2.12(d)(iii).
"Beneficial Ownership Certification" means a certification regarding beneficial
ownership as required by the Beneficial Ownership Regulations.
"Beneficial Ownership Regulation" means 31 C.F.R. § 1010.230.
"Benefit Plan" means a "defined benefit plan" (as defined in Section 3(35) of
ERISA) that is subject to Title IV of ERISA, for which any Loan Party or any of its Subsidiaries
or ERISA Affiliates has been an "employer" (as defined in Section 3(5) of ERISA) within the past
six years.
"BHC Act Affiliate" of a Person means an "affiliate" (as such term is defined under,
and interpreted in accordance with, 12 U.S.C. 1841(k)) of such Person.
"Board of Directors" means, as to any Person, the board of directors (or comparable
managers) of such Person, or any committee thereof duly authorized to act on behalf of the board
of directors (or comparable managers).
"Board of Governors" means the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"Book Runner" has the meaning set forth in the preamble to this Agreement.
"Borrower" and "Borrowers" have the respective meanings specified therefor in the
preamble to this Agreement.
"Borrower Materials" has the meaning specified therefor in Section 17.9(c) of this
Agreement.
"Borrowing" means a borrowing consisting of Revolving Loans made on the same
day by the Lenders (or Agent on behalf thereof), or by Swing Lender in the case of a Swing Loan,
or by Agent in the case of an Extraordinary Advance.
"Borrowing Base" means, as of any date of determination, the result of:
(a)
90% of the amount of Eligible Investment Grade Accounts,
less
if any, of the Dilution Reserve (Investment Grade),
plus
(b)
85% of the amount of Eligible Non-Investment Grade Accounts,
less
amount, if any, of the Dilution Reserve (Non-Investment Grade),
plus
(c)
the lesser of (x) $1,500,000 and (y) 85% of the amount of Eligible Tooling
Accounts,
less
plus
(d)
the lesser of (x) Mexican A/R Cap and (y) 85% of the amount of Eligible
Mexican Accounts,
less
plus
(e)
the lesser of (A) the product of 70% multiplied by the value (calculated at
the lower of cost or market on a basis consistent with Loan Parties' historical accounting practices)
of Eligible Finished Goods Inventory at such time, and (B) the product of 85% multiplied by the
Net Recovery Percentage identified in the most recent Acceptable Appraisal of Inventory,
multiplied by the value (calculated at the lower of cost or market on a basis consistent with Loan
Parties' historical accounting practices) of Eligible Finished Goods Inventory (such determination
may be made as to different categories of Eligible Finished Goods Inventory based upon the Net
Recovery Percentage applicable to such categories) at such time,
plus
(f)
the lesser of (A) the product of 70% multiplied by the value (calculated at
the lower of cost or market on a basis consistent with Loan Parties' historical accounting practices)
of Eligible Raw Materials Inventory at such time, and (B) the product of 85% multiplied by the
Net Recovery Percentage identified in the most recent Acceptable Appraisal of Inventory,
multiplied by the value (calculated at the lower of cost or market on a basis consistent with Loan
Parties' historical accounting practices) of Eligible Raw Materials Inventory (such determination
may be made as to different categories of Eligible Raw Materials Inventory based upon the Net
Recovery Percentage applicable to such categories) at such time,
plus
(g)
the lesser of
(i) $350,000, and
(ii) the lesser of (A) the product of 70% multiplied by the value
(calculated at the lower of cost or market on a basis consistent with Loan Parties' historical
accounting practices) of Eligible Work -In-Process Inventory at such time, and (B) the product of
85% multiplied by the Net Recovery Percentage identified in the most recent Acceptable Appraisal
of Inventory, multiplied by the value (calculated at the lower of cost or market on a basis consistent
with Loan Parties' historical accounting practices) of Eligible Work -In-Process Inventory (such
determination may be made as to different categories of Eligible Work-In-Process Inventory based
upon the Net Recovery Percentage applicable to such categories) at such time,
minus
(h)
the aggregate amount of Reserves, if any, established by Agent from time
to time under Section 2.1(c) of this Agreement.
"Borrowing Base Certificate" means a certificate substantially in the form of
Exhibit B-1 to this Agreement, which such form of Borrowing Base Certificate may be amended,
restated, supplemented or otherwise modified from time to time (including without limitation
changes to the format thereof), as approved by Agent in Agent's sole discretion.
"Borrowing Base Company" means any US Loan Party and any Canadian Loan
Party.
"BRP/Navistar Project Cap Ex" means Capital Expenditures incurred by Loan
Parties and their Subsidiaries in connection with (i) the purchase and installation of a new
compression molding press, extruder, building expansion, silo and other supporting equipment in
the Matamoros, Mexico facility to support existing, and to provide excess capacity for future,
business from Bombadier Recreational Products Inc. (personal watercraft product) and (ii) the
purchase and installation of a press and building modifications and production equipment in the
Matamoros, Mexico facility for a new Medium Vocational “MV” Hood from Navistar, Inc., in
each case, as more particularly described on Schedule B-1 attached hereto.
"Business Day" means any day that is not a Saturday, Sunday, or other day on
which banks are authorized or required to close in the state of Illinois, except that, if a
determination of a Business Day shall relate to a LIBOR Rate Loan, the term "Business Day" also
shall exclude any day on which banks are closed for dealings in Dollar deposits in the London
interbank market.
"Canadian Anti-Money Laundering & Anti-Terrorism Legislation" means Part II.1
of the
Criminal Code
, R.S.C. 1985, c. C-46,
The Proceeds of Crime (Money Laundering) and
Terrorist Financing Act
, S.C. 2000, c. 17 and the
United Nations Act
, R.S.C. 1985, c.U-2 or any
similar Canadian legislation, together with all rules, regulations and interpretations thereunder or
related thereto including, without limitation, the Regulations Implementing the United Nations
Resolutions on the Suppression of Terrorism and the United Nations Al-Qaida and Taliban
Regulations promulgated under the
United Nations Act
.
"Canadian Defined Benefit Plan" means any Canadian Pension Plan which contains
a "defined benefit provision" as defined in subsection 147.1(1) of the
Income Tax Act
"Canadian Dollars" or "Cdn $" means the lawful currency of Canada, as in effect
from time to time.
"Canadian Guarantor" means each Subsidiary of Administrative Borrower
organized under the laws of Canada, or any province thereof, that is or becomes a guarantor of all
or any part of the Obligations.
"Canadian Guaranty" means a guaranty of the Obligations, in form and substance
reasonably satisfactory to Agent, executed and delivered by the Canadian Loan Parties to Agent
and includes the guaranty set forth in the Canadian Security Agreement.
"Canadian Loan Party" means any Canadian Guarantor.
"Canadian Multi-Employer Plan" means a "multi-employer pension plan", as such
term is defined under the Pension Benefits Act (Ontario) or “collectively bargained multi-
employer plan”, as such term is defined under the Pension Benefits Standards Act (British
Columbia), under which a Canadian Loan Party is required to contribute pursuant to a collective
bargaining agreement and under which (i) the sole obligation of the Canadian Loan Party is to
make the contributions specified in the applicable collective bargaining agreement, and (ii) the
Canadian Loan Party has no liability relating to any past or future withdrawals from the plan.
"Canadian Pension Plans" means each pension plan that is a "registered pension
plan" (as defined in the Income Tax Act (Canada)) or that is required to be registered under
Canadian federal or provincial law with respect to pension benefit standards and that is maintained
or contributed to, or to which there is or may be an obligation to contribute by a Loan Party or a
Subsidiary thereof, for its employees or former employees, but does not include the Canada
Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the
Province of Quebec, respectively.
"Canadian Priority Payables Reserves" means reserves (determined from time to
time by Agent in its Permitted Discretion) for: (a) the amount past due and owing by any Canadian
Loan Party, or the accrued amount for which such Canadian Loan Party has an obligation to remit,
to a Governmental Authority or other Person pursuant to any applicable law, rule or regulation, in
respect of (i) goods and services taxes, harmonized sales taxes, other sales taxes, employee income
taxes, municipal taxes and other taxes payable or to be remitted or withheld; (ii) workers'
compensation or employment insurance; (iii) federal Canada Pension Plan and other statutory
Pension Plan contributions; (iv) vacation or holiday pay; and (v) other like charges and demands,
in each case, to the extent that any Governmental Authority or other Person may claim a Lien,
trust, deemed trust or other claim ranking or capable of ranking in priority to or
pari
passu
one or more of the Liens granted in the Loan Documents; and (b) the aggregate amount of any
other liabilities of any Canadian Loan Party (i) in respect of which a Lien, trust or deemed trust
has been or may be imposed on any Collateral to provide for payment, or (ii) in respect of unpaid
or unremitted pension plan contributions, including normal cost contributions, special payments
and, without duplication, amounts representing any unfunded liability, solvency deficiency or
wind-up deficiency whether or not due with respect to a Canadian Pension Plan, or (iii) which are
secured by a Lien, charge, right or claim on any Collateral; in each case, pursuant to any applicable
law, rule or regulation and which such Lien, trust, deemed trust, pledge, charge, right or claim
ranks or in the Permitted Discretion of Agent, is capable of ranking in priority to or
pari
passu
with one or more of the Liens granted in the Loan Documents (such as certain claims by employees
for unpaid wages and other amounts payable under the Wage Earner Protection Program Act
(Canada)); in each case net of the aggregate amount of all restricted cash held or set aside by such
Canadian Loan Party for the payment of such obligations.
"Canadian Security Agreement" means a Canadian Guarantee and Security
Agreement dated as of even date with the Agreement, in form and substance reasonably
satisfactory to Agent, executed and delivered by each Canadian Loan Party and each other Loan
Party having Collateral located in Canada to Agent.
"Canadian Security Documents" means, collectively, the Canadian Security
Agreement, the Quebec Security Documents and any other Loan Document that grants or purports
to grant a Lien on any of the assets or interests, and the proceeds thereof, of any Canadian Loan
Party or any other Loan Party having Collateral located in Canada.
"Capital Expenditures" means, with respect to any Person for any period, the
amount of all expenditures by such Person and its Subsidiaries during such period that are capital
expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash
or financed, but excluding, without duplication (a) with respect to the purchase price of assets that
are purchased substantially contemporaneously with the trade-in of existing assets during such
period, the amount that the gross amount of such purchase price is reduced by the credit granted
by the seller of such assets for the assets being traded in at such time, (b) expenditures made during
such period to consummate one or more Permitted Acquisitions, (c) expenditures made during
such period in connection with the replacement, substitution, or restoration of assets or properties
pursuant to Section 2.4(e)(iv) of this Agreement, and (d) expenditures during such period that,
pursuant to a written agreement, are reimbursed by a third Person (excluding any Loan Party or
any of its Affiliates).
"Capitalized Lease Obligation" means that portion of the obligations under a
Capital Lease that is required to be capitalized in accordance with GAAP.
"Capital Lease" means a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP.
"Cash Equivalents" means (a) Domestic Cash Equivalents; and (b) Foreign Cash
Equivalents.
"Cash Management Services" means any cash management or related services
including treasury, depository, return items, overdraft, controlled disbursement, merchant store
value cards, e-payables services, electronic funds transfer, interstate depository network, automatic
clearing house transfer (including the Automated Clearing House processing of electronic funds
transfers through the direct Federal Reserve Fedline system) and other cash management
arrangements.
"CFC" means a controlled foreign corporation (as that term is defined in the IRC)
in which any Loan Party is a "United States shareholder" within the meaning of Section 951(b) of
the IRC.
"Change in Law" means the occurrence after the date of this Agreement of: (a) the
adoption or effectiveness of any law, rule, regulation, judicial ruling, judgment or treaty, (b) any
change in any law, rule, regulation, judicial ruling, judgment or treaty or in the administration,
interpretation, implementation or application by any Governmental Authority of any law, rule,
regulation, guideline or treaty, or (c) the making or issuance by any Governmental Authority of
any request, rule, guideline or directive, whether or not having the force of law; provided, that
notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder
or issued in connection therewith, and (ii) all requests, rules, guidelines or directives concerning
capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on
Banking Supervision (or any successor or similar authority) or the United States or foreign
regulatory authorities shall, in each case, be deemed to be a "Change in Law," regardless of the
date enacted, adopted or issued.
"Change of Control" means that:
(a)
any Person or two or more Persons acting in concert shall have acquired
beneficial ownership, directly or indirectly, of Equity Interests of Administrative Borrower (or
other securities convertible into such Equity Interests) representing 30% or more of the combined
voting power of all Equity Interests of Administrative Borrower entitled (without regard to the
occurrence of any contingency) to vote for the election of members of the Board of Directors of
Administrative Borrower,
(b)
any Person or two or more Persons acting in concert, shall have acquired by
contract or otherwise, or shall have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of Administrative Borrower or
control over the Equity Interests of such Person entitled to vote for members of the Board of
Directors of Administrative Borrower on a fully-diluted basis (and taking into account all such
Equity Interests that such Person or group has the right to acquire pursuant to any option right)
representing 30% or more of the combined voting power of such Equity Interests,
(c)
during any period of 24 consecutive months commencing on or after the
Closing Date, the occurrence of a change in the composition of the Board of Directors of
Administrative Borrower such that a majority of the members of such Board of Directors are not
Continuing Directors, or
(d)
Borrowers fail to own and control, directly or indirectly, 100% of the Equity
Interests of each other Loan Party.
"Citi Purchase Documents" means the Citi Supplier Agreement, together with all
related agreements, instruments and documents.
"Citi Supplier Agreement" means a supplier agreement executed by Horizon
Plastics International Inc. and Citibank, N.A. dated as of December 21, 2015.
"Closing Date" means the date of the making of the Initial M/E Term Loan and the
R/E Term Loan (or other extension of credit) under this Agreement.
"Code" means the Illinois Uniform Commercial Code, as in effect from time to
time.
"Collateral" means all assets and interests in assets and proceeds thereof now
owned or hereafter acquired by any Loan Party or its Subsidiaries in or upon which a Lien is
granted by such Person in favor of Agent or the Lenders under any of the Loan Documents.
"Collateral Access Agreement" means a landlord waiver, bailee letter, or
acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other Person
in possession of, having a Lien upon, or having rights or interests in any Loan Party's or its
Subsidiaries' books and records, Equipment, or Inventory, in each case, in form and substance
reasonably satisfactory to Agent.
"Collections" means, all cash, checks, notes, instruments, and other items of
payment (including insurance proceeds, cash proceeds of asset sales, rental proceeds and tax
refunds).
"Commitment" means, with respect to each Lender, its Revolver Commitment, its
M/E Term Loan Commitment or its R/E Term Loan Commitment, as the context requires, and,
with respect to all Lenders, their Revolver Commitments, their M/E Term Loan Commitments or
their R/E Term Loan Commitments, as the context requires, in each case as such Dollar amounts
are set forth beside such Lender's name under the applicable heading on Schedule C-1 to this
Agreement or in the Assignment and Acceptance pursuant to which such Lender became a Lender
under this Agreement, as such amounts may be reduced or increased from time to time pursuant
to assignments made in accordance with the provisions of Section 13.1 of this Agreement.
"Commodity Exchange Act" means the Commodity Exchange Act (7 U.S.C. § 1 et
seq.), as amended from time to time, and any successor statute.
"Compliance Certificate" means a certificate substantially in the form of Exhibit C-
1 to this Agreement delivered by the chief financial officer or treasurer of Administrative Borrower
to Agent.
"Confidential Information" has the meaning specified therefor in Section 17.9(a) of
this Agreement.
"Continuing Director" means (a) any member of the Board of Directors who was a
director (or comparable manager) of Administrative Borrower on the Closing Date, and (b) any
individual who becomes a member of the Board of Directors after the Closing Date if such
individual was approved, appointed or nominated for election to the Board of Directors by a
majority of the Continuing Directors.
"Control Agreement" means a control agreement, in form and substance reasonably
satisfactory to Agent, executed and delivered by a Loan Party or one of its Subsidiaries, Agent,
and the applicable securities intermediary (with respect to a Securities Account) or bank (with
respect to a Deposit Account).
"Copyright Security Agreement" has the meaning specified therefor in the
Guaranty and Security Agreement.
"Core Composites" means Core Composites Corporation, a Delaware corporation
and wholly-owned Subsidiary of Borrower.
"Covered Entity" means any of the following:
(a)
a "covered entity" as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 252.82(b);
(b)
a "covered bank" as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 47.3(b); or
(c)
a "covered FSI" as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 382.2(b).
"Covered Party" has the meaning specified therefor in Section 17.15 of this
Agreement.
"Default" means an event, condition, or default that, with the giving of notice, the
passage of time, or both, would be an Event of Default.
"Defaulting Lender" means any Lender that (a) has failed to (i) fund all or any
portion of its Loans within two Business Days of the date such Loans were required to be funded
hereunder unless such Lender notifies Agent and Administrative Borrower in writing that such
failure is the result of such Lender's determination that one or more conditions precedent to funding
(each of which conditions precedent, together with any applicable Default or Event of Default,
shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Agent, Issuing
Bank, or any other Lender any other amount required to be paid by it hereunder (including in
respect of its participation in Letters of Credit) within two Business Days of the date when due,
(b) has notified any Borrower, Agent or Issuing Bank in writing that it does not intend to comply
with its funding obligations hereunder, or has made a public statement to that effect (unless such
writing or public statement relates to such Lender's obligation to fund a Loan hereunder and states
that such position is based on such Lender's determination that a condition precedent to funding
(which condition precedent, together with any applicable Default or Event of Default, shall be
specifically identified in such writing or public statement) cannot be satisfied), (c) has failed,
within three Business Days after written request by Agent or Administrative Borrower, to confirm
in writing to Agent and Administrative Borrower that it will comply with its prospective funding
obligations hereunder (provided, that such Lender shall cease to be a Defaulting Lender pursuant
to this clause (c) upon receipt of such written confirmation by Agent and Administrative
Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject
of any Insolvency Proceeding, (ii) had appointed for it a receiver, custodian, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any
other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of
a Bail-in Action; provided, that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or indirect parent
company thereof by a Governmental Authority so long as such ownership interest does not result
in or provide such Lender with immunity from the jurisdiction of courts within the United States
or from the enforcement of judgments or writs of attachment on its assets or permit such Lender
(or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or
agreements made with such Lender. Any determination by Agent that a Lender is a Defaulting
Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding
absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery
of written notice of such determination to Administrative Borrower, Issuing Bank, and each
Lender.
"Defaulting Lender Rate" means (a) for the first three days from and after the date
the relevant payment is due, the Base Rate, and (b) thereafter, the interest rate then applicable to
Revolving Loans that are Base Rate Loans (inclusive of the Base Rate Margin applicable thereto).
"Default Right" has the meaning assigned to that term in, and shall be interpreted
in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
"Deposit Account" means any deposit account (as that term is defined in the Code).
"Designated Account" means the Deposit Account of Administrative Borrower
identified on Schedule D-1 to this Agreement (or such other Deposit Account of Administrative
Borrower located at Designated Account Bank that has been designated as such, in writing, by
Borrowers to Agent).
"Designated Account Bank" has the meaning specified therefor in Schedule D-1 to
this Agreement (or such other bank that is located within the United States that has been designated
as such, in writing, by Borrowers to Agent).
"Dilution" means, as of any date of determination, a percentage, based upon the
experience of the immediately prior 12 months, that is the result of dividing the Dollar amount of
(a) bad debt write-downs, discounts, advertising allowances, credits, or other dilutive items with
respect to Borrowers' Accounts during such period, by (b) Borrowers' billings with respect to
Accounts during such period.
"Dilution Reserve (Investment Grade)" means, as of any date of determination, an
amount sufficient to reduce the advance rate against Eligible Accounts by the extent to which
Dilution is in excess of 2.5%.
"Dilution Reserve (Non-Investment Grade)" means, as of any date of
determination, an amount sufficient to reduce the advance rate against Eligible Accounts by the
extent to which Dilution is in excess of 5%.
"Disqualified Equity Interests" means any Equity Interests that, by their terms (or
by the terms of any security or other Equity Interests into which they are convertible or for which
they are exchangeable), or upon the happening of any event or condition (a) matures or are
mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking
fund obligation or otherwise (except as a result of a change of control or asset sale so long as any
rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be
subject to the prior repayment in full of the Loans and all other Obligations that are accrued and
payable and the termination of the Commitments), (b) are redeemable at the option of the holder
thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provide for the
scheduled payments of dividends in cash, or (d) are or become convertible into or exchangeable
for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests,
in each case, prior to the date that is 180 days after the Maturity Date.
"Dollar Equivalent" means, at any time, with respect to any amount denominated
in Canadian Dollars, the equivalent amount thereof in US Dollars as determined by Agent, at such
time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or
such other date determined by Agent) for the purchase of US Dollars with Canadian Dollars.
"Dollars" or "$" or "US Dollars" means United States dollars.
"Domestic Cash Equivalents" means (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States or issued by any agency thereof and backed by
the full faith and credit of the United States, in each case maturing within one year from the date
of acquisition thereof, (b) marketable direct obligations issued or fully guaranteed by any state of
the United States or any political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time of acquisition, having
one of the two highest ratings obtainable from either Standard & Poor's Rating Group ("S&P") or
Moody's Investors Service, Inc. ("Moody's"), (c) commercial paper maturing no more than 270
days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-
1 from S&P or at least P-1 from Moody's, (d) certificates of deposit, time deposits, overnight bank
deposits or bankers' acceptances maturing within one year from the date of acquisition thereof
issued by any bank organized under the laws of the United States or any state thereof or the District
of Columbia or any United States branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $1,000,000,000, (e) Deposit Accounts maintained
with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank
organized under the laws of the United States or any state thereof so long as the full amount
maintained with any such other bank is insured by the Federal Deposit Insurance Corporation, (f)
repurchase obligations of any commercial bank satisfying the requirements of clause (d) of this
definition or recognized securities dealer having combined capital and surplus of not less than
$1,000,000,000, having a term of not more than seven days, with respect to securities satisfying
the criteria in clauses (a) or (d) above, (g) debt securities with maturities of six months or less from
the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying
the criteria described in clause (d) above, and (h) Investments in money market funds substantially
all of whose assets are invested in the types of assets described in clauses (a) through (g) above.
"Domestic Subsidiary" means any Subsidiary of any Loan Party that is not a
Foreign Subsidiary.
"Drawing Document" means any Letter of Credit or other document presented for
purposes of drawing under any Letter of Credit, including by electronic transmission such as
SWIFT, electronic mail, facsimile or computer generated communication.
"Early Opt-in Election" means the occurrence of:
(a)
(i) a determination by Agent or (ii) a notification by the Required Lenders
to Agent (with a copy to Administrative Borrower) that the Required Lenders have determined
that United States dollar-denominated syndicated credit facilities being executed at such time, or
that include language similar to that contained in Section 2.12(d)(iii) are being executed or
amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the
LIBOR Rate, and
(b)
(i) the election by Agent or (ii) the election by the Required Lenders to
declare that an Early Opt-in Election has occurred and the provision, as applicable, by Agent of
written notice of such election to Administrative Borrower and the Lenders or by the Required
Lenders of written notice of such election to Agent.
"EBITDA" means, with respect to any fiscal period and with respect to Borrowers
determined, in each case, on a consolidated basis in accordance with GAAP:
(a)
the consolidated net income (or loss) for such period,
minus
(b)
without duplication, the sum of the following amounts for such period to
the extent included in determining consolidated net income (or loss) for such period:
(i) unusual or non-recurring gains,
(ii) non-cash gains in respect of post-retirement benefits consisting of
health insurance and life insurance, and
(iii) interest income,
plus
(c)
without duplication, the sum of the following amounts for such period to
the extent deducted in determining consolidated net income (or loss) for such period:
(i) non-cash unusual and non-recurring losses,
(ii) Interest Expense,
(iii) income taxes,
(iv) depreciation and amortization,
(v) costs, fees, charges or expenses incurred in connection with the
closing of this Agreement prior to, on or within 120 days of the Closing Date in an aggregate
amount not to exceed $500,000,
(vi) transaction fees and expenses in connection with any amendments
to or waivers in connection with the Loan Documents in an aggregate amount not to exceed
$250,000;
that such amounts added back pursuant to this clause (vi) in any period shall,
when aggregated with the amount of any addbacks pursuant to clauses (vii) and (viii), not exceed
an aggregate amount equal to 10% of EBITDA for the such twelve month period, calculated before
giving effect thereto,
(vii) transaction fees and expenses in connection with Permitted
Acquisitions, whether or not consummated in an aggregate amount not to exceed $750,000;
provided,
that such amounts added back pursuant to this clause (vii) in any period shall, when
aggregated with the amount of any addbacks pursuant to clauses (vi) and (viii), not exceed an
aggregate amount equal to 10% of EBITDA for the such twelve month period, calculated before
giving effect thereto,
(viii) fees, costs and expenses in respect of start up or shut down of
facilities (including, without limitation, relocation, severance, hiring and transition costs) in an
aggregate amount not to exceed $1,000,000;
that such amounts added back pursuant to
this clause (viii) in any period shall, when aggregated with the amount of any addbacks pursuant
to clauses (vi) and (vii), not exceed an aggregate amount equal to 10% of EBITDA for the such
twelve month period, calculated before giving effect thereto,
(ix) non-cash costs and expenses in respect of post-retirement benefits
consisting of health insurance and life insurance and
(x) costs, fees, charges and expenses incurred in connection with
Existing Credit Facility in an aggregate amount not to exceed $2,500,000.
"EEA Financial Institution" means (a) any credit institution or investment firm
established in any EEA Member Country which is subject to the supervision of an EEA Resolution
Authority, (b) any entity established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition, or (c) any financial institution established in an EEA
Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this
definition and is subject to consolidated supervision with its parent.
"EEA Member Country" means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.
"EEA Resolution Authority" means any public administrative authority or any
person entrusted with public administrative authority of any EEA Member Country (including any
delegee) having responsibility for the resolution of any EEA Financial Institution.
"Eligible Accounts" means those Accounts created by a Borrowing Base Company
in the ordinary course of its business, that arise out of such Borrowing Base Company's sale of
goods or rendition of services, that comply with each of the representations and warranties
respecting Eligible Accounts made in the Loan Documents, and that are not excluded as ineligible
by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may
be revised from time to time by Agent in Agent's Permitted Discretion to address the results of any
information with respect to the Borrower Base Companies' business or assets of which Agent
becomes aware after the Closing Date, including any field examination performed by (or on behalf
of) Agent from time to time after the Closing Date. In determining the amount to be included,
Eligible Accounts shall be calculated net of customer deposits, unapplied cash, taxes, finance
charges, service charges, discounts, credits, allowances, and rebates. Eligible Accounts shall not
include the following:
(a)
Accounts that the Account Debtor has failed to pay within 90 days of
original invoice date (or 120 days of original invoice date in the case of Main Access LLC,
including its Sunwalk division) or 60 days of due date (or 30 days of due date in the case of Main
Access LLC, including its Sunwalk division),
(b)
Accounts owed by an Account Debtor (or its Affiliates) where 50% or more
of all Accounts owed by that Account Debtor (or its Affiliates) are deemed ineligible under clause
(a) above,
(c)
Accounts with selling terms of more than 60 days (or 90 days in the case of
Main Access LLC, including its Sunwalk division),
(d)
Accounts with respect to which the Account Debtor is an Affiliate of any
Borrowing Base Company or an employee or agent of any Borrowing Base Company or any
Affiliate of any Borrowing Base Company,
(e)
Accounts (i) arising in a transaction wherein goods are placed on
consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill
and hold (other than Accounts owed by Deckorators, Inc. (f/k/a Universal Consumer Products,
Inc.), a Michigan corporation, to the extent Agent has received an agreement, in form and
substance acceptable to Agent,
confirming the unconditional obligation of the Account Debtor to
take the Goods related thereto and pay such Accounts (Agent hereby acknowledges that the
contract with D
eckorators, Inc. (f/k/a Universal Consumer Products, Inc.), a Michigan corporation,
dated January 1, 2019, as in effect on the date hereof, shall be deemed to satisfy the foregoing
condition), or any other terms by reason of which the payment by the Account Debtor may be
conditional, or (ii) with respect to which the payment terms are "C.O.D.", cash on delivery or other
similar terms,
(f)
Accounts that are not payable in US Dollars or Canadian Dollars,
(g)
Accounts with respect to which the Account Debtor either (i) does not
maintain its chief executive office in the United States or Canada, or (ii) is not organized under the
laws of the United States or Canada or any state or province thereof, or (iii) is the government of
any foreign country or sovereign state, or of any state, province, municipality, or other political
subdivision thereof, or of any department, agency, public corporation, or other instrumentality
thereof, unless (A) the Account is supported by an irrevocable letter of credit reasonably
satisfactory to Agent (as to form, substance, and issuer or domestic confirming bank) that has been
delivered to Agent and, if requested by Agent, is directly drawable by Agent, or (B) the Account
is covered by credit insurance in form, substance, and amount, and by an insurer, reasonably
satisfactory to Agent,
(h)
Accounts with respect to which the Account Debtor is (i) (A) the United
States or any department, agency, or instrumentality of the United States (exclusive, however, of
Accounts with respect to which Borrower Base Companies have complied, to the reasonable
satisfaction of Agent, with the Assignment of Claims Act, 31 USC §3727), or (B) any state of the
United States, or (ii) (A) the Government of Canada or any department, agency or instrument
thereof (exclusive, however, of Accounts with respect to which Borrowing Base Companies have
complied, to the reasonable satisfaction of Agent, with the Financial Administration Act
(Canada)), or (B) any province of Canada, or (iii) in the case of any Borrower, any other
Governmental Authority,
(i)
Accounts with respect to which the Account Debtor is a creditor of a
Borrowing Base Company, has or has asserted a right of recoupment or setoff, or has disputed its
obligation to pay all or any portion of the Account, to the extent of such claim, right of recoupment
or setoff, or dispute,
(j)
Accounts with respect to an Account Debtor whose Eligible Accounts
owing to Borrower Base Companies exceed 15% (such percentage, as applied to a particular
Account Debtor, being subject to reduction by Agent in its Permitted Discretion if the
creditworthiness of such Account Debtor deteriorates) of all Eligible Accounts, to the extent of the
obligations owing by such Account Debtor in excess of such percentage (other than (i) with respect
to UFP Industries, Inc. (f/k/a Universal Forest Product, Inc.) and Navistar, Inc., in which case the
total obligations of such Account Debtor shall not exceed 30% of all Eligible Accounts, such
percentage being subject to reduction by Agent in its Permitted Discretion if the creditworthiness
of such Account Debtor deteriorates and (ii) with respect to Bombadier Recreational Products Inc.
in which case the total obligations of such Account Debtor shall not exceed 20% of all Eligible
Accounts, such percentage being subject to reduction by Agent in its Permitted Discretion if the
creditworthiness of such Account Debtor deteriorates); provided, that in each case, the amount of
Eligible Accounts that are excluded because they exceed the foregoing percentage shall be
determined by Agent based on all of the otherwise Eligible Accounts prior to giving effect to any
eliminations based upon the foregoing concentration limit,
(k)
Accounts with respect to which the Account Debtor is subject to an
Insolvency Proceeding, is not Solvent, has gone out of business, or as to which any Borrowing
Base Company has received notice of an imminent Insolvency Proceeding or a material
impairment of the financial condition of such Account Debtor,
(l)
Accounts, the collection of which, Agent, in its Permitted Discretion,
believes to be doubtful, including by reason of the Account Debtor's financial condition,
(m)
Accounts that are not subject to a valid and perfected first priority Agent's
Lien,
(n)
Accounts with respect to which (i) the goods giving rise to such Account
have not been shipped and billed to the Account Debtor, or (ii) the services giving rise to such
Account have not been performed and billed to the Account Debtor,
(o)
Accounts with respect to which the Account Debtor is a Sanctioned Person
or Sanctioned Entity,
(p)
Accounts (i) that represent the right to receive progress payments or other
advance billings that are due prior to the completion of performance by the applicable Borrowing
Base Company of the subject contract for goods or services, or (ii) that represent credit card sales,
(q)
at any time that the Citi Purchase Documents are in effect, Accounts owing
by Xylem, Inc. or any Subsidiary or Affiliate of Xylem, Inc. to Borrowing Base Companies, or
(r)
Accounts owned by a target acquired in connection with a Permitted
Acquisition or Permitted Investment, or Accounts owned by a Person that is joined to this
Agreement as a Borrower pursuant to the provisions of this Agreement, until the completion of a
field examination with respect to such Accounts, in each case, satisfactory to Agent in its Permitted
Discretion.
"Eligible Finished Goods Inventory" means Inventory that qualifies as Eligible
Inventory and consists of finished goods of good and merchantable quality held for sale in the
ordinary course of Borrower Base Companies' business.
"Eligible Investment Grade Accounts" means Eligible Accounts with respect to
which the Account Debtor is a Person with a rating of
at least BBB- by S&P and Baa3 by Moody's
(other than Eligible Tooling Accounts).
"Eligible Inventory" means Inventory of a Borrowing Base Company, that complies
with each of the representations and warranties respecting Eligible Inventory made in the Loan
Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria
set forth below; provided, that such criteria may be revised from time to time by Agent in Agent's
Permitted Discretion to address the results of any information with respect to the Borrower Base
Companies' business or assets of which Agent becomes aware after the Closing Date, including
any field examination or appraisal performed or received by Agent from time to time after the
Closing Date. In determining the amount to be so included, Inventory shall be valued at the lower
of cost or market on a basis consistent with Borrower Base Companies' historical accounting
practices. An item of Inventory shall not be included in Eligible Inventory if:
(a)
a Borrowing Base Company does not have good, valid, and marketable title
thereto,
(b)
a Borrowing Base Company does not have actual and exclusive possession
thereof (either directly or through a bailee or agent of a Borrowing Base Company),
(c)
it is not located at one of the locations in the continental United States or
Canada set forth on Schedule 4.25 to this Agreement (as such Schedule 4.25 may be amended
from time to time in accordance with Section 5.14) (or in-transit from one such location to another
such location),
(d)
it is stored at locations holding less than $100,000 of the aggregate value of
such Borrowing Base Company's Inventory,
(e)
it is in-transit to or from a location of a Borrowing Base Company (other
than in-transit from one location set forth on Schedule 4.25 to this Agreement to another location
set forth on Schedule 4.25 to this Agreement (as such Schedule 4.25 may be amended from time
to time in accordance with Section 5.14)),
(f)
it is located on real property leased by a Borrowing Base Company or in a
contract warehouse or with a bailee, in each case, unless either (i) it is subject to a Collateral Access
Agreement executed by the lessor or warehouseman, as the case may be, and it is segregated or
otherwise separately identifiable from goods of others, if any, stored on the premises, or (ii) Agent
has established a Landlord Reserve with respect to such location,
(g)
it is the subject of a bill of lading or other document of title,
(h)
it is not subject to a valid and perfected first priority Agent's Lien,
(i)
it consists of goods returned or rejected by a Borrowing Base Company's
customers,
(j)
it consists of goods that are obsolete, slow moving, spoiled or are otherwise
past the stated expiration, "sell-by" or "use by" date applicable thereto, restrictive or custom items
or otherwise is manufactured in accordance with customer-specific requirements, or goods that
constitute spare parts, packaging and shipping materials, supplies used or consumed in Borrower
Base Companies' business, bill and hold goods, defective goods, "seconds," or Inventory acquired
on consignment,
(k)
it is subject to third party intellectual property, licensing or other proprietary
rights, unless Agent is satisfied in its Permitted Discretion that such Inventory can be freely sold
by Agent on and after the occurrence of an Event of a Default despite such third party rights, or
(l)
it was acquired in connection with a Permitted Acquisition or Permitted
Investment, or such Inventory is owned by a Person that is joined to this Agreement as a Borrower
pursuant to the provisions of this Agreement, until the completion of an Acceptable Appraisal of
such Inventory and the completion of a field examination with respect to such Inventory that is
satisfactory to Agent in its Permitted Discretion.
"Eligible M&E " means M&E of a Borrower Base Company, that complies with
each of the representations and warranties respecting Eligible M&E made in the Loan Documents,
and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth
below; provided, that such criteria may be revised from time to time by Agent in Agent's Permitted
Discretion to address the results of any due diligence information with respect to the Borrower
Base Companies' business or assets of which Agent becomes aware after the Closing Date,
including any field examination or appraisal performed or received by Agent from time to time
after the Closing Date. An item of M&E shall not be included in Eligible M&E if:
(a)
it is not subject to a valid and perfected first priority Agent's Lien,
(b)
a Borrower Base Company does not have good, valid, and marketable title
thereto,
(c)
a Borrower Base Company does not have actual and exclusive possession
thereof (either directly or through a bailee or agent of a Borrower Base Company), including as a
result of the lease thereof by a Borrower Base Company,
(d)
it is not located at one of the locations in the continental United States or
Canada set forth on Schedule 4.25 to this Agreement (or in-transit from one such location to
another such location) (as such Schedule 4.25 may be amended from time to time in accordance
with Section 5.14),
(e)
it is in-transit to or from a location of a Borrower Base Company (other than
in-transit from one location set forth on Schedule 4.25 to this Agreement to another location set
forth on Schedule 4.25 to this Agreement) (as such Schedule 4.25 may be amended from time to
time in accordance with Section 5.14),
(f)
(i) it is "subject to" (within the meaning of Section 9-311 of the Code) any
certificate of title (or comparable) statute (unless Agent has a first priority, perfected Lien under
such statute and Agent has possession and custody of such certificate), or (ii) in the case of
Borrowing Base Companies that are Canadian Loan Parties, it is Equipment bearing a VIN number
or "serial number goods" or "serial numbered goods" within the meaning of the applicable PPSA
(unless filings against such Equipment or Goods under the applicable PPSA including the
corresponding VINs or serial numbers, satisfactory to the Agent, have been made),
(g)
it does not meet (unless it is under repair or held for repair for the purpose
of meeting), in all material respects, all applicable safety or regulatory requirements applicable to
it by law for the use for which it is intended or for which it is being used,
(h)
it is not used or usable in the ordinary course of the Borrower Base
Companies' business due to a damaged or inoperable condition (other than M&E under repair or
held for repair for such purpose),
(i)
it does not meet (unless it is under repair or held for repair for the purpose
of meeting), in all material respects, all applicable requirements of all motor vehicle laws or other
statutes and regulations established by any Governmental Authority then applicable to such
Equipment, or is subject to any licensing or similar requirement,
(j)
it is located on real property leased by a Borrower Base Company or in a
contract warehouse, in each case, unless either (i) it is subject to a Collateral Access Agreement
executed by the lessor or warehouseman, as the case may be, and unless it is segregated or
otherwise separately identifiable from equipment of others, if any, stored on the premises, or (ii)
Agent has established a Landlord Reserve with respect to such location,
(k)
its use or operation requires proprietary software that is not freely assignable
to Agent, or
(l)
an Acceptable Appraisal of such M&E has not been completed.
"Eligible Mexican Accounts" means Accounts owing from an Account Debtor
identified on Schedule E-3 that meet all the criteria of Eligible Accounts other than clause (g)
thereof solely as a result of such Account Debtor being organized under the laws of Mexico.
"Eligible Non-Investment Grade Accounts" means Eligible Accounts that are not
Eligible Investment Grade Accounts or Eligible Tooling Accounts.
"Eligible Raw Material Inventory" means Inventory that qualifies as Eligible
Inventory and consists of goods that are raw materials of good and merchantable quality.
"Eligible Real Property" means Real Property owned in fee by Borrower that
complies with each of the representations and warranties respecting Real Property made in the
Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding
criteria set forth below; provided, that such criteria may be revised from time to time by Agent in
Agent's Permitted Discretion to address the results of any information with respect to the
Borrowers' business or assets of which Agent becomes aware after the Closing Date, including any
field examination or appraisal performed by or received by Agent from time to time after the
Closing Date. An item of Real Property shall not be included in Eligible Real Property if:
(a)
it is not identified on Schedule E-2 to the Agreement as of the Closing Date,
(b)
a Borrower does not have good, valid, and marketable fee title thereto,
(c)
it is not Real Property with respect to which Agent has received
(i) mortgagee title insurance policies issued by a title insurance company reasonably satisfactory
to Agent in amounts reasonably satisfactory to Agent (but in no event less than the FMV thereof)
assuring Agent that the Mortgages on such Real Property are valid and enforceable first priority
mortgage Liens on such Real Property free and clear of all defects and encumbrances except
Permitted Liens, and otherwise in form and substance reasonably satisfactory to Agent, (ii) ALTA
surveys in form and substance reasonably satisfactory to Agent, (iii) phase-I environmental reports
with respect to each parcel composing the Real Property (the environmental consultants retained
for such reports, the scope of the reports, and the results thereof of which shall be reasonably
satisfactory to Agent), and (iv) flood certifications (and, if applicable, acceptable flood insurance
and FEMA form acknowledgements of insurance),
(d)
an Acceptable Appraisal of such item of Real Property has not been
completed,
(e)
it is not Real Property Collateral subject to a valid and perfected first priority
Agent's Lien, or
(f)
it is subject to any Lien other than Permitted Liens of the type described in
clauses (a), (b), (c), (g), or (k) of the definition thereof.
"Eligible Tooling Accounts" means Eligible Accounts
owing in respect of the sale
of Tooling by Borrower.
"Employee Benefit Plan" means any employee benefit plan within the meaning of
Section 3(3) of ERISA, that is subject to ERISA and (a) that is or within the preceding six (6) years
has been sponsored, maintained or contributed to by any Loan Party or ERISA Affiliate or (b) to
which any Loan Party or ERISA Affiliate has, or has had at any time within the preceding six (6)
years, any liability, contingent or otherwise, other than a Multiemployer Plan.
"Environmental Action" means any written complaint, summons, citation, notice,
directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment,
letter, or other written communication from any Governmental Authority, or any third party
involving violations of Environmental Laws or releases of Hazardous Materials (a) from any
assets, properties, or businesses of any Borrower, any Subsidiary of any Borrower, or any of their
predecessors in interest, (b) from adjoining properties or businesses, or (c) from or onto any
facilities which received Hazardous Materials generated by any Borrower, any Subsidiary of any
Borrower, or any of their predecessors in interest.
"Environmental Law" means any applicable federal, state, provincial, foreign or
local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and
enforceable written policy, or rule of common law now or hereafter in effect and in each case as
amended, or any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, in each case, to the extent binding on any Loan
Party or its Subsidiaries, relating to the environment, the effect of the environment on employee
health, or Hazardous Materials, in each case as amended from time to time.
"Environmental Liabilities" means all liabilities, monetary obligations, losses,
damages, costs and expenses (including all reasonable fees, disbursements and expenses of
counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties,
sanctions, and interest incurred under Environmental Law, including as a result of any claim or
demand, or Remedial Action required, by any Governmental Authority or any third party, and
which relate to any Environmental Action.
"Environmental Lien" means any Lien in favor of any Governmental Authority for
Environmental Liabilities.
"Equipment" means equipment (as that term is defined in the Code or, to the extent
applicable, the PPSA).
"Equity Interests" means, with respect to a Person, all of the shares, options,
warrants, interests, participations, or other equivalents (regardless of how designated) of or in such
Person, whether voting or nonvoting, including capital stock (or other ownership or profit interests
or units), preferred stock, or any other "equity security" (as such term is defined in Rule 3a11-1 of
the General Rules and Regulations promulgated by the SEC under the Exchange Act).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto.
"ERISA Affiliate " means (a) any Person subject to ERISA whose employees are
treated as employed by the same employer as the employees of any Loan Party or its Subsidiaries
under IRC Section 414(b), (b) any trade or business subject to ERISA whose employees are treated
as employed by the same employer as the employees of any Loan Party or its Subsidiaries under
IRC Section 414(c), (c) solely for purposes of Section 302 of ERISA and Section 412 of the IRC,
any organization subject to ERISA that is a member of an affiliated service group of which any
Loan Party or any of its Subsidiaries is a member under IRC Section 414(m), or (d) solely for
purposes of Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA that
is a party to an arrangement with any Loan Party or any of its Subsidiaries and whose employees
are aggregated with the employees of such Loan Party or its Subsidiaries under IRC Section
414(o).
"EU Bail-In Legislation Schedule" means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor person), as in effect from time to
time.
"Event of Default " has the meaning specified therefor in Section 8 of this
Agreement.
"Excess" has the meaning specified therefor in Section 2.14 of this Agreement.
"Excess Availability" means, as of any date of determination, the amount equal to
Availability
minus
Subsidiaries aged in excess of historical levels with respect thereto and all book overdrafts of the
Loan Parties and their Subsidiaries in excess of historical practices with respect thereto, in each
case as determined by Agent in its Permitted Discretion.
"Exchange Act" means the Securities Exchange Act of 1934, as in effect from time
to time.
"Exchange Rate " means and refers to the nominal rate of exchange (vis -à-vis
Dollars) for a currency other than Dollars published in the Wall Street Journal (Western Edition)
on the date of determination (which shall be a Business Day on which the Wall Street Journal
(Western Edition) is published), expressed as the number of units of such other currency per one
Dollar.
"Excluded Swap Obligation" means, with respect to any Loan Party, any Swap
Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party of (including
by virtue of the joint and several liability provisions of Section 2.16), or the grant by such Loan
Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes
illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity
Futures Trading Commission (or the application or official interpretation of any thereof) by virtue
of such Loan Party's failure for any reason to constitute an "eligible contract participant" as defined
in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such
Loan Party or the grant of such security interest becomes effective with respect to such Swap
Obligation. If a Swap Obligation arises under a master agreement governing more than one swap,
such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps
for which such guaranty or security interest is or becomes illegal.
"Excluded Taxes " means (i) any tax imposed on the net income or net profits of
any Lender or any Participant (including any branch profits taxes), in each case imposed by the
jurisdiction (or by any political subdivision or taxing authority thereof) in which such Lender or
such Participant is organized or the jurisdiction (or by any political subdivision or taxing authority
thereof) in which such Lender's or such Participant's principal office is located in or as a result of
a present or former connection between such Lender or such Participant and the jurisdiction or
taxing authority imposing the tax (other than any such connection arising solely from such Lender
or such Participant having executed, delivered or performed its obligations or received payment
under, or enforced its rights or remedies under this Agreement or any other Loan Document), (ii)
withholding taxes that would not have been imposed but for a Lender's or a Participant's failure to
comply with the requirements of Section 16.2 of this Agreement, (iii) any United States federal
withholding taxes that would be imposed on amounts payable to a Foreign Lender based upon the
applicable withholding rate in effect at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office, other than a designation made at the request of a
Loan Party), except that Excluded Taxes shall not include (A) any amount that such Foreign
Lender (or its assignor, if any) was previously entitled to receive pursuant to Section 16.1 of this
Agreement, if any, with respect to such withholding tax at the time such Foreign Lender becomes
a party to this Agreement (or designates a new lending office), and (B) additional United States
federal withholding taxes that may be imposed after the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office), as a result of a change in law, rule,
regulation, treaty, order or other decision or other Change in Law with respect to any of the
foregoing by any Governmental Authority, and (iv) any United States federal withholding taxes
imposed under FATCA.
and Restated Credit Agreement, initially dated as of January 16, 2018, among Borrower, KeyBank
National Association, as administrative agent, and the lenders and other parties thereto, as
amended prior to the date hereof.
"Extraordinary Advances" has the meaning specified therefor in Section 2.3(d)(iii)
of this Agreement.
"Extraordinary Receipts " means (a) so long as no Event of Default has occurred
and is continuing, proceeds of judgments, proceeds of settlements, or other consideration of any
kind received in connection with any cause of action or claim, and (b) if an Event of Default has
occurred and is continuing, any payments received by any Loan Party or any of its Subsidiaries
not in the ordinary course of business (and not consisting of proceeds described in Section
2.4(e)(iii) of this Agreement) consisting of (i) proceeds of judgments, proceeds of settlements, or
other consideration of any kind received in connection with any cause of action or claim (and not
consisting of proceeds described in Section 2.4(e)(iii) of this Agreement, but including proceeds
of business interruption insurance), (ii) indemnity payments (other than to the extent such
indemnity payments are immediately payable to a Person that is not an Affiliate of any Loan Party
or any of its Subsidiaries, and (iii) any purchase price adjustment received in connection with any
purchase agreement.
"FATCA " means Sections 1471 through 1474 of the IRC, as of the date of this
Agreement (or any amended or successor version that is substantively comparable and not
materially more onerous to comply with), and (a) any current or future regulations or official
interpretations thereof, (b) any agreements entered into pursuant to Section 1471(b)(1) of the IRC,
and (c) any intergovernmental agreement entered into by the United States (or any fiscal or
regulatory legislation, rules, or practices adopted pursuant to any such intergovernmental
agreement entered into in connection therewith).
"FCPA" means the Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum
equal to, for each day during such period, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for such day on such
transactions received by Agent from three Federal funds brokers of recognized standing selected
by it (and, if any such rate is below zero, then the rate determined pursuant to this definition shall
be deemed to be zero).
"Federal Reserve Bank of New York's Website" means the website of the Federal
Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
"Fee Letter" means that certain fee letter, dated as of even date with this Agreement,
among Borrowers and Agent, in form and substance reasonably satisfactory to Agent.
"Fixed Charges" means, with respect to any fiscal period and with respect to
Borrowers determined on a consolidated basis in accordance with GAAP, the sum, without
duplication, of (a) Interest Expense required to be paid (other than interest paid -in-kind,
amortization of financing fees, and other non-cash Interest Expense) during such period,
(b) scheduled principal payments in respect of Indebtedness that are required to be paid during
such period, (c) all federal, state, and local income taxes required to be paid during such period (to
the extent not included in EBITDA, net of income tax refunds received in cash during such period
in an amount not to exceed such income taxes paid)
,
(d) all Restricted Payments paid (whether in
cash or other property, other than Equity Interests that are not Disqualified Equity Interests) during
such period, (e) cash payments in respect of post-retirement benefits consisting of health insurance
and life insurance, and (f) to the extent not otherwise deducted from EBITDA for such period, all
payments required to be made during such period in respect of any funding deficiency or funding
shortfall with respect to any Pension Plan or for any Withdrawal Liability.
"Fixed Charge Coverage Ratio" means, with respect to any fiscal period and with
respect to Borrowers determined on a consolidated basis in accordance with GAAP, the ratio of
(a) EBITDA for such period
minus
already incurred in a prior period) or incurred during such period, to (b) Fixed Charges for such
period.
"Flow of Funds Agreement" means a flow of funds agreement, dated as of even
date with this Agreement, in form and substance reasonably satisfactory to Agent, executed and
delivered by Borrowers and Agent.
"FMV"
means, as of any date of determination, the fair market value of Borrowers'
Eligible Real Property that is estimated to be recoverable in an orderly sale in a 12 month
marketing period of such Eligible Real Property net of all associated costs and expenses of such
sale, such value to be as specified in the most recent Acceptable Appraisal of Real Property;
provided, that, for purposes of the R/E Borrowing Base, the FMV of any Eligible Real Property
shall not exceed the lesser of (x) amount of title insurance obtained by Agent with respect to such
Eligible Real Property and (y) the maximum amount secured by the Mortgage on such Eligible
Real Property
"Foreign Cash Equivalents" means (a) certificates of deposit, bankers' acceptances,
or time deposits maturing within one year from the date of acquisition thereof, in each case payable
in an Agreed Currency and issued by any bank organized under the laws of any Specified State
and having at the date of acquisition thereof combined capital and surplus of not less than
$1,000,000,000 (calculated at the then applicable Exchange Rate), (b) Deposit Accounts
maintained with any bank that satisfies the criteria described in clause (a) above, and
(c) Investments in money market funds substantially all of whose assets are invested in the types
of assets described in clauses (a) through (b) above.
"Foreign Lender" means any Lender or Participant that is not a United States person
within the meaning of IRC section 7701(a)(30).
"Foreign Subsidiary" means any direct or indirect Subsidiary of any Loan Party that
is organized under the laws of any jurisdiction other than the United States, any state thereof or
the District of Columbia.
