CORE MOLDING TECHNOLOGIES INC - FORM 8-K - EX-10.2 - SECURITY AGREEMENT - November 2, 2020

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EX-10.3 - FGI NOTE - CORE MOLDING TECHNOLOGIES INCex103.htm
EX-10.1 - CREDIT AGREEMENT - CORE MOLDING TECHNOLOGIES INCex101.htm
8-K - 8-K DEBT AGREEMENT - CORE MOLDING TECHNOLOGIES INCform8kdebtagreement.htm
 
1
 
MASTER SECURITY AGREEMENT
Dated as of October 20, 2020
THIS MASTER SECURITY
 
AGREEMENT
 
(as amended, supplemented or
 
otherwise modified
from time to time, this
 
“
Master Agreement
”) is between (i) FGI
 
Equipment Finance LLC (“
FGIEF
”), a
Delaware limited liability company, with
 
an office located at 777 Yamato
 
Road, Office 135, Boca Raton,
FL 33431, (ii)
 
Core Molding Technologies,
 
Inc (“
Debtor
”), a corporation
 
existing under the
 
laws of the
State of Delaware,
 
with principal offices located
 
at 800 Manor Park
 
Drive, Columbus, OH
 
43228, (iii) Core
Composites Corporation, (“
US Guarantor
”), a corporation
 
existing under the
 
laws of the
 
State of Delaware,
with principal offices
 
located at 800
 
Manor Park Drive,
 
Columbus, OH 43228,
 
and (iv) CC
 
HPM, S. de
R.L. de C.V.
 
(“
Mexican Guarantor
” and together
 
with US Guarantor,
 
shall be jointly referred
 
to as the
“
Guarantors
” or a
 
“
Guarantor
”), a corporation
 
existing under the
 
laws of the
 
United Mexican States,
 
with
principal offices located
 
at Avenida Internacional #220,
 
Parque Industrial VYNMSA
 
Escobedo, C.P. 66053,
Escobedo, Nuevo Leon,
 
Mexico.
 
This Master Agreement
 
contains the general
 
terms that apply
 
to financing
that may be provided from time
 
to time by Secured Party (defined below)
 
to Debtor.
 
Additional terms that
apply to
 
the financing and
 
the Collateral
 
(defined below) shall
 
be contained on
 
the Collateral
 
Schedule
(defined below) and the Note (defined below).
 
US Guarantor shall enter into the Collateral Schedule with
respect to its own Collateral for the benefit of
 
Secured Party.
 
Mexican Guarantor has entered into a Non-
Possessory Pledge Agreement under Mexican laws (
Contrato de Prenda Sin Transmisión
 
de Posesión
, as
defined in the Spanish language) (the “
Mexican Pledge
”) with respect to its own Collateral for the benefit
of Secured Party.
 
The Collateral Schedule,
 
the Mexican Pledge and
 
this Master Agreement
 
are collectively
referred to as
 
a “
CSMA
”.
 
Each CSMA together
 
with the Note
 
shall constitute a
 
“
Loan Document
”.
 
Debtor
and Guarantors hereby
 
agree that FGIEF
 
shall enter into
 
and execute the
 
Collateral Schedule or
 
the Mexican
Pledge, and that
 
FGIEF, together with its
 
successors and assigns,
 
if any, shall be the
 
named “
Secured Party
”
in connection with the
 
loan to be made
 
by Secured Party to
 
Debtor under the Note (the
 
“
Loan
”) and any
other related Debt Documents (defined below).
 
Secured Party (including its successors and assigns)
 
may
appoint any
 
agent to
 
act on
 
its behalf.
 
This Master
 
Agreement, each
 
Loan Document
 
and each
 
other
document
 
relating to the Loan, including any additional personal or corporate guaranty, mortgage, pledge,
security agreement, guaranty trust
 
or any other
 
act entered into
 
by Debtor or
 
Guarantors or by
 
any other
third party
 
to guarantee
 
Debtor’s obligations
 
under the
 
Loan (an
 
“
Obligor
”), is
 
hereinafter referred
 
to
individually as a “
Debt Document
” and collectively the “
Debt Documents
”.
 
Capitalized terms used but
not defined in
 
this Master Agreement
 
shall have the
 
meanings assigned to
 
such terms as
 
set forth in
 
the
applicable Collateral Schedule or Note.
 
 
2
1.
 
SECURITY INTEREST
:
 
It is agreed
 
that: (i) US
 
Guarantor grants to
 
Secured Party a
 
security
interest in and
 
against all property
 
listed on the
 
collateral schedule to
 
be executed as
 
of the date
 
hereof,
pursuant hereto and made a part
 
hereof (each a “
Collateral Schedule
”), and (ii) Mexican Guarantor grants
to Secured Party a security interest in and against all property listed on the Mexican Pledge executed as of
October 13, 2020 to be effective on October 20, 2020, pursuant hereto and made a part hereof , and in and
against any and
 
all additions, attachments,
 
accessories and accessions
 
to such property,
 
all substitutions,
replacements or exchanges therefor,
 
and all insurance and/or
 
other proceeds thereof
 
(all of the
 
foregoing
being hereinafter individually
 
and collectively referred
 
to as
 
the “
Collateral
”).
 
This security interest
 
is
given to secure the
 
payment and performance
 
of all debts,
 
obligations and liabilities
 
of any kind whatsoever
of Debtor to Secured Party,
 
now existing or arising in the future, including but
 
not limited to the payment
and performance of certain promissory
 
note to be executed by
 
Debtor for the benefit of Secured
 
Party as of
the date
 
hereof, identified on
 
the Collateral Schedule
 
and in
 
the Mexican Pledge
 
(the “
Note
”), and
 
any
renewals, extensions and modifications
 
of such Note (such
 
Note, debts, obligations
 
and liabilities are called
the “
Indebtedness
”).
 
Debtor and US
 
Guarantor each authorizes
 
Secured Party to file
 
a financing statement
and amendments thereto
 
describing the Collateral
 
and containing any
 
other information required
 
by the
applicable Uniform Commercial
 
Code.
 
In connection with
 
the Collateral secured
 
under the Mexican
 
Pledge,
Mexican Guarantor authorizes
 
Secured Party to file
 
such Mexican Pledge
 
in the Unique Registry
 
of Mobile
Guarantees in Mexico (
Registro Único de Garantías Mobiliarias
, as its name is in the
 
Spanish language).
 
Debtor and
 
Guarantors acknowledge
 
and agree
 
that Secured
 
Party may
 
perfect the
 
security interest
hereunder and
 
any Loan
 
Document directly
 
or through
 
any current
 
or future
 
agents, representatives
 
or
bailees.
 
Debtor and
 
Guarantors irrevocably grant
 
to Secured
 
Party the
 
power to
 
sign on
 
Debtor’s and
Guarantor’s name and generally to act on behalf of Debtor and Guarantors to execute and file applications
for title, transfers of title, financing statements,
 
notices of lien and other documents pertaining
 
to any or all
of the Collateral;
 
this power is coupled with Secured Party’s interest in the Collateral.
 
Guarantors shall, if
any certificate of title is required or permitted
 
by law for any of the Collateral, obtain
 
and promptly deliver
to Secured Party such certificate showing the lien created by the applicable
 
Debt Documents.
 
 
3
2.
 
