CREDIT AGREEMENT

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by and among
XXXXX FARGO BANK, NATIONAL
 
ASSOCIATION,
as Agent,
XXXXX FARGO BANK, NATIONAL
 
ASSOCIATION,
as Lead Arranger,
XXXXX 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
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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),
XXXXX 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"),
XXXXX 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"),
XXXXX FARGO
 
BANK, NATIONAL
 
ASSOCIATION
, a national
 
banking
association, as
 
book runner
 
(in such
 
capacity, together
 
with its
 
successors and
 
assigns in
 
such
capacity, the "Book
 
Runner"),
 
CORE MOLDING TECHNOLOGIES, INC.
, a Delaware
corporation ("CMT"),
 
and those
 
additional Persons,
 
if any,
 
that are
 
joined as
 
a party hereto
 
by
executing the form of Joinder attached hereto as Exhibit J-1 (each, a "Borrower" and individually
and collectively, jointly and severally,
 
the "Borrowers").
The parties agree as follows:
1.
 
DEFINITIONS AND CONSTRUCTION.
1.1.
 
Definitions
.
 
As used
 
in this
 
Agreement, the
 
following terms
 
shall have
 
the
following definitions:
"Acceptable Appraisal" means, with respect to
 
an appraisal of Inventory,
 
M&E or
Real Property, the most recent appraisal of such property received by Agent (a) from an appraisal
company satisfactory to Agent,
 
(b) the scope and methodology
 
(including, to the extent
 
relevant,
any sampling procedure employed by
 
such appraisal company) of which
 
are satisfactory to Agent,
and (c) the results
 
of which are
 
satisfactory to Agent, in
 
each case, in
 
Agent's Permitted Discretion.
"Account" means an account
 
(as that term is
 
defined in the Code
 
or, to
 
the extent
applicable, the PPSA).
"Account Debtor" means
 
any Person who
 
is obligated on an
 
Account, chattel paper,
or a general intangible.
"Account Party"
 
has the
 
meaning specified
 
therefor in
 
Section 2.11(h)
 
of this
Agreement.
"Accounting Changes
 
"
 
means changes
 
in accounting
 
principles required
 
by the
promulgation of
 
any rule,
 
regulation, pronouncement
 
or opinion
 
by the
 
Financial Accounting
Standards Board of
 
the American Institute
 
of Certified Public
 
Accountants (or successor
 
thereto
or any agency with similar functions).
"Acquired Indebtedness" means
 
Indebtedness of a
 
Person whose assets
 
or Equity
Interests are
 
acquired by
 
a Loan
 
Party or
 
any of
 
its Subsidiaries
 
in a
 
Permitted Acquisition;
provided, that such
 
Indebtedness (a) is either
 
purchase money Indebtedness
 
or a Capital
 
Lease with
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
respect to M&E or mortgage financing with respect to Real Property, (b) was in existence prior to
the date
 
of such
 
Permitted Acquisition,
 
and (c)
 
was not
 
incurred in
 
connection with,
 
or in
contemplation of, such Permitted Acquisition.
"Acquisition" means (a) the purchase or other acquisition by a Person
 
or its
Subsidiaries of all or
 
substantially all of the
 
assets of (or any
 
division or business line of)
 
any other
Person, or (b) the purchase or other
 
acquisition (whether by means of a
 
merger, consolidation,
 
or
otherwise) by a Person or its Subsidiaries of all of the Equity Interests of any other Person.
"Additional Documents" has the meaning specified therefor in Section 5.12 of this
Agreement.
"Additional M/E Term
 
Loan" has the meaning specified therefo
 
r
 
in Section 2.2(a)
of this Agreement.
"Additional M/E Term Loan Amount" means $9,000,000 less the then outstanding
principal balance of the Initial M/E Term Loan.
"Administrative Borrower" has the meaning
 
specified therefor in Section 17.13
 
of
this Agreement.
"Administrative Questionnaire"
 
has the meaning specified therefor in Section
13.1(a) of this Agreement.
"Affected Lender"
 
has the
 
meaning specified
 
therefor in
 
Section 2.13(b)
 
of this
Agreement.
"Affiliate"
 
means, as
 
applied to
 
any Person,
 
any other
 
Person who
 
controls, is
controlled by,
 
or is
 
under common
 
control with,
 
such Person.
 
For purposes
 
of this
 
definition,
"control" means the
 
possession, directly or
 
indirectly through one
 
or more intermediaries,
 
of the
power to direct
 
the management and
 
policies of a
 
Person, whether through
 
the ownership of
 
Equity
Interests, by
 
contract, or
 
otherwise; provided,
 
that for
 
purposes of
 
the definition
 
of Eligible
Accounts and Section 6.10
 
of this Agreement:
 
(a) if any Person owns
 
directly or indirectly 10%
or more of the Equity Interests having ordinary voting power for the election of directors or other
members of the governing body of a Person
 
or 10% or more of the partnership or other
 
ownership
interests of a Person (other than as a limited partner of such Person), then both such Persons shall
be Affiliates of each other, (b) each director
 
(or comparable manager) of a
 
Person shall be deemed
to be an Affiliate
 
of such Person, and
 
(c) each partnership in
 
which a Person is
 
a general partner
shall be deemed an Affiliate of such Person.
"Agent" has the meaning specified therefor in the preamble to this Agreement.
"Agent-Related Persons" means
 
Agent, together
 
with its
 
Affiliates, officers,
directors, employees, attorneys, and agents.
"Agent's Account" means the Deposit Account of Agent identified on Schedule X-
0 to this Agreement (or such other Deposit Account of Agent that has been designated as such, in
writing, by Agent to Borrowers and the Lenders).
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
"Agent's Liens" means the Liens granted
 
by each Loan Party or
 
its Subsidiaries to
Agent under the Loan Documents and securing the Obligations.
"Agreed Currency" means (a) Dollars and (b) Canadian Dollars.
"Agreement" means
 
this Credit
 
Agreement, as
 
amended, restated,
 
amended and
restated, supplemented or otherwise modified from time to time.
"Anti-Corruption Laws" means
 
the FCPA,
 
the U.K. Bribery
 
Act of
 
2010, as
amended, and
 
all other
 
applicable laws
 
and regulations
 
or ordinances
 
concerning or
 
relating to
bribery or
 
corruption in
 
any jurisdiction
 
in which
 
any Loan
 
Party or
 
any of
 
its Subsidiaries
 
or
Affiliates is located or is doing business.
"Anti-Money Laundering Laws"
 
means the
 
applicable laws or
 
regulations in any
jurisdiction in which any
 
Loan Party or any of
 
its Subsidiaries or Affiliates
 
is located or is
 
doing
business that
 
relates to
 
money laundering,
 
any predicate
 
crime to
 
money laundering,
 
or any
financial record keeping
 
and reporting requirements
 
related thereto and
 
includes Canadian Anti-
Money Laundering & Anti-Terrorism Legislation.
"Applicable Margin"
 
means, as
 
of any date
 
of determination
 
and with
 
respect to
Base Rate
 
Loans or
 
LIBOR Rate
 
Loans, as
 
applicable, the
 
applicable margin
 
set forth
 
in the
following table
 
that corresponds
 
to the
 
Average Excess
 
Availability of
 
Borrowers for
 
the most
recently
 
completed quarter;
 
provided, that
 
for the
 
period from
 
the Closing
 
Date through
 
and
including March
 
31, 2021,
 
the Applicable
 
Margin shall
 
be set
 
at the
 
margin in
 
the row
 
styled
"Level III"; provided further, that any
 
time an Event of Default
 
has occurred and is continuing,
 
the
Applicable Margin shall be set at the margin in the row styled "Level III":
Level
Average Excess
Availability
Applicable
Margin for Base
Rate Loans
which are
Revolving Loans
(the "Revolving
Loan Base Rate
Margin")
Applicable
Margin for
LIBOR Rate
Loans which are
Revolving Loans
 
(the "Revolving
Loan LIBOR
Rate Margin")
Applicable
Margin for Base
Rate Loans
which are Term
Loans (the
"Term Loan
Base Rate
Margin")
Applicable
Margin for
LIBOR Rate
Loans which are
Term Loans
 
(the
"Term Loan
LIBOR Rate
Margin")
I
> 66 2/3% of the
Maximum
Revolver Amount
 
1.00 percentage
points
2.00 percentage
points
2.00 percentage
points
3.00 percentage
points
II
< 66 2/3% of the
Maximum
Revolver Amount
and > 33 1/3% of
the Maximum
Revolver Amount
1.25 percentage
points
2.25 percentage
points
2.00 percentage
points
3.00 percentage
points
III
< 33 1/3% of the
Maximum
Revolver Amount
1.50 percentage
points
2.50 percentage
points
2.00 percentage
points
3.00 percentage
points
 
The Applicable Margin shall be re-determined as of the first day of each quarter.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
"Application Event"
 
means the occurrence
 
of (a) a failure
 
by Borrowers to
 
repay
all of the Obligations
 
in full on the
 
Maturity Date, or (b)
 
an Event of Default
 
and the election by
Agent or
 
the Required
 
Lenders to
 
require that
 
payments and
 
proceeds of
 
Collateral be
 
applied
pursuant to Section 2.4(b)(iii) of this Agreement.
"Assignee" has the
 
meaning specified therefor
 
in Section 13.1(a)
 
of this Agreement.
"Assignment and Acceptance"
 
means an Assignment
 
and Acceptance Agreement
substantially in the form of Exhibit A-1 to this Agreement.
"Authorized Person" means any one of the
 
individuals identified as an officer of
 
a
Borrower on Schedule A-2
 
to this Agreement, or
 
any other individual identified
 
by Administrative
Borrower as an authorized person and authenticated through Agent's electronic platform or portal
in accordance with its procedures for such authentication.
"Availability" means,
 
as of any
 
date of determination,
 
the amount that
 
Borrowers
are entitled to borrow as
 
Revolving Loans under Section 2.1 of
 
this Agreement (after giving effect
to the then outstanding Revolver Usage).
"Available Increase
 
Amount" means, as
 
of any date
 
of determination, an
 
amount
equal to the result of
 
(a) $10,000,000,
minus
 
(b) the aggregate principal amount of
 
Increases to the
Revolver Commitments previously made pursuant to Section 2.14 of this Agreement.
"Average Excess
 
Availability" means,
 
with respect to
 
any period, the
 
sum of the
aggregate amount of Availability for each day in such
 
period (as calculated by Agent as
 
of the end
of each respective day)
divided by
 
the number of days in such period.
"Average Revolver
 
Usage" means,
 
with respect
 
to any
 
period, the
 
sum of
 
the
aggregate amount of Revolver Usage for each day in such period (calculated as
 
of the end of each
respective day)
divided by
 
the number of days in such period.
"Bail-In Action"
 
means the
 
exercise of any
 
Write-Down and
 
Conversion Powers
by the
 
applicable EEA
 
Resolution Authority
 
in respect
 
of any
 
liability of
 
an EEA
 
Financial
Institution.
"Bail-In Legislation"
 
means, with
 
respect to
 
any EEA
 
Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council
of the European Union,
 
the implementing law for
 
such EEA Member Country
 
from time to time
which is described in the EU Bail-In Legislation Schedule.
"Bank Product"
 
means any
 
one or
 
more of
 
the following
 
financial products
 
or
accommodations extended to
 
any Loan Party
 
or any of
 
its Subsidiaries by
 
a Bank Product
 
Provider:
 
(a) credit cards (including commercial cards (including so-called
 
"purchase cards", "procurement
cards" or "p-cards")), (b) payment card processing
 
services, (c) debit cards, (d) stored value cards,
(e) Cash Management Services, or (f) transactions under Hedge Agreements.
 
 
 
 
 
 
 
 
 
 
 
 
"Bank Product Agreements"
 
means those agreements
 
entered into from
 
time to time
by any Loan Party or any of its Subsidiaries with a
 
Bank Product Provider in connection with the
obtaining of any of the Bank Products.
"Bank Product
 
Collateralization" means
 
providing cash
 
collateral (pursuant
 
to
documentation reasonably satisfactory to
 
Agent) to be held
 
by Agent for the
 
benefit of the Bank
Product Providers (other
 
than the Hedge
 
Providers) in an
 
amount determined by
 
Agent as sufficient
to satisfy the reasonably
 
estimated credit exposure, operational
 
risk or processing risk with
 
respect
to the then existing Bank Product Obligations (other than Hedge Obligations).
"Bank Product
 
Obligations" means
 
(a) all obligations,
 
liabilities, reimbursement
obligations, fees, or expenses owing by each Loan Party and its Subsidiaries to any Bank Product
Provider pursuant to or
 
evidenced by a Bank
 
Product Agreement and irrespective
 
of whether for
the payment of money,
 
whether direct or indirect,
 
absolute or contingent,
 
due or to
 
become due,
now existing or hereafter arising, (b) all Hedge Obligations, and (c) all amounts that Agent
 
or any
Lender is
 
obligated to
 
pay to
 
a Bank
 
Product Provider
 
as a
 
result of
 
Agent or
 
such Lender
purchasing participations
 
from, or
 
executing guarantees
 
or indemnities
 
or reimbursement
obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank
Product Provider to a Loan Party or its Subsidiaries.
"Bank Product Provider" means any Lender or any of its Affiliates, including each
of the foregoing in its capacity,
 
if applicable, as a Hedge
 
Provider; provided, that no such
 
Person
(other than Xxxxx
 
Fargo or its Affiliates)
 
shall constitute a Bank Product
 
Provider with respect to
a Bank Product
 
unless and
 
until Agent receives
 
a Bank Product
 
Provider Agreement
 
from such
Person (a) on or prior to the
 
Closing Date (or such later date
 
as Agent shall agree to in
 
writing in
its sole discretion)
 
with respect to
 
Bank Products provided
 
on or prior
 
to the Closing
 
Date, or (b)
 
on
or prior to the date that
 
is 10 days after the provision
 
of such Bank Product to
 
a Loan Party or its
Subsidiaries (or such later
 
date as Agent shall
 
agree to in writing
 
in its sole discretion)
 
with respect
to Bank Products provided after
 
the Closing Date; provided further,
 
that if, at any time,
 
a Lender
ceases to be a Lender under this Agreement (prior to the payment
 
in full of the Obligations), then,
from and after
 
the date on
 
which it so
 
ceases to be
 
a Lender hereunder,
 
neither it nor
 
any of its
Affiliates shall
 
constitute Bank
 
Product Providers
 
and the
 
obligations with
 
respect to
 
Bank
Products provided by such
 
former Lender or any
 
of its Affiliates
 
shall no longer constitute
 
Bank
Product Obligations.
"Bank Product Provider Agreement" means an agreement in substantially the form
attached hereto as
 
Exhibit B-2 to
 
this Agreement, in form
 
and substance satisfactory
 
to Agent, duly
executed by the applicable Bank Product Provider, the applicable Loan Parties, and Agent.
"Bank Product Reserves"
 
means, as
 
of any
 
date of
 
determination, those
 
reserves
that Agent deems necessary or appropriate, subject to Section
 
2.1(c), to establish (based upon the
Bank Product Providers'
 
reasonable determination of
 
the liabilities and
 
obligations of each Loan
Party and its Subsidiaries
 
in respect of Bank
 
Product Obligations) in respect
 
of Bank Products
 
then
provided or outstanding.
"Bankruptcy Code" means title 11 of the
 
United States Code, as
 
in effect from time
to time.
 
 
 
 
 
 
 
 
 
"Base Rate
 
"
 
means the
 
greatest of
 
(a) 1.00 percent
per annum
, (b)
 
the Federal
Funds Rate
plus
 
½%, (c) the LIBOR Rate
 
(which rate shall
 
be calculated based upon
 
an Interest
Period of
 
one month
 
and shall
 
be determined
 
on a
 
daily basis),
plus
 
one percentage
 
point, and
(d) the rate of interest announced,
 
from time to time,
 
within Xxxxx
 
Fargo at its principal
 
office in
San Francisco
 
as its
 
"prime rate",
 
with the
 
understanding that
 
the "prime
 
rate" is
 
one of
 
Xxxxx
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
 
Xxxxx
 
Fargo may
designate (and, if any such announced rate
 
is below zero, then the rate determined pursuant to this
clause (d) shall be deemed to be zero).
"Base Rate Loan"
 
means each portion
 
of the Revolving
 
Loans or the
 
Term
 
Loan
that bears interest at a rate determined by reference to the Base Rate.
"Base Rate Margin"
 
means the Revolving
 
Loan Base Rate
 
Margin or the
 
Term Loan
Base Rate Margin, as applicable.
"Benchmark Replacement
 
"
 
means the
 
sum of:
 
(a) the alternate
 
benchmark rate
(which may include
 
Term
 
SOFR) that has
 
been selected by
 
Agent and Administrative
 
Borrower
giving due
 
consideration to
 
(i) any selection
 
or recommendation
 
of a
 
replacement rate
 
or the
mechanism for determining such
 
a rate by the
 
Relevant Governmental Body or
 
(ii) any evolving
or then-prevailing
 
market convention
 
for determining
 
a rate
 
of interest
 
as a
 
replacement to
 
the
LIBOR Rate
 
for United
 
States dollar-denominated
 
syndicated credit
 
facilities and
 
(b) the
Benchmark Replacement Adjustment;
 
provided that, if
 
the Benchmark Replacement
 
as so
determined would be less
 
than zero, the Benchmark
 
Replacement shall be deemed
 
to be zero for
the purposes of this Agreement.
"Benchmark Replacement Adjustment" means, with respect to any replacement of
the LIBOR Rate with an Unadjusted Benchmark Replacement
 
for each applicable Interest Period,
the spread adjustment,
 
or method for
 
calculating or determining
 
such spread adjustment,
 
(which
may be a positive
 
or negative value or
 
zero) that has
 
been selected by Agent
 
and Administrative
Borrower giving due consideration to
 
(i) any selection or recommendation of
 
a spread adjustment,
or method
 
for calculating
 
or determining
 
such spread
 
adjustment, for
 
the replacement
 
of the
LIBOR Rate
 
with the
 
applicable Unadjusted
 
Benchmark Replacement
 
by the
 
Relevant
Governmental Body or (ii)
 
any evolving or
 
then-prevailing market convention
 
for determining a
spread adjustment,
 
or method
 
for calculating
 
or determining
 
such spread
 
adjustment, for
 
the
replacement of
 
the LIBOR
 
Rate with
 
the applicable
 
Unadjusted Benchmark
 
Replacement for
United States dollar-denominated syndicated credit facilities at such time.
"Benchmark Replacement Conforming
 
Changes" means, with
 
respect to any
Benchmark Replacement, any technical,
 
administrative or operational changes (including
 
changes
to the
 
definition of
 
"Base Rate",
 
the definition
 
of "Interest
 
Period", timing
 
and frequency
 
of
determining rates and
 
making payments of
 
interest and other
 
administrative matters) that
 
Agent
decides may
 
be appropriate
 
to reflect
 
the adoption
 
and implementation
 
of such
 
Benchmark
Replacement and to permit
 
the administration thereof by
 
Agent in a manner
 
substantially
consistent with market practice (or,
 
if Agent decides that
 
adoption of any portion
 
of such market
practice is
 
not administratively
 
feasible or
 
if Agent
 
determines that
 
no market
 
practice for
 
the
 
 
 
 
administration of the
 
Benchmark Replacement exists,
 
in such other
 
manner of administration
 
as
Agent decides is reasonably necessary in connection with the administration of this Agreement).
"Benchmark Replacement Date" means the earlier to occur of
 
the following events
with respect to the LIBOR Rate:
(a)
 
in the case
 
of clause (a)
 
or (b) of
 
the definition of
 
"Benchmark Transition
Event," the later
 
of (i) the date
 
of the public
 
statement or
 
publication of information
 
referenced
therein and (ii) the date
 
on which the administrator of
 
the LIBOR Rate permanently
 
or indefinitely
ceases
 
to provide the LIBOR Rate; or
(b)
 
in the case of clause (c) of the definition of "Benchmark Transition Event,"
the date of the public statement or publication of information referenced therein.
"Benchmark Transition Event" means
 
the occurrence of one or
 
more of the
following events with respect to the LIBOR Rate:
(a)
 
a public
 
statement or
 
publication of
 
information by
 
or on
 
behalf of
 
the
administrator of the LIBOR
 
Rate announcing that
 
such administrator has ceased
 
or will cease
 
to
provide the LIBOR Rate, permanently or indefinitely, provided that, at the time of such statement
or publication, there is no successor administrator that will continue to provide the LIBOR Rate;
(b)
 
a public
 
statement or
 
publication of
 
information by
 
the regulatory
supervisor for
 
the administrator
 
of the
 
LIBOR Rate,
 
the Federal
 
Reserve System
 
of the
 
United
States (or
 
any successor), an
 
insolvency official
 
with jurisdiction
 
over the administrator
 
for the
LIBOR Rate, a resolution authority
 
with jurisdiction over the administrator
 
for the LIBOR Rate or
a court or an
 
entity with similar
 
insolvency or resolution
 
authority over the administrator
 
for the
LIBOR Rate, which
 
states that the
 
administrator of the
 
LIBOR Rate has
 
ceased or will
 
cease to
provide the LIBOR Rate permanently or indefinitely,
 
provided that, at the time of such
 
statement
or publication, there is no
 
successor administrator that will
 
continue to provide the LIBOR
 
Rate;
or
(c)
 
a public
 
statement or
 
publication of
 
information by
 
the regulatory
supervisor for the administrator of the LIBOR Rate announcing that the LIBOR Rate is no longer
representative.
"Benchmark Transition
 
Start Date"
 
means (a)
 
in the
 
case of
 
a Benchmark
Transition Event,
 
the earlier
 
of (i)
 
the applicable
 
Benchmark Replacement
 
Date and
 
(ii) if such
Benchmark Transition Event
 
is a public statement
 
or publication of information
 
of a prospective
event, the
 
90th day
 
prior to
 
the expected
 
date of
 
such event
 
as of
 
such public
 
statement or
publication of information (or if the expected date
 
of such prospective event is fewer than 90
 
days
after such statement or
 
publication, the date of
 
such statement or publication)
 
and (b) in the case
of an Early
 
Opt-in Election, the
 
date specified by
 
Agent or the
 
Required Lenders, as
 
applicable,
by notice to Administrative Borrower, Agent (in the case of such notice by the Required Lenders)
and the Lenders.
"Benchmark Unavailability Period"
 
means, if a
 
Benchmark Transition
 
Event and
its related Benchmark
 
Replacement Date have occurred
 
with respect to the
 
LIBOR Rate and
 
solely
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
to the extent
 
that the LIBOR
 
Rate has not
 
been replaced with
 
a Benchmark Replacement,
 
the period
(x) beginning at the time that such Benchmark
 
Replacement Date has occurred if, at such time, no
Benchmark Replacement has replaced
 
the LIBOR Rate for
 
all purposes hereunder in
 
accordance
with Section 2.12(d)(iii)
 
and (y) ending at
 
the time that
 
a Benchmark Replacement
 
has replaced
the LIBOR Rate for all purposes hereunder pursuant to Section 2.12(d)(iii).
"Beneficial Ownership
 
Certification" means
 
a certification
 
regarding beneficial
ownership as required by the Beneficial Ownership Regulations.
"Beneficial Ownership Regulation" means 31 C.F.R.
 
§ 1010.230.
"Benefit Plan"
 
means a
 
"defined benefit
 
plan" (as
 
defined in
 
Section 3(35)
 
of
ERISA) that is subject to
 
Title IV of ERISA,
 
for which any Loan Party or
 
any of its Subsidiaries
or ERISA Affiliates has been an
 
"employer" (as defined in Section
 
3(5) of ERISA) within the past
six years.
"BHC Act Affiliate" of
 
a Person means
 
an "affiliate" (as such
 
term is defined under,
and interpreted in accordance with, 12 U.S.C. 1841(k)) of such Person.
"Board of Directors"
 
means, as to any
 
Person, the board of
 
directors (or comparable
managers) of such Person, or any committee thereof duly authorized to act on
 
behalf of the board
of directors (or comparable managers).
"Board of
 
Governors" means
 
the Board
 
of Governors
 
of the
 
Federal Reserve
System of the United States (or any successor).
"Book Runner"
 
has the meaning set forth in the preamble to this Agreement.
"Borrower" and "Borrowers"
 
have the respective meanings
 
specified therefor in the
preamble to this Agreement.
"Borrower Materials"
 
has the meaning specified therefor in Section 17.9(c)
 
of this
Agreement.
"Borrowing" means a borrowing consisting of Revolving Loans made on the same
day by the Lenders (or Agent on
 
behalf thereof), or by Swing Lender in the case
 
of a Swing Loan,
or by Agent in the case of an Extraordinary Advance.
"Borrowing Base" means, as of any date of determination, the result of:
(a)
 
90% of the
 
amount of Eligible
 
Investment Grade Accounts,
less
 
the amount,
if any, of the Dilution Reserve (Investment Grade),
plus
 
(b)
 
85% of
 
the amount
 
of Eligible
 
Non-Investment Grade
 
Accounts,
less
 
the
amount, if any, of the Dilution Reserve (Non-Investment Grade),
plus
 
 
(c)
 
the lesser of (x) $1,500,000 and (y) 85% of the amount of
 
Eligible Tooling
Accounts,
less
 
the amount, if any, of the Dilution Reserve (Non-Investment Grade),
plus
 
 
 
 
 
 
 
 
 
 
 
(d)
 
the lesser of
 
(x) Mexican A/R
 
Cap and (y)
 
85% of the
 
amount of Eligible
Mexican Accounts,
less
 
the amount, if any, of the Dilution Reserve (Non-Investment Grade),
plus
 
(e)
 
the lesser of (A)
 
the product of
 
70% multiplied by
 
the value (calculated at
the lower of cost
 
or market on a
 
basis consistent with Loan
 
Parties' historical accounting practices)
of Eligible Finished Goods
 
Inventory at such time, and
 
(B) the product of 85%
 
multiplied by the
Net Recovery Percentage identified in
 
the most recent Acceptable Appraisal
 
of Inventory,
multiplied by the value (calculated at
 
the lower of cost or market
 
on a basis consistent with
 
Loan
Parties' historical accounting practices) of Eligible Finished Goods Inventory (such determination
may be made as to
 
different categories of Eligible
 
Finished Goods Inventory based upon
 
the Net
Recovery Percentage applicable to such categories) at such time,
plus
 
(f)
 
the lesser of (A)
 
the product of
 
70% multiplied by
 
the value (calculated at
the lower of cost
 
or market on a
 
basis consistent with Loan
 
Parties' historical accounting practices)
of Eligible Raw
 
Materials Inventory at
 
such time, and
 
(B) the product of
 
85% multiplied by
 
the
Net Recovery Percentage identified in
 
the most recent Acceptable Appraisal
 
of Inventory,
multiplied by the value (calculated at
 
the lower of cost or market
 
on a basis consistent with
 
Loan
Parties' historical accounting practices)
 
of Eligible Raw Materials
 
Inventory (such determination
may be made
 
as to different
 
categories of Eligible
 
Raw Materials Inventory
 
based upon the
 
Net
Recovery Percentage applicable to such categories) at such time,
plus
 
(g)
 
the lesser of
 
(i) $350,000, and
(ii) the lesser of
 
(A) the product of
 
70% multiplied by
 
the value
(calculated at
 
the lower
 
of cost
 
or market
 
on a
 
basis consistent
 
with Loan
 
Parties' historical
accounting practices) of Eligible Work
 
-In-Process Inventory at such time,
 
and (B) the product of
85% multiplied by
 
the Net Recovery
 
Percentage identified in
 
the most recent
 
Acceptable Appraisal
of Inventory, multiplied by
 
the value (calculated
 
at the lower
 
of cost or
 
market on a
 
basis consistent
with Loan Parties'
 
historical accounting
 
practices) of
 
Eligible Work
 
-In-Process Inventory (such
determination may be
 
made as to different
 
categories of Eligible Work-In-Process Inventory based
upon the Net Recovery Percentage applicable to such categories) at such time,
minus
 
(h)
 
the aggregate amount
 
of Reserves, if
 
any, established
 
by Agent from
 
time
to time under Section 2.1(c) of this Agreement.
"Borrowing Base
 
Certificate" means
 
a certificate
 
substantially in
 
the form
 
of
Exhibit B-1 to this Agreement, which such form of Borrowing Base Certificate may be amended,
restated, supplemented
 
or otherwise
 
modified from
 
time to
 
time (including
 
without limitation
changes to the format thereof), as approved by Agent in Agent's sole discretion.
"Borrowing Base
 
Company" means
 
any US
 
Loan Party
 
and any
 
Canadian Loan
Party.
"BRP/Navistar Project
 
Cap Ex"
 
means Capital
 
Expenditures incurred
 
by Loan
Parties and
 
their Subsidiaries
 
in connection
 
with (i)
 
the purchase
 
and installation
 
of a
 
new
compression molding press, extruder, building expansion, silo and other supporting equipment
 
in
 
 
 
 
 
 
 
 
 
 
the Matamoros,
 
Mexico facility
 
to support
 
existing, and
 
to provide
 
excess capacity
 
for future,
business from
 
Bombadier Recreational
 
Products Inc.
 
(personal watercraft
 
product) and
 
(ii) the
purchase and installation
 
of a press
 
and building modifications
 
and production equipment
 
in the
Matamoros, Mexico
 
facility for a
 
new Medium
 
Vocational
 
“MV” Hood
 
from Navistar,
 
Inc., in
each case, as more particularly described on Schedule B-1 attached hereto.
"Business Day"
 
means any
 
day that
 
is not
 
a Saturday,
 
Sunday, or
 
other day
 
on
which banks are authorized
 
or required to close
 
in the state of
 
Illinois, except that, if
 
a
determination of a Business Day shall relate
 
to a LIBOR Rate Loan, the term "Business
 
Day" also
shall exclude any
 
day on
 
which banks are
 
closed for dealings
 
in Dollar
 
deposits in
 
the London
interbank market.
"Canadian Anti-Money Laundering & Anti-Terrorism Legislation" means Part II.1
of the
Criminal Code
, R.S.C.
 
1985, c.
 
C-46,
The Proceeds
 
of Crime
 
(Money Laundering)
 
and
Terrorist
 
Financing Act
, S.C. 2000, c.
 
17 and the
United Nations Act
, R.S.C. 1985, c.U-2
 
or any
similar Canadian legislation, together with
 
all rules, regulations and interpretations
 
thereunder or
related thereto
 
including, without
 
limitation, the
 
Regulations Implementing
 
the United
 
Nations
Resolutions on
 
the Suppression
 
of Terrorism
 
and the
 
United Nations
 
Al-Qaida and
 
Taliban
Regulations promulgated under the
United Nations Act
.
"Canadian Defined Benefit
 
Plan" means any
 
Canadian Pension Plan
 
which contains
a "defined benefit provision" as defined in subsection 147.1(1) of the
Income Tax
 
Act
 
(Canada).
"Canadian Dollars"
 
or "Cdn $" means
 
the lawful currency
 
of Canada, as
 
in effect
from time to time.
"Canadian Guarantor"
 
means each
 
Subsidiary of
 
Administrative Borrower
organized under the laws of Canada, or any province thereof, that is or becomes a guarantor of all
or any part of the Obligations.
"Canadian Guaranty" means a
 
guaranty of the Obligations,
 
in form and substance
reasonably satisfactory to
 
Agent, executed and
 
delivered by the
 
Canadian Loan Parties
 
to Agent
and includes the guaranty set forth in the Canadian Security Agreement.
"Canadian Loan Party" means any Canadian Guarantor.
"Canadian Multi-Employer Plan" means a "multi-employer pension plan", as
 
such
term is defined under the Pension Benefits Act (Ontario) or “collectively bargained multi-
employer plan”,
 
as such
 
term is
 
defined under
 
the Pension
 
Benefits Standards
 
Act (British
Columbia), under which a
 
Canadian Loan Party is
 
required to contribute pursuant
 
to a collective
bargaining agreement
 
and under
 
which (i)
 
the sole
 
obligation of the
 
Canadian Loan
 
Party is
 
to
make the
 
contributions specified in
 
the applicable
 
collective bargaining
 
agreement, and
 
(ii) the
Canadian Loan Party has no liability relating to any past or future withdrawals from the plan.
"Canadian Pension
 
Plans" means
 
each pension
 
plan that
 
is a
 
"registered pension
plan" (as
 
defined in
 
the Income
 
Tax
 
Act (Canada))
 
or that
 
is required
 
to be
 
registered under
Canadian federal or provincial
 
law with respect to
 
pension benefit standards and
 
that is maintained
or contributed to, or
 
to which there is
 
or may be an
 
obligation to contribute by
 
a Loan Party or
 
a
 
 
 
 
Subsidiary thereof,
 
for its
 
employees or
 
former employees,
 
but does
 
not include
 
the Canada
Pension Plan
 
or the
 
Quebec Pension
 
Plan as
 
maintained by
 
the Government
 
of Canada
 
or the
Province of Quebec, respectively.
"Canadian Priority Payables
 
Reserves" means reserves
 
(determined from
 
time to
time by Agent
 
in its Permitted
 
Discretion) for:
 
(a) the amount past
 
due and owing
 
by any Canadian
Loan Party, or the accrued amount for
 
which such Canadian Loan Party
 
has an obligation to remit,
to a Governmental Authority or other Person pursuant to any applicable
 
law, rule or regulation, in
respect of (i)
 
goods and services
 
taxes, harmonized sales taxes,
 
other sales taxes,
 
employee income
taxes, municipal taxes and other taxes payable or to be remitted or
 
withheld; (ii) workers'
compensation or
 
employment insurance;
 
(iii) federal
 
Canada Pension
 
Plan and
 
other statutory
Pension Plan contributions; (iv) vacation or holiday pay; and (v)
 
other like charges and demands,
in each case,
 
to the
 
extent that
 
any Governmental
 
Authority or other
 
Person may
 
claim a
 
Lien,
trust, deemed trust
 
or other claim ranking
 
or capable of
 
ranking in priority
 
to or
pari
 
passu
 
with
one or more
 
of the Liens
 
granted in the
 
Loan Documents; and
 
(b) the aggregate amount
 
of any
other liabilities of
 
any Canadian Loan
 
Party (i) in respect
 
of which a
 
Lien, trust or
 
deemed trust
has been or may be imposed on any Collateral to provide for payment, or (ii) in
 
respect of unpaid
or unremitted pension
 
plan contributions, including
 
normal cost contributions,
 
special payments
and, without
 
duplication, amounts
 
representing any
 
unfunded liability,
 
solvency deficiency
 
or
wind-up deficiency whether or not due with respect to a Canadian Pension Plan, or (iii) which are
secured by a
 
Lien, charge, right or
 
claim on any
 
Collateral; in each case,
 
pursuant to any
 
applicable
law, rule
 
or regulation
 
and which
 
such Lien,
 
trust, deemed
 
trust, pledge,
 
charge, right
 
or claim
ranks or in
 
the Permitted
 
Discretion of Agent,
 
is capable of
 
ranking in priority
 
to or
pari
 
passu
 
with one or
 
more of the
 
Liens granted in
 
the Loan Documents
 
(such as certain
 
claims by employees
for unpaid
 
wages and
 
other amounts
 
payable under
 
the Wage
 
Earner Protection
 
Program Act
(Canada)); in each case net of the aggregate amount of all
 
restricted cash held or set aside by such
Canadian Loan Party for the payment of such obligations.
"Canadian Security
 
Agreement" means
 
a Canadian
 
Guarantee and
 
Security
Agreement dated as of
 
even date with
 
the Agreement, in form
 
and substance reasonably
satisfactory to Agent, executed
 
and delivered by each
 
Canadian Loan Party and
 
each other Loan
Party having Collateral located in Canada to Agent.
"Canadian Security
 
Documents" means,
 
collectively, the
 
Canadian Security
Agreement, the Quebec Security
 
Documents and any other Loan
 
Document that grants or
 
purports
to xxxxx x Xxxx
 
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 Xxxx-Xxxxx
 
Xxxx
 
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' xxxxxxxx
 
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
 
 
 
 
 
 
 
Xxxxx'x Investors Service,
 
Inc. ("Moody's"), (c)
 
commercial paper maturing
 
no more
 
than 270
days from the date of creation thereof and, at the time of acquisition, having
 
a rating of at least A-
1 from S&P or at
 
least P-1 from Moody's,
 
(d) certificates of deposit, time
 
deposits, overnight bank
deposits or
 
bankers' acceptances
 
maturing within
 
one year
 
from the
 
date of
 
acquisition thereof
issued by any
 
bank organized under the
 
laws of the
 
United States or
 
any state thereof
 
or the District
of Columbia or any
 
United States branch of
 
a foreign bank having
 
at the date of
 
acquisition thereof
combined capital and
 
surplus of not
 
less than $1,000,000,000,
 
(e) Deposit Accounts
 
maintained
with (i)
 
any bank that
 
satisfies the
 
criteria described in
 
clause (d) above,
 
or (ii)
 
any other bank
organized under
 
the laws
 
of the
 
United States
 
or any
 
state thereof
 
so long
 
as the
 
full amount
maintained with any such other bank is insured by the Federal Deposit Insurance Corporation, (f)
repurchase obligations of
 
any commercial bank
 
satisfying the requirements
 
of clause (d)
 
of this
definition or
 
recognized securities
 
dealer having
 
combined capital
 
and surplus
 
of not
 
less than
$1,000,000,000, having a
 
term of not
 
more than seven
 
days, with respect
 
to securities satisfying
the criteria in clauses
 
(a) or (d) above,
 
(g) debt securities with
 
maturities of six months
 
or less from
the date of
 
acquisition backed by
 
standby letters of
 
credit issued by
 
any commercial bank
 
satisfying
the criteria described in
 
clause (d) above, and
 
(h) Investments in money
 
market funds substantially
all of whose assets are invested in the types of assets described in clauses (a) through (g) above.
"Domestic Subsidiary"
 
means any
 
Subsidiary of
 
any Loan
 
Party that
 
is not
 
a
Foreign Subsidiary.
"Drawing Document" means any Letter of
 
Credit or other document presented
 
for
purposes of
 
drawing under
 
any Letter
 
of Credit,
 
including by
 
electronic transmission
 
such as
SWIFT, electronic mail, facsimile or computer generated communication.
"Early Opt-in Election" means the occurrence of:
(a)
 
(i) a determination by Agent
 
or (ii) a notification
 
by the Required Lenders
to Agent (with
 
a copy to
 
Administrative Borrower)
 
that the
 
Required Lenders
 
have determined
that United States dollar-denominated
 
syndicated credit facilities being
 
executed at such time,
 
or
that include
 
language similar
 
to that
 
contained in
 
Section 2.12(d)(iii)
 
are being
 
executed or
amended, as
 
applicable, to
 
incorporate or
 
adopt a
 
new benchmark
 
interest rate
 
to replace
 
the
LIBOR Rate, and
(b)
 
(i) the election
 
by Agent
 
or (ii)
 
the election
 
by the
 
Required Lenders
 
to
declare that an
 
Early Opt-in Election
 
has occurred and
 
the provision, as
 
applicable, by Agent
 
of
written notice of
 
such election
 
to Administrative Borrower
 
and the
 
Lenders or by
 
the Required
Lenders of written notice of such election to Agent.
"EBITDA" means, with respect to any fiscal period and with
 
respect to Borrowers
determined, in each case, on a consolidated basis in accordance with GAAP:
(a)
 
the consolidated net income (or loss) for such period,
minus
 
(b)
 
without duplication,
 
the sum of
 
the following amounts
 
for such period
 
to
the extent included in determining consolidated net income (or loss) for such period:
 
(i) unusual or non-recurring gains,
 
(ii) non-cash gains
 
in respect
 
of post-retirement benefits
 
consisting of
health insurance and life insurance, and
(iii) interest income,
plus
 
(c)
 
without duplication,
 
the sum of
 
the following
 
amounts for
 
such period to
the extent deducted in determining consolidated net income (or loss) for such period:
(i) non-cash unusual and non-recurring losses,
(ii) Interest Expense,
(iii) income taxes,
 
(iv) depreciation and amortization,
(v) costs,
 
fees, charges
 
or expenses
 
incurred in
 
connection with
 
the
closing of
 
this Agreement
 
prior to,
 
on or
 
within 120
 
days of
 
the Closing
 
Date in
 
an aggregate
amount not to exceed $500,000,
(vi) transaction fees
 
and expenses in
 
connection with any
 
amendments
to or
 
waivers in
 
connection with
 
the Loan
 
Documents in
 
an aggregate
 
amount not
 
to exceed
$250,000;
 
provided,
that such amounts added back pursuant to this clause (vi) in any period shall,
when aggregated with the amount of any addbacks pursuant to clauses (vii)
 
and (viii), not exceed
an aggregate amount
 
equal to 10%
 
of EBITDA for
 
the such twelve
 
month period, calculated
 
before
giving effect thereto,
(vii) transaction fees
 
and expenses
 
in connection
 
with Permitted
Acquisitions, whether
 
or not
 
consummated in
 
an aggregate
 
amount not
 
to exceed
 
$750,000;
 
provided,
that such
 
amounts added
 
back pursuant
 
to this
 
clause (vii)
 
in any
 
period shall,
 
when
aggregated with
 
the amount
 
of any
 
addbacks pursuant
 
to clauses
 
(vi) and
 
(viii), not
 
exceed an
aggregate amount equal to
 
10% of EBITDA for
 
the such twelve month
 
period, calculated before
giving effect thereto,
(viii)
 
fees, costs
 
and expenses
 
in respect
 
of start
 
up or
 
shut down
 
of
facilities (including,
 
without limitation,
 
relocation, severance,
 
hiring and
 
transition costs)
 
in an
aggregate amount not to exceed $1,000,000;
 
provided,
that such amounts added back pursuant to
this clause (viii) in
 
any period shall, when aggregated
 
with the amount of
 
any addbacks pursuant
to clauses (vi)
 
and (vii), not
 
exceed an aggregate
 
amount equal to
 
10% of EBITDA
 
for the such
twelve month period, calculated before giving effect thereto,
 
(ix) non-cash
 
costs and
 
expenses in
 
respect of
 
post-retirement benefits
consisting of health insurance and life insurance and
 
 
 
 
 
(x) costs,
 
fees, charges and
 
expenses incurred in
 
connection with
Existing Credit Facility in an aggregate amount not to exceed $2,500,000.
"EEA Financial
 
Institution"
 
means (a)
 
any credit
 
institution or
 
investment firm
established in any
 
EEA Member Country
 
which is subject to
 
the supervision of
 
an EEA Resolution
Authority, (b) any entity established in
 
an EEA Member
 
Country which is
 
a parent of
 
an institution
described in
 
clause (a)
 
of this
 
definition, or
 
(c) any financial
 
institution established
 
in an
 
EEA
Member Country
 
which is
 
a subsidiary
 
of an
 
institution described
 
in clauses
 
(a) or
 
(b) of
 
this
definition and is subject to consolidated supervision with its parent.
"EEA Member Country" means
 
any of the member
 
states of the European
 
Union,
Iceland, Liechtenstein, and Norway.
"EEA Resolution
 
Authority" means
 
any public
 
administrative authority
 
or any
person entrusted with public
 
administrative authority of any
 
EEA Member Country (including
 
any
delegee) having responsibility for the resolution of any EEA Financial Institution.
"Eligible Accounts" means those Accounts created
 
by a Borrowing Base Company
in the ordinary
 
course of its
 
business, that arise
 
out of such
 
Borrowing Base Company's
 
sale of
goods or
 
rendition of
 
services, that
 
comply with
 
each of
 
the representations
 
and warranties
respecting Eligible Accounts made in the
 
Loan Documents, and that are
 
not excluded as ineligible
by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may
be revised from time
 
to time by Agent
 
in Agent's Permitted Discretion
 
to address the results
 
of any
information with
 
respect to
 
the Borrower
 
Base Companies'
 
business or
 
assets of
 
which Agent
becomes aware after the
 
Closing Date, including any
 
field examination performed by
 
(or on behalf
of) Agent from
 
time to time
 
after the Closing
 
Date.
 
In determining the
 
amount to be
 
included,
Eligible Accounts
 
shall be
 
calculated net
 
of customer
 
deposits, unapplied
 
cash, taxes,
 
finance
charges, service charges,
 
discounts, credits, allowances, and rebates.
 