"Funded Indebtedness" means, as of any date of determination, all Indebtedness for
borrowed money or letters of credit of Borrowers, determined on a consolidated basis in
accordance with GAAP, including, in any event, but without duplication, with respect to the Loan
Parties and their Subsidiaries, the Revolver Usage, the Term Loan, and the amount of their
Capitalized Lease Obligations.
"Funding Date" means the date on which a Borrowing occurs.
"Funding Losses" has the meaning specified therefor in Section 2.12(b)(ii) of this
Agreement.
"GAAP" means generally accepted accounting principles as in effect from time to
time in the United States, consistently applied.
"Governing Documents" means, with respect to any Person, the certificate or
articles of incorporation, by-laws, or other organizational documents of such Person.
"Governmental Authority" means the government of any nation or any political
subdivision thereof, whether at the national, state, territorial, provincial, county, municipal or any
other level, and any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers
or functions of, or pertaining to, government (including any supra-national bodies such as the
European Union or the European Central Bank).
"Guarantor" means (a) each Person that guaranties all or a portion of the
Obligations, including Canadian Loan Parties and any Person that is a "Guarantor" under the
Guaranty and Security Agreement, and (b) each other Person that becomes a guarantor after the
Closing Date pursuant to Section 5.11 of this Agreement.
"Guaranty and Security Agreement" means a guaranty and security agreement,
dated as of even date with this Agreement, in form and substance reasonably satisfactory to Agent,
executed and delivered by each of the Loan Parties to Agent.
"Hazardous Materials" means (a) substances that are defined or listed in, or
otherwise classified pursuant to, any applicable laws or regulations as "hazardous substances,"
"hazardous materials," "hazardous wastes," "toxic substances," or any other formulation intended
to define, list, or classify substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, reproductive toxicity, or "EP toxicity", (b) oil, petroleum,
or petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids,
produced waters, and other wastes associated with the exploration, development, or production of
crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any
radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million.
"Hedge Agreement" means a "swap agreement" as that term is defined in Section
101(53B)(A) of the Bankruptcy Code.
"Hedge Obligations" means any and all obligations or liabilities, whether absolute
or contingent, due or to become due, now existing or hereafter arising, of each Loan Party and its
Subsidiaries arising under, owing pursuant to, or existing in respect of Hedge Agreements entered
into with one or more of the Hedge Providers.
"Hedge Provider " means any Bank Product Provider that is a party to a Hedge
Agreement with a Loan Party or its Subsidiaries or otherwise provides Bank Products under clause
(f) of the definition thereof; provided, that if, at any time, a Lender ceases to be a Lender under
this Agreement (prior to the payment in full of the Obligations), then, from and after the date on
which it ceases to be a Lender thereunder, neither it nor any of its Affiliates shall constitute Hedge
Providers and the obligations with respect to Hedge Agreements entered into with such former
Lender or any of its Affiliates shall no longer constitute Hedge Obligations.
"Increase" has the meaning specified therefor in Section 2.14.
"Increase Date" has the meaning specified therefor in Section 2.14.
"Increase Joinder" has the meaning specified therefor in Section 2.14.
"Increased Reporting Event" means if at any time Availability is less than the
greater of (a) 15% of the Maximum Revolver Amount, and (b) $3,750,000.
"Increased Reporting Period" means the period commencing after the continuance
of an Increased Reporting Event and continuing until the date when no Increased Reporting Event
has occurred for 30 consecutive days.
"Indebtedness" as to any Person means (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes, or
other similar instruments and all reimbursement or other obligations in respect of letters of credit,
bankers acceptances, or other financial products, (c) all obligations of such Person as a lessee under
Capital Leases, (d) all obligations or liabilities of others secured by a Lien on any asset of such
Person, irrespective of whether such obligation or liability is assumed, (e) all obligations of such
Person to pay the deferred purchase price of assets (other than trade payables incurred in the
ordinary course of business and repayable in accordance with customary trade practices and, for
the avoidance of doubt, other than royalty payments payable in the ordinary course of business in
respect of non-exclusive licenses) and, to the extent required to be recognized as a liability on the
balance sheet of such Person under GAAP, any earn-out or similar obligations, (f) all monetary
obligations of such Person owing under Hedge Agreements (which amount shall be calculated
based on the amount that would be payable by such Person if the Hedge Agreement were
terminated on the date of determination), (g) any Disqualified Equity Interests of such Person, and
(h) any obligation of such Person guaranteeing or intended to guarantee (whether directly or
indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any obligation of any
other Person that constitutes Indebtedness under any of clauses (a) through (g) above. For purposes
of this definition, (i) the amount of any Indebtedness represented by a guaranty or other similar
instrument shall be the lesser of the principal amount of the obligations guaranteed and still
outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant
to the terms of the instrument embodying such Indebtedness, and (ii) the amount of any
Indebtedness which is limited or is non-recourse to a Person or for which recourse is limited to an
identified asset shall be valued at the lesser of (A) if applicable, the limited amount of such
obligations, and (B) if applicable, the fair market value of such assets securing such obligation.
"Indemnified Liabilities" has the meaning specified therefor in Section 10.3 of this
Agreement.
"Indemnified Person " has the meaning specified therefor in Section 10.3 of this
Agreement.
"Indemnified Taxes " means, (a) Taxes, other than Excluded Taxes, imposed on or
with respect to any payment made by, or on account of any obligation of, any Loan Party under
any Loan Document, and (b) to the extent not otherwise described in the foregoing clause (a),
Other Taxes.
"Initial M/E Term Loan" has the meaning specified therefor in Section 2.2(a) of
this Agreement.
"Insolvency Laws" means, collectively, (i) the Bankruptcy Code, (ii) the
Bankruptcy and Insolvency Act
Companies' Creditors Arrangement Act
(Canada), (iv) the
Winding-Up and Restructuring Act
Canada Business
Corporations Act
to propose an arrangement involving the compromise of the claims of creditors; and (vi) any
similar legislation in a relevant jurisdiction, in each case as applicable and as in effect from time
to time.
"Insolvency Proceeding" means any proceeding commenced by or against any
Person under any Insolvency Law.
"Intercompany Subordination Agreement" means an intercompany subordination
agreement, dated as of even date with this Agreement, executed and delivered by each Loan Party
and each of its Subsidiaries, and Agent, the form and substance of which is reasonably satisfactory
to Agent.
"Interest Expense" means, for any period, the aggregate of the interest expense of
Borrowers for such period, determined on a consolidated basis in accordance with GAAP.
"Interest Period" means, with respect to each LIBOR Rate Loan, a period
commencing on the date of the making of such LIBOR Rate Loan (or the continuation of a LIBOR
Rate Loan or the conversion of a Base Rate Loan to a LIBOR Rate Loan) and ending 1, 3, or 6
months months thereafter; provided, that (a) interest shall accrue at the applicable rate based upon
the LIBOR Rate from and including the first day of each Interest Period to, but excluding, the day
on which any Interest Period expires, (b) any Interest Period that would end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest Period shall end on the next preceding
Business Day, (c) with respect to an Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period), the Interest Period shall end on the last Business Day of
the calendar month that is 1, 3 or 6 months after the date on which the Interest Period began, as
applicable, and (d) Borrowers may not elect an Interest Period which will end after the Maturity
Date.
"Inventory" means inventory (as that term is defined in the Code or, to the extent
applicable, the PPSA).
"Inventory Reserves " means, as of any date of determination, (a) Landlord
Reserves in respect of Inventory, and (b) those reserves that Agent deems necessary or appropriate,
in its Permitted Discretion and subject to Section 2.1(c), to establish and maintain (including
reserves for slow moving Inventory and Inventory shrinkage) with respect to Eligible Inventory or
the Maximum Revolver Amount, including based on the results of appraisals.
"Investment" means, with respect to any Person, any investment by such Person in
any other Person (including Affiliates) in the form of loans, guarantees, advances, capital
contributions (excluding (a) commission, travel, and similar advances to officers and employees
of such Person made in the ordinary course of business, and (b)
bona fide
arising in the ordinary course of business), or acquisitions of Indebtedness, Equity Interests, or all
or substantially all of the assets of such other Person (or of any division or business line of such
other Person), and any other items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP. The amount of any Investment shall be the original cost of
such Investment
plus
decreases in value, or write-ups, write-downs, or write-offs with respect to such Investment.
"IRC" means the Internal Revenue Code of 1986, as in effect from time to time.
"ISP" means, with respect to any Letter of Credit, the International Standby
Practices 1998 (International Chamber of Commerce Publication No. 590) and any version or
revision thereof accepted by the Issuing Bank for use.
"Issuer Document" means, with respect to any Letter of Credit, a letter of credit
application, a letter of credit agreement, or any other document, agreement or instrument entered
into (or to be entered into) by a Borrower in favor of Issuing Bank and relating to such Letter of
Credit.
"Issuing Bank" means Wells Fargo or any other Lender that, at the request of
Borrowers and with the consent of Agent, agrees, in such Lender's sole discretion, to become an
Issuing Bank for the purpose of issuing Letters of Credit pursuant to Section 2.11 of this
Agreement, and Issuing Bank shall be a Lender.
"Joinder" means a joinder agreement substantially in the form of Exhibit J-1 to this
Agreement.
"Landlord Reserve" means, as to each location at which a Borrower has Inventory,
M&E or books and records located and as to which a Collateral Access Agreement has not been
received by Agent, a reserve in an amount equal to 3 months' rent, storage charges, fees or other
amounts under the lease or other applicable agreement relative to such location or, if greater and
Agent so elects, the number of months' rent, storage charges, fess or other amounts for which the
landlord, bailee, warehouseman or other property owner will have, under applicable law, a Lien in
the Inventory or M&E of such Borrower to secure the payment of such amounts under the lease or
other applicable agreement relative to such location.
"Lead Arranger" has the meaning set forth in the preamble to this Agreement.
"Lender" has the meaning set forth in the preamble to this Agreement, shall include
Issuing Bank and the Swing Lender, and shall also include any other Person made a party to this
Agreement pursuant to the provisions of Section 13.1 of this Agreement and "Lenders" means each
of the Lenders or any one or more of them.
"Lender Group" means each of the Lenders (including Issuing Bank and the Swing
Lender) and Agent, or any one or more of them.
"Lender Group Expenses" means all (a) documented out-of-pocket costs or
expenses (including taxes and insurance premiums) required to be paid by any Loan Party or its
Subsidiaries under any of the Loan Documents that are paid, advanced, or incurred by the Lender
Group, (b) documented out-of-pocket fees or charges paid or incurred by Agent in connection with
the Lender Group's transactions with each Loan Party and its Subsidiaries under any of the Loan
Documents, including, photocopying, notarization, couriers and messengers, telecommunication,
public record searches, filing fees, recording fees, publication, real estate surveys, real estate title
policies and endorsements, and environmental audits, (c) Agent's customary fees and charges
imposed or incurred in connection with any background checks or OFAC/PEP searches related to
any Loan Party or its Subsidiaries, (d) Agent's customary fees and charges (as adjusted from time
to time) with respect to the disbursement of funds (or the receipt of funds) to or for the account of
any Borrower (whether by wire transfer or otherwise), together with any out -of-pocket costs and
expenses incurred in connection therewith, (e) customary charges imposed or incurred by Agent
resulting from the dishonor of checks payable by or to any Loan Party, (f) reasonable, documented
out-of-pocket costs and expenses paid or incurred by the Lender Group to correct any default or
enforce any provision of the Loan Documents, or during the continuance of an Event of Default,
in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing
for sale, or advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale
is consummated, (g) field examination, appraisal, and valuation fees and expenses of Agent related
to any field examinations, appraisals, or valuation to the extent of the fees and charges (and up to
the amount of any limitation) provided in Section 5.7(c) of this Agreement, (h) Agent's and
Lenders' reasonable, documented costs and expenses (including reasonable and documented
attorneys' fees and expenses) relative to third party claims or any other lawsuit or adverse
proceeding paid or incurred, whether in enforcing or defending the Loan Documents or otherwise
in connection with the transactions contemplated by the Loan Documents, Agent's Liens in and to
the Collateral, or the Lender Group's relationship with any Loan Party or any of its Subsidiaries,
(i) Agent's reasonable and documented out-of-pocket costs and expenses (including reasonable
and documented attorneys' fees and due diligence expenses) incurred in advising, structuring,
drafting, reviewing, administering (including travel, meals, and lodging), syndicating (including
reasonable costs and expenses relative to the rating of the Term Loan, CUSIP, DXSyndicate™,
SyndTrak or other communication costs incurred in connection with a syndication of the loan
facilities), or amending, waiving, or modifying the Loan Documents, and (j) Agent's and each
Lender's reasonable and documented costs and expenses (including reasonable and documented
attorneys, accountants, consultants, and other advisors fees and expenses) incurred in terminating,
enforcing (including attorneys, accountants, consultants, and other advisors fees and expenses
incurred in connection with a "workout," a "restructuring," or an Insolvency Proceeding
concerning any Loan Party or any of its Subsidiaries or in exercising rights or remedies under the
Loan Documents), or defending the Loan Documents, irrespective of whether a lawsuit or other
adverse proceeding is brought, or in taking any enforcement action or any Remedial Action with
respect to the Collateral.
"Lender Group Representatives" has the meaning specified therefor in Section 17.9
of this Agreement.
"Lender-Related Person" means, with respect to any Lender, such Lender, together
with such Lender's Affiliates, officers, directors, employees, attorneys, and agents.
"Letter of Credit" means a letter of credit (as that term is defined in the Code) issued
by Issuing Bank.
"Letter of Credit Collateralization" means either (a) providing cash collateral
(pursuant to documentation reasonably satisfactory to Agent (including that Agent has a first
priority perfected Lien in such cash collateral), including provisions that specify that the Letter of
Credit Fees and all commissions, fees, charges and expenses provided for in Section 2.11(k) of
this Agreement (including any fronting fees) will continue to accrue while the Letters of Credit
are outstanding) to be held by Agent for the benefit of the Revolving Lenders in an amount equal
to 105% of the then existing Letter of Credit Usage, (b) delivering to Agent documentation
executed by all beneficiaries under the Letters of Credit, in form and substance reasonably
satisfactory to Agent and Issuing Bank, terminating all of such beneficiaries' rights under the
Letters of Credit, or (c) providing Agent with a standby letter of credit, in form and substance
reasonably satisfactory to Agent, from a commercial bank acceptable to Agent (in its sole
discretion) in an amount equal to 105% of the then existing Letter of Credit Usage (it being
understood that the Letter of Credit Fee and all fronting fees set forth in this Agreement will
continue to accrue while the Letters of Credit are outstanding and that any such fees that accrue
must be an amount that can be drawn under any such standby letter of credit).
"Letter of Credit Disbursement" means a payment made by Issuing Bank pursuant
to a Letter of Credit.
"Letter of Credit Exposure" means, as of any date of determination with respect to
any Lender, such Lender's participation in the Letter of Credit Usage pursuant to Section 2.11(e)
on such date.
"Letter of Credit Fee" has the meaning specified therefor in Section 2.6(b) of this
Agreement.
"Letter of Credit Indemnified Costs" has the meaning specified therefor in Section
2.11(f) of this Agreement.
"Letter of Credit Related Person" has the meaning specified therefor in Section
2.11(f) of this Agreement.
"Letter of Credit Sublimit" means $2,000,000.
"Letter of Credit Usage" means, as of any date of determination, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit,
plus
outstanding reimbursement obligations with respect to Letters of Credit which remain
unreimbursed or which have not been paid through a Revolving Loan.
"LIBOR Deadline" has the meaning specified therefor in Section 2.12(b)(i) of this
Agreement.
"LIBOR Notice" means a written notice in the form of Exhibit L-1 to this
Agreement.
"LIBOR Option" has the meaning specified therefor in Section 2.12(a) of this
Agreement.
"LIBOR Rate" means the greater of (a) 0.75%
per annum
per annum
as published by ICE Benchmark Administration Limited (or any successor page or other
commercially available source as the Agent may designate from time to time) as of 11:00 a.m.,
London time, two Business Days prior to the commencement of the requested Interest Period, for
a term, and in an amount, comparable to the Interest Period and the amount of the LIBOR Rate
Loan requested (whether as an initial LIBOR Rate Loan or as a continuation of a LIBOR Rate
Loan or as a conversion of a Base Rate Loan to a LIBOR Rate Loan) by Borrowers in accordance
with this Agreement (and, if any such published rate is below zero, then the LIBOR Rate shall be
deemed to be zero). Each determination of the LIBOR Rate shall be made by the Agent and shall
be conclusive in the absence of manifest error.
"LIBOR Rate Loan" means each portion of a Revolving Loan or the Term Loan
that bears interest at a rate determined by reference to the LIBOR Rate.
"LIBOR Rate Margin" means the Revolving Loan LIBOR Rate Margin or the Term
Loan LIBOR Rate Margin, as applicable.
"Lien" means any mortgage, deed of trust, pledge, hypothecation, assignment,
charge, deposit arrangement, encumbrance, easement, lien (statutory or other), security interest, or
other security arrangement and any other preference, priority, or preferential arrangement of any
kind or nature whatsoever, including any conditional sale contract or other title retention
agreement, the interest of a lessor under a Capital Lease and any synthetic or other financing lease
having substantially the same economic effect as any of the foregoing.
"Loan" means any Revolving Loan, Swing Loan, Extraordinary Advance, or Term
Loan made (or to be made) hereunder.
"Loan Account " has the meaning specified therefor in Section 2.9 of this
Agreement.
"Loan Documents" means this Agreement, the Control Agreements, the Copyright
Security Agreement, any Borrowing Base Certificate, the Fee Letter, the Guaranty and Security
Agreement, the Intercompany Subordination Agreement, any Issuer Documents, the Letters of
Credit, the Loan Manager Side Letter, the Canadian Guaranty, the Canadian Security Documents,
the Mortgages, the Patent Security Agreement, the Trademark Security Agreement, any note or
notes executed by Borrowers in connection with this Agreement and payable to any member of
the Lender Group, and any other instrument or agreement entered into, now or in the future, by
any Loan Party or any of its Subsidiaries and any member of the Lender Group in connection with
this Agreement (but specifically excluding Bank Product Agreements).
"Loan Manager Side Letter" means that certain letter agreement between the
Borrowers and Wells Fargo regarding the terms under which Wells Fargo will provide services to
the Borrowers in respect of Wells Fargo's proprietary automated loan management program.
"Loan Party" means any Borrower or any Guarantor.
"M&E" means all Equipment (as defined in the Code or, to the extent applicable,
the PPSA) (in each case, other than fixtures (unless otherwise agreed by Agent), tooling, rolling
stock or any equipment subject to special perfection requirements under federal law).
"M&E Borrowing Base" means the result of 85% of the NOLV of Eligible M&E
(such determination may be made as to different categories of Eligible M&E based upon the
NOLV applicable to such categories).
"M&E Reserves" means, as of any date of determination, (a) Landlord Reserves in
respect of M&E, and (b) those reserves that Agent deems necessary or appropriate, in its Permitted
Discretion and subject to Section 2.1(c), to establish and maintain with respect to Eligible M&E,
including based on the results of appraisals.
"Margin Stock" as defined in Regulation U of the Board of Governors as in effect
from time to time.
"Material Adverse Effect" means (a) a material adverse effect in the business,
operations, results of operations, assets, liabilities or financial condition of the Loan Parties and
their Subsidiaries, taken as a whole, (b) a material impairment of the Loan Parties' and their
Subsidiaries' ability to perform their obligations under the Loan Documents to which they are
parties or of the Lender Group's ability to enforce the Obligations or realize upon the Collateral
(other than as a result of as a result of an action taken or not taken that is solely in the control of
Agent), or (c) a material impairment of the enforceability or priority of Agent's Liens with respect
to all or a material portion of the Collateral.
"Maturity Date" means October 27, 2024.
"Maximum Revolver Amount" means $25,000,000, decreased by the amount of
reductions in the Revolver Commitments made in accordance with Section 2.4(c) of this
Agreement and increased by the amount of any Increase made in accordance with Section 2.14 of
this Agreement.
"M/E Term Loan" means (i) prior to the funding of the Additional M/E Term Loan,
the Initial M/E Term Loan and (ii) on an after the funding of the Additional M/E Term Loan, the
then outstanding Initial M/E Term Loan and the Additional M/E Term Loan.
"M/E Term Loan Amount" means $7,290,000.
"M/E Term Loan Commitment" means, with respect to each Lender, its M/E Term
Loan Commitment, and, with respect to all Lenders, their M/E Term Loan Commitments, in each
case as such Dollar amounts are set forth beside such Lender's name under the applicable heading
on Schedule C-1 to this Agreement or in the Assignment and Acceptance pursuant to which such
Lender became a Lender under this Agreement, as such amounts may be reduced or increased from
time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of
this Agreement.
"M/E Term Loan Exposure" means, with respect to any Term Loan Lender,
(a) prior to the termination of the M/E Term Loan Commitments, the amount of such Lender's M/E
Term Loan Commitment, and (b) after the termination of the M/E Term Loan Commitments, the
aggregate outstanding principal amount of the M/E Term Loan held by such Lender.
"Mexican A/R Cap" means, as of any date of determination, the lesser of (x)
$2,500,000 and (y) 15% of the aggregate amount of the sum of clauses (a), (b) and (c) of the
definition of Borrowing Base.
"Mexican Subsidiary" means a Foreign Subsidiary organized under the laws of
Mexico, or any political subdivision thereof.
"Mexican Term Lender" means FGI Equipment Finance LLC.
“Mexican Term Loan Agreement” means that certain Master Security Agreement,
dated as of October 27, 2020, between Mexican Term Lender, Borrower as debtor, Core
Composites as a guarantor, and CC HPM, S. de R.L. de C.V. as a guarantor, as may from time to
time hereafter be amended, supplemented, extended, renewed, or restated or replaced from time to
time subject to the terms hereof.
"Mexican Term Loan Collateral" means assets owned by Mexican Subsidiaries of
Borrowers and assets of Core Composites located in Matamoros, Mexico; provided, that, Mexican
Term Loan Collateral shall exclude Accounts and Inventory of Core Composites and shall exclude
Eligible M&E and Eligible Real Property.
"Mexican Term Loan Documents" means the Debt Documents, as such term is
defined in the Mexican Term Loan Agreement, in each case as may from time to time hereafter be
amended, supplemented, extended, renewed, restated or replaced from time to time subject to the
terms hereof.
"Mexican Term Debt" means the Indebtedness under the Mexican Term Loan
Documents, as such Indebtedness may from time to time hereafter be increased or supplemented,
subject to the terms hereof and any Refinancing Indebtedness in respect of such Indebtedness.
"Moody's" has the meaning specified therefor in the definition of Domestic Cash
Equivalents.
"Mortgages" means, individually and collectively, one or more mortgages, charges,
deeds of trust, or deeds to secure debt, executed and delivered by a Loan Party or one of its
Subsidiaries in favor of Agent, in form and substance reasonably satisfactory to Agent, that
encumber the Real Property Collateral.
"Multiemployer Plan" means any multiemployer plan within the meaning of
Section 3(37) or 4001(a)(3) of ERISA, that is subject to ERISA, with respect to which any Loan
Party or ERISA Affiliate has an obligation to contribute or has any liability, contingent or
otherwise or could be assessed withdrawal liability assuming a complete withdrawal under Section
4203 of ERISA from any Multiemployer Plan.
"Net Cash Proceeds" means:
(a)
with respect to any sale or disposition by any Loan Party or any of its
Subsidiaries (other than any Mexican Subsidiary) of assets (other than Mexican Term Loan
Collateral), the amount of cash proceeds received (directly or indirectly) from time to time
(whether as initial consideration or through the payment of deferred consideration) by or on behalf
of such Loan Party or such Subsidiary, in connection therewith after deducting therefrom only
(i) the amount of any Indebtedness secured by any Permitted Lien on any asset (other than
(A) Indebtedness owing to Agent or any Lender under this Agreement or the other Loan
Documents and (B) Indebtedness assumed by the purchaser of such asset) which is required to be,
and is, repaid in connection with such sale or disposition, (ii) reasonable fees, commissions, and
expenses related thereto and required to be paid by such Loan Party or such Subsidiary in
connection with such sale or disposition, (iii) taxes paid or payable to any taxing authorities by
such Loan Party or such Subsidiary in connection with such sale or disposition, in each case to the
extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash,
actually paid or payable to a Person that is not an Affiliate of any Loan Party or any of its
Subsidiaries, and are properly attributable to such transaction, and (iv) all amounts that are set
aside as a reserve (A) for adjustments in respect of the purchase price of such assets, (B) for any
liabilities associated with such sale or casualty, to the extent such reserve is required by GAAP,
and (C) for the payment of unassumed liabilities relating to the assets sold or otherwise disposed
of at the time of, or within 30 days after, the date of such sale or other disposition, to the extent
that in each case the funds described above in this clause (iv) are (x) deposited into escrow with a
third party escrow agent or set aside in a separate Deposit Account that is subject to a Control
Agreement in favor of Agent, and (y) paid to Agent as a prepayment of the applicable Obligations
in accordance with Section 2.4(e) of this Agreement at such time when such amounts are no longer
required to be set aside as such a reserve; and
(b)
with respect to the issuance or incurrence of any Indebtedness by any Loan
Party or any of its Subsidiaries, or the issuance by any Loan Party or any of its Subsidiaries of any
Equity Interests, the aggregate amount of cash received (directly or indirectly) from time to time
(whether as initial consideration or through the payment or disposition of deferred consideration)
by or on behalf of such Loan Party or such Subsidiary in connection with such issuance or
incurrence, after deducting therefrom only (i) reasonable fees, commissions, and expenses related
thereto and required to be paid by such Loan Party or such Subsidiary in connection with such
issuance or incurrence, and (ii) taxes paid or payable to any taxing authorities by such Loan Party
or such Subsidiary in connection with such issuance or incurrence, in each case to the extent, but
only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually
paid or payable to a Person that is not an Affiliate of any Loan Party or any of its Subsidiaries, and
are properly attributable to such transaction.
"Net Recovery Percentage" means, as of any date of determination, the percentage
of the book value of Borrowers' Inventory that is estimated to be recoverable in an orderly
liquidation of such Inventory net of all associated costs and expenses of such liquidation, such
percentage to be determined as to each category of Inventory and to be as specified in the most
recent Acceptable Appraisal of Inventory.
"NOLV" means, as of any date of determination, with respect to Eligible M&E of
any Person, the value of such Eligible M&E that is estimated to be recoverable in an orderly
liquidation of such Eligible M&E, net of all associated costs and expenses of such liquidation, as
determined based upon the most recent Acceptable Appraisal of M&E; provided that if such
Acceptable Appraisal does not provide the costs and expenses of such liquidation on an item by
item basis, then costs and expenses of liquidation for each item of Eligible M&E will be such
amount as determined by Agent in its Permitted Discretion.
"Non-Consenting Lender" has the meaning specified therefor in Section 14.2(a) of
this Agreement.
"Non-Defaulting Lender" means each Lender other than a Defaulting Lender.
"Notification Event" means (a) the occurrence of a "reportable event" described in
Section 4043 of ERISA for which the 30-day notice requirement has not been waived by applicable
regulations issued by the PBGC, (b) the withdrawal of any Loan Party or ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, (c) the termination of a Pension Plan, the filing of a notice of intent to
terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination, under
Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities, (d) the
institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension
Plan by the PBGC or any Pension Plan or Multiemployer Plan administrator, (e) any other event
or condition that would constitute grounds under Section 4042(a) of ERISA for the termination of,
or the appointment of a trustee to administer, any Pension Plan, (f) the imposition of a Lien
pursuant to the IRC or ERISA in connection with any Employee Benefit Plan or the existence of
any facts or circumstances that could reasonably be expected to result in the imposition of a Lien,
(g) the partial or complete withdrawal of any Loan Party or ERISA Affiliate from a Multiemployer
Plan (other than any withdrawal that would not constitute an Event of Default under Section 8.12),
(h) any event or condition that results in the reorganization or insolvency of a Multiemployer Plan
under Sections of ERISA, (i) any event or condition that results in the termination of a
Multiemployer Plan under Section 4041A of ERISA or the institution by the PBGC of proceedings
to terminate or to appoint a trustee to administer a Multiemployer Plan under ERISA, (j) any
Pension Plan being in "at risk status" within the meaning of IRC Section 430(i), (k) any
Multiemployer Plan being in "endangered status" or "critical status" within the meaning of IRC
Section 432(b) or the determination that any Multiemployer Plan is or is expected to be insolvent
or in reorganization within the meaning of Title IV of ERISA, (l) with respect to any Pension Plan,
any Loan Party or ERISA Affiliate incurring a substantial cessation of operations within the
meaning of ERISA Section 4062(e), (m) an "accumulated funding deficiency" within the meaning
of the IRC or ERISA (including Section 412 of the IRC or Section 302 of ERISA) or the failure
of any Pension Plan or Multiemployer Plan to meet the minimum funding standards within the
meaning of the IRC or ERISA (including Section 412 of the IRC or Section 302 of ERISA), in
each case, whether or not waived, (n) the filing of an application for a waiver of the minimum
funding standards within the meaning of the IRC or ERISA (including Section 412 of the IRC or
Section 302 of ERISA) with respect to any Pension Plan or Multiemployer Plan, (o) the failure to
make by its due date a required payment or contribution with respect to any Pension Plan or
Multiemployer Plan, (p) any event that results in or could reasonably be expected to result in a
liability by a Loan Party pursuant to Title I of ERISA or the excise tax provisions of the IRC
relating to any Employee Benefit Plans or any event that results in or could reasonably be expected
to result in a liability to any Loan Party or ERISA Affiliate pursuant to Title IV of ERISA or
Section 401(a)(29) of the IRC, or (q) any of the foregoing is reasonably likely to occur in the
following 30 days.
"Obligations" means (a) all loans (including the Term Loan and the Revolving
Loans (inclusive of Extraordinary Advances and Swing Loans)), debts, principal, interest
(including any interest that accrues after the commencement of an Insolvency Proceeding,
regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency
Proceeding), reimbursement or indemnification obligations with respect to Letters of Credit
(irrespective of whether contingent), premiums, liabilities (including all amounts charged to the
Loan Account pursuant to this Agreement), obligations (including indemnification obligations),
fees (including the fees provided for in the Fee Letter), Lender Group Expenses (including any
fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of
whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding),
guaranties, and all covenants and duties of any other kind and description owing by any Loan Party
arising out of, under, pursuant to, in connection with, or evidenced by this Agreement or any of
the other Loan Documents and irrespective of whether for the payment of money, whether direct
or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and
including all interest not paid when due and all other expenses or other amounts that any Loan
Party is required to pay or reimburse by the Loan Documents or by law or otherwise in connection
with the Loan Documents, and (b) all Bank Product Obligations; provided that, anything to the
contrary contained in the foregoing notwithstanding, the Obligations shall exclude any Excluded
Swap Obligation. Without limiting the generality of the foregoing, the Obligations of Borrowers
under the Loan Documents include the obligation to pay (i) the principal of the Revolving Loans
and the Term Loan, (ii) interest accrued on the Revolving Loans and the Term Loan, (iii) the
amount necessary to reimburse Issuing Bank for amounts paid or payable pursuant to Letters of
Credit, (iv) Letter of Credit commissions, fees (including fronting fees) and charges, (v) Lender
Group Expenses, (vi) fees payable under this Agreement or any of the other Loan Documents, and
(vii) indemnities and other amounts payable by any Loan Party under any Loan Document. Any
reference in this Agreement or in the Loan Documents to the Obligations shall include all or any
portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and
subsequent to any Insolvency Proceeding.
"OFAC" means The Office of Foreign Assets Control of the U.S. Department of
the Treasury.
"Originating Lender" has the meaning specified therefor in Section 13.1(e) of this
Agreement.
"Other Taxes" means all present or future stamp, court, excise, value added, or
documentary, intangible, recording, filing or similar Taxes that arise from any payment made
under, from the execution, delivery, performance, enforcement or registration of, from the receipt
or perfection of a security interest under, or otherwise with respect to, any Loan Document.
"Overadvance" means, as of any date of determination, that the Revolver Usage is
greater than any of the limitations set forth in Section 2.1 or Section 2.11 of this Agreement.
"Participant" has the meaning specified therefor in Section 13.1(e) of this
Agreement.
"Participant Register " has the meaning set forth in Section 13.1(i) of this
Agreement.
"Patent Security Agreement" has the meaning specified therefor in the Guaranty
and Security Agreement.
"Patriot Act" has the meaning specified therefor in Section 4.13 of this Agreement.
"Payment Conditions" means, at the time of determination with respect to a
proposed payment to fund a Specified Transaction, that:
(a)
no Default or Event of Default then exists or would arise as a result of the
consummation of such Specified Transaction,
(b)
both (A) the Fixed Charge Coverage Ratio of the Loan Parties and their
Subsidiaries is equal to or greater than 1.25:1.00 for the trailing 12 month period most recently
ended for which financial statements are required to have been delivered to Agent pursuant to
Schedule 5.1 to this Agreement (calculated on a
pro forma
Fixed Charge made on the last day of such 12 month period (it being understood that such proposed
payment shall also be a Fixed Charge made on the last day of such 12 month period for purposes
of calculating the Fixed Charge Coverage Ratio under this clause (ii) for any subsequent proposed
payment to fund a Specific Transaction)), and (B) Availability, (x) at all times during the 60
consecutive days immediately preceding the date of such proposed payment and the consummation
of such Specified Transaction, calculated on a
pro forma
made, and the Specified Transaction was consummated, on the first day of such period, and
(y) after giving effect to such proposed payment and Specified Transaction, in each case, is not
less than the greater of (X) 17.5% of the Maximum Revolver Amount, and (Y) $4,375,000, and
(c)
Administrative Borrower has delivered a certificate to Agent certifying that
all conditions described in clauses (a) and (b) above have been satisfied.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor agency.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to the provisions of Title IV or Section 302 of ERISA or Sections 412 or
430 of the Code sponsored, maintained, or contributed to by any Loan Party or ERISA Affiliate
or to which any Loan Party or ERISA Affiliate has any liability, contingent or otherwise.
"Perfection Certificate " means a certificate in the form of Exhibit P-1 to this
Agreement.
"Permitted Acquisition" means any Acquisition so long as:
(a)
no Default or Event of Default shall have occurred and be continuing or
would result from the consummation of the proposed Acquisition and the proposed Acquisition is
consensual,
(b)
no Indebtedness will be incurred, assumed, or would exist with respect to
any Loan Party or its Subsidiaries as a result of such Acquisition, other than Indebtedness permitted
under clauses (f), (g) or (o) of the definition of Permitted Indebtedness and no Liens will be
incurred, assumed, or would exist with respect to the assets of any Loan Party or its Subsidiaries
as a result of such Acquisition other than Permitted Liens,
(c)
Borrowers have provided Agent with written confirmation, supported by
reasonably detailed calculations, that on a
pro forma
pro forma
arising out of events which are directly attributable to such proposed Acquisition, are factually
supportable, and are expected to have a continuing impact, in each case, determined as if the
combination had been accomplished at the beginning of the relevant period; such eliminations and
inclusions to be mutually and reasonably agreed upon by Borrowers and Agent) created by adding
the historical combined financial statements of Borrowers (including the combined financial
statements of any other Person or assets that were the subject of a prior Permitted Acquisition
during the relevant period) to the historical consolidated financial statements of the Person to be
acquired (or the historical financial statements related to the assets to be acquired) pursuant to the
proposed Acquisition, the Loan Parties and their Subsidiaries (i) would have been in compliance
with the financial covenant(s) in Section 7 of this Agreement for the fiscal month]ended
immediately prior to the proposed date of consummation of such proposed Acquisition, and (ii) are
projected to be in compliance with the financial covenant(s) in Section 7 of this Agreement for
each of the twelve fiscal months in the period ended one year after the proposed date of
consummation of such proposed Acquisition,
(d)
Borrowers have provided Agent with its due diligence package relative to
the proposed Acquisition, including forecasted balance sheets, profit and loss statements, and cash
flow statements of the Person or assets to be acquired, all prepared on a basis consistent with such
Person's (or assets') historical financial statements, together with appropriate supporting details
and a statement of underlying assumptions for the one year period following the date of the
proposed Acquisition, on a quarter by quarter basis), in form and substance (including as to scope
and underlying assumptions) reasonably satisfactory to Agent,
(e)
the Payment Conditions are satisfied,
(f)
the assets being acquired or the Person whose Equity Interests are being
acquired did not have negative EBITDA during the 12 consecutive month period most recently
concluded prior to the date of the proposed Acquisition,
(g)
Borrowers have provided Agent with written notice of the proposed
Acquisition at least 15 Business Days prior to the anticipated closing date of the proposed
Acquisition and, not later than five Business Days prior to the anticipated closing date of the
proposed Acquisition, copies of the acquisition agreement and other material documents relative
to the proposed Acquisition, which agreement and documents must be reasonably acceptable to
Agent,
(h)
the assets being acquired (other than a
de minimis
relation to Borrowers' and their Subsidiaries' total assets), or the Person whose Equity Interests are
being acquired, are useful in or engaged in, as applicable, the business of the Loan Parties and their
Subsidiaries or a business reasonably related thereto,
(i)
the assets being acquired (other than a
de minimis
relation to the assets being acquired) are located within the United States, Canada or Mexico or
the Person whose Equity Interests are being acquired is organized in a jurisdiction located within
the United States, Canada or Mexico,
(j)
the subject assets or Equity Interests, as applicable, are being acquired
directly by a Borrower or one of its Subsidiaries that is a Loan Party, and, in connection therewith,
the applicable Loan Party shall have complied with Section 5.11 or 5.12 of this Agreement, as
applicable, of this Agreement and, in the case of an acquisition of Equity Interests, the Person
(other than a Mexican Subsidiary) whose Equity Interests are acquired shall become a Loan Party
and the applicable Loan Party shall have demonstrated to Agent that the new Loan Parties have
received consideration sufficient to make the joinder documents binding and enforceable against
such new Loan Parties, and
(k)
the purchase consideration payable in respect of all Permitted Acquisitions
(including the proposed Acquisition and including deferred payment obligations) shall not exceed
$10,000,000 in the aggregate; provided, that (i) the purchase consideration payable in respect of
any single Acquisition or series of related Acquisitions shall not exceed $5,000,000 in the
aggregate and (ii) the purchase consideration payable in respect of all Permitted Acquisitions of
Mexican Subsidiaries or of assets located in Mexico (including the proposed Acquisition and
including deferred payment obligations) shall not exceed $5,000,000 in the aggregate.
"Permitted Discretion" means a determination made in the exercise of reasonable
(from the perspective of a secured asset-based lender) business judgment.
"Permitted Dispositions" means:
(a)
sales, abandonment, or other dispositions of Equipment that is substantially
worn, damaged, or obsolete or no longer used or useful in the ordinary course of business (other
than Eligible M&E) and leases or subleases of Real Property not useful in the conduct of the
business of the Loan Parties and their Subsidiaries (other than Eligible Real Property),
(b)
sales of Inventory to buyers in the ordinary course of business,
(c)
the use or transfer of money or Cash Equivalents in a manner that is not
prohibited by the terms of this Agreement or the other Loan Documents,
(d)
the licensing, on a non-exclusive basis, of patents, trademarks, copyrights,
and other intellectual property rights in the ordinary course of business,
(e)
the granting of Permitted Liens,
(f)
the sale or discount, in each case without recourse, of accounts receivable
(other than Eligible Accounts) arising in the ordinary course of business, but only in connection
with the compromise or collection thereof,
(g)
any involuntary loss, damage or destruction of property,
(h)
any involuntary condemnation, seizure or taking, by exercise of the power
of eminent domain or otherwise, or confiscation or requisition of use of property,
(i)
the leasing or subleasing of assets of any Loan Party or its Subsidiaries in
the ordinary course of business (other than Eligible M&E and Eligible Real Property),
(j)
the sale or issuance of Equity Interests (other than Disqualified Equity
Interests) of Administrative Borrower,
(k)
(i) the lapse of registered patents, trademarks, copyrights and other
intellectual property of any Loan Party or any of its Subsidiaries to the extent not economically
desirable in the conduct of its business, or (ii) the abandonment of patents, trademarks, copyrights,
or other intellectual property rights in the ordinary course of business so long as (in each case
under clauses (i) and (ii)), (A) with respect to copyrights, such copyrights are not material revenue
generating copyrights, and (B) such lapse is not materially adverse to the interests of the Lender
Group,
(l)
the making of Restricted Payments that are expressly permitted to be made
pursuant to this Agreement,
(m)
the making of Permitted Investments,
(n)
so long as no Event of Default has occurred and is continuing or would
immediately result therefrom, transfers of assets (i) from any Loan Party or any of its Subsidiaries
to a Loan Party, and (ii) from any Subsidiary of any Loan Party that is not a Loan Party to any
other Subsidiary of any Loan Party,
(o)
sales or dispositions of Mexican Term Loan Collateral,
(p)
so long as the Citi Purchase Documents are in effect, the sale by Loan
Parties to Citibank, N.A. of Accounts owed by Xylem Inc. to Loan Parties pursuant to the Citi
Purchase Documents, and
(q)
sales or dispositions of fixed assets (including intangible property related to
such fixed assets) not otherwise permitted in clauses (a) through (n) above so long as made at fair
market value and the aggregate fair market value of all assets disposed of in fiscal year (including
the proposed disposition) would not exceed $500,000;
provided, that if, as of any date of determination, sales or dispositions by the Loan Parties during
the period of time from the first day of the month in which such date of determination occurs until
such date of determination, either individually or in the aggregate, involve $250,000 or more of
assets included in the Borrowing Base (based on the fair market value of the assets so disposed)
(the " Threshold Amount"), then Borrowers shall have, prior to consummation of the sale or
disposition that causes the assets included in the Borrowing that are disposed of during such period
to exceed the Threshold Amount, delivered to Agent an updated Borrowing Base Certificate that
reflects the removal of the applicable assets from the Borrowing Base.
"Permitted Indebtedness" means:
(a)
Indebtedness in respect of the Obligations,
(b)
Indebtedness as of the Closing Date set forth on Schedule 4.14 to this
Agreement and any Refinancing Indebtedness in respect of such Indebtedness,
(c)
Permitted Purchase Money Indebtedness and any Refinancing Indebtedness
in respect of such Indebtedness,
(d)
Indebtedness arising in connection with the endorsement of instruments or
other payment items for deposit,
(e)
Indebtedness consisting of (i) unsecured guarantees incurred in the ordinary
course of business with respect to surety and appeal bonds, performance bonds, bid bonds, appeal
bonds, completion guarantee and similar obligations; (ii) unsecured guarantees arising with respect
to customary indemnification obligations to purchasers in connection with Permitted Dispositions;
and (iii) unsecured guarantees with respect to Indebtedness of any Loan Party or one of its
Subsidiaries, to the extent that the Person that is obligated under such guaranty could have incurred
such underlying Indebtedness,
(f)
Indebtedness incurred in the ordinary course of business under
performance, surety, statutory, or appeal bonds,
(g)
Indebtedness owed to any Person providing property, casualty, liability, or
other insurance to any Loan Party or any of its Subsidiaries, so long as the amount of such
Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to
defer the cost of, such insurance for the year in which such Indebtedness is incurred and such
Indebtedness is outstanding only during such year,
(h)
the incurrence by any Loan Party or its Subsidiaries of Indebtedness under
Hedge Agreements that is incurred for the bona fide purpose of hedging the interest rate,
commodity, or foreign currency risks associated with such Loan Party's or such Subsidiary's
operations and not for speculative purposes,
(i)
Indebtedness incurred in the ordinary course of business in respect of credit
cards, credit card processing services, debit cards, stored value cards, commercial cards (including
so-called "purchase cards", "procurement cards" or "p-cards"), or Cash Management Services,
(j)
unsecured Indebtedness of any Loan Party owing to employees, former
employees, former officers, directors, or former directors (or any spouses, ex-spouses, or estates
of any of the foregoing) incurred in connection with the repurchase or redemption by such Loan
Party of the Equity Interests of Administrative Borrower that has been issued to such Persons, so
long as (i) no Default or Event of Default has occurred and is continuing or would result from the
incurrence of such Indebtedness, (ii) the aggregate amount of all such Indebtedness outstanding at
any one time does not exceed $200,000, and (iii) such Indebtedness is subordinated in right of
payment to the Obligations on terms and conditions reasonably acceptable to Agent,
(k)
Indebtedness comprising Permitted Intercompany Advances and other
Permitted Investments; provided, that, in the event and Permitted Intercompany Advances owed
by a Mexican Subsidiary to a Loan Party are evidenced by a promissory note, such note shall be
delivered to Agent as Collateral together with an endorsement,
(l)
unsecured Indebtedness incurred in respect of netting services, overdraft
protection, and other like services, in each case, incurred in the ordinary course of business,
(m)
accrual of interest, accretion or amortization of original issue discount, or
the payment of interest in kind, in each case, on Indebtedness that otherwise constitutes Permitted
Indebtedness, and
(n)
Subordinated Indebtedness, the aggregate outstanding amount of which
does not exceed $1,500,000,
(o)
Mexican Term Debt in an aggregate principal amount not to exceed
$18,500,000,
(p)
contingent liabilities in respect of any indemnification obligation,
adjustment of purchase price, non-compete, or similar obligation of any Loan Party incurred in
connection with the consummation of one or more Permitted Acquisitions,
(q)
Acquired Indebtedness in an aggregate outstanding amount not to exceed
$2,500,000,
(r)
Indebtedness of Mexican Subsidiaries in an aggregate outstanding amount
not to exceed $2,000,000, and
(s)
any other unsecured Indebtedness incurred by any Loan Party or any of its
Subsidiaries in an aggregate outstanding amount not to exceed $1,500,000 at any one time.
"Permitted Intercompany Advances" means loans made on or after the Closing Date
by (a) a Loan Party to another Loan Party, (b) a Subsidiary of a Loan Party that is not a Loan Party
to another Subsidiary of a Loan Party that is not a Loan Party, (c) a Subsidiary of a Loan Party that
is not a Loan Party to a Loan Party, so long as the parties thereto are party to the Intercompany
Subordination Agreement, (d) a Loan Party to a Mexican Subsidiary solely to the extent necessary
to fund BRP/Navistar Project Cap Ex permitted hereunder so long as (i) at the time of the making
of such loan, no Event of Default has occurred and is continuing or would result therefrom, and
(ii) the sum of Borrowers' Availability
plus
$1,500,000) is equal to or greater than $6,000,000 immediately after giving effect to each such
loan, and (e) a Loan Party to a Subsidiary of a Loan Party that is not a Loan Party so long as (i) the
aggregate amount of all such loans (by type, not by the borrower) does not exceed $3,500,000
outstanding at any one time, (ii) at the time of the making of such loan, no Event of Default has
occurred and is continuing or would result therefrom, and (iii) the sum of Borrowers' Availability
plus
$6,000,000 immediately after giving effect to each such loan.
"Permitted Investments" means:
(a)
Investments in cash and Cash Equivalents,
(b)
Investments in negotiable instruments deposited or to be deposited for
collection in the ordinary course of business,
(c)
advances made in connection with purchases of goods or services in the
ordinary course of business,
(d)
Investments received in settlement of amounts due to any Loan Party or any
of its Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any
of its Subsidiaries as a result of Insolvency Proceedings involving an account debtor or upon the
foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries,
(e)
Investments owned by any Loan Party or any of its Subsidiaries on the
Closing Date and set forth on Schedule P-1 to this Agreement,
(f)
guarantees permitted under the definition of Permitted Indebtedness,
(g)
Permitted Intercompany Advances,
(h)
Equity Interests or other securities acquired in connection with the
satisfaction or enforcement of Indebtedness or claims due or owing to a Loan Party or its
Subsidiaries (in bankruptcy of customers or suppliers or otherwise outside the ordinary course of
business) or as security for any such Indebtedness or claims,
(i)
deposits of cash made in the ordinary course of business to secure
performance of operating leases,
(j)
(i) non-cash loans and advances to employees, officers, and directors of a
Loan Party or any of its Subsidiaries for the purpose of purchasing Equity Interests in
Administrative Borrower so long as the proceeds of such loans are used in their entirety to purchase
such Equity Interests in Administrative Borrower, and (ii) loans and advances to employees and
officers of a Loan Party or any of its Subsidiaries in the ordinary course of business for any other
business purpose and in an aggregate amount not to exceed $200,000 at any one time,
(k)
Permitted Acquisitions,
(l)
Investments resulting from entering into (i) Bank Product Agreements, or
(ii) agreements relative to obligations permitted under clause (j) of the definition of Permitted
Indebtedness,
(m)
equity Investments by any Loan Party in any Subsidiary of such Loan Party
which is required by law to maintain a minimum net capital requirement or as may be otherwise
required by applicable law,
(n)
so long as no Event of Default has occurred and is continuing or would
result therefrom, any other Investments in an aggregate amount not to exceed $500,000 during the
term of this Agreement,
(o)
Investments consisting of non-cash consideration received in connection
with Permitted Dispositions, so long as the non-cash consideration received in connection with
any Permitted Disposition does not exceed 25% of the total consideration received in connection
with such Permitted Disposition, and
(p)
Investments held by a Person acquired in a Permitted Acquisition to the
extent that such Investments were not made in contemplation of or in connection with such
Permitted Acquisition and were in existence on the date of such Permitted Acquisition..
"Permitted Liens" means:
(a)
Liens granted to, or for the benefit of, Agent to secure the Obligations,
(b)
Liens for unpaid taxes, assessments, or other governmental charges or levies
that either (i) are not yet delinquent, or (ii) do not have priority over Agent's Liens and the
underlying taxes, assessments, or charges or levies are the subject of Permitted Protests,
(c)
judgment Liens arising solely as a result of the existence of judgments,
orders, requirements to pay issued by a Canadian Governmental Authority or awards that do not
constitute an Event of Default under Section 8.3 of this Agreement,
(d)
Liens set forth on Schedule P-2 to this Agreement; provided, that to qualify
as a Permitted Lien, any such Lien described on Schedule P-2 to this Agreement shall only secure
the Indebtedness that it secures on the Closing Date and any Refinancing Indebtedness in respect
thereof,
(e)
the interests of lessors under operating leases and non-exclusive licensors
under license agreements,
(f)
purchase money Liens on fixed assets or the interests of lessors under
Capital Leases to the extent that such Liens or interests secure Permitted Purchase Money
Indebtedness and so long as (i) such Lien attaches only to the fixed asset purchased or acquired
and the proceeds thereof, and (ii) such Lien only secures the Indebtedness that was incurred to
acquire the fixed asset purchased or acquired or any Refinancing Indebtedness in respect thereof,
(g)
Liens arising by operation of law in favor of warehousemen, landlords,
carriers, mechanics, materialmen, laborers, or suppliers, incurred in the ordinary course of business
and not in connection with the borrowing of money, and which Liens either (i) are for sums not
yet delinquent, or (ii) are the subject of Permitted Protests,
(h)
Liens on amounts deposited to secure any Borrower's and its Subsidiaries
obligations in connection with worker's compensation or other unemployment insurance,
(i)
Liens on amounts deposited to secure any Borrower's and its Subsidiaries
obligations in connection with the making or entering into of bids, tenders, or leases in the ordinary
course of business and not in connection with the borrowing of money,
(j)
Liens on amounts deposited to secure any Borrower's and its Subsidiaries
reimbursement obligations with respect to surety or appeal bonds obtained in the ordinary course
of business,
(k)
with respect to any Real Property, easements, rights of way, and zoning
restrictions that do not materially interfere with or impair the use or operation thereof,
(l)
non-exclusive licenses of patents, trademarks, copyrights, and other
intellectual property rights in the ordinary course of business,
(m)
Liens that are replacements of Permitted Liens to the extent that the original
Indebtedness (or any increases thereto as permitted hereunder) is the subject of permitted
Refinancing Indebtedness and so long as the replacement Liens only encumber those assets that
secured the original Indebtedness (or any increases thereto as permitted hereunder),
(n)
rights of setoff or bankers' liens upon deposits of funds in favor of banks or
other depository institutions, solely to the extent incurred in connection with the maintenance of
such Deposit Accounts in the ordinary course of business,
(o)
Liens granted in the ordinary course of business on the unearned portion of
insurance premiums securing the financing of insurance premiums to the extent the financing is
permitted under the definition of Permitted Indebtedness,
(p)
Liens in favor of customs and revenue authorities arising as a matter of law
to secure payment of customs duties in connection with the importation of goods,
(q)
Liens on the Mexican Term Loan Collateral securing the Mexican Term
Debt,
(r)
Liens assumed by any Loan Party or its Subsidiaries in connection with a
Permitted Acquisition that secure Acquired Indebtedness that is Permitted Indebtedness,
(s)
Liens on assets of the Mexican Subsidiaries as to which the aggregate
amount of the obligations secured thereby does not exceed $2,000,000;
(t)
so long as the Citi Purchase Documents are in effect, Liens on Accounts
owed by Xylem Inc. and its Subsidiaries and Affiliates to Loan Parties pursuant to the Citi
Purchase Documents and
(u)
other Liens which do not secure Indebtedness for borrowed money or letters
of credit and as to which the aggregate amount of the obligations secured thereby does not exceed
$250,000.