COLLATERAL
:
 
(a) Debtor and
 
Guarantor agree at all
 
times during the term
 
of any Loan that:
 
(i) subject to Secured Party’s rights under this Master Agreement, any
 
Loan Document and any other Debt
Documents, Guarantors shall remain
 
in possession of the Collateral,
 
except for maintenance and repair
 
and
except as contemplated
 
by and subject
 
to, a consent
 
to use or
 
similar agreement, in
 
form and substance
acceptable to
 
Secured Party,
 
in its
 
sole discretion
 
(each such
 
consent to
 
use agreement,
 
as amended,
amended and restated or
 
otherwise modified from time to
 
time pursuant to the terms
 
thereof, a “
Consent
to Use Agreement
”), entered into among Secured Party, Debtor,
 
Guarantors and a subsidiary of Debtor or
Guarantors organized and existing under
 
the laws of Mexico (“
Subsidiary User
”), with whom Debtor
 
or
Guarantors have entered into a bailment, operation, manufacturing
 
or similar agreement pursuant to which
such Subsidiary User has acquired possession and has
 
agreed to act as depository of
 
certain Collateral for
all legal effects, except
 
that Secured Party
 
shall have the
 
right to possess
 
(A) any chattel
 
paper or instrument
that constitutes
 
a part
 
of the
 
Collateral and
 
(B) any
 
other Collateral
 
in which
 
Secured Party’s
 
security
interest may be
 
perfected only by
 
possession; (ii) the
 
Collateral is and
 
will remain, free
 
and clear of
 
all liens,
claims and encumbrances of any kind whatsoever, except for (A) liens in favor of Secured Party, (B) liens
for taxes not yet due or for taxes being contested in good faith and which do not involve,
 
in
 
the reasonable
judgment of
 
Secured Party,
 
a material
 
risk of
 
the sale,
 
forfeiture or
 
loss of
 
any material
 
amount of
 
the
Collateral, (C) inchoate materialmen’s,
 
mechanic’s, repairmen’s
 
and similar liens arising
 
by operation of
law in the ordinary
 
course of business for
 
amounts which are not
 
delinquent, (all of such
 
liens are called
“
Permitted Liens
”); (iii) the
 
Collateral is and
 
will be (A) used
 
only in Guarantors’
 
or Subsidiary User’s
trade or business (and not for personal, family or household purposes),
 
as contemplated under the terms of
the applicable Consent to Use Agreement,
 
(B) maintained in good operating order and repair, normal wear
and tear
 
excepted, (C)
 
used and
 
maintained in
 
all material
 
respects in
 
compliance with
 
manufacturers
recommendations and
 
all applicable
 
laws and
 
regulations, and
 
(D) personal
 
property that
 
is solely
 
and
lawfully owned and
 
possessed by Guarantors
 
or by Subsidiary
 
User, as
 
contemplated under the
 
terms of
the applicable Consent to Use Agreement; (iv) Guarantors have the sole right to grant the security interest
in the Collateral
 
as described herein;
 
and (v) Guarantors
 
shall not remove any
 
of the Collateral
 
from the
continental United States or Mexico (except as contemplated under the terms of the applicable
 
Consent to
Use Agreement), or sell, rent, lease, mortgage, license,
 
grant a security interest in or otherwise
 
transfer or
encumber (except for Permitted Liens) any of
 
the Collateral, (b) Guarantors and/or Subsidiary User
 
shall,
at all times, keep accurate and complete records of the
 
Collateral, and Secured Party shall have the right to
(i) inspect and make
 
copies of all of Guarantors’
 
and/or Subsidiary User’s books
 
and records relating to the
Collateral and (ii) inspect any
 
of the Collateral, in each
 
case, during normal business hours
 
and after giving
Debtor reasonable prior notice, (c) if Secured
 
Party asks, Guarantors will promptly notify Secured
 
Party in
writing of the
 
location of any
 
Collateral, and if
 
an Event of
 
Default has occurred
 
and continuing, Guarantors
will not move the Collateral
 
from its then current location
 
.
 
Debtor shall cause each Subsidiary User,
 
and
shall be responsible for each Subsidiary User, to comply with such covenants.
 
3.
 
REPORTS
:
 
(a) If not or no longer publicly available on or before the applicable due
 
date for any
financial statements or
 
reports specified below,
 
Debtor and Guarantors
 
will deliver or
 
make available to
Secured Party
 
(i) complete
 
financial statements
 
of Debtor
 
and Guarantors
 
prepared in
 
accordance with
generally accepted accounting principles,
 
consistently applied, certified by
 
a recognized firm of
 
certified
public accountants within
120 days
 
of the close of Debtor’s and
 
Guarantors’ fiscal year and (ii) copies of
Debtor’s and Guarantors’
 
quarterly financial report
 
certified by the
 
chief financial officer
 
of Debtor and
Guarantor within
60 days
 
of the close of each of
 
their respective fiscal quarters, (b)
 
Debtor and Guarantors
will furnish annually
 
with the annual
 
financial statements provided
 
pursuant to clause
 
(a) above, and
 
at
other times, within
30 days
 
of Secured Party’s request, a certificate of an authorized officer of Debtor and
Guarantor stating that
 
to the best
 
of such officer’s
 
knowledge, there exists
 
no Event of
 
Default or event
which with notice or lapse of time (or both) would become
 
an Event of Default.
 
 
4
4.
 
INSURANCE
:
 
(a) Guarantors shall at all times
 
bear the entire risk of any
 
loss, theft, damage to,
or destruction
 
of, any
 
of the
 
Collateral from
 
any cause
 
whatsoever, (b)
 
Guarantors agree,
 
at their
 
own
expense, to keep the Collateral insured with companies
 
acceptable to Secured Party for such amounts and
against such
 
hazards as
 
Secured Party
 
may reasonably
 
require, including,
 
but not
 
limited to,
 
all risks
physical damage insurance for
 
the Collateral itself, including,
 
but not limited to, loss
 
or damage by fire and
extended coverage perils, theft,
 
burglary, and
 
for any or all
 
Collateral which are vehicles,
 
for risk of loss
by collision.
 
If the Collateral is
 
used, operated and located
 
in Mexico, then such
 
insurance policy shall also
comply with the requirements
 
established under applicable Mexican
 
law and shall provide
 
coverage for the
Collateral at all times that it
 
is located and operated in Mexico.
 
The physical insurance coverage shall be
in an amount no
 
less than the full
 
replacement value of the
 
Collateral, and deductible
 
amounts, insurers and
policies shall be reasonably
 
acceptable to Secured Party.
 
Debtor and/or Guarantors
 
shall deliver to Secured
Party evidence of
 
insurance reasonably satisfactory
 
to Secured Party,
 
within
10 days
 
of Secured Party’s
request therefor.
 
Each policy shall
 
name Secured Party
 
as loss payee, shall
 
provide for coverage
 
to Secured
Party regardless of
 
the breach by
 
Debtor or Guarantors
 
of any warranty
 
or representation made
 
therein,
shall not be subject to co-insurance, and shall provide that coverage may not be canceled or
 
altered by the
insurer except upon 30 days prior written notice to
 
Secured Party.
 
Guarantors irrevocably appoint, which
appointment is coupled with an interest,
 
Secured Party as its attorney-in-fact to
 
make proof of loss, claim
for insurance
 
and adjustments
 
with insurers,
 
and to
 
receive payment
 
of and
 
execute or
 
endorse all
documents, checks or
 
drafts in connection
 
with insurance payments,
 
but Secured Party
 
will not exercise
such power of
 
attorney unless an
 
Event of Default
 
has occurred and
 
is continuing.
 
Guarantors will
 
not
make adjustments with insurers without the prior written consent of Secured Party.
 
Proceeds of insurance
shall be applied, at
 
the option of Secured
 
Party,
 
to repair or replace
 
the Collateral or to
 
reduce any of the
Indebtedness under the Debt Documents; provided
 
that, so long as no Event of Default
 
has occurred and is
continuing, within sixty (60) days following receipt of any proceeds of insurance, Guarantors may elect to
apply such proceeds to repair or replace the Collateral.
 