Eligible Accounts shall not
include the following:
(a)
 
Accounts that
 
the Account
 
Debtor has
 
failed to
 
pay within
 
90 days
 
of
original invoice
 
date (or
 
120 days
 
of original
 
invoice date
 
in the
 
case of
 
Main Access
 
LLC,
including its Sunwalk division) or 60 days of due date (or 30 days of due date in the case of Main
Access LLC, including its Sunwalk division),
(b)
 
Accounts owed by an
 
Account Debtor (or its
 
Affiliates) where 50% or
 
more
of all Accounts owed by
 
that Account Debtor (or its Affiliates) are
 
deemed ineligible under clause
(a) above,
(c)
 
Accounts with selling terms of more than 60 days
 
(or 90 days in the case of
Main Access LLC, including its Sunwalk division),
(d)
 
Accounts with respect
 
to which the
 
Account Debtor is
 
an Affiliate of
 
any
Borrowing Base
 
Company or
 
an employee
 
or agent
 
of any
 
Borrowing Base
 
Company or
 
any
Affiliate of any Borrowing Base Company,
(e)
 
Accounts (i)
 
arising in
 
a transaction
 
wherein goods
 
are placed
 
on
consignment or are
 
sold pursuant to
 
a guaranteed sale, a
 
sale or return,
 
a sale on
 
approval, a xxxx
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 xxxxxxxx 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
 
Xxxxx'x
(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 xxxx 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, xxxx and hold goods, defective
 
goods, "seconds," or Inventory acquired
on consignment,
 
 
 
 
 
 
 
 
 
 
(k)
 
it is subject
 
to third party
 
intellectual property, licensing or
 
other proprietary
rights, unless Agent is satisfied
 
in its Permitted Discretion
 
that such Inventory can be
 
freely sold
by Agent on and after the occurrence of an Event of a Default despite such third party rights, or
(l)
 
it was
 
acquired in
 
connection with
 
a Permitted
 
Acquisition or
 
Permitted
Investment, or such Inventory
 
is owned by a Person
 
that is joined to this
 
Agreement as a Borrower
pursuant to the provisions of
 
this Agreement, until the completion
 
of an Acceptable Appraisal of
such Inventory and
 
the completion
 
of a field
 
examination with respect
 
to such Inventory
 
that is
satisfactory to Agent in its Permitted Discretion.
"Eligible M&E
 
"
 
means M&E
 
of a
 
Borrower Base
 
Company, that
 
complies with
each of the representations
 
and warranties respecting Eligible
 
M&E made in the Loan
 
Documents,
and that is
 
not excluded as
 
ineligible by virtue
 
of one or
 
more of the
 
excluding criteria set
 
forth
below; provided, that
 
such criteria may
 
be revised from time
 
to time by
 
Agent in Agent's
 
Permitted
Discretion to address
 
the results
 
of any due
 
diligence information
 
with respect
 
to the
 
Borrower
Base Companies'
 
business or
 
assets of
 
which Agent
 
becomes aware
 
after the
 
Closing Date,
including any field
 
examination or
 
appraisal performed or
 
received by Agent
 
from time to
 
time
after the Closing Date.
 
An item of M&E shall not be included in Eligible M&E if:
(a)
 
it is not subject to a valid and perfected first priority Agent's Lien,
(b)
 
a Borrower Base Company does not have
 
good, valid, and marketable title
thereto,
(c)
 
a Borrower Base
 
Company does not
 
have actual and
 
exclusive possession
thereof (either directly or through a bailee or agent of
 
a Borrower Base Company), including as a
result of the lease thereof by a Borrower Base Company,
(d)
 
it is not
 
located at one
 
of the locations
 
in the continental
 
United States or
Canada set
 
forth on
 
Schedule 4.25
 
to this
 
Agreement (or
 
in-transit from
 
one such
 
location to
another such location) (as
 
such Schedule 4.25 may
 
be amended from time
 
to time in
 
accordance
with Section 5.14),
(e)
 
it is in-transit to
 
or from a
 
location of a
 
Borrower Base Company
 
(other than
in-transit from one
 
location set forth
 
on Schedule 4.25
 
to this Agreement
 
to another location
 
set
forth on Schedule 4.25 to
 
this Agreement) (as such Schedule
 
4.25 may be amended
 
from time to
time in accordance with Section 5.14),
(f)
 
(i) it is "subject to" (within the
 
meaning of Section 9-311
 
of the Code) any
certificate of title
 
(or comparable) statute
 
(unless Agent has
 
a first priority,
 
perfected Lien under
such statute
 
and Agent
 
has possession
 
and custody
 
of such
 
certificate), or
 
(ii) in the
 
case of
Borrowing Base Companies
 
that are Canadian
 
Loan Parties, it
 
is Equipment bearing
 
a VIN number
or "serial number goods" or "serial
 
numbered goods" within the meaning of
 
the applicable PPSA
(unless filings against such Equipment or Goods under the applicable
 
PPSA including the
corresponding VINs or serial numbers, satisfactory to the Agent, have been made),
 
 
 
 
 
 
(g)
 
it does not meet (unless
 
it is under repair or
 
held for repair for
 
the purpose
of meeting), in all material respects, all applicable safety or regulatory requirements applicable to
it by law for the use for which it is intended or for which it is being used,
(h)
 
it is not used or usable in the ordinary course of the Borrower Base
Companies' business due to
 
a damaged or inoperable
 
condition (other than M&E
 
under repair or
held for repair for such purpose),
(i)
 
it does not meet (unless
 
it is under repair or
 
held for repair for
 
the purpose
of meeting), in all material respects, all applicable requirements of all motor vehicle laws or other
statutes and
 
regulations established
 
by any
 
Governmental Authority
 
then applicable
 
to such
Equipment, or is subject to any licensing or
 
similar requirement,
(j)
 
it is located
 
on real property
 
leased by a
 
Borrower Base Company
 
or in a
contract warehouse, in
 
each case, unless
 
either (i) it
 
is subject to
 
a Collateral Access Agreement
executed by
 
the lessor
 
or warehouseman,
 
as the
 
case may
 
be, and
 
unless it
 
is segregated
 
or
otherwise separately identifiable from
 
equipment of others, if
 
any, stored
 
on the premises, or
 
(ii)
Agent has established a Landlord Reserve with respect to such location,
(k)
 
its use or
 
operation requires proprietary
 
software that is
 
not freely assignable
to Agent, or
(l)
 
an Acceptable Appraisal of such M&E has not been completed.
"Eligible Mexican
 
Accounts" means
 
Accounts owing
 
from an
 
Account Debtor
identified on
 
Schedule E-3
 
that meet
 
all the
 
criteria of
 
Eligible Accounts
 
other than
 
clause (g)
thereof solely as a result of such Account Debtor being organized under the laws of Mexico.
"Eligible Non-Investment Grade
 
Accounts" means Eligible
 
Accounts that are
 
not
Eligible Investment Grade Accounts or Eligible Tooling Accounts.
"Eligible Raw Material Inventory" means Inventory that qualifies as Eligible
Inventory and consists of goods that are raw materials of good and merchantable quality.
"Eligible Real
 
Property" means
 
Real Property
 
owned in
 
fee by
 
Borrower that
complies with
 
each of
 
the representations
 
and warranties
 
respecting Real
 
Property made
 
in the
Loan Documents, and that is not
 
excluded as ineligible by virtue of one or
 
more of the excluding
criteria set forth below; provided, that such criteria may be revised from time
 
to time by Agent in
Agent's Permitted Discretion to address the
 
results of any information with respect to
 
the
Borrowers' business or
 
assets of which Agent
 
becomes aware after
 
the Closing Date, including
 
any
field examination
 
or appraisal
 
performed by
 
or received
 
by Agent
 
from time
 
to time
 
after the
Closing Date.
 
An item of Real Property shall not be included in Eligible Real Property if:
(a)
 
it is not identified
 
on Schedule E-2 to
 
the Agreement as of
 
the Closing Date,
(b)
 
a Borrower does not have good, valid, and marketable fee title thereto,
 
 
 
 
(c)
 
it is
 
not Real
 
Property with
 
respect to
 
which Agent
 
has received
(i) mortgagee title insurance policies
 
issued by a title
 
insurance company reasonably satisfactory
to Agent in amounts reasonably satisfactory to Agent (but in no
 
event less than the FMV thereof)
assuring Agent that
 
the Mortgages on
 
such Real Property
 
are valid and
 
enforceable first priority
mortgage Liens
 
on such
 
Real Property
 
free and
 
clear of
 
all defects
 
and encumbrances
 
except
Permitted Liens, and otherwise in
 
form and substance reasonably
 
satisfactory to Agent, (ii) ALTA
surveys in form
 
and substance reasonably
 
satisfactory to Agent,
 
(iii) phase-I environmental reports
with respect to each
 
parcel composing the Real
 
Property (the environmental
 
consultants retained
for such
 
reports, the
 
scope of
 
the reports,
 
and the
 
results thereof
 
of which
 
shall be
 
reasonably
satisfactory to Agent), and (iv) flood certifications
 
(and, if applicable, acceptable flood insurance
and FEMA form acknowledgements of insurance),
(d)
 
an Acceptable Appraisal of such item of Real Property has
 
not been
completed,
(e)
 
it is not
 
Real Property Collateral
 
subject to a
 
valid and perfected
 
first priority
Agent's Lien, or
(f)
 
it is subject to any Lien other than Permitted Liens of the
 
type described in
clauses (a), (b), (c), (g), or (k) of the definition thereof.
"Eligible Tooling Accounts"
 
means Eligible Accounts
owing in respect of the sale
of Tooling by Borrower.
 
"Employee Benefit Plan" means any employee
 
benefit plan within the meaning of
Section 3(3) of
 
ERISA, that is subject
 
to ERISA and (a)
 
that is or within
 
the preceding six (6)
 
years
has been sponsored, maintained or
 
contributed to by any Loan
 
Party or ERISA Affiliate
 
or (b) to
which any Loan Party or ERISA Affiliate has, or has
 
had at any time within the preceding six (6)
years, any liability, contingent or otherwise, other than a Multiemployer Plan.
"Environmental Action" means
 
any written complaint,
 
summons, citation, notice,
directive, order,
 
claim, litigation, investigation,
 
judicial or administrative
 
proceeding, judgment,
letter, or
 
other written
 
communication from
 
any Governmental
 
Authority, or
 
any third
 
party
involving violations
 
of Environmental
 
Laws or
 
releases of
 
Hazardous Materials
 
(a) from any
assets, properties, or businesses of any Borrower, any Subsidiary of any Borrower, or any of their
predecessors in
 
interest, (b)
 
from adjoining
 
properties or
 
businesses, or
 
(c) from or
 
onto any
facilities which received Hazardous Materials
 
generated by any Borrower,
 
any Subsidiary of any
Borrower, or any of their predecessors in interest.
"Environmental Law"
 
means any
 
applicable federal,
 
state, provincial,
 
foreign or
local statute, law, rule,
 
regulation, ordinance, code,
 
binding and enforceable
 
guideline, binding and
enforceable written policy,
 
or rule of common
 
law now or hereafter
 
in effect and
 
in each case as
amended, or any judicial or
 
administrative interpretation thereof, including any
 
judicial or
administrative order, consent decree or judgment, in each case, to the extent
 
binding on any Loan
Party or its Subsidiaries,
 
relating to the
 
environment, the effect
 
of the environment
 
on employee
health, or Hazardous Materials, in each case as amended from time to time.
 
 
 
 
 
 
 
 
 
 
 
 
 
"Environmental Liabilities" means all liabilities, monetary obligations, losses,
damages, costs
 
and expenses
 
(including all
 
reasonable fees,
 
disbursements and
 
expenses of
counsel, experts, or consultants, and
 
costs of investigation and feasibility
 
studies), fines, penalties,
sanctions, and interest
 
incurred under Environmental
 
Law, including
 
as a result
 
of any claim
 
or
demand, or
 
Remedial Action
 
required, by
 
any Governmental
 
Authority or
 
any third
 
party, and
which relate to any Environmental Action.
"Environmental Lien" means any Lien in favor of any
 
Governmental Authority for
Environmental Liabilities.
"Equipment" means equipment (as that
 
term is defined in the Code
 
or, to the extent
applicable, the PPSA).
"Equity Interests"
 
means, with
 
respect to
 
a Person,
 
all of
 
the shares,
 
options,
warrants, interests, participations, or
 
other equivalents (regardless of
 
how designated) of or
 
in such
Person, whether voting or
 
nonvoting, including capital stock
 
(or other ownership or
 
profit interests
or units), preferred stock, or any other
 
"equity security" (as such term is defined in
 
Rule 3a11-1 of
the General Rules and Regulations promulgated by the SEC under the Exchange Act).
"ERISA" means the Employee
 
Retirement Income Security Act
 
of 1974, as
amended, and any successor statute thereto.
"ERISA Affiliate
 
"
 
means (a) any Person
 
subject to
 
ERISA whose employees
 
are
treated as employed by the same employer as the employees of any Loan Party or its Subsidiaries
under IRC Section
 
414(b), (b) any trade
 
or business subject
 
to ERISA whose
 
employees are treated
as employed by the same
 
employer as the employees of
 
any Loan Party or its
 
Subsidiaries under
IRC Section 414(c), (c) solely for purposes of Section 302 of ERISA and Section 412 of the IRC,
any organization subject
 
to ERISA that
 
is a member
 
of an affiliated
 
service group of
 
which any
Loan Party
 
or any
 
of its
 
Subsidiaries is
 
a member under
 
IRC Section
 
414(m), or
 
(d) solely for
purposes of Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA that
is a party to an arrangement with
 
any Loan Party or any of its
 
Subsidiaries and whose employees
are aggregated
 
with the
 
employees of
 
such Loan
 
Party or
 
its Subsidiaries
 
under IRC
 
Section
414(o).
"EU Bail-In
 
Legislation Schedule"
 
means the
 
EU Bail-In
 
Legislation Schedule
published by the
 
Loan Market
 
Association (or
 
any successor
 
person), as
 
in effect
 
from time
 
to
time.
"Event of Default
 
"
 
has the meaning
 
specified therefor in
 
Section 8 of
 
this
Agreement.
"Excess" has the meaning specified therefor in Section 2.14 of this Agreement.
"Excess Availability"
 
means, as of any date of
 
determination, the amount equal to
Availability
minus
 
the aggregate amount, if any, of all trade payables of the
 
Loan Parties and their
Subsidiaries aged in excess of historical
 
levels with respect thereto and all book
 
overdrafts of the
Loan Parties and
 
their Subsidiaries in
 
excess of historical
 
practices with respect
 
thereto, in each
case as determined by Agent in its Permitted Discretion.
 
 
 
 
 
 
 
"Exchange Act" means the Securities Exchange
 
Act of 1934, as in effect
 
from time
to time.
"Exchange Rate
 
"
 
means and
 
refers to
 
the nominal
 
rate of
 
exchange (vis
 
-à-vis
Dollars) for a currency other
 
than Dollars published in the
 
Wall
 
Street Journal (Western
 
Edition)
on the
 
date of
 
determination (which
 
shall be
 
a Business
 
Day on
 
which the
 
Wall
 
Street Journal
(Western Edition)
 
is published), expressed as the
 
number of units of
 
such other currency per one
Dollar.
 
"Excluded Swap
 
Obligation" means,
 
with respect
 
to any
 
Loan Party,
 
any Swap
Obligation if, and
 
to the extent
 
that, all or
 
a portion of
 
the guaranty of
 
such Loan Party
 
of (including
by virtue of
 
the joint and
 
several liability provisions
 
of Section 2.16),
 
or the grant
 
by such Loan
Party of a
 
security interest to secure,
 
such Swap Obligation
 
(or any guaranty
 
thereof) is or
 
becomes
illegal under
 
the Commodity
 
Exchange Act
 
or any
 
rule, regulation
 
or order
 
of the
 
Commodity
Futures Trading Commission (or the application or official interpretation of any
 
thereof) by virtue
of such Loan
 
Party's failure for
 
any reason to
 
constitute an "eligible
 
contract participant" as
 
defined
in the Commodity Exchange
 
Act and the regulations
 
thereunder at the time
 
the guaranty of such
Loan Party
 
or the
 
grant of
 
such security
 
interest becomes
 
effective with
 
respect to
 
such Swap
Obligation.
 
If a Swap Obligation arises
 
under a master agreement governing more
 
than one swap,
such exclusion shall apply
 
only to the portion
 
of such Swap Obligation
 
that is attributable to
 
swaps
for which such guaranty or security interest is or becomes illegal.
"Excluded Taxes
 
"
 
means (i) any tax
 
imposed on the
 
net income
 
or net
 
profits of
any Lender or
 
any Participant (including
 
any branch profits
 
taxes), in each
 
case imposed by
 
the
jurisdiction (or by any
 
political subdivision or
 
taxing authority thereof)
 
in which such
 
Lender or
such Participant is organized or the
 
jurisdiction (or by any
 
political subdivision or taxing authority
thereof) in which such Lender's or such Participant's principal office
 
is located in or as a result of
a present or
 
former connection
 
between such
 
Lender or
 
such Participant
 
and the
 
jurisdiction or
taxing authority imposing the tax (other
 
than any such connection arising solely
 
from such Lender
or such Participant
 
having executed, delivered
 
or performed its
 
obligations or received
 
payment
under, or enforced its rights
 
or remedies under this Agreement or any other
 
Loan Document), (ii)
withholding taxes that would not have been imposed but
 
for a Lender's or a Participant's failure to
comply with the
 
requirements of Section
 
16.2 of this
 
Agreement, (iii) any United
 
States federal
withholding taxes that would be imposed on amounts payable to
 
a Foreign Lender based upon the
applicable withholding
 
rate in
 
effect at
 
the time
 
such Foreign
 
Lender becomes
 
a party
 
to this
Agreement (or designates a new
 
lending office, other than
 
a designation made at the
 
request of a
Loan Party),
 
except that
 
Excluded Taxes
 
shall not
 
include (A)
 
any amount
 
that such
 
Foreign
Lender (or its assignor,
 
if any) was previously entitled
 
to receive pursuant to
 
Section 16.1 of this
Agreement, if any, with respect to such withholding tax at the time such Foreign Lender becomes
a party to
 
this Agreement (or
 
designates a new
 
lending office), and
 
(B) additional United States
federal withholding taxes that
 
may be imposed
 
after the time such
 
Foreign Lender becomes a
 
party
to this
 
Agreement (or
 
designates a
 
new lending
 
office), as
 
a result
 
of a
 
change in
 
law, rule,
regulation, treaty,
 
order or
 
other decision
 
or other
 
Change in
 
Law with
 
respect to
 
any of
 
the
foregoing by any
 
Governmental Authority,
 
and (iv) any
 
United States federal
 
withholding taxes
imposed under FATCA.
 
 
 
 
 
 
 
 
 
 
 
 
 
"Existing Credit Facility" means the facilities
 
evidenced by that certain Amended
and Restated Credit Agreement,
 
initially dated as of
 
January 16, 2018, among
 
Borrower, KeyBank
National Association, as administrative agent, and the lenders and other parties thereto, as
amended prior to the date hereof.
"Extraordinary Advances"
 
has the meaning specified therefor in Section 2.3(d)(iii)
of this Agreement.
"Extraordinary Receipts
 
"
 
means (a)
 
so long
 
as no
 
Event of
 
Default has
 
occurred
and is continuing,
 
proceeds of judgments,
 
proceeds of settlements,
 
or other consideration
 
of any
kind received in connection
 
with any cause of action
 
or claim, and (b) if an
 
Event of Default has
occurred and is
 
continuing, any payments
 
received by any
 
Loan Party or
 
any of its
 
Subsidiaries
not in
 
the ordinary
 
course of
 
business (and
 
not consisting
 
of proceeds
 
described in
 
Section
2.4(e)(iii) of this Agreement) consisting of
 
(i) proceeds of judgments, proceeds of settlements,
 
or
other consideration of any kind received in connection with any cause of action
 
or claim (and not
consisting of proceeds described
 
in Section 2.4(e)(iii)
 
of this Agreement, but
 
including proceeds
of business interruption insurance),
 
(ii) indemnity payments (other than
 
to the extent such
indemnity payments are immediately payable
 
to a Person that is not
 
an Affiliate of any Loan
 
Party
or any of its Subsidiaries, and (iii) any purchase price adjustment received in connection with any
purchase agreement.
"FATCA
 
"
 
means Sections
 
1471 through
 
1474 of
 
the IRC,
 
as of
 
the date
 
of this
Agreement (or any amended
 
or successor
 
version that
 
is substantively
 
comparable and
 
not
materially more
 
onerous to
 
comply with),
 
and (a)
 
any current
 
or future
 
regulations or
 
official
interpretations thereof, (b) any agreements entered
 
into pursuant to Section 1471(b)(1)
 
of the IRC,
and (c)
 
any intergovernmental
 
agreement entered
 
into by
 
the United
 
States (or
 
any fiscal
 
or
regulatory legislation,
 
rules, or
 
practices adopted
 
pursuant to
 
any such
 
intergovernmental
agreement entered into in connection therewith).
"FCPA"
 
means the
 
Foreign Corrupt
 
Practices Act
 
of 1977,
 
as amended,
 
and the
rules and regulations thereunder.
"Federal Funds Rate" means,
 
for any period, a
 
fluctuating interest rate
per annum
 
equal to, for each day during
 
such period, the weighted average
 
of the rates on overnight
 
Federal
funds transactions
 
with members
 
of the
 
Federal Reserve
 
System, as
 
published on
 
the next
succeeding Business
 
Day by
 
the Federal
 
Reserve Bank
 
of New
 
York,
 
or, if
 
such rate
 
is not
 
so
published for any day which is a
 
Business Day, the average of the quotations for such day
 
on such
transactions received by Agent
 
from three Federal funds
 
brokers of recognized standing
 
selected
by it (and, if any such rate is below zero, then the rate determined pursuant to this definition shall
be deemed to be zero).
"Federal Reserve Bank of
 
New York's
 
Website"
 
means the website of the
 
Federal
Reserve Bank of New York
 
at xxxx://xxx.xxxxxxxxxx.xxx, or
 
any successor source.
"Fee Letter" means
 
that certain fee
 
letter, dated as of
 
even date with
 
this Agreement,
among Borrowers and Agent, in form and substance reasonably satisfactory to Agent.
 
 
 
 
 
 
 
"Fixed Charges"
 
means, with
 
respect to
 
any fiscal
 
period and
 
with respect
 
to
 
Borrowers determined
 
on a
 
consolidated basis
 
in accordance
 
with GAAP,
 
the sum,
 
without
duplication, of
 
(a) Interest Expense
 
required to
 
be paid
 
(other than
 
interest paid
 
-in-kind,
amortization of financing
 
fees, and other
 
non-cash Interest
 
Expense) during such
 
period,
(b) scheduled principal payments
 
in respect
 
of Indebtedness
 
that are
 
required to
 
be paid
 
during
such period, (c) all federal, state,
 
and local income taxes required
 
to be paid during
 
such period (to
the extent not included in EBITDA, net
 
of income tax refunds received in cash
 
during such period
in an amount not to exceed such income taxes paid)
,
(d) all Restricted Payments paid (whether in
cash or other
 
property, other than Equity Interests
 
that are not Disqualified
 
Equity Interests) during
such period, (e) cash
 
payments in respect of
 
post-retirement benefits consisting of
 
health insurance
and life insurance, and (f) to the extent not otherwise deducted from EBITDA for such period, all
payments required to be made during such period in respect of any funding deficiency or funding
shortfall with respect to any Pension Plan or for any Withdrawal Liability.
"Fixed Charge Coverage
 
Ratio" means, with respect
 
to any fiscal period
 
and with
respect to Borrowers
 
determined on a
 
consolidated basis in
 
accordance with GAAP,
 
the ratio of
(a) EBITDA for
 
such period
minus
 
Unfinanced Capital
 
Expenditures made
 
(to the
 
extent not
already incurred in
 
a prior period)
 
or incurred during
 
such period, to
 
(b) Fixed Charges for
 
such
period.
"Flow of Funds
 
Agreement" means
 
a flow of
 
funds agreement,
 
dated as
 
of even
date with this
 
Agreement, in form
 
and substance reasonably
 
satisfactory to Agent,
 
executed and
delivered by Borrowers and Agent.
"FMV"
 
means, as of any date of
 
determination, the fair market value of
 
Borrowers'
Eligible Real
 
Property that
 
is estimated
 
to be
 
recoverable in
 
an orderly
 
sale in
 
a 12
 
month
marketing period of such
 
Eligible Real Property net
 
of all associated
 
costs and expenses
 
of such
sale, such
 
value to
 
be as
 
specified in
 
the most
 
recent Acceptable
 
Appraisal of
 
Real Property;
provided, that, for
 
purposes of the
 
R/E Borrowing Base,
 
the FMV of
 
any Eligible Real
 
Property
shall not exceed the lesser of (x) amount of title insurance obtained by Agent with respect to such
Eligible Real Property
 
and (y) the
 
maximum amount
 
secured by the
 
Mortgage on such
 
Eligible
Real Property
"Foreign Cash Equivalents"
 
means (a) certificates of deposit, bankers'
 
acceptances,
or time deposits
 
maturing within one
 
year from the
 
date of acquisition
 
thereof, in each
 
case payable
in an Agreed
 
Currency and issued
 
by any bank
 
organized under the
 
laws of any
 
Specified State
and having
 
at the
 
date of
 
acquisition thereof
 
combined capital
 
and surplus
 
of not
 
less than
$1,000,000,000 (calculated
 
at the
 
then applicable
 
Exchange Rate),
 
(b) Deposit Accounts
maintained with
 
any bank
 
that satisfies
 
the criteria
 
described in
 
clause (a)
 
above, and
(c) Investments in money market funds
 
substantially all of whose assets
 
are invested in the
 
types
of assets described in clauses (a) through (b) above.
"Foreign Lender" means
 
any Lender or
 
Participant that is
 
not a United
 
States person
within the meaning of IRC section 7701(a)(30).
 
 
 
 
 
 
 
 
 
 
 
 
"Foreign Subsidiary" means
 
any direct or
 
indirect Subsidiary of
 
any Loan Party
 
that
is organized under
 
the laws of
 
any jurisdiction other
 
than the United
 
States, any state
 
thereof or
the District of Columbia.
"Funded Indebtedness" means, as
 
of any date of
 
determination, all Indebtedness for
borrowed money or letters
 
of credit of Borrowers,
 
determined on a consolidated
 
basis in
accordance with GAAP,
 
including, in any event, but without duplication, with respect
 
to the Loan
Parties and
 
their Subsidiaries,
 
the Revolver
 
Usage, the
 
Term Loan,
 
and the
 
amount of
 
their
Capitalized Lease Obligations.
"Funding Date"
 
means the date on which a Borrowing occurs.
"Funding Losses" has the
 
meaning specified therefor in
 
Section 2.12(b)(ii) of this
Agreement.
"GAAP" means generally accepted accounting
 
principles as in effect from
 
time to
time in the United States, consistently applied.
"Governing Documents"
 
means, with
 
respect to
 
any Person,
 
the certificate
 
or
articles of incorporation, by-laws, or other organizational documents of such Person.
"Governmental Authority"
 
means the
 
government of
 
any nation
 
or any
 
political
subdivision thereof, whether at the national, state, territorial, provincial, county, municipal or any
other level,
 
and any
 
agency, authority,
 
instrumentality, regulatory
 
body, court,
 
central bank
 
or
other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers
or functions
 
of, or
 
pertaining to,
 
government (including
 
any supra-national
 
bodies such
 
as the
European Union or the European Central Bank).
"Guarantor" means
 
(a) each Person
 
that guaranties
 
all or
 
a portion
 
of the
Obligations, including
 
Canadian Loan
 
Parties and
 
any Person
 
that is
 
a "Guarantor"
 
under the
Guaranty and Security
 
Agreement, and (b)
 
each other Person
 
that becomes a
 
guarantor after the
Closing Date pursuant to Section 5.11 of this Agreement.
"Guaranty and
 
Security Agreement"
 
means a
 
guaranty and
 
security agreement,
dated as of even
 
date with this Agreement,
 
in form and substance
 
reasonably satisfactory to Agent,
executed and delivered by each of the Loan Parties to Agent.
"Hazardous Materials" means (a)
 
substances that are defined
 
or listed in,
 
or
otherwise classified
 
pursuant to,
 
any applicable
 
laws or
 
regulations as
 
"hazardous substances,"
"hazardous materials," "hazardous wastes," "toxic substances," or any other formulation intended
to define,
 
list, or
 
classify substances
 
by reason
 
of deleterious
 
properties such
 
as ignitability,
corrosivity, reactivity,
 
carcinogenicity, reproductive
 
toxicity, or
 
"EP toxicity", (b) oil, petroleum,
or petroleum
 
derived substances,
 
natural gas,
 
natural gas
 
liquids, synthetic
 
gas, drilling
 
fluids,
produced waters, and other wastes associated with the exploration, development, or production of
crude oil, natural gas, or geothermal resources,
 
(c) any flammable substances or explosives or any
radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million.
 
 
 
 
 
 
 
 
 
 
 
 
 
"Hedge Agreement" means
 
a "swap agreement" as
 
that term is defined
 
in Section
101(53B)(A) of the Bankruptcy Code.
"Hedge Obligations" means any and all obligations
 
or liabilities, whether absolute
or contingent, due or to become due, now existing or hereafter arising, of each
 
Loan Party and its
Subsidiaries arising under, owing pursuant to, or existing in respect
 
of Hedge Agreements entered
into with one or more of the Hedge Providers.
"Hedge Provider
 
"
 
means any
 
Bank Product
 
Provider that
 
is a
 
party to
 
a Hedge
Agreement with a
 
Loan Party or
 
its Subsidiaries or otherwise
 
provides Bank Products under
 
clause
(f) of the
 
definition thereof; provided,
 
that if, at
 
any time, a
 
Lender ceases to
 
be a Lender
 
under
this Agreement (prior to
 
the payment in full
 
of the Obligations), then,
 
from and after the
 
date on
which it ceases to be
 
a Lender thereunder, neither it nor any
 
of its Affiliates shall constitute Hedge
Providers and the
 
obligations with
 
respect to Hedge
 
Agreements entered
 
into with
 
such former
Lender or any of its Affiliates shall no longer constitute Hedge Obligations.
 
"Increase" has the meaning specified therefor in Section 2.14.
"Increase Date"
 
has the meaning specified therefor in Section 2.14.
"Increase Joinder"
 
has the meaning specified therefor in Section 2.14.
"Increased Reporting
 
Event" means
 
if at
 
any time
 
Availability is
 
less than
 
the
greater of (a) 15% of the Maximum Revolver Amount, and (b) $3,750,000.
"Increased Reporting Period" means the period commencing after
 
the continuance
of an Increased Reporting Event and
 
continuing until the date when no Increased
 
Reporting Event
has occurred for 30 consecutive days.
"Indebtedness" as
 
to any
 
Person means
 
(a) all obligations
 
of such
 
Person for
borrowed money,
 
(b) all obligations
 
of such
 
Person evidenced
 
by bonds,
 
debentures, notes,
 
or
other similar instruments and all reimbursement or other obligations in respect of letters of credit,
bankers acceptances, or
 
other financial products,
 
(c) all obligations of
 
such Person as
 
a lessee under
Capital Leases, (d)
 
all obligations or
 
liabilities of others
 
secured by a
 
Lien on any
 
asset of such
Person, irrespective of whether such
 
obligation or liability is
 
assumed, (e) all obligations of
 
such
Person to
 
pay the
 
deferred purchase
 
price of
 
assets (other
 
than trade
 
payables incurred
 
in the
ordinary course of business
 
and repayable in
 
accordance with customary
 
trade practices and,
 
for
the avoidance of doubt, other than royalty payments payable in the ordinary course of business in
respect of non-exclusive licenses) and, to the extent required to be recognized as a liability on the
balance sheet of
 
such Person under
 
GAAP,
 
any earn-out or
 
similar obligations, (f)
 
all monetary
obligations of
 
such Person
 
owing under
 
Hedge Agreements
 
(which amount
 
shall be
 
calculated
based on
 
the amount
 
that would
 
be payable
 
by such
 
Person if
 
the Hedge
 
Agreement were
terminated on the date of
 
determination), (g) any Disqualified Equity Interests
 
of such Person, and
(h) any obligation
 
of such
 
Person guaranteeing
 
or intended
 
to guarantee
 
(whether directly
 
or
indirectly guaranteed, endorsed, co-made,
 
discounted, or sold with recourse)
 
any obligation of any
other Person that
 
constitutes Indebtedness under
 
any of clauses
 
(a) through (g)
 
above.
 
For purposes
of this definition,
 
(i) the amount of
 
any Indebtedness represented
 
by a guaranty
 
or other similar
instrument shall
 
be the
 
lesser of
 
the principal
 
amount of
 
the obligations
 
guaranteed and
 
still
 
 
 
 
 
 
 
 
 
 
 
 
 
outstanding and the maximum amount
 
for which the guaranteeing Person
 
may be liable pursuant
to the terms
 
of the instrument
 
embodying such Indebtedness,
 
and (ii) the amount
 
of any
Indebtedness which is limited or is non-recourse to a Person or for which
 
recourse is limited to an
identified asset
 
shall be
 
valued at
 
the lesser
 
of (A)
 
if applicable,
 
the limited
 
amount of
 
such
obligations, and (B) if applicable, the fair market value of such assets securing such obligation.
"Indemnified Liabilities" has the meaning specified therefor in Section 10.3 of this
Agreement.
"Indemnified Person
 
"
 
has the
 
meaning specified
 
therefor in
 
Section 10.3
 
of this
Agreement.
"Indemnified Taxes
 
"
 
means, (a) Taxes,
 
other than Excluded Taxes,
 
imposed on or
with respect to
 
any payment made
 
by, or
 
on account of
 
any obligation of,
 
any Loan Party under
any Loan
 
Document, and
 
(b) to the
 
extent not
 
otherwise described
 
in the
 
foregoing clause
 
(a),
Other Taxes.
"Initial M/E
 
Term Loan"
 
has the
 
meaning specified
 
therefor in
 
Section 2.2(a) of
this Agreement.
"Insolvency Laws" means,
 
collectively, (i)
 
the Bankruptcy Code,
 
(ii) the
Bankruptcy and Insolvency
 
Act
 
(Canada), (iii)
 
the
Companies' Creditors
 
Arrangement Act
 
(Canada), (iv)
 
the
Winding-Up and
 
Restructuring Act
 
(Canada), (v)
 
the
Canada Business
Corporations Act
 
(Canada) and any other
 
corporate statutes where such
 
statute is used by a
 
Person
to propose
 
an arrangement
 
involving the
 
compromise of
 
the claims
 
of creditors;
 
and (vi)
 
any
similar legislation in a
 
relevant jurisdiction, in each
 
case as applicable and
 
as in effect from
 
time
to time.
"Insolvency Proceeding"
 
means any
 
proceeding commenced
 
by or
 
against any
Person under any Insolvency Law.
"Intercompany Subordination
 
Agreement" means
 
an intercompany subordination
agreement, dated as of even date with this Agreement,
 
executed and delivered by each Loan Party
and each of its
 
Subsidiaries, and Agent, the
 
form and substance of
 
which is reasonably satisfactory
to Agent.
"Interest Expense"
 
means, for any period,
 
the aggregate of the
 
interest expense of
 
Borrowers for such period, determined on a consolidated basis in accordance with GAAP.
"Interest Period" means,
 
with respect to
 
each LIBOR
 
Rate Loan, a
 
period
commencing on the date
 
of the making of
 
such LIBOR Rate Loan
 
(or the continuation of
 
a LIBOR
Rate Loan or
 
the conversion of
 
a Base Rate
 
Loan to a
 
LIBOR Rate Loan)
 
and ending 1,
 
3, or 6
months months thereafter; provided, that (a) interest shall accrue
 
at the applicable rate based upon
the LIBOR Rate from and including the first day
 
of each Interest Period to, but excluding, the day
on which any Interest Period expires, (b) any Interest Period that
 
would end on a day that is not a
Business Day shall
 
be extended
 
to the next
 
succeeding Business Day
 
unless such Business
 
Day
falls in another calendar month, in
 
which case such Interest Period shall
 
end on the next preceding
Business Day,
 
(c) with respect
 
to an
 
Interest Period
 
that begins
 
on the
 
last Business
 
Day of
 
a
 
 
 
 
 
 
 
 
 
 
 
 
 
calendar month (or on a
 
day for which there is
 
no numerically corresponding day in
 
the calendar
month at the end of such Interest Period), the Interest Period shall end
 
on the last Business Day of
the calendar month
 
that is 1,
 
3 or 6
 
months after the
 
date on which
 
the Interest Period
 
began, as
applicable, and (d) Borrowers may
 
not elect an
 
Interest Period which will
 
end after the Maturity
Date.
"Inventory" means inventory (as
 
that term is
 
defined in the
 
Code or,
 
to the extent
applicable, the PPSA).
"Inventory Reserves
 
"
 
means, as
 
of any
 
date of
 
determination, (a)
 
Landlord
Reserves in respect
 
of Inventory, and (b)
 
those reserves that
 
Agent deems necessary
 
or appropriate,
in its
 
Permitted Discretion
 
and subject
 
to Section
 
2.1(c), to
 
establish and
 
maintain (including
reserves for slow moving Inventory
 
and Inventory shrinkage) with respect
 
to Eligible Inventory or
the Maximum Revolver Amount, including based on the results of appraisals.
"Investment" means, with respect to any Person, any investment by such Person in
any other Person (including Affiliates)
 
in the form of
 
loans, guarantees, advances, capital
contributions (excluding (a)
 
commission, travel, and
 
similar advances to
 
officers and employees
of such
 
Person made
 
in the
 
ordinary course
 
of business,
 
and (b)
bona fide
 
accounts receivable
arising in the ordinary course of business), or acquisitions of Indebtedness, Equity Interests, or all
or substantially all of
 
the assets of
 
such other Person
 
(or of any division
 
or business line of
 
such
other Person), and
 
any other items that
 
are or would be
 
classified as investments on
 
a balance sheet
prepared in accordance with
 
GAAP.
 
The amount of any
 
Investment shall be the
 
original cost of
such Investment
plus
 
the cost
 
of all
 
additions thereto,
 
without any
 
adjustment for
 
increases or
decreases in value, or write-ups, write-downs, or write-offs with respect to such Investment.
"IRC" means the Internal Revenue Code of 1986, as in effect from time to time.
"ISP" means, with respect to any Letter of Credit, the International Standby
Practices 1998
 
(International Chamber
 
of Commerce
 
Publication No.
 
590) and
 
any version
 
or
revision thereof accepted by the Issuing Bank for use.
"Issuer Document" means,
 
with respect to
 
any Letter
 
of Credit,
 
a letter of
 
credit
application, a letter of credit
 
agreement, or any other document,
 
agreement or instrument entered
into (or to be
 
entered into) by a
 
Borrower in favor of
 
Issuing Bank and relating
 
to such Letter of
Credit.
"Issuing Bank"
 
means Xxxxx
 
Fargo or
 
any other
 
Lender that,
 
at the
 
request of
Borrowers and with the
 
consent of Agent, agrees,
 
in such Lender's sole
 
discretion, to become an
Issuing Bank for
 
the purpose
 
of issuing
 
Letters of
 
Credit pursuant
 
to Section
 
2.11 of
 
this
Agreement, and Issuing Bank shall be a Lender.
"Joinder" means a joinder agreement substantially in
 
the form of Exhibit J-1
 
to this
Agreement.
"Landlord Reserve" means, as to each location at which a Borrower has Inventory,
M&E or books and
 
records located and as
 
to which a Collateral
 
Access Agreement has not
 
been
received by Agent, a
 
reserve in an amount
 
equal to 3 months'
 
rent, storage charges,
 
fees or other
 
 
 
 
 
 
amounts under the lease
 
or other applicable agreement
 
relative to such location
 
or, if greater
 
and
Agent so elects, the number of months'
 
rent, storage charges, fess or
 
other amounts for which the
landlord, bailee, warehouseman or other
 
property owner will have, under
 
applicable law, a Lien in
the Inventory or M&E of
 
such Borrower to secure the
 
payment of such amounts under
 
the lease or
other applicable agreement relative to such location.
"Lead Arranger" has the meaning set forth in the preamble to this Agreement.
"Lender" has the meaning
 
set forth in the
 
preamble to this Agreement,
 
shall include
Issuing Bank and the Swing
 
Lender, and shall
 
also include any other Person
 
made a party to this
Agreement pursuant to
 
the provisions of
 
Section 13.1 of
 
this Agreement and
 
"Lenders" means each
of the Lenders or any one or more of them.
"Lender Group" means each of the
 
Lenders (including Issuing Bank and the
 
Swing
Lender) and Agent, or any one or more of them.
"Lender Group
 
Expenses"
 
means all
 
(a) documented out-of-pocket
 
costs or
expenses (including taxes
 
and insurance premiums)
 
required to be
 
paid by any
 
Loan Party or its
Subsidiaries under any of the Loan Documents that are paid, advanced, or incurred by the Lender
Group, (b) documented out-of-pocket
 
fees or charges paid
 
or incurred by
 
Agent in connection with
the Lender Group's transactions
 
with each Loan Party and
 
its Subsidiaries under any of
 
the Loan
Documents, including, photocopying, notarization,
 
couriers and messengers, telecommunication,
public record searches, filing fees, recording fees, publication,
 
real estate surveys, real estate title
policies and
 
endorsements, and
 
environmental audits,
 
(c) Agent's customary
 
fees and
 
charges
imposed or incurred in connection with any background checks or OFAC/PEP searches related to
any Loan Party or its Subsidiaries, (d) Agent's customary fees and charges (as adjusted from time
to time) with respect to the disbursement of funds (or the receipt of funds) to or for the account of
any Borrower (whether by wire
 
transfer or otherwise), together
 
with any out
 
-of-pocket costs and
expenses incurred in
 
connection therewith, (e)
 
customary charges imposed
 
or incurred by
 
Agent
resulting from the dishonor
 
of checks payable by
 
or to any Loan
 
Party, (f) reasonable, documented
out-of-pocket costs and
 
expenses paid or
 
incurred by the
 
Lender Group to correct
 
any default or
enforce any provision of the
 
Loan Documents, or during the
 
continuance of an Event
 
of Default,
in gaining possession
 
of, maintaining, handling,
 
preserving, storing, shipping,
 
selling, preparing
for sale, or advertising to sell the Collateral,
 
or any portion thereof, irrespective of whether
 
a sale
is consummated, (g)
 
field examination, appraisal,
 
and valuation fees
 
and expenses of
 
Agent related
to any field examinations, appraisals, or valuation to the extent
 
of the fees and charges (and up to
the amount
 
of any
 
limitation) provided
 
in Section
 
5.7(c) of
 
this Agreement,
 
(h) Agent's and
Lenders' reasonable,
 
documented costs
 
and expenses (including
 
reasonable and
 
documented
attorneys' fees
 
and expenses)
 
relative to
 
third party
 
claims or
 
any other
 
lawsuit or
 
adverse
proceeding paid or incurred, whether in enforcing or defending the Loan Documents or otherwise
in connection with the transactions contemplated by the Loan Documents,
 
Agent's Liens in and to
the Collateral, or the
 
Lender Group's relationship with
 
any Loan Party or
 
any of its Subsidiaries,
(i) Agent's reasonable
 
and documented
 
out-of-pocket costs
 
and expenses
 
(including reasonable
and documented
 
attorneys' fees
 
and due
 
diligence expenses)
 
incurred in
 
advising, structuring,
drafting, reviewing, administering
 
(including travel, meals,
 
and lodging), syndicating
 
(including
reasonable costs and
 
expenses relative to
 
the rating of
 
the Term
 
Loan, CUSIP,
 
DXSyndicate™,
SyndTrak or
 
other communication
 
costs incurred
 
in connection
 
with a
 
syndication of
 
the loan
 
 
 
 
 
 
 
 
 
 
 
 
 
 
facilities), or
 
amending, waiving,
 
or modifying
 
the Loan
 
Documents, and
 
(j) Agent's and
 
each
Lender's reasonable and
 
documented costs and
 
expenses (including reasonable
 
and documented
attorneys, accountants, consultants, and other advisors fees
 
and expenses) incurred in terminating,
enforcing (including
 
attorneys, accountants,
 
consultants, and
 
other advisors
 
fees and
 
expenses
incurred in
 
connection with
 
a "workout,"
 
a "restructuring,"
 
or an
 
Insolvency Proceeding
concerning any Loan Party or any of its Subsidiaries or in exercising rights or remedies under the
Loan Documents), or
 
defending the Loan
 
Documents, irrespective of
 
whether a lawsuit
 
or other
adverse proceeding is brought, or
 
in taking any enforcement action
 
or any Remedial Action with
respect to the Collateral.
"Lender Group Representatives"
 
has the meaning specified
 
therefor in Section 17.9
of this Agreement.
"Lender-Related Person"
 
means, with respect to any
 
Lender, such Lender, together
with such Lender's Affiliates, officers, directors, employees, attorneys, and agents.
"Letter of Credit"
 
means a letter
 
of credit (as
 
that term is
 
defined in the
 
Code) issued
by Issuing Bank.
"Letter of Credit Collateralization" means
 
either (a) providing cash collateral
(pursuant to
 
documentation reasonably
 
satisfactory to
 
Agent (including
 
that Agent
 
has a
 
first
priority perfected Lien in such cash collateral), including provisions that specify that the Letter of
Credit Fees and
 
all commissions,
 
fees, charges
 
and expenses provided
 
for in Section
 
2.11(k) of
this Agreement (including
 
any fronting fees)
 
will continue to
 
accrue while the
 
Letters of Credit
are outstanding) to be held by Agent for the benefit of
 
the Revolving Lenders in an amount equal
to 105%
 
of the
 
then existing
 
Letter of
 
Credit Usage,
 
(b) delivering to
 
Agent documentation
executed by
 
all beneficiaries
 
under the
 
Letters of
 
Credit, in
 
form and
 
substance reasonably
satisfactory to
 
Agent and
 
Issuing Bank,
 
terminating all
 
of such
 
beneficiaries' rights
 
under the
Letters of
 
Credit, or
 
(c) providing Agent
 
with a
 
standby letter
 
of credit,
 
in form
 
and substance
reasonably satisfactory to
 
Agent, from a commercial
 
bank acceptable to
 
Agent (in its
 
sole
discretion) in
 
an amount
 
equal to
 
105% of
 
the then
 
existing Letter
 
of Credit
 
Usage (it
 
being
understood that
 
the Letter
 
of Credit
 
Fee and
 
all fronting
 
fees set
 
forth in
 
this Agreement
 
will
continue to accrue
 
while the Letters
 
of Credit are
 
outstanding and that
 
any such fees
 
that accrue
must be an amount that can be drawn under any such standby letter of credit).
"Letter of Credit Disbursement" means a payment made by Issuing Bank
 
pursuant
to a Letter of Credit.
"Letter of Credit Exposure" means, as of any date of determination with respect to
any Lender, such Lender's
 
participation in the Letter of
 
Credit Usage pursuant to
 
Section 2.11(e)
on such date.
"Letter of Credit Fee"
 
has the meaning
 
specified therefor in Section
 
2.6(b) of this
Agreement.
"Letter of Credit Indemnified Costs"
 
has the meaning specified therefor in Section
2.11(f) of this Agreement.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
"Letter of
 
Credit Related
 
Person" has
 
the meaning
 
specified therefor
 
in Section
2.11(f) of this Agreement.
"Letter of Credit Sublimit"
 
means $2,000,000.
"Letter of Credit Usage" means, as of any date of determination, the sum of (a) the
aggregate undrawn amount of
 
all outstanding Letters of
 
Credit,
plus
 
(b) the aggregate amount of
outstanding reimbursement
 
obligations with
 
respect to
 
Letters of
 
Credit which
 
remain
unreimbursed or which have not been paid through a Revolving Loan.
"LIBOR Deadline"
 
has the meaning specified therefor in Section 2.12(b)(i)
 
of this
Agreement.
"LIBOR Notice" means a written
 
notice in the form of
 
Exhibit L-1 to this
Agreement.
"LIBOR Option"
 
has the
 
meaning specified
 
therefor in
 
Section 2.12(a)
 
of this
Agreement.
"LIBOR Rate" means
 
the greater of
 
(a) 0.75%
per annum
 
and (b) the
 
rate
per annum
 
as published by
 
ICE Benchmark Administration
 
Limited (or any
 
successor page or
 
other
commercially available source
 
as the Agent
 
may designate from
 
time to time)
 
as of 11:00
 
a.m.,
London time, two Business Days prior to the commencement of the requested Interest Period, for
a term, and
 
in an amount,
 
comparable to the
 
Interest Period and
 
the amount of
 
the LIBOR Rate
Loan requested (whether
 
as an initial
 
LIBOR Rate Loan
 
or as
 
a continuation
 
of a LIBOR
 
Rate
Loan or as a conversion of a Base Rate Loan to a LIBOR Rate Loan) by
 
Borrowers in accordance
with this Agreement (and, if any such published rate is below zero, then the LIBOR Rate shall
 
be
deemed to be zero).
 