"Permitted Protest" means the right of any Loan Party or any of its Subsidiaries to
protest any Lien (other than any Lien that secures the Obligations), taxes (other than payroll taxes
or taxes that are the subject of a United States federal tax lien or a requirement to pay issued by a
Canadian Governmental Authority), or rental payment; provided, that (a) a reserve with respect to
such obligation is established on such Loan Party's or its Subsidiaries' books and records in such
amount as is required under GAAP, (b) any such protest is instituted promptly and prosecuted
diligently by such Loan Party or its Subsidiary, as applicable, in good faith, and (c) Agent is
satisfied, in its Permitted Discretion, that, while any such protest is pending, there will be no
impairment of the enforceability, validity, or priority of any of Agent's Liens.
"Permitted Purchase Money Indebtedness" means, as of any date of determination,
Indebtedness (other than the Obligations, but including Capitalized Lease Obligations), incurred
after the Closing Date and at the time of, or within 20 days after, the acquisition of any fixed assets
for the purpose of financing all or any part of the acquisition cost thereof, in an aggregate principal
amount outstanding at any one time not in excess of $5,000,000.
"Person" means natural persons, corporations, limited liability companies, limited
partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land trusts,
business trusts, or other organizations, irrespective of whether they are legal entities, and
governments and agencies and political subdivisions thereof.
"Platform" has the meaning specified therefor in Section 17.9(c) of this Agreement.
"Post-Increase Revolver Lenders" has the meaning specified therefor in Section
2.14 of this Agreement.
"PPSA" means the Personal Property Security Act (Ontario) and the regulations
thereunder, as from time to time in effect; provided, however, if attachment, perfection or priority
of Agent's Lien on any Collateral are governed by the personal property security laws of any
jurisdiction in Canada other than the laws of the Province of Ontario, "PPSA" means those personal
property security laws in such other jurisdiction in Canada for the purposes of the provisions hereof
relating to such attachment, perfection or priority and for the definitions related to such provisions.
"Pre-Increase Revolver Lenders" has the meaning specified therefor in Section 2.14
of this Agreement.
"Projections" means Borrowers' forecasted (a) balance sheets, (b) profit and loss
statements, and (c) cash flow statements, all prepared on a basis consistent with Borrowers'
historical financial statements, together with appropriate supporting details and a statement of
underlying assumptions.
"Pro Rata Share" means, as of any date of determination:
(a)
with respect to a Lender's obligation to make all or a portion of the
Revolving Loans, with respect to such Lender's right to receive payments of interest, fees, and
principal with respect to the Revolving Loans, and with respect to all other computations and other
matters related to the Revolver Commitments or the Revolving Loans, the percentage obtained by
dividing (i) the Revolving Loan Exposure of such Lender, by (ii) the aggregate Revolving Loan
Exposure of all Lenders,
(b)
with respect to a Lender's obligation to participate in the Letters of Credit,
with respect to such Lender's obligation to reimburse Issuing Bank, and with respect to such
Lender's right to receive payments of Letter of Credit Fees, and with respect to all other
computations and other matters related to the Letters of Credit, the percentage obtained by dividing
(i) the Revolving Loan Exposure of such Lender, by (ii) the aggregate Revolving Loan Exposure
of all Lenders; provided, that if all of the Revolving Loans have been repaid in full and all Revolver
Commitments have been terminated, but Letters of Credit remain outstanding, Pro Rata Share
under this clause shall be the percentage obtained by dividing (A) the Letter of Credit Exposure of
such Lender, by (B) the Letter of Credit Exposure of all Lenders,
(c)
with respect to a Lender's obligation to make all or a portion of the Initial
M/E Term Loan and the Additional M/E Term Loan, with respect to a Lender's right to receive
payments of interest, fees, and principal with respect to the M/E Term Loan, and with respect to
all other computations and other matters related to the M/E Term Loan Commitments or the M/E
Term Loan, the percentage obtained by dividing (i) the M/E Term Loan Exposure of such Lender,
by (ii) the aggregate M/E Term Loan Exposure of all Lenders,
(d)
with respect to a Lender's obligation to make all or a portion of the R/E
Term Loan, with respect to such Lender's right to receive payments of interest, fees, and principal
with respect to the R/E Term Loan, and with respect to all other computations and other matters
related to the R/E Term Loan Commitments or the R/E Term Loan, the percentage obtained by
dividing (i) the R/E Term Loan Exposure of such Lender, by (ii) the aggregate R/E Term Loan
Exposure of all Lenders, and
(e)
with respect to all other matters and for all other matters as to a particular
Lender (including the indemnification obligations arising under Section 15.7 of this Agreement),
the percentage obtained by dividing (i) the Revolving Loan Exposure, M/E Term Loan Exposure
and R/E Term Loan Exposure of such Lender, by (ii) the aggregate Revolving Loan Exposure,
M/E Term Loan Exposure and R/E Term Loan Exposure of all Lenders, in any such case as the
applicable percentage may be adjusted by assignments permitted pursuant to Section 13.1;
provided, that if all of the Loans have been repaid in full and all Commitments have been
terminated, Pro Rata Share under this clause shall be the percentage obtained by dividing (A) the
Letter of Credit Exposure of such Lender, by (B) the Letter of Credit Exposure of all Lenders.
"Protective Advances " has the meaning specified therefor in Section 2.3(d)(i) of
this Agreement.
"Public Lender" has the meaning specified therefor in Section 17.9(c) of this
Agreement.
"Qualified Cash" means, as of any date of determination, the amount of unrestricted
cash and Cash Equivalents of the Loan Parties and their Subsidiaries that is in Deposit Accounts
or in Securities Accounts, or any combination thereof, and which such Deposit Account or
Securities Account is the subject of a Control Agreement and is maintained by a branch office of
the bank or securities intermediary located within the United States or Canada.
"Qualified Equity Interests" means and refers to any Equity Interests issued by
Administrative Borrower (and not by one or more of its Subsidiaries) that is not a Disqualified
Equity Interest.
"QFC" has the meaning assigned to the term "qualified financial contract" in, and
shall be interpreted in accordance with, 12 U.S.C. § 5390(c)(8)(D).
"QFC Credit Support" has the meaning specified therefor in Section 17.15 of this
Agreement.
"Quebec Security Documents" means any hypothecs and all other security
documents governed by the laws of the Province of Quebec, each in form and substance reasonably
satisfactory to Agent, executed and delivered by a Loan Party to the Agent to secure the
Obligations, and each as amended, restated, supplemented or modified from time to time.
"R/E Borrowing Base" means the result of 60% of the FMV of Eligible Real
Property identified in the most recent Acceptable Appraisal of the Eligible Real Property.
"Real Property" means any estates or interests in real property now owned or
hereafter acquired by any Loan Party or one of its Subsidiaries and the improvements thereto.
"Real Property Collateral" means (a) the Real Property identified on Schedule R-1
to this Agreement, and (b) any Real Property hereafter acquired by any Loan Party or one of its
Subsidiaries (other than any Mexican Subsidiary) with a fair market value in excess of $1,500,000.
"Real Property Reserves" means, as of any date of determination, those reserves
that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section
2.1(c), to establish and maintain with respect to Eligible Real Property, including based on the
results of appraisals.
"Receivable Reserves" means, as of any date of determination, those reserves that
Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(c), to
establish and maintain (including Landlord Reserves for books and records locations and reserves
for rebates, discounts, warranty claims, and returns) with respect to the Eligible Accounts or the
Maximum Revolver Amount.
"Record" means information that is inscribed on a tangible medium or that is stored
in an electronic or other medium and is retrievable in perceivable form.
"Reference Period" has the meaning set forth in the definition of EBITDA.
"Refinancing Indebtedness" means refinancings, renewals, or extensions of
Indebtedness so long as:
(a)
such refinancings, renewals, or extensions do not result in an increase in the
principal amount of the Indebtedness so refinanced, renewed, or extended, other than by the
amount of premiums paid thereon and the fees and expenses incurred in connection therewith and
by the amount of unfunded commitments with respect thereto,
(b)
such refinancings, renewals, or extensions do not result in a shortening of
the final stated maturity or the average weighted maturity (measured as of the refinancing, renewal,
or extension) of the Indebtedness so refinanced, renewed, or extended, nor are they on terms or
conditions that, taken as a whole, are or could reasonably be expected to be materially adverse to
the interests of the Lenders,
(c)
if the Indebtedness that is refinanced, renewed, or extended was
subordinated in right of payment to the Obligations, then the terms and conditions of the
refinancing, renewal, or extension must include subordination terms and conditions that are at least
as favorable to the Lender Group as those that were applicable to the refinanced, renewed, or
extended Indebtedness,
(d)
the Indebtedness that is refinanced, renewed, or extended is not recourse to
any Person that is liable on account of the Obligations other than those Persons which were
obligated with respect to the Indebtedness that was refinanced, renewed, or extended,
(e)
if the Indebtedness that is refinanced, renewed or extended was unsecured,
such refinancing, renewal or extension shall be unsecured, and
(f)
if the Indebtedness that is refinanced, renewed, or extended was secured (i)
such refinancing, renewal, or extension shall be secured by substantially the same or less collateral
as secured such refinanced, renewed or extended Indebtedness on terms no less favorable to Agent
or the Lender Group and (ii) the Liens securing such refinancing, renewal or extension shall not
have a priority more senior than the Liens securing such Indebtedness that is refinanced, renewed
or extended.
"Register" has the meaning set forth in Section 13.1(h) of this Agreement.
"Registered Loan" has the meaning set forth in Section 13.1(h) of this Agreement.
"Related Fund" means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a
Lender, or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
"Relevant Governmental Body" means the Federal Reserve Board and/or the
Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal
Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
"Remedial Action" means all actions taken to (a) clean up, remove, remediate,
contain, treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor
or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous
Materials so they do not migrate or endanger or threaten to endanger public health or welfare or
the indoor or outdoor environment, (c) restore or reclaim natural resources or the environment,
(d) perform any pre-remedial studies, investigations, or post-remedial operation and maintenance
activities, or (e) conduct any other actions with respect to Hazardous Materials required by
Environmental Laws.
"Replacement Lender" has the meaning specified therefor in Section 2.13(b) of this
Agreement.
"Report" has the meaning specified therefor in Section 15.16 of this Agreement.
"Required Availability" means that the sum of (a) Excess Availability,
plus
(b) Qualified Cash exceeds $9,000,000.
"Required Lenders" means, at any time, Lenders having or holding more than 50%
of the sum of (a) the aggregate Revolving Loan Exposure of all Lenders,
plus
M/E Term Loan Exposure of all Lenders
Lenders; provided, that (i) the Revolving Loan Exposure, M/E Term Loan Exposure and R/E Term
Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Required
Lenders, and (ii) at any time there are two or more Lenders (who are not Affiliates of one another
or Defaulting Lenders), "Required Lenders" must include at least two Lenders (who are not
Affiliates of one another).
"Reserves" means, as of any date of determination, Inventory Reserves, M&E
Reserves, Real Property Reserves, Receivable Reserves, Bank Product Reserves, Canadian
Priority Payables Reserves and those other reserves that Agent deems necessary or appropriate, in
its Permitted Discretion and subject to Section 2.1(c), to establish and maintain (including reserves
with respect to (a) sums that any Loan Party or its Subsidiaries are required to pay under any
Section of this Agreement or any other Loan Document (such as taxes, assessments, insurance
premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and
has failed to pay, and (b) amounts owing by any Loan Party or its Subsidiaries to any Person to
the extent secured by a Lien on, or trust over, any of the Collateral (other than a Permitted Lien),
which Lien or trust, in the Permitted Discretion of Agent likely would have a priority superior to
the Agent's Liens (such as Liens or trusts in favor of landlords, warehousemen, carriers, mechanics,
materialmen, laborers, or suppliers, or Liens or trusts for ad valorem, excise, sales, or other taxes
where given priority under applicable law) in and to such item of the Collateral) with respect to
the Borrowing Base or the Maximum Revolver Amount.
"Restricted Payment" means (a) any declaration or payment of any dividend or the
making of any other payment or distribution, directly or indirectly, on account of Equity Interests
issued by Administrative Borrower or any of its Subsidiaries (including any payment in connection
with any merger, amalgamation or consolidation involving Administrative Borrower) or to the
direct or indirect holders of Equity Interests issued by Administrative Borrower or any of its
Subsidiaries in their capacity as such (other than dividends or distributions payable in Qualified
Equity Interests issued by Administrative Borrower or any of its Subsidiaries, or (b) any purchase,
redemption, making of any sinking fund or similar payment, or other acquisition or retirement for
value (including in connection with any merger, amalgamation or consolidation involving
Administrative Borrower) any Equity Interests issued by Administrative Borrower or any of its
Subsidiaries, or (c) any making of any payment to retire, or to obtain the surrender of, any
outstanding warrants, options, or other rights to acquire Equity Interests of Administrative
Borrower now or hereafter outstanding.
"R/E Term Loan" has the meaning specified therefor in Section 2.2(b) of this
Agreement.
"R/E Term Loan Amount" means $9,500,000.
"R/E Term Loan Commitment" means, with respect to each Lender, its R/E Term
Loan Commitment, and, with respect to all Lenders, their R/E Term Loan Commitments, in each
case as such Dollar amounts are set forth beside such Lender's name under the applicable heading
on Schedule C-1 to this Agreement or in the Assignment and Acceptance pursuant to which such
Lender became a Lender under this Agreement, as such amounts may be reduced or increased from
time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of
this Agreement.
"R/E Term Loan Exposure" means, with respect to any R/E Term Loan Lender, as
of any date of determination (a) prior to the funding of the Loan, the amount of such Lender's R/E
Term Loan Commitment, and (b) after the funding of the R/E Term Loan, the outstanding principal
amount of the R/E Term Loan held by such Lender.
"Revaluation Date" means (a) with respect to any Revolving Loan denominated in
US Dollars, each of the following: (i) each date of a Borrowing of such Revolving Loan, (ii) each
date of a continuation of such Revolving Loan pursuant to Section 2.12, and (iii) such additional
dates as Agent shall determine or the Required Lenders shall require, (b) with respect to any Letter
of Credit denominated in US Dollars, each of the following: (i) each date of issuance of such
Letter of Credit, (ii) each date of an amendment of such Letter of Credit having the effect of
increasing the amount thereof, (iii) each date of any payment by an Issuing Lender under such
Letter of Credit , and (iv) such additional dates as Agent or an Issuing Lender shall determine or
the Required Lenders shall require, and (c) with respect to any other Obligations denominated in
US Dollars, each date as Agent shall determine unless otherwise prescribed in this Agreement or
any other Loan Documents.
"Revolver Commitment" means, with respect to each Revolving Lender, its
Revolver Commitment, and, with respect to all Revolving Lenders, their Revolver Commitments,
in each case as such Dollar amounts are set forth beside such Revolving Lender's name under the
applicable heading on Schedule C-1 to this Agreement or in the Assignment and Acceptance or
Increase Joinder pursuant to which such Revolving Lender became a Revolving Lender under this
Agreement, as such amounts may be reduced or increased from time to time pursuant to
assignments made in accordance with the provisions of Section 13.1 of this Agreement, and as
such amounts may be decreased by the amount of reductions in the Revolver Commitments made
in accordance with Section 2.4(c) hereof.
"Revolver Usage" means, as of any date of determination, the sum of (a) the amount
of outstanding Revolving Loans (inclusive of Swing Loans and Protective Advances),
plus
amount of the Letter of Credit Usage.
"Revolving Lender" means a Lender that has a Revolving Loan Exposure or Letter
of Credit Exposure.
"Revolving Loan Base Rate Margin" has the meaning set forth in the definition of
Applicable Margin.
"Revolving Loan Exposure " means, with respect to any Revolving Lender, as of
any date of determination (a) prior to the termination of the Revolver Commitments, the amount
of such Lender's Revolver Commitment, and (b) after the termination of the Revolver
Commitments, the aggregate outstanding principal amount of the Revolving Loans of such Lender.
"Revolving Loan LIBOR Rate Margin" has the meaning set forth in the definition
of Applicable Margin.
"Revolving Loans" has the meaning specified therefor in Section 2.1(a) of this
Agreement.
"Sanctioned Entity" means (a) a country or territory or a government of a country
or territory, (b) an agency of the government of a country or territory, (c) an organization directly
or indirectly controlled by a country or territory or its government, or (d) a Person resident in or
determined to be resident in a country or territory, in each case of clauses (a) through (d) that is a
target of Sanctions, including a target of any country sanctions program administered and enforced
by OFAC.
"Sanctioned Person " means, at any time (a) any Person named on the list of
Specially Designated Nationals and Blocked Persons maintained by OFAC, OFAC's consolidated
Non-SDN list or any other Sanctions-related list maintained by any Governmental Authority, (b) a
Person or legal entity that is a target of Sanctions, (c) any Person operating, organized or resident
in a Sanctioned Entity, or (d) any Person directly or indirectly owned or controlled (individually
or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a)
through (c) above.
"Sanctions" means individually and collectively, respectively, any and all economic
sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade
embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those
imposed, administered or enforced from time to time by: (a) the United States of America,
including those administered by OFAC, the U.S. Department of State, the U.S. Department of
Commerce, or through any existing or future executive order, (b) the United Nations Security
Council, (c) the Government of Canada, (d) the European Union or any European Union member
state, (e) Her Majesty's Treasury of the United Kingdom, or (f) any other Governmental Authority
with jurisdiction over any member of Lender Group or any Loan Party or any of their respective
Subsidiaries or Affiliates.
"S&P" has the meaning specified therefor in the definition of Domestic Cash
Equivalents.
"SEC" means the United States Securities and Exchange Commission and any
successor thereto.
"Securities Account" means a securities account (as that term is defined in the
Code).
"Securities Act" means the Securities Act of 1933, as amended from time to time,
and any successor statute.
"Settlement" has the meaning specified therefor in Section 2.3(e)(i) of this
Agreement.
"Settlement Date" has the meaning specified therefor in Section 2.3(e)(i) of this
Agreement.
"SOFR" with respect to any day means the secured overnight financing rate
published for such day by the Federal Reserve Bank of New York, as the administrator of the
benchmark, (or a successor administrator) on the Federal Reserve Bank of New York's Website.
"Solvent" means, with respect to any Person as of any date of determination, that
(a) at fair valuations, the sum of such Person's debts (including contingent liabilities) is less than
all of such Person's assets, (b) such Person is not engaged or about to engage in a business or
transaction for which the remaining assets of such Person are unreasonably small in relation to the
business or transaction or for which the property remaining with such Person is an unreasonably
small capital, (c) such Person has not incurred and does not intend to incur, or reasonably believe
that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity
or otherwise), and (d) such Person is "solvent" or not "insolvent", as applicable within the meaning
given those terms and similar terms under applicable laws relating to bankruptcy, insolvency,
fraudulent transfers and conveyances. For purposes of this definition, the amount of any
contingent liability at any time shall be computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability (irrespective of whether such contingent liabilities meet the
criteria for accrual under Statement of Financial Accounting Standard No. 5).
"Specified State" means any one of (a) the United States and (b) Canada.
"Specified Transaction" means, any Investment, or Restricted Payment (or
declaration of any prepayment or Restricted Payment).
"Spot Rate" means, for a currency, the rate determined by Agent to be the rate
quoted by Wells Fargo acting in such capacity as the spot rate for the purchase by Wells Fargo of
such currency with another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. (New York time) on the date two Business Days prior to the date as of
which the foreign exchange computation is made; provided, that Agent may obtain such spot rate
from another financial institution designated by Agent if Wells Fargo acting in such capacity does
not have as of the date of determination a spot buying rate for any such currency.
"STA" means the Securities Transfer Act, 2006 (Ontario) or to the extent
applicable, comparable legislation in other Canadian provinces.
"Standard Letter of Credit Practice" means, for Issuing Bank, any domestic or
foreign law or letter of credit practices applicable in the city in which Issuing Bank issued the
applicable Letter of Credit or, for its branch or correspondent, such laws and practices applicable
in the city in which it has advised, confirmed or negotiated such Letter of Credit, as the case may
be, in each case, (a) which letter of credit practices are of banks that regularly issue letters of credit
in the particular city, and (b) which laws or letter of credit practices are required or permitted under
ISP or UCP, as chosen in the applicable Letter of Credit.
"Subject Holder" has the meaning specified therefor in Section 2.4(e)(v) of this
Agreement.
"Subordinated Indebtedness" means any Indebtedness of any Loan Party or its
Subsidiaries incurred from time to time that is subordinated in right of payment to the Obligations
and is subject to a subordination agreement acceptable to Agent or contains terms and conditions
of subordination that are acceptable to Agent.
"Subsidiary" of a Person means a corporation, partnership, limited liability
company, unlimited liability company or other entity in which that Person directly or indirectly
owns or controls the Equity Interests having ordinary voting power to elect a majority of the Board
of Directors of such corporation, partnership, limited liability company, or other entity.
"Supermajority Lenders" means, at any time, Revolving Lenders having or holding
more than 66 2/3% of the aggregate Revolving Loan Exposure of all Revolving Lenders; provided,
that (i) the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the
determination of the Supermajority Lenders, and (ii) at any time there are two or more Revolving
Lenders (who are not Affiliates of one another), "Supermajority Lenders" must include at least two
Revolving Lenders (who are not Affiliates of one another or Defaulting Lenders).
"Supported QFC" has the meaning specified therefor in Section 17.15 of this
Agreement.
"Swap Obligation" means, with respect to any Loan Party, any obligation to pay or
perform under any agreement, contract or transaction that constitutes a "swap" within the meaning
of section 1a(47) of the Commodity Exchange Act.
"Swing Lender" means Wells Fargo or any other Lender that, at the request of
Borrowers and with the consent of Agent agrees, in such Lender's sole discretion, to become the
Swing Lender under Section 2.3(b) of this Agreement.
"Swing Loan" has the meaning specified therefor in Section 2.3(b) of this
Agreement.
"Swing Loan Exposure" means, as of any date of determination with respect to any
Lender, such Lender's Pro Rata Share of the Swing Loans on such date.
"Taxes" means any taxes, levies, imposts, duties, fees, assessments or other charges
of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein, and all interest, penalties or similar liabilities with respect
thereto.
"Tax Lender " has the meaning specified therefor in Section 14.2(a) of this
Agreement.
"Term Loans" means the M/E Term Loan and the R/E Term Loan.
"Term Loan Base Rate Margin" has the meaning set forth in the definition of
Applicable Margin.
"Term Loan Lender" means a Lender that has a M/E Term Loan Commitment or a
R/E Term Loan Commitment or that has a portion of the M/E Term Loan or R/E Term Loan.
"Term Loan LIBOR Rate Margin" has the meaning set forth in the definition of
Applicable Margin.
"Term SOFR" means the forward-looking term rate based on SOFR that has been
selected or recommended by the Relevant Governmental Body.
"Tooling" means the machine tooling and components, such as jigs, gauges, molds,
dies and cutting equipment and patterns, used by a Person in the manufacture and production of
Inventory.
"Trademark Security Agreement" has the meaning specified therefor in the
Guaranty and Security Agreement.
"UCP" means, with respect to any Letter of Credit, the Uniform Customs and
Practice for Documentary Credits 2007 Revision, International Chamber of Commerce Publication
No. 600 and any version or revision thereof accepted by Issuing Bank for use.
"Unadjusted Benchmark Replacement" means the Benchmark Replacement
excluding the Benchmark Replacement Adjustment.
"Unfinanced Capital Expenditures" means Capital Expenditures (a) not financed
with the proceeds of any incurrence of Indebtedness (other than the incurrence of any Revolving
Loans), the proceeds of any sale or issuance of Equity Interests or equity contributions, the
proceeds of any asset sale (other than the sale of Inventory in the ordinary course of business) or
any insurance proceeds, and (b) that are not reimbursed by a third person (excluding any Loan
Party or any of its Affiliates) in the period such expenditures are made pursuant to a written
agreement; provided, that, Unfinanced Capital Expenditures shall exclude BRP/Navistar Project
Cap Ex incurred on or prior to December 31, 2022.
"United States" or "US" or "U.S." means the United States of America.
"Unused Line Fee" has the meaning specified therefor in Section 2.10(b) of this
Agreement.
"U.S. Special Resolution Regimes" has the meaning specified therefor in Section
17.15 of this Agreement.
"Voidable Transfer" has the meaning specified therefor in Section 17.8 of this
Agreement.
"Wells Fargo " means Wells Fargo Bank, National Association, a national banking
association.
"Withdrawal Liability" means liability with respect to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined
in Part I of Subtitle E of Title IV of ERISA.
"Write-Down and Conversion Powers" means, with respect to any EEA Resolution
Authority, the write-down and conversion powers of such EEA Resolution Authority from time to
time under the Bail-In Legislation for the applicable EEA Member Country, which write -down
and conversion powers are described in the EU Bail-In Legislation Schedule.
1.2.
Accounting Terms
. All accounting terms not specifically defined herein shall
be construed in accordance with GAAP; provided, that if Administrative Borrower notifies Agent
that Borrowers request an amendment to any provision hereof to eliminate the effect of any
Accounting Change occurring after the Closing Date or in the application thereof on the operation
of such provision (or if Agent notifies Administrative Borrower that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of whether any such notice is
given before or after such Accounting Change or in the application thereof, then Agent and
Borrowers agree that they will negotiate in good faith amendments to the provisions of this
Agreement that are directly affected by such Accounting Change with the intent of having the
respective positions of the Lenders and Borrowers after such Accounting Change conform as
nearly as possible to their respective positions immediately before such Accounting Change took
effect and, until any such amendments have been agreed upon and agreed to by the Required
Lenders, the provisions in this Agreement shall be calculated as if no such Accounting Change
had occurred. When used herein, the term "financial statements" shall include the notes and
schedules thereto. Whenever the term "Borrowers" is used in respect of a financial covenant or a
related definition, it shall be understood to mean the Loan Parties and their Subsidiaries on a
consolidated basis, unless the context clearly requires otherwise. Notwithstanding anything to the
contrary contained herein, (a) all financial statements delivered hereunder shall be prepared, and
all financial covenants contained herein shall be calculated, without giving effect to any election
under the Statement of Financial Accounting Standards Board's Accounting Standards
Codification Topic 825 (or any similar accounting principle) permitting a Person to value its
financial liabilities or Indebtedness at the fair value thereof, and (b) the term "unqualified opinion"
as used herein to refer to opinions or reports provided by accountants shall mean an opinion or
report that is (i) unqualified, and (ii) does not include any explanation, supplemental comment, or
other comment concerning the ability of the applicable Person to continue as a going concern or
concerning the scope of the audit.
1.3.
Code; PPSA
. Any terms used in this Agreement that are defined in (a) the
Code shall be construed and defined as set forth in the Code unless otherwise defined herein;
provided, that to the extent that the Code is used to define any term herein and such term is defined
differently in different Articles of the Code, the definition of such term contained in Article 9 of
the Code shall govern, and (b) the PPSA shall be construed and defined as set forth in the PPSA
unless otherwise defined herein when used in relation to Collateral subject to the PPSA.
Notwithstanding the foregoing, and where the context so requires, (i) any term defined in this
Agreement by reference to the "Code", the "UCC" or the "Uniform Commercial Code" shall also
have any extended, alternative or analogous meaning given to such term in applicable Canadian
personal property security and other laws (including, without limitation, the PPSA, the
Bills of
Exchange Act
Depository Bills and Notes Act
extension, preservation or betterment of the security and rights of the Collateral, (ii) all references
in this Agreement to "Article 8" shall be deemed to refer also to applicable Canadian securities
transfer laws (including, without limitation, the STA), (iii) all references in this Agreement to a
financing statement, continuation statement, amendment or termination statement shall be deemed
to refer also to the analogous documents used under the PPSA, (iv) all references to the United
States of America, or to any subdivision, department, agency or instrumentality thereof shall be
deemed to refer also to Canada, or to any subdivision, department, agency or instrumentality
thereof, and (v) all references to federal or state securities law of the United States shall be deemed
to refer also to analogous federal (where applicable) and provincial securities laws in Canada.
1.4.
Construction
. Unless the context of this Agreement or any other Loan
Document clearly requires otherwise, references to the plural include the singular, references to
the singular include the plural, the terms "includes" and "including" are not limiting, and the term
"or" has, except where otherwise indicated, the inclusive meaning represented by the phrase
"and/or." The words "hereof," "herein," "hereby," "hereunder," and similar terms in this
Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as
the case may be, as a whole and not to any particular provision of this Agreement or such other
Loan Document, as the case may be. Section, subsection, clause, schedule, and exhibit references
herein are to this Agreement unless otherwise specified. Any reference in this Agreement or in
any other Loan Document to any agreement, instrument, or document shall include all alterations,
amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders,
and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations,
amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders,
and supplements set forth herein). The words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible assets and
properties. All references to "province" or like terms shall include "territory" and like terms. Any
reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full
of the Obligations shall mean (a) the payment or repayment in full in immediately available funds
of (i) the principal amount of, and interest accrued and unpaid with respect to, all outstanding
Loans, together with the payment of any premium applicable to the repayment of the Loans, (ii) all
Lender Group Expenses that have accrued and are unpaid regardless of whether demand has been
made therefor, and (iii) all fees or charges that have accrued hereunder or under any other Loan
Document (including the Letter of Credit Fee and the Unused Line Fee) and are unpaid, (b) in the
case of contingent reimbursement obligations with respect to Letters of Credit, providing Letter of
Credit Collateralization, (c) in the case of obligations with respect to Bank Products (other than
Hedge Obligations), providing Bank Product Collateralization, (d) the receipt by Agent of cash
collateral in order to secure any other contingent Obligations for which a claim or demand for
payment has been made on or prior to such time or in respect of matters or circumstances known
to Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage,
or expense (including attorneys' fees and legal expenses), such cash collateral to be in such amount
as Agent reasonably determines is appropriate to secure such contingent Obligations, (e) the
payment or repayment in full in immediately available funds of all other outstanding Obligations
(including the payment of any termination amount then applicable (or which would or could
become applicable as a result of the repayment of the other Obligations) under Hedge Agreements
provided by Hedge Providers) other than (i) unasserted contingent indemnification Obligations,
(ii) any Bank Product Obligations (other than Hedge Obligations) that, at such time, are allowed
by the applicable Bank Product Provider to remain outstanding without being required to be repaid
or cash collateralized, and (iii) any Hedge Obligations that, at such time, are allowed by the
applicable Hedge Provider to remain outstanding without being required to be repaid, and (f) the
termination of all of the Commitments of the Lenders. Any reference herein to any Person shall
be construed to include such Person's successors and assigns. Any requirement of a writing
contained herein or in any other Loan Document shall be satisfied by the transmission of a Record.
1.5.
Time References
. Unless the context of this Agreement or any other Loan
Document clearly requires otherwise, all references to time of day refer to Central standard time
or Central daylight saving time, as in effect in Chicago, Illinois on such day. For purposes of the
computation of a period of time from a specified date to a later specified date, unless otherwise
expressly provided, the word "from" means "from and including" and the words "to" and "until"
each means "to and including"; provided, that with respect to a computation of fees or interest
payable to Agent or any Lender, such period shall in any event consist of at least one full day.
1.6.
Schedules and Exhibits
. All of the schedules and exhibits attached to this
Agreement shall be deemed incorporated herein by reference.
1.7.
Divisions
. For all purposes under the Loan Documents, in connection with any
division or plan of division under Delaware law (or any comparable event under a different
jurisdiction's laws): (a) if any asset, right, obligation or liability of any Person becomes the asset,
right, obligation or liability of a different Person, then it shall be deemed to have been transferred
from the original Person to the subsequent Person, and (b) if any new Person comes into existence,
such new Person shall be deemed to have been organized on the first date of its existence by the
holders of its Equity Interests at such time.
1.8.
Exchange Rates; Currency Equivalents; Applicable Currency
. For
purposes of this Agreement and the other Loan Documents, the Dollar Equivalent of the Revolving
Loans, Letters of Credit, other Obligations and other references to amounts denominated in a
currency other than US Dollars shall be determined in accordance with the terms of this
Agreement. Such US Dollar Equivalent shall become effective as of such Revaluation Date for
such Revolving Loans, Letters of Credit and other Obligations and shall be the US Dollar
Equivalent employed in converting any amounts between the applicable currencies until the next
Revaluation Date to occur for such Revolving Loans, Letters of Credit and other Obligations.
Except as otherwise expressly provided herein or in the applicable other Loan Document, the
applicable amount of any currency for purposes of this Agreement and the other Loan Documents
(including all calculations in connection with the covenants, including the financial covenants)
shall be the US Dollar Equivalent thereof, and for the purpose of such calculations, comparisons,
measurements or determinations, amounts denominated in currencies other than US Dollars shall
be converted into the US Dollar Equivalent of such amount on the date of calculation, comparison,
measurement or determination. Notwithstanding the foregoing, for the purposes of financial
statements and any components of the financial covenant contained in Section 7) derived
therefrom, in each case prepared by Borrowers, the US Dollar Equivalent of each amount in a
currency other than US Dollars shall be determined in accordance with GAAP.
1.9.
Quebec Interpretation
. For all purposes of any assets, liabilities or entities
located in the Province of Quebec and for all purposes pursuant to which the interpretation or
construction of this Agreement may be subject to the laws of the Province of Quebec or a court or
tribunal exercising jurisdiction in the Province of Quebec, (a) "personal property" shall include
"movable property", (b) "real property" shall include "immovable property", (c) "tangible
property" shall include "corporeal property", (d) "intangible property" shall include "incorporeal
property", (e) "security interest", "mortgage" and "lien" shall include a "hypothec", "prior claim"
and a "resolutory clause", (f) all references to filing, registering or recording under the Code or
PPSA shall include publication under the Civil Code of Quebec, (g) all references to "perfection"
of or "perfected" liens or security interest shall include a reference to an "opposable" or "set up"
lien or security interest as against third parties, (h) any "right of offset", "right of setoff' or similar
expression shall include a "right of compensation", (i) "goods" shall include corporeal movable
property" other than chattel paper, documents of title, instruments, money and securities, (j) an
"agent" shall include a "mandatary", (k) "construction liens" shall include "legal hypothecs",
(l) "joint and several" shall include solidary, (m) "gross negligence or willful misconduct" shall be
deemed to be "intentional or gross fault", (n) "beneficial ownership" shall include "ownership on
behalf of another as mandatary", (o) "easement" shall include "servitude", (p) "priority" shall
include "prior claim", (q) "survey" shall include "certificate of location and plan", and (r) "fee
simple title" shall include "absolute ownership."
2.
LOANS AND TERMS OF PAYMENT.
2.1.
Revolving Loans
.
(a)
Subject to the terms and conditions of this Agreement, and during the term
of this Agreement, each Revolving Lender agrees (severally, not jointly or jointly and severally)
to make revolving loans in Dollars ("Revolving Loans") to Borrowers in an amount at any one
time outstanding not to exceed
the lesser of
:
(i)
such Lender's Revolver Commitment, or
(ii)
such Lender's Pro Rata Share of an amount equal to the lesser of:
(A)
the amount equal to (1) the Maximum Revolver Amount,
less
plus
Swing Loans outstanding at such time, and
(B)
the amount equal to (1) the Borrowing Base as of such date
(based upon the most recent Borrowing Base Certificate delivered by Borrowers to Agent, as
adjusted for Reserves established by Agent in accordance with Section 2.1(c)),
less
(x) the Letter of Credit Usage at such time,
plus
outstanding at such time.
(b)
Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject
to the terms and conditions of this Agreement, reborrowed at any time during the term of this
Agreement. The outstanding principal amount of the Revolving Loans, together with interest
accrued and unpaid thereon, shall constitute Obligations and shall be due and payable on the
Maturity Date or, if earlier, on the date on which they otherwise become due and payable pursuant
to the terms of this Agreement.
(c)
Anything to the contrary in this Section 2.1 notwithstanding, Agent shall
have the right (but not the obligation) at any time, in the exercise of its Permitted Discretion, to
establish and increase or decrease Reserves and against the Borrowing Base or the Maximum
Revolver Amount. The amount of any Reserve established by Agent, and any changes to the
eligibility criteria set forth in the definitions of Eligible Accounts, Eligible Inventory, Eligible
M&E, and Eligible Real Property shall have a reasonable relationship to the event, condition, other
circumstance, or fact that is the basis for such reserve or change in eligibility and shall not be
duplicative of any other reserve established and currently maintained or eligibility criteria.
2.2.
Term Loans
.
(a)
Subject to the terms and conditions of this Agreement, (i) on the Closing
Date each Lender with a M/E Term Loan Commitment agrees (severally, not jointly or jointly and
severally) to make term loans (collectively, the "Initial M/E Term Loan") to Borrowers in an
amount equal to the lesser of (a) such L ender's M/E Term Loan Commitment, and (b) such
Lender's Pro Rata Share of the lesser of (x) the M/E Term Loan Amount and (y) the M&E
Borrowing Base and (ii) after the Closing Date and prior to April 27, 2022 and subject to the receipt
by Agent of an Acceptable Appraisal with respect to the Eligible M&E after the Closing Date and
within three months prior to the date of the funding of the Additional M/E Term Loan, each Lender
with an M/E Term Loan Commitment agrees (severally, not jointly or jointly and severally) to
make a single additional term loan (the "Additional M/E Term Loan") to Borrowers in an amount
equal to the lesser of (a) such Lender's M/E Term Loan Commitment less the outstanding principal
amount of the Initial M/E Term Loan held by such Lender, and (b) such Lender's Pro Rata Share
of the lesser of (x) the Additional M/E Term Loan Amount and (y) the M&E Borrowing Base
(based upon the then most recently received Acceptable Appraisal of Eligible M/E) less the then
outstanding principal balance of the Initial M/E Term Loan. The principal of the M/E Term Loan
shall be repaid on the following dates and in the following amounts:
Date
Installment Amount
(prior to funding of the
Additional M/E Term
Loan)
Installment Amount
(after the funding of
the Additional M/E
Term Loan)
November 30, 2020 and
the last day of each
month through and
including November 30,
2024
$86,785.71
1/84th of the principal
amount of the M/E
Term Loan
immediately after the
funding of the
Additional M/E Term
Loan
The outstanding unpaid principal balance and all accrued and unpaid interest on the M/E Term
Loan shall be due and payable on the earlier of (x) the Maturity Date, and (y) the date on which
the M/E Term Loan otherwise becomes due and payable pursuant to the terms of this Agreement.
Any principal amount of the M/E Term Loan that is repaid or prepaid may not be reborrowed
except as expressly provided by clause (ii) above with respect to the Additional M/E Term Loan.
All principal of, interest on, and other amounts payable in respect of the M/E Term Loan shall
constitute Obligations hereunder.
(b)
Subject to the terms and conditions of this Agreement, on the Closing Date
each Lender with a R/E Term Loan Commitment agrees (severally, not jointly or jointly and
severally) to make term loans (collectively, the "R/E Term Loan") to Borrowers in an amount
equal to the lesser of (a) such Lender's R/E Term Loan Commitment, and (b) such Lender's Pro
Rata Share of the lesser of (i) the R/E Term Loan Amount and (ii) the R/E Borrowing Base (based
upon the R/E Borrowing Base Certificate delivered by Borrowers to Agent on the Closing Date).
The principal of the R/E Term Loan shall be repaid on the following dates and in the following
amounts:
Date
Installment Amount
November 30, 2020 and the last
day of each month through and
including November 30, 2024
$113,095.24
The outstanding unpaid principal balance and all accrued and unpaid interest on the R/E Term
Loan shall be due and payable on the earlier of (i) the Maturity Date, and (ii) the date on which
the R/E Term Loan otherwise becomes due and payable pursuant to the terms of this Agreement.
Any principal amount of the R/E Term Loan that is repaid or prepaid may not be reborrowed. All
principal of, interest on, and other amounts payable in respect of the R/E Term Loan shall
constitute Obligations hereunder.
2.3.
Borrowing Procedures and Settlements
.
(a)
Procedure for Borrowing Revolving Loans and Term Loans
.
(i)
Each Borrowing shall be made by a written request by an Authorized
Person delivered to Agent (which may be delivered through Agent's electronic platform or portal)
and received by Agent no later than 1:00 p.m. (i) on the Business Day that is the requested Funding
Date in the case of a request for a Swing Loan, (ii) on the Business Day that is one Business Day
prior to the requested Funding Date in the case of a request for a Base Rate Loan, and (iii) on the
Business Day that is three Business Days prior to the requested Funding Date in the case of all
other requests, specifying (A) the amount of such Borrowing, and (B) the requested Funding Date
(which shall be a Business Day); provided, that Agent may, in its sole discretion, elect to accept
as timely requests that are received later than 1:00 p.m. on the applicable Business Day. All
Borrowing requests which are not made on-line via Agent's electronic platform or portal shall be
subject to (and unless Agent elects otherwise in the exercise of its sole discretion, such Borrowings
shall not be made until the completion of) Agent's authentication process (with results satisfactory
to Agent) prior to the funding of any such requested Revolving Loan.
(ii)
The Additional M/E Term Loan shall be made by a written request
by an Authorized Person delivered to Agent and received by Agent no later than 3:00 p.m. on the
Business Day that is 10 days prior to the requested Funding Date, specifying (A) the amount of
the Additional M/E Term Loan, and (B) the requested Funding Date (which shall be a Business
Day).
(b)
Making of Swing Loans
. In the case of a Revolving Loan and so long as
any of (i) the aggregate amount of Swing Loans made since the last Settlement Date,
minus
payments or other amounts applied to Swing Loans since the last Settlement Date,
plus
of the requested Swing Loan does not exceed $2,500,000, or (ii) Swing Lender, in its sole
discretion, agrees to make a Swing Loan notwithstanding the foregoing limitation, Swing Lender
shall make a Revolving Loan (any such Revolving Loan made by Swing Lender pursuant to this
Section 2.3(b) being referred to as a "Swing Loan" and all such Revolving Loans being referred to
as "Swing Loans") available to Borrowers on the Funding Date applicable thereto by transferring
immediately available funds in the amount of such Borrowing to the Designated Account. Each
Swing Loan shall be deemed to be a Revolving Loan hereunder and shall be subject to all the terms
and conditions (including Section 3) applicable to other Revolving Loans, except that all payments
(including interest) on any Swing Loan shall be payable to Swing Lender solely for its own
account. Subject to the provisions of Section 2.3(d)(ii), Swing Lender shall not make and shall
not be obligated to make any Swing Loan if Swing Lender has actual knowledge that (i) one or
more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the
requested Funding Date for the applicable Borrowing, or (ii) the requested Borrowing would
exceed the Availability on such Funding Date. Swing Lender shall not otherwise be required to
determine whether the applicable conditions precedent set forth in Section 3 have been satisfied
on the Funding Date applicable thereto prior to making any Swing Loan. The Swing Loans shall
be secured by Agent's Liens, constitute Revolving Loans and Obligations, and bear interest at the
rate applicable from time to time to Revolving Loans that are Base Rate Loans.
(c)
Making of Revolving Loans
.
(i)
In the event that Swing Lender is not obligated to make a Swing
Loan, then after receipt of a request for a Borrowing pursuant to Section 2.3(a)(i), Agent shall
notify the Lenders by telecopy, telephone, email, or other electronic form of transmission, of the
requested Borrowing; such notification to be sent on the Business Day that is (A) in the case of a
Base Rate Loan, at least one Business Day prior to the requested Funding Date, or (B) in the case
of a LIBOR Rate Loan, prior to 1:00 p.m. at least three Business Days prior to the requested
Funding Date. If Agent has notified the Lenders of a requested Borrowing on the Business Day
that is one Business Day prior to the Funding Date, then each Lender shall make the amount of
such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately
available funds, to Agent's Account, not later than 12:00 p.m. on the Business Day that is the
requested Funding Date. After Agent's receipt of the proceeds of such Revolving Loans from the
Lenders, Agent shall make the proceeds thereof available to Borrowers on the applicable Funding
Date by transferring immediately available funds equal to such proceeds received by Agent to the
Designated Account; provided, that subject to the provisions of Section 2.3(d)(ii), no Lender shall
have an obligation to make any Revolving Loan, if (1) one or more of the applicable conditions
precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the
applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing
would exceed the Availability on such Funding Date.
(ii)
Unless Agent receives notice from a Lender prior to 11:30 a.m. on
the Business Day that is the requested Funding Date relative to a requested Borrowing as to which
Agent has notified the Lenders of a requested Borrowing that such Lender will not make available
as and when required hereunder to Agent for the account of Borrowers the amount of that Lender's
Pro Rata Share of the Borrowing, Agent may assume that each Lender has made or will make such
amount available to Agent in immediately available funds on the Funding Date and Agent may
(but shall not be so required), in reliance upon such assumption, make available to Borrowers a
corresponding amount. If, on the requested Funding Date, any Lender shall not have remitted the
full amount that it is required to make available to Agent in immediately available funds and if
Agent has made available to Borrowers such amount on the requested Funding Date, then such
Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing
available to Agent in immediately available funds, to Agent's Account, no later than 12:00 p.m. on
the Business Day that is the first Business Day after the requested Funding Date (in which case,
the interest accrued on such Lender's portion of such Borrowing for the Funding Date shall be for
Agent's separate account). If any Lender shall not remit the full amount that it is required to make
available to Agent in immediately available funds as and when required hereby and if Agent has
made available to Borrowers such amount, then that Lender shall be obligated to immediately
remit such amount to Agent, together with interest at the Defaulting Lender Rate for each day until
the date on which such amount is so remitted. A notice submitted by Agent to any Lender with
respect to amounts owing under this Section 2.3(c)(ii) shall be conclusive, absent manifest error.
If the amount that a Lender is required to remit is made available to Agent, then such payment to
Agent shall constitute such Lender's Revolving Loan for all purposes of this Agreement. If such
amount is not made available to Agent on the Business Day following the Funding Date, Agent
will notify Administrative Borrower of such failure to fund and, upon demand by Agent,
Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for
each day elapsed since the date of such Borrowing, at a rate
per annum
applicable at the time to the Revolving Loans composing such Borrowing.
(d)
Protective Advances and Optional Overadvances
.
(i)
Any contrary provision of this Agreement or any other Loan
Document notwithstanding (but subject to Section 2.3(d)(iv)), at any time (A) after the occurrence
and during the continuance of a Default or an Event of Default, or (B) that any of the other
applicable conditions precedent set forth in Section 3 are not satisfied, Agent hereby is authorized
by Borrowers and the Lenders, from time to time, in Agent's sole discretion, to make Revolving
Loans to, or for the benefit of, Borrowers, on behalf of the Revolving Lenders, that Agent, in its
Permitted Discretion, deems necessary or desirable (1) to preserve or protect the Collateral, or any
portion thereof, or (2) to enhance the likelihood of repayment of the Obligations (other than the
Bank Product Obligations) (the Revolving Loans described in this Section 2.3(d)(i) shall be
referred to as "Protective Advances").
(ii)
Any contrary provision of this Agreement or any other Loan
Document notwithstanding, the Lenders hereby authorize Agent or Swing Lender, as applicable,
and either Agent or Swing Lender, as applicable, may, but is not obligated to, knowingly and
intentionally, continue to make Revolving Loans (including Swing Loans) to Borrowers
notwithstanding that an Overadvance exists or would be created thereby, so long as (A) after
giving effect to such Revolving Loans, the outstanding Revolver Usage does not exceed the
Borrowing Base by more than 10% of the Borrowing Base, and (B) subject to Section 2.3(d)(iv)
below, after giving effect to such Revolving Loans, the outstanding Revolver Usage (except for
and excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses)
does not exceed the Maximum Revolver Amount. In the event Agent obtains actual knowledge
that the Revolver Usage exceeds the amounts permitted by this Section 2.3(d), regardless of the
amount of, or reason for, such excess, Agent shall notify the Lenders as soon as practicable (and
prior to making any (or any additional) intentional Overadvances (except for and excluding
amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) unless Agent
determines that prior notice would result in imminent harm to the Collateral or its value, in which
case Agent may make such Overadvances and provide notice as promptly as practicable
thereafter), and the Lenders with Revolver Commitments thereupon shall, together with Agent,
jointly determine the terms of arrangements that shall be implemented with Borrowers intended to
reduce, within a reasonable time, the outstanding principal amount of the Revolving Loans to
Borrowers to an amount permitted by the preceding sentence. In such circumstances, if any Lender
with a Revolver Commitment objects to the proposed terms of reduction or repayment of any
Overadvance, the terms of reduction or repayment thereof shall be implemented according to the
determination of the Required Lenders. The foregoing provisions are meant for the benefit of the
Lenders and Agent and are not meant for the benefit of Borrowers, which shall continue to be
bound by the provisions of Section 2.4(e)(1).
(iii)
Each Protective Advance and each Overadvance (each, an
"Extraordinary Advance") shall be deemed to be a Revolving Loan hereunder, except that no
Extraordinary Advance shall be eligible to be a LIBOR Rate Loan. Prior to Settlement of any
Extraordinary Advance, all payments with respect thereto, including interest thereon, shall be
payable to Agent solely for its own account. Each Revolving Lender shall be obligated to settle
with Agent as provided in Section 2.3(e) (or Section 2.3(g), as applicable) for the amount of such
Lender's Pro Rata Share of any Extraordinary Advance. The Extraordinary Advances shall be
repayable on demand, secured by Agent's Liens, constitute Obligations hereunder, and bear
interest at the rate applicable from time to time to Revolving Loans that are Base Rate Loans. The
provisions of this Section 2.3(d) are for the exclusive benefit of Agent, Swing Lender, and the
Lenders and are not intended to benefit Borrowers (or any other Loan Party) in any way.
(iv)
Notwithstanding anything contained in this Agreement or any other
Loan Document to the contrary, no Extraordinary Advance may be made by Agent if such
Extraordinary Advance would cause the aggregate Revolver Usage to exceed the Maximum
Revolver Amount or any Lender's Pro Rata Share of the Revolver Usage to exceed such Lender's
Revolver Commitments; provided that Agent may make Extraordinary Advances in excess of the
foregoing limitations so long as such Extraordinary Advances that cause the aggregate Revolver
Usage to exceed the Maximum Revolver Amount or a Lender's Pro Rata Share of the Revolver
Usage to exceed such Lender's Revolver Commitments are for Agent's sole and separate account
and not for the account of any Lender. No Lender shall have an obligation to settle with Agent for
such Extraordinary Advances that cause the aggregate Revolver Usage to exceed the Maximum
Revolver Amount or a Lender's Pro Rata Share of the Revolver Usage to exceed such Lender's
Revolver Commitments as provided in Section 2.3(e) (or Section 2.3(g), as applicable).