 
5
5.
 
DEFAULTS
:
 
Debtor and Guarantors
 
shall be in
 
default under this
 
Master Agreement and
 
each
Loan Document upon
 
the occurrence of
 
any of the following
 
(each an “
Event of Default
”, and collectively,
the “
Events of Default
”):
 
(i) Debtor fails to pay,
 
within
10 days
 
after its due date any installment or other
amount due under this Master
 
Agreement, any Loan Document
 
or any other Debt Document;
 
(ii) Debtor or
Guarantors, without the prior written
 
consent of Secured Party, attempts to or does
 
sell all or any fractional
interest in, rent, lease, license,
 
charter, mortgage, assign, grant a lien on
 
or security interest in, or otherwise
transfer or encumber (except
 
for Permitted Liens) any
 
of the Collateral or
 
any part thereof; (iii)
 
a Guarantor
breaches any of its
 
insurance obligations under this Master
 
Agreement, any Loan Document or
 
any other
Debt Document; (iv) Debtor or Guarantors breach any of their covenants or other
 
obligations under any of
this Agreement, any Loan Document (other than those described elsewhere in this
 
Section 5) or any other
Debt Document,
 
and fail
 
to cure
 
that breach
 
within
30 days
 
after the
 
earlier of
 
any officer
 
of Debtor
becoming aware of
 
the occurrence thereof
 
or the giving
 
of written notice
 
thereof to Debtor
 
by Secured Party;
(v) any warranty,
 
representation or statement
 
made by Debtor
 
,
 
Guarantors or any
 
Obligor in this
 
Master
Agreement, any Loan Document or
 
any other Debt Document or
 
otherwise in connection with any
 
of the
Indebtedness shall be false or misleading in
 
any material respect when made;
 
(vi) any material amount of
the Collateral
 
(as determined
 
by Secured
 
Party in
 
its reasonable
 
discretion) is
 
subjected to
 
attachment,
execution, levy,
 
seizure or confiscation
 
in any legal
 
proceeding or otherwise,
 
or if any
 
legal or
administrative proceeding is commenced against
 
Debtor, a Guarantor or any of the Collateral,
 
which in the
good faith judgment of
 
Secured Party subjects any material
 
amount of the Collateral
 
to a material risk
 
of
attachment, execution, levy,
 
seizure or confiscation and no
 
bond is posted or
 
protective order obtained to
sufficiently (as determined by Secured
 
Party in its reasonable
 
discretion) negate such risk; (vii)
 
Debtor, a
Guarantor or
 
any Obligor
 
breaches or
 
is in
 
default in
 
any material
 
respect, after
 
giving effect
 
to any
applicable cure periods, under any
 
other agreement by and between
 
Secured Party (or any of
 
its affiliates
or parent entities)
 
on the one
 
hand, and Debtor
 
,
 
a Guarantor or
 
such Obligor (or
 
any of their
 
respective
affiliates or parent entities) on the other hand;
 
(viii) (A) there is any dissolution or
 
termination of existence
of Debtor, a
 
Guarantor or any Obligor
 
or a Subsidiary User,
 
(B) Debtor, a
 
Guarantor or any Obligor
 
or a
Subsidiary User becomes
 
insolvent or ceases
 
to do business
 
as a going
 
concern, (C) if
 
any Obligor or
 
a
Subsidiary User is a
 
natural person, any
 
death or incompetency of
 
such Obligor, (D) a receiver
 
is appointed
for all or of any part of the property of Debtor,
 
a Guarantor or any Obligor or a Subsidiary User, or Debtor
or a Guarantor or
 
any Obligor or a
 
Subsidiary User makes any assignment for
 
the benefit of its
 
creditors,
or in the event
 
an such appointment or
 
assignment is involuntarily
 
made against Debtor,
 
a Guarantor or any
Obligor or a Subsidiary User, such appointment or
 
assignment is not dismissed within
30 days
 
thereof, or
(E) Debtor
 
or a
 
Guarantor or
 
any Obligor
 
or a
 
Subsidiary User
 
files a
 
petition under
 
any bankruptcy,
insolvency or similar law,
 
or in the event an
 
involuntary petition is filed against Debtor or
 
a Guarantor or
any Obligor or a Subsidiary
 
User under any bankruptcy
 
or insolvency laws, such
 
involuntary petition is not
dismissed within
30 days
 
of the filing date; (ix) Debtor or a Guarantor or any Obligor improperly files, or
causes to be filed,
 
an amendment or termination
 
statement relating to a
 
filed financing statement describing
the Collateral; (x) any
 
Obligor revokes or attempts
 
to revoke its obligations
 
under any guarantee or
 
Debt
Documents to which it is a party or fails to observe or perform
 
any covenant, condition or agreement to be
performed under such guarantee or Debt Documents to which it is a party; (xi) Debtor, a Guarantor or any
Obligor defaults
 
under any
 
other contract
 
or obli
 
gation for
 
indebtedness in
 
an amount
 
greater than
$500,000.00 if such
 
default results in
 
the other party
 
to the agreement
 
either accelerating the obligations
thereunder or being permitted to
 
cause such indebtedness to become
 
due prior to its
 
stated maturity; (xii)
without the prior written consent of Secured Party,
 
(A) there is a Change of Control (as defined below) or
(B) there is any
 
merger or consolidation of Debtor
 
unless Debtor is the
 
surviving entity or of
 
any Guarantor
or Obligor unless Debtor or another Guarantor or another Obligor
 
is the surviving entity; (xiii) without the
prior written
 
consent of Secured
 
Party, either
 
Debtor, a
 
Guarantor or any
 
Obligor sells or
 
leases all,
 
or
substantially all,
 
of its
 
assets; or
 
(xiv) (A)
 
Secured Party
 
is unable
 
to register
 
(1) any
 
Consent to
 
Use
Agreement or
 
(2) any
 
Debt Document
 
or other
 
guaranty granted
 
by a
 
Guarantor or
 
Obligor to
 
secure
Debtor’s obligations under a Loan
 
Document, or (3) the Mexican
 
Pledge, in the Mexican Public
 
Registry
of Property and Commerce, including
 
the Section of Sole
 
Registry of Mobile Guaranties (or
 
in any other
 
6
Public Registry whereby a Consent to Use Agreement or a Debt Document has to be registered in Mexico
to have legal
 
effect against third
 
parties), or (B)
 
if there shall
 
occur a default
 
under any Consent
 
to Use
Agreement,
 
subject to any
 
materiality thresholds or
 
cure periods set
 
forth therein.
 
Any provision of
 
this
Master Agreement,
 
any Loan
 
Document or
 
any other
 
Debt Document
 
to the
 
contrary notwithstanding,
Secured Party may exercise all rights and remedies hereunder independently
 
with respect to the Loan.
 
For purposes of
 
this Section 5, “
Change in Control
” means (a) the
 
acquisition of ownership, directly
 
or
indirectly, beneficially or of record,
 
by any person or
 
group (within the meaning
 
of the Securities Exchange
Act of 1934 and
 
the rules of the
 
Securities and Exchange Commission thereunder as
 
in effect on the
 
date
hereof), of equity interests
 
representing more than 35%
 
of the aggregate ordinary
 
voting power represented
by the issued and outstanding equity interests of Debtor, a Guarantor or an Obligor;
 
or (b) occupation of a
majority of the seats
 
(other than vacant
 
seats) on the board
 
of directors of Debtor,
 
a Guarantor or
 
an Obligor
by persons who were neither (i) directors of such parties on the date hereof, (ii) nominated by the board of
directors of such
 
parties,
 
nor (iii) appointed
 
by directors so
 
nominated; or (c)
 
Debtor, a
 
Guarantor or an
Obligor at any time ceases, directly or indirectly to own, free and clear of all liens or other encumbrances,
the majority stake of the issued and outstanding equity interests of
 
a Subsidiary User or a Guarantor or an
Obligor which is a related party of Debtor as of the date hereof.
 