Each determination of the LIBOR Rate shall be made by the Agent and shall
be conclusive in the absence of manifest error.
"LIBOR Rate Loan"
 
means each portion
 
of a Revolving
 
Loan or the
 
Term Loan
that bears interest at a rate determined by reference to the LIBOR Rate.
"LIBOR Rate Margin" means
 
the Revolving Loan
 
LIBOR Rate Margin
 
or the Term
Loan LIBOR Rate Margin, as applicable.
"Lien" means
 
any mortgage,
 
deed of
 
trust, pledge,
 
hypothecation, assignment,
charge, deposit arrangement, encumbrance, easement,
 
lien (statutory or other),
 
security interest, or
other security arrangement and
 
any other preference, priority,
 
or preferential arrangement of
 
any
kind or nature
 
whatsoever, including
 
any conditional sale
 
contract or other
 
title retention
agreement, the interest of a lessor
 
under a Capital Lease and any
 
synthetic or other financing lease
having substantially the same economic effect as any of the foregoing.
"Loan" means any Revolving Loan, Swing Loan, Extraordinary Advance, or Term
Loan made (or to be made) hereunder.
"Loan Account
 
"
 
has the
 
meaning specified
 
therefor in
 
Section 2.9
 
of this
Agreement.
 
 
 
 
 
 
 
 
 
 
 
 
 
"Loan Documents"
 
means this Agreement, the Control Agreements, the Copyright
Security Agreement, any
 
Borrowing Base Certificate,
 
the Fee Letter,
 
the Guaranty and
 
Security
Agreement, the
 
Intercompany Subordination
 
Agreement, any
 
Issuer Documents,
 
the Letters
 
of
Credit, the Loan Manager Side Letter, the Canadian Guaranty, the Canadian Security Documents,
the Mortgages, the
 
Patent Security Agreement,
 
the Trademark
 
Security Agreement, any
 
note or
notes executed by
 
Borrowers in connection
 
with this Agreement
 
and payable to
 
any member of
the Lender Group,
 
and any other
 
instrument or agreement
 
entered into, now
 
or in the
 
future, by
any Loan Party or any
 
of its Subsidiaries and any member
 
of the Lender Group in connection
 
with
this Agreement (but specifically excluding Bank Product Agreements).
"Loan Manager
 
Side Letter" means
 
that certain
 
letter agreement
 
between the
Borrowers and Xxxxx Fargo regarding the terms under which Xxxxx
 
Fargo will provide services to
the Borrowers in respect of Xxxxx 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 X.X. 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.
 
 
 
 
 
"Xxxxx'x" has the
 
meaning specified therefor
 
in the definition
 
of Domestic Cash
Equivalents.
"Mortgages" means, individually
 
and collectively, one or more
 
mortgages, charges,
deeds of
 
trust, or
 
deeds to
 
secure debt,
 
executed and
 
delivered by
 
a Loan
 
Party or
 
one of
 
its
Subsidiaries in
 
favor of
 
Agent, in
 
form and
 
substance reasonably
 
satisfactory to
 
Agent, that
encumber the Real Property Collateral.
"Multiemployer Plan" means any multiemployer
 
plan within the meaning of
Section 3(37) or 4001(a)(3)
 
of ERISA, that is
 
subject to ERISA, with
 
respect to which any
 
Loan
Party or
 
ERISA Affiliate
 
has an
 
obligation to
 
contribute or
 
has any
 
liability, contingent
 
or
otherwise or could
 
be assessed withdrawal
 
liability assuming a complete
 
withdrawal under Section
4203 of ERISA from any Multiemployer Plan.
"Net Cash Proceeds"
 
means:
(a)
 
with respect
 
to any
 
sale or
 
disposition by
 
any Loan
 
Party or
 
any of
 
its
Subsidiaries (other
 
than any
 
Mexican Subsidiary)
 
of assets
 
(other than
 
Mexican Term
 
Loan
Collateral), the
 
amount of
 
cash proceeds
 
received (directly
 
or indirectly)
 
from time
 
to time
(whether as initial consideration
 
or through the payment
 
of deferred consideration) by
 
or on behalf
of such
 
Loan Party
 
or such
 
Subsidiary, in
 
connection therewith
 
after deducting
 
therefrom only
(i) the amount
 
of any
 
Indebtedness secured
 
by any
 
Permitted Lien
 
on any
 
asset (other
 
than
(A) Indebtedness owing to Agent
 
or any Lender under
 
this Agreement or the
 
other Loan
Documents and (B) Indebtedness assumed by the purchaser
 
of such asset) which is required to be,
and is, repaid in
 
connection with such sale
 
or disposition, (ii)
 
reasonable fees, commissions, and
expenses related
 
thereto and
 
required to
 
be paid
 
by such
 
Loan Party
 
or such
 
Subsidiary in
connection with such
 
sale or disposition,
 
(iii) taxes paid or
 
payable to any
 
taxing authorities
 
by
such Loan Party or such
 
Subsidiary in connection with such sale
 
or disposition, in each case to
 
the
extent, but only to the extent, that the amounts
 
so deducted are, at the time of receipt
 
of such cash,
actually paid
 
or payable
 
to a
 
Person that
 
is not
 
an Affiliate
 
of any
 
Loan Party
 
or any
 
of its
Subsidiaries, and
 
are properly
 
attributable to
 
such transaction,
 
and (iv)
 
all amounts
 
that are
 
set
aside as a reserve
 
(A) for adjustments in respect
 
of the purchase price
 
of such assets, (B)
 
for any
liabilities associated with
 
such sale or
 
casualty, to
 
the extent such
 
reserve is required
 
by GAAP,
and (C) for the payment of
 
unassumed liabilities relating to the
 
assets sold or otherwise disposed
of at the
 
time of, or
 
within 30 days
 
after, the
 
date of such
 
sale or other
 
disposition, to the
 
extent
that in each case the funds described above in this clause (iv) are (x) deposited into escrow with a
third party escrow
 
agent or
 
set aside
 
in a
 
separate Deposit
 
Account that
 
is subject
 
to a
 
Control
Agreement in favor of Agent, and
 
(y) paid to Agent as a prepayment
 
of the applicable Obligations
in accordance with Section
 
2.4(e) of this Agreement
 
at such time when
 
such amounts are no
 
longer
required to be set aside as such a reserve; and
(b)
 
with respect to the issuance or incurrence of any Indebtedness by any Loan
Party or any of its Subsidiaries,
 
or the issuance by any Loan
 
Party or any of its Subsidiaries of
 
any
Equity Interests, the aggregate
 
amount of cash received
 
(directly or indirectly) from
 
time to time
(whether as initial consideration or through the
 
payment or disposition of deferred consideration)
by or
 
on behalf
 
of such
 
Loan Party
 
or such
 
Subsidiary in
 
connection with
 
such issuance
 
or
incurrence, after deducting therefrom only (i) reasonable fees, commissions, and expenses related
 
 
 
 
 
 
 
thereto and required
 
to be
 
paid by such
 
Loan Party or
 
such Subsidiary in
 
connection with such
issuance or incurrence, and (ii) taxes paid or payable to any taxing authorities by such Loan Party
or such Subsidiary in connection with
 
such issuance or incurrence, in each
 
case to the extent, but
only to the extent,
 
that the amounts
 
so deducted are, at
 
the time of
 
receipt of such cash,
 
actually
paid or payable to a
 
Person that is not an
 
Affiliate of any Loan Party
 
or any of its Subsidiaries,
 
and
are properly attributable to such transaction.
"Net Recovery Percentage"
 
means, as of any date of determination, the percentage
of the
 
book value
 
of Borrowers'
 
Inventory that
 
is estimated
 
to be
 
recoverable in
 
an orderly
liquidation of
 
such Inventory
 
net of
 
all associated
 
costs and
 
expenses of
 
such liquidation,
 
such
percentage to be
 
determined as to
 
each category of
 
Inventory and to
 
be as specified
 
in the most
recent Acceptable Appraisal of Inventory.
"NOLV"
 
means, as of any date of
 
determination, with respect to Eligible
 
M&E of
any Person,
 
the value
 
of such
 
Eligible M&E
 
that is
 
estimated to
 
be recoverable
 
in an
 
orderly
liquidation of such Eligible M&E, net
 
of all associated costs and expenses
 
of such liquidation, as
determined based
 
upon the
 
most recent
 
Acceptable Appraisal
 
of M&E;
 
provided that
 
if such
Acceptable Appraisal does
 
not provide the
 
costs and expenses
 
of such liquidation
 
on an item
 
by
item basis,
 
then costs
 
and expenses
 
of liquidation
 
for each
 
item of
 
Eligible M&E
 
will be
 
such
amount as determined by Agent in its Permitted Discretion.
"Non-Consenting Lender" has the meaning specified therefor in Section 14.2(a) of
this Agreement.
"Non-Defaulting Lender" means each Lender other than a Defaulting Lender.
"Notification Event" means (a) the occurrence of a "reportable event" described in
Section 4043 of
 
ERISA for which
 
the 30-day notice
 
requirement has not
 
been waived by
 
applicable
regulations issued by the PBGC, (b) the withdrawal of any Loan
 
Party or ERISA Affiliate from a
Pension Plan
 
during a plan
 
year in which
 
it was
 
a "substantial employer"
 
as defined in
 
Section
4001(a)(2) of
 
ERISA, (c)
 
the termination
 
of a
 
Pension Plan,
 
the filing
 
of a
 
notice of
 
intent to
terminate a Pension
 
Plan or the
 
treatment of a
 
Pension Plan amendment
 
as a termination,
 
under
Section 4041
 
of ERISA,
 
if the
 
plan assets
 
are not
 
sufficient to
 
pay all
 
plan liabilities,
 
(d) the
institution of proceedings to
 
terminate, or the appointment
 
of a trustee with
 
respect to, any
 
Pension
Plan by the PBGC
 
or any Pension Plan
 
or Multiemployer Plan administrator,
 
(e) any other event
or condition that would
 
constitute grounds under Section
 
4042(a) of ERISA for
 
the termination of,
or the
 
appointment of
 
a trustee
 
to administer,
 
any Pension
 
Plan, (f)
 
the imposition
 
of a
 
Lien
pursuant to the IRC or
 
ERISA in connection with
 
any Employee Benefit Plan or
 
the existence of
any facts or circumstances that could reasonably be expected to result in the imposition of a Lien,
(g) the partial
 
or complete withdrawal
 
of any Loan Party
 
or ERISA Affiliate from
 
a Multiemployer
Plan (other than any
 
withdrawal that would not
 
constitute an Event of
 
Default under Section 8.12),
(h) any event or condition that
 
results in the reorganization or insolvency of a
 
Multiemployer Plan
under Sections of
 
ERISA, (i) any event
 
or condition that
 
results in the termination
 
of a
Multiemployer Plan under
 
Section 4041A of
 
ERISA or the
 
institution by the
 
PBGC of proceedings
to terminate
 
or to
 
appoint a
 
trustee to
 
administer a
 
Multiemployer Plan
 
under ERISA,
 
(j) any
Pension Plan being in "at risk status" within
 
the meaning of IRC Section 430(i), (k)
 
any
Multiemployer Plan being
 
in "endangered status"
 
or "critical status"
 
within the meaning
 
of IRC
 
 
Section 432(b) or the determination that any Multiemployer Plan is or
 
is expected to be insolvent
or in reorganization within
 
the meaning of Title IV
 
of ERISA, (l) with
 
respect to any Pension
 
Plan,
any Loan
 
Party or
 
ERISA Affiliate
 
incurring a
 
substantial cessation
 
of operations
 
within the
meaning of ERISA Section 4062(e),
 
(m) an "accumulated funding deficiency"
 
within the meaning
of the IRC or
 
ERISA (including Section 412
 
of the IRC or
 
Section 302 of ERISA)
 
or the failure
of any Pension
 
Plan or Multiemployer
 
Plan to
 
meet the minimum
 
funding standards within
 
the
meaning of the
 
IRC or ERISA
 
(including Section 412
 
of the IRC
 
or Section 302
 
of ERISA), in
each case, whether
 
or not
 
waived, (n) the
 
filing of
 
an application for
 
a waiver
 
of the
 
minimum
funding standards within the meaning of the
 
IRC or ERISA (including Section 412
 
of the IRC or
Section 302 of ERISA) with respect to any Pension Plan or Multiemployer Plan, (o) the failure to
make by
 
its due
 
date a
 
required payment
 
or contribution
 
with respect
 
to any
 
Pension Plan
 
or
Multiemployer Plan, (p)
 
any event that
 
results in or
 
could reasonably be
 
expected to
 
result in a
liability by
 
a Loan
 
Party pursuant
 
to Title
 
I of
 
ERISA or
 
the excise
 
tax provisions
 
of the
 
IRC
relating to any
 
Employee Benefit Plans or
 
any event that results
 
in or could reasonably
 
be expected
to result
 
in a
 
liability to
 
any Loan
 
Party or
 
ERISA Affiliate
 
pursuant to
 
Title IV
 
of ERISA
 
or
Section 401(a)(29)
 
of the
 
IRC, or
 
(q) any
 
of the
 
foregoing is
 
reasonably likely
 
to occur
 
in the
following 30 days.
"Obligations" means
 
(a) all loans
 
(including the
 
Term Loan
 
and the
 
Revolving
Loans (inclusive of
 
Extraordinary Advances
 
and Swing Loans)),
 
debts, principal,
 
interest
(including any interest that accrues after
 
the commencement of an Insolvency Proceeding,
regardless of whether allowed or
 
allowable in whole or in
 
part as a claim in
 
any such Insolvency
Proceeding), reimbursement
 
or indemnification
 
obligations with
 
respect to
 
Letters of
 
Credit
(irrespective of whether
 
contingent), premiums, liabilities
 
(including all amounts
 
charged to the
Loan Account pursuant
 
to this
 
Agreement), obligations (including
 
indemnification obligations),
fees (including the
 
fees provided
 
for in the
 
Fee Letter), Lender
 
Group Expenses
 
(including any
fees or expenses that
 
accrue after the commencement
 
of an Insolvency Proceeding,
 
regardless of
whether allowed or allowable
 
in whole or in
 
part as a claim
 
in any such Insolvency
 
Proceeding),
guaranties, and all
 
covenants and duties
 
of any other
 
kind and description
 
owing by any
 
Loan Party
arising out of,
 
under, pursuant
 
to, in connection
 
with, or evidenced
 
by this Agreement
 
or any of
the other Loan Documents and
 
irrespective of whether for the
 
payment of money,
 
whether direct
or indirect, absolute
 
or contingent, due
 
or to become
 
due, now existing
 
or hereafter arising,
 
and
including all interest
 
not paid
 
when due and
 
all other
 
expenses or other
 
amounts that any
 
Loan
Party is required to pay
 
or reimburse by the Loan
 
Documents or by law or
 
otherwise in connection
with the Loan
 
Documents, and
 
(b) all Bank
 
Product Obligations;
 
provided that, anything
 
to the
contrary contained in the
 
foregoing notwithstanding, the Obligations
 
shall exclude any Excluded
Swap Obligation.
 
Without limiting the generality of
 
the foregoing, the Obligations of Borrowers
under the Loan Documents include
 
the obligation to pay (i)
 
the principal of the Revolving
 
Loans
and the
 
Term Loan,
 
(ii) interest accrued
 
on the
 
Revolving Loans
 
and the
 
Term Loan,
 
(iii) the
amount necessary to
 
reimburse Issuing Bank
 
for amounts paid
 
or payable pursuant
 
to Letters of
Credit, (iv) Letter of
 
Credit commissions, fees
 
(including fronting fees)
 
and charges, (v)
 
Lender
Group Expenses, (vi) fees payable
 
under this Agreement or any
 
of the other Loan Documents,
 
and
(vii) indemnities and other amounts payable
 
by any Loan Party under
 
any Loan Document.
 
Any
reference in this Agreement or
 
in the Loan Documents to
 
the Obligations shall include all
 
or any
portion thereof and any extensions, modifications, renewals, or alterations thereof, both
 
prior and
subsequent to any Insolvency Proceeding.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
"OFAC" means
 
The Office
 
of Foreign Assets
 
Control of the
 
U.S. Department of
the Treasury.
"Originating Lender" has the
 
meaning specified therefor in Section
 
13.1(e) of this
Agreement.
"Other Taxes"
 
means all
 
present or
 
future stamp,
 
court, excise,
 
value added,
 
or
documentary, intangible,
 
recording, filing
 
or similar
 
Taxes that
 
arise from
 
any payment
 
made
under, from the execution, delivery,
 
performance, enforcement or registration of, from the receipt
or perfection of a security interest under, or otherwise with respect to, any Loan Document.
"Overadvance" means, as of any date of determination,
 
that the Revolver Usage is
greater than any of the limitations set forth in Section 2.1 or Section 2.11 of this Agreement.
"Participant"
 
has the
 
meaning specified
 
therefor in
 
Section 13.1(e)
 
of this
Agreement.
"Participant Register
 
"
 
has the
 
meaning set
 
forth in
 
Section 13.1(i)
 
of this
Agreement.
"Patent Security Agreement"
 
has the
 
meaning specified
 
therefor in
 
the Guaranty
and Security Agreement.
"Patriot Act"
 
has the meaning specified therefor in Section
 
4.13 of this Agreement.
"Payment Conditions" means, at the time of determination with respect to a
proposed payment to fund a Specified Transaction, that:
(a)
 
no Default or Event
 
of Default then exists
 
or would arise as
 
a result of the
consummation of such Specified Transaction,
(b)
 
both (A)
 
the Fixed
 
Charge Coverage
 
Ratio of
 
the Loan
 
Parties and
 
their
Subsidiaries is equal
 
to or greater
 
than 1.25:1.00
 
for the trailing
 
12 month
 
period most recently
ended for
 
which financial
 
statements are
 
required to
 
have been
 
delivered to
 
Agent pursuant
 
to
Schedule 5.1 to this Agreement (calculated on a
pro forma
 
basis as if such proposed payment is a
Fixed Charge made
 
on the last
 
day of such
 
12 month period
 
(it being understood
 
that such proposed
payment shall also be a Fixed
 
Charge made on the last
 
day of such 12 month period for
 
purposes
of calculating the Fixed Charge Coverage
 
Ratio under this clause (ii) for
 
any subsequent proposed
payment to
 
fund a
 
Specific Transaction)),
 
and (B)
 
Availability,
 
(x) at all
 
times during
 
the 60
consecutive days immediately
 
preceding the date
 
of such proposed
 
payment and the
 
consummation
of such Specified Transaction,
 
calculated on a
pro forma
 
basis as if such
 
proposed payment was
made, and
 
the Specified
 
Transaction was
 
consummated, on
 
the first
 
day of
 
such period,
 
and
(y) after giving effect
 
to such proposed
 
payment and Specified
 
Transaction, in
 
each case, is
 
not
less than the greater of (X) 17.5% of the Maximum Revolver Amount, and (Y) $4,375,000, and
(c)
 
Administrative Borrower has delivered a
 
certificate to Agent certifying that
all conditions described in clauses (a) and (b) above have been satisfied.
 
 
 
 
 
 
 
"PBGC"
 
means the Pension
 
Benefit Guaranty Corporation
 
or any successor
 
agency.
"Pension Plan"
 
means any
 
Employee Benefit
 
Plan, other
 
than a
 
Multiemployer
Plan, which is
 
subject to the
 
provisions of Title
 
IV or Section
 
302 of ERISA
 
or Sections 412
 
or
430 of the
 
Code sponsored, maintained, or
 
contributed to by any
 
Loan Party or ERISA
 
Affiliate
or to which any Loan Party or ERISA Affiliate has any liability, contingent or
 
otherwise.
"Perfection Certificate
 
"
 
means a
 
certificate in
 
the form
 
of Exhibit
 
P-1 to
 
this
Agreement.
"Permitted Acquisition" means any Acquisition so long as:
(a)
 
no Default
 
or Event
 
of Default
 
shall have
 
occurred and
 
be continuing
 
or
would result from the consummation of the proposed Acquisition and the proposed Acquisition is
consensual,
(b)
 
no Indebtedness will
 
be incurred, assumed,
 
or would exist
 
with respect to
any Loan Party
 
or its Subsidiaries
 
as a result
 
of such Acquisition,
 
other than Indebtedness
 
permitted
under clauses
 
(f), (g)
 
or (o)
 
of the
 
definition of
 
Permitted Indebtedness
 
and no
 
Liens will
 
be
incurred, assumed, or would
 
exist with respect to
 
the assets of any Loan
 
Party or its Subsidiaries
as a result of such Acquisition other than Permitted Liens,
(c)
 
Borrowers have
 
provided Agent
 
with written
 
confirmation, supported
 
by
reasonably detailed
 
calculations, that
 
on a
pro forma
 
basis (including
pro forma
 
adjustments
arising out of
 
events which
 
are directly
 
attributable to
 
such proposed Acquisition,
 
are factually
supportable, and
 
are expected
 
to have
 
a continuing
 
impact, in
 
each case,
 
determined as
 
if the
combination had been accomplished at
 
the beginning of the
 
relevant period; such eliminations and
inclusions to be mutually and
 
reasonably agreed upon by
 
Borrowers and Agent) created by
 
adding
the historical
 
combined financial
 
statements of
 
Borrowers (including
 
the combined
 
financial
statements of
 
any other
 
Person or
 
assets that
 
were the
 
subject of
 
a prior
 
Permitted Acquisition
during the relevant period)
 
to the historical consolidated
 
financial statements of
 
the Person to be
acquired (or the historical financial statements related to the assets to be acquired) pursuant to the
proposed Acquisition, the Loan
 
Parties and their Subsidiaries
 
(i) would have been in
 
compliance
with the financial covenant(s)
 
in Section 7
 
of this Agreement for
 
the fiscal month]ended
immediately prior to
 
the proposed date
 
of consummation of
 
such proposed Acquisition,
 
and (ii) are
projected to be
 
in compliance with
 
the financial covenant(s)
 
in Section 7
 
of this Agreement
 
for
each of the twelve fiscal months in the period ended one year after the proposed date of
consummation of such proposed Acquisition,
(d)
 
Borrowers have provided
 
Agent with its
 
due diligence package
 
relative to
the proposed Acquisition, including
 
forecasted balance sheets, profit
 
and loss statements, and
 
cash
flow statements of the Person or assets to
 
be acquired, all prepared on a basis consistent
 
with such
Person's (or
 
assets') historical
 
financial statements,
 
together with
 
appropriate supporting
 
details
and a
 
statement of
 
underlying assumptions
 
for the
 
one year
 
period following
 
the date
 
of the
proposed Acquisition, on a quarter by quarter basis), in form and substance (including as to scope
and underlying assumptions) reasonably satisfactory to Agent,
(e)
 
the Payment Conditions are satisfied,
 
 
 
 
 
(f)
 
the assets
 
being acquired
 
or the
 
Person whose
 
Equity Interests
 
are being
acquired did not
 
have negative EBITDA
 
during the 12
 
consecutive month period
 
most recently
concluded prior to the date of the proposed Acquisition,
(g)
 
Borrowers have provided
 
Agent with written
 
notice of the
 
proposed
Acquisition at
 
least 15
 
Business Days
 
prior to
 
the anticipated
 
closing date
 
of the
 
proposed
Acquisition and,
 
not later
 
than five
 
Business Days
 
prior to
 
the anticipated
 
closing date
 
of the
proposed Acquisition, copies of
 
the acquisition agreement and
 
other material documents relative
to the proposed
 
Acquisition, which agreement
 
and documents must
 
be reasonably acceptable
 
to
Agent,
(h)
 
the assets
 
being acquired
 
(other than
 
a
de minimis
 
amount of
 
assets in
relation to Borrowers' and their
 
Subsidiaries' total assets), or the
 
Person whose Equity Interests are
being acquired, are
 
useful in or engaged
 
in, as applicable,
 
the business of
 
the Loan Parties and
 
their
Subsidiaries or a business reasonably related thereto,
(i)
 
the assets
 
being acquired
 
(other than
 
a
de minimis
 
amount of
 
assets in
relation to the
 
assets being acquired)
 
are located within
 
the United States,
 
Canada or Mexico
 
or
the Person whose Equity Interests are being
 
acquired is organized in a
 
jurisdiction located within
the United States, Canada or Mexico,
(j)
 
the subject
 
assets or
 
Equity Interests,
 
as applicable,
 
are being
 
acquired
directly by a Borrower or
 
one of its Subsidiaries that
 
is a Loan Party, and, in connection therewith,
the applicable Loan
 
Party shall
 
have complied
 
with Section
 
5.11 or
 
5.12 of
 
this Agreement,
 
as
applicable, of
 
this Agreement
 
and, in
 
the case
 
of an
 
acquisition of
 
Equity Interests,
 
the Person
(other than a Mexican Subsidiary) whose Equity Interests are acquired shall become a Loan Party
and the applicable
 
Loan Party shall
 
have demonstrated to
 
Agent that the
 
new Loan Parties
 
have
received consideration sufficient to
 
make the joinder documents
 
binding and enforceable against
such new Loan Parties, and
(k)
 
the purchase consideration payable in respect of all Permitted
 
Acquisitions
(including the proposed Acquisition and including deferred payment
 
obligations) shall not exceed
$10,000,000 in the
 
aggregate; provided, that
 
(i) the purchase
 
consideration payable in
 
respect of
any single
 
Acquisition or
 
series of
 
related Acquisitions
 
shall not
 
exceed $5,000,000
 
in the
aggregate and (ii)
 
the purchase consideration
 
payable in respect
 
of all Permitted
 
Acquisitions of
Mexican Subsidiaries
 
or of
 
assets located
 
in Mexico
 
(including the
 
proposed Acquisition
 
and
including deferred payment obligations) shall not exceed $5,000,000 in the aggregate.
"Permitted Discretion" means
 
a determination made
 
in the exercise
 
of reasonable
(from the perspective of a secured asset-based lender) business judgment.
"Permitted Dispositions"
 
means:
(a)
 
sales, abandonment, or other dispositions of
 
Equipment that is substantially
worn, damaged, or obsolete
 
or no longer used
 
or useful in the
 
ordinary course of business
 
(other
than Eligible
 
M&E) and
 
leases or
 
subleases of
 
Real Property
 
not useful
 
in the
 
conduct of
 
the
business of the Loan Parties and their Subsidiaries (other than Eligible Real Property),
(b)
 
sales of Inventory to buyers in the ordinary course of business,
(c)
 
the use
 
or transfer
 
of money
 
or Cash
 
Equivalents in
 
a manner
 
that is
 
not
prohibited by the terms of this Agreement or the other Loan Documents,
(d)
 
the licensing, on a
 
non-exclusive basis, of patents,
 
trademarks, copyrights,
and other intellectual property rights in the ordinary course of business,
(e)
 
the granting of Permitted Liens,
(f)
 
the sale or
 
discount, in each
 
case without recourse,
 
of accounts receivable
(other than Eligible
 
Accounts) arising in
 
the ordinary course
 
of business, but
 
only in connection
with the compromise or collection thereof,
(g)
 
any involuntary loss, damage or destruction of property,
(h)
 
any involuntary condemnation, seizure
 
or taking, by exercise of
 
the power
of eminent domain or otherwise, or confiscation or requisition of use of property,
(i)
 
the leasing or subleasing
 
of assets of
 
any Loan Party or
 
its Subsidiaries in
the ordinary course of business (other than Eligible M&E and Eligible Real Property),
(j)
 
the sale
 
or issuance
 
of Equity
 
Interests (other
 
than Disqualified
 
Equity
Interests) of Administrative Borrower,
(k)
 
(i) the lapse
 
of registered
 
patents, trademarks,
 
copyrights and
 
other
intellectual property of
 
any Loan Party
 
or any of
 
its Subsidiaries to
 
the extent not
 
economically
desirable in the conduct
 
of its business, or
 
(ii) the abandonment of patents,
 
trademarks, copyrights,
or other
 
intellectual property
 
rights in
 
the ordinary
 
course of
 
business so
 
long as
 
(in each
 
case
under clauses (i) and (ii)),
 
(A) with respect to copyrights,
 
such copyrights are not material
 
revenue
generating copyrights, and
 
(B) such lapse is
 
not materially adverse
 
to the interests
 
of the Lender
Group,
(l)
 
the making of Restricted Payments that are expressly permitted to be made
pursuant to this Agreement,
(m)
 
the making of Permitted Investments,
(n)
 
so long
 
as no
 
Event of
 
Default has
 
occurred and
 
is continuing
 
or would
immediately result therefrom, transfers of assets (i)
 
from any Loan Party or any
 
of its Subsidiaries
to a Loan
 
Party, and
 
(ii) from any Subsidiary
 
of any Loan
 
Party that is
 
not a Loan
 
Party to any
other Subsidiary of any Loan Party,
 
(o)
 
sales or dispositions of Mexican Term Loan Collateral,
 
(p)
 
so long
 
as the
 
Citi Purchase
 
Documents are
 
in effect,
 
the sale
 
by Loan
Parties to Citibank,
 
N.A. of Accounts
 
owed by
 
Xylem Inc. to
 
Loan Parties
 
pursuant to the
 
Citi
Purchase Documents, and
 
 
 
 
(q)
 
sales or dispositions of
 
fixed assets (including intangible property
 
related to
such fixed assets) not otherwise permitted in clauses (a) through (n) above so long as made at fair
market value and the aggregate fair market value of all assets disposed of in fiscal
 
year (including
the proposed disposition) would not exceed $500,000;
provided, that if, as of any date
 
of determination, sales or dispositions by the
 
Loan Parties during
the period of time from the first
 
day of the month in which such
 
date of determination occurs until
such date of
 
determination, either individually
 
or in the
 
aggregate, involve $250,000
 
or more of
assets included in the
 
Borrowing Base (based on
 
the fair market
 
value of the
 
assets so disposed)
(the "
 
Threshold Amount"),
 
then Borrowers
 
shall have,
 
prior to
 
consummation of
 
the sale
 
or
disposition that causes the
 
assets included in
 
the Borrowing that
 
are disposed of
 
during such period
to exceed the Threshold Amount,
 
delivered to Agent an updated
 
Borrowing Base Certificate that
reflects the removal of the applicable assets from the Borrowing Base.
"Permitted Indebtedness" means:
(a)
 
Indebtedness in respect of the Obligations,
(b)
 
Indebtedness as
 
of the
 
Closing Date
 
set forth
 
on Schedule
 
4.14 to
 
this
Agreement and any Refinancing Indebtedness in respect of such Indebtedness,
(c)
 
Permitted Purchase Money
 
Indebtedness and any
 
Refinancing Indebtedness
in respect of such Indebtedness,
(d)
 
Indebtedness arising in connection with
 
the endorsement of instruments or
other payment items for deposit,
(e)
 
Indebtedness consisting of
 
(i) unsecured guarantees incurred
 
in the ordinary
course of business with respect to surety and appeal bonds, performance bonds, bid bonds, appeal
bonds, completion guarantee
 
and similar obligations;
 
(ii) unsecured guarantees arising
 
with respect
to customary indemnification obligations
 
to purchasers in connection
 
with Permitted Dispositions;
and (iii)
 
unsecured guarantees
 
with respect
 
to Indebtedness
 
of any
 
Loan Party
 
or one
 
of its
Subsidiaries, to the
 
extent that the
 
Person that is
 
obligated under such
 
guaranty could have
 
incurred
such underlying Indebtedness,
(f)
 
Indebtedness incurred
 
in the
 
ordinary course
 
of business
 
under
performance, surety, statutory,
 
or appeal bonds,
(g)
 
Indebtedness owed to any Person providing
 
property, casualty,
 
liability, or
other insurance
 
to any
 
Loan Party
 
or any
 
of its
 
Subsidiaries, so
 
long as
 
the amount
 
of such
Indebtedness is not
 
in excess of
 
the amount of
 
the unpaid cost
 
of, and shall
 
be incurred only
 
to
defer the
 
cost of,
 
such insurance
 
for the
 
year in
 
which such
 
Indebtedness is
 
incurred and
 
such
Indebtedness is outstanding only during such year,
(h)
 
the incurrence by any Loan Party or
 
its Subsidiaries of Indebtedness under
Hedge Agreements that is incurred for the bona fide purpose of hedging the interest rate,
commodity, or
 
foreign currency
 
risks associated
 
with such
 
Loan Party's
 
or such
 
Subsidiary's
operations and not for speculative purposes,
 
(i)
 
Indebtedness incurred in the ordinary
 
course of business in respect of
 
credit
cards, credit card processing
 
services, debit cards, stored
 
value cards, commercial cards
 
(including
so-called "purchase cards", "procurement cards" or "p-cards"), or Cash Management Services,
(j)
 
unsecured Indebtedness
 
of any
 
Loan Party
 
owing to
 
employees, former
employees, former officers,
 
directors, or former directors
 
(or any spouses,
 
ex-spouses, or estates
of any of the
 
foregoing) incurred in connection
 
with the repurchase or
 
redemption by such Loan
Party of the Equity Interests of
 
Administrative Borrower that has been issued
 
to such Persons, so
long as (i) no Default or Event of Default has occurred and is continuing or would result from the
incurrence of such Indebtedness, (ii) the aggregate
 
amount of all such Indebtedness outstanding
 
at
any one
 
time does
 
not exceed
 
$200,000, and
 
(iii) such Indebtedness
 
is subordinated
 
in right
 
of
payment to the Obligations on terms and conditions reasonably acceptable to Agent,
(k)
 
Indebtedness comprising Permitted
 
Intercompany Advances and
 
other
Permitted Investments; provided,
 
that, in the
 
event and Permitted
 
Intercompany Advances owed
by a Mexican Subsidiary
 
to a Loan Party
 
are evidenced by a
 
promissory note, such note
 
shall be
delivered to Agent as Collateral together with an endorsement,
(l)
 
unsecured Indebtedness
 
incurred in
 
respect of
 
netting services,
 
overdraft
protection, and other like services, in each case, incurred in the ordinary course of business,
(m)
 
accrual of interest,
 
accretion or amortization
 
of original issue
 
discount, or
the payment of interest in kind, in each case, on Indebtedness that
 
otherwise constitutes Permitted
Indebtedness, and
(n)
 
Subordinated Indebtedness,
 
the aggregate
 
outstanding amount
 
of which
does not exceed $1,500,000,
(o)
 
Mexican Term
 
Debt in an
 
aggregate principal amount not
 
to exceed
$18,500,000,
 
(p)
 
contingent liabilities in respect
 
of any indemnification
 
obligation,
adjustment of purchase
 
price, non-compete, or
 
similar obligation
 
of any Loan
 
Party incurred
 
in
connection with the consummation of one or more Permitted Acquisitions,
 
 
(q)
 
Acquired Indebtedness in
 
an aggregate outstanding
 
amount not to
 
exceed
$2,500,000,
 
(r)
 
Indebtedness of Mexican Subsidiaries
 
in an aggregate outstanding
 
amount
not to exceed $2,000,000, and
(s)
 
any other unsecured Indebtedness incurred by
 
any Loan Party or any of
 
its
Subsidiaries in an aggregate outstanding amount not to exceed $1,500,000 at any one time.
"Permitted Intercompany Advances"
 
means loans made
 
on or after
 
the Closing Date
by (a) a Loan Party
 
to another Loan Party, (b) a Subsidiary of
 
a Loan Party that is
 
not a Loan Party
to another Subsidiary of
 
a Loan Party that
 
is not a Loan
 
Party, (c) a Subsidiary of a Loan Party
 
that
is not a
 
Loan Party to
 
a Loan Party,
 
so long as
 
the parties thereto
 
are party to
 
the Intercompany
 
 
 
 
Subordination Agreement, (d) a Loan
 
Party to a Mexican Subsidiary
 
solely to the extent necessary
to fund BRP/Navistar Project Cap Ex permitted hereunder so long as (i) at the time of the making
of such loan,
 
no Event of
 
Default has occurred
 
and is continuing
 
or would result
 
therefrom, and
(ii) the sum
 
of Borrowers'
 
Availability
plus
 
Qualified Cash
 
(up to
 
an amount
 
not to
 
exceed
$1,500,000) is equal
 
to or greater
 
than $6,000,000
 
immediately after giving
 
effect to
 
each such
loan, and (e) a Loan
 
Party to a Subsidiary
 
of a Loan Party that
 
is not a Loan Party
 
so long as (i) the
aggregate amount
 
of all
 
such loans
 
(by type,
 
not by
 
the borrower)
 
does not
 
exceed $3,500,000
outstanding at any one
 
time, (ii) at the
 
time of the
 
making of such
 
loan, no Event
 
of Default has
occurred and is continuing or would result therefrom, and (iii) the sum of Borrowers' Availability
plus
 
Qualified Cash
 
(up to
 
an amount
 
not to
 
exceed $1,500,000)
 
is equal
 
to or
 
greater than
$6,000,000 immediately after giving effect to each such loan.
"Permitted Investments" means:
(a)
 
Investments in cash and Cash Equivalents,
(b)
 
Investments in
 
negotiable instruments
 
deposited or
 
to be
 
deposited for
collection in the ordinary course of business,
(c)
 
advances made
 
in connection
 
with purchases
 
of goods
 
or services
 
in the
ordinary course of business,
(d)
 
Investments received in settlement
 
of amounts due to
 
any Loan Party or
 
any
of its Subsidiaries
 
effected in the
 
ordinary course of business
 
or owing to any
 
Loan Party or any
of its Subsidiaries as
 
a result of Insolvency
 
Proceedings involving an account
 
debtor or upon the
foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries,
(e)
 
Investments owned
 
by any
 
Loan Party
 
or any
 
of its
 
Subsidiaries on
 
the
Closing Date and set forth on Schedule P-1 to this Agreement,
(f)
 
guarantees permitted under the definition of Permitted Indebtedness,
(g)
 
Permitted Intercompany Advances,
(h)
 
Equity Interests
 
or other
 
securities acquired
 
in connection
 
with the
satisfaction or
 
enforcement of
 
Indebtedness or
 
claims due
 
or owing
 
to a
 
Loan Party
 
or its
Subsidiaries (in bankruptcy of customers or suppliers
 
or otherwise outside the ordinary course
 
of
business) or as security for any such Indebtedness or claims,
(i)
 
deposits of cash
 
made in
 
the ordinary course
 
of business to
 
secure
performance of operating leases,
(j)
 
(i) non-cash loans and
 
advances to employees,
 
officers, and directors
 
of a
Loan Party
 
or any
 
of its
 
Subsidiaries for
 
the purpose
 
of purchasing
 
Equity Interests
 
in
Administrative Borrower so
 
long as the
 
proceeds of such
 
loans are used
 
in their entirety
 
to purchase
such Equity Interests
 
in Administrative Borrower,
 
and (ii) loans and
 
advances to employees
 
and
officers of a Loan Party or any of its
 
Subsidiaries in the ordinary course of business for any other
business purpose and in an aggregate amount not to exceed $200,000 at any one time,
 
 
 
 
 
(k)
 
Permitted Acquisitions,
(l)
 
Investments resulting from
 
entering into (i)
 
Bank Product Agreements,
 
or
(ii) agreements relative
 
to obligations
 
permitted under
 
clause (j)
 
of the
 
definition of
 
Permitted
Indebtedness,
(m)
 
equity Investments by any
 
Loan Party in any
 
Subsidiary of such Loan Party
which is required by
 
law to maintain
 
a minimum net capital
 
requirement or as may
 
be otherwise
required by applicable law,
 
(n)
 
so long
 
as no
 
Event of
 
Default has
 
occurred and
 
is continuing
 
or would
result therefrom, any other Investments
 
in an aggregate amount not to
 
exceed $500,000 during the
term of this Agreement,
 
 
(o)
 
Investments consisting
 
of non-cash
 
consideration received
 
in connection
with Permitted
 
Dispositions, so long
 
as the
 
non-cash consideration
 
received in
 
connection with
any Permitted Disposition does not
 
exceed 25% of the total
 
consideration received in connection
with such Permitted Disposition, and
(p)
 
Investments held
 
by a
 
Person acquired
 
in a
 
Permitted Acquisition
 
to the
extent that
 
such Investments
 
were not
 
made in
 
contemplation of
 
or in
 
connection with
 
such
Permitted Acquisition and were in existence on the date of such Permitted Acquisition..
"Permitted Liens" means:
(a)
 
Liens granted to, or for the benefit of, Agent to secure the Obligations,
(b)
 
Liens for unpaid
 
taxes, assessments, or
 
other governmental charges
 
or levies
that either
 
(i) are not
 
yet delinquent,
 
or (ii)
 
do not
 
have priority
 
over Agent's
 
Liens and
 
the
underlying taxes, assessments, or charges or levies are the subject of Permitted Protests,
(c)
 
judgment Liens
 
arising solely
 
as a
 
result of
 
the existence
 
of judgments,
orders, requirements to pay
 
issued by a Canadian
 
Governmental Authority or awards
 
that do not
constitute an Event of Default under Section 8.3 of this Agreement,
(d)
 
Liens set forth on Schedule P-2 to
 
this Agreement; provided, that to qualify
as a Permitted Lien, any such Lien described on Schedule P-2
 
to this Agreement shall only secure
the Indebtedness that it secures on the
 
Closing Date and any Refinancing Indebtedness
 
in respect
thereof,
(e)
 
the interests of
 
lessors under operating
 
leases and non-exclusive
 
licensors
under license agreements,
(f)
 
purchase money
 
Liens on
 
fixed assets
 
or the
 
interests of
 
lessors under
Capital Leases to
 
the extent
 
that such
 
Liens or
 
interests secure
 
Permitted Purchase
 
Money
Indebtedness and so
 
long as (i)
 
such Lien attaches
 
only to the
 
fixed asset purchased
 
or acquired
and the
 
proceeds thereof,
 
and (ii)
 
such Lien
 
only secures
 
the Indebtedness
 
that was
 
incurred to
acquire the fixed asset purchased or acquired or any Refinancing Indebtedness in respect thereof,
(g)
 
Liens arising
 
by operation
 
of law
 
in favor
 
of warehousemen,
 
landlords,
carriers, mechanics, materialmen,
 
laborers, or suppliers,
 
incurred in the
 
ordinary course of
 
business
and not in
 
connection with the
 
borrowing of money,
 
and which Liens
 
either (i) are for
 
sums not
yet delinquent, or (ii) are the subject of Permitted Protests,
(h)
 
Liens on amounts
 
deposited to secure
 
any Borrower's and
 
its Subsidiaries
obligations in connection with worker's compensation or other unemployment insurance,
(i)
 
Liens on amounts
 
deposited to secure
 
any Borrower's and
 
its Subsidiaries
obligations in connection
 
with the making
 
or entering into
 
of bids, tenders,
 
or leases in
 
the ordinary
course of business and not in connection with the borrowing of money,
(j)
 
Liens on amounts
 
deposited to secure
 
any Borrower's and
 
its Subsidiaries
reimbursement obligations with respect to surety or
 
appeal bonds obtained in the ordinary course
of business,
(k)
 
with respect
 
to any
 
Real Property,
 
easements, rights
 
of way,
 
and zoning
restrictions that do not materially interfere with or impair the use or operation thereof,
(l)
 
non-exclusive licenses
 
of patents,
 
trademarks, copyrights,
 
and other
intellectual property rights in the ordinary course of business,
(m)
 
Liens that are replacements
 
of Permitted Liens to
 
the extent that the
 
original
Indebtedness (or any increases
 
thereto as permitted hereunder)
 
is the subject of
 
permitted
Refinancing Indebtedness and
 
so long as
 
the replacement Liens
 
only encumber those
 
assets that
secured the original Indebtedness (or any increases thereto as permitted hereunder),
(n)
 
rights of setoff or bankers' liens upon deposits of funds in favor of banks
 
or
other depository institutions,
 
solely to the extent
 
incurred in connection
 
with the maintenance
 
of
such Deposit Accounts in the ordinary course of business,
(o)
 
Liens granted in the ordinary course of business on the unearned portion of
insurance premiums securing
 
the financing of
 
insurance premiums to
 
the extent the
 
financing is
permitted under the definition of Permitted Indebtedness,
(p)
 
Liens in favor of customs and revenue authorities arising
 
as a matter of law
to secure payment of customs duties in connection with the importation of goods,
 
(q)
 
Liens on
 
the Mexican
 
Term Loan
 
Collateral securing
 
the Mexican
 
Term
Debt,
 
(r)
 
Liens assumed by
 
any Loan Party
 
or its Subsidiaries
 
in connection with
 
a
Permitted Acquisition that secure Acquired Indebtedness that is Permitted Indebtedness,
 
(s)
 
Liens on
 
assets of
 
the Mexican
 
Subsidiaries as
 
to which
 
the aggregate
amount of the obligations secured thereby does not exceed $2,000,000;
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(t)
 
so long as
 
the Citi
 
Purchase Documents
 
are in
 
effect, Liens
 
on Accounts
owed by
 
Xylem Inc.
 
and its
 
Subsidiaries and
 
Affiliates to
 
Loan Parties
 
pursuant to
 
the Citi
Purchase Documents and
(u)
 
other Liens which
 
do not secure
 
Indebtedness for borrowed
 
money or letters
of credit and as to which the aggregate amount
 
of the obligations secured thereby does not exceed
$250,000.
"Permitted Protest" means the right of any Loan
 
Party or any of its Subsidiaries to
protest any Lien (other than any Lien that secures the Obligations), taxes (other than payroll
 
taxes
or taxes that are the subject of a United States federal
 
tax lien or a requirement to pay issued by a
Canadian Governmental Authority), or rental payment; provided,
 
that (a) a reserve with respect to
such obligation is established
 
on such Loan Party's
 
or its Subsidiaries' books
 
and records in such
amount as
 
is required
 
under GAAP,
 
(b) any such
 
protest is
 
instituted promptly
 
and prosecuted
diligently by
 
such Loan
 
Party or
 
its Subsidiary,
 
as applicable,
 
in good
 
faith, and
 
(c) Agent is
satisfied, in
 
its Permitted
 
Discretion, that,
 
while any
 
such protest
 
is pending,
 
there will
 
be no
impairment of the enforceability, validity,
 
or priority of any of Agent's Liens.
"Permitted Purchase Money Indebtedness" means, as of any date of determination,
Indebtedness (other than
 
the Obligations, but
 
including Capitalized Lease
 
Obligations), incurred
after the Closing Date
 
and at the time
 
of, or within 20
 
days after, the acquisition of
 
any fixed assets
for the purpose of
 
financing all or any
 
part of the acquisition cost
 
thereof, in an aggregate
 
principal
amount outstanding at any one time not in excess of $5,000,000.
"Person" means natural persons,
 
corporations, limited liability companies,
 
limited
partnerships, general partnerships, limited liability partnerships, joint
 
ventures, trusts, land trusts,
business trusts, or other
 
organizations, irrespective of
 
whether they are legal
 
entities, and
governments and agencies and political subdivisions thereof.
"Platform"
 
has the meaning
 
specified therefor in Section
 
17.9(c) of this Agreement.
"Post-Increase Revolver
 
Lenders" has
 
the meaning
 
specified therefor
 
in Section
2.14 of this Agreement.
"PPSA"
 
means the
 
Personal Property
 
Security Act
 
(Ontario) and
 
the regulations
thereunder, as from time to time in effect; provided, however, if attachment, perfection or priority
of Agent's
 
Lien on
 
any Collateral
 
are governed
 
by the
 
personal property
 
security laws
 
of any
jurisdiction in Canada
 
other than the
 
laws of the
 
Province of Ontario,
 
"PPSA" means those
 
personal
property security laws
 
in such other
 
jurisdiction in Canada
 
for the purposes
 
of the provisions
 
hereof
relating to such
 
attachment, perfection or priority
 
and for the definitions
 
related to such provisions.
"Pre-Increase Revolver Lenders"
 
has the meaning
 
specified therefor in
 
Section 2.14
of this Agreement.
"Projections"
 
means Borrowers'
 
forecasted (a)
 
balance sheets,
 
(b) profit and
 
loss
statements, and
 
(c) cash flow
 
statements, all
 
prepared on
 
a basis
 
consistent with
 
Borrowers'
historical financial
 
statements, together
 
with appropriate
 
supporting details
 
and a
 
statement of
underlying assumptions.
 