(e)
Settlement
. It is agreed that each Lender's funded portion of the Revolving
Loans is intended by the Lenders to equal, at all times, such Lender's Pro Rata Share of the
outstanding Revolving Loans. Such agreement notwithstanding, Agent, Swing Lender, and the
other Lenders agree (which agreement shall not be for the benefit of Borrowers) that in order to
facilitate the administration of this Agreement and the other Loan Documents, settlement among
the Lenders as to the Revolving Loans (including Swing Loans and Extraordinary Advances) shall
take place on a periodic basis in accordance with the following provisions:
(i)
Agent shall request settlement ("Settlement") with the Lenders on a
weekly basis, or on a more frequent basis if so determined by Agent in its sole discretion (1) on
behalf of Swing Lender, with respect to the outstanding Swing Loans, (2) for itself, with respect
to the outstanding Extraordinary Advances, and (3) with respect to any Loan Party's or any of their
Subsidiaries' payments or other amounts received, as to each by notifying the Lenders by telecopy,
telephone, or other similar form of transmission, of such requested Settlement, no later than 4:00
p.m. on the Business Day immediately prior to the date of such requested Settlement (the date of
such requested Settlement being the "Settlement Date"). Such notice of a Settlement Date shall
include a summary statement of the amount of outstanding Revolving Loans (including Swing
Loans and Extraordinary Advances) for the period since the prior Settlement Date. Subject to the
terms and conditions contained herein (including Section 2.3(g)): (y) if the amount of the
Revolving Loans (including Swing Loans and Extraordinary Advances) made by a Lender that is
not a Defaulting Lender exceeds such Lender's Pro Rata Share of the Revolving Loans (including
Swing Loans and Extraordinary Advances) as of a Settlement Date, then Agent shall, by no later
than 2:00 p.m. on the Settlement Date, transfer in immediately available funds to a Deposit
Account of such Lender (as such Lender may designate), an amount such that each such Lender
shall, upon receipt of such amount, have as of the Settlement Date, its Pro Rata Share of the
Revolving Loans (including Swing Loans and Extraordinary Advances), and (z) if the amount of
the Revolving Loans (including Swing Loans and Extraordinary Advances) made by a Lender is
less than such Lender's Pro Rata Share of the Revolving Loans (including Swing Loans and
Extraordinary Advances) as of a Settlement Date, such Lender shall no later than 2:00 p.m. on the
Settlement Date transfer in immediately available funds to Agent's Account, an amount such that
each such Lender shall, upon transfer of such amount, have as of the Settlement Date, its Pro Rata
Share of the Revolving Loans (including Swing Loans and Extraordinary Advances). Such
amounts made available to Agent under clause (z) of the immediately preceding sentence shall be
applied against the amounts of the applicable Swing Loans or Extraordinary Advances and,
together with the portion of such Swing Loans or Extraordinary Advances representing Swing
Lender's Pro Rata Share thereof, shall constitute Revolving Loans of such Lenders. If any such
amount is not made available to Agent by any Lender on the Settlement Date applicable thereto to
the extent required by the terms hereof, Agent shall be entitled to recover for its account such
amount on demand from such Lender together with interest thereon at the Defaulting Lender Rate.
(ii)
In determining whether a Lender's balance of the Revolving Loans
(including Swing Loans and Extraordinary Advances) is less than, equal to, or greater than such
Lender's Pro Rata Share of the Revolving Loans (including Swing Loans and Extraordinary
Advances) as of a Settlement Date, Agent shall, as part of the relevant Settlement, apply to such
balance the portion of payments actually received in good funds by Agent with respect to principal,
interest, fees payable by Borrowers and allocable to the Lenders hereunder, and proceeds of
Collateral.
(iii)
Between Settlement Dates, Agent, to the extent Extraordinary
Advances or Swing Loans are outstanding, may pay over to Agent or Swing Lender, as applicable,
any payments or other amounts received by Agent, that in accordance with the terms of this
Agreement would be applied to the reduction of the Revolving Loans, for application to the
Extraordinary Advances or Swing Loans. Between Settlement Dates, Agent, to the extent no
Extraordinary Advances or Swing Loans are outstanding, may pay over to Swing Lender any
payments or other amounts received by Agent, that in accordance with the terms of this Agreement
would be applied to the reduction of the Revolving Loans, for application to Swing Lender's Pro
Rata Share of the Revolving Loans. If, as of any Settlement Date, payments or other amounts of
the Loan Parties or their Subsidiaries received since the then immediately preceding Settlement
Date have been applied to Swing Lender's Pro Rata Share of the Revolving Loans other than to
Swing Loans, as provided for in the previous sentence, Swing Lender shall pay to Agent for the
accounts of the Lenders, and Agent shall pay to the Lenders (other than a Defaulting Lender if
Agent has implemented the provisions of Section 2.3(g)), to be applied to the outstanding
Revolving Loans of such Lenders, an amount such that each such Lender shall, upon receipt of
such amount, have, as of such Settlement Date, its Pro Rata Share of the Revolving Loans. During
the period between Settlement Dates, Swing Lender with respect to Swing Loans, Agent with
respect to Extraordinary Advances, and each Lender with respect to the Revolving Loans other
than Swing Loans and Extraordinary Advances, shall be entitled to interest at the applicable rate
or rates payable under this Agreement on the daily amount of funds employed by Swing Lender,
Agent, or the Lenders, as applicable.
(iv)
Anything in this Section 2.3(e) to the contrary notwithstanding, in
the event that a Lender is a Defaulting Lender, Agent shall be entitled to refrain from remitting
settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement
the provisions set forth in Section 2.3(g).
(f)
Notation
. Consistent with Section 13.1(h), Agent, as a non-fiduciary agent
for Borrowers, shall maintain a register showing the principal amount and stated interest of the
Revolving Loans (and portion of the Term Loan, as applicable), owing to each Lender, including
the Swing Loans owing to Swing Lender, and Extraordinary Advances owing to Agent, and the
interests therein of each Lender, from time to time and such register shall, absent manifest error,
conclusively be presumed to be correct and accurate.
(g)
Defaulting Lenders
.
(i)
Notwithstanding the provisions of Section 2.4(b)(iii), Agent shall
not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for
the Defaulting Lender's benefit or any proceeds of Collateral that would otherwise be remitted
hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender,
Agent shall transfer any such payments (A) first, to Agent to the extent of any Extraordinary
Advances that were made by Agent and that were required to be, but were not, paid by Defaulting
Lender, (B) second, to Swing Lender to the extent of any Swing Loans that were made by Swing
Lender and that were required to be, but were not, paid by the Defaulting Lender, (C) third, to
Issuing Bank, to the extent of the portion of a Letter of Credit Disbursement that was required to
be, but was not, paid by the Defaulting Lender, (D) fourth, to each Non-Defaulting Lender ratably
in accordance with their Commitments (but, in each case, only to the extent that such Defaulting
Lender's portion of a Revolving Loan (or other funding obligation) was funded by such other Non-
Defaulting Lender), (E) fifth, in Agent's sole discretion, to a suspense account maintained by
Agent, the proceeds of which shall be retained by Agent and ma y be made available to be re-
advanced to or for the benefit of Borrowers (upon the request of Borrowers and subject to the
conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Revolving
Loans (or other funding obligations) hereunder, and (F) sixth, from and after the date on which all
other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (L) of
Section 2.4(b)(iii). Subject to the foregoing, Agent may hold and, in its discretion, re-lend to
Borrowers for the account of such Defaulting Lender the amount of all such payments received
and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting
or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata
Share in connection therewith) and for the purpose of calculating the fee payable under Section
2.10(b), such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's
Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the
matters governed by Section 14.1(a)(i) through (iii). The provisions of this Section 2.3(g) shall
remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which
all of the Non-Defaulting Lenders, Agent, Issuing Bank, and Borrowers shall have waived, in
writing, the application of this Section 2.3(g) to such Defaulting Lender, or (z) the date on which
such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder,
pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was
obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability
to perform its future obligations hereunder (on which earlier date, so long as no Event of Default
has occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section
2.3(g)(ii) shall be released to Borrowers). The operation of this Section 2.3(g) shall not be
construed to increase or otherwise affect the Commitment of any Lender, to relieve or excuse the
performance by such Defaulting Lender or any other Lender of its duties and obligations
hereunder, or to relieve or excuse the performance by any Borrower of its duties and obligations
hereunder to Agent, Issuing Bank, or to the Lenders other than such Defaulting Lender. Any
failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall
constitute a material breach by such Defaulting Lender of this Agreement and shall entitle
Borrowers, at their option, upon written notice to Agent, to arrange for a substitute Lender to
assume the Commitment of such Defaulting Lender, such substitute Lender to be reasonably
acceptable to Agent. In connection with the arrangement of such a substitute Lender, the
Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute
and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and
agrees that it shall be deemed to have executed and delivered such document if it fails to do so)
subject only to being paid its share of the outstanding Obligations (other than Bank Product
Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in
respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of
Credit); provided, that any such assumption of the Commitment of such Defaulting Lender shall
not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies
against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event
of a direct conflict between the priority provisions of this Section 2.3(g) and any other provision
contained in this Agreement or any other Loan Document, it is the intention of the parties hereto
that such provisions be read together and construed, to the fullest extent possible, to be in concert
with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as
aforesaid, the terms and provisions of this Section 2.3(g) shall control and govern.
(ii)
If any Swing Loan or Letter of Credit is outstanding at the time that
a Lender becomes a Defaulting Lender then:
(A)
such Defaulting Lender's Swing Loan Exposure and Letter
of Credit Exposure shall be reallocated among the Non-Defaulting Lenders in accordance with
their respective Pro Rata Shares but only to the extent (x) the sum of all Non-Defaulting Lenders'
Pro Rata Share of Revolver Usage
plus
of Credit Exposure does not exceed the total of all Non-Defaulting Lenders' Revolver
Commitments and (y) the conditions set forth in Section 3.2 are satisfied at such time;
(B)
if the reallocation described in clause (A) above cannot, or
can only partially, be effected, Borrowers shall within one Business Day following notice by the
Agent (x) first, prepay such Defaulting Lender's Swing Loan Exposure (after giving effect to any
partial reallocation pursuant to clause (A) above), and (y) second, cash collateralize such
Defaulting Lender's Letter of Credit Exposure (after giving effect to any partial reallocation
pursuant to clause (A) above), pursuant to a cash collateral agreement to be entered into in form
and substance reasonably satisfactory to the Agent, for so long as such Letter of Credit Exposure
is outstanding; provided, that Borrowers shall not be obligated to cash collateralize any Defaulting
Lender's Letter of Credit Exposure if such Defaulting Lender is also Issuing Bank;
(C)
if Borrowers cash collateralize any portion of such
Defaulting Lender's Letter of Credit Exposure pursuant to this Section 2.3(g)(ii), Borrowers shall
not be required to pay any Letter of Credit Fees to Agent for the account of such Defaulting Lender
pursuant to Section 2.6(b) with respect to such cash collateralized portion of such Defaulting
Lender's Letter of Credit Exposure during the period such Letter of Credit Exposure is cash
collateralized;
(D)
to the extent the Letter of Credit Exposure of the Non-
Defaulting Lenders is reallocated pursuant to this Section 2.3(g)(ii), then the Letter of Credit Fees
payable to the Non-Defaulting Lenders pursuant to Section 2.6(b) shall be adjusted in accordance
with such Non-Defaulting Lenders' Letter of Credit Exposure;
(E)
to the extent any Defaulting Lender's Letter of Credit
Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.3(g)(ii), then,
without prejudice to any rights or remedies of Issuing Bank or any Lender hereunder, all Letter of
Credit Fees that would have otherwise been payable to such Defaulting Lender under Section
2.6(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to
Issuing Bank until such portion of such Defaulting Lender's Letter of Credit Exposure is cash
collateralized or reallocated;
(F)
so long as any Lender is a Defaulting Lender, the Swing
Lender shall not be required to make any Swing Loan and Issuing Bank shall not be required to
issue, amend, or increase any Letter of Credit, in each case, to the extent (x) the Defaulting Lender's
Pro Rata Share of such Swing Loans or Letter of Credit cannot be reallocated pursuant to this
Section 2.3(g)( ii), or (y) the Swing Lender or Issuing Bank, as applicable, has not otherwise
entered into arrangements reasonably satisfactory to the Swing Lender or Issuing Bank, as
applicable, and Borrowers to eliminate the Swing Lender's or Issuing Bank's risk with respect to
the Defaulting Lender's participation in Swing Loans or Letters of Credit; and
(G)
Agent may release any cash collateral provided by
Borrowers pursuant to this Section 2.3(g)(ii) to Issuing Bank and Issuing Bank may apply any such
cash collateral to the payment of such Defaulting Lender's Pro Rata Share of any Letter of Credit
Disbursement that is not reimbursed by Borrowers pursuant to Section 2.11(d). Subject to Section
17.14, no reallocation hereunder shall constitute a waiver or release of any claim of any party
hereunder against a Defaulting Lender arising from that Lender having become a Defaulting
Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting
Lender's increased exposure following such reallocation.
(h)
Independent Obligations
. All Revolving Loans (other than Swing Loans
and Extraordinary Advances) shall be made by the Lenders contemporaneously and in accordance
with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure
by any other Lender to perform its obligation to make any Revolving Loan (or other extension of
credit) hereunder, nor shall any Commitment of any Lender be increased or decreased as a result
of any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any
Lender to perform its obligations hereunder shall excuse any other Lender from its obligations
hereunder.
2.4.
Payments; Reductions of Commitments; Prepayments
.
(a)
Payments by Borrowers
.
(i)
(i) Except as otherwise expressly provided herein, all payments
by Borrowers shall be made to Agent's Account for the account of the Lender Group and shall be
made in immediately available funds, no later than 3:30 p.m. on the date specified herein; provided
that, for the avoidance of doubt, any payments deposited into a Controlled Account shall be
deemed not to be received by Agent on any Business Day unless immediately available funds have
been credited to Agent's Account prior to 3:30 p.m. on such Business Day. Any payment received
by Agent in immediately available funds in Agent's Account later than 3:30 p.m. shall be deemed
to have been received (unless Agent, in its sole discretion, elects to credit it on the date received)
on the following Business Day and any applicable interest or fee shall continue to accrue until such
following Business Day.
(ii)
Unless Agent receives notice from Borrowers prior to the date on
which any payment is due to the Lenders that Borrowers will not make such payment in full as
and when required, Agent may assume that Borrowers have made (or will make) such payment in
full to Agent on such date in immediately available funds and Agent may (but shall not be so
required), in reliance upon such assumption, distribute to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent Borrowers do not make such
payment in full to Agent on the date when due, each Lender severally shall repay to Agent on
demand such amount distributed to such Lender, together with interest thereon at the Defaulting
Lender Rate for each day from the date such amount is distributed to such Lender until the date
repaid.
(b)
Apportionment and Application
.
(i)
So long as no Application Event has occurred and is continuing and
except as otherwise provided herein with respect to Defaulting Lenders, all principal and interest
payments received by Agent shall be apportioned ratably among the Lenders (according to the
unpaid principal balance of the Obligations to which such payments relate held by each Lender)
and all payments of fees and expenses received by Agent (other than fees or expenses that are for
Agent's separate account or for the separate account of Issuing Bank) shall be apportioned ratably
among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a
particular fee or expense relates.
(ii)
Subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e),
all payments to be made hereunder by Borrowers shall be remitted to Agent and all such payments,
and all proceeds of Collateral received by Agent, shall be applied, so long as no Application Event
has occurred and is continuing and except as otherwise provided herein with respect to Defaulting
Lenders, to reduce the balance of the Revolving Loans outstanding and, thereafter, to Borrowers
(to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iii)
At any time that an Application Event has occurred and is continuing
and except as otherwise provided herein with respect to Defaulting Lenders, all payments remitted
to Agent and all proceeds of Collateral received by Agent shall be applied as follows:
(A)
first, to pay any Lender Group Expenses (including cost or
expense reimbursements) or indemnities then due to Agent under the Loan Documents and to pay
interest and principal on Extraordinary Advances that are held solely by Agent pursuant to the
terms of Section 2.4(d)(iv), until paid in full,
(B)
second, to pay any fees or premiums then due to Agent under
the Loan Documents, until paid in full,
(C)
third, to pay interest due in respect of all Protective
Advances, until paid in full,
(D)
fourth, to pay the principal of all Protective Advances, until
paid in full,
(E)
fifth, ratably, to pay any Lender Group Expenses (including
cost or expense reimbursements) or indemnities then due to any of the Lenders under the Loan
Documents, until paid in full,
(F)
sixth, ratably, to pay any fees or premiums then due to any
of the Lenders under the Loan Documents, until paid in full,
(G)
seventh, to pay interest accrued in respect of the Swing
Loans, until paid in full,
(H)
eighth, to pay the principal of all Swing Loans, until paid in
full,
(I)
ninth, ratably, to pay interest accrued in respect of the
Revolving Loans (other than Protective Advances and Swing Loans) and the Term Loan, until paid
in full,
(J)
tenth, ratably
i.
ratably, to pay the principal of all Revolving Loans
and the Term Loan (other than Protective Advances and Swing Loans), until paid in full,
ii.
to Agent, to be held by Agent, for the benefit of
Issuing Bank (and for the ratable benefit of each of the Lenders that have an obligation to pay to
Agent, for the account of Issuing Bank, a share of each Letter of Credit Disbursement), as cash
collateral in an amount up to 105% of the Letter of Credit Usage (to the extent permitted by
applicable law, such cash collateral shall be applied to the reimbursement of any Letter of Credit
Disbursement as and when such disbursement occurs and, if a Letter of Credit expires undrawn,
the cash collateral held by Agent in respect of such Letter of Credit shall, to the extent permitted
by applicable law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof),
iii.
ratably, up to the lesser of (y) the amount (after
taking into account any amounts previously paid pursuant to this clause iii. during the continuation
of the applicable Application Event) of the most recently established Bank Product Reserve, which
amount was established prior to the occurrence of, and not in contemplation of, the subject
Application Event, and (z) $2,500,000 (after taking into account any amounts previously paid
pursuant to this clause iii. during the continuation of the applicable Application Event), to (I) the
Bank Product Providers based upon amounts then certified by each applicable Bank Product
Provider to Agent (in form and substance satisfactory to Agent) to be due and payable to such
Bank Product Provider on account of Bank Product Obligations (but not in excess of the Bank
Product Reserve established for the Bank Product Obligations of such Bank Product Provider),
and (II) with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of the
Bank Product Providers, as cash collateral (which cash collateral may be released by Agent to the
applicable Bank Product Provider and applied by such Bank Product Provider to the payment or
reimbursement of any amounts due and payable with respect to Bank Product Obligations owed
to the applicable Bank Product Provider as and when such amounts first become due and payable
and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied in full,
the cash collateral held by Agent in respect of such Bank Product Obligations shall be reapplied
pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof,,
(K)
eleventh, to pay any other Obligations other than Obligations
owed to Defaulting Lenders (including being paid, ratably, to the Bank Product Providers on
account of all amounts then due and payable in respect of Bank Product Obligations, with any
balance to be paid to Agent, to be held by Agent, for the ratable benefit of the Bank Product
Providers, as cash collateral (which cash collateral may be released by Agent to the applicable
Bank Product Provider and applied by such Bank Product Provider to the payment or
reimbursement of any amounts due and payable with respect to Bank Product Obligations owed
to the applicable Bank Product Provider as and when such amounts first become due and payable
and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied in full,
the cash collateral held by Agent in respect of such Bank Product Obligations shall be reapplied
pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof),
(L)
twelfth, ratably to pay any Obligations owed to Defaulting
Lenders; and
(M)
thirteenth, to Borrowers (to be wired to the Designated
Account) or such other Person entitled thereto under applicable law.
(iv)
Agent promptly shall distribute to each Lender, pursuant to the
applicable wire instructions received from each Lender in writing, such funds as it may be entitled
to receive, subject to a Settlement delay as provided in Section 2.3(e).
(v)
In each instance, so long as no Application Event has occurred and
is continuing, Section 2.4(b)(ii) shall not apply to any payment made by Borrowers to Agent and
specified by Borrowers to be for the payment of specific Obligations then due and payable (or
prepayable) under any provision of this Agreement or any other Loan Document.
(vi)
For purposes of Section 2.4(b)(iii), "paid in full" of a type of
Obligation means payment in cash or immediately available funds of all amounts owing on account
of such type of Obligation, including interest accrued after the commencement of any Insolvency
Proceeding, default interest, interest on interest, and expense reimbursements, irrespective of
whether any of the foregoing would be or is allowed or disallowed in whole or in part in any
Insolvency Proceeding.
(vii)
In the event of a direct conflict between the priority provisions of
this Section 2.4 and any other provision contained in this Agreement or any other Loan Document,
it is the intention of the parties hereto that such provisions be read together and construed, to the
fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable
conflict that cannot be resolved as aforesaid, if the conflict relates to the provisions of Section
2.3(g) and this Section 2.4, then the provisions of Section 2.3(g) shall control and govern, and if
otherwise, then the terms and provisions of this Section 2.4 shall control and govern.
(c)
Reduction of Commitments
.
(i)
Revolver Commitments
. The Revolver Commitments shall
terminate on the Maturity Date or earlier termination thereof pursuant to the terms of this
Agreement. Borrowers may reduce the Revolver Commitments, without premium or penalty, to
an amount not less than the greater of (x) $20,000,000 and (y) sum of (A) the Revolver Usage as
of such date,
plus
request has been given by Borrowers under Section 2.3(a),
plus
Credit not yet issued as to which a request has been given by Borrowers pursuant t o Section
2.11(a). Each such reduction shall be in an amount which is not less than $2,500,000, shall be
made by providing not less than ten Business Days prior written notice to Agent, and shall be
irrevocable. The Revolver Commitments, once reduced, may not be increased. Each such
reduction of the Revolver Commitments shall reduce the Revolver Commitments of each Lender
proportionately in accordance with its ratable share thereof. In connection with any reduction in
the Revolver Commitments prior to the Maturity Date, if any Loan Party or any of its Subsidiaries
owns any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (with sufficient
additional originals thereof for each Lender), duly executed and delivered by the Borrowers,
together with such other documentation as Agent shall reasonably request, in order to enable Agent
and the Lenders to comply with any of the requirements under Regulations T, U or X of the Federal
Reserve Board.
(ii)
Term Loan Commitments
. The R/E Term Loan Commitments
shall terminate upon the making of the R/E Term Loan. The M/E Term Loan Commitments shall
terminate upon the earlier of the making of the Additional M/E Term Loan and April 27, 2022.
(d)
Optional Prepayments
.
(i)
Revolving Loans
. Borrowers may prepay the principal of any
Revolving Loan at any time in whole or in part, without premium or penalty.
(ii)
Term Loan
. Borrowers may, upon at least ten Business Days prior
written notice to Agent, prepay the principal of the M/E Term Loan or the R/E Term Loan, in
whole or in part, without premium or penalty. Each prepayment made pursuant to this Section
2.4(d)(ii) shall be accompanied by the payment of accrued interest to the date of such payment on
the amount prepaid. Each such prepayment shall be applied against the remaining installments of
principal due on the applicable Term Loan on a pro rata basis (for the avoidance of doubt, any
amount that is due and payable on the Maturity Date shall constitute an installment)..
(e)
Mandatory Prepayments
.
(i)
Borrowing Base
. If, at any time, (A) the Revolver Usage on such
date exceeds (B) the lesser of (x) the Borrowing Base reflected in the Borrowing Base Certificate
most recently delivered by Borrowers to Agent, or (y) the Maximum Revolver Amount, in all cases
as adjusted for Reserves established by Agent in accordance with Section 2.1(c), then Borrowers
shall immediately prepay the Obligations in accordance with Section 2.4(f)(i)(A) in an aggregate
amount equal to the amount of such excess.
(ii)
M&E Borrowing Base
. If at any time, the outstanding principal
balance of the M/E Term Loan on such date exceeds the M&E Borrowing Base, then Borrowers
shall promptly, but in any event, within one Business Day
after request therefor by Agent
prepay
the outstanding principal balance of the M/E Term Loan in accordance with Section 2.4(f)(i)(B)
in an aggregate amount equal to the amount of such excess.
(iii)
R/E Borrowing Base.
balance of the R/E Term Loan on such date exceeds the R/E Borrowing Base, then Borrowers shall
promptly, but in any event, within one Business Day
after request therefor by Agent
prepay the
outstanding principal balance of the R/E Term Loan in accordance with Section 2.4(f)(i)(C) in an
aggregate amount equal to the amount of such excess.
(iv)
Dispositions
. Within three Business Days of the date of receipt by
any Loan Party or any of its Subsidiaries of the Net Cash Proceeds of any voluntary or involuntary
sale or disposition of assets of any Loan Party or any of its Subsidiaries (including Net Cash
Proceeds of insurance or arising from casualty losses or condemnations and payments in lieu
thereof, but excluding (A) Net Cash Proceeds from sales or dispositions which qualify as Permitted
Dispositions under clauses (a), (b), (c), (d), (e), (f) (solely with respect to Accounts of Mexican
Subsidiaries), (j), (k), (l), (m), (n), or (o) of the definition of Permitted Dispositions, (B) so long
as the M/E Term Loan has not been paid in full, Net Cash Proceeds from sales or dispositions of
Eligible M&E, and (C) so long as the R/E Term Loan has not been paid in full, Net Cash Proceeds
from sales or dispositions of Eligible Real Property), Borrowers shall prepay the outstanding
principal amount of the Obligations in accordance with Section 2.4(f)(ii) in an amount equal to
100% of such Net Cash Proceeds received by such Person in connection with such sales or
dispositions; provided, that so long as (A) no Default or Event of Default shall have occurred and
is continuing or would result therefrom, (B) Borrowers shall have given Agent prior written notice
of Borrowers' intention to apply such monies to the costs of replacement of the properties or assets
that are the subject of such sale or disposition or the cost of purchase or construction of other assets
useful in the business of such Loan Party or its Subsidiaries, (C) the monies are held in a Deposit
Account in which Agent has a perfected first-priority security interest, and (D) such Loan Party or
its Subsidiary, as applicable, completes such replacement, purchase, or construction within 180
days after the initial receipt of such monies, then the Loan Party or such Loan Party's Subsidiary
whose assets were the subject of such disposition shall have the option to apply such monies to the
costs of replacement of the assets that are the subject of such sale or disposition or the costs of
purchase or construction of other assets useful in the business of such Loan Party or such
Subsidiary unless and to the extent that such applicable period shall have expired without such
replacement, purchase, or construction being made or completed, in which case, any amounts
remaining in the Deposit Account referred to in clause (C) above shall be paid to Agent and applied
in accordance with Section 2.4(f)(ii); provided, that no Loan Party nor any of its Subsidiaries shall
have the right to use such Net Cash Proceeds to make such replacements, purchases, or
construction in excess of $500,000 in any given fiscal year. Nothing contained in this Section
2.4(e)(iv) shall permit any Loan Party or any of its Subsidiaries to sell or otherwise dispose of any
assets other than in accordance with Section 6.4.
(v)
Dispositions of Eligible M&E
. So long as the M/E Term Loan has
not been paid in full, within three Business Days of the date of receipt by any Loan Party or any
of its Subsidiaries of the Net Cash Proceeds of any voluntary or involuntary sale or disposition of
Eligible M&E (including Net Cash Proceeds of insurance or arising from casualty losses or
condemnations and payments in lieu thereof), Borrowers shall prepay the outstanding principal
amount of the M/E Term Loan in accordance with Section 2.4(f)(iii) in an amount equal to 100%
of such Net Cash Proceeds received by such Person in connection with such sales or dispositions
until paid in full.
(vi)
Dispositions of Eligible Real Property
. So long as the R/E Term
Loan has not been paid in full, within three Business Days of the date of receipt by any Loan Party
or any of its Subsidiaries of the Net Cash Proceeds of any voluntary or involuntary sale or
disposition of Eligible Real Property (including Net Cash Proceeds of insurance or arising from
casualty losses or condemnations and payments in lieu thereof), Borrowers shall prepay the
outstanding principal amount of the R/E Term Loan in accordance with Section 2.4(f)(iv) in an
amount equal to 100% of such Net Cash Proceeds received by such Person in connection with such
sales or dispositions until paid in full.
(vii)
Extraordinary Receipts
. Within one Business Day of the date of
receipt by any Loan Party or any of its Subsidiaries (other than any Mexican Subsidiary) of any
Extraordinary Receipts, Borrowers shall prepay the outstanding principal amount of the
Obligations in accordance with Section 2.4(f)(ii) in an amount equal to 100% of such
Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary
Receipts.
(viii)
Indebtedness
. Within one Business Day of the date of incurrence
by any Loan Party or any of its Subsidiaries (other than any Mexican Subsidiary) of any
Indebtedness (other than Permitted Indebtedness), Borrowers shall prepay the outstanding
principal amount of the Obligations in accordance with Section 2.4(f)(ii) in an amount equal to
100% of the Net Cash Proceeds received by such Person in connection with such incurrence. The
provisions of this Section 2.4(e)(v) shall not be deemed to be implied consent to any such
incurrence otherwise prohibited by the terms of this Agreement.
(f)
Application of Payments
.
(i)
(A) Each prepayment pursuant to Section 2.4(e)(i) shall, (1) so long
as no Application Event shall have occurred and be continuing, be applied, first, to the outstanding
principal amount of the Revolving Loans until paid in full, and second, to cash collateralize the
Letters of Credit in an amount equal to 105% of the then outstanding Letter of Credit Usage, and
(2) if an Application Event shall have occurred and be continuing, be applied in the manner set
forth in Section 2.4(b)(iii), (B) each prepayment pursuant to Section 2.4(e)(ii) shall (1) so long as
no Application Event shall have occurred and be continuing, be applied to the outstanding principal
amount of the M/E Term Loan until paid in full, and (2) if an Application Event shall have occurred
and be continuing, be applied in the manner set forth in Section 2.4(b)(iii), and (C) each
prepayment pursuant to Section 2.4(e)(iii) shall (1) so long as no Application Event shall have
occurred and be continuing, be applied to the outstanding principal amount of the R/E Term Loan
until paid in full, and (2) if an Application Event shall have occurred and be continuing, be applied
in the manner set forth in Section 2.4(b)(iii). Each such prepayment of any Term Loan shall be
applied against the remaining installments of principal of such Term Loan on a pro rata basis (for
the avoidance of doubt, any amount that is due and payable on the Maturity Date shall constitute
an installment).
(ii)
Each prepayment pursuant to Section 2.4(e)(iv), 2.4(e)(vii), or
2.4(e)(viii) shall (A) so long as no Application Event shall have occurred and be continuing, be
applied, first, to the outstanding principal amount of the Term Loan until paid in full, second, to
the outstanding principal amount of the Revolving Loans, until paid in full, and third, to cash
collateralize the Letters of Credit in an amount equal to 105% of the then outstanding Letter of
Credit Usage, and (B) if an Application Event shall have occurred and be continuing, be applied
in the manner set forth in Section 2.4(b)(iii). Each such prepayment of the Term Loan shall be
applied against the remaining installments of principal of the Term Loan on a pro rata basis (for
the avoidance of doubt, any amount that is due and payable on the Maturity Date shall constitute
an installment).
(iii)
Each prepayment pursuant to Section 2.4(e)(v)) shall (A) so long as
no Application Event shall have occurred and be continuing, be applied, to the outstanding
principal amount of the M/E Term Loan until paid in full, and (B) if an Application Event shall
have occurred and be continuing, be applied in the manner set forth in Section 2.4(b)(iii). Each
such prepayment of the Term Loans shall be applied against the remaining installments of principal
of the Term Loans on a pro rata basis (for the avoidance of doubt, any amount that is due and
payable on the Maturity Date shall constitute an installment).
(iv)
Each prepayment pursuant to Section 2.4(e)(vi)) shall (A) so long as
no Application Event shall have occurred and be continuing, be applied to the outstanding principal
amount of the R/E Term Loan until paid in full, and (B) if an Application Event shall have occurred
and be continuing, be applied in the manner set forth in Section 2.4(b)(iii). Each such prepayment
of the Term Loans shall be applied against the remaining installments of principal of the Term
Loans on a pro rata basis (for the avoidance of doubt, any amount that is due and payable on the
Maturity Date shall constitute an installment).
2.5.
Promise to Pay; Promissory Notes
.
(a)
Borrowers agree to pay the Lender Group Expenses on the earlier of (i) the
first day of the month following the date on which the applicable Lender Group Expenses were
first incurred, or (ii) the date on which demand therefor is made by Agent (it being acknowledged
and agreed that any charging of such costs, expenses or Lender Group Expenses to the Loan
Account pursuant to the provisions of Section 2.6(d) shall be deemed to constitute a demand for
payment thereof for the purposes of this subclause (ii)). Borrowers promise to pay all of the
Obligations (including principal, interest, premiums, if any, fees, costs, and expenses (including
Lender Group Expenses)) in full on the Maturity Date or, if earlier, on the date on which the
Obligations (other than the Bank Product Obligations) become due and payable pursuant to the
terms of this Agreement. Borrowers agree that their obligations contained in the first sentence of
this Section 2.5(a) shall survive payment or satisfaction in full of all other Obligations.
(b)
Any Lender may request that any portion of its Commitments or the Loans
made by it be evidenced by one or more promissory notes. In such event, Borrowers shall execute
and deliver to such Lender the requested promissory notes payable to the order of such Lender in
a form furnished by Agent and reasonably satisfactory to Borrowers. Thereafter, the portion of
the Commitments and Loans evidenced by such promissory notes and interest thereon shall at all
times be represented by one or more promissory notes in such form payable to the order of the
payee named therein.
2.6.
Interest Rates and Letter of Credit Fee: Rates, Payments, and
Calculations
.
(a)
Interest Rates
. Except as provided in Section 2.6(c) and Section 2.12(d),
all Obligations (except for undrawn Letters of Credit) that have been charged to the Loan Account
pursuant to the terms hereof shall bear interest as follows:
(i)
if the relevant Obligation is a LIBOR Rate Loan, at a
per annum
equal to the LIBOR Rate
plus
(ii)
otherwise, at a
per annum
plus
Rate Margin.
(b)
Letter of Credit Fee
. Borrowers shall pay Agent (for the ratable benefit of
the Revolving Lenders), a Letter of Credit fee (the "Letter of Credit Fee") (which fee shall be in
addition to the fronting fees and commissions, other fees, charges and expenses set forth in Section
2.11(k)) that shall accrue
a
t a
per annum
times the average amount of the Letter of Credit Usage during the immediately preceding month.
(c)
Default Rate
. (i) Automatically upon the occurrence and during the
continuation of an Event of Default under Section 8.4 or 8.5 and (ii) upon the occurrence and
during the continuation of any other Event of Default (other than an Event of Default under Section
8.4 or 8.5), at the direction of Agent or the Required Lenders, and upon written notice by Agent to
Borrowers of such direction (provided, that such notice shall not be required for any Event of
Default under Section 8.1), (A) all Loans and all Obligations (except for undrawn Letters of Credit)
that have been charged to the Loan Account pursuant to the terms hereof shall bear interest at a
per annum
per annum
thereunder, and (B) the Letter of Credit Fee shall be increased to two percentage points above the
per annum
(d)
Payment
. Except to the extent provided to the contrary in Section 2.10,
Section 2.11(k) or Section 2.12(a), (i) all interest and all other fees payable hereunder or under any
of the other Loan Documents (other than Letter of Credit Fees) shall be due and payable, in arrears,
on the first day of each month, (ii) all Letter of Credit Fees payable hereunder, and all fronting
fees and all commissions, other fees, charges and expenses provided for in Section 2.11(k) shall
be due and payable, in arrears, on the first Business Day of each month, and (iii) all costs and
expenses payable hereunder or under any of the other Loan Documents, and all other Lender Group
Expenses shall be due and payable on (x) with respect to Lender Group Expenses outstanding as
of the Closing Date, the Closing Date, and (y) otherwise, the earlier of (A) the first day of the
month following the date on which the applicable costs, expenses, or Lender Group Expenses were
first incurred, or (B) the date on which demand therefor is made by Agent (it being acknowledged
and agreed that any charging of such costs, expenses or Lender Group Expenses to the Loan
Account pursuant to the provisions of the following sentence shall be deemed to constitute a
demand for payment thereof for the purposes of this subclause (y)). Borrowers hereby authorize
Agent, from time to time without prior notice to Borrowers, to charge to the Loan Account (A) on
the first day of each month, all interest accrued during the prior month on the Revolving Loans or
the Term Loan hereunder, (B) on the first Business Day of each month, all Letter of Credit Fees
accrued or chargeable hereunder during the prior month, (C) as and when incurred or accrued, all
fees and costs provided for in Section 2.10(a) or (c), (D) on the first day of each month, the Unused
Line Fee accrued during the prior month pursuant to Section 2.10(b), (E) as and when due and
payable, all other fees payable hereunder or under any of the other Loan Documents, (F) on the
Closing Date and thereafter as and when incurred or accrued, all other Lender Group Expenses,
and (G) as and when due and payable all other payment obligations payable under any Loan
Document or any Bank Product Agreement (including any amounts due and payable to the Bank
Product Providers in respect of Bank Products). All amounts (including interest, fees, costs,
expenses, Lender Group Expenses, or other amounts payable hereunder or under any other Loan
Document or under any Bank Product Agreement) charged to the Loan Account shall thereupon
constitute Revolving Loans hereunder, shall constitute Obligations hereunder, and shall initially
accrue interest at the rate then applicable to Revolving Loans that are Base Rate Loans (unless and
until converted into LIBOR Rate Loans in accordance with the terms of this Agreement).
(e)
Computation
. All interest and fees chargeable under the Loan Documents
shall be computed on the basis of a 360 day year, in each case, for the actual number of days
elapsed in the period during which the interest or fees accrue. In the event the Base Rate is changed
from time to time hereafter, the rates of interest hereunder based upon the Base Rate automatically
and immediately shall be increased or decreased by an amount equal to such change in the Base
Rate.
(f)
Intent to Limit Charges to Maximum Lawful Rate
. In no event shall the
interest rate or rates payable under this Agreement,
plus
herewith, exceed the highest rate permissible under any law that a court of competent jurisdiction
shall, in a final determination, deem applicable. Borrowers and the Lender Group, in executing
and delivering this Agreement, intend legally to agree upon the rate or rates of interest and manner
of payment stated within it; provided, that anything contained herein to the contrary
notwithstanding, if such rate or rates of interest or manner of payment exceeds the maximum
allowable under applicable law, then,
ipso
facto
, as of the date of this Agreement, Borrowers are
and shall be liable only for the payment of such maximum amount as is allowed by law, and
payment received from Borrowers in excess of such legal maximum, whenever received, shall be
applied to reduce the principal balance of the Obligations to the extent of such excess.
2.7.
Crediting Payments
. The receipt of any payment item by Agent shall not be
required to be considered a payment on account unless such payment item is a wire transfer of
immediately available funds made to Agent's Account or unless and until such payment item is
honored when presented for payment. Should any payment item not be honored when presented
for payment, then Borrowers shall be deemed not to have made such payment. Anything to the
contrary contained herein notwithstanding, any payment item shall be deemed received by Agent
only if it is received into Agent's Account on a Business Day on or before 3:30 p.m. If any payment
item is received into Agent's Account on a non-Business Day or after 3:30 p.m. on a Business Day
(unless Agent, in its sole discretion, elects to credit it on the date received), it shall be deemed to
have been received by Agent as of the opening of business on the immediately following Business
Day.
2.8.
Designated Account
. Agent is authorized to make the Revolving Loans and
the Term Loan, and Issuing Bank is authorized to issue the Letters of Credit, under this Agreement
based upon telephonic or other instructions received from anyone purporting to be an Authorized
Person or, without instructions, if pursuant to Section 2.6(d). Borrowers agree to establish and
maintain the Designated Account with the Designated Account Bank for the purpose of receiving
the proceeds of the Revolving Loans requested by Borrowers and made by Agent or the Lenders
hereunder. Unless otherwise agreed by Agent and Borrowers, any Revolving Loan or Swing Loan
requested by Borrowers and made by Agent or the Lenders hereunder shall be made to the
Designated Account.
2.9.
Maintenance of Loan Account; Statements of Obligations
. Agent shall
maintain an account on its books in the name of Borrowers (the "Loan Account") on which
Borrowers will be charged with the Term Loan, all Revolving Loans (including Extraordinary
Advances and Swing Loans) made by Agent, Swing Lender, or the Lenders to Borrowers or for
Borrowers' account, the Letters of Credit issued or arranged by Issuing Bank for Borrowers'
account, and with all other payment Obligations hereunder or under the other Loan Documents,
including, accrued interest, fees and expenses, and Lender Group Expenses. In accordance with
Section 2.7, the Loan Account will be credited with all payments received by Agent from
Borrowers or for Borrowers' account. Agent shall make available to Borrowers monthly
statements regarding the Loan Account, including the principal amount of the Term Loan and the
Revolving Loans, interest accrued hereunder, fees accrued or charged hereunder or under the other
Loan Documents, and a summary itemization of all charges and expenses constituting Lender
Group Expenses accrued hereunder or under the other Loan Documents, and each such statement,
absent manifest error, shall be conclusively presumed to be correct and accurate and constitute an
account stated between Borrowers and the Lender Group unless, within 30 days after Agent first
makes such a statement available to Borrowers, Borrowers shall deliver to Agent written objection
thereto describing the error or errors contained in such statement.
2.10.
Fees
.
(a)
Agent Fees
. Borrowers shall pay to Agent, for the account of Agent, as and
when due and payable under the terms of the Fee Letter, the fees set forth in the Fee Letter.
(b)
Unused Line Fee
. Borrowers shall pay to Agent, for the ratable account of
the Revolving Lenders, an unused line fee (the "Unused Line Fee") in an amount equal to 0.375%
per annum
less
Average Revolver Usage during the immediately preceding month (or portion thereof), which
Unused Line Fee shall be due and payable, in arrears, on the first day of each month from and after
the Closing Date up to the first day of the month prior to the date on which the Obligations are
paid in full and on the date on which the Obligations are paid in full.
(c)
Field Examination and Other Fees
. Subject to any limitations set forth in
Section 5.7(c), Borrowers shall pay to Agent, field examination, appraisal, and valuation fees and
charges, as and when incurred or chargeable, as follows (i) a fee of $1,000 per day, per examiner,
plus
each field examination of any Loan Party or its Subsidiaries performed by or on behalf of Agent,
and (ii) the reasonable and documented out-of-pocket fees, charges or expenses paid or incurred
by Agent if it elects to employ the services of one or more third Persons to appraise the Collateral,
or any portion thereof, or to assess any Loan Party's or its Subsidiaries' business valuation.
2.11.
Letters of Credit
.
(a)
Subject to the terms and conditions of this Agreement, upon the request of
Borrowers made in accordance herewith, and prior to the Maturity Date, Issuing Bank agrees to
issue a requested standby Letter of Credit or a sight commercial Letter of Credit for the account of
Borrowers. By submitting a request to Issuing Bank for the issuance of a Letter of Credit,
Borrowers shall be deemed to have requested that Issuing Bank issue the requested Letter of Credit.
Each request for the issuance of a Letter of Credit, or the amendment or extension of any
outstanding Letter of Credit, shall be (i) irrevocable and made in writing by an Authorized Person,
(ii) delivered to Agent and Issuing Bank via telefacsimile or other electronic method of
transmission reasonably acceptable to Agent and Issuing Bank and reasonably in advance of the
requested date of issuance, amendment or extension, and (iii) subject to Issuing Bank's
authentication procedures with results satisfactory to Issuing Bank. Each such request shall be in
form and substance reasonably satisfactory to Agent and Issuing Bank and (i) shall specify (A) the
amount of such Letter of Credit, (B) the date of issuance, amendment or extension of such Letter
of Credit, (C) the proposed expiration date of such Letter of Credit, (D) the name and address of
the beneficiary of the Letter of Credit, and (E) such other information (including, the conditions to
drawing, and, in the case of an amendment or extension, identification of the Letter of Credit to be
so amended or extended) as shall be necessary to prepare, amend or extend such Letter of Credit,
and (ii) shall be accompanied by such Issuer Documents as Agent or Issuing Bank may request or
require, to the extent that such requests or requirements are consistent with the Issuer Documents
that Issuing Bank generally requests for Letters of Credit in similar circumstances. Issuing Bank's
records of the content of any such request will be conclusive. Anything contained herein to the
contrary notwithstanding, Issuing Bank may, but shall not be obligated to, issue a Letter of Credit
that supports the obligations of a Loan Party or one of its Subsidiaries in respect of (x) a lease of
real property to the extent that the face amount of such Letter of Credit exceeds the highest rent
(including all rent-like charges) payable under such lease for a period of one year, or (y) an
employment contract to the extent that the face amount of such Letter of Credit exceeds the highest
compensation payable under such contract for a period of one year.
(b)
Issuing Bank shall have no obligation to issue a Letter of Credit if any of
the following would result after giving effect to the requested issuance:
(i)
the Letter of Credit Usage would exceed the Letter of Credit
Sublimit, or
(ii)
the Letter of Credit Usage would exceed the Maximum Revolver
Amount
less
(iii)
the Letter of Credit Usage would exceed the Borrowing Base at such
time
less
such time.
(c)
In the event there is a Defaulting Lender as of the date of any request for
the issuance of a Letter of Credit, Issuing Bank shall not be required to issue or arrange for such
Letter of Credit to the extent (i) the Defaulting Lender's Letter of Credit Exposure with respect to
such Letter of Credit may not be reallocated pursuant to Section 2.3(g)(ii), or (ii) Issuing Bank has
not otherwise entered into arrangements reasonably satisfactory to it and Borrowers to eliminate
Issuing Bank's risk with respect to the participation in such Letter of Credit of the Defaulting
Lender, which arrangements may include Borrowers cash collateralizing such Defaulting Lender's
Letter of Credit Exposure in accordance with Section 2.3(g)(ii). Additionally, Issuing Bank shall
have no obligation to issue or extend a Letter of Credit if (A) any order, judgment, or decree of
any Governmental Authority or arbitrator shall, by its terms, purport to enjoin or restrain Issuing
Bank from issuing such Letter of Credit, or any law applicable to Issuing Bank or any request or
directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over Issuing Bank shall prohibit or request that Issuing Bank refrain from the issuance
of letters of credit generally or such Letter of Credit in particular, (B) the issuance of such Letter
of Credit would violate one or more policies of Issuing Bank applicable to letters of credit
generally, or (C) if amounts demanded to be paid under any Letter of Credit will not or may not
be in US Dollars.
(d)
Any Issuing Bank (other than Wells Fargo or any of its Affiliates) shall
notify Agent in writing no later than the Business Day prior to the Business Day on which such
Issuing Bank issues any Letter of Credit. In addition, each Issuing Bank (other than Wells Fargo
or any of its Affiliates) shall, on the first Business Day of each week, submit to Agent a report
detailing the daily undrawn amount of each Letter of Credit issued by such Issuing Bank during
the prior calendar week. Each Letter of Credit shall be in form and substance reasonably
acceptable to Issuing Bank, including the requirement that the amounts payable thereunder must
be payable in Dollars. If Issuing Bank makes a payment under a Letter of Credit, Borrowers shall
pay to Agent an amount equal to the applicable Letter of Credit Disbursement on the Business Day
such Letter of Credit Disbursement is made and, in the absence of such payment, the amount of
the Letter of Credit Disbursement immediately and automatically shall be deemed to be a
Revolving Loan hereunder (notwithstanding any failure to satisfy any condition precedent set forth
in Section 3) and, initially, shall bear interest at the rate then applicable to Revolving Loans that
are Base Rate Loans. If a Letter of Credit Disbursement is deemed to be a Revolving Loan
hereunder, Borrowers' obligation to pay the amount of such Letter of Credit Disbursement to
Issuing Bank shall be automatically converted into an obligation to pay the resulting Revolving
Loan. Promptly following receipt by Agent of any payment from Borrowers pursuant to this
paragraph, Agent shall distribute such payment to Issuing Bank or, to the extent that Revolving
Lenders have made payments pursuant to Section 2.11(e) to reimburse Issuing Bank, then to such
Revolving Lenders and Issuing Bank as their interests may appear.
(e)
Promptly following receipt of a notice of a Letter of Credit Disbursement
pursuant to Section 2.11(d), each Revolving Lender agrees to fund its Pro Rata Share of any
Revolving Loan deemed made pursuant to Section 2.11(d) on the same terms and conditions as if
Borrowers had requested the amount thereof as a Revolving Loan and Agent shall promptly pay
to Issuing Bank the amounts so received by it from the Revolving Lenders. By the issuance of a
Letter of Credit (or an amendment or extension of a Letter of Credit) and without any further action
on the part of Issuing Bank or the Revolving Lenders, Issuing Bank shall be deemed to have
granted to each Revolving Lender, and each Revolving Lender shall be deemed to have purchased,
a participation in each Letter of Credit issued by Issuing Bank, in an amount equal to its Pro Rata
Share of such Letter of Credit, and each such Revolving Lender agrees to pay to Agent, for the
account of Issuing Bank, such Revolving Lender's Pro Rata Share of any Letter of Credit
Disbursement made by Issuing Bank under the applicable Letter of Credit. In consideration and
in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally
agrees to pay to Agent, for the account of Issuing Bank, such Revolving Lender's Pro Rata Share
of each Letter of Credit Disbursement made by Issuing Bank and not reimbursed by Borrowers on
the date due as provided in Section 2.11(d) , or of any reimbursement payment that is required to
be refunded (or that Agent or Issuing Bank elects, based upon the advice of counsel, to refund) to
Borrowers for any reason. Each Revolving Lender acknowledges and agrees that its obligation to
deliver to Agent, for the account of Issuing Bank, an amount equal to its respective Pro Rata Share
of each Letter of Credit Disbursement pursuant to this Section 2.11(e) shall be absolute and
unconditional and such remittance shall be made notwithstanding the occurrence or continuation
of an Event of Default or Default or the failure to satisfy any condition set forth in Section 3. If
any such Revolving Lender fails to make available to Agent the amount of such Revolving
Lender's Pro Rata Share of a Letter of Credit Disbursement as provided in this Section, such
Revolving Lender shall be deemed to be a Defaulting Lender and Agent (for the account of Issuing
Bank) shall be entitled to recover such amount on demand from such Revolving Lender together
with interest thereon at the Defaulting Lender Rate until paid in full.