7
6.
 
REMEDIES
:
 
(a) Upon the
 
occurrence of any
 
Event of Default
 
described in Section
 
5(viii)(E), any
and all of
 
the Indebtedness shall automatically
 
become immediately due and
 
payable, without any action
by any person
 
or entity.
 
Upon the occurrence of
 
any other Event
 
of Default and during
 
the continuation
thereof, Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and
payable, upon demand and
 
notice to Debtor or
 
any Guarantor or any
 
Obligor.
 
All obligations and liabilities
then due and
 
payable under the
 
Debt Documents shall
 
bear interest from
 
the occurrence of
 
the Event of
Default (both before
 
and after any
 
judgment) until paid
 
in full at
 
a per annum
 
rate equal to
 
the lower of
12.50% and
 
the maximum rate
 
not prohibited by
 
applicable law (the
 
“
Per Diem
 
Interest Rate
”).
 
The
application of such Per Diem Interest Rate shall
 
not be interpreted or deemed to extend any
 
cure period set
forth herein, cure any default or
 
otherwise limit Secured Party’s right or remedies hereunder.
 
(b) Upon the
occurrence of any Event of Default and during the continuation
 
thereof, Secured Party shall have all of the
rights and remedies
 
of a secured
 
party under the
 
Uniform Commercial Code,
 
and under any
 
other applicable
law, including, without limitation, to (i) notify any
 
account Debtor or any Guarantor
 
or any Obligor on any
instrument which constitutes proceeds
 
of the Collateral to
 
make payment to Secured
 
Party, (ii)
 
enter any
premises where the Collateral may be and take possession of and remove the Collateral from the premises
or store it on the premises, (iii) sell
 
the Collateral at public or private sale,
 
in whole or in part, and have
 
the
right to
 
bid and
 
purchase at such
 
sale or (iv
 
)
 
lease or
 
otherwise dispose of
 
all or
 
part of
 
the Collateral,
applying proceeds from such disposition to the obligations then in default.
 
If requested by Secured Party,
Guarantors shall promptly assemble the
 
Collateral and make it available
 
to Secured Party at a
 
place to be
designated by Secured
 
Party which is
 
reasonably convenient to
 
both parties.
 
Secured Party may
 
also render
any or all
 
of the Collateral
 
unusable at any
 
Guarantors’ premises and
 
may dispose of
 
such Collateral on
such premises without liability
 
for rent or costs.
 
Any notice that Secured
 
Party is required to
 
give to Debtor
or Guarantors under
 
the Uniform Commercial
 
Code of the
 
time and place
 
of any public
 
sale or the
 
time
after which any private sale
 
or other intended disposition of
 
the Collateral is to be made
 
shall be deemed to
constitute reasonable notice if such
 
notice is personally served on
 
or mailed, postage prepaid, to
 
the Debtor
or to any Guarantor at
 
their last known address
 
at least
15 days
 
prior to such action.
 
Debtor and Guarantors
shall cause Subsidiary User, and shall
 
be responsible for Subsidiary User, to cooperate and
 
assist with the
compliance of the provisions
 
set forth in this Section 6 and
 
to acknowledge each of such Secured Party’s
rights and remedies. (c) Upon the occurrence of any Event of Default and during the
 
continuation thereof,
Secured Party shall have
 
the right to any
 
proceeds of sale,
 
lease or other disposition
 
of the Collateral, if
 
any,
and the right to apply any amounts so collected
 
or (as the case may be) otherwise collected
 
from Debtor or
Guarantors
 
or any
 
Obligor
 
pursuant to
 
this Section
 
6 or
 
under any
 
Loan Document or
 
any other
 
Debt
Document in the following order
 
of priorities:
 
(i) to pay all of Secured Party’s costs, charges
 
and expenses
incurred in
 
enforcing its
 
rights under
 
this Master
 
Agreement, any
 
Loan Document
 
or any
 
other Debt
Document or in taking, removing, holding, repairing,
 
refurbishing, selling, leasing or otherwise disposing
of the Collateral;
 
then, (ii) to
 
pay any and
 
all late fees,
 
per diem fees,
 
other such charges
 
due under this
Master Agreement, any Loan
 
Document or any other
 
Debt Document, any and
 
all interest due under
 
this
Master Agreement, any Loan Document or any
 
other Debt Document, and all amounts owing
 
pursuant to
any indemnity claims; then (iii)
 
to pay all principal due under
 
any Loans; then (iv) to
 
pay all other amounts
due and
 
owing to
 
Secured Party
 
under this
 
Master Agreement, any
 
Loan Document
 
or any
 
other Debt
Document; then (v) any surplus shall be
 
remitted to Debtor, Guarantor
 
or Obligor or (as the case
 
may be)
any other party legally
 
entitled thereto.
 
Debtor shall remain liable
 
for and pay any
 
deficiency in (i),
 
(ii),
(iii) and (iv) promptly upon
 
demand.
 
(d) Debtor and Guarantors agree
 
to pay all reasonable attorneys’
 
fees
and other
 
costs incurred
 
by Secured
 
Party in
 
connection with
 
the enforcement,
 
assertion, defense
 
or
preservation of Secured Party’s rights and remedies under this
 
Master Agreement, any Loan Document or
any other Debt Document,
 
or if prohibited by
 
law, such
 
lesser sum as may
 
be permitted, and
 
Debtor and
Guarantors further agree that such fees and
 
costs shall constitute Indebtedness.
 
(e) Secured Party’s rights
and remedies
 
under this
 
Master Agreement,
 
any Loan
 
Document and
 
the other
 
Debt Documents
 
or
otherwise arising are cumulative
 
and nonexclusive of any
 
other rights and remedies
 
that Secured Party may
have under any other agreement or
 
at law or in equity and
 
may be exercised individually or concurrently,
and any or all
 
thereof may be exercised
 
instead of or in
 
addition to each other
 
or any remedies at
 
law, in
 
8
equity, or under statute.
 
Neither the failure nor
 
any delay on the
 
part of Secured Party
 
to exercise any right,
power or privilege under
 
this Master Agreement or
 
any other Debt Document
 
shall operate as a
 
waiver, nor
shall any single or partial exercise
 
of any right, power or privilege
 
preclude any other or further
 
exercise of
that or any other
 
right, power or privilege.
 
SECURED PARTY
 
SHALL NOT BE DEEMED
 
TO HAVE
WAIVED ANY
 
OF ITS RIGHTS
 
UNDER THIS MASTER
 
AGREEMENT OR UNDER ANY
 
OTHER
DEBT DOCUMENT
 
UNLESS SUCH
 
WAIVER
 
IS EXPRESSED
 
IN WRITING
 
AND SIGNED
 
BY
SECURED PARTY.
 
A waiver on any
 
one occasion shall not
 
be construed as a
 
bar to or waiver
 
of any right
or remedy on any
 
future occasion.
 
Except as provided in
 
Section 6(b) above, Debtor
 
and Guarantors waive
notice of
 
sale or
 
other disposition
 
(and the
 
time and
 
place thereof),
 
and the
 
manner and
 
place of
 
any
advertising, and any other
 
notice required to be
 
given under the Uniform
 
Commercial Code.
 