 
 
 
 
 
 
"Pro Rata Share"
 
means, as of any date of determination:
(a)
 
with respect to a Lender's obligation to make all or a portion of the
Revolving Loans,
 
with respect
 
to such
 
Lender's right
 
to receive
 
payments of
 
interest, fees,
 
and
principal with respect to
 
the Revolving Loans, and
 
with respect to all
 
other computations and other
matters related to the Revolver Commitments or the Revolving
 
Loans, the percentage obtained by
dividing (i) the
 
Revolving Loan Exposure
 
of such Lender,
 
by (ii) the
 
aggregate Revolving Loan
Exposure of all Lenders,
(b)
 
with respect to a Lender's
 
obligation to participate in
 
the Letters of Credit,
with respect
 
to such
 
Lender's obligation
 
to reimburse
 
Issuing Bank,
 
and with
 
respect to
 
such
Lender's right to receive payments of Letter of
 
Credit Fees, and with respect to all other
computations and other
 
matters related to
 
the Letters of
 
Credit, the percentage
 
obtained by dividing
(i) the Revolving Loan Exposure of
 
such Lender, by (ii)
 
the aggregate Revolving Loan Exposure
of all Lenders;
 
provided, that if
 
all of the
 
Revolving Loans have
 
been repaid in
 
full and all
 
Revolver
Commitments have
 
been terminated,
 
but Letters
 
of Credit
 
remain outstanding,
 
Pro Rata
 
Share
under this clause shall be
 
the percentage obtained by
 
dividing (A) the Letter of Credit Exposure
 
of
such Lender, by (B) the Letter of Credit Exposure of all Lenders,
 
(c)
 
with respect to
 
a Lender's obligation
 
to make all
 
or a portion
 
of the Initial
M/E Term
 
Loan and the
 
Additional M/E Term
 
Loan, with respect
 
to a Lender's
 
right to receive
payments of interest, fees,
 
and principal with respect
 
to the M/E Term
 
Loan, and with respect
 
to
all other computations and other matters related to the
 
M/E Term Loan Commitments
 
or the M/E
Term Loan, the percentage obtained by dividing (i) the M/E Term Loan Exposure of such Lender,
by (ii) the aggregate M/E Term Loan Exposure of all Lenders,
 
(d)
 
with respect
 
to a
 
Lender's obligation
 
to make
 
all or
 
a portion
 
of the
 
R/E
Term Loan, with respect to such Lender's right to receive payments of interest, fees, and principal
with respect to the
 
R/E Term
 
Loan, and with respect
 
to all other computations
 
and other matters
related to the
 
R/E Term
 
Loan Commitments or
 
the R/E Term
 
Loan, the percentage
 
obtained by
dividing (i) the R/E
 
Term Loan
 
Exposure of such
 
Lender, by
 
(ii) the aggregate R/E
 
Term Loan
Exposure of all Lenders, and
(e)
 
with respect to all
 
other matters and
 
for all other
 
matters as to
 
a particular
Lender (including the indemnification obligations
 
arising under Section 15.7 of
 
this Agreement),
the percentage obtained by dividing (i)
 
the Revolving Loan Exposure, M/E
 
Term Loan Exposure
and R/E
 
Term Loan
 
Exposure of
 
such Lender,
 
by (ii)
 
the aggregate
 
Revolving Loan
 
Exposure,
M/E Term
 
Loan Exposure and
 
R/E Term
 
Loan Exposure of
 
all Lenders, in
 
any such case
 
as the
applicable percentage may be adjusted by assignments permitted pursuant to Section
 
13.1;
provided, that
 
if all
 
of the
 
Loans have
 
been repaid
 
in full
 
and all
 
Commitments have
 
been
terminated, Pro Rata Share under this
 
clause shall be the percentage obtained
 
by dividing (A) the
Letter of Credit Exposure of such Lender, by (B) the Letter of Credit Exposure of all Lenders.
"Protective Advances
 
"
 
has the
 
meaning specified
 
therefor in
 
Section 2.3(d)(i)
 
of
this Agreement.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
"Public Lender"
 
has the
 
meaning specified
 
therefor in
 
Section 17.9(c)
 
of this
Agreement.
"Qualified Cash" means,
 
as of any
 
date of determination, the
 
amount of unrestricted
cash and Cash Equivalents
 
of the Loan Parties
 
and their Subsidiaries that
 
is in Deposit Accounts
or in
 
Securities Accounts,
 
or any
 
combination thereof,
 
and which
 
such Deposit
 
Account or
Securities Account is the subject of
 
a Control Agreement and is maintained
 
by a branch office of
the bank or securities intermediary located within the United States or Canada.
"Qualified Equity
 
Interests" means
 
and refers
 
to any
 
Equity Interests
 
issued by
Administrative Borrower (and
 
not by one
 
or more of
 
its Subsidiaries)
 
that is
 
not a Disqualified
Equity Interest.
"QFC" has the meaning
 
assigned to the term
 
"qualified financial contract" in,
 
and
shall be interpreted in accordance with, 12 U.S.C. § 5390(c)(8)(D).
"QFC Credit Support" has
 
the meaning specified
 
therefor in Section 17.15
 
of this
Agreement.
"Quebec Security
 
Documents" means
 
any hypothecs
 
and all
 
other security
documents governed by
 
the laws of
 
the Province of
 
Quebec, each in
 
form and substance
 
reasonably
satisfactory to Agent, executed and delivered by a Loan Party to the Agent to secure the
Obligations, and each as amended, restated, supplemented or modified from time to time.
"R/E Borrowing
 
Base" means
 
the result
 
of 60%
 
of the
 
FMV of
 
Eligible Real
Property identified in the most recent Acceptable Appraisal of the Eligible Real Property.
"Real Property"
 
means any
 
estates or
 
interests in
 
real property
 
now owned
 
or
hereafter acquired by any Loan Party or one of its Subsidiaries and the improvements thereto.
"Real Property Collateral"
 
means (a) the Real Property identified on Schedule R-1
to this Agreement,
 
and (b) any Real
 
Property hereafter acquired
 
by any Loan
 
Party or one
 
of its
Subsidiaries (other than
 
any Mexican Subsidiary) with
 
a fair market
 
value in excess of
 
$1,500,000.
"Real Property Reserves"
 
means, as of
 
any date of
 
determination, those
 
reserves
that Agent
 
deems necessary
 
or appropriate,
 
in its
 
Permitted Discretion
 
and subject
 
to Section
2.1(c), to
 
establish and
 
maintain with
 
respect to
 
Eligible Real
 
Property, including
 
based on
 
the
results of appraisals.
"Receivable Reserves" means, as of
 
any date of determination, those
 
reserves that
Agent deems necessary or appropriate, in
 
its Permitted
 
Discretion and subject to Section 2.1(c),
 
to
establish and maintain (including Landlord Reserves for books and records locations and
 
reserves
for rebates, discounts,
 
warranty claims, and returns)
 
with respect to
 
the Eligible Accounts or
 
the
Maximum Revolver Amount.
"Record" means information that
 
is inscribed on a
 
tangible medium or that
 
is stored
in an electronic or other medium and is retrievable in perceivable form.
 
 
 
 
 
 
 
 
"Reference Period"
 
has the meaning set forth in the definition of EBITDA.
"Refinancing Indebtedness"
 
means refinancings,
 
renewals, or
 
extensions of
Indebtedness so long as:
(a)
 
such refinancings, renewals, or
 
extensions do not result
 
in an increase in
 
the
principal amount
 
of the
 
Indebtedness so
 
refinanced, renewed,
 
or extended,
 
other than
 
by the
amount of premiums paid thereon and the fees and expenses incurred in
 
connection therewith and
by the amount of unfunded commitments with respect thereto,
(b)
 
such refinancings, renewals,
 
or extensions do
 
not result in
 
a shortening of
the final stated
 
maturity or the
 
average weighted maturity
 
(measured as of
 
the refinancing, renewal,
or extension) of
 
the Indebtedness so
 
refinanced, renewed, or
 
extended, nor are
 
they on terms
 
or
conditions that, taken as a whole, are or
 
could reasonably be expected to be
 
materially adverse to
the interests of the Lenders,
(c)
 
if the
 
Indebtedness that
 
is refinanced,
 
renewed, or
 
extended was
subordinated in right of payment to the Obligations,
 
then the terms and conditions of the
refinancing, renewal, or
 
extension must include subordination
 
terms and conditions that
 
are at least
as favorable
 
to the
 
Lender Group
 
as those
 
that were
 
applicable to
 
the refinanced,
 
renewed, or
extended Indebtedness,
(d)
 
the Indebtedness that is refinanced, renewed, or extended is not recourse to
any Person
 
that is
 
liable on
 
account of
 
the Obligations
 
other than
 
those Persons
 
which were
obligated with respect to the Indebtedness that was refinanced, renewed, or extended,
(e)
 
if the Indebtedness that is refinanced, renewed or extended
 
was unsecured,
such refinancing, renewal or extension shall be unsecured, and
(f)
 
if the Indebtedness that is refinanced, renewed, or extended was secured (i)
such refinancing, renewal, or
 
extension shall be secured
 
by substantially the same
 
or less collateral
as secured such refinanced,
 
renewed or extended Indebtedness
 
on terms no less
 
favorable to Agent
or the Lender
 
Group and (ii)
 
the Liens securing such
 
refinancing, renewal or
 
extension shall not
have a priority more senior than the Liens securing such Indebtedness that is refinanced, renewed
or extended.
"Register" has the meaning set forth in Section 13.1(h) of this Agreement.
"Registered Loan" has the meaning set forth in Section 13.1(h) of this Agreement.
"Related Fund" means any
 
Person (other than a
 
natural person) that is
 
engaged in
making, purchasing,
 
holding or
 
investing in
 
bank loans
 
and similar
 
extensions of
 
credit in
 
the
ordinary course and that is administered, advised or
 
managed by (a) a Lender, (b) an Affiliate of a
Lender, or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
"Relevant Governmental Body" means the Federal Reserve Board and/or the
Federal Reserve Bank
 
of New York, or a
 
committee officially endorsed
 
or convened by
 
the Federal
Reserve Board and/or the Federal Reserve Bank of New York
 
or any successor thereto.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
"Remedial Action"
 
means all
 
actions taken
 
to (a)
 
clean up,
 
remove, remediate,
contain, treat, monitor, assess, evaluate,
 
or in any way address Hazardous
 
Materials in the indoor
or outdoor
 
environment, (b)
 
prevent or
 
minimize a
 
release or
 
threatened release
 
of Hazardous
Materials so they do
 
not migrate or
 
endanger or threaten to
 
endanger public health or
 
welfare or
the indoor
 
or outdoor
 
environment, (c)
 
restore or
 
reclaim natural
 
resources or
 
the environment,
(d) perform any pre-remedial studies, investigations, or post-remedial operation
 
and maintenance
activities, or
 
(e) conduct any
 
other actions
 
with respect
 
to Hazardous
 
Materials required
 
by
Environmental Laws.
"Replacement Lender" has the
 
meaning specified therefor in
 
Section 2.13(b) of this
Agreement.
"Report" has the meaning specified therefor in Section 15.16 of this Agreement.
"Required Availability"
 
means that the sum
 
of (a) Excess Availability,
plus
 
(b) Qualified Cash exceeds $9,000,000.
"Required Lenders" means, at any time, Lenders having
 
or holding more than 50%
of the sum
 
of (a) the aggregate
 
Revolving Loan Exposure
 
of all Lenders,
plus
 
(b) the aggregate
M/E Term
 
Loan Exposure of
 
all Lenders
 
plus
 
(c) the aggregate
 
R/E Term
 
Loan Exposure of
 
all
Lenders; provided, that
 
(i) the Revolving Loan
 
Exposure, M/E Term Loan
 
Exposure and R/E
 
Term
Loan Exposure of any
 
Defaulting Lender shall be
 
disregarded in the determination
 
of the Required
Lenders, and (ii) at any time there are two or more Lenders (who are not Affiliates of one another
or Defaulting
 
Lenders), "Required
 
Lenders" must
 
include at
 
least two
 
Lenders (who
 
are not
Affiliates of one another).
"Reserves" means,
 
as of
 
any date
 
of determination,
 
Inventory Reserves,
 
M&E
Reserves, Real Property Reserves,
 
Receivable Reserves, Bank Product
 
Reserves, Canadian
Priority Payables Reserves and those other reserves that
 
Agent deems necessary or appropriate, in
its Permitted Discretion and
 
subject to Section 2.1(c),
 
to establish and maintain
 
(including reserves
with respect
 
to (a)
 
sums that
 
any Loan
 
Party or
 
its Subsidiaries
 
are required
 
to pay
 
under any
Section of
 
this Agreement
 
or any other
 
Loan Document
 
(such as
 
taxes, assessments,
 
insurance
premiums, or, in
 
the case of leased assets,
 
rents or other amounts
 
payable under such leases) and
has failed to
 
pay, and
 
(b) amounts owing by
 
any Loan Party
 
or its Subsidiaries
 
to any Person
 
to
the extent secured by a Lien
 
on, or trust over,
 
any of the Collateral (other than a
 
Permitted Lien),
which Lien or trust, in
 
the Permitted Discretion of
 
Agent likely would have a
 
priority superior to
the Agent's Liens
 
(such as Liens
 
or trusts in
 
favor of landlords,
 
warehousemen, carriers, mechanics,
materialmen, laborers, or suppliers, or Liens or
 
trusts for ad valorem, excise, sales,
 
or other taxes
where given priority
 
under applicable law)
 
in and to
 
such item of
 
the Collateral) with
 
respect to
the Borrowing Base or the Maximum Revolver Amount.
"Restricted Payment"
 
means (a) any declaration or payment of any dividend or the
making of any other payment or distribution, directly or indirectly,
 
on account of Equity Interests
issued by Administrative
 
Borrower or any
 
of its Subsidiaries
 
(including any payment
 
in connection
with any
 
merger, amalgamation
 
or consolidation
 
involving Administrative
 
Borrower) or
 
to the
direct or
 
indirect holders
 
of Equity
 
Interests issued
 
by Administrative
 
Borrower or
 
any of
 
its
Subsidiaries in their
 
capacity as such
 
(other than dividends
 
or distributions payable
 
in Qualified
 
 
 
 
 
 
 
 
 
 
 
 
 
Equity Interests issued by Administrative
 
Borrower or any
 
of its Subsidiaries, or (b)
 
any purchase,
redemption, making of any sinking fund or similar payment, or other acquisition or retirement for
value (including in
 
connection with any
 
merger, amalgamation
 
or consolidation involving
Administrative Borrower) any
 
Equity Interests issued
 
by Administrative Borrower
 
or any of
 
its
Subsidiaries, or
 
(c) any making
 
of any
 
payment to
 
retire, or
 
to obtain
 
the surrender
 
of, any
outstanding warrants, options, or other rights to
 
acquire Equity Interests of Administrative
Borrower now or hereafter outstanding.
"R/E Term
 
Loan" has
 
the meaning
 
specified therefor
 
in Section
 
2.2(b) of
 
this
Agreement.
"R/E Term Loan Amount" means $9,500,000.
"R/E Term
 
Loan Commitment" means, with
 
respect to each Lender,
 
its R/E Term
Loan Commitment, and, with respect to
 
all Lenders, their R/E Term
 
Loan Commitments, in each
case as such Dollar amounts are set forth beside such Lender's name under the applicable
 
heading
on Schedule C-1 to this Agreement or in
 
the Assignment and Acceptance pursuant to which
 
such
Lender became a
 
Lender under this
 
Agreement, as such
 
amounts may be
 
reduced or increased
 
from
time to time
 
pursuant to assignments
 
made in accordance
 
with the provisions
 
of Section 13.1
 
of
this Agreement.
"R/E Term Loan Exposure" means,
 
with respect to any R/E Term
 
Loan Lender, as
of any date of determination (a) prior to the funding
 
of the Loan, the amount of such Lender's R/E
Term Loan Commitment, and
 
(b) after the funding
 
of the R/E
 
Term Loan, the outstanding
 
principal
amount of the R/E Term Loan held by such Lender.
"Revaluation Date" means (a) with respect to any Revolving Loan denominated in
US Dollars, each of the following:
 
(i) each date of a Borrowing of such
 
Revolving Loan, (ii) each
date of a continuation
 
of such Revolving Loan
 
pursuant to Section 2.12,
 
and (iii) such additional
dates as Agent shall
 
determine or the Required
 
Lenders shall require, (b)
 
with respect to any
 
Letter
of Credit
 
denominated in
 
US Dollars,
 
each of
 
the following:
 
(i) each date
 
of issuance
 
of such
Letter of
 
Credit, (ii)
 
each date
 
of an
 
amendment of
 
such Letter
 
of Credit
 
having the
 
effect of
increasing the
 
amount thereof,
 
(iii) each date
 
of any
 
payment by
 
an Issuing
 
Lender under such
Letter of Credit
 
,
 
and (iv) such additional
 
dates as Agent
 
or an Issuing
 
Lender shall determine
 
or
the Required Lenders shall
 
require, and (c) with respect to
 
any other Obligations denominated
 
in
US Dollars, each date as
 
Agent shall determine unless otherwise prescribed
 
in this Agreement or
any other Loan Documents.
"Revolver Commitment" means,
 
with respect to
 
each Revolving Lender,
 
its
Revolver Commitment, and, with respect to all Revolving Lenders, their Revolver Commitments,
in each case as such Dollar amounts are set forth
 
beside such Revolving Lender's name under the
applicable heading on
 
Schedule C-1 to
 
this Agreement or
 
in the Assignment
 
and Acceptance or
Increase Joinder pursuant to which such
 
Revolving Lender became a Revolving Lender
 
under this
Agreement, as such amounts may be
 
reduced or increased from time
 
to time pursuant to
assignments made in
 
accordance with
 
the provisions
 
of Section 13.1
 
of this
 
Agreement, and
 
as
such amounts may be decreased by the amount of reductions in the Revolver Commitments made
in accordance with Section 2.4(c) hereof.
 
 
 
 
 
 
 
 
 
 
 
"Revolver Usage" means,
 
as of any
 
date of determination,
 
the sum of
 
(a) the amount
of outstanding Revolving Loans (inclusive of
 
Swing Loans and Protective Advances),
plus
 
(b) the
amount of the Letter of Credit Usage.
"Revolving Lender" means a Lender that has a
 
Revolving Loan Exposure or Letter
of Credit Exposure.
"Revolving Loan Base Rate Margin" has
 
the meaning set forth in the
 
definition of
Applicable Margin.
"Revolving Loan Exposure
 
"
 
means, with respect
 
to any Revolving
 
Lender, as
 
of
any date of determination
 
(a) prior to the termination
 
of the Revolver Commitments,
 
the amount
of such
 
Lender's Revolver
 
Commitment, and
 
(b) after the
 
termination of
 
the Revolver
Commitments, the aggregate
 
outstanding principal amount
 
of the Revolving
 
Loans of such
 
Lender.
"Revolving Loan LIBOR Rate Margin"
 
has the meaning set forth in
 
the definition
of Applicable Margin.
"Revolving Loans"
 
has the
 
meaning specified
 
therefor in
 
Section 2.1(a)
 
of this
Agreement.
"Sanctioned Entity" means (a)
 
a country or territory or
 
a government of a
 
country
or territory, (b) an agency of the
 
government of a country or territory, (c)
 
an organization directly
or indirectly controlled by
 
a country or
 
territory or its
 
government, or (d) a
 
Person resident in
 
or
determined to be resident in a country or territory,
 
in each case of clauses (a) through (d) that is
 
a
target of Sanctions, including
 
a target of any
 
country sanctions program
 
administered and enforced
by OFAC.
"Sanctioned Person
 
"
 
means, at
 
any time
 
(a) any Person
 
named on
 
the list
 
of
Specially Designated Nationals and Blocked Persons maintained by OFAC, OFAC's consolidated
Non-SDN list or any
 
other Sanctions-related list maintained
 
by any Governmental Authority, (b) a
Person or legal entity that is a target of Sanctions,
 
(c) any Person operating, organized or resident
in a Sanctioned Entity,
 
or (d) any Person
 
directly or indirectly
 
owned or controlled
 
(individually
or in the aggregate) by or
 
acting on behalf of any such Person
 
or Persons described in clauses (a)
through (c) above.
"Sanctions" means individually
 
and collectively, respectively, any and
 
all economic
sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade
embargoes anti-terrorism laws and
 
other sanctions laws,
 
regulations or embargoes, including
 
those
imposed, administered
 
or enforced
 
from time
 
to time
 
by:
 
(a) the United
 
States of
 
America,
including those
 
administered by
 
OFAC, the
 
U.S. Department
 
of State,
 
the U.S.
 
Department of
Commerce, or
 
through any
 
existing or
 
future executive
 
order, (b)
 
the United
 
Nations Security
Council, (c) the Government of Canada, (d) the European Union or any European Union member
state, (e) Her Majesty's Treasury of the
 
United Kingdom, or (f) any other
 
Governmental Authority
with jurisdiction over any member
 
of Lender Group or
 
any Loan Party or
 
any of their respective
Subsidiaries or Affiliates.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
"S&P" has
 
the meaning
 
specified therefor
 
in the
 
definition of
 
Domestic Cash
Equivalents.
"SEC" means
 
the United
 
States Securities
 
and Exchange
 
Commission and
 
any
successor thereto.
"Securities Account"
 
means a
 
securities account
 
(as that
 
term is
 
defined in
 
the
Code).
"Securities Act" means the Securities
 
Act of 1933, as amended
 
from time to time,
and any successor statute.
"Settlement" has the
 
meaning specified therefor
 
in Section
 
2.3(e)(i) of this
Agreement.
"Settlement Date"
 
has the
 
meaning specified
 
therefor in
 
Section 2.3(e)(i)
 
of this
Agreement.
"SOFR" with respect to any day means the secured overnight financing rate
published for
 
such day
 
by the
 
Federal Reserve
 
Bank of
 
New York,
 
as the
 
administrator of
 
the
benchmark, (or a successor administrator) on the Federal Reserve Bank of New York's Website.
"Solvent" means, with
 
respect to any
 
Person as of
 
any date of determination,
 
that
(a) at fair valuations, the
 
sum of such Person's
 
debts (including contingent liabilities)
 
is less than
all of
 
such Person's
 
assets, (b)
 
such Person
 
is not
 
engaged or
 
about to
 
engage in
 
a business
 
or
transaction for which the remaining
 
assets of such Person are unreasonably
 
small in relation to the
business or transaction or
 
for which the property
 
remaining with such Person
 
is an unreasonably
small capital, (c) such Person has not incurred and does not intend
 
to incur, or reasonably believe
that it will
 
incur, debts beyond its
 
ability to pay
 
such debts as
 
they become due
 
(whether at maturity
or otherwise), and
 
(d) such Person is "solvent"
 
or not "insolvent",
 
as applicable within the
 
meaning
given those
 
terms and
 
similar terms
 
under applicable
 
laws relating
 
to bankruptcy,
 
insolvency,
fraudulent transfers and conveyances.
 
For purposes of this definition,
 
the amount of any
contingent liability at any time
 
shall be computed as the
 
amount that, in light of
 
all of the facts and
circumstances existing
 
at such
 
time, represents
 
the amount
 
that can
 
reasonably be
 
expected to
become an actual or matured liability (irrespective of whether such contingent liabilities meet
 
the
criteria for accrual under Statement of Financial Accounting Standard No. 5).
"Specified State"
 
means any one of (a) the United States and (b) Canada.
"Specified Transaction"
 
means, any
 
Investment, or
 
Restricted Payment
 
(or
declaration of any prepayment or Restricted Payment).
"Spot Rate"
 
means, for
 
a currency,
 
the rate
 
determined by
 
Agent to
 
be the
 
rate
quoted by Xxxxx
 
Fargo acting in such capacity as the spot rate for the purchase by Xxxxx
 
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 Xxxxx 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 Xxxxx
 
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.
"Xxxxx Fargo
 
"
 
means Xxxxx
 
Fargo Bank, National Association, a national
 
banking
association.
"Withdrawal Liability"
 
means liability with
 
respect to a
 
Multiemployer Plan as
 
a
result of a
 
complete or partial
 
withdrawal from such
 
Multiemployer Plan, as
 
such terms are
 
defined
in Part I of Subtitle E of Title IV of ERISA.
"Write-Down and Conversion Powers" means, with
 
respect to any EEA
 
Resolution
Authority, the write-down and conversion powers of such EEA
 
Resolution Authority from time to
time under the
 
Bail-In Legislation for
 
the applicable
 
EEA Member Country,
 
which write
 
-down
and conversion powers are described in the EU Bail-In Legislation Schedule.
1.2.
 
Accounting Terms
.
 
All accounting terms not specifically defined herein shall
be construed in accordance with GAAP; provided, that if Administrative Borrower notifies Agent
that Borrowers
 
request an
 
amendment to
 
any provision
 
hereof to
 
eliminate the
 
effect of
 
any
Accounting Change occurring after the Closing Date
 
or in the application thereof on
 
the operation
of such provision (or if Agent
 
notifies Administrative Borrower that the Required
 
Lenders request
an amendment to any provision hereof for such purpose),
 
regardless of whether any such notice is
given before
 
or after
 
such Accounting
 
Change or
 
in the
 
application thereof,
 
then Agent
 
and
Borrowers agree
 
that they
 
will negotiate
 
in good
 
faith amendments
 
to the
 
provisions of
 
this
Agreement that
 
are directly
 
affected by
 
such Accounting
 
Change with
 
the intent
 
of having
 
the
respective positions
 
of the
 
Lenders and
 
Borrowers after
 
such Accounting
 
Change conform
 
as
nearly as possible to their respective
 
positions immediately before such Accounting Change
 
took
effect and,
 
until any
 
such amendments
 
have been
 
agreed upon
 
and agreed
 
to by
 
the Required
Lenders, the provisions
 
in this
 
Agreement shall be
 
calculated as if
 
no such Accounting
 
Change
had occurred.
 
When used
 
herein, the
 
term "financial
 
statements" shall
 
include the
 
notes and
schedules thereto. Whenever the term
 
"Borrowers" is used in respect
 
of a financial covenant or
 
a
related definition,
 
it shall
 
be understood
 
to mean
 
the Loan
 
Parties and
 
their Subsidiaries
 
on a
consolidated basis, unless the context clearly
 
requires otherwise.
 
Notwithstanding anything to the
contrary contained herein, (a)
 
all financial statements delivered
 
hereunder shall be
 
prepared, and
all financial covenants contained
 
herein shall be calculated,
 
without giving effect
 
to any election
under the Statement of Financial Accounting Standards Board's Accounting Standards
Codification Topic
 
825 (or
 
any similar
 
accounting principle)
 
permitting a
 
Person to
 
value its
financial liabilities or Indebtedness
 
at the fair value
 
thereof, and (b) the term
 
"unqualified opinion"
as used herein
 
to refer to
 
opinions or reports
 
provided by accountants
 
shall mean an
 
opinion or
report that is (i) unqualified, and (ii) does not include any explanation, supplemental comment, or
 
 
 
other comment concerning the
 
ability of the applicable
 
Person to continue
 
as a going concern
 
or
concerning the scope of the audit.
1.3.
 
Code; PPSA
.
 
Any terms
 
used in
 
this Agreement
 
that are
 
defined in
 
(a) the
Code shall
 
be construed
 
and defined
 
as set
 
forth in
 
the Code
 
unless otherwise
 
defined herein;
provided, that to the
 
extent that the Code
 
is used to define
 
any term herein and
 
such term is defined
differently in different
 
Articles of the Code,
 
the definition of such
 
term contained in Article
 
9 of
the Code shall govern,
 
and (b) the PPSA shall
 
be construed and defined
 
as set forth in
 
the PPSA
unless otherwise defined
 
herein when used in
 
relation to Collateral
 
subject to the
 
PPSA.
 
Notwithstanding the
 
foregoing, and
 
where the
 
context so
 
requires, (i)
 
any term
 
defined in
 
this
Agreement by reference to the "Code", the "UCC"
 
or the "Uniform Commercial Code" shall also
have any extended,
 
alternative or analogous
 
meaning given to
 
such term in
 
applicable Canadian
personal property
 
security and
 
other laws
 
(including, without
 
limitation, the
 
PPSA, the
Bills of
Exchange Act
 
(Canada) and
 
the
Depository Bills
 
and Notes
 
Act
 
(Canada)), in
 
all cases
 
for the
extension, preservation or betterment of the security and
 
rights of the Collateral, (ii) all references
in this Agreement
 
to "Article 8"
 
shall be deemed
 
to refer also
 
to applicable Canadian
 
securities
transfer laws (including,
 
without limitation, the
 
STA), (iii)
 
all references in
 
this Agreement to
 
a
financing statement, continuation statement,
 
amendment or termination statement
 
shall be deemed
to refer also
 
to the analogous
 
documents used under
 
the PPSA, (iv)
 
all references to
 
the United
States of America,
 
or to any
 
subdivision, department, agency
 
or instrumentality thereof
 
shall be
deemed to
 
refer also
 
to Canada,
 
or to
 
any subdivision,
 
department, agency
 
or instrumentality
thereof, and (v) all references
 
to federal or state
 
securities law of the
 
United States shall be
 
deemed
to refer also to analogous federal (where applicable) and provincial securities laws in Canada.
1.4.
 
Construction
.
 
Unless the context of this Agreement or any
 
other Loan
Document clearly requires
 
otherwise, references to
 
the plural include
 
the singular,
 
references to
the singular include the plural, the terms
 
"includes" and
 
"including" are not limiting, and the term
"or" has,
 
except where
 
otherwise indicated,
 
the inclusive
 
meaning represented
 
by the
 
phrase
"and/or."
 
The words "hereof,"
 
"herein," "hereby,"
 
"hereunder," and
 
similar terms in
 
this
Agreement or any other Loan
 
Document refer to this Agreement
 
or such other Loan Document, as
the case may
 
be, as a
 
whole and not
 
to any particular
 
provision of this
 
Agreement or such
 
other
Loan Document, as the case may
 
be.
 
Section, subsection, clause, schedule, and exhibit references
herein are to
 
this Agreement unless
 
otherwise specified.
 
Any reference in
 
this Agreement or
 
in
any other Loan Document to any agreement, instrument, or
 
document shall include all alterations,
amendments, changes, extensions, modifications, renewals, replacements,
 
substitutions, joinders,
and supplements, thereto and thereof,
 
as applicable (subject to any restrictions
 
on such alterations,
amendments, changes, extensions, modifications, renewals, replacements,
 
substitutions, joinders,
and supplements set
 
forth herein).
 
The words "asset"
 
and "property" shall
 
be construed to
 
have
the same
 
meaning and
 
effect and
 
to refer
 
to any
 
and all
 
tangible and
 
intangible assets
 
and
properties.
 
All references to "province" or
 
like terms shall include "territory"
 
and like terms.
 
Any
reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full
of the Obligations shall mean (a) the payment or repayment in
 
full in immediately available funds
of (i)
 
the principal
 
amount of,
 
and interest
 
accrued and
 
unpaid with
 
respect to,
 
all outstanding
Loans, together with
 
the payment of any
 
premium applicable to the
 
repayment of the Loans,
 
(ii) all
Lender Group Expenses that have accrued and are unpaid regardless of whether demand has been
made therefor,
 
and (iii) all fees
 
or charges that
 
have accrued hereunder
 
or under any
 
other Loan
Document (including the Letter of Credit Fee and the Unused Line Fee) and are unpaid, (b) in the
 
 
 
 
 
case of contingent reimbursement obligations
 
with respect to Letters
 
of Credit, providing Letter of
Credit Collateralization, (c)
 
in the case
 
of obligations with
 
respect to Bank
 
Products (other than
Hedge Obligations), providing
 
Bank Product Collateralization,
 
(d) the receipt
 
by Agent of
 
cash
collateral in
 
order to
 
secure any
 
other contingent
 
Obligations for
 
which a
 
claim or
 
demand for
payment has been made on or
 
prior to such time or in
 
respect of matters or circumstances known
to Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage,
or expense (including
 
attorneys' fees and
 
legal expenses), such
 
cash collateral to be
 
in such amount
as Agent
 
reasonably determines
 
is appropriate
 
to secure
 
such contingent
 
Obligations, (e)
 
the
payment or repayment in full
 
in immediately available funds of all
 
other outstanding Obligations
(including the
 
payment of
 
any termination
 
amount then
 
applicable (or
 
which would
 
or could
become applicable as a result
 
of the repayment of
 
the other Obligations) under Hedge
 
Agreements
provided by Hedge
 
Providers) other
 
than (i)
 
unasserted contingent
 
indemnification Obligations,
(ii) any Bank Product Obligations
 
(other than Hedge Obligations)
 
that, at such time,
 
are allowed
by the applicable
 
Bank Product Provider to
 
remain outstanding without being
 
required to be repaid
or cash
 
collateralized, and
 
(iii) any Hedge
 
Obligations that,
 
at such
 
time, are
 
allowed by
 
the
applicable Hedge Provider to remain
 
outstanding without being required
 
to be repaid, and (f)
 
the
termination of all of
 
the Commitments of
 
the Lenders.
 
Any reference herein to
 
any Person shall
be construed
 
to include
 
such Person's
 
successors and
 
assigns.
 
Any requirement
 
of a
 
writing
contained herein or in
 
any other Loan Document
 
shall be satisfied by
 
the transmission of a
 
Record.
1.5.
 
Time References
.
 
Unless the
 
context of
 
this Agreement
 
or any
 
other Loan
Document clearly requires otherwise,
 
all references to
 
time of day refer
 
to Central standard time
or Central daylight saving time, as in effect
 
in Chicago, Illinois on such day.
 
For purposes of the
computation of a
 
period of time
 
from a specified
 
date to a
 
later specified date,
 
unless otherwise
expressly provided, the word
 
"from" means "from and
 
including" and the words
 
"to" and "until"
each means
 
"to and
 
including"; provided,
 
that with
 
respect to
 
a computation
 
of fees
 
or interest
payable to Agent or any Lender, such period shall in any event consist of at least one full day.
1.6.
 
Schedules and
 
Exhibits
.
 
All of
 
the schedules
 
and exhibits
 
attached to
 
this
Agreement shall be deemed incorporated herein by reference.
1.7.
 
Divisions
.
 
For all purposes under
 
the Loan Documents, in connection
 
with any
division or
 
plan of
 
division under
 
Delaware law
 
(or any
 
comparable event
 
under a
 
different
jurisdiction's laws): (a) if any asset,
 
right, obligation or liability of any Person
 
becomes the asset,
right, obligation or liability of a different Person, then it shall be deemed to have been transferred
from the original Person
 
to the subsequent Person,
 
and (b) if any
 
new Person comes into
 
existence,
such new Person shall
 
be deemed to have
 
been organized on
 
the first date of
 
its existence by the
holders of its Equity Interests at such time.
1.8.
 
Exchange Rates;
 
Currency Equivalents;
 
Applicable Currency
.
 
For
purposes of this
 
Agreement and the
 
other Loan Documents, the
 
Dollar Equivalent of
 
the Revolving
Loans, Letters
 
of Credit,
 
other Obligations
 
and other
 
references to
 
amounts denominated
 
in a
currency other than US
 
Dollars shall be determined
 
in accordance with the
 
terms of this
Agreement.
 
Such US Dollar
 
Equivalent shall become
 
effective as of
 
such Revaluation Date
 
for
such Revolving
 
Loans, Letters
 
of Credit
 
and other
 
Obligations and
 
shall be
 
the US
 
Dollar
Equivalent employed in converting any
 
amounts between the applicable currencies
 
until the next
Revaluation Date
 
to occur
 
for such
 
Revolving Loans,
 
Letters of
 
Credit and
 
other Obligations.
 
 
 
 
 
 
 
Except as
 
otherwise expressly
 
provided herein
 
or in
 
the applicable
 
other Loan
 
Document, the
applicable amount of any currency for purposes of this Agreement
 
and the other Loan Documents
(including all
 
calculations in
 
connection with
 
the covenants,
 
including the
 
financial covenants)
shall be the US Dollar Equivalent thereof, and
 
for the purpose of such calculations,
 
comparisons,
measurements or determinations, amounts denominated in
 
currencies other than US Dollars shall
be converted into the
 
US Dollar Equivalent of
 
such amount on the
 
date of calculation, comparison,
measurement or
 
determination.
 
Notwithstanding the
 
foregoing, for
 
the purposes
 
of financial
statements and any components
 
of the financial covenant
 
contained in Section 7)
 
derived
therefrom, in
 
each case
 
prepared by
 
Borrowers, the
 
US Dollar
 
Equivalent of
 
each amount
 
in a
currency other than US Dollars shall be determined in accordance with GAAP.
1.9.
 
Quebec Interpretation
.
 
For all purposes
 
of any
 
assets, liabilities
 
or entities
located in
 
the Province
 
of Quebec
 
and for
 
all purposes
 
pursuant to
 
which the
 
interpretation or
construction of this Agreement may be subject to the laws
 
of the Province of Quebec or a court or
tribunal exercising jurisdiction
 
in the
 
Province of
 
Quebec, (a)
 
"personal property"
 
shall include
"movable property",
 
(b) "real property"
 
shall include
 
"immovable property",
 
(c) "tangible
property" shall include
 
"corporeal property", (d)
 
"intangible property" shall
 
include "incorporeal
property", (e) "security interest", "mortgage"
 
and "lien" shall include
 
a "hypothec", "prior claim"
and a "resolutory
 
clause", (f) all
 
references to filing,
 
registering or recording
 
under the Code
 
or
PPSA shall include publication under the Civil Code of Quebec, (g) all references to
 
"perfection"
of or "perfected" liens
 
or security interest shall
 
include a reference to
 
an "opposable" or "set
 
up"
lien or security interest as against third parties, (h) any "right of offset", "right of setoff' or similar
expression shall
 
include a "right
 
of compensation",
 
(i) "goods" shall
 
include corporeal movable
property" other than
 
chattel paper,
 
documents of
 
title, instruments,
 
money and securities,
 
(j) an
"agent" shall
 
include a
 
"mandatary", (k)
 
"construction liens"
 
shall include
 
"legal hypothecs",
(l) "joint and several" shall include
 
solidary, (m) "gross negligence or willful misconduct" shall
 
be
deemed to be "intentional or
 
gross fault", (n) "beneficial ownership" shall
 
include "ownership on
behalf of
 
another as
 
mandatary", (o)
 
"easement" shall
 
include "servitude",
 
(p) "priority" shall
include "prior
 
claim", (q)
 
"survey" shall
 
include "certificate
 
of location
 
and plan",
 
and (r)
 
"fee
simple title" shall include "absolute ownership."
 
2.
 
LOANS AND TERMS OF PAYMENT.
2.1.
 
Revolving Loans
.
(a)
 
Subject to the terms and conditions of this Agreement, and during the term
of this Agreement, each
 
Revolving Lender agrees (severally,
 
not jointly or jointly
 
and severally)
to make revolving
 
loans in
 
Dollars ("Revolving Loans")
 
to Borrowers in
 
an amount
 
at any one
time outstanding not to exceed
the lesser of
:
(i)
 
such Lender's Revolver Commitment, or
(ii)
 
such Lender's Pro Rata Share of an amount equal to the lesser of:
(A)
 
the amount
 
equal to
 
(1) the Maximum
 
Revolver Amount,
less
 
(2) the sum of
 
(y) the Letter of
 
Credit Usage
 
at such time,
plus
 
(z) the principal amount
 
of
Swing Loans outstanding at such time, and
 
 
 
 
 
 
 
 
(B)
 
the amount equal to
 
(1) the Borrowing Base as of
 
such date
(based upon
 
the most
 
recent Borrowing
 
Base Certificate
 
delivered by
 
Borrowers to
 
Agent, as
adjusted for Reserves established by Agent in accordance with Section 2.1(c)),
less
 
(2) the sum of
(x) the Letter of
 
Credit Usage
 
at such
 
time,
plus
 
(y) the principal
 
amount of
 
Swing Loans
outstanding at such time.
(b)
 
Amounts borrowed pursuant to this Section 2.1 may
 
be repaid and, subject
to the
 
terms and
 
conditions of
 
this Agreement,
 
reborrowed at
 
any time
 
during the
 
term of
 
this
Agreement.
 