(f)
Each Borrower agrees to indemnify, defend and hold harmless each
member of the Lender Group (including Issuing Bank and its branches, Affiliates, and
correspondents) and each such Person's respective directors, officers, employees, attorneys and
agents (each, including Issuing Bank, a "Letter of Credit Related Person") (to the fullest extent
permitted by law) from and against any and all claims, demands, suits, actions, investigations,
proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable fees and
disbursements of attorneys, experts, or consultants and all other costs and expenses actually
incurred in connection therewith or in connection with the enforcement of this indemnification (as
and when they are incurred and irrespective of whether suit is brought), which may be incurred by
or awarded against any such Letter of Credit Related Person (other than Taxes, which shall be
governed by Section 16) (the "Letter of Credit Indemnified Costs"), and which arise out of or in
connection with, or as a result of:
(i)
any Letter of Credit or any pre-advice of its issuance;
(ii)
any transfer, sale, delivery, surrender or endorsement (or lack
thereof) of any Drawing Document at any time(s) held by any such Letter of Credit Related Person
in connection with any Letter of Credit;
(iii)
any action or proceeding arising out of, or in connection with, any
Letter of Credit (whether administrative, judicial or in connection with arbitration), including any
action or proceeding to compel or restrain any presentation or payment under any Letter of Credit,
or for the wrongful dishonor of, or honoring a presentation under, any Letter of Credit;
(iv)
any independent undertakings issued by the beneficiary of any
Letter of Credit;
(v)
any unauthorized instruction or request made to Issuing Bank in
connection with any Letter of Credit or requested Letter of Credit, or any error, omission,
interruption or delay in such instruction or request, whether transmitted by mail, courier, electronic
transmission, SWIFT, or any other telecommunication including communications through a
correspondent;
(vi)
an adviser, confirmer or other nominated person seeking to be
reimbursed, indemnified or compensated;
(vii)
any third party seeking to enforce the rights of an applicant,
beneficiary, nominated person, transferee, assignee of Letter of Credit proceeds or holder of an
instrument or document;
(viii)
the fraud, forgery or illegal action of parties other than the Letter of
Credit Related Person;
(ix)
any prohibition on payment or delay in payment of any amount
payable by Issuing Bank to a beneficiary or transferee beneficiary of a Letter of Credit arising out
of Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions;
(x)
Issuing Bank's performance of the obligations of a confirming
institution or entity that wrongfully dishonors a confirmation;
(xi)
any foreign language translation provided to Issuing Bank in
connection with any Letter of Credit;
(xii)
any foreign law or usage as it relates to Issuing Bank's issuance of a
Letter of Credit in support of a foreign guaranty including the expiration of such guaranty after the
related Letter of Credit expiration date and any resulting drawing paid by Issuing Bank in
connection therewith; or
(xiii)
the acts or omissions, whether rightful or wrongful, of any present
or future de jure or de facto governmental or regulatory authority or cause or event beyond the
control of the Letter of Credit Related Person;
provided, that such indemnity shall not be available to any Letter of Credit Related Person claiming
indemnification under clauses (i) through (xiii) above to the extent that such Letter of Credit
Indemnified Costs may be finally determined in a final, non-appealable judgment of a court of
competent jurisdiction to have resulted directly from the gross negligence or willful misconduct
of the Letter of Credit Related Person claiming indemnity. Borrowers hereby agree to pay the
Letter of Credit Related Person claiming indemnity on demand from time to time all amounts
owing under this Section 2.11(f). If and to the extent that the obligations of Borrowers under this
Section 2.11(f) are unenforceable for any reason, Borrowers agree to make the maximum
contribution to the Letter of Credit Indemnified Costs permissible under applicable law. This
indemnification provision shall survive termination of this Agreement and all Letters of Credit.
(g)
The liability of Issuing Bank (or any other Letter of Credit Related Person)
under, in connection with or arising out of any Letter of Credit (or pre-advice), regardless of the
form or legal grounds of the action or proceeding, shall be limited to direct damages suffered by
Borrowers that are caused directly by Issuing Bank's gross negligence or willful misconduct in (i)
honoring a presentation under a Letter of Credit that on its face does not at least substantially
comply with the terms and conditions of such Letter of Credit, (ii) failing to honor a presentation
under a Letter of Credit that strictly complies with the terms and conditions of such Letter of
Credit, or (iii) retaining Drawing Documents presented under a Letter of Credit. Borrowers'
aggregate remedies against Issuing Bank and any Letter of Credit Related Person for wrongfully
honoring a presentation under any Letter of Credit or wrongfully retaining honored Drawing
Documents shall in no event exceed the aggregate amount paid by Borrowers to Issuing Bank in
respect of the honored presentation in connection with such Letter of Credit under Section 2.11(d),
plus
to avoid and mitigate the amount of any damages claimed against Issuing Bank or any other Letter
of Credit Related Person, including by enforcing its rights against the beneficiaries of the Letters
of Credit. Any claim by Borrowers under or in connection with any Letter of Credit shall be
reduced by an amount equal to the sum of (x) the amount (if any) saved by Borrowers as a result
of the breach or alleged wrongful conduct complained of, and (y) the amount (if any) of the loss
that would have been avoided had Borrowers taken all reasonable steps to mitigate any loss, and
in case of a claim of wrongful dishonor, by specifically and timely authorizing Issuing Bank to
effect a cure.
(h)
Borrowers are responsible for the final text of the Letter of Credit as issued
by Issuing Bank, irrespective of any assistance Issuing Bank may provide such as drafting or
recommending text or by Issuing Bank's use or refusal to use text submitted by Borrowers.
Borrowers understand that the final form of any Letter of Credit may be subject to such revisions
and changes as are deemed necessary or appropriate by Issuing Bank, and Borrowers hereby
consent to such revisions and changes not materially different from the application executed in
connection therewith. Borrowers are solely responsible for the suitability of the Letter of Credit
for Borrowers' purposes. If Borrowers request Issuing Bank to issue a Letter of Credit for an
affiliated or unaffiliated third party (an "Account Party"), (i) such Account Party shall have no
rights against Issuing Bank; (ii) Borrowers shall be responsible for the application and obligations
under this Agreement; and (iii) communications (including notices) related to the respective Letter
of Credit shall be among Issuing Bank and Borrowers. Borrowers will examine the copy of the
Letter of Credit and any other documents sent by Issuing Bank in connection therewith and shall
promptly notify Issuing Bank (not later than three (3) Business Days following Borrowers' receipt
of documents from Issuing Bank) of any non-compliance with Borrowers' instructions and of any
discrepancy in any document under any presentment or other irregularity. Borrowers understand
and agree that Issuing Bank is not required to extend the expiration date of any Letter of Credit for
any reason. With respect to any Letter of Credit containing an "automatic amendment" to extend
the expiration date of such Letter of Credit, Issuing Bank, in its sole and absolute discretion, may
give notice of non-extension of such Letter of Credit and, if Borrowers do not at any time want the
then current expiration date of such Letter of Credit to be extended, Borrowers will so notify Agent
and Issuing Bank at least 30 calendar days before Issuing Bank is required to notify the beneficiary
of such Letter of Credit or any advising bank of such non-extension pursuant to the terms of such
Letter of Credit.
(i)
Borrowers' reimbursement and payment obligations under this Section 2.11
are absolute, unconditional and irrevocable and shall be performed strictly in accordance with the
terms of this Agreement under any and all circumstances whatsoever, including:
(i)
any lack of validity, enforceability or legal effect of any Letter of
Credit, any Issuer Document, this Agreement, or any Loan Document, or any term or provision
therein or herein;
(ii)
payment against presentation of any draft, demand or claim for
payment under any Drawing Document that does not comply in whole or in part with the terms of
the applicable Letter of Credit or which proves to be fraudulent, forged or invalid in any respect
or any statement therein being untrue or inaccurate in any respect, or which is signed, issued or
presented by a Person or a transferee of such Person purporting to be a successor or transferee of
the beneficiary of such Letter of Credit;
(iii)
Issuing Bank or any of its branches or Affiliates being the
beneficiary of any Letter of Credit;
(iv)
Issuing Bank or any correspondent honoring a drawing against a
Drawing Document up to the amount available under any Letter of Credit even if such Drawing
Document claims an amount in excess of the amount available under the Letter of Credit;
(v)
the existence of any claim, set-off, defense or other right that any
Loan Party or any of its Subsidiaries may have at any time against any beneficiary or transferee
beneficiary, any assignee of proceeds, Issuing Bank or any other Person;
(vi)
Issuing Bank or any correspondent honoring a drawing upon receipt
of an electronic presentation under a Letter of Credit requiring the same, regardless of whether the
original Drawing Documents arrive at Issuing Bank's counters or are different from the electronic
presentation;
(vii)
any other event, circumstance or conduct whatsoever, whether or
not similar to any of the foregoing that might, but for this Section 2.11(i), constitute a legal or
equitable defense to or discharge of, or provide a right of set-off against, any Borrower's or any of
its Subsidiaries' reimbursement and other payment obligations and liabilities, arising under, or in
connection with, any Letter of Credit, whether against Issuing Bank, the beneficiary or any other
Person; or
(viii)
the fact that any Default or Event of Default shall have occurred and
be continuing;
provided, that subject to Section 2.11(g) above, the foregoing shall not release Issuing Bank from
such liability to Borrowers as may be finally determined in a final, non-appealable judgment of a
court of competent jurisdiction against Issuing Bank following reimbursement or payment of the
obligations and liabilities, including reimbursement and other payment obligations, of Borrowers
to Issuing Bank arising under, or in connection with, this Section 2.11 or any Letter of Credit.
(j)
Without limiting any other provision of this Agreement, Issuing Bank and
each other Letter of Credit Related Person (if applicable) shall not be responsible to Borrowers
for, and Issuing Bank's rights and remedies against Borrowers and the obligation of Borrowers to
reimburse Issuing Bank for each drawing under each Letter of Credit shall not be impaired by:
(i)
honor of a presentation under any Letter of Credit that on its face
substantially complies with the terms and conditions of such Letter of Credit, even if the Letter of
Credit requires strict compliance by the beneficiary;
(ii)
honor of a presentation of any Drawing Document that appears on
its face to have been signed, presented or issued (A) by any purported successor or transferee of
any beneficiary or other Person required to sign, present or issue such Drawing Document or (B)
under a new name of the beneficiary;
(iii)
acceptance as a draft of any written or electronic demand or request
for payment under a Letter of Credit, even if nonnegotiable or not in the form of a draft or
notwithstanding any requirement that such draft, demand or request bear any or adequate reference
to the Letter of Credit;
(iv)
the identity or authority of any presenter or signer of any Drawing
Document or the form, accuracy, genuineness or legal effect of any Drawing Document (other
than Issuing Bank's determination that such Drawing Document appears on its face substantially
to comply with the terms and conditions of the Letter of Credit);
(v)
acting upon any instruction or request relative to a Letter of Credit
or requested Letter of Credit that Issuing Bank in good faith believes to have been given by a
Person authorized to give such instruction or request;
(vi)
any errors, omissions, interruptions or delays in transmission or
delivery of any message, advice or document (regardless of how sent or transmitted) or for errors
in interpretation of technical terms or in translation or any delay in giving or failing to give notice
to any Borrower;
(vii)
any acts, omissions or fraud by, or the insolvency of, any
beneficiary, any nominated person or entity or any other Person or any breach of contract between
any beneficiary and any Borrower or any of the parties to the underlying transaction to which the
Letter of Credit relates;
(viii)
assertion or waiver of any provision of the ISP or UCP that primarily
benefits an issuer of a letter of credit, including any requirement that any Drawing Document be
presented to it at a particular hour or place;
(ix)
payment to any presenting bank (designated or permitted by the
terms of the applicable Letter of Credit) claiming that it rightfully honored or is entitled to
reimbursement or indemnity under Standard Letter of Credit Practice applicable to it;
(x)
acting or failing to act as required or permitted under Standard Letter
of Credit Practice applicable to where Issuing Bank has issued, confirmed, advised or negotiated
such Letter of Credit, as the case may be;
(xi)
honor of a presentation after the expiration date of any Letter of
Credit notwithstanding that a presentation was made prior to such expiration date and dishonored
by Issuing Bank if subsequently Issuing Bank or any court or other finder of fact determines such
presentation should have been honored;
(xii)
dishonor of any presentation that does not strictly comply or that is
fraudulent, forged or otherwise not entitled to honor; or
(xiii)
honor of a presentation that is subsequently determined by Issuing
Bank to have been made in violation of international, federal, state or local restrictions on the
transaction of business with certain prohibited Persons.
(k)
Borrowers shall pay immediately upon demand to Agent for the account of
Issuing Bank as non-refundable fees, commissions, and charges (it being acknowledged and
agreed that any charging of such fees, commissions, and charges to the Loan Account pursuant to
the provisions of Section 2.6(d) shall be deemed to constitute a demand for payment thereof for
the purposes of this Section 2.11(k)): (i) a fronting fee which shall be imposed by Issuing Bank
equal to .250%
per annum
immediately preceding month,
plus
then in effect imposed by, and any and all expenses incurred by, Issuing Bank, or by any adviser,
confirming institution or entity or other nominated person, relating to Letters of Credit, at the time
of issuance of any Letter of Credit and upon the occurrence of any other activity with respect to
any Letter of Credit (including transfers, assignments of proceeds, amendments, drawings,
extensions or cancellations).
(l)
If by reason of (x) any Change in Law, or (y) compliance by Issuing Bank
or any other member of the Lender Group with any direction, request, or requirement (irrespective
of whether having the force of law) of any Governmental Authority or monetary authority
including, Regulation D of the Board of Governors as from time to time in effect (and any
successor thereto):
(i)
any reserve, deposit, or similar requirement is or shall be imposed
or modified in respect of any Letter of Credit issued or caused to be issued hereunder or hereby,
or any Loans or obligations to make Loans hereunder or hereby, or
(ii)
there shall be imposed on Issuing Bank or any other member of the
Lender Group any other condition regarding any Letter of Credit, Loans, or obligations to make
Loans hereunder,
and the result of the foregoing is to increase, directly or indirectly, the cost to Issuing Bank or any
other member of the Lender Group of issuing, making, participating in, or maintaining any Letter
of Credit or to reduce the amount receivable in respect thereof, then, and in any such case, Agent
may, at any time within a reasonable period after the additional cost is incurred or the amount
received is reduced, notify Borrowers, and Borrowers shall pay within 30 days after demand
therefor, such amounts as Agent may specify to be necessary to compensate Issuing Bank or any
other member of the Lender Group for such additional cost or reduced receipt, together with
interest on such amount from the date of such demand until payment in full thereof at the rate then
applicable to Base Rate Loans hereunder; provided, that (A) Borrowers shall not be required to
provide any compensation pursuant to this Section 2.11(l) for any such amounts incurred more
than 180 days prior to the date on which the demand for payment of such amounts is first made to
Borrowers, and (B) if an event or circumstance giving rise to such amounts is retroactive, then the
180-day period referred to above shall be extended to include the period of retroactive effect
thereof. The determination by Agent of any amount due pursuant to this Section 2.11(l), as set
forth in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence
of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto.
(m)
Each standby Letter of Credit shall expire not later than the date that is 12
months after the date of the issuance of such Letter of Credit; provided, that any standby Letter of
Credit may provide for the automatic extension thereof for any number of additional periods each
of up to one year in duration; provided further, that with respect to any Letter of Credit which
extends beyond the Maturity Date, Letter of Credit Collateralization shall be provided therefor on
or before the date that is five Business Days prior to the Maturity Date. Each commercial Letter
of Credit shall expire on the earlier of (i) 120 days after the date of the issuance of such commercial
Letter of Credit and (ii) five Business Days prior to the Maturity Date.
(n)
If (i) any Event of Default shall occur and be continuing, or (ii) Availability
shall at any time be less than zero, then on the Business Day following the date when the
Administrative Borrower receives notice from Agent or the Required Lenders (or, if the maturity
of the Obligations has been accelerated, Revolving Lenders with Letter of Credit Exposure
representing greater than 50% of the total Letter Credit Exposure) demanding Letter of Credit
Collateralization pursuant to this Section 2.11(n) upon such demand, Borrowers shall provide
Letter of Credit Collateralization with respect to the then existing Letter of Credit Usage. If
Borrowers fail to provide Letter of Credit Collateralization as required by this Section 2.11(n), the
Revolving Lenders may (and, upon direction of Agent, shall) advance, as Revolving Loans the
amount of the cash collateral required pursuant to the Letter of Credit Collateralization provision
so that the then existing Letter of Credit Usage is cash collateralized in accordance with the Letter
of Credit Collateralization provision (whether or not the Revolver Commitments have terminated,
an Overadvance exists or the conditions in Section 3 are satisfied).
(o)
Unless otherwise expressly agreed by Issuing Bank and Borrowers when a
Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and
(ii) the rules of the UCP shall apply to each commercial Letter of Credit.
(p)
Issuing Bank shall be deemed to have acted with due diligence and
reasonable care if Issuing Bank's conduct is in accordance with Standard Letter of Credit Practice
or in accordance with this Agreement.
(q)
In the event of a direct conflict between the provisions of this Section 2.11
and any provision contained in any Issuer Document, it is the intention of the parties hereto that
such provisions be read together and construed, to the fullest extent possible, to be in concert with
each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid,
the terms and provisions of this Section 2.11 shall control and govern.
(r)
The provisions of this Section 2.11 shall survive the termination of this
Agreement and the repayment in full of the Obligations with respect to any Letters of Credit that
remain outstanding.
(s)
At Borrowers' costs and expense, Borrowers shall execute and deliver to
Issuing Bank such additional certificates, instruments and/or documents and take such additional
action as may be reasonably requested by Issuing Bank to enable Issuing Bank to issue any Letter
of Credit pursuant to this Agreement and related Issuer Document, to protect, exercise and/or
enforce Issuing Banks' rights and interests under this Agreement or to give effect to the terms and
provisions of this Agreement or any Issuer Document. Each Borrower irrevocably appoints
Issuing Bank as its attorney-in-fact and authorizes Issuing Bank, without notice to Borrowers, to
execute and deliver ancillary documents and letters customary in the letter of credit business that
may include but are not limited to advisements, indemnities, checks, bills of exchange and issuance
documents. The power of attorney granted by the Borrowers is limited solely to such actions
related to the issuance, confirmation or amendment of any Letter of Credit and to ancillary
documents or letters customary in the letter of credit business. This appointment is coupled with
an interest.
2.12.
LIBOR Option
.
(a)
Interest and Interest Payment Dates
. In lieu of having interest charged
at the rate based upon the Base Rate, Borrowers shall have the option, subject to Section 2.12(b)
below (the "LIBOR Option") to have interest on all or a portion of the Revolving Loans or the
Term Loan be charged (whether at the time when made (unless otherwise provided herein), upon
conversion from a Base Rate Loan to a LIBOR Rate Loan, or upon continuation of a LIBOR Rate
Loan as a LIBOR Rate Loan) at a rate of interest based upon the LIBOR Rate. Interest on LIBOR
Rate Loans shall be payable on the earliest of (i) the last day of the Interest Period applicable
thereto; provided, that subject to the following clauses (ii) and (iii), in the case of any Interest
Period greater than three months in duration, interest shall be payable at three month intervals after
the commencement of the applicable Interest Period and on the last day of such Interest Period),
(ii) the date on which all or any portion of the Obligations are accelerated pursuant to the terms
hereof, or (iii) the date on which this Agreement is terminated pursuant to the terms hereof. On
the last day of each applicable Interest Period, unless Borrowers have properly exercised the
LIBOR Option with respect thereto, the interest rate applicable to such LIBOR Rate Loan
automatically shall convert to the rate of interest then applicable to Base Rate Loans of the same
type hereunder. At any time that an Event of Default has occurred and is continuing, at the written
election of Agent or the Required Lenders, Borrowers no longer shall have the option to request
that Revolving Loans or any portion of the Term Loan bear interest at a rate based upon the LIBOR
Rate.
(b)
LIBOR Election
.
(i)
Borrowers may, at any time and from time to time, so long as
Borrowers have not received a notice from Agent (which notice Agent may elect to give or not
give in its discretion unless Agent is directed to give such notice by the Required Lenders, in which
case, it shall give the notice to Borrowers), after the occurrence and during the continuance of an
Event of Default, to terminate the right of Borrowers to exercise the LIBOR Option during the
continuance of such Event of Default, elect to exercise the LIBOR Option by notifying Agent prior
to 1:00 p.m. at least three Business Days prior to the commencement of the proposed Interest
Period (the "LIBOR Deadline"). Notice of Borrowers' election of the LIBOR Option for a
permitted portion of the Revolving Loans or the Term Loan and an Interest Period pursuant to this
Section shall be made by delivery to Agent of a LIBOR Notice received by Agent before the
LIBOR Deadline. Promptly upon its receipt of each such LIBOR Notice, Agent shall provide a
copy thereof to each of the affected Lenders.
(ii)
Each LIBOR Notice shall be irrevocable and binding on Borrowers.
In connection with each LIBOR Rate Loan, each Borrower shall indemnify, defend, and hold
Agent and the Lenders harmless against any loss, cost, or expense actually incurred by Agent or
any Lender as a result of (A) the payment or required assignment of any principal of any LIBOR
Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result
of an Event of Default), (B) the conversion of any LIBOR Rate Loan other than on the last day of
the Interest Period applicable thereto, or (C) the failure to borrow, convert, continue or prepay any
LIBOR Rate Loan on the date specified in any LIBOR Notice delivered pursuant hereto (such
losses, costs, or expenses, "Funding Losses"). A certificate of Agent or a Lender delivered to
Borrowers setting forth in reasonable detail any amount or amounts that Agent or such Lender is
entitled to receive pursuant to this Section 2.12 shall be conclusive absent manifest error.
Borrowers shall pay such amount to Agent or the Lender, as applicable, within 30 days of the date
of its receipt of such certificate.
(iii)
Unless Agent, in its sole discretion, agrees otherwise, Borrowers
shall have not more than five LIBOR Rate Loans in effect at any given time. Borrowers may only
exercise the LIBOR Option for proposed LIBOR Rate Loans of at least $1,000,000.
(c)
Conversion; Prepayment
. Borrowers may convert LIBOR Rate Loans to
Base Rate Loans or prepay LIBOR Rate Loans at any time; provided, that in the event that LIBOR
Rate Loans are converted or prepaid on any date that is not the last day of the Interest Period
applicable thereto, including as a result of any prepayment through the required application by
Agent of any payments or proceeds of Collateral in accordance with Section 2.4(b) or for any other
reason, including early termination of the term of this Agreement or acceleration of all or any
portion of the Obligations pursuant to the terms hereof, each Borrower shall indemnify, defend,
and hold Agent and the Lenders and their Participants harmless against any and all Funding Losses
in accordance with Section 2.12 (b)(ii).
(d)
Special Provisions Applicable to LIBOR Rate
.
(i)
The LIBOR Rate may be adjusted by Agent with respect to any
Lender on a prospective basis to take into account any additional or increased costs to such Lender
of maintaining or obtaining any eurodollar deposits or increased costs (other than Taxes which
shall be governed by Section 16), in each case, due to changes in applicable law occurring
subsequent to the commencement of the then applicable Interest Period, including any Changes in
Law and changes in the reserve requirements imposed by the Board of Governors, which additional
or increased costs would increase the cost of funding or maintaining loans bearing interest at the
LIBOR Rate. In any such event, the affected Lender shall give Borrowers and Agent notice of
such a determination and adjustment and Agent promptly shall transmit the notice to each other
Lender and, upon its receipt of the notice from the affected Lender, Borrowers may, by notice to
such affected Lender (A) require such Lender to furnish to Borrowers a statement setting forth in
reasonable detail the basis for adjusting such LIBOR Rate and the method for determining the
amount of such adjustment, or (B) repay the LIBOR Rate Loans of such Lender with respect to
which such adjustment is made (together with any amounts due under Section 2.12(b)(ii)).
(ii)
Subject to the provisions set forth in Section 2.12(d)(iii) below, in
the event that any change in market conditions or any Change in Law shall at any time after the
date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical for such
Lender to fund or maintain LIBOR Rate Loans or to continue such funding or maintaining, or to
determine or charge interest rates at the LIBOR Rate, such Lender shall give notice of such
changed circumstances to Agent and Borrowers and Agent promptly shall transmit the notice to
each other Lender and (y) in the case of any LIBOR Rate Loans of such Lender that are
outstanding, the date specified in such Lender's notice shall be deemed to be the last day of the
Interest Period of such LIBOR Rate Loans, and interest upon the LIBOR Rate Loans of such
Lender thereafter shall accrue interest at the rate then applicable to Base Rate Loans, and (z)
Borrowers shall not be entitled to elect the LIBOR Option until such Lender determines that it
would no longer be unlawful or impractical to do so.
(iii)
Effect of Benchmark Transition Event.
(A)
Benchmark Replacement. Notwithstanding anything to the
contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition
Event or an Early Opt-in Election, as applicable, Agent and Administrative Borrower may amend
this Agreement to replace the LIBOR Rate with a Benchmark Replacement. Any such amendment
with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th)
Business Day after Agent has posted such proposed amendment to all Lenders and Administrative
Borrower so long as Agent has not received, by such time, written notice of objection to such
amendment from Lenders comprising the Required Lenders. Any such amendment with respect to
an Early Opt-in Election will become effective on the date that Lenders comprising the Required
Lenders have delivered to Agent written notice that such Required Lenders accept such
amendment. No replacement of the LIBOR Rate with a Benchmark Replacement pursuant to this
Section 2.12(d)(iii) will occur prior to the applicable Benchmark Transition Start Date.
(B)
Benchmark Replacement Conforming Changes. In
connection with the implementation of a Benchmark Replacement, Agent will have the right to
make Benchmark Replacement Conforming Changes from time to time and, notwithstanding
anything to the contrary herein or in any other Loan Document, any amendments implementing
such Benchmark Replacement Conforming Changes will become effective without any further
action or consent of any other party to this Agreement.
(C)
Notices; Standards for Decisions and Determinations.
Agent will promptly notify Administrative Borrower and the Lenders of (1) any occurrence of a
Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark
Replacement Date and Benchmark Transition Start Date, (2) the implementation of any
Benchmark Replacement, (3) the effectiveness of any Benchmark Replacement Conforming
Changes, and (4) the commencement or conclusion of any Benchmark Unavailability Period. Any
determination, decision or election that may be made by Agent or Lenders pursuant to this Section
2.12(d)(iii) including any determination with respect to a tenor, rate or adjustment or of the
occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain
from taking any action, will be conclusive and binding absent manifest error and may be made in
its or their sole discretion and without consent from any other party hereto, except, in each case,
as expressly required pursuant to this Section 2.12(d)(iii).
(D)
Benchmark Unavailability Period. Upon Administrative
Borrower's receipt of notice of the commencement of a Benchmark Unavailability Period,
Administrative Borrower may revoke any request for a LIBOR Borrowing of, conversion to or
continuation of LIBOR Rate Loans to be made, converted or continued during any Benchmark
Unavailability Period and, failing that, Administrative Borrower will be deemed to have converted
any such request into a request for a Borrowing of or conversion to Base Rate Loans. During any
Benchmark Unavailability Period, the component of Base Rate based upon the LIBOR Rate will
not be used in any determination of the Base Rate.
(e)
No Requirement of Matched Funding
. Anything to the contrary
contained herein notwithstanding, neither Agent, nor any Lender, nor any of their Participants, is
required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as
to which interest accrues at the LIBOR Rate.
2.13.
Capital Requirements
.
(a)
If, after the date hereof, Issuing Bank or any Lender determines that (i) any
Change in Law regarding capital, liquidity or reserve requirements for banks or bank holding
companies, or (ii) compliance by Issuing Bank or such Lender, or their respective parent bank
holding companies, with any guideline, request or directive of any Governmental Authority
regarding capital adequacy or liquidity requirements (whether or not having the force of law), has
the effect of reducing the return on Issuing Bank's, such Lender's, or such holding companies'
capital or liquidity as a consequence of Issuing Bank's or such Lender's commitments, Loans,
participations or other obligations hereunder to a level below that which Issuing Bank, such
Lender, or such holding companies could have achieved but for such Change in Law or compliance
(taking into consideration Issuing Bank's, such Lender's, or such holding companies' then existing
policies with respect to capital adequacy or liquidity requirements and assuming the full utilization
of such entity's capital) by any amount deemed by Issuing Bank or such Lender to be material,
then Issuing Bank or such Lender may notify Borrowers and Agent thereof. Following receipt of
such notice, Borrowers agree to pay Issuing Bank or such Lender on demand the amount of such
reduction of return of capital as and when such reduction is determined, payable within 30 days
after presentation by Issuing Bank or such Lender of a statement in the amount and setting forth
in reasonable detail Issuing Bank's or such Lender's calculation thereof and the assumptions upon
which such calculation was based (which statement shall be deemed true and correct absent
manifest error). In determining such amount, Issuing Bank or such Lender may use any reasonable
averaging and attribution methods. Failure or delay on the part of Issuing Bank or any Lender to
demand compensation pursuant to this Section shall not constitute a waiver of Issuing Bank's or
such Lender's right to demand such compensation; provided, that Borrowers shall not be required
to compensate Issuing Bank or a Lender pursuant to this Section for any reductions in return
incurred more than 180 days prior to the date that Issuing Bank or such Lender notifies Borrowers
of such Change in Law giving rise to such reductions and of such Lender's intention to claim
compensation therefor; provided further, that if such claim arises by reason of the Change in Law
that is retroactive, then the 180-day period referred to above shall be extended to include the period
of retroactive effect thereof.
(b)
If Issuing Bank or any Lender requests additional or increased costs referred
to in Section 2.11(l) or Section 2.12(d)(i) or amounts under Section 2.13(a) or sends a notice under
Section 2.12(d)(ii) relative to changed circumstances (such Issuing Bank or Lender, an "Affected
Lender"), then, at the request of Administrative Borrower, such Affected Lender shall use
reasonable efforts to promptly designate a different one of its lending offices or to assign its rights
and obligations hereunder to another of its offices or branches, if (i) in the reasonable judgment of
such Affected Lender, such designation or assignment would eliminate or reduce amounts payable
pursuant to Section 2.11(l), Section 2.12(d)(i) or Section 2.13(a), as applicable, or would eliminate
the illegality or impracticality of funding or maintaining LIBOR Rate Loans, and (ii) in the
reasonable judgment of such Affected Lender, such designation or assignment would not subject
it to any material unreimbursed cost or expense and would not otherwise be materially
disadvantageous to it. Borrowers agree to pay all reasonable out-of-pocket costs and expenses
incurred by such Affected Lender in connection with any such designation or assignment. If, after
such reasonable efforts, such Affected Lender does not so designate a different one of its lending
offices or assign its rights to another of its offices or branches so as to eliminate Borrowers'
obligation to pay any future amounts to such Affected Lender pursuant to Section 2.11(l), Section
2.12(d)(i) or Section 2.13(a), as applicable, or to enable Borrowers to obtain LIBOR Rate Loans,
then Borrowers (without prejudice to any amounts then due to such Affected Lender under Section
2.11(l), Section 2.12(d)(i) or Section 2.13(a), as applicable) may, unless prior to the effective date
of any such assignment the Affected Lender withdraws its request for such additional amounts
under Section 2.11(l), Section 2.12(d)(i) or Section 2.13(a), as applicable, or indicates that it is no
longer unlawful or impractical to fund or maintain LIBOR Rate Loans, may designate a different
Issuing Bank or substitute a Lender or prospective Lender, in each case, reasonably acceptable to
Agent to purchase the Obligations owed to such Affected Lender and such Affected Lender's
commitments hereunder (a "Replacement Lender"), and if such Replacement Lender agrees to
such purchase, such Affected Lender shall assign to the Replacement Lender its Obligations and
commitments, and upon such purchase by the Replacement Lender, which such Replacement
Lender shall be deemed to be "Issuing Bank" or a "Lender" (as the case may be) for purposes of
this Agreement and such Affected Lender shall cease to be "Issuing Bank" or a "Lender" (as the
case may be) for purposes of this Agreement.
(c)
Notwithstanding anything herein to the contrary, the protection of Sections
2.11(l), 2.12(d), and 2.13 shall be available to Issuing Bank and each Lender (as applicable)
regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation,
judicial ruling, judgment, guideline, treaty or other change or condition which shall have occurred
or been imposed, so long as it shall be customary for issuing banks or lenders affected thereby to
comply therewith. Notwithstanding any other provision herein, neither Issuing Bank nor any
Lender shall demand compensation pursuant to this Section 2.13 if it shall not at the time be the
general policy or practice of Issuing Bank or such Lender (as the case may be) to demand such
compensation in similar circumstances under comparable provisions of other credit agreements, if
any.
2.14.
Incremental Facilities
.
(a)
At any time during the period from and after the Closing Date through but
excluding the date that is the 3 year anniversary of the Closing Date, at the option of Borrowers
(but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the
Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases
of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available
Increase Amount (each such increase, an "Increase"). Agent shall invite each Lender to increase
its Revolver Commitments (it being understood that no Lender shall be obligated to increase its
Revolver Commitments) in connection with a proposed Increase at the interest margin proposed
by Borrowers, and if sufficient Lenders do not agree to increase their Revolver Commitments in
connection with such proposed Increase, then Agent or Borrowers may invite any prospective
lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection
with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral
multiples of $5,000,000 in excess thereof. In no event may the Revolver Commitments and the
Maximum Revolver Amount to be increased pursuant to this Section 2.14 on more than 2 occasions
in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood
and agreed that in no event shall the aggregate amount of the Increases to the Revolver
Commitments exceed $10,000,000.
(b)
Each of the following shall be conditions precedent to any Increase of the
Revolver Commitments and the Maximum Revolver Amount in connection therewith:
(i)
Agent or Borrowers have obtained the commitment of one or more
Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide
the applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent have
signed a joinder agreement to this Agreement (an "Increase Joinder"), in form and substance
reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and
Agent are party,
(ii)
each of the conditions precedent set forth in Section 3.2 are satisfied,
(iii)
in connection with any Increase, if any Loan Party or any of its
Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated
Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and
delivered by the Borrowers, together with such other documentation as Agent shall reasonably
request, in order to enable Agent and the Lenders to comply with any of the requirements under
Regulations T, U or X of the Federal Reserve Board,
(iv)
Borrowers have delivered to Agent updated
pro forma
(after giving effect to the applicable Increase) for the Loan Parties and their Subsidiaries
evidencing compliance on a
pro forma
by-month basis) immediately following the proposed date of the applicable Increase, and
(v)
The interest rate margins with respect to the Revolving Loans to be
made pursuant to the increased Revolver Commitments shall be the same as the interest rate margin
applicable to Revolving Loans hereunder immediately prior to the applicable Increase Date (as
defined below)
(the date of the effectiveness of the increased Revolver Commitments and the
Maximum Revolver Amount, the "Increase Date"). Any Increase Joinder may, with the consent
of Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase,
effect such amendments to this Agreement and the other Loan Documents as may be necessary to
effectuate the provisions of this Section 2.14.
(c)
Unless otherwise specifically provided herein, (i) all references in this
Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context
otherwise requires, to include Revolving Loans made pursuant to the increased Revolver
Commitments and Maximum Revolver Amount pursuant to this Section 2.14, and (ii) all
references in this Agreement and any other Loan Document to the Term Loan shall be deemed,
unless the context otherwise requires, to include any Additional Portion of the Term Loan made
pursuant to the increased Term Loan Amount pursuant to this Section 2.14.
(d)
Each of the Lenders having a Revolver Commitment prior to the Increase
Date (the "Pre-Increase Revolver Lenders") shall assign to any Lender which is acquiring a new
or additional Revolver Commitment on the Increase Date (the "Post-Increase Revolver Lenders"),
and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender,
at the principal amount thereof, such interests in the Revolving Loans and participation interests
in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to
all such assignments and purchases, such Revolving Loans and participation interests in Letters of
Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably
in accordance with their Pro Rata Share after giving effect to such increased Revolver
Commitments.
(e)
The Revolving Loans, Revolver Commitments, and Maximum Revolver
Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver
Commitments, and Maximum Revolver Amount under, and shall be entitled to all the benefits
afforded by, this Agreement and the other Loan Documents, and shall, without limiting the
foregoing, benefit equally and ratably from any guarantees and the security interests created by the
Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and
demonstrate that the Liens and security interests granted by the Loan Documents continue to be
perfected under the Code or otherwise after giving effect to the establishment of any such new
Revolver Commitments and Maximum Revolver Amount.
2.15.
Currencies
. The Revolving Loans and other Obligations shall be made and
repaid in Dollars. Payments made in a currency other than the currency in which the applicable
Obligations are denominated may be accepted by the Agent in its sole discretion and, if so
accepted, the Borrowers agree that the Agent may convert the payment made to the currency of
the applicable Obligations at the applicable Spot Rate in accordance with its normal practices.
2.16.
Joint and Several Liability of Borrowers
.
(a)
Each Borrower is accepting joint and several liability hereunder and under
the other Loan Documents in consideration of the financial accommodations to be provided by the
Lender Group under this Agreement, for the mutual benefit, directly and indirectly, of each
Borrower and in consideration of the undertakings of the other Borrowers to accept joint and
several liability for the Obligations.
(b)
Each Borrower, jointly and severally, hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability
with the other Borrowers, with respect to the payment and performance of all of the Obligations
(including any Obligations arising under this Section 2.16), it being the intention of the parties
hereto that all the Obligations shall be the joint and several obligations of each Borrower without
preferences or distinction among them. Accordingly, at any time when there is more than one
Borrower, each Borrower hereby waives any and all suretyship defenses that would otherwise be
available to such Borrower under applicable law.
(c)
If and to the extent that any Borrower shall fail to make any payment with
respect to any of the Obligations as and when due, whether upon maturity, acceleration, or
otherwise, or to perform any of the Obligations in accordance with the terms thereof, then in each
such event the other Borrowers will make such payment with respect to, or perform, such
Obligations until such time as all of the Obligations are paid in full, and without the need for
demand, protest, or any other notice or formality.
(d)
The Obligations of each Borrower under the provisions of this Section 2.16
constitute the absolute and unconditional, full recourse Obligations of each Borrower enforceable
against each Borrower to the full extent of its properties and assets, irrespective of the validity,
regularity or enforceability of the provisions of this Agreement (other than this Section 2.16(d)) or
any other circumstances whatsoever.
(e)
Without limiting the generality of the foregoing and except as otherwise
expressly provided in this Agreement, at any time when there is more than one Borrower, each
Borrower hereby waives presentments, demands for performance, protests and notices, including
notices of acceptance of its joint and several liability, notice of any Revolving Loans, any portion
of the Term Loan or any Letters of Credit issued under or pursuant to this Agreement, notice of
the occurrence of any Default, Event of Default, notices of nonperformance, notices of protest,
notices of dishonor, notices of acceptance of this Agreement, notices of the existence, creation, or
incurring of new or additional Obligations or other financial accommodations or of any demand
for any payment under this Agreement, notice of any action at any time taken or omitted by Agent
or Lenders under or in respect of any of the Obligations, any right to proceed against any other
Borrower or any other Person, to proceed against or exhaust any security held from any other
Borrower or any other Person, to protect, secure, perfect, or insure any security interest or Lien on
any property subject thereto or exhaust any right to take any action against any other Borrower,
any other Person, or any collateral, to pursue any other remedy in any member of the Lender
Group's or any Bank Product Provider's power whatsoever, any requirement of diligence or to
mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices
and other formalities of every kind in connection with this Agreement (except as otherwise
provided in this Agreement), any right to assert against any member of the Lender Group or any
Bank Product Provider, any defense (legal or equitable), set-off, counterclaim, or claim which each
Borrower may now or at any time hereafter have against any other Borrower or any other party
liable to any member of the Lender Group or any Bank Product Provider, any defense, set-off,
counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or
future lack of perfection, sufficiency, validity, or enforceability of the Obligations or any security
therefor, and any right or defense arising by reason of any claim or defense based upon an election
of remedies by any member of the Lender Group or any Bank Product Provider including any
defense based upon an impairment or elimination of such Borrower's rights of subrogation,
reimbursement, contribution, or indemnity of such Borrower against any other Borrower. Without
limiting the generality of the foregoing, at any time when there is more than one Borrower, each
Borrower hereby assents to, and waives notice of, any extension or postponement of the time for
the payment of any of the Obligations, the acceptance of any payment of any of the Obligations,
the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence
by Agent or Lenders at any time or times in respect of any default by any Borrower in the
performance or satisfaction of any term, covenant, condition or provision of this Agreement, any
and all other indulgences whatsoever by Agent or Lenders in respect of any of the Obligations,
and the taking, addition, substitution or release, in whole or in part, at any time or times, of any
security for any of the Obligations or the addition, substitution or release, in whole or in part, of
any Borrower. Without limiting the generality of the foregoing, at any time when there is more
than one Borrower, each Borrower assents to any other action or delay in acting or failure to act
on the part of any Agent or Lender with respect to the failure by any Borrower to comply with any
of its respective Obligations, including any failure strictly or diligently to assert any right or to
pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might,
but for the provisions of this Section 2.16 afford grounds for terminating, discharging or relieving
any Borrower, in whole or in part, from any of its Obligations under this Section 2.16, it being the
intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied,
the Obligations of each Borrower under this Section 2.16 shall not be discharged except by
performance and then only to the extent of such performance. The Obligations of each Borrower
under this Section 2.16 shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any
other Borrower or any Agent or Lender. Each of the Borrowers waives, to the fullest extent
permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the
enforcement hereof. Any payment by any Borrower or other circumstance which operates to toll
any statute of limitations as to any Borrower shall operate to toll the statute of limitations as to
each of the Borrowers. At any time when there is more than one Borrower, each of the Borrowers
waives any defense based on or arising out of any defense of any Borrower or any other Person,
other than payment of the Obligations to the extent of such payment, based on or arising out of the
disability of any Borrower or any other Person, or the validity, legality, or unenforceability of the
Obligations or any part thereof from any cause, or the cessation from any cause of the liability of
any Borrower other than payment of the Obligations to the extent of such payment. Agent may,
at the election of the Required Lenders, foreclose upon any Collateral held by Agent by one or
more judicial or nonjudicial sales or other dispositions, whether or not every aspect of any such
sale is commercially reasonable or otherwise fails to comply with applicable law or may exercise
any other right or remedy Agent, any other member of the Lender Group, or any Bank Product
Provider may have against any Borrower or any other Person, or any security, in each case, without
affecting or impairing in any way the liability of any of the Borrowers hereunder except to the
extent the Obligations have been paid.
(f)
Each Borrower represents and warrants to Agent and Lenders that such
Borrower is currently informed of the financial condition of Borrowers and of all other
circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment
of the Obligations. Each Borrower further represents and warrants to Agent and Lenders that such
Borrower has read and understands the terms and conditions of the Loan Documents. Each
Borrower hereby covenants that such Borrower will continue to keep informed of Borrowers'
financial condition and of all other circumstances which bear upon the risk of nonpayment or
nonperformance of the Obligations.
(g)
The provisions of this Section 2.16 are made for the benefit of Agent, each
member of the Lender Group, each Bank Product Provider, and their respective successors and
assigns, and may be enforced by it or them from time to time against any or all Borrowers as often
as occasion therefor may arise and without requirement on the part of Agent, any member of the
Lender Group, any Bank Product Provider, or any of their successors or assigns first to marshal
any of its or their claims or to exercise any of its or their rights against any Borrower or to exhaust
any remedies available to it or them against any Borrower or to resort to any other source or means
of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The
provisions of this Section 2.16 shall remain in effect until all of the Obligations shall have been
paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in
respect of any of the Obligations, is rescinded or must otherwise be restored or returned by Agent
or any Lender upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise,
the provisions of this Section 2.16 will forthwith be reinstated in effect, as though such payment
had not been made.
(h)
Each Borrower hereby agrees that it will not enforce any of its rights that
arise from the existence, payment, performance or enforcement of the provisions of this Section
2.16, including rights of subrogation, reimbursement, exoneration, contribution or indemnification
and any right to participate in any claim or remedy of Agent, any other member of the Lender
Group, or any Bank Product Provider against any Borrower, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including the right to take or receive
from any Borrower, directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security solely on account of such claim, remedy or right, unless and until
such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower
may have against any other Borrower with respect to any payments to any Agent or any member
of the Lender Group hereunder or under any of the Bank Product Agreements are hereby expressly
made subordinate and junior in right of payment, without limitation as to any increases in the
Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations
and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other
similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its
assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before
any payment or distribution of any character, whether in cash, securities or other property, shall
be made to any other Borrower therefor. If any amount shall be paid to any Borrower in violation
of the immediately preceding sentence, such amount shall be held in trust for the benefit of Agent,
for the benefit of the Lender Group and the Bank Product Providers, and shall forthwith be paid to
Agent to be credited and applied to the Obligations and all other amounts payable under this
Agreement, whether matured or unmatured, in accordance with the terms of this Agreement, or to
be held as Collateral for any Obligations or other amounts payable under this Agreement thereafter
arising. Notwithstanding anything to the contrary contained in this Agreement, no Borrower may
exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights
against, and may not proceed or seek recourse against or with respect to any property or asset of,
any other Borrower (the "Foreclosed Borrower"), including after payment in full of the
Obligations, if all or any portion of the Obligations have been satisfied in connection with an
exercise of remedies in respect of the Equity Interests of such Foreclosed Borrower whether
pursuant to this Agreement or otherwise.
(i)
Each of the Borrowers hereby acknowledges and affirms that it understands
that to the extent the Obligations are secured by Real Property located in California, the Borrowers
shall be liable for the full amount of the liability hereunder notwithstanding the foreclosure on
such Real Property by trustee sale or any other reason impairing such Borrower's right to proceed
against any other Loan Party. In accordance with Section 2856 of the California Civil Code or
any similar laws of any other applicable jurisdiction, each of the Borrowers hereby waives until
such time as the Obligations have been paid in full:
(i)
all rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become available to the Borrowers
by reason of Sections 2787 to 2855, inclusive, 2899, and 3433 of the California Civil Code or any
similar laws of any other applicable jurisdiction;
(ii)
all rights and defenses that the Borrowers may have because the
Obligations are secured by Real Property located in California, meaning, among other things, that:
(A) Agent, the other members of the Lender Group, and the Bank Product Providers may collect
from the Borrowers without first foreclosing on any real or personal property collateral pledged
by any Loan Party, and (B) if Agent, on behalf of the Lender Group, forecloses on any Real
Property Collateral pledged by any Loan Party, (1) the amount of the Obligations may be reduced
only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is
worth more than the sale price, and (2) the Lender Group may collect from the Loan Parties even
if, by foreclosing on the Real Property Collateral, Agent or the other members of the Lender Group
have destroyed or impaired any right the Borrowers may have to collect from any other Loan Party,
it being understood that this is an unconditional and irrevocable waiver of any rights and defenses
the Borrowers may have because the Obligations are secured by Real Property (including any
rights or defenses based upon Sections 580a, 580d, or 726 of the California Code of Civil
Procedure or any similar laws of any other applicable jurisdiction); and
(iii)
all rights and defenses arising out of an election of remedies by
Agent, the other members of the Lender Group, and the Bank Product Providers, even though that
election of remedies, such as a nonjudicial foreclosure with respect to security for the Obligations,
has destroyed the Borrowers' rights of subrogation and reimbursement against any other Loan
Party by the operation of Section 580d of the California Code of Civil Procedure or any similar
laws of any other applicable jurisdiction or otherwise.
3.
CONDITIONS; TERM OF AGREEMENT.
3.1.
Conditions Precedent to the Initial Extension of Credit
. The obligation of
each Lender to make the initial extensions of credit provided for hereunder is subject to the
fulfillment, to the satisfaction of Agent and each Lender, of each of the conditions precedent set
forth on Schedule 3.1 to this Agreement (the making of such initial extensions of credit by a Lender
being conclusively deemed to be its satisfaction or waiver of the conditions precedent).
3.2.
Conditions Precedent to all Extensions of Credit
. The obligation of the
Lender Group (or any member thereof) to make any Revolving Loans or to make the Additional
M/E Term Loan hereunder (or to extend any other credit hereunder) at any time shall be subject to
the following conditions precedent:
(a)
the representations and warranties of each Loan Party or its Subsidiaries
contained in this Agreement or in the other Loan Documents shall be true and correct in all material
respects (except that such materiality qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in the text thereof) on and as of the
date of such extension of credit, as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all material respects (except that such
materiality qualifier shall not be applicable to any representations and warranties that already are
qualified or modified by materiality in the text thereof) as of such earlier date);
(b)
no Default or Event of Default shall have occurred and be continuing on the
date of such extension of credit, nor shall either result from the making thereof; and
(c)
solely with respect to the Additional M/E Term Loan, Agent shall have
received an Acceptable Appraisal with respect to the Eligible M&E within three months prior to
the date of the funding of the Additional M/E Term Loan.
3.3.
Maturity
. The Commitments shall continue in full force and effect for a term
ending on the Maturity Date (unless terminated earlier in accordance with the terms hereof).
3.4.
Effect of Maturity
. On the Maturity Date, all commitments of the Lender
Group to provide additional credit hereunder shall automatically be terminated and all of the
Obligations (other than Hedge Obligations) immediately shall become due and payable without
notice or demand and Borrowers shall be required to repay all of the Obligations (other than Hedge
Obligations) in full. No termination of the obligations of the Lender Group (other than payment
in full of the Obligations and termination of the Commitments) shall relieve or discharge any Loan
Party of its duties, obligations, or covenants hereunder or under any other Loan Document and
Agent's Liens in the Collateral shall continue to secure the Obligations and shall remain in effect
until all Obligations have been paid in full. When all of the Obligations have been paid in full,
Agent will, at Borrowers' sole expense, execute and deliver any termination statements, lien
releases, discharges of security interests, and other similar discharge or release documents (and, if
applicable, in recordable form) as are reasonably necessary to release, as of record, Agent's Liens
and all notices of security interests and liens previously filed by Agent.
3.5.
Early Termination by Borrowers
. Borrowers have the option, at any time
upon ten Business Days prior written notice to Agent, to repay all of the Obligations in full and
terminate the Commitments. The foregoing notwithstanding, (a) Borrowers may rescind
termination notices relative to proposed payments in full of the Obligations with the proceeds of
third party Indebtedness if the closing for such issuance or incurrence does not happen on or before
the date of the proposed termination (in which case, a new notice shall be required to be sent in
connection with any subsequent termination), and (b) Borrowers may extend the date of
termination at any time with the consent of Agent (which consent shall not be unreasonably
withheld or delayed).
3.6.
Conditions Subsequent.
thereof) to continue to make Revolving Loans (or otherwise extend credit hereunder) is subject to
the fulfillment, on or before the date applicable thereto, of the conditions subsequent set forth on
Schedule 3.6 to this Agreement (the failure by Borrowers to so perform or cause to be performed
such conditions subsequent as and when required by the terms thereof (unless such date is
extended, in writing, by Agent, which Agent may do without obtaining the consent of the other
members of the Lender Group), shall constitute an Event of Default).
4.
REPRESENTATIONS AND WARRANTIES.
In order to induce the Lender Group to enter into this Agreement, each Borrower makes
the following representations and warranties to the Lender Group which shall be true, correct, and
complete, in all material respects (except that such materiality qualifier shall not be applicable to
any representations and warranties that already are qualified or modified by materiality in the text
thereof), as of the Closing Date, and shall be true, correct, and complete, in all material respects
(except that such materiality qualifier shall not be applicable to any representations and warranties
that already are qualified or modified by materiality in the text thereof), as of the date of the making
of each Revolving Loan (or other extension of credit) made thereafter, as though made on and as
of the date of such Revolving Loan (or other extension of credit) (except to the extent that such
representations and warranties relate solely to an earlier date, in which case such representations
and warranties shall be true and correct in all material respects (except that such materiality
qualifier shall not be applicable to any representations and warranties that already are qualified or
modified by materiality in the text thereof) as of such earlier date), and such representations and
warranties shall survive the execution and delivery of this Agreement:
4.1.
Due Organization and Qualification; Subsidiaries
.
(a)
Each Loan Party and each of its Subsidiaries (i) is duly organized and
existing and in good standing under the laws of the jurisdiction of its organization, (ii) is qualified
or registered to do business in any jurisdiction where the failure to be so qualified or registered
could reasonably be expected to result in a Material Adverse Effect, and (iii) has all requisite power
and authority to own and operate its properties, to carry on its business as now conducted and as
proposed to be conducted, to enter into the Loan Documents to which it is a party and to carry out
the transactions contemplated thereby.
(b)
Set forth on Schedule 4.1(b) to this Agreement (as such Schedule may be
updated from time to time to reflect changes resulting from transactions permitted under this
Agreement) is a complete and accurate description of the authorized Equity Interests of each Loan
Party, by class, and, as of the Closing Date, a description of the number of shares of each such
class that are issued and outstanding.
(c)
Set forth on Schedule 4.1(c) to this Agreement (as such Schedule may be
updated from time to time to reflect changes resulting from transactions permitted under this
Agreement), is a complete and accurate list of the Loan Parties' direct and indirect Subsidiaries,
showing: (i) the number of shares of each class of common and preferred Equity Interests
authorized for each of such Subsidiaries, and (ii) the number and the percentage of the outstanding
shares of each such class owned directly or indirectly by Administrative Borrower. All of the
outstanding Equity Interests of each such Subsidiary has been validly issued and is fully paid and
non-assessable.