Secured Party
shall have no obligation to marshal any of the Collateral.
 
7.
 
ASSIGNMENT
:
 
DEBTOR SHALL
 
NOT SELL,
 
TRANSFER, ASSIGN,
 
ENCUMBER OR
SUBLET ANY COLLATERAL
 
OR THE INTEREST OF DEBTOR IN THIS MASTER
 
AGREEMENT,
ANY LOAN DOCUMENT,
 
ANY OTHER
 
DEBT DOCUMENTS OR
 
ANY LOAN, IN
 
EACH CASE
WITHOUT THE PRIOR
 
WRITTEN CONSENT OF
 
SECURED PARTY.
 
Secured Party may,
 
without
notice to or the consent of Debtor or Guarantors, assign, sell,
 
or transfer in whole or in part its interests in
this Master
 
Agreement, any
 
Loan, any
 
Loan Document,
 
any other
 
Debt Document,
 
its interest
 
in any
Collateral, the right to enter into
 
any Loan Document or any
 
of its rights under this Master
 
Agreement, any
Loan Document
 
or any
 
other Debt
 
Documents (in
 
each case,
 
a “
Secured Party
 
Transfer
”).
 
Upon a
Secured Party Transfer of Secured Party’s entire right and interest under this Master Agreement, any
 
Loan
Document or any other Debt Documents, Secured Party shall automatically be relieved,
 
from and after the
date of such
 
Secured Party Transfer,
 
of liability for
 
the performance of
 
any obligation of
 
Secured Party
contained in
 
this Master Agreement,
 
any such
 
Loan Document or
 
any such Debt
 
Documents arising or
accruing from
 
or after
 
such Secured
 
Party Transfer.
 
Debtor and
 
Guarantors agree
 
that, if
 
Debtor or
Guarantors receive written notice
 
of an assignment from
 
Secured Party, Debtor and Guarantors will pay
 
all
installments and other amounts
 
due under any assigned Loan
 
Document to such assignee or
 
as instructed
by Secured Party.
 
Debtor and Guarantors
 
also agree to
 
confirm in writing,
 
and to cause
 
any Obligor to
confirm in writing, receipt
 
of the notice of
 
assignment as may be
 
reasonably requested by assignee.
 
Debtor
and Guarantors
 
hereby waive
 
and agree
 
not to
 
assert against
 
any such
 
assignee any
 
defense, set-off,
recoupment claim
 
or counterclaim
 
which Debtor
 
or Guarantors
 
have or
 
may at
 
any time
 
have against
Secured Party for any reason whatsoever.
 
 
9
8.
 
INDEMNIFICATION
:
 
DEBTOR AND GUARANTORS HEREBY AGREE
 
TO INDEMNIFY,
DEFEND AND
 
HOLD HARMLESS
 
EACH OF
 
(1) SECURED
 
PARTY,
 
(2) THE
 
AFFILIATES OF
SECURED PARTY,
 
(3) ANY PARTICIPANTS,
 
(4) ANY SUCCESSORS AND ASSIGNS OF ANY OF
THE FOREGOING AND
 
(5) ALL
 
OF THEIR RESPECTIVE
 
DIRECTORS, SHAREHOLDERS,
OFFICERS, EMPLOYEES,
 
AGENTS, PREDECESSORS, ATTORNEYS
 
-IN-FACT AND
 
LAWYERS
(EACH AN “
INDEMNIFIED PARTY
”) (ON AN AFTER-TAX
 
BASIS) FROM AND AGAINST ANY
AND ALL LOSSES,
 
DISPUTES, PENALTIES,
 
CLAIMS, EXPENSES (INCLUDING WITHOUT
LIMITATION
 
LEGAL EXPENSES, INCLUDING
 
WITHOUT LIMITATION
 
THOSE INCURRED IN
CONNECTION WITH
 
RESPONDING TO
 
SUBPOENAS, THIRD
 
PARTY
 
OR OTHERWISE)
DAMAGES AND LIABILITIES (INCLUDING WITHOUT LIMITATION
 
ENVIRONMENTAL
LIABILITIES) OF WHATSOEVER
 
KIND AND NATURE
 
ARISING OUT OF OR
 
IN CONNECTION
WITH OR
 
RELATING
 
TO ANY
 
COLLATERAL,
 
THIS MASTER
 
AGREEMENT OR
 
ANY LOAN
DOCUMENT OR ANY
 
OTHER DEBT DOCUMENT
 
(COLLECTIVELY,
 
“
CLAIMS
”), REGARDLESS
OF WHETHER SUCH
 
INDEMNIFIED PARTY
 
IS A PARTY
 
THERETO AND WHETHER
 
IN LAW
OR EQUITY,
 
OR IN
 
CONTRACT, TORT
 
OR OTHERWISE;
 
PROVIDED, HOWEVER,
 
THAT
 
NO
INDEMNIFIED PARTY
 
SHALL BE
 
ENTITLED TO
 
INDEMNITY HEREUNDER IN
 
RESPECT OF
ANY CLAIM TO THE
 
EXTENT THAT SUCH CLAIM IS FOUND BY
 
A FINAL, NON-APPEALABLE
JUDGMENT OF A
 
COURT OF
 
COMPETENT JURISDICTION TO
 
HAVE
 
RESULTED DIRECTLY
FROM THE GROSS
 
NEGLIGENCE OR
 
WILLFUL MISCONDUCT OF
 
SUCH INDEMNIFIED
 
PARTY.
 
Debtor and Guarantors shall
 
pay on demand to
 
each Indemnified Party any
 
and all amounts
 
necessary to
indemnify such
 
Indemnified Party from
 
and against
 
any Claims.
 
In the
 
event an
 
Indemnified Party
 
is
notified, served or otherwise make aware of a
 
Claim against such Indemnified Party, it shall notify of such
claim to Debtor
 
and shall provide
 
to Debtor with
 
a copy of
 
the Claim’s documentation
 
that is on
 
Indemnified
Party’s possession.
 
Debtor shall have the right to be informed
 
of the proceeding related to each Claim and
may issue recommendations to
 
Indemnified Party, as per the advice
 
of its legal advisors;
 
provided however
that Indemnified Party shall not be obliged
 
to follow or accept any of Debtor’s recommendations
 
or advice
and such shall
 
not release, reduce,
 
nullify, invalidate or otherwise
 
affect Debtor’s or
 
Guarantors’ obligations
under this Section.
 
Indemnified Party shall defend itself
 
in such Claim following its
 
own legal counsel’s
recommendations, advise and
 
actions.
 
The rights, privileges
 
and indemnities set
 
forth in this
 
Section 8 shall
survive the expiration or other cancellation or termination of this Master
 
Agreement.
 
 
10
9.
 