The outstanding
 
principal amount
 
of the
 
Revolving Loans,
 
together with
 
interest
accrued and
 
unpaid thereon,
 
shall constitute
 
Obligations and
 
shall be
 
due and
 
payable on
 
the
Maturity Date or, if earlier, on the date on
 
which they otherwise become
 
due and payable pursuant
to the terms of this Agreement.
(c)
 
Anything to
 
the contrary
 
in this
 
Section 2.1
 
notwithstanding, Agent shall
have the right
 
(but not the
 
obligation) at any
 
time, in the
 
exercise of its
 
Permitted Discretion, to
establish and
 
increase or
 
decrease Reserves
 
and against
 
the Borrowing
 
Base or
 
the Maximum
Revolver Amount.
 
The amount
 
of any
 
Reserve established
 
by Agent,
 
and any
 
changes to
 
the
eligibility criteria
 
set forth
 
in the
 
definitions of
 
Eligible Accounts,
 
Eligible Inventory,
 
Eligible
M&E, and Eligible
 
Real Property shall
 
have a reasonable
 
relationship to the event,
 
condition, other
circumstance, or
 
fact that
 
is the
 
basis for
 
such reserve
 
or change
 
in eligibility
 
and shall
 
not be
duplicative of any other reserve established and currently maintained or eligibility criteria.
 
2.2.
 
Term
 
Loans
.
 
(a)
 
Subject to the
 
terms and conditions
 
of this Agreement,
 
(i) on the
 
Closing
Date each Lender with a
 
M/E Term Loan Commitment agrees (severally, not jointly or jointly and
severally) to
 
make term
 
loans (collectively,
 
the "Initial
 
M/E Term
 
Loan") to
 
Borrowers in
 
an
amount equal
 
to the
 
lesser of
 
(a) such L
 
ender's M/E
 
Term Loan
 
Commitment, and
 
(b) such
Lender's Pro
 
Rata Share
 
of the
 
lesser of
 
(x) the M/E
 
Term Loan
 
Amount and
 
(y) the M&E
Borrowing Base and
 
(ii) after the
 
Closing Date and
 
prior to April
 
27, 2022 and
 
subject to the
 
receipt
by Agent of an Acceptable Appraisal with respect to the
 
Eligible M&E after the Closing Date and
within three months
 
prior to the
 
date of the funding
 
of the Additional
 
M/E Term Loan, each Lender
with an
 
M/E Term
 
Loan Commitment
 
agrees (severally,
 
not jointly
 
or jointly
 
and severally)
 
to
make a single additional term loan (the "Additional M/E Term Loan") to Borrowers in an amount
equal to the
 
lesser of (a)
 
such Lender's M/E Term Loan
 
Commitment less the outstanding
 
principal
amount of the Initial M/E Term
 
Loan held by such Lender,
 
and (b) such Lender's Pro Rata
 
Share
of the
 
lesser of
 
(x) the Additional
 
M/E Term
 
Loan Amount
 
and (y)
 
the M&E
 
Borrowing Base
(based upon the then
 
most recently received Acceptable
 
Appraisal of Eligible M/E)
 
less the then
outstanding principal balance of the Initial M/E Term Loan.
 
The principal of the M/E Term Loan
shall be repaid on the following dates and in the following amounts:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Date
Installment Amount
(prior to funding of the
Additional M/E Term
Loan)
Installment Amount
(after the funding of
the Additional M/E
Term Loan)
November 30, 2020 and
the last day of each
month through and
including November 30,
2024
$86,785.71
1/84th of the principal
amount of the M/E
Term Loan
immediately after the
funding of the
Additional M/E Term
Loan
 
The outstanding unpaid
 
principal balance and
 
all accrued and
 
unpaid interest
 
on the M/E
 
Term
Loan shall be due
 
and payable on
 
the earlier of (x)
 
the Maturity Date,
 
and (y) the date
 
on which
the M/E Term Loan otherwise becomes due and payable pursuant to
 
the terms of this Agreement.
 
Any principal
 
amount of
 
the M/E
 
Term Loan
 
that is
 
repaid or
 
prepaid may
 
not be
 
reborrowed
except as expressly provided by clause (ii)
 
above with respect to the Additional
 
M/E Term
 
Loan.
 
All principal of,
 
interest on,
 
and other amounts
 
payable in
 
respect of
 
the M/E
 
Term Loan
 
shall
constitute Obligations hereunder.
(b)
 
Subject to the terms and conditions of this Agreement, on the Closing Date
each Lender
 
with a
 
R/E Term
 
Loan Commitment
 
agrees (severally,
 
not jointly
 
or jointly
 
and
severally) to
 
make term
 
loans (collectively,
 
the "R/E
 
Term Loan")
 
to Borrowers
 
in an
 
amount
equal to the
 
lesser of (a)
 
such Lender's R/E
 
Term Loan
 
Commitment, and (b)
 
such Lender's Pro
Rata Share of the lesser
 
of (i) the R/E Term Loan Amount and (ii) the R/E Borrowing
 
Base (based
upon the R/E Borrowing Base Certificate
 
delivered by Borrowers to Agent
 
on the Closing Date).
 
The principal of
 
the R/E Term
 
Loan shall be
 
repaid on the
 
following dates and
 
in the following
amounts:
Date
Installment Amount
November 30, 2020 and the last
day of each month through and
including November 30, 2024
$113,095.24
 
The outstanding
 
unpaid principal
 
balance and all
 
accrued and unpaid
 
interest on
 
the R/E
 
Term
Loan shall be
 
due and payable
 
on the earlier
 
of (i) the Maturity
 
Date, and (ii)
 
the date on
 
which
the R/E Term
 
Loan otherwise becomes due and payable pursuant
 
to the terms of this Agreement.
 
Any principal amount of the R/E Term Loan that is repaid or prepaid may not be
 
reborrowed.
 
All
principal of,
 
interest on,
 
and other
 
amounts payable
 
in respect
 
of the
 
R/E Term
 
Loan shall
constitute Obligations hereunder.
 
 
 
 
 
 
 
 
 
 
 
2.3.
 
Borrowing Procedures and Settlements
.
(a)
 
Procedure for Borrowing Revolving Loans and Term
 
Loans
.
 
(i)
 
Each Borrowing shall
 
be made by
 
a written request
 
by an Authorized
Person delivered to Agent (which may be delivered through Agent's electronic platform or portal)
and received by
 
Agent no later
 
than 1:00 p.m.
 
(i) on the Business
 
Day that is the
 
requested Funding
Date in the case of a request for a
 
Swing Loan, (ii) on the Business Day that
 
is one Business Day
prior to the requested Funding Date in
 
the case of a request for a Base
 
Rate Loan, and (iii) on the
Business Day that
 
is three Business
 
Days prior to
 
the requested Funding
 
Date in the
 
case of all
other requests, specifying (A) the amount of such Borrowing,
 
and (B) the requested Funding Date
(which shall be a
 
Business Day); provided, that
 
Agent may,
 
in its sole
 
discretion, elect to accept
as timely
 
requests that
 
are received
 
later than
 
1:00 p.m.
 
on the
 
applicable Business
 
Day.
 
All
Borrowing requests which are not
 
made on-line via Agent's electronic
 
platform or portal shall be
subject to (and
 
unless Agent elects
 
otherwise in the
 
exercise of its sole
 
discretion, such Borrowings
shall not be made until the
 
completion of) Agent's authentication process (with
 
results satisfactory
to Agent) prior to the funding of any such requested Revolving Loan.
(ii)
 
The Additional M/E Term
 
Loan shall be made by
 
a written request
by an Authorized Person delivered to Agent and received by Agent no later than 3:00
 
p.m. on the
Business Day that
 
is 10 days
 
prior to the
 
requested Funding Date,
 
specifying (A) the amount
 
of
the Additional M/E
 
Term Loan,
 
and (B) the requested
 
Funding Date (which
 
shall be a
 
Business
Day).
 
(b)
 
Making of Swing Loans
.
 
In the case of a Revolving
 
Loan and so long as
any of (i)
 
the aggregate amount
 
of Swing Loans
 
made since the
 
last Settlement
 
Date,
minus
 
all
payments or other amounts
 
applied to Swing Loans
 
since the last Settlement
 
Date,
plus
 
the amount
of the
 
requested Swing
 
Loan does
 
not exceed
 
$2,500,000, or
 
(ii) Swing Lender,
 
in its
 
sole
discretion, agrees to make a Swing Loan
 
notwithstanding the foregoing limitation, Swing Lender
shall make a Revolving
 
Loan (any such Revolving
 
Loan made by Swing
 
Lender pursuant to this
Section 2.3(b) being referred to
 
as a "Swing Loan" and
 
all such Revolving Loans being
 
referred to
as "Swing Loans") available to Borrowers on the
 
Funding Date applicable thereto by transferring
immediately available funds in
 
the amount of such
 
Borrowing to the Designated
 
Account.
 
Each
Swing Loan shall
 
be deemed to be
 
a Revolving Loan
 
hereunder and shall
 
be subject to all
 
the terms
and conditions (including Section
 
3) applicable to
 
other Revolving Loans,
 
except that all payments
(including interest)
 
on any
 
Swing Loan
 
shall be
 
payable to
 
Swing Lender
 
solely for
 
its own
account.
 
Subject to the
 
provisions of Section
 
2.3(d)(ii), Swing Lender
 
shall not make
 
and shall
not be obligated
 
to make any
 
Swing Loan if
 
Swing Lender has
 
actual knowledge that
 
(i) one or
more of
 
the applicable
 
conditions precedent
 
set forth
 
in Section
 
3 will
 
not be
 
satisfied on
 
the
requested Funding
 
Date for
 
the applicable
 
Borrowing, or
 
(ii) the requested
 
Borrowing would
exceed the Availability
 
on such Funding
 
Date.
 
Swing Lender shall
 
not otherwise be
 
required to
determine whether the
 
applicable conditions precedent
 
set forth in
 
Section 3 have
 
been satisfied
on the Funding Date applicable thereto prior to
 
making any Swing Loan.
 
The Swing Loans shall
be secured by Agent's Liens, constitute Revolving Loans and Obligations, and bear interest
 
at the
rate applicable from time to time to Revolving Loans that are Base Rate Loans.
 
 
 
 
 
(c)
 
Making of Revolving Loans
.
(i)
 
In the
 
event that
 
Swing Lender
 
is not
 
obligated to
 
make a
 
Swing
Loan, then
 
after receipt
 
of a
 
request for
 
a Borrowing
 
pursuant to
 
Section 2.3(a)(i),
 
Agent shall
notify the Lenders by
 
telecopy, telephone,
 
email, or other electronic
 
form of transmission, of
 
the
requested Borrowing; such notification to be
 
sent on the Business Day that is
 
(A) in the case of a
Base Rate Loan, at least one Business Day prior to the requested Funding Date, or (B) in the case
of a
 
LIBOR Rate
 
Loan, prior
 
to 1:00
 
p.m. at
 
least three
 
Business Days
 
prior to
 
the requested
Funding Date.
 
If Agent has notified
 
the Lenders of
 
a requested Borrowing on
 
the Business Day
that is one
 
Business Day prior
 
to the Funding
 
Date, then each
 
Lender shall make
 
the amount of
such Lender's
 
Pro Rata
 
Share of
 
the requested
 
Borrowing available
 
to Agent
 
in immediately
available funds,
 
to Agent's
 
Account, not
 
later than
 
12:00 p.m.
 
on the
 
Business Day
 
that is
 
the
requested Funding Date.
 
After Agent's receipt of the proceeds of such Revolving Loans from the
Lenders, Agent shall make the proceeds thereof available to Borrowers on
 
the applicable Funding
Date by transferring immediately available funds equal to such proceeds received by Agent to the
Designated Account; provided, that subject to the provisions
 
of Section 2.3(d)(ii), no Lender shall
have an obligation
 
to make any
 
Revolving Loan, if
 
(1) one or more
 
of the applicable
 
conditions
precedent set
 
forth in
 
Section 3
 
will not
 
be satisfied
 
on the
 
requested Funding
 
Date for
 
the
applicable Borrowing
 
unless such
 
condition has
 
been waived,
 
or (2)
 
the requested
 
Borrowing
would exceed the Availability on such Funding Date.
(ii)
 
Unless Agent receives notice
 
from a Lender prior
 
to 11:30 a.m.
 
on
the Business Day that is the
 
requested Funding Date relative to a
 
requested Borrowing as to which
Agent has notified the Lenders of
 
a requested Borrowing that such Lender
 
will not make available
as and when required
 
hereunder to Agent for
 
the account of Borrowers
 
the amount of that
 
Lender's
Pro Rata Share of
 
the Borrowing, Agent may
 
assume that each Lender
 
has made or will
 
make such
amount available to
 
Agent in immediately
 
available funds on
 
the Funding Date
 
and Agent may
(but shall not
 
be so required),
 
in reliance upon
 
such assumption, make
 
available to Borrowers
 
a
corresponding amount.
 
If, on the requested Funding Date, any Lender shall not have remitted the
full amount that
 
it is required
 
to make available
 
to Agent in
 
immediately available funds
 
and if
Agent has made
 
available to Borrowers
 
such amount on
 
the requested Funding
 
Date, then such
Lender shall
 
make the
 
amount of
 
such Lender's
 
Pro Rata
 
Share of
 
the requested
 
Borrowing
available to Agent in
 
immediately available funds, to Agent's
 
Account, no later than
 
12:00 p.m. on
the Business Day that
 
is the first
 
Business Day after
 
the requested Funding Date
 
(in which case,
the interest accrued on such Lender's portion of such Borrowing for the Funding Date shall be for
Agent's separate account).
 
If any Lender shall not remit
 
the full amount that it is required
 
to make
available to Agent in
 
immediately available funds as
 
and when required hereby
 
and if Agent has
made available
 
to Borrowers
 
such amount,
 
then that
 
Lender shall
 
be obligated
 
to immediately
remit such amount to
 
Agent, together with interest
 
at the Defaulting Lender
 
Rate for each day
 
until
the date on
 
which such amount
 
is so remitted.
 
A notice submitted
 
by Agent to
 
any Lender with
respect to amounts owing under
 
this Section 2.3(c)(ii) shall
 
be conclusive, absent manifest
 
error.
 
If the amount that a Lender is required
 
to remit is made available to Agent,
 
then such payment to
Agent shall constitute such Lender's
 
Revolving Loan for all
 
purposes of this Agreement.
 
If such
amount is not
 
made available to
 
Agent on the
 
Business Day following
 
the Funding Date,
 
Agent
will notify Administrative Borrower of such
 
failure to fund and, upon
 
demand by Agent,
Borrowers shall pay such amount to Agent for
 
Agent's account, together with interest thereon for
 
 
 
 
 
 
 
 
each day elapsed since
 
the date of such
 
Borrowing, at a rate
per annum
 
equal to the
 
interest rate
applicable at the time to the Revolving Loans composing such Borrowing.
(d)
 
Protective Advances and Optional Overadvances
.
(i)
 
Any contrary provision
 
of this Agreement
 
or any other
 
Loan
Document notwithstanding (but subject to
 
Section 2.3(d)(iv)), at any
 
time (A) after the occurrence
and during
 
the continuance
 
of a
 
Default or
 
an Event
 
of Default,
 
or (B)
 
that any
 
of the
 
other
applicable conditions precedent set forth in Section 3 are not
 
satisfied, Agent hereby is authorized
by Borrowers and
 
the Lenders, from
 
time to time,
 
in Agent's sole
 
discretion, to make
 
Revolving
Loans to, or for
 
the benefit of, Borrowers,
 
on behalf of the
 
Revolving Lenders, that Agent,
 
in its
Permitted Discretion, deems necessary
 
or desirable (1) to preserve or
 
protect the Collateral, or any
portion thereof, or
 
(2) to enhance the
 
likelihood of repayment
 
of the Obligations
 
(other than the
Bank Product
 
Obligations) (the
 
Revolving Loans
 
described in
 
this Section
 
2.3(d)(i) shall
 
be
referred to as "Protective Advances").
 
(ii)
 
Any contrary provision
 
of this Agreement
 
or any other
 
Loan
Document notwithstanding, the Lenders
 
hereby authorize Agent or
 
Swing Lender, as
 
applicable,
and either
 
Agent or
 
Swing Lender,
 
as applicable,
 
may, but
 
is not
 
obligated to,
 
knowingly and
intentionally, continue
 
to make
 
Revolving Loans
 
(including Swing
 
Loans) to
 
Borrowers
notwithstanding that
 
an Overadvance
 
exists or
 
would be
 
created thereby,
 
so long
 
as (A)
 
after
giving effect
 
to such
 
Revolving Loans,
 
the outstanding
 
Revolver Usage
 
does not
 
exceed the
Borrowing Base by more
 
than 10% of the
 
Borrowing Base, and (B)
 
subject to Section
 
2.3(d)(iv)
below, after
 
giving effect
 
to such Revolving
 
Loans, the outstanding
 
Revolver Usage (except
 
for
and excluding amounts charged to
 
the Loan Account for
 
interest, fees, or Lender
 
Group Expenses)
does not exceed
 
the Maximum Revolver
 
Amount.
 
In the event Agent
 
obtains actual knowledge
that the Revolver
 
Usage exceeds the
 
amounts permitted by
 
this Section 2.3(d),
 
regardless of the
amount of, or reason
 
for, such excess,
 
Agent shall notify the
 
Lenders as soon as
 
practicable (and
prior to
 
making any
 
(or any
 
additional) intentional
 
Overadvances (except
 
for and
 
excluding
amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) unless Agent
determines that prior notice would result in imminent harm to the Collateral or its value, in which
case Agent may
 
make such
 
Overadvances and provide
 
notice as promptly
 
as practicable
thereafter), and the
 
Lenders with Revolver
 
Commitments thereupon
 
shall, together with
 
Agent,
jointly determine the terms of
 
arrangements that shall be implemented
 
with Borrowers intended to
reduce, within
 
a reasonable
 
time, the
 
outstanding principal
 
amount of
 
the Revolving
 
Loans to
Borrowers to an
 
amount permitted by
 
the preceding sentence.
 
In such circumstances,
 
if any Lender
with a
 
Revolver Commitment
 
objects to
 
the proposed
 
terms of
 
reduction or
 
repayment of
 
any
Overadvance, the terms of reduction
 
or repayment thereof shall be implemented
 
according to the
determination of the Required Lenders.
 
The foregoing provisions are meant for the benefit of the
Lenders and
 
Agent and
 
are not
 
meant for
 
the benefit
 
of Borrowers,
 
which shall
 
continue to
 
be
bound by the provisions of Section 2.4(e)(1).
 
(iii)
 
Each Protective Advance and
 
each Overadvance (each, an
"Extraordinary Advance")
 
shall be
 
deemed to
 
be a
 
Revolving Loan
 
hereunder, except
 
that no
Extraordinary Advance shall
 
be eligible to
 
be a LIBOR
 
Rate Loan.
 
Prior to
 
Settlement of
 
any
Extraordinary Advance,
 
all payments
 
with respect
 
thereto, including
 
interest thereon,
 
shall be
payable to Agent solely
 
for its own
 
account.
 
Each Revolving Lender
 
shall be obligated
 
to settle
 
 
 
 
 
 
 
 
 
with Agent as provided in Section 2.3(e) (or Section 2.3(g), as applicable) for the amount
 
of such
Lender's Pro
 
Rata Share
 
of any
 
Extraordinary Advance.
 
The Extraordinary
 
Advances shall
 
be
repayable on
 
demand, secured
 
by Agent's
 
Liens, constitute
 
Obligations hereunder,
 
and bear
interest at the rate applicable
 
from time to time to
 
Revolving Loans that are Base
 
Rate Loans.
 
The
provisions of
 
this Section
 
2.3(d) are
 
for the
 
exclusive benefit
 
of Agent,
 
Swing Lender,
 
and the
Lenders and are not intended to benefit Borrowers (or any other Loan Party) in any way.
(iv)
 
Notwithstanding anything contained in this Agreement or any other
Loan Document
 
to the
 
contrary, no
 
Extraordinary Advance
 
may be
 
made by
 
Agent if
 
such
Extraordinary Advance
 
would cause
 
the aggregate
 
Revolver Usage
 
to exceed
 
the Maximum
Revolver Amount or any Lender's Pro Rata Share of the Revolver Usage to
 
exceed such Lender's
Revolver Commitments; provided that Agent may make Extraordinary Advances in excess of the
foregoing limitations so
 
long as such Extraordinary
 
Advances that cause
 
the aggregate Revolver
Usage to exceed
 
the Maximum Revolver
 
Amount or a
 
Lender's Pro Rata
 
Share of the
 
Revolver
Usage to exceed such Lender's
 
Revolver Commitments are for Agent's
 
sole and separate account
and not for the account
 
of any Lender.
 
No Lender shall have an
 
obligation to settle with Agent
 
for
such Extraordinary Advances
 
that cause the
 
aggregate Revolver Usage
 
to exceed the
 
Maximum
Revolver Amount or
 
a Lender's Pro
 
Rata Share of
 
the Revolver Usage
 
to exceed such
 
Lender's
Revolver Commitments as provided in Section 2.3(e) (or Section 2.3(g), as applicable).
(e)
 
Settlement
.
 
It is agreed that
 
each Lender's funded portion
 
of the Revolving
Loans is
 
intended by
 
the Lenders
 
to equal,
 
at all
 
times, such
 
Lender's Pro
 
Rata Share
 
of the
outstanding Revolving Loans.
 
Such agreement notwithstanding,
 
Agent, Swing Lender,
 
and the
other Lenders agree
 
(which agreement shall
 
not be for
 
the benefit of
 
Borrowers) that in
 
order to
facilitate the administration of
 
this Agreement and the
 
other Loan Documents, settlement
 
among
the Lenders as to
 
the Revolving Loans (including
 
Swing Loans and Extraordinary
 
Advances) shall
take place on a periodic basis in accordance with the following provisions:
(i)
 
Agent shall request settlement ("Settlement") with the Lenders on a
weekly basis, or
 
on a more frequent
 
basis if so
 
determined by Agent in
 
its sole discretion
 
(1) on
behalf of Swing Lender,
 
with respect to the
 
outstanding Swing Loans, (2)
 
for itself, with
 
respect
to the outstanding Extraordinary
 
Advances, and (3) with
 
respect to any Loan
 
Party's or any
 
of their
Subsidiaries' payments or other
 
amounts received, as to
 
each by notifying the
 
Lenders by telecopy,
telephone, or other similar form
 
of transmission, of such requested
 
Settlement, no later than 4:00
p.m. on the Business Day immediately
 
prior to the date of
 
such requested Settlement (the date of
such requested Settlement
 
being the "Settlement
 
Date").
 
Such notice of
 
a Settlement Date
 
shall
include a
 
summary statement
 
of the
 
amount of
 
outstanding Revolving
 
Loans (including
 
Swing
Loans and Extraordinary Advances) for the period since the prior Settlement Date.
 
Subject to the
terms and
 
conditions contained
 
herein (including
 
Section 2.3(g)):
 
(y) if
 
the amount
 
of the
Revolving Loans (including Swing Loans and Extraordinary Advances) made
 
by a Lender that is
not a Defaulting Lender exceeds such Lender's Pro Rata Share of the Revolving Loans (including
Swing Loans and Extraordinary Advances)
 
as of a Settlement Date,
 
then Agent shall, by no
 
later
than 2:00
 
p.m. on
 
the Settlement
 
Date, transfer
 
in immediately
 
available funds
 
to a
 
Deposit
Account of such
 
Lender (as such Lender
 
may designate), an
 
amount such that
 
each such Lender
shall, upon
 
receipt of
 
such amount,
 
have as
 
of the
 
Settlement Date,
 
its Pro
 
Rata Share
 
of the
Revolving Loans (including Swing Loans and
 
Extraordinary Advances), and (z) if
 
the amount of
the Revolving Loans (including
 
Swing Loans and Extraordinary
 
Advances) made by a
 
Lender is
 
 
 
less than
 
such Lender's
 
Pro Rata
 
Share of
 
the Revolving
 
Loans (including
 
Swing Loans
 
and
Extraordinary Advances) as of a Settlement Date, such Lender
 
shall no later than 2:00 p.m. on the
Settlement Date transfer in immediately available funds
 
to Agent's Account, an amount such
 
that
each such Lender shall, upon transfer of such
 
amount, have as of the Settlement Date, its Pro
 
Rata
Share of
 
the Revolving
 
Loans (including
 
Swing Loans
 
and Extraordinary
 
Advances).
 
Such
amounts made available to Agent under clause (z) of the immediately preceding sentence shall be
applied against
 
the amounts
 
of the
 
applicable Swing
 
Loans or
 
Extraordinary Advances
 
and,
together with
 
the portion
 
of such
 
Swing Loans
 
or Extraordinary
 
Advances representing
 
Swing
Lender's Pro Rata
 
Share thereof, shall
 
constitute Revolving Loans
 
of such Lenders.
 
If any such
amount is not made available to
 
Agent by any Lender on the Settlement
 
Date applicable thereto to
the extent
 
required by
 
the terms
 
hereof, Agent
 
shall be
 
entitled to
 
recover for
 
its account
 
such
amount on demand from
 
such Lender together with
 
interest thereon at the
 
Defaulting Lender Rate.
(ii)
 
In determining whether a
 
Lender's balance of the
 
Revolving Loans
(including Swing Loans and
 
Extraordinary Advances) is
 
less than, equal
 
to, or greater
 
than such
Lender's Pro
 
Rata Share
 
of the
 
Revolving Loans
 
(including Swing
 
Loans and
 
Extraordinary
Advances) as of a
 
Settlement Date, Agent shall,
 
as part of the
 
relevant Settlement, apply to
 
such
balance the portion
 
of payments actually
 
received in good
 
funds by Agent
 
with respect to
 
principal,
interest, fees
 
payable by
 
Borrowers and
 
allocable to
 
the Lenders
 
hereunder, and
 
proceeds of
Collateral.
(iii)
 
Between Settlement Dates,
 
Agent, to the
 
extent Extraordinary
Advances or Swing Loans
 
are outstanding, may pay
 
over to Agent or
 
Swing Lender, as applicable,
any payments
 
or other
 
amounts received
 
by Agent,
 
that in
 
accordance with
 
the terms
 
of this
Agreement would
 
be applied
 
to the
 
reduction of
 
the Revolving
 
Loans, for
 
application to
 
the
Extraordinary Advances
 
or Swing
 
Loans.
 
Between Settlement
 
Dates, Agent,
 
to the
 
extent no
Extraordinary Advances
 
or Swing
 
Loans are
 
outstanding, may
 
pay over
 
to Swing
 
Lender any
payments or other
 
amounts received by
 
Agent, that in accordance
 
with the terms of
 
this Agreement
would be applied to
 
the reduction of the
 
Revolving Loans, for application
 
to Swing Lender's Pro
Rata Share of the Revolving Loans.
 
If, as of any Settlement Date,
 
payments or other amounts of
the Loan Parties
 
or their
 
Subsidiaries received since
 
the then immediately
 
preceding Settlement
Date have been
 
applied to Swing
 
Lender's Pro Rata
 
Share of the
 
Revolving Loans other
 
than to
Swing Loans, as
 
provided for in
 
the previous sentence, Swing
 
Lender shall pay to
 
Agent for the
accounts of the
 
Lenders, and Agent
 
shall pay to
 
the Lenders (other
 
than a
 
Defaulting Lender if
Agent has implemented the provisions of Section
 
2.3(g)), to be applied to the outstanding
Revolving Loans of
 
such Lenders, an
 
amount such that
 
each such Lender
 
shall, upon receipt
 
of
such amount, have, as
 
of such Settlement Date,
 
its Pro Rata Share
 
of the Revolving Loans.
 
During
the period
 
between Settlement
 
Dates, Swing
 
Lender with
 
respect to
 
Swing Loans,
 
Agent with
respect to Extraordinary
 
Advances, and each
 
Lender with respect
 
to the Revolving
 
Loans other
than Swing Loans and
 
Extraordinary Advances, shall be
 
entitled to interest at
 
the applicable rate
or rates payable under this
 
Agreement on the daily amount
 
of funds employed by Swing
 
Lender,
Agent, or the Lenders, as applicable.
(iv)
 
Anything in this
 
Section 2.3(e) to
 
the contrary notwithstanding,
 
in
the event that
 
a Lender is
 
a Defaulting Lender,
 
Agent shall be
 
entitled to refrain
 
from remitting
settlement amounts to
 
the Defaulting Lender and,
 
instead, shall be entitled
 
to elect to implement
the provisions set forth in Section 2.3(g).
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(f)
 
Notation
.
 
Consistent with Section 13.1(h), Agent, as
 
a non-fiduciary agent
for Borrowers, shall
 
maintain a register
 
showing the principal
 
amount and stated
 
interest of the
Revolving Loans (and portion of the Term
 
Loan, as applicable), owing to each Lender,
 
including
the Swing Loans
 
owing to Swing
 
Lender, and Extraordinary
 
Advances owing to
 
Agent, and the
interests therein of each
 
Lender, from time
 
to time and such
 
register shall, absent manifest
 
error,
conclusively be presumed to be correct and accurate.
(g)
 
Defaulting Lenders
.
(i)
 
Notwithstanding the
 
provisions of
 
Section 2.4(b)(iii),
 
Agent shall
not be obligated to transfer to a Defaulting Lender any
 
payments made by Borrowers to Agent for
the Defaulting
 
Lender's benefit
 
or any
 
proceeds of
 
Collateral that
 
would otherwise
 
be remitted
hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender,
Agent shall
 
transfer any
 
such payments
 
(A) first,
 
to Agent
 
to the
 
extent of
 
any Extraordinary
Advances that were made by Agent and that were
 
required to be, but were not, paid by Defaulting
Lender, (B) second, to Swing
 
Lender to the extent of any Swing Loans
 
that were made by Swing
Lender and that
 
were required
 
to be,
 
but were
 
not, paid
 
by the
 
Defaulting Lender,
 
(C) third,
 
to
Issuing Bank, to the extent
 
of the portion of a
 
Letter of Credit Disbursement that
 
was required to
be, but was not, paid by
 
the Defaulting Lender, (D) fourth, to each Non-Defaulting Lender ratably
in accordance with their Commitments
 
(but, in each case, only
 
to the extent that
 
such Defaulting
Lender's portion of a
 
Revolving Loan (or other
 
funding obligation) was funded
 
by such other Non-
Defaulting Lender),
 
(E) fifth,
 
in Agent's
 
sole discretion,
 
to a
 
suspense account
 
maintained by
Agent, the
 
proceeds of
 
which shall
 
be retained
 
by Agent
 
and ma
 
y
 
be made
 
available to
 
be re-
advanced to
 
or for
 
the benefit
 
of Borrowers
 
(upon the
 
request of
 
Borrowers and
 
subject to
 
the
conditions set forth in Section
 
3.2) as if such Defaulting
 
Lender had made its portion
 
of Revolving
Loans (or other funding obligations) hereunder, and (F) sixth, from and
 
after the date on which all
other Obligations have been paid in full, to such Defaulting Lender
 
in accordance with tier (L) of
Section 2.4(b)(iii).
 
Subject to
 
the foregoing,
 
Agent may
 
hold and,
 
in its
 
discretion, re-lend
 
to
Borrowers for the
 
account of such
 
Defaulting Lender the
 
amount of all
 
such payments received
and retained by
 
Agent for the
 
account of such
 
Defaulting Lender.
 
Solely for the
 
purposes of voting
or consenting to
 
matters with respect to
 
the Loan Documents
 
(including the calculation
 
of Pro Rata
Share in connection
 
therewith) and for
 
the purpose of
 
calculating the fee
 
payable under Section
2.10(b), such Defaulting Lender shall be deemed not to
 
be a "Lender" and such Lender's
Commitment shall be deemed to be zero;
 
provided, that the foregoing shall not apply
 
to any of the
matters governed by
 
Section 14.1(a)(i) through
 
(iii).
 
The provisions of
 
this Section 2.3(g)
 
shall
remain effective with respect
 
to such Defaulting Lender until
 
the earlier of (y)
 
the date on which
all of
 
the Non-Defaulting
 
Lenders, Agent,
 
Issuing Bank,
 
and Borrowers
 
shall have
 
waived, in
writing, the application of this Section
 
2.3(g) to such Defaulting Lender,
 
or (z) the date on which
such Defaulting Lender
 
makes payment of
 
all amounts
 
that it
 
was obligated to
 
fund hereunder,
pays to
 
Agent all
 
amounts owing
 
by Defaulting
 
Lender in
 
respect of
 
the amounts
 
that it
 
was
obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability
to perform its future obligations hereunder
 
(on which earlier date, so long
 
as no Event of Default
has occurred and
 
is continuing, any remaining
 
cash collateral held
 
by Agent pursuant
 
to Section
2.3(g)(ii) shall
 
be released
 
to Borrowers).
 
The operation
 
of this
 
Section 2.3(g)
 
shall not
 
be
construed to increase or otherwise affect the Commitment
 
of any Lender, to relieve or
 
excuse the
performance by such Defaulting Lender or
 
any other Lender of its
 
duties and obligations
hereunder, or to
 
relieve or excuse the
 
performance by any Borrower
 
of its duties
 
and obligations
 
 
 
 
 
 
 
 
hereunder to
 
Agent, Issuing
 
Bank, or
 
to the
 
Lenders other
 
than such
 
Defaulting Lender.
 
Any
failure by
 
a Defaulting
 
Lender to
 
fund amounts
 
that it
 
was obligated
 
to fund
 
hereunder shall
constitute a
 
material breach
 
by such
 
Defaulting Lender
 
of this
 
Agreement and
 
shall entitle
Borrowers, at
 
their option,
 
upon written
 
notice to
 
Agent, to
 
arrange for
 
a substitute
 
Lender to
assume the
 
Commitment of
 
such Defaulting
 
Lender, such
 
substitute Lender
 
to be
 
reasonably
acceptable to
 
Agent.
 
In connection
 
with the
 
arrangement of
 
such a
 
substitute Lender,
 
the
Defaulting Lender shall
 
have no right
 
to refuse to
 
be replaced hereunder,
 
and agrees to
 
execute
and deliver a
 
completed form of Assignment
 
and Acceptance in
 
favor of the
 
substitute Lender (and
agrees that it
 
shall be deemed
 
to have executed
 
and delivered such
 
document if it
 
fails to do
 
so)
subject only
 
to being
 
paid its
 
share of
 
the outstanding
 
Obligations (other
 
than Bank
 
Product
Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in
respect thereof, and
 
(2) an assumption
 
of its Pro
 
Rata Share of
 
its participation in
 
the Letters of
Credit); provided, that any
 
such assumption of
 
the Commitment of
 
such Defaulting Lender shall
not be deemed to
 
constitute a waiver of
 
any of the Lender
 
Groups' or Borrowers' rights
 
or remedies
against any such
 
Defaulting Lender arising out
 
of or in relation
 
to such failure to
 
fund.
 
In the event
of a direct conflict
 
between the priority provisions
 
of this Section 2.3(g)
 
and any other provision
contained in this Agreement or
 
any other Loan Document, it
 
is the intention of the
 
parties hereto
that such provisions be read together and construed, to the fullest extent possible, to be in concert
with each
 
other.
 
In the
 
event of
 
any actual,
 
irreconcilable conflict
 
that cannot
 
be resolved
 
as
aforesaid, the terms and provisions of this Section 2.3(g) shall control and govern.
(ii)
 
If any Swing Loan or Letter of Credit is outstanding at the time that
a Lender becomes a Defaulting Lender then:
(A)
 
such Defaulting Lender's
 
Swing Loan Exposure
 
and Letter
of Credit
 
Exposure shall
 
be reallocated
 
among the
 
Non-Defaulting Lenders
 
in accordance
 
with
their respective Pro Rata Shares but only to the extent (x) the
 
sum of all Non-Defaulting Lenders'
Pro Rata Share of
 
Revolver Usage
plus
 
such Defaulting Lender's Swing Loan
 
Exposure and Letter
of Credit
 
Exposure does
 
not exceed
 
the total
 
of all
 
Non-Defaulting Lenders'
 
Revolver
Commitments and (y) the conditions set forth in Section 3.2 are satisfied at such time;
(B)
 
if the reallocation
 
described in clause
 
(A) above cannot,
 
or
can only partially,
 
be effected, Borrowers
 
shall within one Business
 
Day following notice by
 
the
Agent (x) first, prepay such Defaulting Lender's Swing
 
Loan Exposure (after giving effect to any
partial reallocation pursuant to
 
clause (A) above), and
 
(y) second, cash
 
collateralize such
Defaulting Lender's
 
Letter of
 
Credit Exposure
 
(after giving
 
effect to
 
any partial
 
reallocation
pursuant to clause (A)
 
above), pursuant to a
 
cash collateral agreement to
 
be entered into in
 
form
and substance reasonably satisfactory to the
 
Agent, for so long as such
 
Letter of Credit Exposure
is outstanding; provided, that
 
Borrowers shall not be
 
obligated to cash collateralize any
 
Defaulting
Lender's Letter of Credit Exposure if such Defaulting Lender is also Issuing Bank;
(C)
 
if Borrowers cash collateralize
 
any portion of such
Defaulting Lender's Letter of Credit Exposure pursuant to
 
this Section 2.3(g)(ii), Borrowers shall
not be required
 
to pay any
 
Letter of Credit
 
Fees to Agent for
 
the account of
 
such Defaulting Lender
pursuant to
 
Section 2.6(b)
 
with respect
 
to such
 
cash collateralized
 
portion of
 
such Defaulting
Lender's Letter
 
of Credit
 
Exposure during
 
the period
 
such Letter
 
of Credit
 
Exposure is
 
cash
collateralized;
 
 
 
 
 
 
 
 
 
 
 
 
(D)
 
to the
 
extent the
 
Letter of
 
Credit Exposure
 
of the
 
Non-
Defaulting Lenders is reallocated pursuant to this Section 2.3(g)(ii), then the Letter of
 
Credit Fees
payable to the Non-Defaulting Lenders pursuant to Section 2.6(b) shall be adjusted in accordance
with such Non-Defaulting Lenders' Letter of Credit Exposure;
(E)
 
to the
 
extent any Defaulting
 
Lender's Letter of
 
Credit
Exposure is
 
neither cash
 
collateralized nor
 
reallocated pursuant
 
to this
 
Section 2.3(g)(ii),
 
then,
without prejudice to any rights or remedies of Issuing Bank or
 
any Lender hereunder, all Letter of
Credit Fees
 
that would
 
have otherwise
 
been payable
 
to such
 
Defaulting Lender
 
under Section
2.6(b) with respect
 
to such portion
 
of such Letter
 
of Credit Exposure
 
shall instead be
 
payable to
Issuing Bank
 
until such
 
portion of
 
such Defaulting
 
Lender's Letter
 
of Credit
 
Exposure is
 
cash
collateralized or reallocated;
(F)
 
so long
 
as any
 
Lender is
 
a Defaulting
 
Lender, the
 
Swing
Lender shall not
 
be required to
 
make any Swing
 
Loan and Issuing
 
Bank shall not
 
be required to
issue, amend, or
 
increase any Letter
 
of Credit, in
 
each case, to
 
the extent (x)
 
the Defaulting Lender's
Pro Rata
 
Share of
 
such Swing
 
Loans or
 
Letter of
 
Credit cannot
 
be reallocated
 
pursuant to
 
this
Section 2.3(g)(
 
ii), or
 
(y) the
 
Swing Lender
 
or Issuing
 
Bank, as
 
applicable, has
 
not otherwise
entered into
 
arrangements reasonably
 
satisfactory to the
 
Swing Lender or
 
Issuing Bank, as
applicable, and Borrowers to
 
eliminate the Swing Lender's
 
or Issuing Bank's risk
 
with respect to
the Defaulting Lender's participation in Swing Loans or Letters of Credit; and
(G)
 
Agent may release
 
any cash collateral
 
provided by
Borrowers pursuant to
 
this Section 2.3(g)(ii)
 
to Issuing Bank
 
and Issuing Bank
 
may apply any
 
such
cash collateral to the payment of such
 
Defaulting Lender's Pro Rata Share of any
 
Letter of Credit
Disbursement that is not
 
reimbursed by Borrowers pursuant to
 
Section 2.11(d).
 
Subject to Section
17.14, no
 
reallocation hereunder
 
shall constitute
 
a waiver
 
or release
 
of any
 
claim of
 
any party
hereunder against
 
a Defaulting
 
Lender arising
 
from that
 
Lender having
 
become a
 
Defaulting
Lender, including
 
any claim
 
of a
 
Non-Defaulting Lender
 
as a
 
result of
 
such Non-Defaulting
Lender's increased exposure following such reallocation.
(h)
 
Independent Obligations
.
 
All Revolving Loans (other than Swing Loans
and Extraordinary Advances) shall be
 
made by the Lenders contemporaneously
 
and in accordance
with their Pro Rata Shares.
 
It is understood that (i) no Lender shall be responsible for any failure
by any other Lender to perform its obligation to
 
make any Revolving Loan (or other extension of
credit) hereunder, nor shall
 
any Commitment of any Lender
 
be increased or decreased as
 
a result
of any failure by any other Lender to perform its
 
obligations hereunder, and (ii) no
 
failure by any
Lender to
 
perform its
 
obligations hereunder shall
 
excuse any
 
other Lender
 
from its
 
obligations
hereunder.
2.4.
 
Payments; Reductions of Commitments; Prepayments
.
(a)
 
Payments by Borrowers
.
(i)
 
(i) Except as otherwise expressly provided herein, all payments
by Borrowers shall be made to Agent's Account for the account of the Lender
 
Group and shall be
made in immediately
 
available funds, no
 
later than 3:30 p.m. on
 
the date specified
 
herein; provided
 
 
 
 
 
that, for
 
the avoidance
 
of doubt,
 
any payments
 
deposited into
 
a Controlled
 
Account shall
 
be
deemed not to
 
be received by Agent
 
on any Business Day
 
unless immediately available funds
 
have
been credited to Agent's
 
Account prior to 3:30
 
p.m. on such Business
 
Day.
 
Any payment received
by Agent in immediately available funds in Agent's Account later than 3:30 p.m. shall be deemed
to have been received (unless Agent, in
 
its sole discretion, elects to credit it
 
on the date received)
on the following
 
Business Day and
 
any applicable interest
 
or fee shall
 
continue to accrue
 
until such
following Business Day.
(ii)
 
Unless Agent receives
 
notice from
 
Borrowers prior
 
to the
 
date on
which any payment
 
is due to
 
the Lenders that
 
Borrowers will not
 
make such payment
 
in full as
and when required, Agent may assume that Borrowers have made (or will make) such
 
payment in
full to
 
Agent on
 
such date
 
in immediately
 
available funds
 
and Agent
 
may (but
 
shall not
 
be so
required), in reliance upon such
 
assumption, distribute to each Lender
 
on such due date an
 
amount
equal to
 
the amount
 
then due
 
such Lender.
 