(d)
Except as set forth on Schedule 4.1(d) to this Agreement, as of the Closing
Date, there are no subscriptions, options, warrants, or calls relating to any shares of any Loan
Party's or any of its Subsidiaries' Equity Interests, including any right of conversion or exchange
under any outstanding security or other instrument. No Loan Party is subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its Equity
Interests or any security convertible into or exchangeable for any of its Equity Interests.
4.2.
Due Authorization; No Conflict
.
(a)
As to each Loan Party, the execution, delivery, and performance by such
Loan Party of the Loan Documents to which it is a party have been duly authorized by all necessary
action on the part of such Loan Party.
(b)
As to each Loan Party, the execution, delivery, and performance by such
Loan Party of the Loan Documents to which it is a party do not and will not (i) violate any material
provision of federal, state, provincial or local law or regulation applicable to any Loan Party or its
Subsidiaries, the Governing Documents of any Loan Party or its Subsidiaries, or any order,
judgment, or decree of any court or other Governmental Authority binding on any Loan Party or
its Subsidiaries, (ii) conflict with, result in a breach of, or constitute (with due notice or lapse of
time or both) a default under any material agreement of any Loan Party or its Subsidiaries where
any such conflict, breach or default could individually or in the aggregate reasonably be expected
to have a Material Adverse Effect, (iii) result in or require the creation or imposition of any Lien
of any nature whatsoever upon any assets of any Loan Party, other than Permitted Liens, or (iv)
require any approval of any holder of Equity Interests of a Loan Party or any approval or consent
of any Person under any material agreement of any Loan Party, other than consents or approvals
that have been obtained and that are still in force and effect and except, in the case of material
agreements, for consents or approvals, the failure to obtain could not individually or in the
aggregate reasonably be expected to cause a Material Adverse Effect.
4.3.
Governmental Consents
. The execution, delivery, and performance by each
Loan Party of the Loan Documents to which such Loan Party is a party and the consummation of
the transactions contemplated by the Loan Documents do not and will not require any registration
with, consent, or approval of, or notice to, or other action with or by, any Governmental Authority,
other than registrations, consents, approvals, notices, or other actions that have been obtained and
that are still in force and effect and except for filings and recordings with respect to the Collateral
to be made, or otherwise delivered to Agent for filing or recordation, as of the Closing Date.
4.4.
Binding Obligations; Perfected Liens
.
(a)
Each Loan Document has been duly executed and delivered by each Loan
Party that is a party thereto and is the legally valid and binding obligation of such Loan Party,
enforceable against such Loan Party in accordance with its respective terms, except as enforcement
may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium,
or similar laws relating to or limiting creditors' rights generally.
(b)
Agent's Liens are validly created, perfected (other than (i) in respect of
motor vehicles that are subject to a certificate of title, (ii) money, (iii) letter-of-credit rights (other
than supporting obligations), (iv) commercial tort claims (other than those that, by the terms of the
Guaranty and Security Agreement, are required to be perfected), and (v) any Deposit Accounts
and Securities Accounts not subject to a Control Agreement as permitted by Section 7(k)(iv) of
the Guaranty and Security Agreement, and subject only to the filing of financing statements and
the recordation of the Mortgages, in each case, in the appropriate filing offices), and first priority
Liens, subject only to Permitted Liens which are non-consensual Permitted Liens, permitted
purchase money Liens, or the interests of lessors under Capital Leases.
4.5.
Title to Assets; No Encumbrances
. Each of the Loan Parties and its
Subsidiaries has (a) good, sufficient and legal title to (in the case of fee interests in Real Property),
(b) valid leasehold interests in (in the case of leasehold interests in real or personal property), and
(c) good and marketable title to (in the case of all other personal property), all of their respective
assets reflected in their most recent financial statements delivered pursuant to Section 5.1, in each
case except for assets disposed of since the date of such financial statements to the extent permitted
hereby. All of such assets are free and clear of Liens except for Permitted Liens.
4.6.
Litigation
.
(a)
There are no actions, suits, or proceedings pending or, to the knowledge of
any Borrower, after due inquiry, threatened in writing against a Loan Party or any of its
Subsidiaries that either individually or in the aggregate could reasonably be expected to result in a
Material Adverse Effect.
(b)
Schedule 4.6(b) to this Agreement sets forth a complete and accurate
description of each of the actions, suits, or proceedings with asserted liabilities in excess of, or that
could reasonably be expected to result in liabilities in excess of, $500,000 that, as of the Closing
Date, is pending or, to the knowledge of any Borrower, after due inquiry, threatened against a Loan
Party or any of its Subsidiaries.
4.7.
Compliance with Laws
. No Loan Party nor any of its Subsidiaries (a) is in
violation of any applicable laws, rules, regulations, executive orders, or codes (including
Environmental Laws) that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect, or (b) is subject to or in default with respect to any final judgments,
writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality, domestic or
foreign, that, individually or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect.
4.8.
No Material Adverse Effect
. All historical financial statements relating to the
Loan Parties and their Subsidiaries that have been delivered by Borrowers to Agent have been
prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the
lack of footnotes and being subject to year-end audit adjustments) and present fairly in all material
respects, the Loan Parties' and their Subsidiaries' consolidated financial condition as of the date
thereof and results of operations for the period then ended. Since December 31, 2019, no event,
circumstance, or change has occurred that has or could reasonably be expected to result in a
Material Adverse Effect.
4.9.
Solvency
.
(a)
The Loan Parties, taken as a whole, are Solvent.
(b)
No transfer of property is being made by any Loan Party and no obligation
is being incurred by any Loan Party in connection with the transactions contemplated by this
Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present
or future creditors of such Loan Party.
4.10.
Employee Benefits
.
(a)
Except as set forth on Schedule 4.10, no Loan Party, none of their
Subsidiaries, nor any of their ERISA Affiliates maintains or contributes to any Benefit
Plan. Except as would not reasonably be expected, either individually or in the aggregate, to have
a Material Adverse Effect, (i) each Employee Benefit Plan is in compliance with the applicable
provisions of ERISA, the IRC and other federal or state laws and (ii) each Employee Benefit Plan
that is intended to be a qualified plan under Section 401(a) of the IRC has received a favorable
determination or relies upon an opinion letter from the IRS to the effect that the form of such
Employee Benefit Plan is qualified under Section 401(a) of the IRC and the trust related thereto
has been determined by the IRS to be exempt from federal income tax under Section 501(a) of the
IRC, or an application for either such a letter is currently being processed by the IRS, and, to the
knowledge of the Borrower, nothing has occurred that would prevent or cause the loss of such tax-
qualified status. There are no pending or, to the knowledge of the Borrowers, threatened or
contemplated claims, actions or lawsuits, or action by any Governmental Authority, with respect
to any Employee Benefit Plan that, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. There has been no non-exempt prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Employee Benefit Plan that,
either individually or in the aggregate, has had or could reasonably be expected to have a Material
Adverse Effect.
(b)
No liability to the PBGC (other than for the payment of current premiums
which are not past due) by any Loan Party or ERISA Affiliate has been incurred or is expected by
any Loan Party or ERISA Affiliate to be incurred with respect to any Pension Plan.
(c)
No Notification Event exists or has occurred in the past six (6) years.
(d)
No Loan Party or ERISA Affiliate has provided any security under Section
436 of the IRC.
(e)
No Loan Party, nor any of its Subsidiaries, maintains or contributes to any
Canadian Defined Benefit Plan nor has any liabilities or obligations in respect of a Canadian
Defined Benefit Plan that has been terminated or wound up other than a Canadian Multi-Employer
Plan. Except as set forth on Schedule 4.10, as of the Closing Date no Loan Party, nor any of their
Subsidiaries, maintains or contributes to any Canadian Pension Plan. Each Canadian Pension Plan
is, and has been maintained in compliance to the Income Tax Act (Canada), all applicable laws
and the terms of each such Canadian Pension Plan, except where the failure to do so would not
reasonably be expected to result in a Material Adverse Effect.
4.11.
Environmental Condition
. Except as set forth on Schedule 4.11 to this
Agreement, (a) to each Borrower's knowledge, no Loan Party's nor any of its Subsidiaries'
properties or assets has ever been used by a Loan Party, its Subsidiaries, or by previous owners or
operators in the disposal of, or to produce, store, handle, treat, release, or transport, any Hazardous
Materials, where such disposal, production, storage, handling, treatment, release or transport was
in violation, in any material respect, of any applicable Environmental Law, (b) to each Borrower's
knowledge, after due inquiry, no Loan Party's nor any of its Subsidiaries' properties or assets has
ever been designated or identified in any manner pursuant to any environmental protection statute
as a Hazardous Materials disposal site, (c) no Loan Party nor any of its Subsidiaries has received
notice that a Lien arising under any Environmental Law has attached to any revenues or to any
Real Property owned or operated by a Loan Party or its Subsidiaries, and (d) no Loan Party nor
any of its Subsidiaries nor any of their respective facilities or operations is subject to any
outstanding written order, consent decree, or settlement agreement with any Person relating to any
Environmental Law or Environmental Liability that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
4.12.
Complete Disclosure
. All factual information taken as a whole (other than
forward-looking information and projections and information of a general economic nature and
general information about the industry of any Loan Party or its Subsidiaries) furnished by or on
behalf of a Loan Party or its Subsidiaries in writing to Agent or any Lender (including all
information contained in the Schedules hereto or in the other Loan Documents) for purposes of or
in connection with this Agreement or the other Loan Documents, and all other such factual
information taken as a whole (other than forward-looking information and projections and
information of a general economic nature and general information about the industry of any Loan
Party or its Subsidiaries) hereafter furnished by or on behalf of a Loan Party or its Subsidiaries in
writing to Agent or any Lender will be, true and accurate, in all material respects, on the date as of
which such information is dated or certified and not incomplete by omitting to state any fact
necessary to make such information (taken as a whole) not misleading in any material respect at
such time in light of the circumstances under which such information was provided. The
Projections delivered to Agent on September 8, 2020 represent, and as of the date on which any
other Projections are delivered to Agent, such additional Projections represent, Borrowers' good
faith estimate, on the date such Projections are delivered, of the Loan Parties' and their Subsidiaries'
future performance for the periods covered thereby based upon assumptions believed by
Borrowers to be reasonable at the time of the delivery thereof to Agent (it being understood that
such Projections are subject to significant uncertainties and contingencies, many of which are
beyond the control of the Loan Parties and their Subsidiaries, and no assurances can be given that
such Projections will be realized, and although reflecting Borrowers' good faith estimate,
projections or forecasts based on methods and assumptions which Borrowers believed to be
reasonable at the time such Projections were prepared, are not to be viewed as facts, and that actual
results during the period or periods covered by the Projections may differ materially from projected
or estimated results). As of the Closing Date, the information included in the Beneficial Ownership
Certification is true and correct in all respects.
4.13.
Patriot Act
. To the extent applicable, each Loan Party is in compliance, in all
material respects, with the (a) Trading with the Enemy Act, as amended, and each of the foreign
assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter
V, as amended) and any other enabling legislation or executive order relating thereto, and (b)
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA Patriot Act of 2001, as amended) (the "Patriot Act") and all applicable
Canadian Anti-Money Laundering & Anti-Terrorism Legislation.
4.14.
Indebtedness
. Set forth on Schedule 4.14 to this Agreement is a true and
complete list of all Indebtedness of each Loan Party and each of its Subsidiaries outstanding
immediately prio r to the Closing Date (other than (i) unsecured Permitted Indebtedness
outstanding immediately prior to the Closing Date with respect to any one transaction or a series
of related transactions in an amount not to exceed $250,000, provided, that all such Permitted
Indebtedness, in the aggregate, shall not exceed $500,000, and (ii) the Mexican Term Debt) that is
to remain outstanding immediately after giving effect to the closing hereunder on the Closing Date
and such Schedule accurately sets forth the aggregate principal amount of such Indebtedness as of
the Closing Date.
4.15.
Payment of Taxes
. Except as otherwise permitted under Section 5.5, all Tax
returns and reports of each Loan Party and its Subsidiaries required to be filed by any of them have
been timely filed, and all Taxes shown on such Tax returns to be due and payable and all other
Taxes upon a Loan Party and its Subsidiaries and upon their respective assets, income, businesses
and franchises that are due and payable have been paid when due and payable. Each Loan Party
and each of its Subsidiaries have made adequate provision in accordance with GAAP for all Taxes
not yet due and payable. No Borrower knows of any proposed Tax assessment against a Loan
Party or any of its Subsidiaries that is not being actively contested by such Loan Party or such
Subsidiary diligently, in good faith, and by appropriate proceedings; provided, that such reserves
or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have
been made or provided therefor.
4.16.
Margin Stock
. Neither any Loan Party nor any of its Subsidiaries owns any
Margin Stock or is engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the
proceeds of the Loans made to Borrowers will be used to purchase or carry any Margin Stock or
to extend credit to others for the purpose of purchasing or carrying any Margin Stock or for any
purpose that violates the provisions of Regulation T, U or X of the Board of Governors. Neither
any Loan Party nor any of its Subsidiaries expects to acquire any Margin Stock.
4.17.
Governmental Regulation
. No Loan Party nor any of its Subsidiaries is
subject to regulation under the Federal Power Act or the Investment Company Act of 1940 or
under any other federal or state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable.
No Loan Party nor any of its Subsidiaries is a "registered investment company" or a company
"controlled" by a "registered investment company" or a "principal underwriter" of a "registered
investment company" as such terms are defined in the Investment Company Act of 1940.
4.18.
OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws
.
No Loan Party or any of its Subsidiaries is in violation of any Sanctions. No Loan Party nor any
of its Subsidiaries nor, to the knowledge of such Loan Party, any director, officer, employee, agent
or Affiliate of such Loan Party or such Subsidiary (a) is a Sanctioned Person or a Sanctioned
Entity, (b) has any assets located in Sanctioned Entities, or (c) derives revenues from investments
in, or transactions with Sanctioned Persons or Sanctioned Entities. Each of the Loan Parties and
its Subsidiaries has implemented and maintains in effect policies and procedures reasonably
designed to ensure compliance with Sanctions, Anti-Corruption Laws and Anti-Money
Laundering Laws. Each of the Loan Parties and its Subsidiaries, and to the knowledge of each
such Loan Party, each director, officer, employee, agent and Affiliate of each such Loan Party and
each such Subsidiary, is in compliance with all Sanctions, Anti-Corruption Laws and Anti-Money
Laundering Laws. No proceeds of any Loan made or Letter of Credit issued hereunder will be
used to fund any operations in, finance any investments or activities in, or make any payments to,
a Sanctioned Person or a Sanctioned Entity, or otherwise used in any manner that would result in
a violation of any Sanction, Anti-Corruption Law or Anti-Money Laundering Law by any Person
(including any Lender, Bank Product Provider, or other individual or entity participating in any
transaction).
4.19.
Employee and Labor Matters
. There is (i) no unfair labor practice complaint
pending or, to the knowledge of any Borrower, threatened against any Loan Party or its
Subsidiaries before any Governmental Authority and no grievance or arbitration proceeding
pending or threatened against any Loan Party or its Subsidiaries which arises out of or under any
collective bargaining agreement and that could reasonably be expected to result in a material
liability, (ii) no strike, labor dispute, slowdown, stoppage or similar action or grievance pending
or threatened in writing against any Loan Party or its Subsidiaries that could reasonably be
expected to result in a material liability, or (iii) to the knowledge of any Borrower, after due
inquiry, no union representation question existing with respect to the employees of any Loan Party
or its Subsidiaries and no union organizing activity taking place with respect to any of the
employees of any Loan Party or its Subsidiaries. None of any Loan Party or its Subsidiaries has
incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act
or similar state or other applicable law, which remains unpaid or unsatisfied. The hours worked
and payments made to employees of each Loan Party and its Subsidiaries have not been in violation
of the Fair Labor Standards Act or any other applicable legal requirements, except to the extent
such violations could not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect. All material payments due from any Loan Party or its Subsidiaries on
account of wages and employee health and welfare insurance and other benefits have been paid or
accrued as a liability on the books of Borrowers, except where the failure to do so could not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
4.20.
Leases
. Each Loan Party and its Subsidiaries enjoy peaceful and undisturbed
possession under all leases material to their business and to which they are parties or under which
they are operating, and, subject to Permitted Protests, all of such material leases are valid and
subsisting and no material default by the applicable Loan Party or its Subsidiaries exists under any
of them.
4.21.
Eligible Accounts
. As to each Account that is identified by Borrowers as an
Eligible Account in a Borrowing Base Certificate submitted to Agent, such Account is (a) a bona
fide existing payment obligation of the applicable Account Debtor created by the sale and delivery
of Inventory or the rendition of services to such Account Debtor in the ordinary course of a
Borrowing Base Company's business, (b) owed to a Borrowing Base Company without any known
defenses, disputes, offsets, counterclaims, or rights of return or cancellation, and (c) not excluded
as ineligible by virtue of one or more of the excluding criteria (other than any Agent-discretionary
criteria) set forth in the definition of Eligible Accounts.
4.22.
Eligible Inventory
. As to each item of Inventory that is identified by
Borrowers as Eligible Finished Goods Inventory, Eligible In -Transit Inventory, Eligible Raw
Materials Inventory
,
or Eligible Work -In-Process Inventory in a Borrowing Base Certificate
submitted to Agent, such Inventory is (a) of good and merchantable quality, free from known
defects, and (b) not excluded as ineligible by virtue of one or more of the excluding criteria (other
than any Agent-discretionary criteria) set forth in the definition of Eligible Inventory (in the case
of Eligible In -Transit Inventory, after giving effect to any exclusions therefrom specified in the
definition of Eligible In-Transit Inventory).
4.23.
Location of Inventory and M&E
. Except as set forth in Schedule 4.25, the
Inventory and M&E of Loan Parties and their Subsidiaries is not stored with a bailee,
warehouseman, or similar party and is located only at, or in-transit between, the locations identified
on Schedule 4.25 to this Agreement (as such Schedule may be updated pursuant to Section 5.14).
4.24.
Inventory Records
. Each Loan Party keeps correct and accurate records
itemizing and describing the type, quality, and quantity of its and its Subsidiaries' Inventory and
the book value thereof.
4.25.
Hedge Agreements
. On each date that any Hedge Agreement is executed by
any Hedge Provider, Borrower and each other Loan Party satisfy all eligibility, suitability and
other requirements under the Commodity Exchange Act (7 U.S.C. § 1, et seq., as in effect from
time to time) and the Commodity Futures Trading Commission regulations.
5.
AFFIRMATIVE COVENANTS.
Each Borrower covenants and agrees that, until the termination of all of the
Commitments and payment in full of the Obligations:
5.1.
Financial Statements, Reports, Certificates
. Borrowers (a) will deliver to
Agent, with copies to each Lender, each of the financial statements, reports, and other items set
forth on Schedule 5.1 to this Agreement no later than the times specified therein, (b) agree that no
Subsidiary of a Loan Party will have a fiscal year different from that of Administrative Borrower,
(c) agree to maintain a system of accounting that enables Borrowers to produce financial
statements in accordance with GAAP, and (d) agree that they will, and will cause each other Loan
Party to, (i) keep a reporting system that shows all additions, sales, claims, returns, and allowances
with respect to their and their Subsidiaries' sales, and (ii) maintain their billing systems and
practices substantially as in effect as of the Closing Date and shall only make material
modifications thereto with notice to, and with the consent of, Agent.
5.2.
Reporting
. Borrowers (a) will deliver to Agent (and if so requested by Agent,
with copies for each Lender) each of the reports set forth on Schedule 5.2 to this Agreement at the
times specified therein, and (b) agree to use commercially reasonable efforts in cooperation with
Agent to facilitate and implement a system of electronic collateral reporting in order to provide
electronic reporting of each of the items set forth on such Schedule. Borrowers and Agent hereby
agree that the delivery of the Borrowing Base Certificate through the Agent's electronic platform
or portal, subject to Agent's authentication process, by such other electronic method as may be
approved by Agent from time to time in its sole discretion, or by such other electronic input of
information necessary to calculate the Borrowing Bases as may be approved by Agent from time
to time in its sole discretion, shall in each case be deemed to satisfy the obligation of Borrowers to
deliver such Borrowing Base Certificate, with the same legal effect as if such Borrowing Base
Certificate had been manually executed by Borrowers and delivered to Agent.
5.3.
Existence
. Except as otherwise permitted under Section 6.3 or Section 6.4,
each Loan Party will, and will cause each of its Subsidiaries to, at all times preserve and keep in
full force and effect such Person's valid existence and good standing in its jurisdiction of
organization and, except as could not reasonably be expected to result in a Material Adverse Effect,
good standing with respect to all other jurisdictions in which it is qualified to do business and any
rights, franchises, permits, licenses, accreditations, authorizations, or other approvals material to
their businesses.
5.4.
Maintenance of Properties
. Each Loan Party will, and will cause each of its
Subsidiaries to, maintain and preserve all of its assets that are necessary or useful in the proper
conduct of its business in good working order and condition, ordinary wear, tear, casualty, and
condemnation and Permitted Dispositions excepted (and except where the failure to so maintain
and preserve assets could not reasonably be expected to result in a Material Adverse Effect).
5.5.
Taxes
. Each Loan Party will, and will cause each of its Subsidiaries to, pay in
full before delinquency or before the expiration of any extension period all Taxes imposed, levied,
or assessed against it, or any of its assets or in respect of any of its income, businesses, or
franchises, other than Taxes not in excess of $200,000 outstanding at any time and other than to
the extent that the validity of such Tax is the subject of a Permitted Protest.
5.6.
Insurance
.
(a)
Each Loan Party will, and will cause each of its Subsidiaries to, at
Borrowers' expense, maintain insurance respecting each of each Loan Party's and its Subsidiaries'
assets wherever located, covering liabilities, losses or damages as are customarily are insured
against by other Persons engaged in same or similar businesses and similarly situated and located.
All such policies of insurance shall be with financially sound and reputable insurance companies
acceptable to Agent (it being agreed that, as of the Closing Date, the Loan Parties' existing
insurance providers as set forth in the certificates of insurance delivered to Agent on or about the
Closing Date shall be deemed to be acceptable to Agent) and in such amounts as is carried
generally in accordance with sound business practice by companies in similar businesses similarly
situated and located and, in any event, in amount, adequacy, and scope reasonably satisfactory to
Agent (it being agreed that the amount, adequacy, and scope of the policies of insurance of
Borrowers in effect as of the Closing Date are acceptable to Agent). All the Loan Parties' property
insurance policies are to be made payable to Agent for the benefit of Agent and the Lenders, as
their interests may appear, in case of loss, pursuant to a standard lender's loss payable endorsement
with a standard non-contributory "lender" or "secured party" clause and are to contain such other
provisions as Agent may reasonably require to fully protect the Lenders' interest in the Collateral
and to any payments to be made under such policies. All certificates of property and general
liability insurance are to be delivered to Agent, with the lender's loss payable and additional
insured endorsements in favor of Agent and shall provide for not less than thirty days (ten days in
the case of non-payment) prior written notice to Agent of the exercise of any right of cancellation.
Unless Borrowers provide Agent with evidence of the continuing insurance coverage required by
this Agreement, Agent may purchase insurance at Borrowers' expense to protect Agent's and
Lenders' interests in the Collateral. This insurance may, but need not, protect each Borrower's and
each other Loan Party's interests. The coverage that Agent purchases may, but need not, pay any
claim that is made against any Borrower or any other Loan Party in connection with the Collateral.
Borrowers may later cancel any insurance purchased by Agent, but only after providing Agent
with evidence that Borrowers have obtained the insurance coverage required by this Agreement.
If Agent purchases insurance for the Collateral, as set forth above, Borrowers will be responsible
for the costs of that insurance, including interest and any other charges that may be imposed with
the placement of the insurance, until the effective date of the cancellation or expiration of the
insurance and the costs of the insurance may be added to the principal amount of the Loans owing
hereunder.
(b)
Borrowers shall give Agent prompt notice of any loss exceeding $350,000
covered by the casualty or business interruption insurance of any Loan Party or its Subsidiaries.
Upon the occurrence and during the continuance of an Event of Default, Agent shall have the sole
right to file claims under any property and general liability insurance policies in respect of the
Collateral, to receive, receipt and give acquittance for any payments that may be payable
thereunder, and to execute any and all endorsements, receipts, releases, assignments,
reassignments or other documents that may be necessary to effect the collection, compromise or
settlement of any claims under any such insurance policies.
(c)
If at any time the area in which any Real Property that is subject to a
Mortgage is located is designated a "flood hazard area" in any Flood Insurance Rate Map published
by the Federal Emergency Management Agency (or any successor agency), obtain flood insurance
in such total amount and on terms that are satisfactory to Agent and all Lenders from time to time,
and otherwise comply with the Flood Laws or as is otherwise satisfactory to Agent and all Lenders.
5.7.
Inspection
.
(a)
Each Loan Party will, and will cause each of its Subsidiaries (other than any
Mexican Subsidiary) to, permit Agent, any Lender, and each of their respective duly authorized
representatives or agents to visit any of its properties and inspect any of its assets or books and
records, to examine and make copies of its books and records, and to discuss its affairs, finances,
and accounts with, and to be advised as to the same by, its officers and employees (provided, that
an authorized representative of a Borrower shall be allowed to be present) at such reasonable times
and intervals as Agent or any Lender, as applicable, may designate and, so long as no Default or
Event of Default has occurred and is continuing, with reasonable prior notice to Borrowers and
during regular business hours, at Borrowers' expense in accordance with the provisions of the Fee
Letter, subject to the limitations set forth below in Section 5.7(c).
(b)
Each Loan Party will, and will cause each of its Subsidiaries (other than any
Mexican Subsidiary) to, permit Agent and each of its duly authorized representatives or agents to
conduct field examinations, appraisals or valuations at such reasonable times and intervals as
Agent may designate, at Borrowers' expense in accordance with the provisions of the Fee Letter,
subject to the limitations set forth below in Section 5.7(c).
(c)
So long as no Event of Default shall have occurred and be continuing during
a calendar year, Borrowers shall not be obligated to reimburse Agent for more than 2 field
examinations during calendar year 2021 or 1 field examination in such calendar year thereafter
(increasing to 2 field examinations if an Increased Reporting Event has occurred during such
calendar year), 1 inventory appraisal in such calendar year (increasing to 2 inventory appraisals if
an Increased Reporting Event has occurred during such calendar year), 1 equipment appraisal in
such calendar year (increasing to 2 equipment appraisals if an Increased Reporting Event has
occurred during such calendar year), and equipment appraisals requested by Borrowers in
connection with a request for the Additional M/E Term Loan, in each case, except for field
examinations and appraisals conducted in connection with a proposed Permitted Acquisition
(whether or not consummated).
5.8.
Compliance with Laws
. Each Loan Party will, and will cause each of its
Subsidiaries to, comply with the requirements of all applicable laws, rules, regulations, and orders
of any Governmental Authority, other than laws, rules, regulations, and orders the non-compliance
with which, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect.
5.9.
Environmental
. Each Loan Party will, and will cause each of its Subsidiaries
to,
(a)
Keep any property either owned or operated by any Loan Party or its
Subsidiaries free of any Environmental Liens or post bonds or other financial assurances sufficient
to satisfy the obligations or liability evidenced by such Environmental Liens,
(b)
Comply, in all material respects, with Environmental Laws and provide to
Agent documentation of such compliance which Agent reasonably requests,
(c)
Promptly notify Agent of any release of which any Loan Party has
knowledge of a Hazardous Material in any reportable quantity from or onto property owned or
operated by any Loan Party or its Subsidiaries and take any Remedial Actions required to abate
said release or otherwise to come into compliance, in all material respects, with applicable
Environmental Law, and
(d)
Promptly, but in any event within five Business Days of its receipt thereof,
provide Agent with written notice of any of the following: (i) notice that an Environmental Lien
has been filed against any of the real or personal property of a Loan Party or its Subsidiaries, (ii)
commencement of any Environmental Action or written notice that an Environmental Action will
be filed against a Loan Party or its Subsidiaries, and (iii) written notice of a violation, citation, or
other administrative order from a Governmental Authority.
5.10.
Disclosure Updates
. Each Loan Party will, promptly and in no event later than
five Business Days after obtaining knowledge thereof, notify Agent if any written information,
exhibit, or report furnished to Agent or the Lenders contained, at the time it was furnished, any
untrue statement of a material fact or omitted to state any material fact necessary to make the
statements contained therein not misleading in light of the circumstances in which made. The
foregoing to the contrary notwithstanding, any notification pursuant to the foregoing provision will
not cure or remedy the effect of the prior untrue statement of a material fact or omission of any
material fact nor shall any such notification have the effect of amending or modifying this
Agreement or any of the Schedules hereto.
5.11.
Formation of Subsidiaries
. Each Loan Party will, at the time that any Loan
Party forms any direct or indirect Subsidiary, acquires any direct or indirect Subsidiary after the
Closing Date within ten days of such event (or such later date as permitted by Agent in its sole
discretion) (a) cause such new Subsidiary (i) if such Subsidiary is a Domestic Subsidiary and
Administrative Borrower requests, subject to the consent of Agent, that such Domestic Subsidiary
be joined as a Borrower hereunder, to provide to Agent a Joinder to this Agreement, (ii) to provide
to Agent a joinder to the Guaranty and Security Agreement, as applicable, in each case, together
with such other security agreements (including Mortgages with respect to any Real Property owned
in fee of such new Subsidiary with a fair market value of greater than $1,000,000), as well as
appropriate financing statements (and with respect to all property subject to a Mortgage, fixture
filings), all in form and substance reasonably satisfactory to Agent (including being sufficient to
grant Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such newly
formed or acquired Subsidiary) and (iii) if such Subsidiary is a Subsidiary organized under the
laws of Canada, or any province thereof, to provide to Agent a joinder to the Canadian Security
Agreement or Quebec Security Documents, as applicable, in each case, together with such other
Canadian Security Documents (including Mortgages with respect to any Real Property owned in
fee of such new Subsidiary with a fair market value of greater than $1,000,000), as well as
appropriate financing statements (and with respect to all property subject to a Mortgage, fixture
filings), all in form and substance reasonably satisfactory to Agent (including being sufficient to
grant Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such newly
formed or acquired Subsidiary); (b) provide, or cause the applicable Loan Party to provide, to
Agent a pledge agreement (or an addendum to the Guaranty and Security Agreement or Canadian
Security Documents) and appropriate certificates and powers or financing statements, pledging all
of the direct or beneficial ownership interest in such new Subsidiary in form and substance
reasonably satisfactory to Agent; provided, that only 65% of the total outstanding voting Equity
Interests of any first tier Subsidiary (other than any Canadian Subsidiary) of a Loan Party that is a
CFC (and none of the Equity Interests of any Subsidiary of such CFC) shall be required to be
pledged if pledging a greater amount would result in adverse tax consequences or the costs to the
Loan Parties of providing such pledge are unreasonably excessive (as determined by Agent in
consultation with Borrowers) in relation to the benefits to Agent and the Lenders of the security
afforded thereby (which pledge, if reasonably requested by Agent, shall be governed by the laws
of the jurisdiction of such Subsidiary), and (c) provide to Agent all other documentation, including
the Governing Documents of such Subsidiary and one or more opinions of counsel reasonably
satisfactory to Agent, which, in its opinion, is appropriate with respect to the execution and
delivery of the applicable documentation referred to above (including policies of title insurance,
flood certification documentation or other documentation with respect to all Real Property owned
in fee and subject to a mortgage). Any document, agreement, or instrument executed or issued
pursuant to this Section 5.11 shall constitute a Loan Document.
5.12.
Further Assurances
. Each Loan Party will, and will cause each of the other
Loan Parties to, at any time upon the reasonable request of Agent, execute or deliver to Agent any
and all financing statements, fixture filings, security agreements, pledges, assignments, mortgages,
deeds of trust, opinions of counsel, and all other documents (the "Additional Documents") that
Agent may reasonably request in form and substance reasonably satisfactory to Agent, to create,
perfect, and continue perfected or to better perfect Agent's Liens in all of the assets of each of the
Loan Parties (whether now owned or hereafter arising or acquired, tangible or intangible, real or
personal) (other than any assets expressly excluded from the Collateral (as defined in the Guaranty
and Security Agreement or Canadian Security Documents, as applicable) pursuant to Section 3 of
the Guaranty and Security Agreement), to create and perfect Liens in favor of Agent in any Real
Property acquired by any other Loan Party with a fair market value in excess of $1,000,000, and
in order to fully consummate all of the transactions contemplated hereby and under the other Loan
Documents; provided, that the foregoing shall not apply to any Subsidiary of a Loan Party that is
a CFC (other than any Canadian Subsidiary) if providing such documents would result in adverse
tax consequences or the costs to the Loan Parties of providing such documents are unreasonably
excessive (as determined by Agent in consultation with Borrowers) in relation to the benefits to
Agent and the Lenders of the security afforded thereby. To the maximum extent permitted by
applicable law, if any Borrower or any other Loan Party refuses or fails to execute or deliver any
reasonably requested Additional Documents within a reasonable period of time not to exceed 5
Business Days following the request to do so, each Borrower and each other Loan Party hereby
authorizes Agent to execute any such Additional Documents in the applicable Loan Party's name
and authorizes Agent to file such executed Additional Documents in any appropriate filing office.
In furtherance of, and not in limitation of, the foregoing, each Loan Party shall take such actions
as Agent may reasonably request from time to time to ensure that the Obligations are guaranteed
by the Guarantors and are secured by substantially all of the assets of the Loan Parties, including
all of the outstanding capital Equity Interests of each Borrower and its Subsidiaries (in each case,
other than with respect to any assets expressly excluded from the Collateral (as defined in the
Guaranty and Security Agreement or Canadian Security Documents, as applicable) pursuant to
Section 3 of the Guaranty and Security Agreement). Notwithstanding anything to the contrary
contained herein (including Se ction 5.11 hereof and this Section 5.12) or in any other Loan
Document, (x) Agent shall not accept delivery of any Mortgage from any Loan Party unless each
of the Lenders has received 45 days prior written notice thereof and Agent has received
confirmation from each Lender that such Lender has completed its flood insurance diligence, has
received copies of all flood insurance documentation and has confirmed that flood insurance
compliance has been completed as required by the Flood Laws or as otherwise satisfactory to such
Lender and (y) Agent shall not accept delivery of any joinder to any Loan Document with respect
to any Subsidiary of any Loan Party that is not a Loan Party, if such Subsidiary that qualifies as a
"legal entity customer" under the Beneficial Ownership Regulation unless such Subsidiary has
delivered a Beneficial Ownership Certification in relation to such Subsidiary and Agent has
completed its Patriot Act searches, OFAC/PEP searches and customary individual background
checks for such Subsidiary, the results of which shall be satisfactory to Agent. Without limitation
of the foregoing, upon Agent's request at any time that Availability is less than 10% of the
Maximum Revolver Amount, the Loan Parties shall cause all loans owed by Mexican Subsidiaries
to the Loan Parties to be evidences by a note and shall execute or deliver to Agent any Additional
Documents as Agent may reasonably request in form and substance reasonably satisfactory to
Agent, to create, perfect, and continue perfected or to better perfect Agent's Liens in such loans
and notes.
5.13.
Location of Inventory and M&E; Chief Executive Office; Registered
Office
. Each Loan Party will, and will cause each of its Subsidiaries to, keep (a) their Inventory
and M&E only at the locations identified on Schedule 4.25 to this Agreement (provided that
Borrowers may amend Schedule 4.25 to this Agreement so long as such amendment occurs by
written notice to Agent not less than ten days prior to the date on which such Inventory or M&E
is moved to such new location and so long as Agent has consented to such amendment and such
new location is within the continental United States or Canada), and (b) their respective chief
executive offices (and registered office in the case of Canadian Loan Parties) only at the locations
identified on Schedule 7 to the Guaranty and Security Agreement or Canadian Security
Documents, as applicable. Each Loan Party will, and will cause each of its Subsidiaries to, use
their commercially reasonable efforts to obtain Collateral Access Agreements for each of the
locations identified on Schedule 7 to the Guaranty and Security Agreement and Schedule 4.25 to
this Agreement.
5.14.
OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws
.
Each Loan Party will, and will cause each of its Subsidiaries to, comply with all applicable
Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Each of the Loan Parties
and its Subsidiaries shall implement and maintain in effect policies and procedures reasonably
designed to ensure compliance by the Loan Parties and their Subsidiaries and their respective
directors, officers, employees, agents and Affiliates with Sanctions, Anti-Corruption Laws and
Anti-Money Laundering Laws.
5.15.
Compliance with ERISA and the IRC
. In addition to and without limiting
the generality of Section 5.8,, each Loan Party shall, and shall cause each of its ERISA Affiliates
to (a) comply with applicable provisions of ERISA and the IRC with respect to all Employee
Benefit Plans except as could not reasonably be expected to result, individually or in the aggregate,
in a Material Adverse Effect, (b) without the prior written consent of Agent and the Required
Lenders, not take any action or fail to take action the result of which could reasonably be expected
to result in a Loan Party or ERISA Affiliate incurring a liability to the PBGC or to a Multiemployer
Plan (other than to pay contributions, benefits or premiums payable in the ordinary course), except
as could not reasonably be expected to result, individually or in the aggregate, in a Material
Adverse Effect, (c) allow any facts or circumstances to exist with respect to one or more Employee
Benefit Plans that, in the aggregate, reasonably could be expected to result in a Material Adverse
Effect, (d) not participate in any non-exempt prohibited transaction that could reasonably be
expected to result in civil penalty excise tax, fiduciary liability or correction obligation under
ERISA or the IRC, except as could not reasonably be expected to result, individually or in the
aggregate, in a Material Adverse Effect, (e) operate each Employee Benefit Plan in such a manner
that will not incur any tax liability under the IRC (including Section 4980B of the IRC) that could
reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect,
and (e) furnish to Agent upon Agent's written request such additional information about any
Employee Benefit Plan for which any Loan Party or ERISA Affiliate could reasonably expect to
incur any material liability. With respect to each Pension Plan (other than a Multiemployer Plan)
except as could not reasonably be expected to result, individually or in the aggregate, in a Material
Adverse Effect or the imposition of any Lien on the assets of any Loan Party under ERISA or the
IRC, the Loan Parties and the ERISA Affiliates shall (i) satisfy in full and in a timely manner,
without incurring any late payment or underpayment charge or penalty and without giving rise to
any Lien, all of the contribution and funding requirements of the IRC and of ERISA, and (ii) pay,
or cause to be paid, to the PBGC in a timely manner, without incurring any late payment or
underpayment charge or penalty, all premiums required pursuant to ERISA.
5.16.
Canadian Compliance
. In addition to and without limiting the generality of
Section 5.8, each Borrower will, and will cause each of its Subsidiaries to, (a) comply with
applicable provisions and funding requirements of the Income Tax Act (Canada) and applicable
federal or provincial pension benefits legislation with respect to all Canadian Pension Plans except
where the failure to do so would not reasonably be expected to result in a Material Adverse Effect
and (b) furnish to Agent upon Agent's written request such additional information about any
Canadian Pension Plan for which Borrowers or their Subsidiaries would reasonably expect to incur
any material liability. All employer or employee payments, contributions or premiums required
to be remitted, paid to or in respect of Canadian statutory benefit plans that any Borrower or any
of its Subsidiaries is required to participate in or comply with, including the Canada Pension Plan
or Quebec Pension Plan as maintained by the Government of Canada or Province of Quebec,
respectively, and plans administered pursuant to applicable workplace safety insurance and
employment insurance legislation will be paid or remitted by each such Person in accordance with
the terms thereof, any agreements relating thereto and all applicable laws except to the extent that
any amount so payable is subject to a Permitted Protest and a Canadian Priority Payable Reserve
for such amount has been established.
6.
NEGATIVE COVENANTS.
Each Borrower covenants and agrees that, until the termination of all of the
Commitments and the payment in full of the Obligations:
6.1.
Indebtedness
. Each Loan Party will not, and will not permit any of its
Subsidiaries to, create, incur, assume, suffer to exist, guarantee, or otherwise become or remain,
directly or indirectly, liable with respect to any Indebtedness, except for Permitted Indebtedness.
6.2.
Liens
. Each Loan Party will not, and will not permit any of its Subsidiaries to,
create, incur, assume, or suffer to exist, directly or indirectly, any Lien on or with respect to any
of its assets, of any kind, whether now owned or hereafter acquired, or any income or profits
therefrom, except for Permitted Liens.
6.3.
Restrictions on Fundamental Changes
. Each Loan Party will not, and will
not permit any of its Subsidiaries to,
(a)
Other than in order to consummate a Permitted Acquisition, enter into any
merger, amalgamation, consolidation, reorganization, or recapitalization, or reclassify its Equity
Interests, except for (i) any merger or amalgamation between Loan Parties; provided, that a
Borrower must be the surviving or continuing entity of any such merger to which it is a party, (ii)
any merger or amalgamation between a Loan Party and a Subsidiary of such Loan Party that is not
a Loan Party so long as such Loan Party is the surviving or continuing entity of any such merger
or amalgamation, and (iii) any merger or amalgamation between Subsidiaries of any Loan Party
that are not Loan Parties,
(b)
liquidate, wind up, or dissolve itself (or suffer any liquidation or
dissolution), except for (i) the liquidation or dissolution of non-operating Subsidiaries of any Loan
Party with nominal assets and nominal liabilities, (ii) the liquidation or dissolution of a Loan Party
(other than any Borrower) or any of its wholly-owned Subsidiaries so long as all of the assets
(including any interest in any Equity Interests) of such liquidating or dissolving Loan Party or
Subsidiary are transferred to a Loan Party that is not liquidating or dissolving, or (iii) the
liquidation or dissolution of a Subsidiary of any Loan Party that is not a Loan Party (other than
any such Subsidiary the Equity Interests of which (or any portion thereof) is subject to a Lien in
favor of Agent) so long as all of the assets of such liquidating or dissolving Subsidiary are
transferred to a Subsidiary of a Loan Party that is not liquidating or dissolving,
(c)
suspend or cease operating a substantial portion of its or their business,
except as permitted pursuant to clauses (a) or (b) above or in connection with a transaction
permitted under Section 6.4, or
(d)
change its classification/status for U.S. federal income tax purposes.
6.4.
Disposal of Assets
. Other than Permitted Dispositions or transactions
expressly permitted by Sections 6.3 or 6.9, each Loan Party will not, and will not permit any of its
Subsidiaries to, convey, sell, lease, license, assign, transfer, or otherwise dispose of any of its or
their assets (including by an allocation of assets among newly divided limited liability companies
pursuant to a "plan of division").
6.5.
Nature of Business
. Each Loan Party will not, and will not permit any of its
Subsidiaries to, make any change in the nature of its or their business as described in Schedule 6.5
to this Agreement or acquire any properties or assets that are not reasonably related to the conduct
of such business activities; provided, that the foregoing shall not prevent any Loan Party and its
Subsidiaries from engaging in any business that is reasonably related or ancillary to its or their
business.
6.6.
Prepayments and Amendments
. Each Loan Party will not, and will not
permit any of its Subsidiaries (other than any Mexican Subsidiary) to,
(a)
Except in connection with Refinancing Indebtedness permitted by Section
6.1,
(i)
optionally prepay, redeem, defease, purchase, or otherwise acquire
any Indebtedness of any Loan Party or its Subsidiaries, other than (A) the Obligations in
accordance with this Agreement, (B) Hedge Obligations, (C) Permitted Intercompany Advances,
or (D) other Indebtedness so long as the Payment Conditions are satisfied, or
(ii)
make any payment on account of Indebtedness that has been
contractually subordinated in right of payment to the Obligations if such payment is not permitted
at such time under the subordination terms and conditions, or
(b)
Directly or indirectly, amend, modify, or change any of the terms or
provisions of:
(i)
any agreement, instrument, document, indenture, or other writing
evidencing or concerning Permitted Indebtedness other than (A) the Obligations in accordance
with this Agreement, (B) Hedge Obligations, (C) Permitted Intercompany Advances, and (D)
Indebtedness permitted under clauses (c), (h), (j) and (k) of the definition of Permitted
Indebtedness, in each case, if the effect thereof, either individually or in the aggregate, could
reasonably be expected to be adverse to the interests of the Lenders or the Loan Parties, or
(ii)
the Governing Documents of any Loan Party or any of its
Subsidiaries if the effect thereof, either individually or in the aggregate, could reasonably be
expected to be materially adverse to the interests of the Lenders.
6.7.
Restricted Payments
. Each Loan Party will not, and will not permit any of its
Subsidiaries to, make any Restricted Payment; provided, that so long as it is permitted by law,
(a)
so long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, Administrative Borrower may make distributions to former
employees, officers, or directors of Administrative Borrower (or any spouses, ex-spouses, or
estates of any of the foregoing) on account of redemptions of Equity Interests of Administrative
Borrower held by such Persons; provided, that the aggregate amount of such redemptions made
by Administrative Borrower during the term of this Agreement
plus
outstanding under clause (l) of the definition of Permitted Indebtedness, does not exceed $250,000
in the aggregate,
(b)
so long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, Administrative Borrower may make distributions to former
employees, officers, or directors of Administrative Borrower (or any spo uses, ex -spouses, or
estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons
owing to Administrative Borrower on account of repurchases of the Equity Interests of
Administrative Borrower held by such Persons; provided, that such Indebtedness was incurred by
such Persons solely to acquire Equity Interests of Administrative Borrower,
(c)
so long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, Administrative Borrower's Subsidiaries may make
distributions to Administrative Borrower (i) in an amount sufficient to pay franchise taxes and
other fees required to maintain the legal existence of the Loan Parties and their Subsidiaries to the
extent actually used by Administrative Borrower to pay such taxes, costs and expenses, and (ii) in
an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in
the nature of overhead in the ordinary course of business of the Loan Parties and their Subsidiaries,
(d)
Borrowers and their Subsidiaries may make dividends and distributions to
Administrative Borrower to make payments permitted to be made pursuant to Section 6.10(f), or
(e)
other Restricted Payments in an aggregate amount not to exceed $1,000,000
so long as the Payment Conditions are satisfied..
6.8.
Accounting Methods
. Each Loan Party will not, and will not permit any of its
Subsidiaries to, modify or change its fiscal year or its method of accounting (other than as may be
required to conform to GAAP).
6.9.
Investments
. Each Loan Party will not, and will not permit any of its
Subsidiaries to, directly or indirectly, make or acquire any Investment or incur any liabilities
(including contingent obligations) for or in connection with any Investment except for Permitted
Investments.
6.10.
Transactions with Affiliates
. Each Loan Party will not, and will not permit
any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction with
any Affiliate of any Loan Party or any of its Subsidiaries except for:
(a)
transactions (other than the payment of management, consulting,
monitoring, or advisory fees) between such Loan Party or its Subsidiaries, on the one hand, and
any Affiliate of such Loan Party or its Subsidiaries, on the other hand, so long as such transactions
(i) are fully disclosed to Agent prior to the consummation thereof, if they involve one or more
payments by such Loan Party or its Subsidiaries in excess of $500,000 for any single transaction
or series of related transactions, and (ii) are no less favorable, taken as a whole, to such Loan Party
or its Subsidiaries, as applicable, than would be obtained in an arm's length transaction with a non-
Affiliate,
(b)
any indemnity provided for the benefit of directors (or comparable
managers) of a Loan Party or one of its Subsidiaries so long as it has been approved by such Loan
Party's or such Subsidiary's board of directors (or comparable governing body) in accordance with
applicable law,
(c)
the payment of reasonable compensation, severance, or employee benefit
arrangements to employees, officers, and outside directors of a Loan Party or one of its
Subsidiaries in the ordinary course of business and consistent with industry practice so long as it
has been approved by such Loan Party's or such Subsidiary's board of directors (or comparable
governing body) in accordance with applicable law,
(d)
(i) transactions solely among the Loan Parties, and (ii) transactions solely
among Subsidiaries of Loan Parties that are not Loan Parties,
(e)
transactions permitted by Section 6.3, Section 6.7, or Section 6.9,
repayments of Permitted Intercompany Advances, and, to the extent permitted under Section 6.6,
repayments of Subordinated Indebtedness, and
(f)
agreements for the non-exclusive licensing of intellectual property, or
distribution of products, in each case, among the Loan Parties and their Subsidiaries for the purpose
of the counterparty thereof operating its business, and agreements for the assignment of intellectual
property from any Loan Party or any of its Subsidiaries to any Loan Party.
6.11.
Use of Proceeds
. Each Loan Party will not, and will not permit any of its
Subsidiaries to, use the proceeds of any Loan made hereunder for any purpose other than (a) on
the Closing Date, (i) to repay, in full, the outstanding principal, accrued interest, and accrued fees
and expenses owing under or in connection with the Existing Credit Facility, and (ii) to pay the
fees, costs, and expenses incurred in connection with this Agreement, the other Loan Documents,
and the transactions contemplated hereby and thereby, in each case, as set forth in the Flow of
Funds Agreement, and (b) thereafter, consistent with the terms and conditions hereof, for their
lawful and permitted purposes; provided that (x) no part of the proceeds of the Loans will be used
to purchase or carry any such Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any such Margin Stock or for any purpose that violates the provisions of
Regulation T, U or X of the Board of Governors, (y) no part of the proceeds of any Loan or Letter
of Credit will be used, directly or indirectly, to make any payments to a Sanctioned Entity or a
Sanctioned Person, to fund any investments, loans or contributions in, or otherwise make such
proceeds available to, a Sanctioned Entity or a Sanctioned Person, to fund any operations, activities
or business of a Sanctioned Entity or a Sanctioned Person, or in any other manner that would result
in a violation of Sanctions by any Person, and (z) that no part of the proceeds of any Loan or Letter
of Credit will be used, directly or indirectly, in furtherance of an offer, payment, promise to pay,
or authorization of the payment or giving of money, or anything else of value, to any Person in
violation of any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws.
6.12.
Limitation on Issuance of Equity Interests
. Except for the issuance or sale
of Qualified Equity Interests by Administrative Borrower, each Loan Party will not, and will not
permit any of its Subsidiaries to, issue or sell any of its Equity Interests.
6.13.
Inventory or M&E with Bailees
. Each Borrower will not, and will not permit
any of its Subsidiaries (other than any Mexican Subsidiary) to, store its Inventory or M&E at any
time with a bailee, warehouseman, or similar party except as set forth on Schedule 4.25 (as such
Schedule may be amended in accordance with Section 5.14).
6.14.
Employee Benefits
. Each Loan Party will not, and will not permit any of its
Subsidiaries to:
(a)
Terminate, or permit any ERISA Affiliate to terminate, any Pension Plan in
a manner, or take any other action with respect to any Pension Plan, which could reasonably be
expected to result in any liability of any Loan Party or ERISA Affiliate to the PBGC.
(b)
Fail to make, or permit any ERISA Affiliate to fail to make, full payment
when due of all amounts which, under the provisions of any Benefit Plan, agreement relating
thereto or applicable Law, any Loan Party or ERISA Affiliate is required to pay if such failure
could reasonably be expected to have a Material Adverse Effect.
(c)
Permit to exist, or allow any ERISA Affiliate to permit to exist, any
accumulated funding deficiency within the meaning of section 302 of ERISA or section 412 of the
Code, whether or not waived, with respect to any Pension Plan which exceeds $500,000 with
respect to all Pension Plans in the aggregate.
(d)
Acquire, or permit any ERISA Affiliate to acquire, an interest in any Person
that causes such Person to become an ERISA Affiliate with respect to a Loan Party or with respect
to any ERISA Affiliate if such Person sponsors, maintains, or contributes to, or at any time in the
six-year period preceding such acquisition has sponsored, maintained, or contributed to, (i) any
Pension Plan or (ii) any Multiemployer Plan.
(e)
Contribute to or assume an obligation to contribute to, or permit any ERISA
Affiliate to contribute to or assume an obligation to contribute to, any Multiemployer Plan not set
forth on Schedule 4.10.