REPRESENTATIONS,
 
WARRANTIES &
 
COVENANTS OF
 
DEBTOR AND
GUARANTORS
:
 
(a) Debtor and Guarantors make each of the following representations and
 
warranties
to Secured Party
 
on the date
 
hereof and on
 
the date of
 
the making
 
of each Loan:
 
(i) Debtor’s and
 
Guarantors’
exact legal name and jurisdiction of organization or formation
 
is as set forth in the preamble of this Master
Agreement and such jurisdiction is Debtor’s and Guarantors’
 
“location” (within the meaning given
 
to such
term in Article
 
9 of the Uniform
 
Commercial Code); (ii) Debtor
 
and each Guarantor has
 
adequate power
and capacity to enter into, and
 
to perform its obligations under this
 
Master Agreement and the other Debt
Documents; (iii) this
 
Master Agreement and
 
the other Debt
 
Documents have been
 
duly authorized, executed
and delivered by Debtor and Guarantors and constitute legal, valid and binding agreements enforceable in
accordance with their
 
terms, except to
 
the extent that
 
the enforcement of
 
remedies may be
 
limited under
applicable bankruptcy
 
and insolvency
 
laws; (iv)
 
no approval,
 
consent or
 
withholding of
 
objections is
required from, and no
 
notice is required to be
 
given to, any governmental authority or
 
instrumentality, or
any other person or entity, with respect to the entry into, or performance,
 
by Debtor and Guarantors of any
of the Debt Documents,
 
except any already obtained;
 
(v) the entry into,
 
and performance,
 
by Debtor and
Guarantors of the Debt
 
Documents will not (A) violate
 
any of the organizational
 
documents of Debtor or
Guarantors or any judgment, order, law or regulation applicable to such parties,
 
or (B) result in any breach
of or
 
constitute a default
 
under any contract
 
to which Debtor
 
or Guarantors are
 
a party,
 
or result in
 
the
creation of any lien, claim or encumbrance on any of Debtor’s or Guarantors’ property (except for liens in
favor of Secured Party) pursuant to any indenture, mortgage, deed of trust, bank loan, credit
 
agreement, or
other agreement
 
or instrument
 
to which
 
Debtor or
 
Guarantors are
 
a party;
 
(vi) there
 
are no
 
suits or
proceedings pending in any court or before any commission, board or
 
other administrative agency against
or affecting Debtor or Guarantors which could, in
 
the aggregate, have a material adverse effect
 
on Debtor
or Guarantors,
 
their business
 
or operations,
 
or their
 
ability to
 
perform their
 
obligations under
 
the Debt
Documents, nor does Debtor or
 
a Guarantor have reason to
 
believe that any such suits or
 
proceedings are
threatened.
 
(b) Debtor and Guarantors hereby covenant
 
to Secured Party that at
 
all times during the term
of the Loan that
 
Debtor and each Guarantor
 
is, and will remain,
 
(i) validly existing and
 
in good standing
under the laws
 
of the state
 
of its
 
formation (specified in
 
the preamble of
 
this Master Agreement)
 
and a
“registered organization” (within the meaning given to such term in Article 9
 
of the Uniform Commercial
Code); (ii) duly qualified and
 
licensed in every jurisdiction wherever
 
necessary to carry on its business
 
and
operations, including the jurisdiction(s) where the
 
Collateral is or is
 
to be located; (iii)
 
in full compliance
with all
 
laws and
 
regulations applicable
 
to it,
 
including, without
 
limitation, compliance
 
with the
 
USA
PATRIOT
 
ACT and all applicable Bank Secrecy Act (“
BSA
”) laws, regulations and government guidance
on BSA
 
compliance and
 
on the
 
prevention and
 
detection of
 
money laundering
 
violations and
 
terrorist
financings; and
 
shall ensure that
 
neither Debtor nor
 
Guarantors nor any
 
person who owns
 
a controlling
interest in or otherwise controls Debtor or Guarantors is or shall be (A) listed on
 
the Specially Designated
Nationals and
 
Blocked Person
 
List maintained
 
by the
 
Office of
 
Foreign Assets
 
Control (“
OFAC
”),
Department of the Treasury, and/or
 
any other similar
 
lists maintained by
 
OFAC pursuant to any authorizing
statute, Executive Order or
 
regulation or (B) a
 
person designated under Section
 
1(b), (c) or (d)
 
of Executive
Order No.
 
13224 (September 23,
 
2001), any related
 
enabling legislation or
 
any other
 
similar Executive
Orders.
 
(c) Debtor
 
and Guarantors
 
shall report
 
and pay
 
promptly when
 
due all
 
taxes, license
 
fees,
assessments and public
 
and private charges levied
 
or assessed on
 
any of the Collateral,
 
on its use,
 
operation,
purchase, ownership, delivery,
 
leasing or possession
 
thereof, or on
 
this Master Agreement
 
or any of
 
the
other Debt Documents
 
(or any receipts
 
hereunder and thereunder),
 
by any governmental
 
entity or taxing
authority, including foreign
 
authorities, during or related
 
to the term of
 
this Master Agreement, or
 
to any
other period during
 
which Debtor or
 
Guarantors or
 
a Subsidiary User
 
had use or
 
possession of the
 
Collateral,
including, without limitation, all license and registration fees, and all sales, use, personal property,
 
excise,
gross receipts, franchise,
 
stamp or other
 
taxes, imposts, duties
 
and charges,
 
together with any
 
penalties,
fines or interest
 
thereon (collectively “
Taxes
”).
 
Debtor and Guarantors
 
shall have no
 
liability for Taxes
imposed by
 
the United
 
States of
 
America or
 
any state
 
or political
 
subdivision thereof
 
which are
 
on or
measured by the net
 
income of Secured Party.
 
Debtor and Guarantors shall
 
promptly reimburse Secured
Party (on an after-tax basis) for any Taxes
 
charged to or assessed against or paid by Secured Party.
 
Upon
 
11
request of Secured Party,
 
Debtor and Guarantors shall send
 
Secured Party a copy of
 
each report or return
and evidence
 
of Debtor’s
 
and Guarantors’
 
payment of
 
Taxes.
 
(d) At
 
its option, Secured
 
Party may (i)
discharge taxes, liens,
 
security interests or
 
other encumbrances at
 
any time levied
 
or placed on
 
the Collateral
and (ii) pay for
 
the maintenance, insurance and
 
preservation of the Collateral
 
and effect compliance with
the terms
 
of this
 
Master Agreement
 
or any
 
of the
 
other Debt
 
Documents; provided
 
that Secured
 
Party
provides five business
 
days’ advance notice
 
before making any
 
such payment; provided
 
further that, the
foregoing proviso shall
 
not apply with
 
respect to any
 
payment owing by Debtor
 
or Guarantors under
 
the
Debt Documents.
 
Debtor and Guarantors agree to reimburse Secured Party, on demand, for all reasonable
costs and expenses incurred by Secured Party in connection with
 
such payment or performance and agrees
that such reimbursement obligation shall constitute Indebtedness.
 
 
12
10.
 
MISCELLANEOUS
:
 
(a) THE PARTIES HERETO, TO THE
 
EXTENT PERMITTED BY
 
LAW,
WAIVE
 
ALL RIGHT TO
 
TRIAL BY JURY
 
IN ANY ACTION,
 
SUIT, OR
 
PROCEEDING ARISING
OUT OF, IN CONNECTION WITH OR RELATING TO,
 
THIS MASTER AGREEMENT, ANY LOAN,
ANY LOAN DOCUMENT, ANY OTHER DEBT DOCUMENTS AND ANY OTHER TRANSACTION
CONTEMPLATED HEREBY
 
AND THEREBY.
 
THIS WAIVER
 
APPLIES TO ANY
 
ACTION, SUIT
OR PROCEEDING WHETHER ARISING IN TORT,
 
CONTRACT OR OTHERWISE.
 
The laws of the
State of
 
New York
 
shall govern all
 
matters arising out
 
of, in connection
 
with or relating
 
to this
 
Master
Agreement or any Loan Document, including, without limitation,
 
its validity, interpretation, construction,
performance and enforcement
 
(including, without limitation, any
 
claims sounding in
 
contract or tort
 
law
arising out of
 
the subject matter
 
hereof and any
 
determinations with respect
 
to post-judgment interest).
 