If and
 
to the
 
extent Borrowers
 
do not
 
make such
payment in
 
full to
 
Agent on
 
the date
 
when due,
 
each Lender
 
severally shall
 
repay to
 
Agent on
demand such amount distributed
 
to such Lender,
 
together with interest thereon
 
at the Defaulting
Lender Rate for
 
each day from
 
the date such
 
amount is distributed
 
to such Lender
 
until the date
repaid.
(b)
 
Apportionment and Application
.
(i)
 
So long as no Application Event has occurred
 
and is continuing and
except as otherwise provided herein
 
with respect to Defaulting Lenders,
 
all principal and interest
payments received
 
by Agent
 
shall be
 
apportioned ratably
 
among the
 
Lenders (according
 
to the
unpaid principal balance of
 
the Obligations to
 
which such payments
 
relate held by
 
each Lender)
and all payments of fees and expenses received by Agent (other than fees or expenses
 
that are for
Agent's separate account or for the separate account of Issuing Bank) shall be apportioned ratably
among the Lenders having a Pro Rata
 
Share of the type of Commitment or
 
Obligation to which a
particular fee or expense relates.
(ii)
 
Subject to Section
 
2.4(b)(v),
 
Section 2.4(d)(ii), and
 
Section 2.4(e),
all payments to
 
be made hereunder
 
by Borrowers shall be
 
remitted to Agent
 
and all such
 
payments,
and all proceeds of
 
Collateral received by Agent, shall
 
be applied, so long
 
as no Application Event
has occurred and is continuing and except
 
as otherwise provided herein with respect to
 
Defaulting
Lenders, to reduce the
 
balance of the Revolving
 
Loans outstanding and, thereafter,
 
to Borrowers
(to be wired
 
to the Designated Account)
 
or such other Person
 
entitled thereto under applicable
 
law.
(iii)
 
At any time
 
that an Application
 
Event has occurred
 
and is continuing
and except as otherwise
 
provided herein with respect to
 
Defaulting Lenders, all payments
 
remitted
to Agent and all proceeds of Collateral received by Agent shall be applied as follows:
(A)
 
first, to pay
 
any Lender Group
 
Expenses (including cost
 
or
expense reimbursements) or indemnities then due to Agent under the Loan Documents
 
and to pay
interest and
 
principal on
 
Extraordinary Advances
 
that are
 
held solely by
 
Agent pursuant
 
to the
terms of Section 2.4(d)(iv), until paid in full,
 
 
 
 
 
 
 
 
 
 
(B)
 
second, to pay
 
any fees or
 
premiums then due
 
to Agent under
the Loan Documents, until paid in full,
(C)
 
third, to
 
pay interest
 
due in
 
respect of
 
all Protective
Advances, until paid in full,
(D)
 
fourth, to pay the principal of
 
all Protective Advances, until
paid in full,
(E)
 
fifth, ratably, to pay any Lender
 
Group Expenses (including
cost or expense
 
reimbursements) or indemnities
 
then due to
 
any of the
 
Lenders under the
 
Loan
Documents, until paid in full,
(F)
 
sixth, ratably,
 
to pay any
 
fees or premiums
 
then due to
 
any
of the Lenders under the Loan Documents, until paid in full,
(G)
 
seventh, to
 
pay interest
 
accrued in
 
respect of
 
the Swing
Loans, until paid in full,
(H)
 
eighth, to pay the principal of all Swing Loans, until paid
 
in
full,
(I)
 
ninth, ratably, to
 
pay interest accrued in respect
 
of the
Revolving Loans (other
 
than Protective Advances
 
and Swing Loans)
 
and the Term Loan, until
 
paid
in full,
(J)
 
tenth, ratably
i.
 
ratably, to
 
pay the principal
 
of all Revolving
 
Loans
and the Term Loan (other than Protective Advances and Swing Loans), until paid in full,
ii.
 
to Agent,
 
to be
 
held by
 
Agent, for
 
the benefit
 
of
Issuing Bank (and for the
 
ratable benefit of each of
 
the Lenders that have an
 
obligation to pay to
Agent, for the
 
account of Issuing
 
Bank, a share
 
of each Letter
 
of Credit Disbursement),
 
as cash
collateral in
 
an amount
 
up to
 
105% of
 
the Letter
 
of Credit
 
Usage (to
 
the extent
 
permitted by
applicable law, such
 
cash collateral shall be applied
 
to the reimbursement of any
 
Letter of Credit
Disbursement as and
 
when such disbursement
 
occurs and, if
 
a Letter of
 
Credit expires undrawn,
the cash collateral held by
 
Agent in respect of
 
such Letter of Credit shall,
 
to the extent permitted
by applicable law, be reapplied pursuant
 
to this Section 2.4(b)(iii),
 
beginning with tier (A)
 
hereof),
iii.
 
ratably, up to the
 
lesser of (y) the amount (after
taking into account
 
any amounts previously
 
paid pursuant to this
 
clause iii. during the
 
continuation
of the applicable
 
Application Event) of
 
the most recently
 
established Bank Product
 
Reserve, which
amount was
 
established prior
 
to the
 
occurrence of,
 
and not
 
in contemplation
 
of, the
 
subject
Application Event,
 
and (z)
 
$2,500,000 (after
 
taking into
 
account any
 
amounts previously
 
paid
pursuant to this clause
 
iii. during the continuation of
 
the applicable Application Event), to
 
(I) the
Bank Product
 
Providers based
 
upon amounts
 
then certified
 
by each
 
applicable Bank
 
Product
Provider to
 
Agent (in
 
form and
 
substance satisfactory to
 
Agent) to
 
be due
 
and payable
 
to such
 
 
 
 
 
 
 
 
 
Bank Product Provider
 
on account
 
of Bank
 
Product Obligations (but
 
not in
 
excess of
 
the Bank
Product Reserve established
 
for the Bank
 
Product Obligations
 
of such
 
Bank Product
 
Provider),
and (II) with any
 
balance to be
 
paid to Agent,
 
to be held
 
by Agent, for
 
the ratable benefit
 
of the
Bank Product Providers, as cash collateral (which cash collateral may be released by Agent to the
applicable Bank Product Provider
 
and applied by such
 
Bank Product Provider to
 
the payment or
reimbursement of any
 
amounts due and
 
payable with respect
 
to Bank Product
 
Obligations owed
to the applicable Bank Product Provider as and when such amounts first become due and
 
payable
and, if and at
 
such time as all such
 
Bank Product Obligations are
 
paid or otherwise satisfied
 
in full,
the cash collateral held
 
by Agent in
 
respect of such
 
Bank Product Obligations
 
shall be reapplied
pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof,,
 
(K)
 
eleventh, to pay
 
any other Obligations
 
other than Obligations
owed to
 
Defaulting Lenders
 
(including being
 
paid, ratably,
 
to the
 
Bank Product
 
Providers on
account of
 
all amounts
 
then due
 
and payable
 
in respect
 
of Bank
 
Product Obligations,
 
with any
balance to
 
be paid
 
to Agent,
 
to be
 
held by
 
Agent, for
 
the ratable
 
benefit of
 
the Bank
 
Product
Providers, as
 
cash collateral
 
(which cash
 
collateral may
 
be released
 
by Agent
 
to the
 
applicable
Bank Product
 
Provider and
 
applied by
 
such Bank
 
Product Provider
 
to the
 
payment or
reimbursement of any
 
amounts due and
 
payable with respect
 
to Bank Product
 
Obligations owed
to the applicable Bank Product Provider as and when such amounts first become due and
 
payable
and, if and at
 
such time as all such
 
Bank Product Obligations are
 
paid or otherwise satisfied
 
in full,
the cash collateral held
 
by Agent in
 
respect of such
 
Bank Product Obligations
 
shall be reapplied
pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof),
(L)
 
twelfth, ratably to
 
pay any Obligations
 
owed to Defaulting
Lenders; and
(M)
 
thirteenth, to Borrowers (to be wired to the Designated
Account) or such other Person entitled thereto under applicable law.
(iv)
 
Agent promptly
 
shall distribute
 
to each
 
Lender, pursuant
 
to the
applicable wire instructions received from
 
each Lender in writing, such
 
funds as it may be
 
entitled
to receive, subject to a Settlement delay as provided in Section 2.3(e).
(v)
 
In each instance, so long as
 
no Application Event has occurred and
is continuing, Section 2.4(b)(ii) shall not
 
apply to any payment made
 
by Borrowers to Agent and
specified by Borrowers
 
to be
 
for the
 
payment of
 
specific Obligations
 
then due
 
and payable
 
(or
prepayable) under any provision of this Agreement or any other Loan Document.
(vi)
 
For purposes of Section 2.4(b)(iii), "paid in full" of a type of
Obligation means payment
 
in cash or
 
immediately available funds
 
of all amounts
 
owing on account
of such type of Obligation, including interest accrued after the
 
commencement of any Insolvency
Proceeding, default
 
interest, interest
 
on interest,
 
and expense
 
reimbursements, irrespective
 
of
whether any
 
of the
 
foregoing would
 
be or
 
is allowed
 
or disallowed
 
in whole
 
or in
 
part in
 
any
Insolvency Proceeding.
(vii)
 
In the event
 
of a direct
 
conflict between the
 
priority provisions
 
of
this Section 2.4 and
 
any other provision contained
 
in this Agreement
 
or any other Loan
 
Document,
 
 
 
 
 
 
 
 
 
 
 
 
it is the intention
 
of the parties hereto that
 
such provisions be read
 
together and construed, to
 
the
fullest extent possible, to be in
 
concert with each other.
 
In the event of any actual, irreconcilable
conflict that
 
cannot be
 
resolved as
 
aforesaid, if
 
the conflict
 
relates to
 
the provisions
 
of Section
2.3(g) and this Section
 
2.4, then the provisions
 
of Section 2.3(g) shall
 
control and govern, and
 
if
otherwise, then the terms and provisions of this Section 2.4 shall control and govern.
(c)
 
Reduction of Commitments
.
(i)
 
Revolver Commitments
.
 
The Revolver
 
Commitments shall
terminate on
 
the Maturity
 
Date or
 
earlier termination
 
thereof pursuant
 
to the
 
terms of
 
this
Agreement.
 
Borrowers may reduce the
 
Revolver Commitments, without premium
 
or penalty,
 
to
an amount not less than the
 
greater of (x) $20,000,000 and (y)
 
sum of (A) the Revolver Usage
 
as
of such
 
date,
plus
 
(B) the principal
 
amount of
 
all Revolving Loans
 
not yet
 
made as to
 
which a
request has been
 
given by Borrowers
 
under Section 2.3(a),
plus
 
(C) the amount
 
of all Letters
 
of
Credit not
 
yet issued
 
as to
 
which a
 
request has
 
been given
 
by Borrowers
 
pursuant t
 
o
 
Section
2.11(a).
 
Each such reduction
 
shall be in
 
an amount which
 
is not less
 
than $2,500,000, shall
 
be
made by
 
providing not
 
less than
 
ten Business
 
Days prior
 
written notice
 
to Agent,
 
and shall
 
be
irrevocable.
 
The Revolver
 
Commitments, once
 
reduced, may
 
not be
 
increased.
 
Each such
reduction of the Revolver Commitments
 
shall reduce the Revolver Commitments of each
 
Lender
proportionately in accordance with its
 
ratable share thereof.
 
In connection with any reduction
 
in
the Revolver Commitments prior to the
 
Maturity Date, if any Loan Party
 
or any of its Subsidiaries
owns any Margin
 
Stock, Borrowers shall
 
deliver to Agent an
 
updated Form U-1
 
(with sufficient
additional originals
 
thereof for
 
each Lender),
 
duly executed
 
and delivered
 
by the
 
Borrowers,
together with such
 
other documentation as
 
Agent shall reasonably
 
request, in order
 
to enable Agent
and the Lenders
 
to comply with
 
any of the
 
requirements under Regulations
 
T, U or X
 
of the Federal
Reserve Board.
(ii)
 
Term
 
Loan Commitments
.
 
The R/E
 
Term Loan
 
Commitments
shall terminate upon the making of the R/E Term Loan.
 
The M/E Term Loan Commitments shall
terminate upon the earlier of the making of the Additional M/E Term Loan and April 27, 2022.
(d)
 
Optional Prepayments
.
(i)
 
Revolving Loans
.
 
Borrowers may
 
prepay the
 
principal of
 
any
Revolving Loan at any time in whole or in part, without premium or penalty.
(ii)
 
Term
 
Loan
.
 
Borrowers may, upon at least ten Business Days prior
written notice
 
to Agent,
 
prepay the
 
principal of
 
the M/E
 
Term Loan
 
or the
 
R/E Term
 
Loan, in
whole or in
 
part, without premium
 
or penalty.
 
Each prepayment made
 
pursuant to this
 
Section
2.4(d)(ii) shall be accompanied by the payment of accrued interest to the date of such payment on
the amount prepaid.
 
Each such prepayment shall be applied against the remaining installments of
principal due on
 
the applicable Term
 
Loan on a
 
pro rata basis
 
(for the avoidance
 
of doubt, any
amount that is due and payable on the Maturity Date shall constitute an installment)..
(e)
 
Mandatory Prepayments
.
(i)
 
Borrowing Base
.
 
If, at any time,
 
(A) the Revolver Usage on
 
such
date exceeds (B) the lesser of (x) the Borrowing Base reflected in the Borrowing Base Certificate
 
 
 
 
 
 
 
 
 
most recently delivered
 
by Borrowers to
 
Agent, or (y)
 
the Maximum Revolver
 
Amount, in all
 
cases
as adjusted for Reserves established
 
by Agent in accordance with
 
Section 2.1(c), then Borrowers
shall immediately prepay the Obligations
 
in accordance with Section 2.4(f)(i)(A) in
 
an aggregate
amount equal to the amount of such excess.
(ii)
 
M&E Borrowing
 
Base
.
 
If at any
 
time, the
 
outstanding principal
balance of the M/E
 
Term
 
Loan on such date
 
exceeds the M&E Borrowing
 
Base, then Borrowers
shall promptly, but
 
in any event, within one Business
 
Day
 
after request therefor by Agent
 
prepay
the outstanding principal
 
balance of the M/E
 
Term
 
Loan in accordance with
 
Section 2.4(f)(i)(B)
in an aggregate amount equal to the amount of such excess.
(iii)
 
R/E Borrowing
 
Base.
 
If at
 
any time,
 
the outstanding
 
principal
balance of the
 
R/E Term Loan on such
 
date exceeds the R/E
 
Borrowing Base, then
 
Borrowers shall
promptly, but
 
in any event,
 
within one Business
 
Day
 
after request therefor
 
by Agent
 
prepay the
outstanding principal balance of the R/E Term
 
Loan in accordance with Section 2.4(f)(i)(C) in an
aggregate amount equal to the amount of such excess.
(iv)
 
Dispositions
.
 
Within three Business Days of
 
the date of receipt by
any Loan Party or
 
any of its Subsidiaries of
 
the Net Cash Proceeds
 
of any voluntary or involuntary
sale or
 
disposition of
 
assets of
 
any Loan
 
Party or
 
any of
 
its Subsidiaries
 
(including Net
 
Cash
Proceeds of
 
insurance or
 
arising from
 
casualty losses
 
or condemnations
 
and payments
 
in lieu
thereof, but excluding
 
(A) Net Cash
 
Proceeds from sales
 
or dispositions which
 
qualify as Permitted
Dispositions under clauses
 
(a), (b), (c),
 
(d), (e), (f)
 
(solely with respect
 
to Accounts of
 
Mexican
Subsidiaries), (j), (k), (l),
 
(m), (n), or
 
(o) of the
 
definition of Permitted
 
Dispositions, (B) so
 
long
as the M/E Term
 
Loan has not been paid
 
in full, Net Cash Proceeds
 
from sales or dispositions of
Eligible M&E, and (C) so
 
long as the R/E Term Loan has not been
 
paid in full, Net Cash Proceeds
from sales
 
or dispositions
 
of Eligible
 
Real Property),
 
Borrowers shall
 
prepay the
 
outstanding
principal amount of
 
the Obligations in
 
accordance with Section
 
2.4(f)(ii) in
 
an amount equal
 
to
100% of
 
such Net
 
Cash Proceeds
 
received by
 
such Person
 
in connection
 
with such
 
sales or
dispositions; provided, that so long as (A) no Default or Event of Default shall have occurred and
is continuing or would
 
result therefrom, (B) Borrowers shall
 
have given Agent prior
 
written notice
of Borrowers' intention to
 
apply such monies to
 
the costs of replacement of
 
the properties or assets
that are the
 
subject of such sale
 
or disposition or the
 
cost of purchase
 
or construction of other
 
assets
useful in the business of such Loan Party or its
 
Subsidiaries, (C) the monies are held in a Deposit
Account in which Agent has a
 
perfected first-priority security interest, and (D) such
 
Loan Party or
its Subsidiary,
 
as applicable,
 
completes such replacement,
 
purchase, or
 
construction within
 
180
days after the initial
 
receipt of such monies,
 
then the Loan Party or
 
such Loan Party's Subsidiary
whose assets were the
 
subject of such disposition shall
 
have the option to apply
 
such monies to the
costs of replacement
 
of the
 
assets that are
 
the subject
 
of such sale
 
or disposition
 
or the costs
 
of
purchase or
 
construction of
 
other assets
 
useful in
 
the business
 
of such
 
Loan Party
 
or such
Subsidiary unless and
 
to the
 
extent that
 
such applicable
 
period shall
 
have expired
 
without such
replacement, purchase,
 
or construction
 
being made
 
or completed,
 
in which
 
case, any
 
amounts
remaining in the
 
Deposit Account referred
 
to in clause
 
(C) above shall
 
be paid to
 
Agent and applied
in accordance with Section 2.4(f)(ii);
 
provided, that no Loan Party
 
nor any of its Subsidiaries shall
have the right
 
to use such
 
Net Cash Proceeds
 
to make such
 
replacements, purchases, or
construction in
 
excess of
 
$500,000 in
 
any given
 
fiscal year.
 
Nothing contained
 
in this
 
Section
 
 
 
 
 
 
 
 
 
 
 
2.4(e)(iv) shall permit any Loan Party
 
or any of its Subsidiaries to sell
 
or otherwise dispose of any
assets other than in accordance with Section 6.4.
(v)
 
Dispositions of Eligible M&E
.
 
So long as the M/E Term Loan has
not been paid in
 
full, within three Business
 
Days of the date
 
of receipt by any
 
Loan Party or any
of its Subsidiaries of the Net Cash Proceeds of any voluntary or involuntary sale or disposition of
Eligible M&E
 
(including Net
 
Cash Proceeds
 
of insurance
 
or arising
 
from casualty
 
losses or
condemnations and payments
 
in lieu
 
thereof), Borrowers
 
shall prepay the
 
outstanding principal
amount of the M/E Term
 
Loan in accordance with Section 2.4(f)(iii) in an amount equal to
 
100%
of such Net Cash Proceeds received by
 
such Person in connection with such
 
sales or dispositions
until paid in full.
 
(vi)
 
Dispositions of Eligible Real
 
Property
.
 
So long as the
 
R/E Term
Loan has not been paid
 
in full, within three Business
 
Days of the date of
 
receipt by any Loan Party
or any
 
of its
 
Subsidiaries of
 
the Net
 
Cash Proceeds
 
of any
 
voluntary or
 
involuntary sale
 
or
disposition of Eligible
 
Real Property (including
 
Net Cash Proceeds
 
of insurance or
 
arising from
casualty losses
 
or condemnations
 
and payments
 
in lieu
 
thereof), Borrowers
 
shall prepay
 
the
outstanding principal amount
 
of the R/E
 
Term Loan
 
in accordance with
 
Section 2.4(f)(iv) in
 
an
amount equal to 100%
 
of such Net
 
Cash Proceeds received
 
by such Person
 
in connection with such
sales or dispositions until paid in full.
(vii)
 
Extraordinary Receipts
.
 
Within one
 
Business Day of the
 
date of
receipt by any
 
Loan Party or
 
any of its
 
Subsidiaries (other than
 
any Mexican Subsidiary)
 
of any
Extraordinary Receipts,
 
Borrowers shall
 
prepay the
 
outstanding principal
 
amount of
 
the
Obligations in
 
accordance with
 
Section 2.4(f)(ii)
 
in an
 
amount equal
 
to 100%
 
of such
Extraordinary Receipts, net of any reasonable expenses
 
incurred in collecting such Extraordinary
Receipts.
(viii)
 
Indebtedness
.
 
Within one Business
 
Day of the date
 
of incurrence
by any Loan Party or any of its Subsidiaries (other than any Mexican Subsidiary) of any
Indebtedness (other than
 
Permitted Indebtedness),
 
Borrowers shall
 
prepay the
 
outstanding
principal amount of
 
the Obligations in
 
accordance with Section
 
2.4(f)(ii) in
 
an amount equal
 
to
100% of the Net Cash Proceeds received by
 
such Person in connection with such incurrence.
 
The
provisions of
 
this Section
 
2.4(e)(v) shall
 
not be
 
deemed to
 
be implied
 
consent to
 
any such
incurrence otherwise prohibited by the terms of this Agreement.
(f)
 
Application of Payments
.
(i)
 
(A) Each prepayment pursuant to Section 2.4(e)(i) shall, (1)
 
so long
as no Application Event
 
shall have occurred and
 
be continuing, be applied,
 
first, to the outstanding
principal amount of
 
the Revolving Loans
 
until paid in
 
full, and second,
 
to cash collateralize
 
the
Letters of Credit in an amount
 
equal to 105% of the then outstanding
 
Letter of Credit Usage, and
(2) if an
 
Application Event shall
 
have occurred and
 
be continuing, be
 
applied in the
 
manner set
forth in Section 2.4(b)(iii), (B) each prepayment pursuant to Section 2.4(e)(ii)
 
shall (1) so long as
no Application Event
 
shall have occurred
 
and be continuing,
 
be applied to
 
the outstanding principal
amount of the
 
M/E Term Loan until
 
paid in full,
 
and (2) if
 
an Application Event
 
shall have occurred
and be continuing, be applied in the manner set forth in Section 2.4(b)(iii), and
 
(C) each
 
 
 
 
 
 
 
 
 
 
 
 
prepayment pursuant
 
to Section
 
2.4(e)(iii) shall
 
(1) so
 
long as
 
no Application
 
Event shall
 
have
occurred and be continuing, be applied to the outstanding principal amount of the
 
R/E Term Loan
until paid in full, and
 
(2) if an Application
 
Event shall have occurred
 
and be continuing, be
 
applied
in the manner
 
set forth in
 
Section 2.4(b)(iii).
 
Each such prepayment
 
of any Term
 
Loan shall be
applied against the remaining installments of principal of such Term
 
Loan on a pro rata basis (for
the avoidance of doubt, any amount
 
that is due and payable
 
on the Maturity Date shall
 
constitute
an installment).
(ii)
 
Each prepayment pursuant
 
to Section 2.4(e)(iv),
 
2.4(e)(vii), or
2.4(e)(viii) shall (A)
 
so long as
 
no Application Event
 
shall have occurred
 
and be continuing,
 
be
applied, first, to the
 
outstanding principal amount
 
of the Term
 
Loan until paid in
 
full, second, to
the outstanding
 
principal amount
 
of the
 
Revolving Loans,
 
until paid
 
in full,
 
and third,
 
to cash
collateralize the Letters
 
of Credit in
 
an amount equal
 
to 105% of
 
the then outstanding
 
Letter of
Credit Usage, and (B)
 
if an Application
 
Event shall have occurred
 
and be continuing, be
 
applied
in the manner
 
set forth in
 
Section 2.4(b)(iii).
 
Each such prepayment
 
of the Term
 
Loan shall be
applied against the remaining
 
installments of principal
 
of the Term
 
Loan on a pro
 
rata basis (for
the avoidance of doubt, any amount
 
that is due and payable
 
on the Maturity Date shall
 
constitute
an installment).
(iii)
 
Each prepayment pursuant to Section 2.4(e)(v)) shall (A) so long as
no Application
 
Event shall
 
have occurred
 
and be
 
continuing, be
 
applied, to
 
the outstanding
principal amount of
 
the M/E Term
 
Loan until paid
 
in full, and
 
(B) if an
 
Application Event shall
have occurred and
 
be continuing, be
 
applied in the
 
manner set forth
 
in Section 2.4(b)(iii).
 
Each
such prepayment of
 
the Term Loans shall
 
be applied against
 
the remaining installments
 
of principal
of the
 
Term Loans
 
on a
 
pro rata basis
 
(for the
 
avoidance of
 
doubt, any
 
amount that
 
is due
 
and
payable on the Maturity Date shall constitute an installment).
 
(iv)
 
Each prepayment pursuant to
 
Section 2.4(e)(vi)) shall (A)
 
so long as
no Application Event
 
shall have occurred
 
and be continuing,
 
be applied to
 
the outstanding principal
amount of the
 
R/E Term Loan until
 
paid in full,
 
and (B) if
 
an Application Event
 
shall have occurred
and be continuing, be applied in
 
the manner set forth in
 
Section 2.4(b)(iii).
 
Each such prepayment
of the Term
 
Loans shall be
 
applied against
 
the remaining
 
installments of
 
principal of the
 
Term
Loans on a pro rata
 
basis (for the avoidance
 
of doubt, any amount
 
that is due and
 
payable on the
Maturity Date shall constitute an installment).
2.5.
 
Promise to Pay; Promissory Notes
.
(a)
 
Borrowers agree to pay the Lender Group Expenses on the earlier of (i) the
first day of
 
the month following
 
the date on
 
which the applicable
 
Lender Group Expenses
 
were
first incurred, or (ii) the date on which demand therefor is made by Agent (it being acknowledged
and agreed
 
that any
 
charging of
 
such costs,
 
expenses or
 
Lender Group
 
Expenses to
 
the Loan
Account pursuant to the
 
provisions of Section 2.6(d)
 
shall be deemed to
 
constitute a demand for
payment thereof
 
for the
 
purposes of
 
this subclause
 
(ii)).
 
Borrowers promise
 
to pay
 
all of
 
the
Obligations (including principal,
 
interest, premiums, if
 
any, fees,
 
costs, and expenses
 
(including
Lender Group
 
Expenses)) in
 
full on
 
the Maturity
 
Date or,
 
if earlier,
 
on the
 
date on
 
which the
Obligations (other than
 
the Bank Product
 
Obligations) become due
 
and payable pursuant
 
to the
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
terms of this Agreement.
 
Borrowers agree that their obligations contained in the first sentence of
this Section 2.5(a) shall survive payment or satisfaction in full of all other Obligations.
(b)
 
Any Lender may request that any portion of its Commitments or the Loans
made by it be evidenced
 
by one or more promissory
 
notes.
 
In such event, Borrowers
 
shall execute
and deliver to such Lender the requested promissory notes
 
payable to the order of such Lender in
a form furnished
 
by Agent and
 
reasonably satisfactory to
 
Borrowers.
 
Thereafter, the
 
portion of
the Commitments and Loans evidenced by such
 
promissory notes and interest thereon shall at
 
all
times be represented
 
by one
 
or more promissory
 
notes in such
 
form payable to
 
the order of
 
the
payee named therein.
2.6.
 
Interest Rates
 
and Letter
 
of Credit
 
Fee:
 
Rates, Payments, and
Calculations
.
(a)
 
Interest Rates
.
 
Except as provided in
 
Section 2.6(c) and Section
 
2.12(d),
all Obligations (except for undrawn
 
Letters of Credit) that have
 
been charged to the Loan
 
Account
pursuant to the terms hereof shall bear interest as follows:
(i)
 
if the relevant
 
Obligation is a LIBOR
 
Rate Loan, at
 
a
per annum
 
rate
equal to the LIBOR Rate
plus
 
the LIBOR Rate Margin, and
(ii)
 
otherwise, at a
per annum
 
rate equal to the Base Rate
plus
 
the Base
Rate Margin.
(b)
 
Letter of Credit Fee
.
 
Borrowers shall pay Agent (for
 
the ratable benefit of
the Revolving Lenders), a
 
Letter of Credit fee
 
(the "Letter of
 
Credit Fee") (which fee
 
shall be in
addition to the fronting
 
fees and commissions, other
 
fees, charges and expenses
 
set forth in Section
2.11(k)) that shall
 
accrue
a
t a
per annum
 
rate equal to
 
the Revolving Loan
 
LIBOR Rate Margin
times the average amount of the Letter of Credit Usage during the immediately preceding month.
(c)
 
Default Rate
.
 
(i) Automatically upon the occurrence
 
and during the
continuation of
 
an Event
 
of Default
 
under Section
 
8.4 or
 
8.5 and
 
(ii) upon
 
the occurrence
 
and
during the continuation
 
of any other
 
Event of Default
 
(other than an
 
Event of Default
 
under Section
8.4 or 8.5), at the direction
 
of Agent or the Required Lenders,
 
and upon written notice by Agent
 
to
Borrowers of
 
such direction
 
(provided, that
 
such notice
 
shall not
 
be required
 
for any
 
Event of
Default under Section
 
8.1), (A) all
 
Loans and all
 
Obligations (except for
 
undrawn Letters of
 
Credit)
that have been
 
charged to
 
the Loan Account
 
pursuant to the
 
terms hereof shall
 
bear interest at
 
a
per annum
 
rate equal
 
to two
 
percentage points
 
above the
per annum
 
rate otherwise
 
applicable
thereunder, and (B) the Letter of Credit Fee shall be increased to two percentage points above
 
the
per annum
 
rate otherwise applicable hereunder.
 
(d)
 
Payment
.
 
Except to
 
the extent
 
provided to
 
the contrary
 
in Section
 
2.10,
Section 2.11(k) or Section 2.12(a),
 
(i) all interest and
 
all other fees payable
 
hereunder or under any
of the other
 
Loan Documents (other
 
than Letter of
 
Credit Fees) shall
 
be due and
 
payable, in arrears,
on the first
 
day of each
 
month, (ii) all
 
Letter of Credit
 
Fees payable hereunder,
 
and all fronting
fees and all
 
commissions, other fees,
 
charges and expenses
 
provided for in
 
Section 2.11(k)
 
shall
be due and
 
payable, in
 
arrears, on
 
the first
 
Business Day
 
of each
 
month, and
 
(iii) all
 
costs and
expenses payable hereunder
 
or under any
 
of the other
 
Loan Documents, and
 
all other Lender
 
Group
 
 
 
 
 
 
Expenses shall be due
 
and payable on (x)
 
with respect to Lender
 
Group Expenses outstanding as
of the
 
Closing Date,
 
the Closing
 
Date, and
 
(y) otherwise, the
 
earlier of
 
(A) the
 
first day
 
of the
month following the
 
date on which
 
the applicable costs, expenses,
 
or Lender Group
 
Expenses were
first incurred, or (B) the date on which
 
demand therefor is made by Agent (it being acknowledged
and agreed
 
that any
 
charging of
 
such costs,
 
expenses or
 
Lender Group
 
Expenses to
 
the Loan
Account pursuant
 
to the
 
provisions of
 
the following
 
sentence shall
 
be deemed
 
to constitute
 
a
demand for payment thereof for
 
the purposes of this
 
subclause (y)).
 
Borrowers hereby authorize
Agent, from time to time without prior notice to Borrowers,
 
to charge to the Loan Account (A) on
the first day of each month, all interest accrued during the prior month on the Revolving Loans or
the Term
 
Loan hereunder, (B)
 
on the first
 
Business Day of each
 
month, all Letter of
 
Credit Fees
accrued or chargeable hereunder during the prior month, (C)
 
as and when incurred or accrued, all
fees and costs
 
provided for in Section
 
2.10(a) or (c), (D)
 
on the first day
 
of each month, the
 
Unused
Line Fee accrued
 
during the
 
prior month pursuant
 
to Section
 
2.10(b), (E) as
 
and when due
 
and
payable, all other
 
fees payable hereunder
 
or under any
 
of the other
 
Loan Documents, (F)
 
on the
Closing Date and
 
thereafter as and
 
when incurred or
 
accrued, all other
 
Lender Group Expenses,
and (G)
 
as and
 
when due
 
and payable
 
all other
 
payment obligations
 
payable under
 
any Loan
Document or any Bank Product
 
Agreement (including any amounts due
 
and payable to the Bank
Product Providers
 
in respect
 
of Bank
 
Products).
 
All amounts
 
(including interest,
 
fees, costs,
expenses, Lender Group Expenses,
 
or other amounts payable
 
hereunder or under any
 
other Loan
Document or under any
 
Bank Product Agreement) charged
 
to the Loan
 
Account shall thereupon
constitute Revolving Loans
 
hereunder, shall
 
constitute Obligations hereunder,
 
and shall initially
accrue interest at the
 
rate then applicable to Revolving
 
Loans that are Base
 
Rate Loans (unless and
until converted into LIBOR Rate Loans in accordance with the terms of this Agreement).
(e)
 
Computation
.
 
All interest and fees chargeable under the Loan
 
Documents
shall be
 
computed on
 
the basis
 
of a
 
360 day
 
year, in
 
each case,
 
for the
 
actual number
 
of days
elapsed in the
 
period during which
 
the interest or
 
fees accrue.
 
In the event
 
the Base Rate
 
is changed
from time to time
 
hereafter, the rates of interest hereunder
 
based upon the Base Rate
 
automatically
and immediately shall be
 
increased or decreased by
 
an amount equal
 
to such change
 
in the Base
Rate.
(f)
 
Intent to Limit Charges to
 
Maximum Lawful Rate
.
 
In no event shall
 
the
interest rate
 
or rates
 
payable under
 
this Agreement,
plus
 
any other amounts
 
paid in
 
connection
herewith, exceed the highest rate permissible under any law that a court of competent jurisdiction
shall, in a
 
final determination, deem
 
applicable.
 
Borrowers and the
 
Lender Group, in
 
executing
and delivering this Agreement,
 
intend legally to agree
 
upon the rate or rates
 
of interest and manner
of payment
 
stated within
 
it; provided,
 
that anything
 
contained herein
 
to the
 
contrary
notwithstanding, if
 
such rate
 
or rates
 
of interest
 
or manner
 
of payment
 
exceeds the
 
maximum
allowable under applicable law,
 
then,
ipso
 
facto
, as of the date
 
of this Agreement, Borrowers are
and shall
 
be liable
 
only for
 
the payment
 
of such
 
maximum amount
 
as is
 
allowed by
 
law, and
payment received from Borrowers in excess of such legal maximum, whenever received, shall
 
be
applied to reduce the principal balance of the Obligations to the extent of such excess.
2.7.
 
Crediting Payments
.
 
The receipt of any
 
payment item by Agent
 
shall not be
required to be
 
considered a
 
payment on account
 
unless such payment
 
item is
 
a wire transfer
 
of
immediately available funds
 
made to Agent's
 
Account or unless
 
and until such
 
payment item is
honored when presented for payment.
 
Should any payment item not
 
be honored when presented
 
 
 
 
 
 
 
 
for payment, then
 
Borrowers shall be
 
deemed not to
 
have made such
 
payment.
 
Anything to the
contrary contained herein notwithstanding, any payment item shall
 
be deemed received by Agent
only if it
 
is received into
 
Agent's Account on
 
a Business Day
 
on or before
 
3:30 p.m.
 
If any payment
item is received into Agent's
 
Account on a non-Business Day
 
or after 3:30 p.m. on
 
a Business Day
(unless Agent, in its sole
 
discretion, elects to credit it
 
on the date received), it
 
shall be deemed to
have been received by Agent
 
as of the opening of
 
business on the immediately following
 
Business
Day.
2.8.
 
Designated Account
.
 
Agent is authorized
 
to make the
 
Revolving Loans and
the Term Loan, and Issuing Bank
 
is authorized to issue
 
the Letters of Credit,
 
under this Agreement
based upon telephonic or other instructions received from anyone
 
purporting to be an Authorized
Person or,
 
without instructions,
 
if pursuant to
 
Section 2.6(d).
 
Borrowers agree to
 
establish and
maintain the Designated Account with the Designated Account Bank for the purpose of receiving
the proceeds of the Revolving
 
Loans requested by Borrowers and
 
made by Agent or
 
the Lenders
hereunder.
 
Unless otherwise agreed
 
by Agent and Borrowers,
 
any Revolving Loan or
 
Swing Loan
requested by
 
Borrowers and
 
made by
 
Agent or
 
the Lenders
 
hereunder shall
 
be made
 
to the
Designated Account.
2.9.
 
Maintenance of
 
Loan Account;
 
Statements of
 
Obligations
.
 
Agent shall
maintain an
 
account on
 
its books
 
in the
 
name of
 
Borrowers (the
 
"Loan Account")
 
on which
Borrowers will
 
be charged
 
with the
 
Term Loan,
 
all Revolving
 
Loans (including
 
Extraordinary
Advances and Swing
 
Loans) made by
 
Agent, Swing Lender,
 
or the Lenders
 
to Borrowers or
 
for
Borrowers' account,
 
the Letters
 
of Credit
 
issued or
 
arranged by
 
Issuing Bank
 
for Borrowers'
account, and with
 
all other payment
 
Obligations hereunder or
 
under the other
 
Loan Documents,
including, accrued interest,
 
fees and expenses, and
 
Lender Group Expenses.
 
In accordance with
Section 2.7,
 
the Loan
 
Account will
 
be credited
 
with all
 
payments received
 
by Agent
 
from
Borrowers or for
 
Borrowers' account.
 
Agent shall make
 
available to Borrowers
 
monthly
statements regarding the Loan Account, including the principal amount of the Term
 
Loan and the
Revolving Loans, interest accrued
 
hereunder, fees accrued or charged
 
hereunder or under the
 
other
Loan Documents,
 
and a
 
summary itemization
 
of all
 
charges and
 
expenses constituting
 
Lender
Group Expenses accrued hereunder or under the other Loan
 
Documents, and each such statement,
absent manifest error, shall be conclusively presumed to be correct and accurate and constitute an
account stated between Borrowers
 
and the Lender Group
 
unless, within 30 days
 
after Agent first
makes such a statement
 
available to Borrowers, Borrowers
 
shall deliver to Agent
 
written objection
thereto describing the error or errors contained in such statement.
2.10.
 
Fees
.
(a)
 
Agent Fees
.
 
Borrowers shall pay to
 
Agent, for the account
 
of Agent, as and
when due and payable under the terms of the Fee Letter, the fees set forth in the Fee Letter.
(b)
 
Unused Line Fee
.
 
Borrowers shall pay to Agent, for
 
the ratable account of
the Revolving Lenders, an unused line fee (the "Unused Line Fee") in
 
an amount equal to 0.375%
per annum
 
times the result of (i) the aggregate amount of the Revolver Commitments,
less
 
(ii) the
Average Revolver
 
Usage during
 
the immediately
 
preceding month
 
(or portion
 
thereof), which
Unused Line Fee shall
 
be due and payable,
 
in arrears, on the
 
first day of each
 
month from and after
 
 
 
the Closing Date
 
up to the
 
first day of
 
the month prior
 
to the date
 
on which the
 
Obligations are
paid in full and on the date on which the Obligations are paid in full.
(c)
 
Field Examination and Other
 
Fees
.
 
Subject to any limitations set
 
forth in
Section 5.7(c),
 
Borrowers shall pay to Agent, field examination, appraisal, and valuation fees and
charges, as and when incurred or chargeable, as follows (i) a fee of $1,000 per day,
 
per examiner,
plus
 
reasonable and documented out-of-pocket
 
expenses (including travel, meals, and
 
lodging) for
each field examination of any Loan Party
 
or its Subsidiaries performed by or
 
on behalf of Agent,
and (ii) the reasonable
 
and documented out-of-pocket
 
fees, charges or
 
expenses paid or
 
incurred
by Agent if it elects to
 
employ the services of one or more
 
third Persons to appraise the Collateral,
or any portion thereof, or to assess any Loan Party's or its Subsidiaries' business valuation.
2.11.
 
Letters of Credit
.
(a)
 
Subject to the terms and conditions
 
of this Agreement, upon the request
 
of
Borrowers made in
 
accordance herewith, and
 
prior to the
 
Maturity Date, Issuing
 
Bank agrees to
issue a requested standby Letter
 
of Credit or a sight commercial
 
Letter of Credit for the
 
account of
Borrowers.
 
By submitting
 
a request
 
to Issuing
 
Bank for
 
the issuance
 
of a
 
Letter of
 
Credit,
Borrowers shall be
 
deemed to have
 
requested that Issuing
 
Bank issue the
 
requested Letter of
 
Credit.
 
Each request
 
for the
 
issuance of
 
a Letter
 
of Credit,
 
or the
 
amendment or
 
extension of
 
any
outstanding Letter of Credit, shall
 
be (i) irrevocable and
 
made in writing by an
 
Authorized Person,
(ii) delivered to
 
Agent and Issuing
 
Bank via telefacsimile
 
or other electronic
 
method of
transmission reasonably acceptable
 
to Agent and
 
Issuing Bank and
 
reasonably in advance
 
of the
requested date
 
of issuance,
 
amendment or
 
extension, and
 
(iii) subject
 
to Issuing
 
Bank's
authentication procedures with results satisfactory to Issuing Bank.
 
Each such request shall be in
form and substance reasonably
 
satisfactory to Agent and Issuing
 
Bank and (i) shall
 
specify (A) the
amount of such Letter of Credit,
 
(B) the date of issuance, amendment
 
or extension of such Letter
of Credit, (C) the
 
proposed expiration date
 
of such Letter of
 
Credit, (D) the name and
 
address of
the beneficiary of the Letter
 
of Credit, and (E) such
 
other information (including, the conditions
 
to
drawing, and, in the case
 
of an amendment or extension,
 
identification of the Letter
 
of Credit to be
so amended or extended) as shall be necessary to
 
prepare, amend or extend such Letter of Credit,
and (ii) shall be accompanied by such Issuer Documents as Agent or Issuing
 
Bank may request or
require, to the extent that such requests or requirements
 
are consistent with the Issuer Documents
that Issuing Bank generally requests
 
for Letters of Credit in similar
 
circumstances.
 
Issuing Bank's
records of the
 
content of any
 
such request will
 
be conclusive.
 
Anything contained herein
 
to the
contrary notwithstanding, Issuing Bank may, but shall not be obligated to, issue a Letter of Credit
that supports the obligations of a
 
Loan Party or one of
 
its Subsidiaries in respect of
 
(x) a lease of
real property to
 
the extent that
 
the face amount
 
of such Letter
 
of Credit exceeds
 
the highest rent
(including all
 
rent-like charges)
 
payable under
 
such lease
 
for a
 
period of
 
one year,
 
or (y)
 
an
employment contract to
 
the extent that
 
the face amount
 
of such Letter
 
of Credit exceeds the
 
highest
compensation payable under such contract for a period of one year.
(b)
 
Issuing Bank shall
 
have no obligation
 
to issue a
 
Letter of Credit
 
if any of
the following would result after giving effect to the requested issuance:
(i)
 
the Letter of Credit
 
Usage would exceed the
 
Letter of Credit
Sublimit, or
 
 
 
 
 
 
(ii)
 
the Letter
 
of Credit
 
Usage would
 
exceed the
 
Maximum Revolver
Amount
less
 
the outstanding amount of Revolving Loans (including Swing Loans), or
(iii)
 
the Letter of
 
Credit Usage would
 
exceed the Borrowing
 
Base at such
time
less
 
the outstanding principal balance of the Revolving Loans
 
(inclusive of Swing Loans) at
such time.
(c)
 
In the event
 
there is a
 
Defaulting Lender as
 
of the date
 
of any request
 
for
the issuance of a
 
Letter of Credit, Issuing
 
Bank shall not be
 
required to issue or
 
arrange for such
Letter of Credit to the extent (i) the Defaulting Lender's Letter of Credit
 
Exposure with respect to
such Letter of Credit may
 
not be reallocated pursuant to
 
Section 2.3(g)(ii), or (ii) Issuing
 
Bank has
not otherwise entered into
 
arrangements reasonably satisfactory to
 
it and Borrowers
 
to eliminate
Issuing Bank's
 
risk with
 
respect to
 
the participation
 
in such
 
Letter of
 
Credit of
 
the Defaulting
Lender, which arrangements may include
 
Borrowers cash collateralizing such
 
Defaulting Lender's
Letter of Credit Exposure in accordance with Section 2.3(g)(ii).
 
Additionally, Issuing Bank shall
have no obligation
 
to issue or
 
extend a Letter
 
of Credit if
 
(A) any order,
 
judgment, or decree
 
of
any Governmental Authority or arbitrator
 
shall, by its terms,
 
purport to enjoin or restrain
 
Issuing
Bank from issuing such Letter
 
of Credit, or any law
 
applicable to Issuing Bank or
 
any request or
directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over Issuing Bank shall
 
prohibit or request that Issuing
 
Bank refrain from the issuance
of letters of credit generally
 
or such Letter of Credit
 
in particular, (B) the
 
issuance of such Letter
of Credit
 
would violate
 
one or
 
more policies
 
of Issuing
 
Bank applicable
 
to letters
 
of credit
generally, or
 
(C) if amounts
 
demanded to be paid
 
under any Letter of
 
Credit will not
 
or may not
be in US Dollars.
(d)
 
Any Issuing
 
Bank (other
 
than Xxxxx
 
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
 
Xxxxx
 
Fargo
or any of
 
its Affiliates)
 
shall, on the
 
first Business Day
 
of each
 
week, submit
 
to Agent a
 
report
detailing the daily undrawn
 
amount of each
 
Letter of Credit
 
issued by such
 
Issuing Bank during
the prior
 
calendar week.
 
Each Letter
 
of Credit
 
shall be
 
in form
 
and substance
 
reasonably
acceptable to Issuing Bank,
 
including the requirement that
 
the amounts payable thereunder
 
must
be payable in Dollars.
 
If Issuing Bank makes a payment under a Letter
 
of Credit, Borrowers shall
pay to Agent
 
an amount equal to
 
the applicable Letter of
 
Credit Disbursement on the
 
Business Day
such Letter of
 
Credit Disbursement is
 
made and, in
 
the absence of
 
such payment, the
 
amount of
the Letter of Credit Disbursement immediately and automatically shall be deemed to be a
Revolving Loan hereunder
 
(notwithstanding any failure
 
to satisfy any
 
condition precedent set
 
forth
in Section 3) and,
 
initially, shall
 
bear interest at the
 
rate then applicable to
 
Revolving Loans that
are Base
 
Rate Loans.
 
If a
 
Letter of
 
Credit Disbursement
 
is deemed
 
to be
 
a Revolving
 
Loan
hereunder, Borrowers'
 
obligation to
 
pay the
 
amount of
 
such Letter
 
of Credit
 
Disbursement to
Issuing Bank shall
 
be automatically converted
 
into an obligation
 
to pay the
 
resulting Revolving
Loan.
 