(f)
Amend, or permit any ERISA Affiliate to amend, a Pension Plan resulting
in a material increase in current liability such that a Loan Party or ERISA Affiliate is required to
provide security to such Pension Plan under the IRC.
6.15.
Canadian Employee Benefits
. No Borrower will, or will permit any of its
Subsidiaries to:
(a)
establish, maintain, sponsor, administer, contribute to, participate in or
assume or incur any liability in respect of any Canadian Defined Benefit Plan or amalgamate with
any Person if such Person, sponsors, administers, contributes to, participates in or has any liability
in respect of, any Canadian Defined Benefit Plan other than a Canadian Multi-Employer Plan,
without the prior written consent of the Agent (which consent shall not be unreasonably
conditioned, withheld or delayed),
(b)
terminate any Canadian Pension Plan in a manner, or take any other action
with respect to any Canadian Pension Plan, which would reasonably be expected to result in a
Material Adverse Effect, or
(c)
fail to make full payment when due of any amounts, under the provisions
of any Canadian Pension Plan, any agreement relating thereto or applicable law if such failure
would reasonably be expected to result in a Material Adverse Effect.
7.
FINANCIAL COVENANT.
Each Borrower covenants and agrees that, until the termination of all of the
Commitments and the payment in full of the Obligations:
(a)
Borrowers will have a Fixed Charge Coverage Ratio, measured on a month-
end basis, of at least the required amount set forth in the following table for the applicable period
set forth opposite thereto:
Applicable Ratio
Applicable Period
1.10:1.0
For the 12 month period
ending November 30, 2020
1.10:1.0
For the 12 month period
ending each month thereafter
(b)
Borrowers will not permit BRP/Navistar Project Cap Ex to be greater than
the amount set forth in the following table for the applicable period set forth opposite thereto:
Applicable Ratio
Applicable Period
$1,119,000
For the period
commencing on the Closing Date and ending December
31, 2020
$13,672,000
For the 12 month period
ending December 31, 2021
$2,090,000
For the 12 month period
ending December 31, 2022
8.
EVENTS OF DEFAULT.
Any one or more of the following events shall constitute an event of default (each,
an "Event of Default") under this Agreement:
8.1.
Payments
. If Borrowers fail to pay when due and payable, or when declared
due and payable, (a) all or any portion of the Obligations consisting of interest, fees, or charges
due the Lender Group, reimbursement of Lender Group Expenses, or other amounts (other than
any portion thereof constituting principal) constituting Obligations (including any portion thereof
that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed
or allowable in whole or in part as a claim in any such Insolvency Proceeding), and such failure
continues for a period of three Business Days, (b) all or any portion of the principal of the Loans,
or (c) any amount payable to Issuing Bank in reimbursement of any drawing under a Letter of
Credit;
8.2.
Covenants
. If any Loan Party or any of its Subsidiaries:
(a)
fails to perform or observe any covenant or other agreement contained in
any of (i) Sections 3.6, 5.1, 5.2, 5.3 (solely if any Borrower is not in good standing in its jurisdiction
of organization), 5.6, 5.7 (solely if any Borrower refuses to allow Agent or its representatives or
agents to visit any Borrower's properties, inspect its assets or books or records, examine and make
copies of its books and records, or discuss Borrowers' affairs, finances, and accounts with officers
and employees of any Borrower), 5.10, 5.11, 5.13, or 5.14 of this Agreement, (ii) Section 6 of this
Agreement, (iii) Section 7 of this Agreement, or (iv) Section 7 of the Guaranty and Security
Agreement or Section 7 of the Canadian Security Agreement;
(b)
fails to perform or observe any covenant or other agreement contained in
any of Sections 5.3 (other than if any Borrower is not in good standing in its jurisdiction of
organization), 5.4, 5.5, 5.8, and 5.12 of this Agreement and such failure continues for a period of
ten days after the earlier of (i) the date on which such failure shall first become known to any
officer of any Borrower, or (ii) the date on which written notice thereof is given to Borrowers by
Agent; or
(c)
fails to perform or observe any covenant or other agreement contained in
this Agreement, or in any of the other Loan Documents, in each case, other than any such covenant
or agreement that is the subject of another provision of this Section 8 (in which event such other
provision of this Section 8 shall govern), and such failure continues for a period of thirty days after
the earlier of (i) the date on which such failure shall first become known to any officer of any
Borrower, or (ii) the date on which written notice thereof is given to Borrowers by Agent;
8.3.
Judgments
. If one or more judgments, orders, requirements to pay issued by
any Canadian Governmental Authority or awards for the payment of money involving an aggregate
amount of $500,000, or more (except to the extent fully covered (other than to the extent of
customary deductibles) by insurance pursuant to which the insurer has not denied coverage) is
entered or filed against a Loan Party or any of its Subsidiaries, or with respect to any of their
respective assets, and either (a) there is a period of thirty consecutive days at any time after the
entry of any such judgment, order, or award during which (i) the same is not discharged, satisfied,
vacated, or bonded pending appeal, or (ii) a stay of enforcement thereof is not in effect, or (b)
enforcement proceedings are commenced upon such judgment, order, or award;
8.4.
Voluntary Bankruptcy, etc
. If an Insolvency Proceeding is commenced by a
Loan Party or any of its Subsidiaries;
8.5.
Involuntary Bankruptcy, etc
. If an Insolvency Proceeding is commenced
against a Loan Party or any of its Subsidiaries and any of the following events occur: (a) such Loan
Party or such Subsidiary consents to the institution of such Insolvency Proceeding against it, (b)
the petition commencing the Insolvency Proceeding is not timely controverted, (c) the petition
commencing the Insolvency Proceeding is not dismissed within sixty calendar days of the date of
the filing thereof, (d) an interim trustee is appointed to take possession of all or any substantial
portion of the properties or assets of, or to operate all or any substantial portion of the business of,
such Loan Party or its Subsidiary, or (e) an order for relief shall have been issued or entered therein;
8.6.
Default Under Other Agreements
. If there is (a) any "Event of Default" as
such term is defined in the Mexican Term Loan Agreement, or (b) a default in one or more
agreements to which a Loan Party or any of its Subsidiaries is a party with one or more third
Persons relative to a Loan Party's or any of its Subsidiaries' Indebtedness involving an aggregate
amount of $500,000 or more, and such default (i) occurs at the final maturity of the obligations
thereunder, or (ii) results in a right by such third Person, irrespective of whether exercised, to
accelerate the maturity of such Loan Party's or its Subsidiary's obligations thereunder;
8.7.
Representations, etc
. If any warranty, representation, certificate, statement, or
Record made herein or in any other Loan Document or delivered in writing to Agent or any Lender
in connection with this Agreement or any other Loan Document proves to be untrue in any material
respect (except that such materiality qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in the text thereof) as of the date
of issuance or making or deemed making thereof;
8.8.
Guaranty
. If the obligation of any Guarantor under the guaranty contained in
the Guaranty and Security Agreement or Canadian Guaranty is limited or terminated by operation
of law or by such Guarantor (other than in accordance with the terms of this Agreement) or if any
Guarantor repudiates or revokes or purports to repudiate or revoke any such guaranty;
8.9.
Security Documents
. If the Guaranty and Security Agreement, any Canadian
Security Document or any other Loan Document that purports to create a Lien, shall, for any
reason, fail or cease to create a valid and perfected and, (except to the extent of Permitted Liens
which are non-consensual Permitted Liens, permitted purchase money Liens or the interests of
lessors under Capital Leases) first priority Lien on the Collateral covered thereby, except as a result
of a disposition of the applicable Collateral in a transaction permitted under this Agreement;
8.10.
Loan Documents
. The validity or enforceability of any Loan Document shall
at any time for any reason (other than solely as the result of an action or failure to act on the part
of Agent) be declared to be null and void, or a proceeding shall be commenced by a Loan Party or
its Subsidiaries, or by any Governmental Authority having jurisdiction over a Loan Party or its
Subsidiaries, seeking to establish the invalidity or unenforceability thereof, or a Loan Party or its
Subsidiaries shall deny that such Loan Party or its Subsidiaries has any liability or obligation
purported to be created under any Loan Document; or
8.11.
Change of Control
. A Change of Control shall occur, whether directly or
indirectly.
9.
RIGHTS AND REMEDIES.
9.1.
Rights and Remedies
. Upon the occurrence and during the continuation of an
Event of Default, Agent may, and, at the instruction of the Required Lenders, shall, in addition to
any other rights or remedies provided for hereunder or under any other Loan Document or by
applicable law, do any one or more of the following:
(a)
by written notice to Borrowers, (i) declare the principal of, and any and all
accrued and unpaid interest and fees in respect of, the Loans and all other Obligations (other than
the Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan
Documents to be immediately due and payable, whereupon the same shall become and be
immediately due and payable and Borrowers shall be obligated to repay all of such Obligations in
full, without presentment, demand, protest, or further notice or other requirements of any kind, all
of which are hereby expressly waived by each Borrower, and (ii) direct Borrowers to provide (and
Borrowers agree that upon receipt of such notice Borrowers will provide) Letter of Credit
Collateralization to Agent to be held as security for Borrowers' reimbursement obligations for
drawings that may subsequently occur under issued and outstanding Letters of Credit;
(b)
by written notice to Borrowers, declare the Commitments terminated,
whereupon the Commitments shall immediately be terminated together with (i) any obligation of
any Revolving Lender to make Revolving Loans, (ii) the obligation of the Swing Lender to make
Swing Loans, and (iii) the obligation of Issuing Bank to issue Letters of Credit; and
(c)
exercise all other rights and remedies available to Agent or the Lenders
under the Loan Documents, under applicable law, or in equity.
The foregoing to the contrary notwithstanding, upon the occurrence of any Event of Default
described in Section 8.4 or Section 8.5, in addition to the remedies set forth above, without any
notice to Borrowers or any other Person or any act by the Lender Group, the Commitments shall
automatically terminate and the Obligations (other than the Bank Product Obligations), inclusive
of the principal of, and any and all accrued and unpaid interest and fees in respect of, the Loans
and all other Obligations (other than the Bank Product Obligations), whether evidenced by this
Agreement or by any of the other Loan Documents, shall automatically become and be
immediately due and payable and Borrowers shall automatically be obligated to repay all of such
Obligations in full (including Borrowers being obligated to provide (and Borrowers agree that they
will provide) (1) Letter of Credit Collateralization to Agent to be held as security for Borrowers'
reimbursement obligations in respect of drawings that may subsequently occur under issued and
outstanding Letters of Credit and (2) Bank Product Collateralization to be held as security for
Borrowers' or their Subsidiaries' obligations in respect of outstanding Bank Products), without
presentment, demand, protest, or notice or other requirements of any kind, all of which are
expressly waived by Borrowers.
9.2.
Remedies Cumulative
. The rights and remedies of the Lender Group under
this Agreement, the other Loan Documents, and all other agreements shall be cumulative. The
Lender Group shall have all other rights and remedies not inconsistent herewith as provided under
the Code, by law, or in equity. No exercise by the Lender Group of one right or remedy shall be
deemed an election, and no waiver by the Lender Group of any Default or Event of Default shall
be deemed a continuing waiver. No delay by the Lender Group shall constitute a waiver, election,
or acquiescence by it.
10.
WAIVERS; INDEMNIFICATION.
10.1.
Demand; Protest; etc
. Each Borrower waives demand, protest, notice of
protest, notice of default or dishonor, notice of payment and nonpayment, nonpayment at maturity,
release, compromise, settlement, extension, or renewal of documents, instruments, chattel paper,
and guarantees at any time held by the Lender Group on which any Borrower may in any way be
liable.
10.2.
The Lender Group's Liability for Collateral
. Each Borrower hereby agrees
that: (a) so long as Agent complies with its obligations, if any, under the Code, the Lender Group
shall not in any way or manner be liable or responsible for: (i) the safekeeping of the Collateral,
(ii) any loss or damage thereto occurring or arising in any manner or fashion from any cause, (iii)
any diminution in the value thereof, or (iv) any act or default of any carrier, warehouseman, bailee,
forwarding agency, or other Person, and (b) all risk of loss, damage, or destruction of the Collateral
shall be borne by the Loan Parties.
10.3.
Indemnification
. Each Borrower shall pay, indemnify, defend, and hold the
Agent-Related Persons, the Lender-Related Persons, the Issuing Bank, and each Participant (each,
an "Indemnified Person") harmless (to the fullest extent permitted by law) from and against any
and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs,
penalties, and damages, and all reasonable fees and disbursements of attorneys, experts, or
consultants and all other costs and expenses actually incurred in connection therewith or in
connection with the enforcement of this indemnification (as and when they are incurred and
irrespective of whether suit is brought), at any time asserted against, imposed upon, or incurred by
any of them (a) in connection with or as a result of or related to the execution and delivery
(provided, that Borrowers shall not be liable for costs and expenses (including attorneys' fees) of
any Lender (other than Wells Fargo) incurred in advising, structuring, drafting, reviewing,
administering or syndicating the Loan Documents), enforcement, performance, or administration
(including any restructuring or workout with respect hereto) of this Agreement, any of the other
Loan Documents, or the transactions contemplated hereby or thereby or the monitoring of Loan
Parties' and their Subsidiaries' compliance with the terms of the Loan Documents (provided, that
the indemnification in this clause (a) shall not extend to (i) disputes solely between or among the
Lenders that do not involve any acts or omissions of any Loan Party, or (ii) disputes solely between
or among the Lenders and their respective Affiliates that do not involve any acts or omissions of
any Loan Party; it being understood and agreed that the indemnification in this clause (a) shall
extend to Agent (but not the Lenders unless the dispute involves an act or omission of a Loan
Party) relative to disputes between or among Agent on the one hand, and one or more Lenders, or
one or more of their Affiliates, on the other hand, or (iii) any claims for Taxes, which shall be
governed by Section 16, other than Taxes which relate to primarily non-Tax claims), (b) with
respect to any actual or prospective investigation, litigation, or proceeding related to this
Agreement, any other Loan Document, the making of any Loans or issuance of any Letters of
Credit hereunder, or the use of the proceeds of the Loans or the Letters of Credit provided
hereunder (irrespective of whether any Indemnified Person is a party thereto), or any act, omission,
event, or circumstance in any manner related thereto, and (c) in connection with or arising out of
any presence or release of Hazardous Materials at, on, under, to or from any assets or properties
owned, leased or operated by any Loan Party or any of its Subsidiaries or any Environmental
Actions, Environmental Liabilities or Remedial Actions related in any way to any such assets or
properties of any Loan Party or any of its Subsidiaries (each and all of the foregoing, the
"Indemnified Liabilities"). The foregoing to the contrary notwithstanding, no Borrower shall have
any obligation to any Indemnified Person under this Section 10.3 with respect to any Indemnified
Liability that a court of competent jurisdiction finally determines to have resulted from the gross
negligence or willful misconduct of such Indemnified Person or its officers, directors, employees,
attorneys, or agents. This provision shall survive the termination of this Agreement and the
repayment in full of the Obligations. If any Indemnified Person makes any payment to any other
Indemnified Person with respect to an Indemnified Liability as to which Borrowers were required
to indemnify the Indemnified Person receiving such payment, the Indemnified Person making such
payment is entitled to be indemnified and reimbursed by Borrowers with respect thereto.
WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY TO EACH
INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH
IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT
ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON.
11.
NOTICES.
Unless otherwise provided in this Agreement, all notices or demands relating to this
Agreement or any other Loan Document shall be in writing and (except for financial statements
and other informational documents which may be sent by first-class mail, postage prepaid) shall
be personally delivered or sent by registered or certified mail (postage prepaid, return receipt
requested), overnight courier, electronic mail (at such email addresses as a party may designate in
accordance herewith), or telefacsimile. In the case of notices or demands to any Loan Party or
Agent, as the case may be, they shall be sent to the respective address set forth below:
If to any Loan Party:
c/o Administrative Borrower
800 Manor Park Drive
Columbus, OH 43228
Attn: John P. Zimmer
Fax No. (614) 870-5051
with copies to:
Squire Patton Boggs (US) LLP
2000 Huntington Bank Center
41 S. High Street
Columbus, OH 43215
Attn: Donald W. Hughes, Esq.
Fax No.: (614) 365-2499
If to Agent:
WELLS FARGO BANK, NATIONAL
ASSOCIATION
10 S. Wacker Drive 26th Floor
Chicago, IL 60606
Attn: Loan Portfolio Manager
Fax No.: (312) 332-0424
with copies to:
GOLDBERG KOHN LTD.
55 E. Monroe Street, Suite 3300
Chicago, Illinois 60603
Attn: Keith G. Radner, Esq.
Fax No.: (312) 863-7445
Any party hereto may change the address at which they are to receive notices
hereunder, by notice in writing in the foregoing manner given to the other party. All notices or
demands sent in accordance with this Section 11, shall be deemed received on the earlier of the
date of actual receipt or three Business Days after the deposit thereof in the mail; provided, that
(a) notices sent by overnight courier service shall be deemed to have been given when received,
(b) notices by facsimile shall be deemed to have been given when sent (except that, if not given
during normal business hours for the recipient, shall be deemed to have been given at the opening
of business on the next Business Day for the recipient) and (c) notices by electronic mail shall be
deemed received upon the sender's receipt of an acknowledgment from the intended recipient (such
as by the "return receipt requested" function, as available, return email or other written
acknowledgment).
12.
CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL
REFERENCE PROVISION.
(a)
THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER
LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT), THE
CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND
THEREOF, THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH
RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR
RELATED HERETO OR THERETO, AND ANY CLAIMS, CONTROVERSIES OR
DISPUTES ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR
THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS
(b)
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS
ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED
IN THE COUNTY OF COOK, STATE OF ILLINOIS; PROVIDED, THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY
MAY BE BROUGHT, AT AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE
SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH BORROWER
AND EACH MEMBER OF THE LENDER GROUP WAIVE, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO
ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO
VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE
WITH THIS SECTION 12(b).
(c)
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, EACH BORROWER AND EACH MEMBER OF THE LENDER GROUP HEREBY
WAIVE THEIR RESPECTIVE RIGHTS, IF ANY, TO A JURY TRIAL OF ANY CLAIM,
CONTROVERSY, DISPUTE OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY
BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF
THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON
LAW OR STATUTORY CLAIMS (EACH A "CLAIM"). EACH BORROWER AND
EACH MEMBER OF THE LENDER GROUP REPRESENT THAT EACH HAS
REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(d)
EACH BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF COOK AND THE
STATE OF ILLINOIS, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT. EACH OF THE PARTIES HERETO AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT AGENT MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS
OF ANY JURISDICTION.
(e)
NO CLAIM MAY BE MADE BY ANY LOAN PARTY AGAINST
THE AGENT, THE SWING LENDER, ANY OTHER LENDER, ISSUING BANK, OR
ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, COUNSEL,
REPRESENTATIVE, AGENT, OR ATTORNEY-IN-FACT OF ANY OF THEM FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES
OR LOSSES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY
OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION
THEREWITH, AND EACH LOAN PARTY HEREBY WAIVES, RELEASES, AND
AGREES NOT TO SUE UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR
NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN
ITS FAVOR.
(f)
IN THE EVENT ANY LEGAL PROCEEDING IS FILED IN A
COURT OF THE STATE OF CALIFORNIA (THE "COURT") BY OR AGAINST ANY
PARTY HERETO IN CONNECTION WITH ANY CLAIM AND THE WAIVER SET
FORTH IN CLAUSE (C) ABOVE IS NOT ENFORCEABLE IN SUCH PROCEEDING,
THE PARTIES HERETO AGREE AS FOLLOWS:
(i)
WITH THE EXCEPTION OF THE MATTERS SPECIFIED
IN SUBCLAUSE (ii) BELOW, ANY CLAIM SHALL BE DETERMINED BY A GENERAL
REFERENCE PROCEEDING IN ACCORDANCE WITH THE PROVISIONS OF
CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 638 THROUGH 645.1. THE
PARTIES INTEND THIS GENERAL REFERENCE AGREEMENT TO BE
SPECIFICALLY ENFORCEABLE. VENUE FOR THE REFERENCE PROCEEDING
SHALL BE IN THE COUNTY OF LOS ANGELES, CALIFORNIA.
(ii)
THE FOLLOWING MATTERS SHALL NOT BE SUBJECT
TO A GENERAL REFERENCE PROCEEDING: (A) NON-JUDICIAL FORECLOSURE
OF ANY SECURITY INTERESTS IN REAL OR PERSONAL PROPERTY, (B)
EXERCISE OF SELF-HELP REMEDIES (INCLUDING SET-OFF OR RECOUPMENT),
(C) APPOINTMENT OF A RECEIVER, AND (D) TEMPORARY, PROVISIONAL, OR
ANCILLARY REMEDIES (INCLUDING WRITS OF ATTACHMENT, WRITS OF
POSSESSION, TEMPORARY RESTRAINING ORDERS, OR PRELIMINARY
INJUNCTIONS). THIS AGREEMENT DOES NOT LIMIT THE RIGHT OF ANY PARTY
TO EXERCISE OR OPPOSE ANY OF THE RIGHTS AND REMEDIES DESCRIBED IN
CLAUSES (A) - (D) AND ANY SUCH EXERCISE OR OPPOSITION DOES NOT WAIVE
THE RIGHT OF ANY PARTY TO PARTICIPATE IN A REFERENCE PROCEEDING
PURSUANT TO THIS AGREEMENT WITH RESPECT TO ANY OTHER MATTER.
(iii)
UPON THE WRITTEN REQUEST OF ANY PARTY, THE
PARTIES SHALL SELECT A SINGLE REFEREE, WHO SHALL BE A RETIRED
JUDGE OR JUSTICE. IF THE PARTIES DO NOT AGREE UPON A REFEREE WITHIN
TEN DAYS OF SUCH WRITTEN REQUEST, THEN, ANY PARTY SHALL HAVE THE
RIGHT TO REQUEST THE COURT TO APPOINT A REFEREE PURSUANT TO
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 640(B). THE REFEREE
SHALL BE APPOINTED TO SIT WITH ALL OF THE POWERS PROVIDED BY LAW.
PENDING APPOINTMENT OF THE REFEREE, THE COURT SHALL HAVE THE
POWER TO ISSUE TEMPORARY OR PROVISIONAL REMEDIES.
(iv)
EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, THE REFEREE SHALL DETERMINE THE MANNER IN WHICH THE
REFERENCE PROCEEDING IS CONDUCTED INCLUDING THE TIME AND PLACE
OF HEARINGS, THE ORDER OF PRESENTATION OF EVIDENCE, AND ALL OTHER
QUESTIONS THAT ARISE WITH RESPECT TO THE COURSE OF THE REFERENCE
PROCEEDING. ALL PROCEEDINGS AND HEARINGS CONDUCTED BEFORE THE
REFEREE, EXCEPT FOR TRIAL, SHALL BE CONDUCTED WITHOUT A COURT
REPORTER, EXCEPT WHEN ANY PARTY SO REQUESTS A COURT REPORTER
AND A TRANSCRIPT IS ORDERED, A COURT REPORTER SHALL BE USED AND
THE REFEREE SHALL BE PROVIDED A COURTESY COPY OF THE TRANSCRIPT.
THE PARTY MAKING SUCH REQUEST SHALL HAVE THE OBLIGATION TO
ARRANGE FOR AND PAY THE COSTS OF THE COURT REPORTER; PROVIDED,
THAT SUCH COSTS, ALONG WITH THE REFEREE'S FEES, SHALL ULTIMATELY
BE BORNE BY THE PARTY WHO DOES NOT PREVAIL, AS DETERMINED BY THE
REFEREE.
(v)
THE REFEREE MAY REQUIRE ONE OR MORE
PREHEARING CONFERENCES. THE PARTIES HERETO SHALL BE ENTITLED TO
DISCOVERY, AND THE REFEREE SHALL OVERSEE DISCOVERY IN
ACCORDANCE WITH THE RULES OF DISCOVERY, AND SHALL ENFORCE ALL
DISCOVERY ORDERS IN THE SAME MANNER AS ANY TRIAL COURT JUDGE IN
PROCEEDINGS AT LAW IN THE STATE OF CALIFORNIA.
(vi)
THE REFEREE SHALL APPLY THE RULES OF EVIDENCE
APPLICABLE TO PROCEEDINGS AT LAW IN THE STATE OF CALIFORNIA AND
SHALL DETERMINE ALL ISSUES IN ACCORDANCE WITH CALIFORNIA
SUBSTANTIVE AND PROCEDURAL LAW. THE REFEREE SHALL BE EMPOWERED
TO ENTER EQUITABLE AS WELL AS LEGAL RELIEF AND RULE ON ANY MOTION
WHICH WOULD BE AUTHORIZED IN A TRIAL, INCLUDING MOTIONS FOR
DEFAULT JUDGMENT OR SUMMARY JUDGMENT. THE REFEREE SHALL
REPORT HIS OR HER DECISION, WHICH REPORT SHALL ALSO INCLUDE
FINDINGS OF FACT AND CONCLUSIONS OF LAW. THE REFEREE SHALL ISSUE
A DECISION AND PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE,
SECTION 644, THE REFEREE'S DECISION SHALL BE ENTERED BY THE COURT
AS A JUDGMENT IN THE SAME MANNER AS IF THE ACTION HAD BEEN TRIED
BY THE COURT. THE FINAL JUDGMENT OR ORDER FROM ANY APPEALABLE
DECISION OR ORDER ENTERED BY THE REFEREE SHALL BE FULLY
APPEALABLE AS IF IT HAS BEEN ENTERED BY THE COURT.
(vii)
THE PARTIES RECOGNIZE AND AGREE THAT ALL
CLAIMS RESOLVED IN A GENERAL REFERENCE PROCEEDING PURSUANT
HERETO WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER
CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH
COUNSEL OF THEIR OWN CHOICE, EACH PARTY HERETO KNOWINGLY AND
VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS
REFERENCE PROVISION SHALL APPLY TO ANY DISPUTE BETWEEN THEM
THAT ARISES OUT OF OR IS RELATED TO THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS.
13.
ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.
13.1.
Assignments and Participations
.
(a)
(i) Subject to the conditions set forth in clause (a)(ii) below, any Lender
may assign and delegate all or any portion of its rights and duties under the Loan Documents
(including the Obligations owed to it and its Commitments) to one or more assignees (each, an
"Assignee"), with the prior written consent (such consent not be unreasonably withheld or delayed)
of:
(A)
Borrowers; provided, that no consent of Borrowers shall be
required (1) if a Default or Event of Default has occurred and is continuing, or (2) in connection
with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a
Lender; provided further, that Borrowers shall be deemed to have consented to a proposed
assignment unless Administrative Borrower objects thereto by written notice to Agent within five
Business Days after having received notice thereof; and
(B)
Agent, Swing Lender, and Issuing Bank.
(ii)
Assignments shall be subject to the following additional conditions:
(A)
no assignment may be made to a natural person,
(B)
no assignment may be made to a Loan Party, or an Affiliate
of a Loan Party,
(C)
the amount of the Commitments and the other rights and
obligations of the assigning Lender hereunder and under the other Loan Documents subject to each
such assignment (determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of
$5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by
any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or
(II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such
new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at
least $5,000,000),
(D)
each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under this Agreement,
(E)
the parties to each assignment shall execute and deliver to
Agent an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal
solely and directly with the assigning Lender in connection with the interest so assigned to an
Assignee until written notice of such assignment, together with payment instructions, addresses,
and related information with respect to the Assignee, have been given to Borrowers and Agent by
such Lender and the Assignee,
(F)
unless waived by Agent, the assigning Lender or Assignee
has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G)
the assignee, if it is not a Lender, shall deliver to Agent an
Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire").
(b)
From and after the date that Agent receives the executed Assignment and
Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights
and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the
extent that rights and obligations hereunder and under the other Loan Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with
respect to Section 10.3) and be released from any future obligations under this Agreement (and in
the case of an Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender
shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release
any assigning Lender from obligations that survive the termination of this Agreement, including
such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c)
By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such
assigning Lender makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with respect to the financial
condition of any Loan Party or the performance or observance by any Loan Party of any of its
obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such
Assignee confirms that it has received a copy of this Agreement, together with such other
documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently
and without reliance upon Agent, such assigning Lender or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and
authorizes Agent to take such actions and to exercise such powers under this Agreement and the
other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with
such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform
all of the obligations which by the terms of this Agreement are required to be performed by it as a
Lender.
(d)
Immediately upon Agent's receipt of the required processing fee, if
applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this
Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect
the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom.
The Commitment allocated to each Assignee shall reduce such Commitments of the assigning
Lender
pro tanto
.
(e)
Any Lender may at any time sell to one or more commercial banks, financial
institutions, or other Persons (a "Participant") participating interests in all or any portion of its
Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating
Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender
shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the
Participant receiving the participating interest in the Obligations, the Commitments, and the other
rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder
or under the other Loan Documents and the Originating Lender's obligations under this Agreement
shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the
performance of such obligations, (iii) Borrowers, Agent, and the Lenders shall continue to deal
solely and directly with the Originating Lender in connection with the Originating Lender's rights
and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer
or grant any participating interest under which the Participant has the right to approve any
amendment to, or any consent or waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment to, or consent or waiver with respect to this
Agreement or of any other Loan Document would (A) extend the final maturity date of the
Obligations hereunder in which such Participant is participating, (B) reduce the interest rate
applicable to the Obligations hereunder in which such Participant is participating, (C) release all
or substantially all of the Collateral or guaranties (except to the extent expressly provided herein
or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant
is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable
to such Participant through such Lender (other than a waiver of default interest), or (E) decrease
the amount or postpone the due dates of scheduled principal repayments or prepayments or
premiums payable to such Participant through such Lender, (v) no participation shall be sold to a
natural person, (vi) no participation shall be sold to a Loan Party, or an Affiliate of a Loan Party,
and (vii) all amounts payable by Borrowers hereunder shall be determined as if such Lender had
not sold such participation, except that, if amounts outstanding under this Agreement are due and
unpaid, or shall have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall be deemed to have the right of set off in respect of its
participating interest in amounts owing under this Agreement to the same extent as if the amount
of its participating interest were owing directly to it as a Lender under this Agreement. The rights
of any Participant only shall be derivative through the Originating Lender with whom such
Participant participates and no Participant shall have any rights under this Agreement or the other
Loan Documents or any direct rights as to the other Lenders, Agent, Borrowers, the Collateral, or
otherwise in respect of the Obligations. No Participant shall have the right to participate directly
in the making of decisions by the Lenders among themselves.
(f)
In connection with any such assignment or participation or proposed
assignment or participation or any grant of a security interest in, or pledge of, its rights under and
interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all
documents and information which it now or hereafter may have relating to any Loan Party and its
Subsidiaries and their respective businesses.
(g)
Any other provision in this Agreement notwithstanding, any Lender may at
any time create a security interest in, or pledge, all or any portion of its rights under and interest in
this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal
Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury
Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security
interest in any manner permitted under applicable law; provided, that no such pledge shall release
such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(h)
Agent (as a non-fiduciary agent on behalf of Borrowers) shall maintain, or
cause to be maintained, a register (the "Register") on which it enters the name and address of each
Lender as the registered owner of the Term Loan (and the principal amount thereof and stated
interest thereon) held by such Lender (each, a "Registered Loan"). Other than in connection with
an assignment by a Lender of all or any portion of its portion of the Term Loan to an Affiliate of
such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if
any, evidencing the same) may be assigned or sold in whole or in part only by registration of such
assignment or sale on the Register (and each registered note shall expressly so provide) and (ii)
any assignment or sale of all or part of such Registered Loan (and the registered note, if any,
evidencing the same) may be effected only by registration of such assignment or sale on the
Register, together with the surrender of the registered note, if any, evidencing the same duly
endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the
holder of such registered note, whereupon, at the request of the designated assignee(s) or
transferee(s), one or more new registered notes in the same aggregate principal amount shall be
issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale
of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat
the Person in whose name such Registered Loan (and the registered note, if any, evidencing the
same) is registered as the owner thereof for the purpose of receiving all payments thereon and for
all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a
Lender of all or any portion of its Term Loan to an Affiliate of such Lender or a Related Fund of
such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf
of Borrowers, shall maintain a register comparable to the Register.
(i)
In the event that a Lender sells participations in the Registered Loan, such
Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained)
a register on which it enters the name of all participants in the Registered Loans held by it (and the
principal amount (and stated interest thereon) of the portion of such Registered Loans that is
subject to such participations) (the "Participant Register"). A Registered Loan (and the Registered
Note, if any, evidencing the same) may be participated in whole or in part only by registration of
such participation on the Participant Register (and each registered note shall expressly so provide).
Any participation of such Registered Loan (and the registered note, if any, evidencing the same)
may be effected only by the registration of such participation on the Participant Register. No
Lender shall have any obligation to disclose all or any portion of the Participant Register (including
the identity of any Participant or any information relating to a Participant's interest in any
commitments, loans, letters of credit or its other obligations under any Loan Document) to any
Person except to the extent that such disclosure is necessary to establish that such commitment,
loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United
States Treasury Regulations. The entries in the Participant Register shall be conclusive absent
manifest error, and such Lender shall treat each person whose name is recorded in the Participant
Register as the owner of such participation for all purposes of this Agreement notwithstanding any
notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have
no responsibility for maintaining a Participant Register.
(j)
Agent shall make a copy of the Register (and each Lender shall make a copy
of its Participant Register to the extent it has one) available for review by Borrowers from time to
time as Borrowers may reasonably request.
13.2.
Successors
. This Agreement shall bind and inure to the benefit of the
respective successors and assigns of each of the parties; provided, that no Borrower may assign
this Agreement or any rights or duties hereunder without the Lenders' prior written consent and
any prohibited assignment shall be absolutely void
ab
initio
. No consent to assignment by the
Lenders shall release any Borrower from its Obligations. A Lender may assign this Agreement
and the other Loan Documents and its rights and duties hereunder and thereunder pursuant to
Section 13.1 and, except as expressly required pursuant to Section 13.1, no consent or approval by
any Borrower is required in connection with any such assignment.
14.
AMENDMENTS; WAIVERS.
14.1.
Amendments and Waivers
.
(a)
No amendment, waiver or other modification of any provision of this
Agreement or any other Loan Document (other than the Fee Letter), and no consent with respect
to any departure by any Borrower therefrom, shall be effective unless the same shall be in writing
and signed by the Required Lenders (or by Agent at the written request of the Required Lenders)
and the Loan Parties that are party thereto and then any such waiver or consent shall be effective,
but only in the specific instance and for the specific purpose for which given; provided, that no
such waiver, amendment, or consent shall, unless in writing and signed by all of the Lenders
directly affected thereby and all of the Loan Parties that are party thereto, do any of the following:
(i)
increase the amount of or extend the expiration date of any
Commitment of any Lender or amend, modify, or eliminate the last sentence of Section 2.4(c)(i),
(ii)
postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees, or other amounts due hereunder or
under any other Loan Document,
(iii)
reduce the principal of, or the rate of interest on, any loan or other
extension of credit hereunder, or reduce any fees or other amounts payable hereunder or under any
other Loan Document (except (y) in connection with the waiver of applicability of Section 2.6(c)
(which waiver shall be effective with the written consent of the Required Lenders),
(iv)
amend, modify, or eliminate this Section or any provision of this
Agreement providing for consent or other action by all Lenders,
(v)
amend, modify, or eliminate Section 3.1 or 3.2,
(vi)
amend, modify, or eliminate Section 15.11 ,
(vii)
other than as permitted by Section 15.11, release or contractually
subordinate Agent's Lien in and to any of the Collateral,
(viii)
amend, modify, or eliminate the definitions of "Required Lenders",
Supermajority Lenders or "Pro Rata Share",
(ix)
other than in connection with a merger, amalgamation, liquidation,
dissolution or sale of such Person expressly permitted by the terms hereof or the other Loan
Documents, release any Borrower or any Guarantor from any obligation for the payment of money
or consent to the assignment or transfer by any Borrower or any Guarantor of any of its rights or
duties under this Agreement or the other Loan Documents,
(x)
amend, modify, or eliminate any of the provisions of Section
2.4(b)(i), (ii) or (iii) or Section 2.4(e) or (f),
(xi)
at any time that any Real Property is included in the Collateral, add,
increase, renew or extend any Loan, Letter of Credit or Commitment hereunder until the
completion of flood due diligence, documentation and coverage as required by the Flood Laws or
as otherwise satisfactory to all Lenders, or
(xii)
amend, modify, or eliminate any of the provisions of Section 13.1
with respect to assignments to, or participations with, Persons who are Loan Parties, or Affiliates
of a Loan Party;
(b)
No amendment, waiver, modification, or consent shall amend, modify,
waive, or eliminate,
(i)
the definition of, or any of the terms or provisions of, the Fee Letter,
without the written consent of Agent and Borrowers (and shall not require the written consent of
any of the Lenders),
(ii)
any provision of Section 15 pertaining to Agent, or any other rights
or duties of Agent under this Agreement or the other Loan Documents, without the written consent
of Agent, Borrowers, and the Required Lenders;
(c)
No amendment, waiver, modification, elimination, or consent shall amend,
without written consent of Agent, Borrowers and the Supermajority Lenders, modify, or eliminate
the definition of Borrowing Base or any of the defined terms (including the definitions of Eligible
Accounts, Eligible Finished Goods Inventory, Eligible Raw Material Inventory, Eligible Work-in-
Process Inventory, Eligible Inventory, Eligible Investment Grade Accounts, Eli gible Non-
Investment Grade Accounts, Eligible M&E and Eligible Real Property) that are used in such
definition to the extent that any such change results in more credit being made available to
Borrowers based upon the Borrowing Base, but not otherwise, or the definition of Maximum
Revolver Amount, or change Section 2.1(c);
(d)
No amendment, waiver, modification, elimination, or consent shall amend,
modify, or waive any provision of this Agreement or the other Loan Documents pertaining to
Issuing Bank, or any other rights or duties of Issuing Bank under this Agreement or the other Loan
Documents, without the written consent of Issuing Bank, Agent, Borrowers, and the Required
Lenders;
(e)
No amendment, waiver, modification, elimination, or consent shall amend,
modify, or waive any provision of this Agreement or the other Loan Documents pertaining to
Swing Lender, or any other rights or duties of Swing Lender under this Agreement or the other
Loan Documents, without the written consent of Swing Lender, Agent, Borrowers, and the
Required Lenders; and
(f)
Anything in this Section 14.1 to the contrary notwithstanding, (i) any
amendment, modification, elimination, waiver, consent, termination, or release of, or with respect
to, any provision of this Agreement or any other Loan Document that relates only to the
relationship of the Lender Group among themselves, and that does not affect the rights or
obligations of any Loan Party, shall not require consent by or the agreement of any Loan Party,
(ii) any amendment, waiver, modification, elimination, or consent of or with respect to any
provision of this Agreement or any other Loan Document may be entered into without the consent
of, or over the objection of, any Defaulting Lender other than any of the matters governed by
Section 14.1(a)(i) through (iii) that affect such Lender, and (iii) any amendment contemplated by
Section 2.12(d)(iii) of this Agreement in connection with a Benchmark Transition Event or an
Early Opt-in Election shall be effective as contemplated by such Section 2.12(d)(iii) hereof.
14.2.
Replacement of Certain Lenders
.
(a)
If (i) any action to be taken by the Lender Group or Agent hereunder
requires the consent, authorization, or agreement of all Lenders or all Lenders affected thereby and
if such action has received the consent, authorization, or agreement of the Required Lenders but
not of all Lenders or all Lenders affected thereby, or (ii) any Lender makes a claim for
compensation under Section 16, then Borrowers or Agent, upon at least five Business Days prior
irrevocable notice, may permanently replace any Lender that failed to give its consent,
authorization, or agreement (a "Non-Consenting Lender") or any Lender that made a claim for
compensation (a "Tax Lender") with one or more Replacement Lenders, and the Non-Consenting
Lender or Tax Lender, as applicable, shall have no right to refuse to be replaced hereunder. Such
notice to replace the Non-Consenting Lender or Tax Lender, as applicable, shall specify an
effective date for such replacement, which date shall not be later than 15 Business Days after the
date such notice is given.
(b)
Prior to the effective date of such replacement, the Non-Consenting Lender
or Tax Lender, as applicable, and each Replacement Lender shall execute and deliver an
Assignment and Acceptance, subject only to the Non-Consenting Lender or Tax Lender, as
applicable, being repaid in full its share of the outstanding Obligations (without any premium or
penalty of any kind whatsoever, but including (i) all interest, fees and other amounts that may be
due in payable in respect thereof, (ii) an assumption of its Pro Rata Share of participations in the
Letters of Credit, and (iii) Funding Losses). If the Non-Consenting Lender or Tax Lender, as
applicable, shall refuse or fail to execute and deliver any such Assignment and Acceptance prior
to the effective date of such replacement, Agent may, but shall not be required to, execute and
deliver such Assignment and Acceptance in the name or and on behalf of the Non-Consenting
Lender or Tax Lender, as applicable, and irrespective of whether Agent executes and delivers such
Assignment and Acceptance, the Non-Consenting Lender or Tax Lender, as applicable, shall be
deemed to have executed and delivered such Assignment and Acceptance. The replacement of
any Non-Consenting Lender or Tax Lender, as applicable, shall be made in accordance with the
terms of Section 13.1. Until such time as one or more Replacement Lenders shall have acquired
all of the Obligations, the Commitments, and the other rights and obligations of the Non-
Consenting Lender or Tax Lender, as applicable, hereunder and under the other Loan Documents,
the Non-Consenting Lender or Tax Lender, as applicable, shall remain obligated to make the Non-
Consenting Lender's or Tax Lender's, as applicable, Pro Rata Share of Revolving Loans and to
purchase a participation in each Letter of Credit, in an amount equal to its Pro Rata Share of
participations in such Letters of Credit.
14.3.
No Waivers; Cumulative Remedies
. No failure by Agent or any Lender to
exercise any right, remedy, or option under this Agreement or any other Loan Document, or delay
by Agent or any Lender in exercising the same, will operate as a waiver thereof. No waiver by
Agent or any Lender will be effective unless it is in writing, and then only to the extent specifically
stated. No waiver by Agent or any Lender on any occasion shall affect or diminish Agent's and
each Lender's rights thereafter to require strict performance by Borrowers of any provision of this
Agreement. Agent's and each Lender's rights under this Agreement and the other Loan Documents
will be cumulative and not exclusive of any other right or remedy that Agent or any Lender may
have.
15.
AGENT; THE LENDER GROUP.
15.1.
Appointment and Authorization of Agent
. Each Lender hereby designates
and appoints Wells Fargo as its agent under this Agreement and the other Loan Documents and
each Lender hereby irrevocably authorizes (and by entering into a Bank Product Agreement, each
Bank Product Provider shall be deemed to designate, appoint, and authorize) Agent to execute and
deliver each of the other Loan Documents on its behalf and to take such other action on its behalf
under the provisions of this Agreement and each other Loan Document and to exercise such powers
and perform such duties as are expressly delegated to Agent by the terms of this Agreement or any
other Loan Document, together with such powers as are reasonably incidental thereto. Agent
agrees to act as agent for and on behalf of the Lenders (and the Bank Product Providers) on the
conditions contained in this Section 15. Any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document notwithstanding, Agent shall not have any duties or
responsibilities, except those expressly set forth herein or in the other Loan Documents, nor shall
Agent have or be deemed to have any fiduciary relationship with any Lender (or Bank Product
Provider), and no implied covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist against Agent.
Without limiting the generality of the foregoing, the use of the term "agent" in this Agreement or
the other Loan Documents with reference to Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended to create or reflect
only a representative relationship between independent contracting parties. Each Lender hereby
further authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider
shall be deemed to authorize) Agent to act as the secured party under each of the Loan Documents
that create a Lien on any item of Collateral. Except as expressly otherwise provided in this
Agreement, Agent shall have and may use its sole discretion with respect to exercising or refraining
from exercising any discretionary rights or taking or refraining from taking any actions that Agent
expressly is entitled to take or assert under or pursuant to this Agreement and the other Loan
Documents. Without limiting the generality of the foregoing, or of any other provision of the Loan
Documents that provides rights or powers to Agent, Lenders agree that Agent shall have the right
to exercise the following powers as long as this Agreement remains in effect: (a) maintain, in
accordance with its customary business practices, ledgers and records reflecting the status of the
Obligations, the Collateral, payments and proceeds of Collateral, and related matters, (b) execute
or file any and all financing or similar statements or notices, amendments, renewals, supplements,
documents, instruments, proofs of claim, notices and other written agreements with respect to the
Loan Documents, or to take any other action with respect to any Collateral or Loan Documents
which may be necessary to perfect, and maintain perfected, the security interests and Liens upon
Collateral pursuant to the Loan Documents, (c) make Revolving Loans, for itself or on behalf of
Lenders, as provided in the Loan Documents, (d) exclusively receive, apply, and distribute
payments and proceeds of the Collateral as provided in the Loan Documents, (e) open and maintain
such bank accounts and cash management arrangements as Agent deems necessary and appropriate
in accordance with the Loan Documents for the foregoing purposes, (f) perform, exercise, and
enforce any and all other rights and remedies of the Lender Group with respect to any Loan Party
or its Subsidiaries, the Obligations, the Collateral, or otherwise related to any of same as provided
in the Loan Documents, and (g) incur and pay such Lender Group Expenses as Agent may deem
necessary or appropriate for the performance and fulfillment of its functions and powers pursuant
to the Loan Documents.
15.2.
Delegation of Duties
. Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or attorneys in fact and
shall be entitled to advice of counsel concerning all matters pertaining to such duties. Agent shall
not be responsible for the negligence or misconduct of any agent or attorney in fact that it selects
as long as such selection was made without gross negligence or willful misconduct.
15.3.
Liability of Agent
. None of the Agent-Related Persons shall (a) be liable for
any action taken or omitted to be taken by any of them under or in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (b) be responsible in any manner to any of the Lenders (or
Bank Product Providers) for any recital, statement, representation or warranty made by any Loan
Party or any of its Subsidiaries or Affiliates, or any officer or director thereof, contained in this
Agreement or in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure of any Loan Party
or its Subsidiaries or any other party to any Loan Document to perform its obligations hereunder
or thereunder. No Agent-Related Person shall be under any obligation to any Lenders (or Bank
Product Providers) to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the books and records or properties of any Loan Party or its Subsidiaries. No Agent-
Related Person shall have any liability to any Lender, and Loan Party or any of their respective
Affiliates if any request for a Loan, Letter of Credit or other extension of credit was not authorized
by the applicable Borrower. Agent shall not be required to take any action that, in its opinion or
in the opinion of its counsel, may expose it to liability or that is contrary to any Loan Document
or applicable law or regulation.
15.4.
Reliance by Agent
. Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram,
telefacsimile or other electronic method of transmission, telex or telephone message, statement or
other document or conversation believed by it to be genuine and correct and to have been signed,
sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel to Borrowers or counsel to any Lender), independent accountants and other
experts selected by Agent. Agent shall be fully justified in failing or refusing to take any action
under this Agreement or any other Loan Document unless Agent shall first receive such advice or
concurrence of the Lenders as it deems appropriate and until such instructions are received, Agent
shall act, or refrain from acting, as it deems advisable. If Agent so requests, it shall first be
indemnified to its reasonable satisfaction by the Lenders (and, if it so elects, the Bank Product
Providers) against any and all liability and expense that may be incurred by it by reason of taking
or continuing to take any such action. Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Required Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders (and Bank Product Providers).
15.5.
Notice of Default or Event of Default
. Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except with respect to
defaults in the payment of principal, interest, fees, and expenses required to be paid to Agent for
the account of the Lenders and, except with respect to Events of Default of which Agent has actual
knowledge, unless Agent shall have received written notice from a Lender or Borrowers referring
to this Agreement, describing such Default or Event of Default, and stating that such notice is a
"notice of default." Agent promptly will notify the Lenders of its receipt of any such notice or of
any Event of Default of which Agent has actual knowledge. If any Lender obtains actual
knowledge of any Event of Default, such Lender promptly shall notify the other Lenders and Agent
of such Event of Default. Each Lender shall be solely responsible for giving any notices to its
Participants, if any. Subject to Section 15.4, Agent shall take such action with respect to such
Default or Event of Default as may be requested by the Required Lenders in accordance with
Section 9; provided, that unless and until Agent has received any such request, Agent may (but
shall not be obligated to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable.
15.6.
Credit Decision
. Each Lender (and Bank Product Provider) acknowledges that
none of the Agent-Related Persons has made any representation or warranty to it, and that no act
by Agent hereinafter taken, including any review of the affairs of any Loan Party and its
Subsidiaries or Affiliates, shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender (or Bank Product Provider). Each Lender represents (and by
entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to
represent) to Agent that it has, independently and without reliance upon any Agent-Related Person
and based on such due diligence, documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, prospects, operations, property, financial
and other condition and creditworthiness of each Borrower or any other Person party to a Loan
Document, and all applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend credit to Borrowers.
Each Lender also represents (and by entering into a Bank Product Agreement, each Bank Product
Provider shall be deemed to represent) that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions in taking or not
taking action under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of each Borrower or any other Person
party to a Loan Document. Except for notices, reports, and other documents expressly herein
required to be furnished to the Lenders by Agent, Agent shall not have any duty or responsibility
to provide any Lender (or Bank Product Provider) with any credit or other information concerning
the business, prospects, operations, property, financial and other condition or creditworthiness of
any Borrower or any other Person party to a Loan Document that may come into the possession of
any of the Agent-Related Persons. Each Lender acknowledges (and by entering into a Bank
Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that Agent does
not have any duty or responsibility, either initially or on a continuing basis (except to the extent,
if any, that is expressly specified herein) to provide such Lender (or Bank Product Provider) with
any credit or other information with respect to any Borrower, its Affiliates or any of their respective
business, legal, financial or other affairs, and irrespective of whether such information came into
Agent's or its Affiliates' or representatives' possession before or after the date on which such
Lender became a party to this Agreement (or such Bank Product Provider entered into a Bank
Product Agreement).
15.7.
Costs and Expenses; Indemnification
. Agent may incur and pay Lender
Group Expenses to the extent Agent reasonably deems necessary or appropriate for the
performance and fulfillment of its functions, powers, and obligations pursuant to the Loan
Documents, including court costs, attorneys' fees and expenses, fees and expenses of financial
accountants, advisors, consultants, and appraisers, costs of collection by outside collection
agencies, auctioneer fees and expenses, and costs of security guards or insurance premiums paid
to maintain the Collateral, whether or not Borrowers are obligated to reimburse Agent or Lenders
for such expenses pursuant to this Agreement or otherwise. Agent is authorized and directed to
deduct and retain sufficient amounts from payments or proceeds of the Collateral received by
Agent to reimburse Agent for such out-of-pocket costs and expenses prior to the distribution of
any amounts to Lenders (or Bank Product Providers). In the event Agent is not reimbursed for
such costs and expenses by the Loan Parties and their Subsidiaries, each Lender hereby agrees that
it is and shall be obligated to pay to Agent such Lender's ratable share thereof. Whether or not the
transactions contemplated hereby are consummated, each of the Lenders, on a ratable basis, shall
indemnify and defend the Agent-Related Persons (to the extent not reimbursed by or on behalf of
Borrowers and without limiting the obligation of Borrowers to do so) from and against any and all
Indemnified Liabilities; provided, that no Lender shall be liable for the payment to any Agent-
Related Person of any portion of such Indemnified Liabilities resulting solely from such Person's
gross negligence or willful misconduct nor shall any Lender be liable for the obligations of any
Defaulting Lender in failing to make a Revolving Loan or other extension of credit hereunder.
Without limitation of the foregoing, each Lender shall reimburse Agent upon demand for such
Lender's ratable share of any costs or out of pocket expenses (including attorneys, accountants,
advisors, and consultants fees and expenses) incurred by Agent in connection with the preparation,
execution, delivery, administration, modification, amendment, or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any other Loan Document to the extent that Agent is not
reimbursed for such expenses by or on behalf of Borrowers. The undertaking in this Section shall
survive the payment of all Obligations hereunder and the resignation or replacement of Agent.