Any
legal action
 
or proceeding with
 
respect to
 
this Master Agreement,
 
any Loan Document,
 
any other Debt
Document (except if such Debt Document establishes express and exclusive submission of the parties to a
foreign jurisdiction,
 
in which
 
case such
 
foreign jurisdiction
 
shall apply)
 
or any
 
Loan shall
 
be brought
exclusively in the federal or state
 
courts located in the State
 
of New York,
 
the County of New York,
 
and,
by execution and delivery
 
of this Master Agreement
 
or any Loan Document,
 
Debtor and Guarantors hereby
accept for themselves and in
 
respect of their property, generally and unconditionally, the jurisdiction of
 
the
aforesaid courts.
 
Debtor and Guarantors hereby irrevocably waive any objection, including any objection
to the laying of
 
venue or based on
 
the grounds of forum
 
non conveniens, that they
 
may now or
 
hereafter
have to
 
the bringing
 
of any
 
such action
 
or proceeding
 
in such
 
courts.
 
Notwithstanding the
 
foregoing,
Secured Party shall
 
have the right
 
to apply to
 
a court of
 
competent jurisdiction in
 
the United States
 
or abroad
for equitable relief
 
as is necessary
 
to preserve, protect
 
and enforce its
 
rights relating to and/or
 
under this
Master Agreement,
 
any Loan Document and
 
any Debt Document,
 
including without limitation, orders
 
of
attachment, execution
 
of foreign
 
guaranties or
 
injunction necessary
 
to maintain
 
the status
 
quo pending
litigation or to enforce judgments against Debtor,
 
any Guarantor, any Obligor,
 
any Subsidiary User or the
Collateral or to
 
gain possession of
 
the Collateral or
 
any other collateral
 
or property pledge or
 
mortgaged
under any Debt Document.
 
Mexican Guarantor hereby irrevocably
 
designates and appoints Debtor, with
 
an
address at 800
 
Manor Park Drive,
 
P.O.
 
Box 28183, Columbus,
 
Ohio, 43228-0183, United
 
States of America,
as its attorney-in-fact to
 
receive service of process
 
in any such action,
 
suit or proceeding, it
 
being agreed
that actual service upon
 
such attorney-in-fact shall constitute
 
valid service upon Mexican
 
Guarantor, and
its successors
 
or assigns
 
as appropriate.
 
For such
 
purposes, Mexican
 
Guarantor grants
 
to Debtor
 
an
irrevocable power of attorney in
 
order for Debtor to,
 
on behalf of Mexican
 
Guarantor, hear,
 
receive, sign
or accept any kind
 
of summons, service of
 
process, including personal summons or
 
notifications, service
of process resulting
 
from third parties
 
actions, judicial proceedings or
 
filings and any
 
kind of judicial
 
or
private notification made by
 
any judicial or administrative authority
 
of the United States of
 
America and of
any of
 
its states,
 
counties, cities
 
or entities
 
that are
 
part of
 
such country,
 
in any
 
jurisdiction, all
 
of the
foregoing, in connection with this Master Agreement. When requested by Secured
 
Party,
 
Mexican
Guarantor shall grant an irrevocable power of attorney in accordance with Mexican laws, to be attested by
a Mexican Notary
 
Public, in the
 
form and substance
 
requested by Secured
 
Party.
 
Mexican Guarantor hereby
agrees that the designation of Debtor
 
set forth above is made for
 
the express benefit of Secured Party and
its successors and
 
assigns or any
 
other beneficiary of
 
this Master Agreement.
 
Mexican Guarantor covenants
and agrees that so long as this Master Agreement shall be in effect, it shall maintain Debtor
 
(or such other
agent as Secured Party
 
shall consent to in
 
writing) as its duly
 
appointed agent for the
 
service of process and
other legal processes in the United States of
 
America.
 
(b) It is the intention of the parties
 
hereto to comply
with any applicable usury
 
laws; accordingly, it is agreed
 
that, any provisions in
 
this Master Agreement, any
Loan Document, or any
 
other Debt Document to
 
the contrary notwithstanding,
 
in no event shall
 
this Master
Agreement, any Loan Document or any
 
other Debt Document require the payment or
 
permit the collection
of interest or any amount
 
in the nature of
 
interest or fees in
 
excess of the maximum amount permitted
 
by
applicable law
 
as now
 
or hereafter
 
construed by
 
a court
 
of competent
 
jurisdiction.
 
If any
 
such excess
interest is contracted for,
 
charged or received pursuant
 
to this Master Agreement, any
 
Loan Document or
any other Debt
 
Document, or in
 
the event that
 
all of the
 
principal balance under
 
this Master Agreement,
any Loan Document or any
 
other Debt Document shall be
 
prepaid, so that under any
 
of such circumstances
 
13
the amount of
 
interest contracted for,
 
charged or received
 
shall exceed the
 
maximum amount of
 
interest
permitted by applicable
 
law as so
 
construed, then in
 
such event
 
any such
 
excess which
 
may have been
collected shall,
 
at Secured
 
Party’s option,
 
either be
 
credited to
 
the unpaid
 
principal balance of
 
or other
amounts payable
 
under this
 
Master Agreement, any
 
Loan Document
 
or any
 
other Debt Document
 
as a
prepayment of principal or
 
such other amounts, without
 
any prepayment fee, or
 
refunded to Debtor, and the
effective rate
 
of interest
 
shall automatically
 
be reduced
 
to the
 
maximum lawful
 
rate allowed
 
under
applicable law as
 
now or hereafter
 
construed by a
 
court of competent
 
jurisdiction.
 
Without limiting the
foregoing, all calculations
 
of the rate
 
of interest contracted
 
for, charged
 
or received with
 
respect to this
Master Agreement, any Loan Document or
 
any other Debt Document, which are
 
made for the purpose of
determining whether
 
such rate
 
exceeds the
 
maximum lawful
 
contract rate,
 
shall be
 
made, to
 
the fullest
extent permitted by applicable
 
law, by amortizing, prorating, allocating and
 
spreading in equal parts
 
during
the period of the
 
full stated term of the
 
Indebtedness, all interest at any time
 
contracted for, charged
 
to or
received from Debtor or
 
Guarantors in connection with
 
such Indebtedness.
 
Notwithstanding the foregoing,
if any applicable law is amended or the law of the
 
United States of America preempts any applicable law,
so that it
 
becomes lawful for
 
Secured Party to
 
receive a greater
 
interest per annum
 
rate than is
 
presently
allowed, Debtor and Guarantors agree that, on the effective date of such amendment or preemption, as the
case may be,
 
the lawful maximum hereunder
 
shall be increased to
 
the maximum interest
 
per annum rate
allowed by the
 
amended law or
 
the law of the
 
United States of
 
America.
 
(c) All notices required
 
to be given
under this Master
 
Agreement and any Loan
 
Document shall be deemed
 
adequately given if delivered
 
by
hand, or sent by registered or certified
 
mail to the addressee at its address above, or
 
at such other place as
such addressee may
 
have designated
 
in writing.
 
(d) Secured
 
Party may upon
10
 
days written notice
 
to
Debtor or
 
Guarantors correct patent
 
errors and
 
fill in
 
all blanks
 
in this
 
Master Agreement, in
 
any Loan
Document or in any other Debt Document consistent with the agreement of the
 
parties.
 
(e) Time is of the
essence of this Master Agreement.
 
This Master Agreement shall be
 
binding, jointly and severally, upon all
parties described
 
as the
 
“Debtor” or
 
“Guarantors” and their
 
respective heirs, executors,
 
representatives,
successors and assigns, and shall inure to the
 
benefit of Secured Party,
 
its successors and assigns.
 
(f) The
unenforceability of any
 
provisions hereof or
 
of the Debt
 
Documents shall not
 
affect the validity of
 
any other
provision hereof or thereof.
 