Promptly following
 
receipt by
 
Agent of
 
any payment
 
from Borrowers
 
pursuant to
 
this
paragraph, Agent shall
 
distribute such payment
 
to Issuing Bank
 
or, to
 
the extent that
 
Revolving
Lenders have made payments pursuant to Section 2.11(e) to reimburse Issuing Bank, then to such
Revolving Lenders and Issuing Bank as their interests may appear.
 
 
 
 
 
 
 
 
(e)
 
Promptly following receipt
 
of a notice
 
of a Letter
 
of Credit Disbursement
pursuant to
 
Section 2.11(d),
 
each Revolving
 
Lender agrees
 
to fund
 
its Pro
 
Rata Share
 
of any
Revolving Loan deemed made pursuant to Section 2.11(d) on the same terms
 
and conditions as if
Borrowers had requested
 
the amount thereof as
 
a Revolving Loan and
 
Agent shall promptly pay
to Issuing Bank the amounts
 
so received by it from
 
the Revolving Lenders.
 
By the issuance of a
Letter of Credit
 
(or an amendment
 
or extension of
 
a Letter of
 
Credit) and without any
 
further action
on the
 
part of
 
Issuing Bank
 
or the
 
Revolving Lenders,
 
Issuing Bank
 
shall be
 
deemed to
 
have
granted to each
 
Revolving Lender, and each Revolving
 
Lender shall be deemed
 
to have purchased,
a participation in each Letter of Credit issued by Issuing Bank, in an amount equal to its
 
Pro Rata
Share of such
 
Letter of Credit,
 
and each such
 
Revolving Lender agrees
 
to pay to
 
Agent, for the
account of
 
Issuing Bank, such
 
Revolving Lender's Pro
 
Rata Share
 
of any
 
Letter of
 
Credit
Disbursement made by Issuing
 
Bank under the applicable
 
Letter of Credit.
 
In consideration and
in furtherance
 
of the
 
foregoing, each
 
Revolving Lender
 
hereby absolutely
 
and unconditionally
agrees to pay to Agent, for
 
the account of Issuing Bank, such Revolving
 
Lender's Pro Rata Share
of each Letter of Credit
 
Disbursement made by Issuing Bank
 
and not reimbursed by Borrowers on
the date due as
 
provided in Section 2.11(d)
 
,
 
or of any reimbursement
 
payment that is required
 
to
be refunded (or that Agent or Issuing Bank elects, based upon the advice of counsel, to refund) to
Borrowers for any reason.
 
Each Revolving Lender acknowledges and agrees that its obligation to
deliver to Agent, for
 
the account of Issuing Bank,
 
an amount equal to
 
its respective Pro Rata Share
of each
 
Letter of
 
Credit Disbursement
 
pursuant to
 
this Section
 
2.11(e) shall
 
be absolute
 
and
unconditional and such remittance
 
shall be made notwithstanding
 
the occurrence or continuation
of an Event of
 
Default or Default or
 
the failure to satisfy
 
any condition set forth
 
in Section 3.
 
If
any such
 
Revolving Lender
 
fails to
 
make available
 
to Agent
 
the amount
 
of such
 
Revolving
Lender's Pro
 
Rata Share
 
of a
 
Letter of
 
Credit Disbursement
 
as provided
 
in this
 
Section, such
Revolving Lender shall
 
be deemed to be
 
a Defaulting Lender
 
and Agent (for the
 
account of Issuing
Bank) shall be entitled
 
to recover such amount on
 
demand from such Revolving Lender
 
together
with interest thereon at the Defaulting Lender Rate until paid in full.
(f)
 
Each Borrower agrees
 
to indemnify,
 
defend and
 
hold harmless each
member of
 
the Lender
 
Group (including
 
Issuing Bank
 
and its
 
branches, Affiliates,
 
and
correspondents) and
 
each such
 
Person's respective
 
directors, officers,
 
employees, attorneys
 
and
agents (each, including
 
Issuing Bank, a
 
"Letter of
 
Credit Related Person")
 
(to the fullest
 
extent
permitted by
 
law) from
 
and against
 
any and
 
all claims,
 
demands, suits,
 
actions, investigations,
proceedings, liabilities,
 
fines, costs,
 
penalties, and
 
damages, and
 
all reasonable
 
fees and
disbursements of
 
attorneys, experts,
 
or consultants
 
and all
 
other costs
 
and expenses
 
actually
incurred in connection therewith or
 
in connection with the enforcement
 
of this indemnification (as
and when they are incurred and
 
irrespective of whether suit is brought),
 
which may be incurred by
or awarded
 
against any
 
such Letter
 
of Credit
 
Related Person
 
(other than
 
Taxes, which
 
shall be
governed by Section 16)
 
(the "Letter of Credit
 
Indemnified Costs"), and which
 
arise out of or
 
in
connection with, or as a result of:
(i)
 
any Letter of Credit or any pre-advice of its issuance;
(ii)
 
any transfer, sale,
 
delivery, surrender
 
or endorsement (or
 
lack
thereof) of any Drawing
 
Document at any time(s)
 
held by any
 
such Letter of Credit
 
Related Person
in connection with any Letter of Credit;
 
(iii)
 
any action or
 
proceeding arising out
 
of, or in
 
connection with, any
Letter of Credit (whether administrative, judicial or in connection with arbitration), including any
action or proceeding to compel or
 
restrain any presentation or payment
 
under any Letter of Credit,
or for the wrongful dishonor of, or honoring a presentation under, any Letter of Credit;
(iv)
 
any independent undertakings issued by the beneficiary of any
Letter of Credit;
(v)
 
any unauthorized
 
instruction or
 
request made
 
to Issuing
 
Bank in
connection with
 
any Letter
 
of Credit
 
or requested
 
Letter of
 
Credit, or
 
any error,
 
omission,
interruption or delay
 
in such instruction
 
or request, whether
 
transmitted by mail, courier,
 
electronic
transmission, SWIFT,
 
or any other telecommunication including communications through a
correspondent;
(vi)
 
an adviser,
 
confirmer or
 
other nominated
 
person seeking
 
to be
reimbursed, indemnified or compensated;
(vii)
 
any third party
 
seeking to enforce
 
the rights of
 
an applicant,
beneficiary, nominated
 
person, transferee, assignee
 
of Letter of
 
Credit proceeds or
 
holder of an
instrument or document;
(viii)
 
the fraud, forgery or illegal action of parties other than the Letter of
Credit Related Person;
(ix)
 
any prohibition
 
on payment
 
or delay
 
in payment
 
of any
 
amount
payable by Issuing Bank to a beneficiary or transferee beneficiary of a Letter of Credit arising out
of Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions;
(x)
 
Issuing Bank's performance of the obligations
 
of a confirming
institution or entity that wrongfully dishonors a confirmation;
(xi)
 
any foreign language
 
translation provided
 
to Issuing
 
Bank in
connection with any Letter of Credit;
(xii)
 
any foreign law or usage as it relates to
 
Issuing Bank's issuance of a
Letter of Credit in
 
support of a foreign
 
guaranty including the expiration of
 
such guaranty after the
related Letter
 
of Credit
 
expiration date
 
and any
 
resulting drawing
 
paid by
 
Issuing Bank
 
in
connection therewith; or
(xiii)
 
the acts or
 
omissions, whether rightful
 
or wrongful, of
 
any present
or future de
 
jure or de
 
facto governmental or
 
regulatory authority or
 
cause or
 
event beyond the
control of the Letter of Credit Related Person;
provided, that such
 
indemnity shall not
 
be available to
 
any Letter of
 
Credit Related Person
 
claiming
indemnification under
 
clauses (i)
 
through (xiii)
 
above to
 
the extent
 
that such
 
Letter of
 
Credit
Indemnified Costs
 
may be
 
finally determined in
 
a final,
 
non-appealable judgment
 
of a
 
court of
competent jurisdiction to
 
have resulted directly
 
from the gross
 
negligence or willful
 
misconduct
of the
 
Letter of Credit
 
Related Person
 
claiming indemnity.
 
Borrowers hereby
 
agree to
 
pay the
 
 
 
 
 
Letter of
 
Credit Related
 
Person claiming
 
indemnity on
 
demand from
 
time to
 
time all
 
amounts
owing under this Section 2.11(f).
 
If and to the extent that the obligations of Borrowers under this
Section 2.11(f) are unenforceable
 
for any reason, Borrowers agree
 
to make the maximum
contribution to
 
the Letter
 
of Credit
 
Indemnified Costs
 
permissible under
 
applicable law.
 
This
indemnification provision shall survive termination of this Agreement and all Letters of Credit.
(g)
 
The liability of Issuing Bank (or any other Letter of Credit Related Person)
under, in connection
 
with or arising out
 
of any Letter
 
of Credit (or pre-advice),
 
regardless of the
form or legal grounds
 
of the action or
 
proceeding, shall be limited
 
to direct damages suffered
 
by
Borrowers that are caused directly by Issuing Bank's gross negligence or willful misconduct in (i)
honoring a
 
presentation under
 
a Letter
 
of Credit
 
that on
 
its face
 
does not
 
at least
 
substantially
comply with the terms and conditions
 
of such Letter of Credit, (ii) failing to
 
honor a presentation
under a
 
Letter of
 
Credit that
 
strictly complies
 
with the
 
terms and
 
conditions of
 
such Letter
 
of
Credit, or
 
(iii) retaining
 
Drawing Documents
 
presented under
 
a Letter
 
of Credit.
 
Borrowers'
aggregate remedies against Issuing
 
Bank and any Letter
 
of Credit Related Person
 
for wrongfully
honoring a
 
presentation under
 
any Letter
 
of Credit
 
or wrongfully
 
retaining honored
 
Drawing
Documents shall in no
 
event exceed the aggregate
 
amount paid by Borrowers
 
to Issuing Bank in
respect of the honored
 
presentation in connection with
 
such Letter of Credit
 
under Section 2.11(d),
plus
 
interest at the rate then
 
applicable to Base Rate Loans hereunder.
 
Borrowers shall take action
to avoid and mitigate
 
the amount of any damages
 
claimed against Issuing Bank or
 
any other Letter
of Credit Related Person, including
 
by enforcing its rights against
 
the beneficiaries of the Letters
of Credit.
 
Any claim
 
by Borrowers
 
under or
 
in connection
 
with any
 
Letter of
 
Credit shall
 
be
reduced by an amount equal to
 
the sum of (x) the amount
 
(if any) saved by Borrowers as
 
a result
of the breach or
 
alleged wrongful conduct complained
 
of, and (y) the
 
amount (if any) of
 
the loss
that would have been
 
avoided had Borrowers taken
 
all reasonable steps to
 
mitigate any loss, and
in case of
 
a claim of
 
wrongful dishonor,
 
by specifically and
 
timely authorizing Issuing
 
Bank to
effect a cure.
(h)
 
Borrowers are responsible for the final text of the Letter of Credit as issued
by Issuing
 
Bank, irrespective
 
of any
 
assistance Issuing
 
Bank may
 
provide such
 
as drafting
 
or
recommending text
 
or by
 
Issuing Bank's
 
use or
 
refusal to
 
use text
 
submitted by
 
Borrowers.
Borrowers understand that the final form of any Letter of
 
Credit may be subject to such revisions
and changes
 
as are
 
deemed necessary
 
or appropriate
 
by Issuing
 
Bank, and
 
Borrowers hereby
consent to such
 
revisions and
 
changes not materially
 
different from
 
the application
 
executed in
connection therewith. Borrowers
 
are solely responsible
 
for the suitability
 
of the Letter
 
of Credit
for Borrowers'
 
purposes.
 
If Borrowers
 
request Issuing
 
Bank to
 
issue a
 
Letter of
 
Credit for
 
an
affiliated or
 
unaffiliated third
 
party (an "Account
 
Party"), (i)
 
such Account
 
Party shall have
 
no
rights against Issuing Bank; (ii) Borrowers shall
 
be responsible for the application and obligations
under this Agreement; and
 
(iii) communications (including notices)
 
related to the respective
 
Letter
of Credit shall
 
be among Issuing
 
Bank and Borrowers.
 
Borrowers will examine
 
the copy of
 
the
Letter of Credit and any
 
other documents sent by Issuing
 
Bank in connection therewith and
 
shall
promptly notify Issuing Bank (not later than
 
three (3) Business Days following Borrowers' receipt
of documents from Issuing Bank) of any non-compliance with Borrowers' instructions and of any
discrepancy in any document under any presentment
 
or other irregularity.
 
Borrowers understand
and agree that Issuing Bank
 
is not required to extend
 
the expiration date of any
 
Letter of Credit for
any reason. With
 
respect to any Letter of
 
Credit containing an "automatic
 
amendment" to extend
the expiration date of such Letter of Credit, Issuing Bank, in
 
its sole and absolute discretion, may
 
 
give notice of non-extension of
 
such Letter of Credit and,
 
if Borrowers do not at
 
any time want the
then current expiration
 
date of such
 
Letter of Credit
 
to be extended,
 
Borrowers will so
 
notify Agent
and Issuing Bank
 
at least 30
 
calendar days before
 
Issuing Bank is
 
required to notify
 
the beneficiary
of such Letter of Credit or any advising bank of such non-extension pursuant to
 
the terms of such
Letter of Credit.
(i)
 
Borrowers' reimbursement and payment obligations
 
under this Section 2.11
are absolute, unconditional and irrevocable and shall be performed strictly in accordance with the
terms of this Agreement under any and all circumstances whatsoever, including:
(i)
 
any lack of
 
validity, enforceability
 
or legal
 
effect of
 
any Letter of
Credit, any Issuer
 
Document, this Agreement,
 
or any Loan
 
Document, or any
 
term or provision
therein or herein;
(ii)
 
payment against
 
presentation of
 
any draft,
 
demand or
 
claim for
payment under any Drawing Document that does not comply in whole or
 
in part with the terms of
the applicable Letter of
 
Credit or which proves
 
to be fraudulent, forged
 
or invalid in
 
any respect
or any statement
 
therein being untrue
 
or inaccurate in
 
any respect, or
 
which is signed,
 
issued or
presented by a Person or a
 
transferee of such Person purporting to
 
be a successor or transferee of
the beneficiary of such Letter of Credit;
(iii)
 
Issuing Bank
 
or any
 
of its
 
branches or
 
Affiliates being
 
the
beneficiary of any Letter of Credit;
(iv)
 
Issuing Bank
 
or any
 
correspondent honoring
 
a drawing
 
against a
Drawing Document up
 
to the amount
 
available under any Letter
 
of Credit even
 
if such Drawing
Document claims an amount in excess of the amount available under the Letter of Credit;
(v)
 
the existence of
 
any claim,
 
set-off, defense
 
or other
 
right that
 
any
Loan Party or
 
any of its
 
Subsidiaries may have
 
at any time
 
against any beneficiary
 
or transferee
beneficiary, any assignee of proceeds, Issuing Bank or any other Person;
(vi)
 
Issuing Bank or any
 
correspondent honoring a drawing
 
upon receipt
of an electronic presentation under a
 
Letter of Credit requiring the
 
same, regardless of whether the
original Drawing Documents arrive at Issuing Bank's counters or are different from the electronic
presentation;
(vii)
 
any other
 
event, circumstance
 
or conduct
 
whatsoever, whether
 
or
not similar
 
to any of
 
the foregoing
 
that might,
 
but for
 
this Section
 
2.11(i), constitute
 
a legal or
equitable defense to or discharge of, or provide a
 
right of set-off against, any Borrower's or any of
its Subsidiaries' reimbursement and other
 
payment obligations and liabilities,
 
arising under, or in
connection with, any Letter of Credit,
 
whether against Issuing Bank, the
 
beneficiary or any other
Person; or
(viii)
 
the fact that any
 
Default or Event of
 
Default shall have occurred
 
and
be continuing;
 
 
 
provided, that subject to Section 2.11(g) above, the foregoing shall not release Issuing Bank from
such liability to Borrowers as may be
 
finally determined in a final, non-appealable judgment
 
of a
court of competent jurisdiction
 
against Issuing Bank following reimbursement
 
or payment of the
obligations and liabilities, including reimbursement and
 
other payment obligations, of Borrowers
to Issuing Bank arising under, or in connection with, this Section 2.11
 
or any Letter of Credit.
(j)
 
Without limiting any
 
other provision of
 
this Agreement, Issuing Bank
 
and
each other Letter
 
of Credit
 
Related Person (if
 
applicable) shall not
 
be responsible to
 
Borrowers
for, and Issuing Bank's rights and remedies
 
against Borrowers and the obligation of Borrowers to
reimburse Issuing Bank for each drawing under each Letter of Credit shall not be impaired by:
(i)
 
honor of a
 
presentation under
 
any Letter of
 
Credit that
 
on its
 
face
substantially complies with the terms and conditions of such Letter of Credit, even if the Letter of
Credit requires strict compliance by the beneficiary;
(ii)
 
honor of a
 
presentation of any
 
Drawing Document that
 
appears on
its face to have
 
been signed, presented or
 
issued (A) by any
 
purported successor or
 
transferee of
any beneficiary or other Person required
 
to sign, present or issue
 
such Drawing Document or (B)
under a new name of the beneficiary;
(iii)
 
acceptance as a draft of any written or electronic demand or request
for payment
 
under a
 
Letter of
 
Credit, even
 
if nonnegotiable
 
or not
 
in the
 
form of
 
a draft
 
or
notwithstanding any requirement
 
that such draft,
 
demand or request
 
bear any or
 
adequate reference
to the Letter of Credit;
(iv)
 
the identity or
 
authority of any
 
presenter or signer
 
of any Drawing
Document or
 
the form,
 
accuracy, genuineness
 
or legal
 
effect of
 
any Drawing
 
Document (other
than Issuing Bank's determination
 
that such Drawing Document
 
appears on its
 
face substantially
to comply with the terms and conditions of the Letter of Credit);
(v)
 
acting upon any instruction
 
or request relative to
 
a Letter of Credit
or requested
 
Letter of
 
Credit that
 
Issuing Bank
 
in good
 
faith believes
 
to have
 
been given
 
by a
Person authorized to give such instruction or request;
(vi)
 
any errors,
 
omissions, interruptions
 
or delays
 
in transmission
 
or
delivery of any message, advice or document (regardless of how sent or
 
transmitted) or for errors
in interpretation of technical terms or in translation or any delay in giving or failing to give notice
to any Borrower;
(vii)
 
any acts,
 
omissions or
 
fraud by,
 
or the
 
insolvency of,
 
any
beneficiary, any nominated person or entity or any other
 
Person or any breach of
 
contract between
any beneficiary and any Borrower or any of the parties
 
to the underlying transaction to which the
Letter of Credit relates;
(viii)
 
assertion or waiver
 
of any provision
 
of the ISP
 
or UCP that
 
primarily
benefits an issuer of
 
a letter of credit,
 
including any requirement that
 
any Drawing Document be
presented to it at a particular hour or place;
 
 
 
(ix)
 
payment to
 
any presenting
 
bank (designated
 
or permitted
 
by the
terms of
 
the applicable
 
Letter of
 
Credit) claiming
 
that it
 
rightfully honored
 
or is
 
entitled to
reimbursement or indemnity under Standard Letter of Credit Practice applicable to it;
(x)
 
acting or failing
 
to act as
 
required or permitted
 
under Standard Letter
of Credit Practice applicable to
 
where Issuing Bank has
 
issued, confirmed, advised or
 
negotiated
such Letter of Credit, as the case may be;
(xi)
 
honor of
 
a presentation
 
after the
 
expiration date
 
of any
 
Letter of
Credit notwithstanding that a presentation was made prior to such expiration
 
date and dishonored
by Issuing Bank if subsequently Issuing Bank or any court or other finder of fact determines such
presentation should have been honored;
(xii)
 
dishonor of any presentation that does
 
not strictly comply or that is
fraudulent, forged or otherwise not entitled to honor; or
(xiii)
 
honor of a
 
presentation that is
 
subsequently determined by
 
Issuing
Bank to
 
have been
 
made in
 
violation of
 
international, federal,
 
state or
 
local restrictions
 
on the
transaction of business with certain prohibited Persons.
(k)
 
Borrowers shall pay immediately upon demand to Agent for the account of
Issuing Bank
 
as non-refundable
 
fees, commissions,
 
and charges
 
(it being
 
acknowledged and
agreed that any charging of such fees, commissions, and charges to the Loan Account pursuant to
the provisions of
 
Section 2.6(d) shall
 
be deemed to
 
constitute a demand
 
for payment thereof
 
for
the purposes of this
 
Section 2.11(k)):
 
(i) a fronting fee
 
which shall be
 
imposed by Issuing Bank
equal to
 
.250%
per annum
 
times the
 
average amount
 
of the
 
Letter of
 
Credit Usage
 
during the
immediately preceding month,
plus
 
(ii) any and
 
all other customary
 
commissions, fees and
 
charges
then in effect imposed by,
 
and any and all expenses incurred by,
 
Issuing Bank, or by any adviser,
confirming institution or entity or
 
other nominated person, relating to Letters of
 
Credit, at the time
of issuance of
 
any Letter of
 
Credit and upon
 
the occurrence of
 
any other activity
 
with respect to
any Letter of Credit (including
 
transfers, assignments of proceeds, amendments,
 
drawings,
extensions or cancellations).
(l)
 
If by reason of (x)
 
any Change in Law,
 
or (y) compliance by Issuing
 
Bank
or any other member
 
of the Lender Group with
 
any direction, request, or requirement
 
(irrespective
of whether
 
having the
 
force of
 
law) of
 
any Governmental
 
Authority or
 
monetary authority
including, Regulation
 
D of
 
the Board
 
of Governors
 
as from
 
time to
 
time in
 
effect (and
 
any
successor thereto):
(i)
 
any reserve, deposit,
 
or similar requirement
 
is or shall
 
be imposed
or modified in respect
 
of any Letter of
 
Credit issued or caused
 
to be issued hereunder
 
or hereby,
or any Loans or obligations to make Loans hereunder or hereby, or
(ii)
 
there shall be imposed on Issuing Bank or any other member of
 
the
Lender Group any
 
other condition regarding
 
any Letter of
 
Credit, Loans, or
 
obligations to make
Loans hereunder,
 
 
 
 
 
 
 
 
 
and the result of the foregoing is to increase, directly
 
or indirectly, the cost to Issuing Bank or any
other member of the Lender Group of issuing, making, participating in, or maintaining any Letter
of Credit or to reduce the amount receivable
 
in respect thereof, then, and in
 
any such case, Agent
may, at
 
any time
 
within a
 
reasonable period
 
after the
 
additional cost
 
is incurred or
 
the amount
received is
 
reduced, notify
 
Borrowers, and
 
Borrowers shall
 
pay within
 
30 days
 
after demand
therefor, such amounts
 
as Agent may specify to
 
be necessary to compensate Issuing
 
Bank or any
other member
 
of the
 
Lender Group
 
for such
 
additional cost
 
or reduced
 
receipt, together
 
with
interest on such amount from the
 
date of such demand until payment
 
in full thereof at the
 
rate then
applicable to Base
 
Rate Loans hereunder;
 
provided, that (A)
 
Borrowers shall not
 
be required to
provide any compensation
 
pursuant to
 
this Section 2.11(l)
 
for any such
 
amounts incurred
 
more
than 180 days prior to the date on which the demand for
 
payment of such amounts is first made to
Borrowers, and (B) if an event or circumstance
 
giving rise to such amounts is retroactive, then
 
the
180-day period
 
referred to
 
above shall
 
be extended
 
to include
 
the period
 
of retroactive
 
effect
thereof.
 
The determination by
 
Agent of any
 
amount due pursuant
 
to this Section
 
2.11(l), as
 
set
forth in a certificate setting forth the
 
calculation thereof in reasonable detail, shall,
 
in the absence
of manifest or demonstrable error, be final and conclusive and binding on all of
 
the parties hereto.
(m)
 
Each standby Letter of
 
Credit shall expire not
 
later than the date
 
that is 12
months after the date of the issuance of such Letter of Credit; provided, that any standby
 
Letter of
Credit may provide for the automatic extension thereof for any number of additional periods each
of up
 
to one
 
year in duration;
 
provided further,
 
that with
 
respect to
 
any Letter
 
of Credit
 
which
extends beyond the Maturity Date, Letter of Credit Collateralization shall be provided therefor on
or before the date that
 
is five Business Days prior
 
to the Maturity Date.
 
Each commercial Letter
of Credit shall
 
expire on the
 
earlier of (i)
 
120 days after
 
the date of
 
the issuance of such
 
commercial
Letter of Credit and (ii) five Business Days prior to the Maturity Date.
(n)
 
If (i) any Event
 
of Default shall occur and
 
be continuing, or (ii)
 
Availability
shall at
 
any time
 
be less
 
than zero,
 
then on
 
the Business
 
Day following
 
the date
 
when the
Administrative Borrower receives notice from Agent
 
or the Required Lenders (or,
 
if the maturity
of the
 
Obligations has
 
been accelerated,
 
Revolving Lenders
 
with Letter
 
of Credit
 
Exposure
representing greater
 
than 50%
 
of the
 
total Letter
 
Credit Exposure)
 
demanding Letter
 
of Credit
Collateralization pursuant
 
to this
 
Section 2.11(n)
 
upon such
 
demand, Borrowers
 
shall provide
Letter of
 
Credit Collateralization
 
with respect
 
to the
 
then existing
 
Letter of
 
Credit Usage.
 
If
Borrowers fail to provide Letter
 
of Credit Collateralization as required by
 
this Section 2.11(n), the
Revolving Lenders may
 
(and, upon direction
 
of Agent, shall)
 
advance, as Revolving
 
Loans the
amount of the cash collateral required
 
pursuant to the Letter of Credit
 
Collateralization provision
so that the then existing Letter of
 
Credit Usage is cash collateralized in accordance
 
with the Letter
of Credit Collateralization provision (whether or not the
 
Revolver Commitments have terminated,
an Overadvance exists or the conditions in Section 3 are satisfied).
(o)
 
Unless otherwise expressly agreed by Issuing Bank
 
and Borrowers when a
Letter of Credit is issued, (i) the rules
 
of the ISP shall apply to each
 
standby Letter of Credit, and
(ii) the rules of the UCP shall apply to each commercial Letter of Credit.
(p)
 
Issuing Bank shall be
 
deemed to have acted
 
with due diligence and
reasonable care if Issuing Bank's conduct is in accordance with Standard Letter of Credit Practice
or in accordance with this Agreement.
 
 
 
 
 
 
 
(q)
 
In the event of a direct conflict between
 
the provisions of this Section 2.11
and any provision
 
contained in any Issuer
 
Document, it is
 
the intention of
 
the parties hereto
 
that
such provisions be read together and construed,
 
to the fullest extent possible, to be in concert
 
with
each other.
 
In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid,
the terms and provisions of this Section 2.11 shall control and govern.
(r)
 
The provisions
 
of this
 
Section 2.11
 
shall survive
 
the termination
 
of this
Agreement and the repayment in
 
full of the Obligations with
 
respect to any Letters of Credit
 
that
remain outstanding.
(s)
 
At Borrowers'
 
costs and
 
expense, Borrowers
 
shall execute
 
and deliver
 
to
Issuing Bank such additional certificates,
 
instruments and/or documents and
 
take such additional
action as may be reasonably requested by Issuing Bank to enable Issuing Bank to
 
issue any Letter
of Credit
 
pursuant to
 
this Agreement
 
and related
 
Issuer Document,
 
to protect,
 
exercise and/or
enforce Issuing Banks' rights and interests under this Agreement or to give effect to the terms and
provisions of
 
this Agreement
 
or any
 
Issuer Document.
 
Each Borrower
 
irrevocably appoints
Issuing Bank as its
 
attorney-in-fact and authorizes
 
Issuing Bank, without notice
 
to Borrowers, to
execute and deliver ancillary documents and
 
letters customary in the letter
 
of credit business that
may include but
 
are not limited
 
to advisements, indemnities,
 
checks, bills of
 
exchange and issuance
documents.
 
The power
 
of attorney
 
granted by
 
the Borrowers
 
is limited
 
solely to
 
such actions
related to
 
the issuance,
 
confirmation or
 
amendment of
 
any Letter
 
of Credit
 
and to
 
ancillary
documents or letters customary in the
 
letter of credit business.
 
This appointment is coupled with
an interest.
2.12.
 
LIBOR Option
.
(a)
 
Interest and Interest
 
Payment Dates
.
 
In lieu of
 
having interest charged
at the rate based upon
 
the Base Rate, Borrowers
 
shall have the option,
 
subject to Section 2.12(b)
below (the "LIBOR
 
Option") to
 
have interest on
 
all or a
 
portion of the
 
Revolving Loans or
 
the
Term Loan be
 
charged (whether at the time when
 
made (unless otherwise provided herein), upon
conversion from a Base Rate Loan to a LIBOR
 
Rate Loan, or upon continuation of a LIBOR Rate
Loan as a LIBOR Rate Loan)
 
at a rate of interest based upon
 
the LIBOR Rate.
 
Interest on LIBOR
Rate Loans
 
shall be
 
payable on
 
the earliest
 
of (i)
 
the last
 
day of
 
the Interest
 
Period applicable
thereto; provided,
 
that subject
 
to the
 
following clauses
 
(ii) and
 
(iii), in
 
the case
 
of any
 
Interest
Period greater than
 
three months in duration,
 
interest shall be
 
payable at three month
 
intervals after
the commencement of the
 
applicable Interest Period
 
and on the last
 
day of such Interest
 
Period),
(ii) the date
 
on which all
 
or any portion
 
of the Obligations
 
are accelerated pursuant
 
to the terms
hereof, or (iii)
 
the date on
 
which this Agreement
 
is terminated pursuant to
 
the terms hereof.
 
On
the last
 
day of
 
each applicable
 
Interest Period,
 
unless Borrowers
 
have properly
 
exercised the
LIBOR Option
 
with respect
 
thereto, the
 
interest rate
 
applicable to
 
such LIBOR Rate
 
Loan
automatically shall convert to the
 
rate of interest then
 
applicable to Base Rate
 
Loans of the same
type hereunder.
 
At any time that an
 
Event of Default has
 
occurred and is continuing,
 
at the written
election of Agent or
 
the Required Lenders, Borrowers
 
no longer shall
 
have the option
 
to request
that Revolving Loans
 
or any portion
 
of the Term Loan bear
 
interest at a
 
rate based upon
 
the LIBOR
Rate.
 
 
 
 
 
 
(b)
 
LIBOR Election
.
(i)
 
Borrowers may,
 
at any
 
time and
 
from time
 
to time,
 
so long
 
as
Borrowers have not
 
received a notice
 
from Agent (which
 
notice Agent may
 
elect to give
 
or not
give in its
 
discretion unless Agent
 
is directed to
 
give such notice
 
by the Required
 
Lenders, in which
case, it shall give the notice
 
to Borrowers), after the occurrence and
 
during the continuance of an
Event of Default,
 
to terminate
 
the right of
 
Borrowers to exercise
 
the LIBOR
 
Option during the
continuance of such
 
Event of Default,
 
elect to exercise
 
the LIBOR Option
 
by notifying Agent
 
prior
to 1:00
 
p.m. at
 
least three
 
Business Days
 
prior to
 
the commencement
 
of the
 
proposed Interest
Period (the
 
"LIBOR Deadline").
 
Notice of
 
Borrowers' election
 
of the
 
LIBOR Option
 
for a
permitted portion of the Revolving Loans
 
or the Term Loan and an Interest Period pursuant to
 
this
Section shall
 
be made
 
by delivery
 
to Agent
 
of a
 
LIBOR Notice
 
received by
 
Agent before
 
the
LIBOR Deadline.
 
Promptly upon its
 
receipt of each
 
such LIBOR Notice,
 
Agent shall provide
 
a
copy thereof to each of the affected Lenders.
(ii)
 
Each LIBOR Notice shall be
 
irrevocable and binding on Borrowers.
 
In connection
 
with each
 
LIBOR Rate
 
Loan, each
 
Borrower shall
 
indemnify, defend,
 
and hold
Agent and the Lenders
 
harmless against any loss,
 
cost, or expense actually
 
incurred by Agent
 
or
any Lender as a result of (A)
 
the payment or required assignment of
 
any principal of any LIBOR
Rate Loan other than on the last day of an Interest
 
Period applicable thereto (including as a result
of an Event of Default), (B) the conversion of any LIBOR Rate Loan other than on the last day of
the Interest Period applicable thereto,
 
or (C) the failure to borrow, convert, continue or
 
prepay any
LIBOR Rate
 
Loan on
 
the date
 
specified in
 
any LIBOR
 
Notice delivered
 
pursuant hereto
 
(such
losses, costs,
 
or expenses,
 
"Funding Losses").
 
A certificate
 
of Agent
 
or a
 
Lender delivered
 
to
Borrowers setting forth in reasonable
 
detail any amount or amounts
 
that Agent or such
 
Lender is
entitled to receive pursuant to this Section 2.12 shall be conclusive
 
absent manifest error.
 
Borrowers shall pay such amount to
 
Agent or the Lender, as applicable, within 30 days
 
of the date
of its receipt of such certificate.
 
(iii)
 
Unless Agent,
 
in its
 
sole discretion,
 
agrees otherwise,
 
Borrowers
shall have not more than
 
five LIBOR Rate Loans in effect
 
at any given time.
 
Borrowers may only
exercise the LIBOR Option for proposed LIBOR Rate Loans of at least $1,000,000.
(c)
 
Conversion; Prepayment
.
 
Borrowers may convert LIBOR Rate Loans to
Base Rate Loans or
 
prepay LIBOR Rate Loans
 
at any time; provided,
 
that in the event
 
that LIBOR
Rate Loans
 
are converted
 
or prepaid
 
on any
 
date that
 
is not
 
the last
 
day of
 
the Interest
 
Period
applicable thereto,
 
including as
 
a result
 
of any
 
prepayment through
 
the required
 
application by
Agent of any
 
payments or proceeds of
 
Collateral in accordance with
 
Section 2.4(b) or
 
for any other
reason, including
 
early termination
 
of the
 
term of
 
this Agreement
 
or acceleration
 
of all
 
or any
portion of the
 
Obligations pursuant to
 
the terms hereof,
 
each Borrower shall
 
indemnify, defend,
and hold Agent
 
and the Lenders
 
and their Participants harmless
 
against any and
 
all Funding Losses
in accordance with Section 2.12 (b)(ii).
(d)
 
Special Provisions Applicable to LIBOR Rate
.
(i)
 
The LIBOR
 
Rate may
 
be adjusted
 
by Agent
 
with respect
 
to any
Lender on a prospective
 
basis to take into
 
account any additional or
 
increased costs to such
 
Lender
 
 
 
 
 
 
 
of maintaining or
 
obtaining any
 
eurodollar deposits
 
or increased costs
 
(other than
 
Taxes which
shall be
 
governed by
 
Section 16),
 
in each
 
case, due
 
to changes
 
in applicable
 
law occurring
subsequent to the commencement of the
 
then applicable Interest Period, including any Changes in
Law and changes
 
in the reserve
 
requirements imposed by
 
the Board of
 
Governors, which additional
or increased costs would
 
increase the cost of
 
funding or maintaining loans
 
bearing interest at the
LIBOR Rate.
 
In any such
 
event, the affected
 
Lender shall give
 
Borrowers and Agent
 
notice of
such a determination
 
and adjustment and
 
Agent promptly shall
 
transmit the notice
 
to each other
Lender and, upon its receipt
 
of the notice from the
 
affected Lender, Borrowers
 
may, by notice
 
to
such affected Lender (A) require such Lender
 
to furnish to Borrowers a statement
 
setting forth in
reasonable detail
 
the basis
 
for adjusting
 
such LIBOR
 
Rate and
 
the method
 
for determining
 
the
amount of such
 
adjustment, or (B)
 
repay the LIBOR
 
Rate Loans of
 
such Lender with
 
respect to
which such adjustment is made (together with any amounts due under Section 2.12(b)(ii)).
(ii)
 
Subject to the
 
provisions set forth
 
in Section 2.12(d)(iii)
 
below, in
the event that
 
any change in
 
market conditions or
 
any Change in
 
Law shall at
 
any time after the
date hereof,
 
in the
 
reasonable opinion
 
of any
 
Lender, make
 
it unlawful
 
or impractical
 
for such
Lender to fund or
 
maintain LIBOR Rate Loans
 
or to continue such
 
funding or maintaining, or
 
to
determine or
 
charge interest
 
rates at
 
the LIBOR
 
Rate, such
 
Lender shall
 
give notice
 
of such
changed circumstances to
 
Agent and Borrowers
 
and Agent promptly
 
shall transmit the
 
notice to
each other
 
Lender and
 
(y) in
 
the case
 
of any
 
LIBOR Rate
 
Loans of
 
such Lender
 
that are
outstanding, the date
 
specified in such
 
Lender's notice shall
 
be deemed to
 
be the last
 
day of the
Interest Period
 
of such
 
LIBOR Rate
 
Loans, and
 
interest upon
 
the LIBOR
 
Rate Loans
 
of such
Lender thereafter
 
shall accrue
 
interest at
 
the rate
 
then applicable
 
to Base
 
Rate Loans,
 
and (z)
Borrowers shall not
 
be entitled
 
to elect
 
the LIBOR
 
Option until
 
such Lender determines
 
that it
would no longer be unlawful or impractical to do so.
(iii)
 
Effect of Benchmark Transition Event.
(A)
 
Benchmark Replacement.
 
Notwithstanding anything to
 
the
contrary herein or in
 
any other Loan Document,
 
upon the occurrence of
 
a Benchmark Transition
Event or an Early Opt-in Election, as applicable, Agent and Administrative Borrower may amend
this Agreement to replace the
 
LIBOR Rate with a
 
Benchmark Replacement. Any such
 
amendment
with respect to a Benchmark Transition Event will become effective at
 
5:00 p.m. on the fifth (5th)
Business Day after Agent has
 
posted such proposed amendment to
 
all Lenders and Administrative
Borrower so
 
long as
 
Agent has
 
not received,
 
by such
 
time, written
 
notice of
 
objection to
 
such
amendment from Lenders comprising the
 
Required Lenders. Any such
 
amendment with respect to
an Early Opt-in Election will
 
become effective on the date
 
that Lenders comprising the Required
Lenders have delivered
 
to Agent written
 
notice that
 
such Required
 
Lenders accept such
amendment. No replacement of the LIBOR Rate with a Benchmark Replacement pursuant
 
to this
Section 2.12(d)(iii) will occur prior to the applicable Benchmark Transition Start Date.
(B)
 
Benchmark Replacement
 
Conforming Changes.
 
In
connection with the
 
implementation of a
 
Benchmark Replacement, Agent
 
will have the
 
right to
make Benchmark
 
Replacement Conforming
 
Changes from
 
time to
 
time and,
 
notwithstanding
anything to the
 
contrary herein or
 
in any other
 
Loan Document, any
 
amendments implementing
such Benchmark
 
Replacement Conforming
 
Changes will
 
become effective
 
without any
 
further
action or consent of any other party to this Agreement.
 
 
 
 
 
 
(C)
 
Notices; Standards for Decisions and Determinations.
 
Agent will promptly
 
notify Administrative Borrower
 
and the Lenders
 
of (1) any occurrence
 
of a
Benchmark Transition Event or an Early
 
Opt-in Election, as applicable, and
 
its related Benchmark
Replacement Date
 
and Benchmark
 
Transition Start
 
Date, (2)
 
the implementation
 
of any
Benchmark Replacement, (3) the effectiveness of any Benchmark Replacement Conforming
Changes, and (4) the commencement or
 
conclusion of any Benchmark Unavailability Period.
 
Any
determination, decision or election that
 
may be made by Agent
 
or Lenders pursuant to this
 
Section
2.12(d)(iii) including
 
any determination
 
with respect
 
to a
 
tenor, rate
 
or adjustment
 
or of
 
the
occurrence or non-occurrence of an
 
event, circumstance or date and any
 
decision to take or refrain
from taking any action, will be conclusive and binding absent manifest
 
error and may be made in
its or their sole
 
discretion and without consent
 
from any other party
 
hereto, except, in
 
each case,
as expressly required pursuant to this Section 2.12(d)(iii).
(D)
 
Benchmark Unavailability Period.
 
Upon Administrative
Borrower's receipt of notice of the
 
commencement of a Benchmark Unavailability
 
Period,
Administrative Borrower
 
may revoke any
 
request for
 
a LIBOR Borrowing
 
of, conversion
 
to or
continuation of
 
LIBOR Rate Loans
 
to be
 
made, converted or
 
continued during
 
any Benchmark
Unavailability Period and, failing
 
that, Administrative Borrower will
 
be deemed to have
 
converted
any such request into a request for a Borrowing of
 
or conversion to Base Rate Loans. During any
Benchmark Unavailability Period, the component
 
of Base Rate based
 
upon the LIBOR Rate
 
will
not be used in any determination of the Base Rate.
(e)
 
No Requirement
 
of Matched
 
Funding
.
 
Anything to
 
the contrary
contained herein notwithstanding, neither Agent, nor
 
any Lender, nor any
 
of their Participants, is
required actually to acquire eurodollar
 
deposits to fund or otherwise match
 
fund any Obligation as
to which interest accrues at the LIBOR Rate.
2.13.
 
Capital Requirements
.
(a)
 
If, after the date hereof, Issuing Bank or any Lender determines that (i) any
Change in
 
Law regarding
 
capital, liquidity
 
or reserve
 
requirements for
 
banks or
 
bank holding
companies, or
 
(ii) compliance
 
by Issuing
 
Bank or
 
such Lender,
 
or their
 
respective parent
 
bank
holding companies,
 
with any
 
guideline, request
 
or directive
 
of any
 
Governmental Authority
regarding capital adequacy or liquidity requirements (whether or not having the force of law), has
the effect
 
of reducing
 
the return
 
on Issuing
 
Bank's, such
 
Lender's, or
 
such holding
 
companies'
capital or
 
liquidity as
 
a consequence
 
of Issuing
 
Bank's or
 
such Lender's
 
commitments, Loans,
participations or
 
other obligations
 
hereunder to
 
a level
 
below that
 
which Issuing
 
Bank, such
Lender, or such holding
 
companies could have
 
achieved but for
 
such Change in
 
Law or compliance
(taking into consideration Issuing Bank's, such Lender's, or
 
such holding companies' then existing
policies with respect
 
to capital adequacy or
 
liquidity requirements and assuming
 
the full utilization
of such entity's
 
capital) by any
 
amount deemed by
 
Issuing Bank or
 
such Lender to
 
be material,
then Issuing Bank or such Lender may notify Borrowers and Agent thereof.
 
Following receipt of
such notice, Borrowers agree to pay
 
Issuing Bank or such Lender on demand
 
the amount of such
reduction of return
 
of capital as
 
and when such
 
reduction is determined,
 
payable within 30
 
days
after presentation by Issuing
 
Bank or such Lender
 
of a statement in
 
the amount and setting
 
forth
in reasonable detail Issuing Bank's or such Lender's calculation thereof and the assumptions upon
which such
 
calculation was
 
based (which
 
statement shall
 
be deemed
 
true and
 
correct absent
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
manifest error).
 
In determining such
 
amount, Issuing Bank
 
or such Lender
 
may use any
 
reasonable
averaging and attribution methods.
 
Failure or delay on the part of Issuing
 
Bank or any Lender to
demand compensation pursuant
 
to this Section
 
shall not constitute
 
a waiver of Issuing
 
Bank's or
such Lender's right to demand such compensation; provided, that Borrowers shall not be required
to compensate
 
Issuing Bank
 
or a
 
Lender pursuant
 
to this
 
Section for
 
any reductions
 
in return
incurred more than 180 days prior
 
to the date that Issuing Bank
 
or such Lender notifies Borrowers
of such
 
Change in
 
Law giving
 
rise to
 
such reductions
 
and of
 
such Lender's
 
intention to
 
claim
compensation therefor; provided further, that if such claim arises by reason of the Change in Law
that is retroactive,
 
then the 180-day period
 
referred to above
 
shall be extended to
 
include the period
of retroactive effect thereof.
(b)
 
If Issuing Bank
 
or any Lender
 
requests additional or
 
increased costs referred
to in Section 2.11(l) or
 
Section 2.12(d)(i) or amounts
 
under Section 2.13(a) or
 
sends a notice under
Section 2.12(d)(ii) relative to changed circumstances (such
 
Issuing Bank or Lender, an "Affected
Lender"), then, at the request of Administrative Borrower, such
 
Affected Lender shall use
reasonable efforts to promptly designate a different one of
 
its lending offices or to assign its rights
and obligations hereunder to another of its
 
offices or branches, if (i) in the reasonable
 
judgment of
such Affected Lender, such designation or
 
assignment would eliminate or
 
reduce amounts payable
pursuant to Section 2.11(l),
 
Section 2.12(d)(i) or Section
 
2.13(a), as applicable, or
 
would eliminate
the illegality
 
or impracticality
 
of funding
 
or maintaining
 
LIBOR Rate
 
Loans, and
 
(ii) in
 
the
reasonable judgment of such Affected
 
Lender, such designation
 
or assignment would not
 
subject
it to
 
any material unreimbursed
 
cost or
 
expense and
 
would not
 
otherwise be
 
materially
disadvantageous to it.
 
Borrowers agree
 
to pay
 
all reasonable
 
out-of-pocket costs
 
and expenses
incurred by such Affected Lender
 
in connection with any
 
such designation or assignment.
 