15.8.
Agent in Individual Capacity
. Wells Fargo and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, provide Bank Products to, acquire
Equity Interests in, and generally engage in any kind of banking, trust, financial advisory,
underwriting, or other business with any Loan Party and its Subsidiaries and Affiliates and any
other Person party to any Loan Document as though Wells Fargo were not Agent hereunder, and,
in each case, without notice to or consent of the other members of the Lender Group. The other
members of the Lender Group acknowledge (and by entering into a Bank Product Agreement, each
Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, Wells
Fargo or its Affiliates may receive information regarding a Loan Party or its Affiliates or any other
Person party to any Loan Documents that is subject to confidentiality obligations in favor of such
Loan Party or such other Person and that prohibit the disclosure of such information to the Lenders
(or Bank Product Providers), and the Lenders acknowledge (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such
circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver
Agent will use its reasonable best efforts to obtain), Agent shall not be under any obligation to
provide such information to them. The terms "Lender" and "Lenders" include Wells Fargo in its
individual capacity.
15.9.
Successor Agent
. Agent may resign as Agent upon 30 days (ten days if an
Event of Default has occurred and is continuing) prior written notice to the Lenders (unless such
notice is waived by the Required Lenders) and Borrowers (unless such notice is waived by
Borrowers or a Default or Event of Default has occurred and is continuing) and without any notice
to the Bank Product Providers. If Agent resigns under this Agreement, the Required Lenders shall
be entitled, with (so long as no Event of Default has occurred and is continuing) the consent of
Borrowers (such consent not to be unreasonably withheld, delayed, or conditioned), appoint a
successor Agent for the Lenders (and the Bank Product Providers). If, at the time that Agent's
resignation is effective, it is acting as Issuing Bank or the Swing Lender, such resignation shall
also operate to effectuate its resignation as Issuing Bank or the Swing Lender, as applicable, and
it shall automatically be relieved of any further obligation to issue Letters of Credit, or to make
Swing Loans. If no successor Agent is appointed prior to the effective date of the resignation of
Agent, Agent may appoint, after consulting with the Lenders and Borrowers, a successor Agent.
If Agent has materially breached or failed to perform any material provision of this Agreement or
of applicable law, the Required Lenders may agree in writing to remove and replace Agent with a
successor Agent from among the Lenders with (so long as no Event of Default has occurred and
is continuing) the consent of Borrowers (such consent not to be unreasonably withheld, delayed,
or conditioned). In any such event, upon the acceptance of its appointment as successor Agent
hereunder, such successor Agent shall succeed to all the rights, powers, and duties of the retiring
Agent and the term "Agent" shall mean such successor Agent and the retiring Agent's appointment,
powers, and duties as Agent shall be terminated. After any retiring Agent's resignation hereunder
as Agent, the provisions of this Section 15 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement. If no successor Agent has
accepted appointment as Agent by the date which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of Agent hereunder until such time, if any, as the Lenders
appoint a successor Agent as provided for above.
15.10.
Lender in Individual Capacity
. Any Lender and its respective Affiliates may
make loans to, issue letters of credit for the account of, accept deposits from, provide Bank
Products to, acquire Equity Interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting, or other business with any Loan Party and its Subsidiaries and Affiliates
and any other Person party to any Loan Documents as though such Lender were not a Lender
hereunder without notice to or consent of the other members of the Lender Group (or the Bank
Product Providers). The other members of the Lender Group acknowledge (and by entering into
a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that,
pursuant to such activities, such Lender and its respective Affiliates may receive information
regarding a Loan Party or its Affiliates or any other Person party to any Loan Documents that is
subject to confidentiality obligations in favor of such Loan Party or such other Person and that
prohibit the disclosure of such information to the Lenders, and the Lenders acknowledge (and by
entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to
acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality
obligations, which waiver such Lender will use its reasonable best efforts to obtain), such Lender
shall not be under any obligation to provide such information to them.
15.11.
Collateral Matters
.
(a)
The Lenders hereby irrevocably authorize (and by entering into a Bank
Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to release
any Lien on any Collateral (i) upon the termination of the Commitments and payment and
satisfaction in full by the Loan Parties and their Subsidiaries of all of the Obligations, (ii)
constituting property being sold or disposed of if a release is required or desirable in connection
therewith and if Borrowers certify to Agent that the sale or disposition is permitted under Section
6.4 (and Agent may rely conclusively on any such certificate, without further inquiry), (iii)
constituting property in which no Loan Party or any of its Subsidiaries owned any interest at the
time Agent's Lien was granted nor at any time thereafter, (iv) constituting property leased or
licensed to a Loan Party or its Subsidiaries under a lease or license that has expired or is terminated
in a transaction permitted under this Agreement, or (v) in connection with a credit bid or purchase
authorized under this Section 15.11. The Loan Parties and the Lenders hereby irrevocably
authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be
deemed to authorize) Agent, based upon the instruction of the Required Lenders, to (a) consent to
the sale of, credit bid, or purchase (either directly or indirectly through one or more entities) all or
any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy
Code, or similar Insolvency Laws in any other relevant jurisdiction, including Section 363 of the
Bankruptcy Code or in connection with any other Insolvency Proceeding in any other jurisdiction
to which a Loan Party is subject, (b) credit bid or purchase (either directly or indirectly through
one or more entities) all or any portion of the Collateral at any sale or other disposition thereof
conducted under the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the
Code, the PPSA, including pursuant to Sections 9-610 or 9-620 of the Code, the PPSA or similar
Insolvency Laws in any other relevant jurisdiction or any similar provision of the PPSA, or (c)
credit bid or purchase (either directly or indirectly through one or more entities) all or any portion
of the Collateral at any other sale or foreclosure conducted or consented to by Agent in accordance
with applicable law in any judicial action or proceeding or by the exercise of any legal or equitable
remedy. In connection with any such credit bid or purchase, (i) the Obligations owed to the
Lenders and the Bank Product Providers shall be entitled to be, and shall be, credit bid on a ratable
basis (with Obligations with respect to contingent or unliquidated claims being estimated for such
purpose if the fixing or liquidation thereof would not impair or unduly delay the ability of Agent
to credit bid or purchase at such sale or other disposition of the Collateral and, if such contingent
or unliquidated claims cannot be estimated without impairing or unduly delaying the ability of
Agent to credit bid at such sale or other disposition, then such claims shall be disregarded, not
credit bid, and not entitled to any interest in the Collateral that is the subject of such credit bid or
purchase) and the Lenders and the Bank Product Providers whose Obligations are credit bid shall
be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in
relation to the aggregate amount of Obligations so credit bid) in the Collateral that is the subject
of such credit bid or purchase (or in the Equity Interests of the any entities that are used to
consummate such credit bid or purchase), and (ii) Agent, based upon the instruction of the
Required Lenders, may accept non-cash consideration, including debt and equity securities issued
by any entities used to consummate such credit bid or purchase and in connection therewith Agent
may reduce the Obligations owed to the Lenders and the Bank Product Providers (ratably based
upon the proportion of their Obligations credit bid in relation to the aggregate amount of
Obligations so credit bid) based upon the value of such non-cash consideration; provided, that
Bank Product Obligations not entitled to the application set forth in Section 2.4(b)(iii)(J) shall not
be entitled to be, and shall not be, credit bid, or used in the calculation of the ratable interest of the
Lenders and Bank Product Providers in the Obligations which are credit bid. Except as provided
above, Agent will not execute and deliver a release of any Lien on any Collateral without the prior
written authorization of (y) if the release is of all or substantially all of the Collateral, all of the
Lenders (without requiring the authorization of the Bank Product Providers), or (z) otherwise, the
Required Lenders (without requiring the authorization of the Bank Product Providers). Upon
request by Agent or Borrowers at any time, the Lenders will (and if so requested, the Bank Product
Providers will) confirm in writing Agent's authority to release any such Liens on particular types
or items of Collateral pursuant to this Section 15.11 ; provided, that (1) anything to the contrary
contained in any of the Loan Documents notwithstanding, Agent shall not be required to execute
any document or take any action necessary to evidence such release on terms that, in Agent's
opinion, could expose Agent to liability or create any obligation or entail any consequence other
than the release of such Lien without recourse, representation, or warranty, and (2) such release
shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those
expressly released) upon (or obligations of Borrowers in respect of) any and all interests retained
by any Borrower, including, the proceeds of any sale, all of which shall continue to constitute part
of the Collateral. Each Lender further hereby irrevocably authorizes (and by entering into a Bank
Product Agreement, each Bank Product Provider shall be deemed to irrevocably authorize) Agent,
at its option and in its sole discretion, to subordinate (by contract or otherwise) any Lien granted
to or held by Agent on any property under any Loan Document (a) to the holder of any Permitted
Lien on such property if such Permitted Lien secures purchase money Indebtedness (including
Capitalized Lease Obligations) which constitute Permitted Indebtedness and (b) to the extent
Agent has the authority under this Section 15.11 to release its Lien on such property.
Notwithstanding the provisions of this Section 15.11, the Agent shall be authorized, without the
consent of any Lender and without the requirement that an asset sale consisting of the sale, transfer
or other disposition having occurred, to release any security interest in any building, structure or
improvement located in an area determined by the Federal Emergency Management Agency to
have special flood hazards.
(b)
Agent shall have no obligation whatsoever to any of the Lenders (or the
Bank Product Providers) (i) to verify or assure that the Collateral exists or is owned by a Loan
Party or any of its Subsidiaries or is cared for, protected, or insured or has been encumbered, (ii)
to verify or assure that Agent's Liens have been properly or sufficiently or lawfully created,
perfected, protected, or enforced or are entitled to any particular priority, (iii) to verify or assure
that any particular items of Collateral meet the eligibility criteria applicable in respect thereof, (iv)
to impose, maintain, increase, reduce, implement, or eliminate any particular reserve hereunder or
to determine whether the amount of any reserve is appropriate or not, or (v) to exercise at all or in
any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising,
any of the rights, authorities and powers granted or available to Agent pursuant to any of the Loan
Documents, it being understood and agreed that in respect of the Collateral, or any act, omission,
or event related thereto, subject to the terms and conditions contained herein, Agent may act in
any manner it may deem appropriate, in its sole discretion given Agent's own interest in the
Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability
whatsoever to any Lender (or Bank Product Provider) as to any of the foregoing, except as
otherwise expressly provided herein.
15.12.
Restrictions on Actions by Lenders; Sharing of Payments
.
(a)
Each of the Lenders agrees that it shall not, without the express written
consent of Agent, and that it shall, to the extent it is lawfully entitled to do so, upon the written
request of Agent, set off against the Obligations, any amounts owing by such Lender to any Loan
Party or its Subsidiaries or any deposit accounts of any Loan Party or its Subsidiaries now or
hereafter maintained with such Lender. Each of the Lenders further agrees that it shall not, unless
specifically requested to do so in writing by Agent, take or cause to be taken any action, including,
the commencement of any legal or equitable proceedings to enforce any Loan Document against
any Borrower or any Guarantor or to foreclose any Lien on, or otherwise enforce any security
interest in, any of the Collateral.
(b)
If, at any time or times any Lender shall receive (i) by payment, foreclosure,
setoff, or otherwise, any proceeds of Collateral or any payments with respect to the Obligations,
except for any such proceeds or payments received by such Lender from Agent pursuant to the
terms of this Agreement, or (ii) payments from Agent in excess of such Lender's Pro Rata Share
of all such distributions by Agent, such Lender promptly shall (A) turn the same over to Agent, in
kind, and with such endorsements as may be required to negotiate the same to Agent, or in
immediately available funds, as applicable, for the account of all of the Lenders and for application
to the Obligations in accordance with the applicable provisions of this Agreement, or (B) purchase,
without recourse or warranty, an undivided interest and participation in the Obligations owed to
the other Lenders so that such excess payment received shall be applied ratably as among the
Lenders in accordance with their Pro Rata Shares; provided, that to the extent that such excess
payment received by the purchasing party is thereafter recovered from it, those purchases of
participations shall be rescinded in whole or in part, as applicable, and the applicable portion of
the purchase price paid therefor shall be returned to such purchasing party, but without interest
except to the extent that such purchasing party is required to pay interest in connection with the
recovery of the excess payment.
15.13.
Agency for Perfection
. Agent hereby appoints each other Lender (and each
Bank Product Provider) as its agent (and each Lender hereby accepts (and by entering into a Bank
Product Agreement, each Bank Product Provider shall be deemed to accept) such appointment) for
the purpose of perfecting Agent's Liens in assets which, in accordance with Article 8 or Article 9,
as applicable, of the Code or the STA, as applicable, can be perfected by possession or control.
Should any Lender obtain possession or control of any such Collateral, such Lender shall notify
Agent thereof, and, promptly upon Agent's request therefor shall deliver possession or control of
such Collateral to Agent or in accordance with Agent's instructions.
15.14.
Payments by Agent to the Lenders
. All payments to be made by Agent to the
Lenders (or Bank Product Providers) shall be made by bank wire transfer of immediately available
funds pursuant to such wire transfer instructions as each party may designate for itself by written
notice to Agent. Concurrently with each such payment, Agent shall identify whether such payment
(or any portion thereof) represents principal, premium, fees, or interest of the Obligations.
15.15.
Concerning the Collateral and Related Loan Documents
. Each member of
the Lender Group authorizes and directs Agent to enter into this Agreement and the other Loan
Documents. Each member of the Lender Group agrees (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to agree) that any action taken by Agent
in accordance with the terms of this Agreement or the other Loan Documents relating to the
Collateral and the exercise by Agent of its powers set forth therein or herein, together with such
other powers that are reasonably incidental thereto, shall be binding upon all of the Lenders (and
such Bank Product Provider).
15.16.
Field Examination Reports; Confidentiality; Disclaimers by Lenders;
Other Reports and Information
. By becoming a party to this Agreement, each Lender:
(a)
is deemed to have requested that Agent furnish such Lender, promptly after
it becomes available, a copy of each field examination report respecting any Loan Party or its
Subsidiaries (each, a "Report") prepared by or at the request of Agent, and Agent shall so furnish
each Lender with such Reports,
(b)
expressly agrees and acknowledges that Agent does not (i) make any
representation or warranty as to the accuracy of any Report, and (ii) shall not be liable for any
information contained in any Report,
(c)
expressly agrees and acknowledges that the Reports are not comprehensive
audits or examinations, that Agent or other party performing any field examination will inspect
only specific information regarding the Loan Parties and their Subsidiaries and will rely
significantly upon Borrowers' and their Subsidiaries' books and records, as well as on
representations of Borrowers' personnel,
(d)
agrees to keep all Reports and other material, non-public information
regarding the Loan Parties and their Subsidiaries and their operations, assets, and existing and
contemplated business plans in a confidential manner in accordance with Section 17.9, and
(e)
without limiting the generality of any other indemnification provision
contained in this Agreement, agrees: (i) to hold Agent and any other Lender preparing a Report
harmless from any action the indemnifying Lender may take or fail to take or any conclusion the
indemnifying Lender may reach or draw from any Report in connection with any loans or other
credit accommodations that the indemnifying Lender has made or may make to Borrowers, or the
indemnifying Lender's participation in, or the indemnifying Lender's purchase of, a loan or loans
of Borrowers, and (ii) to pay and protect, and indemnify, defend and hold Agent, and any such
other Lender preparing a Report harmless from and against, the claims, actions, proceedings,
damages, costs, expenses, and other amounts (including, attorneys' fees and costs) incurred by
Agent and any such other Lender preparing a Report as the direct or indirect result of any third
parties who might obtain all or part of any Report through the indemnifying Lender.
In addition to the foregoing, (x) any Lender may from time to time request of Agent in writing that
Agent provide to such Lender a copy of any report or document provided by any Loan Party or its
Subsidiaries to Agent that has not been contemporaneously provided by such Loan Party or such
Subsidiary to such Lender, and, upon receipt of such request, Agent promptly shall provide a copy
of same to such Lender, (y) to the extent that Agent is entitled, under any provision of the Loan
Documents, to request additional reports or information from any Loan Party or its Subsidiaries,
any Lender may, from time to time, reasonably request Agent to exercise such right as specified
in such Lender's notice to Agent, whereupon Agent promptly shall request of Borrowers the
additional reports or information reasonably specified by such Lender, and, upon receipt thereof
from such Loan Party or such Subsidiary, Agent promptly shall provide a copy of same to such
Lender, and (z) any time that Agent renders to Borrowers a statement regarding the Loan Account,
Agent shall send a copy of such statement to each Lender.
15.17.
Several Obligations; No Liability
. Notwithstanding that certain of the Loan
Documents now or hereafter may have been or will be executed only by or in favor of Agent in its
capacity as such, and not by or in favor of the Lenders, any and all obligations on the part of Agent
(if any) to make any credit available hereunder shall constitute the several (and not joint)
obligations of the respective Lenders on a ratable basis, according to their respective
Commitments, to make an amount of such credit not to exceed, in principal amount, at any one
time outstanding, the amount of their respective Commitments. Nothing contained herein shall
confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect of,
the business, assets, profits, losses, or liabilities of any other Lender. Each Lender shall be solely
responsible for notifying its Participants of any matters relating to the Loan Documents to the
extent any such notice may be required, and no Lender shall have any obligation, duty, or liability
to any Participant of any other Lender. Except as provided in Section 15.7, no member of the
Lender Group shall have any liability for the acts of any other member of the Lender Group. No
Lender shall be responsible to any Borrower or any other Person for any failure by any other
Lender (or Bank Product Provider) to fulfill its obligations to make credit available hereunder, nor
to advance for such Lender (or Bank Product Provider) or on its behalf, nor to take any other action
on behalf of such Lender (or Bank Product Provider) hereunder or in connection with the financing
contemplated herein.
15.18.
Lead Arranger, and Book Runner
. Each of the Lead Arranger and Book
Runner, in such capacities, shall not have any right, power, obligation, liability, responsibility, or
duty under this Agreement other than those applicable to it in its capacity as a Lender, as Agent,
as Swing Lender, or as Issuing Bank. Without limiting the generality of the foregoing, each of the
J Lead Arranger and Book Runner, in such capacities, shall not have or be deemed to have any
fiduciary relationship with any Lender or any Loan Party. Each Lender, Agent, Swing Lender,
Issuing Bank, and each Loan Party acknowledges that it has not relied, and will not rely, on the
Lead Arranger and Book Runner in deciding to enter into this Agreement or in taking or not taking
action hereunder. Each of the Lead Arranger and Book Runner, in such capacities, shall be entitled
to resign at any time by giving notice to Agent and Borrowers.
15.19.
Appointment for the Province of Quebec
.
(a)
Hypothecary Representative
. For greater certainty, and without limiting
the powers of Agent, each Lender and each Bank Product Provider hereby irrevocably constitutes
Agent as the hypothecary representative within the meaning of Article 2692 of the CCQ in order
to hold hypothecs and security granted by any Loan Party on property pursuant to the laws of the
Province of Québec in order to secure obligations of any Loan Party hereunder and under the other
Loan Documents. The execution by Agent, acting as hypothecary representative prior to this
Agreement of any deeds of hypothec or other security documents is hereby ratified and confirmed.
(b)
Ratification of Hypothecary Representative by Successors and
Assignees, Etc.
been ratified and confirmed by each Person accepting an assignment of, a participation in or an
arrangement in respect of, all or any portion of the rights and obligations of any Lender or Bank
Product Provider under this Agreement by the execution of an assignment (or other agreement
pursuant to which it becomes such assignee or participant) and by each successor Agent by the
compliance with such formalities pursuant to which it becomes a successor Agent under this
Agreement.
(c)
Rights, Etc. of Hypothecary Representative.
hypothecary representative shall have the same rights, powers, immunities, indemnities and
exclusions from liability as are prescribed in favor of Agent in this Agreement, which shall apply
mutatis mutandis to Agent acting as hypothecary representative. In the event of the resignation of
Agent (which shall include its resignation as the hypothecary representative as contemplated in
Section
Agent shall also act as the hypothecary representative, as contemplated by Section 15.19.1.
16.
WITHHOLDING TAXES.
16.1.
Payments
. All payments made by any Loan Party under any Loan Document
will be made free and clear of, and without deduction or withholding for, any Taxes, except as
otherwise required by applicable law, and in the event any deduction or withholding of Taxes is
required, the applicable Loan Party shall make the requisite withholding, promptly pay over to the
applicable Governmental Authority the withheld tax, and furnish to Agent as promptly as possible
after the date the payment of any such Tax is due pursuant to applicable law, certified copies of
tax receipts evidencing such payment by the Loan Parties. Furthermore, if any such Tax is an
Indemnified Taxes or an Indemnified Tax is so levied or imposed, the Loan Parties agree to pay
the full amount of such Indemnified Taxes and such additional amounts as may be necessary so
that every payment of all amounts due under this Agreement, any note, or Loan Document,
including any amount paid pursuant to this Section 16.1 after withholding or deduction for or on
account of any Indemnified Taxes, will not be less than the amount provided for herein. The Loan
Parties will promptly pay any Other Taxes or reimburse Agent for such Other Taxes upon Agent's
demand. The Loan Parties shall jointly and severally indemnify each Indemnified Person (as
defined in Section 10.3) (collectively a "Tax Indemnitee") for the full amount of Indemnified
Taxes arising in connection with this Agreement or any other Loan Document or breach thereof
by any Loan Party (including any Indemnified Taxes imposed or asserted on, or attributable to,
amounts payable under this Section 16) imposed on, or paid by, such Tax Indemnitee and all
reasonable costs and expenses related thereto (including fees and disbursements of attorneys and
other tax professionals), as and when they are incurred and irrespective of whether suit is brought,
whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority (other than Indemnified Taxes and additional amounts that a
court of competent jurisdiction finally determines to have resulted from the gross negligence or
willful misconduct of such Tax Indemnitee). The obligations of the Loan Parties under this Section
16 shall survive the termination of this Agreement, the resignation and replacement of the Agent,
and the repayment of the Obligations.
16.2.
Exemptions
.
(a)
If a Lender or Participant is entitled to claim an exemption or reduction from
United States withholding tax, such Lender or Participant agrees with and in favor of Agent, to
deliver to Agent (or, in the case of a Participant, to the Lender granting the participation only) and
the Administrative Borrower on behalf of all Borrowers one of the following before receiving its
first payment under this Agreement:
(i)
if such Lender or Participant is entitled to claim an exemption from
United States withholding tax pursuant to the portfolio interest exception, (A) a statement of the
Lender or Participant, signed under penalty of perjury, that it is not a (I) a "bank" as described in
Section 881(c)(3)(A) of the IRC, (II) a 10% shareholder of any Borrower (within the meaning of
Section 871(h)(3)(B) of the IRC), or (III) a controlled foreign corporation related to Borrowers
within the meaning of Section 864(d)(4) of the IRC, and (B) a properly completed and executed
IRS Form W-8BEN, Form W-8BEN-E or Form W-8IMY (with proper attachments as applicable);
(ii)
if such Lender or Participant is entitled to claim an exemption from,
or a reduction of, withholding tax under a United States tax treaty, a properly completed and
executed copy of IRS Form W-8BEN or Form W-8BEN-E, as applicable;
(iii)
if such Lender or Participant is entitled to claim that interest paid
under this Agreement is exempt from United States withholding tax because it is effectively
connected with a United States trade or business of such Lender, a properly completed and
executed copy of IRS Form W-8ECI;
(iv)
if such Lender or Participant is entitled to claim that interest paid
under this Agreement is exempt from United States withholding tax because such Lender or
Participant serves as an intermediary, a properly completed and executed copy of IRS Form W-
8IMY (including a withholding statement and copies of the tax certification documentation for its
beneficial owner(s) of the income paid to the intermediary, if required based on its status provided
on the Form W-8IMY); or
(v)
a properly completed and executed copy of any other form or forms,
including IRS Form W-9, as may be required under the IRC or other laws of the United States as
a condition to exemption from, or reduction of, United States withholding or backup withholding
tax.
(b)
Each Lender or Participant shall provide new forms (or successor forms)
upon the expiration or obsolescence of any previously delivered forms and to promptly notify
Agent and Administrative Borrower (or, in the case of a Participant, to the Lender granting the
participation only) of any change in circumstances which would modify or render invalid any
claimed exemption or reduction.
(c)
If a Lender or Participant claims an exemption from withholding tax in a
jurisdiction other than the United States, such Lender or such Participant agrees with and in favor
of Agent and Borrowers, to deliver to Agent and Administrative Borrower (or, in the case of a
Participant, to the Lender granting the participation only) any such form or forms, as may be
required under the laws of such jurisdiction as a condition to exemption from, or reduction of,
foreign withholding or backup withholding tax before receiving its first payment under this
Agreement, but only if such Lender or such Participant is legally able to deliver such forms, or the
providing of or delivery of such forms in the Lender's reasonable judgment would not subject such
Lender to any material unreimbursed cost or expense or materially prejudice the legal or
commercial position of such Lender (or its Affiliates); provided, further, that nothing in this
Section 16.2(c) shall require a Lender or Participant to disclose any information that it deems to
be confidential (including its tax returns). Each Lender and each Participant shall provide new
forms (or successor forms) upon the expiration or obsolescence of any previously delivered forms
and promptly notify Agent and Administrative Borrower (or, in the case of a Participant, to the
Lender granting the participation only) of any change in circumstances which would modify or
render invalid any claimed exemption or reduction.
(d)
If a Lender or Participant claims exemption from, or reduction of,
withholding tax and such Lender or Participant sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of Borrowers to such Lender or Participant, such Lender or
Participant agrees to notify Agent and Administrative Borrower (or, in the case of a sale of a
participation interest, to the Lender granting the participation only) of the percentage amount in
which it is no longer the beneficial owner of Obligations of Borrowers to such Lender or
Participant. To the extent of such percentage amount, Agent and Administrative Borrower will
treat such Lender's or such Participant's documentation provided pursuant to Section 16.2(a) or
16.2(c) as no longer valid. With respect to such percentage amount, such Participant or Assignee
may provide new documentation, pursuant to Section 16.2(a) or 16.2(c), if applicable. Borrowers
agree that each Participant shall be entitled to the benefits of this Section 16 with respect to its
participation in any portion of the Commitments and the Obligations so long as such Participant
complies with the obligations set forth in this Section 16 with respect thereto.
(e)
If a payment made to a Lender under any Loan Document would be subject
to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the
applicable due diligence and reporting requirements of FATCA (including those contained in
Section 1471(b) or 1472(b) of the IRC, as applicable), such Lender shall deliver to Agent (or, in
the case of a Participant, to the Lender granting the participation only) at the time or times
prescribed by law and at such time or times reasonably requested by Agent (or, in the case of a
Participant, the Lender granting the participation) such documentation prescribed by applicable
law (including as prescribed by Section 1471(b)(3)(C)(i) of the IRC) and such additional
documentation reasonably requested by Agent (or, in the case of a Participant, the Lender granting
the participation) as may be necessary for Agent or Borrowers to comply with their obligations
under FATCA and to determine that such Lender has complied with such Lender's obligations
under FATCA or to determine the amount to deduct and withhold from such payment. Solely for
purposes of this clause (e), "FATCA" shall include any amendments made to FATCA after the
date of this Agreement.
16.3.
Reductions
.
(a)
If a Lender or a Participant is subject to an applicable withholding tax,
Agent (or, in the case of a Participant, the Lender granting the participation) may withhold from
any payment to such Lender or such Participant an amount equivalent to the applicable
withholding tax. If the forms or other documentation required by Section 16.2(a) or 16.2(c) are
not delivered to Agent (or, in the case of a Participant, to the Lender granting the participation),
then Agent (or, in the case of a Participant, to the Lender granting the participation) may withhold
from any payment to such Lender or such Participant not providing such forms or other
documentation an amount equivalent to the applicable withholding tax.
(b)
If the IRS or any other Governmental Authority of the United States or other
jurisdiction asserts a claim that Agent (or, in the case of a Participant, to the Lender granting the
participation) did not properly withhold tax from amounts paid to or for the account of any Lender
or any Participant due to a failure on the part of the Lender or any Participant (because the
appropriate form was not delivered, was not properly executed, or because such Lender failed to
notify Agent (or such Participant failed to notify the Lender granting the participation) of a change
in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective,
or for any other reason) such Lender shall indemnify and hold Agent harmless (or, in the case of a
Participant, such Participant shall indemnify and hold the Lender granting the participation
harmless) for all amounts paid, directly or indirectly, by Agent (or, in the case of a Participant, to
the Lender granting the participation), as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to Agent (or, in the case
of a Participant, to the Lender granting the participation only) under this Section 16, together with
all costs and expenses (including attorneys' fees and expenses). The obligation of the Lenders and
the Participants under this subsection shall survive the payment of all Obligations and the
resignation or replacement of Agent.
16.4.
Refunds
. If Agent or a Lender determines, in its sole discretion acting in good
faith, that it has received a refund of any Indemnified Taxes to which the Loan Parties have paid
additional amounts pursuant to this Section 16, so long as no Default or Event of Default has
occurred and is continuing, it shall pay over such refund to the Administrative Borrower on behalf
of the Loan Parties (but only to the extent of payments made, or additional amounts paid, by the
Loan Parties under this Section 16 with respect to Indemnified Taxes giving rise to such a refund),
net of all out-of-pocket expenses of Agent or such Lender and without interest (other than any
interest paid by the applicable Governmental Authority with respect to such a refund); provided,
that the Loan Parties, upon the request of Agent or such Lender, agrees to repay the amount paid
over to the Loan Parties (plus any penalties, interest or other charges, imposed by the applicable
Governmental Authority, other than such penalties, interest or other charges imposed as a result of
the willful misconduct or gross negligence of Agent or Lender hereunder as finally determined by
a court of competent jurisdiction) to Agent or such Lender in the event Agent or such Lender is
required to repay such refund to such Governmental Authority. Notwithstanding anything in this
Agreement to the contrary, this Section 16 shall not be construed to require Agent or any Lender
to make available its tax returns (or any other information which it deems confidential) to Loan
Parties or any other Person or require Agent or any Lender to pay any amount to an indemnifying
party pursuant to Section 16.4, the payment of which would place Agent or such Lender (or their
Affiliates) in a less favorable net after-Tax position than such Person would have been in if the
Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or
otherwise imposed and the indemnification payments or additional amounts with respect to such
Tax had never been paid.
17.
GENERAL PROVISIONS.
17.1.
Effectiveness
. This Agreement shall be binding and deemed effective when
executed by each Borrower, Agent, and each Lender whose signature is provided for on the
signature pages hereof.
17.2.
Section Headings
. Headings and numbers have been set forth herein for
convenience only. Unless the contrary is compelled by the context, everything contained in each
Section applies equally to this entire Agreement.
17.3.
Interpretation
. Neither this Agreement nor any uncertainty or ambiguity
herein shall be construed against the Lender Group or any Borrower, whether under any rule of
construction or otherwise. On the contrary, this Agreement has been reviewed by all parties and
shall be construed and interpreted according to the ordinary meaning of the words used so as to
accomplish fairly the purposes and intentions of all parties hereto.
17.4.
Severability of Provisions
. Each provision of this Agreement shall be
severable from every other provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.
17.5.
Bank Product Providers
. Each Bank Product Provider in its capacity as such
shall be deemed a third party beneficiary hereof and of the provisions of the other Loan Documents
for purposes of any reference in a Loan Document to the parties for whom Agent is acting. Agent
hereby agrees to act as agent for such Bank Product Providers and, by virtue of entering into a
Bank Product Agreement, the applicable Bank Product Provider shall be automatically deemed to
have appointed Agent as its agent and to have accepted the benefits of the Loan Documents. It is
understood and agreed that the rights and benefits of each Bank Product Provider under the Loan
Documents consist exclusively of such Bank Product Provider's being a beneficiary of the Liens
and security interests (and, if applicable, guarantees) granted to Agent and the right to share in
payments and collections out of the Collateral as more fully set forth herein. In addition, each Bank
Product Provider, by virtue of entering into a Bank Product Agreement, shall be automatically
deemed to have agreed that Agent shall have the right, but shall have no obligation, to establish,
maintain, relax, or release reserves in respect of the Bank Product Obligations and that if reserves
are established there is no obligation on the part of Agent to determine or insure whether the
amount of any such reserve is appropriate or not. In connection with any such distribution of
payments or proceeds of Collateral, Agent shall be entitled to assume no amounts are due or owing
to any Bank Product Provider unless such Bank Product Provider has provided a written
certification (setting forth a reasonably detailed calculation) to Agent as to the amounts that are
due and owing to it and such written certification is received by Agent a reasonable period of time
prior to the making of such distribution. Agent shall have no obligation to calculate the amount
due and payable with respect to any Bank Products, but may rely upon the written certification of
the amount due and payable from the applicable Bank Product Provider. In the absence of an
updated certification, Agent shall be entitled to assume that the amount due and payable to the
applicable Bank Product Provider is the amount last certified to Agent by such Bank Product
Provider as being due and payable (
less
account thereof). Borrowers may obtain Bank Products from any Bank Product Provider, although
Borrowers are not required to do so. Each Borrower acknowledges and agrees that no Bank
Product Provider has committed to provide any Bank Products and that the providing of Bank
Products by any Bank Product Provider is in the sole and absolute discretion of such Bank Product
Provider. Notwithstanding anything to the contrary in this Agreement or any other Loan
Document, no provider or holder of any Bank Product shall have any voting or approval rights
hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such
agreements or products or the Obligations owing thereunder, nor shall the consent of any such
provider or holder be required (other than in their capacities as Lenders, to the extent applicable)
for any matter hereunder or under any of the other Loan Documents, including as to any matter
relating to the Collateral or the release of Collateral or Guarantors.
17.6.
Debtor-Creditor Relationship
. The relationship between the Lenders and
Agent, on the one hand, and the Loan Parties, on the other hand, is solely that of creditor and
debtor. No member of the Lender Group has (or shall be deemed to have) any fiduciary
relationship or duty to any Loan Party arising out of or in connection with the Loan Documents or
the transactions contemplated thereby, and there is no agency or joint venture relationship between
the members of the Lender Group, on the one hand, and the Loan Parties, on the other hand, by
virtue of any Loan Document or any transaction contemplated therein.
17.7.
Counterparts; Electronic Execution
. This Agreement may be executed in
any number of counterparts and by different parties on separate counterparts, each of which, when
executed and delivered, shall be deemed to be an original, and all of which, when taken together,
shall constitute but one and the same Agreement. Delivery of an executed counterpart of this
Agreement by telefacsimile or other electronic method of transmission shall be equally as effective
as delivery of an original executed counterpart of this Agreement. Any party delivering an
executed counterpart of this Agreement by telefacsimile or other electronic method of transmission
also shall deliver an original executed counterpart of this Agreement but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and binding effect of this
Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis.
17.8.
Revival and Reinstatement of Obligations; Certain Waivers
.
(a)
If any member of the Lender Group or any Bank Product Provider repays,
refunds, restores, or returns in whole or in part, any payment or property (including any proceeds
of Collateral) previously paid or transferred to such member of the Lender Group or such Bank
Product Provider in full or partial satisfaction of any Obligation or on account of any other
obligation of any Loan Party under any Loan Document or any Bank Product Agreement, because
the payment, transfer, or the incurrence of the obligation so satisfied is asserted or declared to be
void, voidable, or otherwise recoverable under any law relating to creditors' rights, including
provisions of the Bankruptcy Code or other Insolvency Laws relating to fraudulent transfers,
preferences, or other voidable or recoverable obligations or transfers (each, a "Voidable
Transfer"), or because such member of the Lender Group or Bank Product Provider elects to do so
on the reasonable advice of its counsel in connection with a claim that the payment, transfer, or
incurrence is or may be a Voidable Transfer, then, as to any such Voidable Transfer, or the amount
thereof that such member of the Lender Group or Bank Product Provider elects to repay, restore,
or return (including pursuant to a settlement of any claim in respect thereof), and as to all
reasonable costs, expenses, and attorneys' fees of such member of the Lender Group or Bank
Product Provider related thereto, (i) the liability of the Loan Parties with respect to the amount or
property paid, refunded, restored, or returned will automatically and immediately be revived,
reinstated, and restored and will exist, and (ii) Agent's Liens securing such liability shall be
effective, revived, and remain in full force and effect, in each case, as fully as if such Voidable
Transfer had never been made. If, prior to any of the foregoing, (A) Agent's Liens shall have been
released or terminated, or (B) any provision of this Agreement shall have been terminated or
cancelled, Agent's Liens, or such provision of this Agreement, shall be reinstated in full force and
effect and such prior release, termination, cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligation of any Loan Party in respect of such liability
or any Collateral securing such liability. This provision shall survive the termination of this
Agreement and the repayment in full of the Obligations.
17.9.
Confidentiality
.
(a)
Agent and Lenders each individually (and not jointly or jointly and
severally) agree that material, non-public information regarding the Loan Parties and their
Subsidiaries, their operations, assets, and existing and contemplated business plans ("Confidential
Information") shall be treated by Agent and the Lenders in a confidential manner, and shall not be
disclosed by Agent and the Lenders to Persons who are not parties to this Agreement, except: (i)
to attorneys for and other advisors, accountants, auditors, and consultants to any member of the
Lender Group and to employees, directors and officers of any member of the Lender Group (the
Persons in this clause (i), "Lender Group Representatives") on a "need to know" basis in
connection with this Agreement and the transactions contemplated hereby and on a confidential
basis, (ii) to Subsidiaries and Affiliates of any member of the Lender Group (including the Bank
Product Providers); provided, that any such Subsidiary or Affiliate shall have agreed to receive
such information hereunder subject to the terms of this Section 17.9, (iii) as may be required by
regulatory authorities so long as such authorities are informed of the confidential nature of such
information, (iv) as may be required by statute, decision, or judicial or administrative order, rule,
or regulation; provided, that (x) prior to any disclosure under this clause (iv), the disclosing party
agrees to provide Borrowers with prior notice thereof, to the extent that it is practicable to do so
and to the extent that the disclosing party is permitted to provide such prior notice to Borrowers
pursuant to the terms of the applicable statute, decision, or judicial or administrative order, rule,
or regulation and (y) any disclosure under this clause (iv) shall be limited to the portion of the
Confidential Information as may be required by such statute, decision, or judicial or administrative
order, rule, or regulation, (v) as may be agreed to in advance in writing by Borrowers, (vi) as
requested or required by any Governmental Authority pursuant to any subpoena or other legal
process; provided, that (x) prior to any disclosure under this clause (vi) the disclosing party agrees
to provide Borrowers with prior written notice thereof, to the extent that it is practicable to do so
and to the extent that the disclosing party is permitted to provide such prior written notice to
Borrowers pursuant to the terms of the subpoena or other legal process and (y) any disclosure
under this clause (vi) shall be limited to the portion of the Confidential Information as may be
required by such Governmental Authority pursuant to such subpoena or other legal process, (vii)
as to any such information that is or becomes generally available to the public (other than as a
result of prohibited disclosure by Agent or the Lenders or the Lender Group Representatives),
(viii) in connection with any assignment, participation or pledge of any Lender's interest under this
Agreement; provided, that prior to receipt of Confidential Information any such assignee,
participant, or pledgee shall have agreed in writing to receive such Confidential Information either
subject to the terms of this Section 17.9 or pursuant to confidentiality requirements substantially
similar to those contained in this Section 17.9 (and such Person may disclose such Confidential
Information to Persons employed or engaged by them as described in clause (i) above), (ix) in
connection with any litigation or other adversary proceeding involving parties hereto which such
litigation or adversary proceeding involves claims related to the rights or duties of such parties
under this Agreement or the other Loan Documents; provided, that prior to any disclosure to any
Person (other than any Loan Party, Agent, any Lender, any of their respective Affiliates, or their
respective counsel) under this clause (ix) with respect to litigation involving any Person (other
than any Borrower, Agent, any Lender, any of their respective Affiliates, or their respective
counsel), the disclosing party agrees to provide Borrowers with prior written notice thereof, and
(x) in connection with, and to the extent reasonably necessary for, the exercise of any secured
creditor remedy under this Agreement or under any other Loan Document.
(b)
Anything in this Agreement to the contrary notwithstanding, Agent may
disclose information concerning the terms and conditions of this Agreement and the other Loan
Documents to loan syndication and pricing reporting services or in its marketing or promotional
materials, with such information to consist of deal terms and other information customarily found
in such publications or marketing or promotional materials and may otherwise use the name, logos,
and other insignia of any Borrower or the other Loan Parties and the Commitments provided
hereunder in any "tombstone" or other advertisements, on its website or in other marketing
materials of the Agent.
(c)
Each Loan Party agrees that Agent may make materials or information
provided by or on behalf of Borrowers hereunder (collectively, "Borrower Materials") available to
the Lenders by posting the Communications on IntraLinks, SyndTrak or a substantially similar
secure electronic transmission system (the "Platform"). The Platform is provided "as is" and "as
available." Agent does not warrant the accuracy or completeness of the Borrower Materials, or
the adequacy of the Platform and expressly disclaim liability for errors or omissions in the
communications. No warranty of any kind, express, implied or statutory, including any warranty
of merchantability, fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by Agent in connection with the Borrower
Materials or the Platform. In no event shall Agent or any of the Agent-Related Persons have any
liability to the Loan Parties, any Lender or any other person for damages of any kind, including
direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort,
contract or otherwise) arising out of any Loan Party's or Agent's transmission of communications
through the Internet, except to the extent the liability of such person is found in a final non-
appealable judgment by a court of competent jurisdiction to have resulted from such person's gross
negligence or willful misconduct. Each Loan Party further agrees that certain of the Lenders may
be "public-side" Lenders (i.e., Lenders that do not wish to receive material non-public information
with respect to the Loan Parties or their securities) (each, a "Public Lender"). The Loan Parties
shall be deemed to have authorized Agent and its Affiliates and the Lenders to treat Borrower
Materials marked "PUBLIC" or otherwise at any time filed with the SEC as not containing any
material non-public information with respect to the Loan Parties or their securities for purposes of
United States federal and state securities laws. All Borrower Materials marked "PUBLIC" are
permitted to be made available through a portion of the Platform designated as "Public Investor"
(or another similar term). Agent and its Affiliates and the Lenders shall be entitled to treat any
Borrower Materials that are not marked "PUBLIC" or that are not at any time filed with the SEC
as being suitable only for posting on a portion of the Platform not marked as "Public Investor" (or
such other similar term).
17.10.
Survival
. All representations and warranties made by the Loan Parties in the
Loan Documents and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and delivery of the Loan
Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding that Agent, Issuing
Bank, or any Lender may have had notice or knowledge of any Default or Event of Default or
incorrect representation or warranty at the time any credit is extended hereunder, and shall continue
in full force and effect as long as the principal of, or any accrued interest on, any Loan or any fee
or any other amount payable under this Agreement is outstanding or unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or been terminated.
17.11.
Patriot Act; Due Diligence
.
(a)
Each Lender that is subject to the requirements of the Patriot Act hereby
notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it is required to obtain,
verify and record information that identifies each Loan Party, which information includes the name
and address of each Loan Party and other information that will allow such Lender to identify each
Loan Party in accordance with the Patriot Act. In addition, Agent and each Lender shall have the
right to periodically conduct due diligence on all Loan Parties, their senior management and key
principals and legal and beneficial owners. Each Loan Party agrees to cooperate in respect of the
conduct of such due diligence and further agrees that the reasonable costs and charges for any such
due diligence by Agent shall constitute Lender Group Expenses hereunder and be for the account
of Borrowers.
(b)
Each Loan Party acknowledges that, pursuant to the provisions of Canadian
Anti-Money Laundering & Anti-Terrorism Legislation, Agent and Lenders may be required to
obtain, verify and record information regarding each Loan Party, its respective directors,
authorized signing officers, direct or indirect shareholders or other Persons in control of such Loan
Party, and the transactions contemplated hereby. The Loan Parties shall promptly provide all such
information, including supporting documentation and other evidence, as may be reasonably
requested by any Lender or Agent, or any prospective assign or participant of a Lender or Agent,
necessary in order to comply with any applicable Canadian Anti-Money Laundering & Anti-
Terrorism Legislation, whether now or hereafter in existence. If Agent has ascertained the identity
of any Loan Party or any authorized signatories of any Loan Party for the purposes of applicable
Canadian Anti-Money Laundering & Anti-Terrorism Legislation, then the Agent:
(i)
shall be deemed to have done so as an agent for each Lender, and
this Agreement shall constitute a "written agreement" in such regard between each Lender and the
Agent within the meaning of applicable Canadian Anti-Money Laundering & Anti-Terrorism
Legislation;
(ii)
shall provide to each Lender copies of all information obtained in
such regard without any representation or warranty as to its accuracy or completeness.
Notwithstanding the provisions of this Section and except as may otherwise be agreed in writing,
each Lender agrees that Agent has no obligation to ascertain the identity of the Loan Parties or any
authorized signatories of the Loan Parties on behalf of any Lender, or to confirm the completeness
or accuracy of any information it obtains from the Loan Parties or any such authorized signatory
in doing so.
17.12.
Integration
. This Agreement, together with the other Loan Documents,
reflects the entire understanding of the parties with respect to the transactions contemplated hereby
and shall not be contradicted or qualified by any other agreement, oral or written, before the date
hereof. The foregoing to the contrary notwithstanding, all Bank Product Agreements, if any, are
independent agreements governed by the written provisions of such Bank Product Agreements,
which will remain in full force and effect, unaffected by any repayment, prepayments, acceleration,
reduction, increase, or change in the terms of any credit extended hereunder, except as otherwise
expressly provided in such Bank Product Agreement.
17.13.
CMT as Agent for Borrowers
. Each Borrower hereby irrevocably appoints
CMT as the borrowing agent and attorney-in -fact for all Borrowers (the "Administrative
Borrower") which appointment shall remain in full force and effect unless and until Agent shall
have received prior written notice signed by each Borrower that such appointment has been
revoked and that another Borrower has been appointed Administrative Borrower. Each Borrower
hereby irrevocably appoints and authorizes the Administrative Borrower (a) to provide Agent with
all notices with respect to Revolving Loans and Letters of Credit obtained for the benefit of any
Borrower and all other notices and instructions under this Agreement and the other Loan
Documents (and any notice or instruction provided by Administrative Borrower shall be deemed
to be given by Borrowers hereunder and shall bind each Borrower), (b) to receive notices and
instructions from members of the Lender Group (and any notice or instruction provided by any
member of the Lender Group to the Administrative Borrower in accordance with the terms hereof
shall be deemed to have been given to each Borrower), (c) to enter into Bank Product Provider
Agreements on behalf of Borrowers and their Subsidiaries, and (d) to take such action as the
Administrative Borrower deems appropriate on its behalf to obtain Revolving Loans and Letters
of Credit and to exercise such other powers as are reasonably incidental thereto to carry out the
purposes of this Agreement. It is understood that the handling of the Loan Account and Collateral
in a combined fashion, as more fully set forth herein, is done solely as an accommodation to
Borrowers in order to utilize the collective borrowing powers of Borrowers in the most efficient
and economical manner and at their request, and that Lender Group shall not incur liability to any
Borrower as a result hereof. Each Borrower expects to derive benefit, directly or indirectly, from
the handling of the Loan Account and the Collateral in a combined fashion since the successful
operation of each Borrower is dependent on the continued successful performance of the integrated
group. To induce the Lender Group to do so, and in consideration thereof, each Borrower hereby
jointly and severally agrees to indemnify each member of the Lender Group and hold each member
of the Lender Group harmless against any and all liability, expense, loss or claim of damage or
injury, made against the Lender Group by any Borrower or by any third party whosoever, arising
from or incurred by reason of (i) the handling of the Loan Account and Collateral of Borrowers as
herein provided, or (ii) the Lender Group's relying on any instructions of the Administrative
Borrower, except that Borrowers will have no liability to the relevant Agent-Related Person or
Lender-Related Person under this Section 17.13 with respect to any liability that has been finally
determined by a court of competent jurisdiction to have resulted solely from the gross negligence
or willful misconduct of such Agent-Related Person or Lender-Related Person, as the case may
be.
17.14.
Acknowledgement and Consent to Bail -In of EEA Financial Institutions
.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement,
arrangement or understanding among any such parties, each party hereto acknowledges that any
liability of any EEA Financial Institution arising under any Loan Document, to the extent such
liability is unsecured, may be subject to the write-down and conversion powers of an EEA
Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)
the application of any Write-Down and Conversion Powers by an EEA
Resolution Authority to any such liabilities arising hereunder which may be payable to it by any
party hereto that is an EEA Financial Institution; and
(b)
the effects of any Bail-in Action on any such liability, including, if
applicable:
(i)
a reduction in full or in part or cancellation of any such liability;
(ii)
a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge
institution that may be issued to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any rights with respect to any such
liability under this Agreement or any other Loan Document; or
(iii)
the variation of the terms of such liability in connection with the
exercise of the write-down and conversion powers of any EEA Resolution Authority.
17.15.
Acknowledgement Regarding Any Supported QFCs
. To the extent that the
Loan Documents provide support, through a guarantee or otherwise, for Hedge Agreements or any
other agreement or instrument that is a QFC (such support, "QFC Credit Support" and each such
QFC a "Supported QFC"), the parties acknowledge and agree as follows with respect to the
resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit
Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act
(together with the regulations promulgated thereunder, the "U.S. Special Resolution Regimes") in
respect of such Supported QFC and QFC Credit Support (with the provisions below applicable
notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be
governed by the laws of the State of New York and/or of the United States or any other state of
the United States). In the event a Covered Entity that is party to a Supported QFC (each, a
"Covered Party") becomes subject to a proceeding under a U.S. Special Resolution Regime, the
transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and
obligation in or under such Supported QFC and such QFC Credit Support, and any rights in
property securing such Supported QFC or such QFC Credit Support) from such Covered Party will
be effective to the same extent as the transfer would be effective under the U.S. Special Resolution
Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and
rights in property) were governed by the laws of the United States or a state of the United States.
In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a
proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents
that might otherwise apply to such Supported QFC or any QFC Credit Support that may be
exercised against such Covered Party are permitted to be exercised to no greater extent than such
Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC
and the Loan Documents were governed by the laws of the United States or a state of the United
States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of
the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered
Party with respect to a Supported QFC or any QFC Credit Support.
17.16.
Judgment Currency
. If, for the purposes of obtaining judgment in any court,
it is necessary to convert a sum due hereunder or any other Loan Document in one currency into
another currency, the rate of exchange used shall be that at which in accordance with normal
banking procedures Agent could purchase the first currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligation of each Borrower
in respect of any such sum due from it to Agent or any Lender hereunder or under the other Loan
Documents shall, notwithstanding any judgment in a currency (the "Judgment Currency") other
than that in which such sum is denominated in accordance with the applicable provisions of this
Agreement (the "Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by Agent or such Lender, as the case may be, of any sum adjudged to be so due
in the Judgment Currency, Agent or such Lender, as the case may be, may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the
amount of the Agreement Currency so purchased is less than the sum originally due to Agent or
any Lender from any Borrower in the Agreement Currency, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify Agent or such Lender, as the case
may be, against such loss. If the amount of the Agreement Currency so purchased is greater than
the sum originally due to Agent or any Lender in such currency, Agent or such Lender, as the case
may be, agrees to return the amount of any excess to such Borrower (or to any other Person who
may be entitled thereto under applicable law).
[
SIGNATURE PAGE TO CREDIT AGREEMENT
]
IN WITNESS WHEREOF
, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
BORROWERS:
CORE MOLDING TECHNOLOGIES, INC.
a Delaware corporation
By: /s/ John P. Zimmer
Name: John P. Zimmer
Title: Chief Financial Officer
[
SIGNATURE PAGE TO CREDIT AGREEMENT
]
WELLS FARGO BANK, NATIONAL
ASSOCIATION
, a national banking association, as
Agent
,
as Lead Arranger, as Book Runner
and as a
Lender
By: /s/ Matthew J. Barich
Name: Matthew J. Barich