(g) Debtor and Guarantors hereby acknowledge and agree that Secured Party
reserves the right to impose fees or
 
charges for returned checks and certain
 
optional services that Secured
Party may
 
offer or
 
provide to
 
Debtor during
 
the term
 
of this
 
Master Agreement
 
or any
 
other Debt
Documents.
 
Secured Party will notify
 
Debtor the amount of the
 
applicable fee or charge if
 
Debtor requests
such optional
 
services.
 
In addition,
 
Secured Party may
 
make available
 
to Debtor
 
a schedule
 
of fees or
charges for such
 
optional services from time
 
to time or
 
upon demand, provided, however,
 
that such fees
and charges are subject
 
to change in
 
Secured Party’s sole discretion
 
without notice to
 
Debtor.
 
(h) Any Loan
and Debt Documents
 
relating thereto constitute
 
the entire agreement
 
of the parties
 
with respect to
 
the subject
matter thereof.
 
NO VARIATION
 
OR MODIFICATION
 
OF ANY
 
DEBT DOCUMENT
 
SHALL BE
VALID
 
UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE
 
OF
SECURED PARTY
 
AND THE PARTIES
 
THERETO.
 
(i) This Master
 
Agreement shall continue in
 
full
force and
 
effect until
 
all of
 
the Indebtedness
 
has been
 
indefeasibly paid
 
in full
 
to Secured
 
Party or
 
its
successor or
 
assignee.
 
The surrender,
 
upon payment
 
or otherwise,
 
of any
 
Note or
 
any of
 
the other
documents evidencing
 
any of
 
the Indebtedness
 
shall not
 
affect the
 
right of
 
Secured Party
 
to retain
 
the
Collateral for such
 
other Indebtedness as
 
may then exist.
 
This Master Agreement shall
 
automatically be
reinstated if Secured
 
Party is ever
 
required to return
 
or restore the
 
payment of all
 
or any portion
 
of the
Indebtedness (all
 
as though
 
such payment
 
had never
 
been made).
 
(j) This
 
Master Agreement
 
and any
amendments, waivers,
 
consents or
 
supplements hereto
 
in connection
 
herewith may
 
be executed
 
in any
number of counterparts, all of which
 
taken together shall constitute one
 
and the same instrument.
 
Delivery
of an
 
executed signature
 
page of
 
this Master
 
Agreement or
 
of any
 
other Debt
 
Document by
 
electronic
transmission shall be as effective as delivery
 
of a manually executed counterpart thereof.
 
(k) To the extent
that any Note
 
and Collateral Schedule
 
would constitute chattel
 
paper, as such term
 
is defined in
 
the Uniform
Commercial Code as
 
in effect
 
in any applicable
 
jurisdiction, no security
 
interest therein may
 
be created
through the
 
transfer or
 
possession of
 
this Master
 
Agreement in
 
and of
 
itself without
 
the transfer
 
or
 
14
possession of
 
the original
 
of a
 
such Note
 
and Collateral
 
Schedule executed
 
pursuant to
 
this Master
Agreement and
 
incorporating this
 
Master Agreement
 
by reference.
 
(1) Credit
 
to Debtor’s
 
account for
payments made under
 
any Loan Document
 
may be delayed
 
if payment is
 
(i) not received
 
at the Secured
Party’s payment address indicated in
 
Secured Party’s invoice or other
 
instructions from Secured
 
Party from
time to
 
time or
 
(ii) not
 
accompanied by Secured
 
Party’s invoice
 
number.
 
Preferred forms
 
of payment
include direct debit,
 
wires, company checks and
 
certified checks.
 
Payment in any other
 
form may delay
processing or be
 
returned to Debtor.
 
Delayed credit may
 
cause Debtor to
 
incur a late
 
payment fee.
 
All
credits for payments
 
of Debtor’s account
 
for any Loan
 
are subject to
 
final payment by
 
the institution on
which the item of payment
 
was drawn.
 
(m) Without prejudice to any of
 
the rights and remedies of
 
Secured
Party under any
 
Loan Document or
 
any of the
 
other Debt Documents,
 
all written communication
 
concerning
disputed amounts,
 
including any
 
check or
 
other payment
 
instrument that
 
(i) indicates
 
that the
 
written
payment constitutes
 
“payment in full”
 
or is
 
tendered as
 
full satisfaction
 
of a
 
disputed amount or
 
(ii) is
tendered with other conditions
 
or limitation must be mailed
 
or delivered to the Secured
 
Party at the address
for billing
 
inquiries and/or
 
correspondence shown
 
on the
 
invoice or
 
statement and
 
not to
 
the payment
address.
 
(n) Debtor
 
and each
 
of Debtor’s
 
affiliates and
 
Guarantors and
 
each of
 
Guarantors’ affiliates
authorize Secured Party to disclose information about Debtor, Debtor’s affiliates, Guarantors, Guarantors’
affiliates, any Collateral
 
and any Debt
 
Document that Secured
 
Party may at
 
any time possess
 
to any Secured
Party affiliate, successor,
 
assign and/or participant,
 
whether such information wa
 
s
 
supplied by Debtor
 
or
Guarantors to Secured
 
Party or otherwise
 
obtained by Secured
 
Party.
 
(o) Debtor and
 
Guarantors shall, upon
request of Secured Party, furnish to Secured Party
 
such further information, execute and
 
deliver to Secured
Party such documents
 
and instruments (including,
 
without limitation, Uniform
 
Commercial Code financing
statements) and shall
 
do such other
 
acts and things as
 
Secured Party may at
 
any time reasonably request
relating to the perfection or protection of the security interest created by this Master Agreement, any Loan
Document or any
 
other Debt Document
 
or for the
 
purpose of carrying
 
out the intent
 
of such Debt
 
Document,
including without limitation providing any subordinations, releases, landlord waivers, mortgagee waivers,
or control agreements, and similar documents
 
as may be from time to
 
time requested by,
 
and in form and
substance satisfactory
 
to, Secured
 
Party.
 
(p) DEBTOR
 
AND GUARANTORS
 
HEREBY
ACKNOWLEDGE THAT
 
THEY HA
 
VE NOT
 
RECEIVED OR
 
RELIED ON
 
ANY LEGAL,
 
TAX,
FINANCIAL OR ACCOUNTING
 
ADVICE FROM
 
SECURED PARTY
 
AND THAT
 
DEBTOR AND
GUARANTORS HAVE
 
HAD THE
 
OPPORTUNITY TO
 
SEEK ADVICE FROM
 
THEIR OWN
ADVISORS AND PROFESSIONALS IN THAT REGARD.
 
[REMAINDER OF PAGE INTENTIONALLY
 
IN BLANK]
 
 
IN WITNESS WHEREOF, Debtor, Guarantors and FGIEF have caused this Master Agreement to be
executed by their duly authorized representatives as of the date first above
 
written.
 
FGIEF
DEBTOR:
 
FGI EQUIPMENT FINANCE LLC
CORE MOLDING TECHNOLOGIES,
INC.
By:
 
/s/ Joseph Albertelli
By:
 
/s/ John P.
 
Zimmer
Name: Joseph Albertelli
Title: Legal Representative
Name: John P.
 
Zimmer
Title: Chief Financial Officer
GUARANTORS:
 
CORE COMPOSITES CORPORATION
CC HPM, S. DE R.L. DE C.V.
By:
 
/s/ John P.
 
Zimmer
By:
 
/s/ John P.
 
Zimmer
 
Name: John P.
 
Zimmer
Title: Chief Financial Officer
Name: John P.
 
Zimmer
Title: Sole Manager
 
 
 

CORE MOLDING TECHNOLOGIES INC Reports