If, after
such reasonable efforts, such Affected
 
Lender does not so designate a different
 
one of its lending
offices or
 
assign its
 
rights to
 
another of
 
its offices
 
or branches
 
so as
 
to eliminate
 
Borrowers'
obligation to pay any future amounts to such Affected Lender pursuant to Section 2.11(l),
 
Section
2.12(d)(i) or Section 2.13(a), as applicable,
 
or to enable Borrowers to obtain
 
LIBOR Rate Loans,
then Borrowers (without prejudice
 
to any amounts then
 
due to such
 
Affected Lender under Section
2.11(l),
 
Section 2.12(d)(i) or Section 2.13(a), as applicable) may, unless prior to the effective date
of any such
 
assignment the
 
Affected Lender
 
withdraws its
 
request for
 
such additional
 
amounts
under Section 2.11(l),
 
Section 2.12(d)(i) or Section 2.13(a), as applicable, or indicates that it is no
longer unlawful or impractical to fund or
 
maintain LIBOR Rate Loans, may designate
 
a different
Issuing Bank or substitute a Lender or prospective Lender,
 
in each case, reasonably acceptable to
Agent to
 
purchase the
 
Obligations owed
 
to such
 
Affected Lender
 
and such
 
Affected Lender's
commitments hereunder
 
(a "Replacement
 
Lender"), and
 
if such
 
Replacement Lender
 
agrees to
such purchase, such Affected
 
Lender shall assign to
 
the Replacement Lender its
 
Obligations and
commitments, and
 
upon such
 
purchase by
 
the Replacement
 
Lender, which
 
such Replacement
Lender shall be deemed
 
to be "Issuing Bank"
 
or a "Lender"
 
(as the case may
 
be) for purposes of
this Agreement and such
 
Affected Lender shall
 
cease to be "Issuing
 
Bank" or a "Lender"
 
(as the
case may be) for purposes of this Agreement.
(c)
 
Notwithstanding anything herein to the contrary, the protection of Sections
2.11(l),
 
2.12(d), and
 
2.13 shall
 
be available
 
to Issuing
 
Bank and
 
each Lender
 
(as applicable)
regardless of any
 
possible contention of
 
the invalidity or
 
inapplicability of the
 
law, rule, regulation,
judicial ruling, judgment, guideline, treaty or
 
other change or condition which shall have
 
occurred
or been imposed, so long as it
 
shall be customary for issuing banks or
 
lenders affected thereby to
 
 
 
 
 
 
comply therewith.
 
Notwithstanding any
 
other provision
 
herein, neither
 
Issuing Bank
 
nor any
Lender shall demand compensation
 
pursuant to this
 
Section 2.13 if it
 
shall not at the
 
time be the
general policy or
 
practice of Issuing
 
Bank or such
 
Lender (as the
 
case may be)
 
to demand such
compensation in similar circumstances under
 
comparable provisions of other credit agreements,
 
if
any.
2.14.
 
Incremental Facilities
.
(a)
 
At any time during the
 
period from and after the
 
Closing Date through but
excluding the date
 
that is the
 
3 year anniversary of
 
the Closing Date,
 
at the option
 
of Borrowers
(but subject to
 
the conditions set
 
forth in clause
 
(b) below), the
 
Revolver Commitments
 
and the
Maximum Revolver Amount
 
may be increased
 
by an amount
 
in the aggregate
 
for all such
 
increases
of the Revolver
 
Commitments and the
 
Maximum Revolver Amount
 
not to exceed
 
the Available
Increase Amount (each such increase,
 
an "Increase").
 
Agent shall invite each Lender
 
to increase
its Revolver Commitments
 
(it being understood
 
that no Lender
 
shall be obligated
 
to increase its
Revolver Commitments) in
 
connection with a
 
proposed Increase at
 
the interest margin
 
proposed
by Borrowers, and if
 
sufficient Lenders do
 
not agree to increase
 
their Revolver Commitments
 
in
connection with
 
such proposed
 
Increase, then
 
Agent or
 
Borrowers may
 
invite any
 
prospective
lender who is reasonably
 
satisfactory to Agent and
 
Borrowers to become a
 
Lender in connection
with a proposed Increase.
 
Any Increase shall be in an amount
 
of at least $5,000,000 and integral
multiples of $5,000,000
 
in excess thereof.
 
In no event
 
may the Revolver
 
Commitments and the
Maximum Revolver Amount
 
to be increased
 
pursuant to this
 
Section 2.14 on
 
more than 2
 
occasions
in the aggregate for all
 
such Increases.
 
Additionally, for
 
the avoidance of doubt,
 
it is understood
and agreed that in
 
no event shall the
 
aggregate amount of the
 
Increases to the Revolver
Commitments exceed $10,000,000.
(b)
 
Each of the
 
following shall be
 
conditions precedent to
 
any Increase of the
Revolver Commitments and the Maximum Revolver Amount in connection therewith:
(i)
 
Agent or Borrowers have obtained
 
the commitment of one or
 
more
Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide
the applicable Increase and any
 
such Lenders (or prospective lenders),
 
Borrowers, and Agent have
signed a
 
joinder agreement
 
to this
 
Agreement (an
 
"Increase Joinder"),
 
in form
 
and substance
reasonably satisfactory to Agent, to which such Lenders (or
 
prospective lenders), Borrowers, and
Agent are party,
(ii)
 
each of the
 
conditions precedent set
 
forth in Section
 
3.2 are satisfied,
(iii)
 
in connection
 
with any
 
Increase, if
 
any Loan
 
Party or
 
any of
 
its
Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated
Form U-1
 
(with sufficient
 
additional originals
 
thereof for
 
each Lender), duly
 
executed and
delivered by
 
the Borrowers,
 
together with
 
such other
 
documentation as
 
Agent shall
 
reasonably
request, in order
 
to enable Agent
 
and the Lenders
 
to comply with
 
any of the
 
requirements under
Regulations T, U or X of the Federal Reserve Board,
(iv)
 
Borrowers have delivered
 
to Agent updated
pro forma
 
Projections
(after giving effect to
 
the applicable Increase) for
 
the Loan Parties and
 
their Subsidiaries
 
 
 
 
 
 
 
 
 
evidencing compliance on
 
a
pro forma
 
basis with Section
 
7 for the
 
twelve months (on
 
a month-
by-month basis) immediately following the proposed date of the applicable Increase, and
(v)
 
The interest rate margins with respect to the Revolving Loans to
 
be
made pursuant to
 
the increased Revolver
 
Commitments shall be
 
the same as
 
the interest rate
 
margin
applicable to Revolving
 
Loans hereunder immediately
 
prior to
 
the applicable
 
Increase Date (as
defined below)
 
(the date
 
of the
 
effectiveness of
 
the increased
 
Revolver Commitments
 
and the
Maximum Revolver Amount, the
 
"Increase Date").
 
Any Increase Joinder
 
may, with
 
the consent
of Agent, Borrowers
 
and the
 
Lenders or prospective
 
lenders agreeing
 
to the
 
proposed Increase,
effect such amendments to this Agreement and the other Loan Documents as may be necessary to
effectuate the provisions of this Section 2.14.
 
 
(c)
 
Unless otherwise
 
specifically provided
 
herein, (i)
 
all references
 
in this
Agreement and any other Loan
 
Document to Revolving Loans shall
 
be deemed, unless the context
otherwise requires, to
 
include Revolving Loans
 
made pursuant to
 
the increased Revolver
Commitments and Maximum Revolver
 
Amount pursuant to this
 
Section 2.14, and (ii)
 
all
references in this
 
Agreement and any
 
other Loan Document
 
to the Term
 
Loan shall be
 
deemed,
unless the context
 
otherwise requires, to
 
include any Additional
 
Portion of the
 
Term Loan
 
made
pursuant to the increased Term Loan Amount pursuant to this Section 2.14.
(d)
 
Each of the
 
Lenders having a
 
Revolver Commitment prior
 
to the Increase
Date (the "Pre-Increase Revolver
 
Lenders") shall assign to
 
any Lender which
 
is acquiring a new
or additional Revolver Commitment on the
 
Increase Date (the "Post-Increase Revolver Lenders"),
and such Post-Increase Revolver Lenders
 
shall purchase from each Pre-Increase
 
Revolver Lender,
at the principal amount
 
thereof, such interests
 
in the Revolving
 
Loans and participation interests
in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to
all such assignments and purchases,
 
such Revolving Loans and participation interests
 
in Letters of
Credit will be held by Pre-Increase Revolver Lenders and Post-Increase
 
Revolver Lenders ratably
in accordance
 
with their
 
Pro Rata
 
Share after
 
giving effect
 
to such
 
increased Revolver
Commitments.
(e)
 
The Revolving
 
Loans, Revolver
 
Commitments, and
 
Maximum Revolver
Amount established
 
pursuant to
 
this Section
 
2.14 shall
 
constitute Revolving
 
Loans, Revolver
Commitments, and
 
Maximum Revolver
 
Amount under,
 
and shall
 
be entitled
 
to all
 
the benefits
afforded by,
 
this Agreement
 
and the
 
other Loan
 
Documents, and
 
shall, without
 
limiting the
foregoing, benefit equally
 
and ratably from any
 
guarantees and the security
 
interests created by the
Loan Documents.
 
Borrowers shall take
 
any actions reasonably required
 
by Agent to
 
ensure and
demonstrate that the
 
Liens and security
 
interests granted by
 
the Loan Documents
 
continue to be
perfected under
 
the Code
 
or otherwise
 
after giving effect
 
to the
 
establishment of any
 
such new
Revolver Commitments and Maximum Revolver Amount.
2.15.
 
Currencies
.
 
The Revolving
 
Loans and other
 
Obligations shall
 
be made
 
and
repaid in Dollars.
 
Payments made in
 
a currency other
 
than the currency
 
in which the
 
applicable
Obligations are
 
denominated may
 
be accepted
 
by the
 
Agent in
 
its sole
 
discretion and,
 
if so
accepted, the Borrowers
 
agree that the
 
Agent may convert
 
the payment made
 
to the currency
 
of
the applicable Obligations at the applicable Spot Rate in accordance with its normal practices.
 
 
 
 
 
2.16.
 
Joint and Several Liability of Borrowers
.
(a)
 
Each Borrower is accepting joint
 
and several liability hereunder and
 
under
the other Loan Documents in
 
consideration of the financial accommodations
 
to be provided by
 
the
Lender Group
 
under this
 
Agreement, for
 
the mutual
 
benefit, directly
 
and indirectly,
 
of each
Borrower and
 
in consideration
 
of the
 
undertakings of
 
the other
 
Borrowers to
 
accept joint
 
and
several liability for the Obligations.
(b)
 
Each Borrower, jointly
 
and severally,
 
hereby irrevocably and
unconditionally accepts, not merely
 
as a surety but
 
also as a co-debtor,
 
joint and several liability
with the other Borrowers,
 
with respect to the
 
payment and performance of
 
all of the Obligations
(including any Obligations
 
arising under this
 
Section 2.16),
 
it being the
 
intention of
 
the parties
hereto that all the Obligations shall be the
 
joint and several obligations of each Borrower
 
without
preferences or distinction
 
among them.
 
Accordingly, at
 
any time
 
when there
 
is more
 
than one
Borrower, each Borrower hereby
 
waives any and all suretyship defenses
 
that would otherwise be
available to such Borrower under applicable law.
(c)
 
If and to the extent
 
that any Borrower shall fail
 
to make any payment with
respect to
 
any of
 
the Obligations
 
as and
 
when due,
 
whether upon
 
maturity, acceleration,
 
or
otherwise, or to perform any of the Obligations in accordance with the terms thereof, then in each
such event
 
the other
 
Borrowers will
 
make such
 
payment with
 
respect to,
 
or perform,
 
such
Obligations until
 
such time
 
as all
 
of the
 
Obligations are
 
paid in
 
full, and
 
without the
 
need for
demand, protest, or any other notice or formality.
(d)
 
The Obligations of each Borrower under
 
the provisions of this Section 2.16
constitute the absolute and unconditional, full recourse Obligations of each Borrower enforceable
against each Borrower
 
to the full
 
extent of its
 
properties and assets,
 
irrespective of the
 
validity,
regularity or enforceability of
 
the provisions of this Agreement
 
(other than this Section 2.16(d))
 
or
any other circumstances whatsoever.
(e)
 
Without limiting
 
the generality
 
of the
 
foregoing and
 
except as
 
otherwise
expressly provided in
 
this Agreement, at
 
any time when
 
there is more
 
than one Borrower,
 
each
Borrower hereby waives presentments, demands for
 
performance, protests and notices, including
notices of acceptance of its joint and several liability, notice
 
of any Revolving Loans, any portion
of the Term
 
Loan or any
 
Letters of Credit issued
 
under or pursuant
 
to this Agreement,
 
notice of
the occurrence of
 
any Default, Event
 
of Default,
 
notices of
 
nonperformance, notices
 
of protest,
notices of dishonor, notices of acceptance of this Agreement, notices of the existence, creation, or
incurring of new
 
or additional Obligations
 
or other financial
 
accommodations or of
 
any demand
for any payment under this Agreement,
 
notice of any action at any
 
time taken or omitted by Agent
or Lenders under
 
or in respect
 
of any of
 
the Obligations, any
 
right to proceed
 
against any other
Borrower or
 
any other
 
Person, to
 
proceed against
 
or exhaust
 
any security
 
held from
 
any other
Borrower or any other Person, to
 
protect, secure, perfect, or insure any security
 
interest or Lien on
any property subject
 
thereto or exhaust
 
any right to
 
take any action
 
against any other
 
Borrower,
any other
 
Person, or
 
any collateral,
 
to pursue
 
any other
 
remedy in
 
any member
 
of the
 
Lender
Group's or
 
any Bank
 
Product Provider's
 
power whatsoever,
 
any requirement
 
of diligence
 
or to
mitigate damages and, generally,
 
to the extent
 
permitted by applicable law,
 
all demands, notices
and other
 
formalities of
 
every kind
 
in connection
 
with this
 
Agreement (except
 
as otherwise
 
 
 
 
provided in this Agreement),
 
any right to assert
 
against any member of
 
the Lender Group or
 
any
Bank Product Provider, any
 
defense (legal or
 
equitable), set-off, counterclaim, or
 
claim which each
Borrower may now
 
or at any
 
time hereafter have
 
against any other
 
Borrower or any
 
other party
liable to
 
any member of
 
the Lender Group
 
or any
 
Bank Product Provider,
 
any defense, set-off,
counterclaim, or
 
claim, of
 
any kind
 
or nature,
 
arising directly
 
or indirectly
 
from the
 
present or
future lack of perfection, sufficiency, validity,
 
or enforceability of the Obligations or any security
therefor, and any right or defense
 
arising by reason of any
 
claim or defense based
 
upon an election
of remedies
 
by any
 
member of
 
the Lender
 
Group or
 
any Bank
 
Product Provider
 
including any
defense based
 
upon an
 
impairment or
 
elimination of
 
such Borrower's
 
rights of
 
subrogation,
reimbursement, contribution, or indemnity
 
of such Borrower against
 
any other Borrower.
 
Without
limiting the generality of
 
the foregoing, at any
 
time when there is
 
more than one Borrower,
 
each
Borrower hereby assents to, and
 
waives notice of, any extension
 
or postponement of the time
 
for
the payment of any
 
of the Obligations, the
 
acceptance of any payment
 
of any of the
 
Obligations,
the acceptance of any
 
partial payment thereon, any
 
waiver, consent or other action
 
or acquiescence
by Agent
 
or Lenders
 
at any
 
time or
 
times in
 
respect of
 
any default
 
by any
 
Borrower in
 
the
performance or satisfaction of any term,
 
covenant, condition or provision of
 
this Agreement, any
and all other
 
indulgences whatsoever by
 
Agent or Lenders
 
in respect of
 
any of the
 
Obligations,
and the taking,
 
addition, substitution or
 
release, in whole
 
or in part,
 
at any time
 
or times, of
 
any
security for any of
 
the Obligations or the
 
addition, substitution or
 
release, in whole or
 
in part, of
any Borrower.
 
Without limiting
 
the generality of
 
the foregoing, at
 
any time when
 
there is more
than one Borrower,
 
each Borrower assents
 
to any other
 
action or delay in
 
acting or failure to
 
act
on the part of any
 
Agent or Lender with respect
 
to the failure by any Borrower
 
to comply with any
of its respective
 
Obligations, including
 
any failure
 
strictly or diligently
 
to assert
 
any right or
 
to
pursue any remedy
 
or to comply
 
fully with applicable
 
laws or regulations
 
thereunder, which might,
but for the provisions of this Section 2.16 afford grounds for terminating, discharging or relieving
any Borrower, in whole or in part, from any of its Obligations
 
under this Section 2.16, it being the
intention of each
 
Borrower that, so
 
long as any
 
of the Obligations
 
hereunder remain unsatisfied,
the Obligations
 
of each
 
Borrower under
 
this Section
 
2.16 shall
 
not be
 
discharged except
 
by
performance and then only to the extent of such performance.
 
The Obligations of each Borrower
under this
 
Section 2.16
 
shall not
 
be diminished
 
or rendered
 
unenforceable by
 
any winding
 
up,
reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any
other Borrower
 
or any
 
Agent or
 
Lender.
 
Each of
 
the Borrowers
 
waives, to
 
the fullest
 
extent
permitted by law,
 
the benefit of
 
any statute of
 
limitations affecting
 
its liability hereunder
 
or the
enforcement hereof.
 
Any payment by any Borrower or other
 
circumstance which operates to toll
any statute of
 
limitations as to
 
any Borrower shall
 
operate to toll
 
the statute of
 
limitations as to
each of the Borrowers.
 
At any time when there is
 
more than one Borrower, each of the Borrowers
waives any defense based
 
on or arising out
 
of any defense of
 
any Borrower or any
 
other Person,
other than payment of the
 
Obligations to the extent of
 
such payment, based on or
 
arising out of the
disability of any Borrower or any other Person, or the validity,
 
legality, or unenforceability of
 
the
Obligations or any part thereof from any cause,
 
or the cessation from any cause of
 
the liability of
any Borrower other than
 
payment of the Obligations
 
to the extent of
 
such payment.
 
Agent may,
at the election
 
of the Required
 
Lenders, foreclose upon
 
any Collateral held
 
by Agent by
 
one or
more judicial or
 
nonjudicial sales or
 
other dispositions, whether
 
or not every
 
aspect of any
 
such
sale is commercially reasonable or otherwise fails to comply with applicable
 
law or may exercise
any other right
 
or remedy Agent,
 
any other member
 
of the Lender
 
Group, or any
 
Bank Product
Provider may have
 
against any Borrower
 
or any other
 
Person, or any
 
security, in each case,
 
without
 
 
 
 
 
affecting or
 
impairing in
 
any way the
 
liability of
 
any of the
 
Borrowers hereunder except
 
to the
extent the Obligations have been paid.
(f)
 
Each Borrower
 
represents and
 
warrants to
 
Agent and
 
Lenders that
 
such
Borrower is currently
 
informed of the
 
financial condition
 
of Borrowers and
 
of all other
circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment
of the Obligations.
 
Each Borrower further represents and
 
warrants to Agent and
 
Lenders that such
Borrower has
 
read and
 
understands the
 
terms and
 
conditions of
 
the Loan
 
Documents.
 
Each
Borrower hereby
 
covenants that
 
such Borrower
 
will continue
 
to keep
 
informed of
 
Borrowers'
financial condition
 
and of
 
all other
 
circumstances which
 
bear upon
 
the risk
 
of nonpayment
 
or
nonperformance of the Obligations.
(g)
 
The provisions of this Section 2.16 are made for the benefit of Agent,
 
each
member of the
 
Lender Group, each
 
Bank Product
 
Provider, and
 
their respective
 
successors and
assigns, and may be enforced
 
by it or them from time
 
to time against any or all
 
Borrowers as often
as occasion therefor may
 
arise and without requirement
 
on the part of
 
Agent, any member of the
Lender Group, any
 
Bank Product Provider,
 
or any of
 
their successors or
 
assigns first to
 
marshal
any of its or their claims
 
or to exercise any of its
 
or their rights against any Borrower or
 
to exhaust
any remedies available to
 
it or them against
 
any Borrower or to
 
resort to any other
 
source or means
of obtaining
 
payment of
 
any of
 
the Obligations
 
hereunder or
 
to elect
 
any other
 
remedy.
 
The
provisions of this
 
Section 2.16 shall
 
remain in effect
 
until all of
 
the Obligations shall
 
have been
paid in full or otherwise fully satisfied.
 
If at any time, any payment, or any
 
part thereof, made in
respect of any of the Obligations, is rescinded or must otherwise be restored or returned by Agent
or any Lender upon the
 
insolvency, bankruptcy
 
or reorganization of any
 
Borrower, or otherwise,
the provisions of this
 
Section 2.16 will forthwith
 
be reinstated in effect,
 
as though such payment
had not been made.
(h)
 
Each Borrower hereby
 
agrees that it
 
will not enforce
 
any of its
 
rights that
arise from the
 
existence, payment, performance
 
or enforcement of
 
the provisions of
 
this Section
2.16, including rights
 
of subrogation, reimbursement, exoneration,
 
contribution or indemnification
and any right
 
to participate
 
in any claim
 
or remedy
 
of Agent,
 
any other member
 
of the
 
Lender
Group, or any Bank Product
 
Provider against any Borrower, whether or not such
 
claim, remedy or
right arises in
 
equity or under
 
contract, statute or
 
common law, including the
 
right to take
 
or receive
from any Borrower,
 
directly or indirectly,
 
in cash or
 
other property or
 
by set-off or
 
in any other
manner, payment
 
or security solely
 
on account of
 
such claim, remedy
 
or right, unless
 
and until
such time as all of the Obligations have been paid in full in cash.
 
Any claim which any Borrower
may have against any other Borrower
 
with respect to any payments
 
to any Agent or any
 
member
of the Lender
 
Group hereunder or
 
under any of the
 
Bank Product Agreements are
 
hereby expressly
made subordinate
 
and junior
 
in right
 
of payment,
 
without limitation
 
as to
 
any increases
 
in the
Obligations arising hereunder or thereunder, to the prior
 
payment in full in cash
 
of the Obligations
and, in the event of any insolvency,
 
bankruptcy, receivership, liquidation,
 
reorganization or other
similar proceeding
 
under the
 
laws of
 
any jurisdiction
 
relating to
 
any Borrower,
 
its debts
 
or its
assets, whether voluntary
 
or involuntary,
 
all such Obligations shall
 
be paid in
 
full in cash before
any payment or
 
distribution of any
 
character, whether
 
in cash, securities
 
or other property,
 
shall
be made to any other Borrower therefor.
 
If any amount shall be paid to any
 
Borrower in violation
of the immediately preceding sentence,
 
such amount shall be held in
 
trust for the benefit of
 
Agent,
for the benefit of the
 
Lender Group and the Bank
 
Product Providers, and shall forthwith be
 
paid to
 
Agent to
 
be credited
 
and applied
 
to the
 
Obligations and
 
all other
 
amounts payable
 
under this
Agreement, whether matured or unmatured, in accordance with the terms
 
of this Agreement, or to
be held as
 
Collateral for any
 
Obligations or other
 
amounts payable under
 
this Agreement thereafter
arising.
 
Notwithstanding anything to the contrary contained in this Agreement, no Borrower may
exercise any rights of subrogation, contribution, indemnity,
 
reimbursement or other similar rights
against, and may not proceed or seek
 
recourse against or with respect to
 
any property or asset of,
any other
 
Borrower (the
 
"Foreclosed Borrower"),
 
including after
 
payment in
 
full of
 
the
Obligations, if
 
all or
 
any portion
 
of the
 
Obligations have
 
been satisfied
 
in connection
 
with an
exercise of
 
remedies in
 
respect of
 
the Equity
 
Interests of
 
such Foreclosed
 
Borrower whether
pursuant to this Agreement or otherwise.
(i)
 
Each of the Borrowers
 
hereby acknowledges and affirms that
 
it understands
that to the extent
 
the Obligations are secured
 
by Real Property located
 
in California, the Borrowers
shall be
 
liable for
 
the full
 
amount of
 
the liability
 
hereunder notwithstanding the
 
foreclosure on
such Real Property by trustee sale or any other reason impairing such Borrower's right to proceed
against any other
 
Loan Party.
 
In accordance with
 
Section 2856 of
 
the California Civil
 
Code or
any similar laws
 
of any other
 
applicable jurisdiction, each
 
of the Borrowers
 
hereby waives until
such time as the Obligations have been paid in full:
(i)
 
all rights
 
of subrogation,
 
reimbursement, indemnification,
 
and
contribution and any other rights and defenses that are or may become available to the Borrowers
by reason of Sections 2787 to 2855, inclusive, 2899, and
 
3433 of the California Civil Code or any
similar laws of any other applicable jurisdiction;
(ii)
 
all rights
 
and defenses
 
that the
 
Borrowers may
 
have because
 
the
Obligations are secured by
 
Real Property located in California,
 
meaning, among other things,
 
that:
 
(A) Agent, the other members
 
of the Lender Group,
 
and the Bank Product Providers
 
may collect
from the Borrowers
 
without first foreclosing
 
on any real
 
or personal property
 
collateral pledged
by any
 
Loan Party,
 
and (B)
 
if Agent,
 
on behalf
 
of the
 
Lender Group,
 
forecloses on
 
any Real
Property Collateral pledged by any Loan Party, (1) the amount of the Obligations may be reduced
only by the
 
price for which
 
that collateral is
 
sold at the
 
foreclosure sale, even
 
if the collateral
 
is
worth more than the sale price, and (2) the Lender
 
Group may collect from the Loan Parties even
if, by foreclosing
 
on the Real
 
Property Collateral, Agent
 
or the other
 
members of the
 
Lender Group
have destroyed or
 
impaired any right
 
the Borrowers may
 
have to collect
 
from any other
 
Loan Party,
it being understood that this is an unconditional and irrevocable waiver of
 
any rights and defenses
the Borrowers
 
may have
 
because the
 
Obligations are
 
secured by
 
Real Property
 
(including any
rights or
 
defenses based
 
upon Sections
 
580a, 580d,
 
or 726
 
of the
 
California Code
 
of Civil
Procedure or any similar laws of any other applicable jurisdiction); and
(iii)
 
all rights
 
and defenses
 
arising out
 
of an
 
election of
 
remedies by
Agent, the other members of the Lender
 
Group, and the Bank Product Providers, even
 
though that
election of remedies, such as
 
a nonjudicial foreclosure with respect
 
to security for the Obligations,
has destroyed
 
the Borrowers'
 
rights of
 
subrogation and
 
reimbursement against
 
any other
 
Loan
Party by the
 
operation of Section
 
580d of the
 
California Code of
 
Civil Procedure or
 
any similar
laws of any other applicable jurisdiction or otherwise.
 
 
 
 
 
3.
 
CONDITIONS; TERM OF AGREEMENT.
3.1.
 
Conditions Precedent to
 
the Initial Extension
 
of Credit
.
 
The obligation of
each Lender
 
to make
 
the initial
 
extensions of
 
credit provided
 
for hereunder
 
is subject
 
to the
fulfillment, to the
 
satisfaction of Agent
 
and each Lender,
 
of each of the
 
conditions precedent set
forth on Schedule
 
3.1 to this
 
Agreement (the making
 
of such initial
 
extensions of credit
 
by a Lender
being conclusively deemed to be its satisfaction or waiver of the conditions precedent).
3.2.
 
Conditions Precedent
 
to all
 
Extensions of
 
Credit
.
 
The obligation
 
of the
Lender Group (or any
 
member thereof) to make
 
any Revolving Loans or
 
to make the
 
Additional
M/E Term Loan hereunder (or to extend any other
 
credit hereunder) at any time shall
 
be subject to
the following conditions precedent:
(a)
 
the representations
 
and warranties
 
of each
 
Loan Party
 
or its
 
Subsidiaries
contained in this
 
Agreement or in
 
the other Loan
 
Documents shall be
 
true and correct
 
in all material
respects (except that
 
such materiality qualifier shall
 
not be applicable
 
to any representations and
warranties that already are qualified
 
or modified by materiality
 
in the text thereof) on
 
and as of the
date of such extension of
 
credit, as though made on
 
and as of such date
 
(except to the extent that
such representations
 
and warranties
 
relate solely
 
to an
 
earlier date,
 
in which
 
case such
representations and warranties
 
shall be true
 
and correct in
 
all material respects
 
(except that such
materiality qualifier shall not be applicable
 
to any representations and warranties
 
that already are
qualified or modified by materiality in the text thereof) as of such earlier date);
 
(b)
 
no Default or Event
 
of Default shall have
 
occurred and be continuing
 
on the
date of such extension of credit, nor shall either result from the making thereof; and
(c)
 
solely with
 
respect to
 
the Additional
 
M/E Term
 
Loan, Agent
 
shall have
received an Acceptable Appraisal
 
with respect to the
 
Eligible M&E within three
 
months prior to
the date of the funding of the Additional M/E Term Loan.
3.3.
 
Maturity
.
 
The Commitments shall continue in full force
 
and effect for a term
ending on the Maturity Date (unless terminated earlier in accordance with the terms hereof).
3.4.
 
Effect of
 
Maturity
.
 
On the
 
Maturity Date,
 
all commitments
 
of the
 
Lender
Group to
 
provide additional
 
credit hereunder
 
shall automatically
 
be terminated
 
and all
 
of the
Obligations (other than
 
Hedge Obligations) immediately
 
shall become due
 
and payable without
notice or demand
 
and Borrowers shall
 
be required to repay
 
all of the
 
Obligations (other than
 
Hedge
Obligations) in full.
 
No termination of the
 
obligations of the Lender
 
Group (other than payment
in full of the
 
Obligations and termination of
 
the Commitments) shall relieve
 
or discharge any Loan
Party of its
 
duties, obligations,
 
or covenants hereunder
 
or under
 
any other
 
Loan Document and
Agent's Liens in the Collateral shall
 
continue to secure the Obligations
 
and shall remain in effect
until all Obligations
 
have been paid
 
in full.
 
When all of
 
the Obligations have
 
been paid in
 
full,
Agent will,
 
at Borrowers'
 
sole expense,
 
execute and
 
deliver any
 
termination statements,
 
lien
releases, discharges of security interests, and other similar discharge or release
 
documents (and, if
applicable, in recordable form) as are reasonably necessary to release, as of record, Agent's Liens
and all notices of security interests and liens previously filed by Agent.
 
 
 
 
 
3.5.
 
Early Termination
 
by Borrowers
.
 
Borrowers have
 
the option,
 
at any
 
time
upon ten Business
 
Days prior written
 
notice to Agent,
 
to repay all
 
of the Obligations
 
in full and
terminate the
 
Commitments.
 
The foregoing
 
notwithstanding, (a)
 
Borrowers may
 
rescind
termination notices relative to
 
proposed payments in full
 
of the Obligations with
 
the proceeds of
third party Indebtedness
 
if the closing
 
for such issuance
 
or incurrence does
 
not happen on
 
or before
the date of
 
the proposed termination
 
(in which case,
 
a new notice
 
shall be required
 
to be sent
 
in
connection with any
 
subsequent termination), and
 
(b) Borrowers may
 
extend the date
 
of
termination at
 
any time
 
with the
 
consent of
 
Agent (which
 
consent shall
 
not be
 
unreasonably
withheld or delayed).
3.6.
 
Conditions Subsequent.
 
The obligation of the Lender Group (or any member
thereof) to continue to make Revolving Loans (or otherwise extend credit hereunder) is subject to
the fulfillment, on or before
 
the date applicable thereto, of
 
the conditions subsequent set
 
forth on
Schedule 3.6 to this Agreement (the failure by
 
Borrowers to so perform or cause to be
 
performed
such conditions
 
subsequent as
 
and when
 
required by
 
the terms
 
thereof (unless
 
such date
 
is
extended, in writing,
 
by Agent, which
 
Agent may do
 
without obtaining the
 
consent of the
 
other
members of the Lender Group), shall constitute an Event of Default).
4.
 
REPRESENTATIONS
 
AND WARRANTIES.
In order to
 
induce the Lender
 
Group to enter
 
into this Agreement,
 
each Borrower makes
the following representations and warranties to the Lender
 
Group which shall be true, correct, and
complete, in all material respects (except
 
that such materiality qualifier shall
 
not be applicable to
any representations and warranties that already are qualified or modified by
 
materiality in the text
thereof), as of the
 
Closing Date, and
 
shall be true,
 
correct, and complete,
 
in all material
 
respects
(except that such materiality
 
qualifier shall not be applicable
 
to any representations and warranties
that already are
 
qualified or modified
 
by materiality in
 
the text thereof),
 
as of the
 
date of the
 
making
of each Revolving Loan (or other
 
extension of credit) made thereafter,
 
as though made on and as
of the date
 
of such Revolving
 
Loan (or other
 
extension of credit)
 
(except to the
 
extent that such
representations and warranties relate
 
solely to an earlier
 
date, in which case
 
such representations
and warranties
 
shall be
 
true and
 
correct in
 
all material
 
respects (except
 
that such
 
materiality
qualifier shall not be applicable to any representations and warranties that already are qualified or
modified by materiality in
 
the text thereof) as
 
of such earlier date),
 
and such representations
 
and
warranties shall survive the execution and delivery of this Agreement:
4.1.
 
Due Organization and Qualification; Subsidiaries
.
(a)
 
Each Loan
 
Party and
 
each of
 
its Subsidiaries
 
(i) is
 
duly organized
 
and
existing and in good standing under the
 
laws of the jurisdiction of its organization, (ii) is qualified
or registered to
 
do business in
 
any jurisdiction where
 
the failure to
 
be so qualified
 
or registered
could reasonably be
 
expected to result
 
in a Material
 
Adverse Effect, and
 
(iii) has all
 
requisite power
and authority to own and
 
operate its properties, to
 
carry on its business as
 
now conducted and as
proposed to be conducted, to enter into the Loan Documents to
 
which it is a party and to carry out
the transactions contemplated thereby.
(b)
 
Set forth on
 
Schedule 4.1(b) to
 
this Agreement (as
 
such Schedule may
 
be
updated from
 
time to
 
time to
 
reflect changes
 
resulting from
 
transactions permitted
 
under this
 
 
 
 
Agreement) is a complete and
 
accurate description of the authorized
 
Equity Interests of each
 
Loan
Party, by
 
class, and, as
 
of the Closing
 
Date, a description
 
of the number
 
of shares of
 
each such
class that are issued and outstanding.
(c)
 
Set forth on
 
Schedule 4.1(c) to
 
this Agreement (as
 
such Schedule may
 
be
updated from
 
time to
 
time to
 
reflect changes
 
resulting from
 
transactions permitted
 
under this
Agreement), is a
 
complete and accurate
 
list of the
 
Loan Parties' direct
 
and indirect Subsidiaries,
showing: (i)
 
the number
 
of shares
 
of each
 
class of
 
common and
 
preferred Equity
 
Interests
authorized for each of
 
such Subsidiaries, and (ii)
 
the number and the percentage
 
of the outstanding
shares of
 
each such
 
class owned
 
directly or
 
indirectly by
 
Administrative Borrower.
 
All of
 
the
outstanding Equity Interests of each such Subsidiary has been validly issued and is
 
fully paid and
non-assessable.
(d)
 
Except as set forth on Schedule 4.1(d) to this Agreement, as of the
 
Closing
Date, there
 
are no
 
subscriptions, options,
 
warrants, or
 
calls relating
 
to any
 
shares of
 
any Loan
Party's or any of
 
its Subsidiaries' Equity Interests,
 
including any right of
 
conversion or exchange
under any outstanding
 
security or other
 
instrument.
 
No Loan Party
 
is subject to
 
any obligation
(contingent or
 
otherwise) to
 
repurchase or
 
otherwise acquire
 
or retire
 
any shares
 
of its
 
Equity
Interests or any security convertible into or exchangeable for any of its Equity Interests.
4.2.
 
Due Authorization; No Conflict
.
(a)
 
As to each
 
Loan Party,
 
the execution, delivery,
 
and performance
 
by such
Loan Party of
 
the Loan Documents
 
to which it
 
is a party
 
have been duly
 
authorized by all
 
necessary
action on the part of such Loan Party.
(b)
 
As to each
 
Loan Party,
 
the execution, delivery,
 
and performance
 
by such
Loan Party of the
 
Loan Documents to which
 
it is a party
 
do not and will
 
not (i) violate any
 
material
provision of federal, state, provincial or local law or regulation
 
applicable to any Loan Party or its
Subsidiaries, the
 
Governing Documents
 
of any
 
Loan Party
 
or its
 
Subsidiaries, or
 
any order,
judgment, or decree of any
 
court or other Governmental
 
Authority binding on any Loan
 
Party or
its Subsidiaries, (ii)
 
conflict with, result
 
in a breach
 
of, or constitute
 
(with due notice
 
or lapse of
time or both) a default under
 
any material agreement of any
 
Loan Party or its Subsidiaries
 
where
any such conflict, breach or default could individually or in the aggregate reasonably be expected
to have a Material Adverse
 
Effect, (iii) result in
 
or require the creation
 
or imposition of any Lien
of any nature
 
whatsoever upon any
 
assets of any
 
Loan Party,
 
other than Permitted
 
Liens, or (iv)
require any approval of any holder of Equity Interests of
 
a Loan Party or any approval or consent
of any Person under
 
any material agreement of
 
any Loan Party,
 
other than consents or
 
approvals
that have been
 
obtained and
 
that are still
 
in force
 
and effect
 
and except,
 
in the case
 
of material
agreements, for
 
consents or
 
approvals, the
 
failure to
 
obtain could
 
not individually
 
or in
 
the
aggregate reasonably be expected to cause a Material Adverse Effect.
4.3.
 
Governmental Consents
.
 
The execution, delivery,
 
and performance by
 
each
Loan Party of the Loan Documents to which such Loan Party is
 
a party and the consummation of
the transactions contemplated by the Loan Documents do not and will not require any
 
registration
with, consent, or approval
 
of, or notice to,
 
or other action with
 
or by, any Governmental Authority,
other than registrations, consents, approvals, notices, or other actions that have been obtained and
 
 
 
 
 
 
that are still in force and effect and except for filings and recordings with respect to the Collateral
to be made, or otherwise delivered to Agent for filing or recordation, as of the Closing Date.
4.4.
 
Binding Obligations; Perfected Liens
.
(a)
 
Each Loan Document has
 
been duly executed and
 
delivered by each Loan
Party that is
 
a party thereto
 
and is
 
the legally valid
 
and binding obligation
 
of such
 
Loan Party,
enforceable against such
 
Loan Party in
 
accordance with its
 
respective terms, except
 
as enforcement
may be limited by equitable principles or by bankruptcy, insolvency,
 
reorganization, moratorium,
or similar laws relating to or limiting creditors' rights generally.
(b)
 
Agent's Liens
 
are validly
 
created, perfected
 
(other than
 
(i) in
 
respect of
motor vehicles that are subject to a certificate of title, (ii) money, (iii) letter-of-credit rights (other
than supporting obligations), (iv)
 
commercial tort claims (other
 
than those that, by the
 
terms of the
Guaranty and Security
 
Agreement, are required
 
to be
 
perfected), and (v)
 
any Deposit Accounts
and Securities Accounts
 
not subject to
 
a Control Agreement
 
as permitted by
 
Section 7(k)(iv) of
the Guaranty and Security
 
Agreement, and subject
 
only to the filing
 
of financing statements
 
and
the recordation of the Mortgages, in each
 
case, in the appropriate filing offices),
 
and first priority
Liens, subject
 
only to
 
Permitted Liens
 
which are
 
non-consensual Permitted
 
Liens, permitted
purchase money Liens, or the interests of lessors under Capital Leases.
4.5.
 
Title to Assets;
 
No Encumbrances
.
 
Each of the
 
Loan Parties and
 
its
Subsidiaries has (a) good, sufficient and
 
legal title to (in the
 
case of fee interests in
 
Real Property),
(b) valid leasehold interests in (in the case of leasehold interests in real or personal property), and
(c) good and marketable title
 
to (in the case of
 
all other personal property), all
 
of their respective
assets reflected in their most recent financial statements delivered pursuant to Section 5.1, in
 
each
case except for
 
assets disposed of
 
since the date
 
of such financial statements
 
to the extent
 
permitted
hereby.
 
All of such assets are free and clear of Liens except for Permitted Liens.
4.6.
 
Litigation
.
(a)
 
There are no actions, suits, or proceedings pending or,
 
to the knowledge of
any Borrower, after due inquiry,
 
threatened in writing against a Loan Party or
 
any of its
Subsidiaries that either individually or in the
 
aggregate could reasonably be expected to result
 
in a
Material Adverse Effect.
(b)
 
Schedule 4.6(b)
 
to this
 
Agreement sets
 
forth a complete
 
and accurate
description of each of
 
the actions, suits, or proceedings
 
with asserted liabilities in
 
excess of, or that
could reasonably be expected
 
to result in liabilities
 
in excess of, $500,000
 
that, as of the Closing
Date, is pending
 
or, to the knowledge
 
of any Borrower, after
 
due inquiry, threatened against a
 
Loan
Party or any of its Subsidiaries.
4.7.
 
Compliance with
 
Laws
.
 
No Loan Party
 
nor any of
 
its Subsidiaries (a)
 
is in
violation of any
 
applicable laws, rules,
 
regulations, executive
 
orders, or codes
 
(including
Environmental Laws) that, individually or
 
in the aggregate, could reasonably
 
be expected to result
in a Material Adverse Effect, or (b) is subject to or
 
in default with respect to any final judgments,
writs, injunctions, decrees,
 
rules or regulations
 
of any court
 
or any federal,
 
state, municipal or
 
other
governmental department,
 
commission, board,
 
bureau, agency
 
or instrumentality,
 
domestic or
 
 
 
 
foreign, that, individually or in the aggregate, could reasonably be expected to result in
 
a Material
Adverse Effect.
4.8.
 
No Material Adverse Effect
.
 
All historical financial statements relating
 
to the
Loan Parties
 
and their
 
Subsidiaries that
 
have been
 
delivered by Borrowers
 
to Agent
 
have been
prepared in accordance with GAAP (except, in the
 
case of unaudited financial statements, for the
lack of footnotes and
 
being subject to year-end audit
 
adjustments) and present fairly
 
in all material
respects, the Loan
 
Parties' and their
 
Subsidiaries' consolidated financial
 
condition as of
 
the date
thereof and results of
 
operations for the period
 
then ended.
 
Since December 31, 2019,
 
no event,
circumstance, or
 
change has
 
occurred that
 
has or
 
could reasonably
 
be expected
 
to result
 
in a
Material Adverse Effect.
4.9.
 
Solvency
.
(a)
 
The Loan Parties, taken as a whole, are Solvent.
(b)
 
No transfer of property is being made by any Loan Party and no obligation
is being
 
incurred by
 
any Loan
 
Party in
 
connection with
 
the transactions
 
contemplated by
 
this
Agreement or the other Loan Documents with
 
the intent to hinder, delay, or defraud either present
or future creditors of such Loan Party.
4.10.
 
Employee Benefits
.
 
(a)
 
Except as set
 
forth on Schedule
 
4.10, no Loan
 
Party, none
 
of their
Subsidiaries, nor
 
any of
 
their ERISA
 
Affiliates maintains
 
or contributes
 
to any
 
Benefit
Plan.
 
Except as would not reasonably be expected,
 
either individually or in the aggregate, to
 
have
a Material Adverse
 
Effect, (i)
 
each Employee Benefit
 
Plan is in
 
compliance with the
 
applicable
provisions of ERISA, the IRC and other federal or state laws and (ii) each Employee Benefit Plan
that is intended
 
to be a
 
qualified plan under
 
Section 401(a) of the
 
IRC has received
 
a favorable
determination or
 
relies upon
 
an opinion
 
letter from
 
the IRS
 
to the
 
effect that
 
the form
 
of such
Employee Benefit Plan
 
is qualified under
 
Section 401(a) of the
 
IRC and the
 
trust related thereto
has been determined by the IRS to
 
be exempt from federal income tax under
 
Section 501(a) of the
IRC, or an application for
 
either such a letter is
 
currently being processed by the
 
IRS, and, to the
knowledge of the Borrower, nothing has
 
occurred that would prevent or
 
cause the loss of such
 
tax-
qualified status.
 
There are
 
no pending
 
or, to
 
the knowledge
 
of the
 
Borrowers, threatened
 
or
contemplated claims, actions or
 
lawsuits, or action by
 
any Governmental Authority,
 
with respect
to any Employee
 
Benefit Plan that,
 
either individually or
 
in the
 
aggregate, could
 
reasonably be
expected to have a
 
Material Adverse Effect.
 
There has been no
 
non-exempt prohibited transaction
or violation of
 
the fiduciary responsibility
 
rules with respect
 
to any Employee
 
Benefit Plan that,
either individually or in the aggregate, has
 
had or could reasonably be expected to
 
have a Material
Adverse Effect.
(b)
 
No liability to the
 
PBGC (other than for
 
the payment of current
 
premiums
which are not past due) by any Loan Party or ERISA Affiliate has
 
been incurred or is expected by
any Loan Party or ERISA Affiliate to be incurred with respect to any Pension Plan.
(c)
 
No Notification Event exists or has occurred in the past six (6) years.
 
 
 
(d)
 
No Loan Party or ERISA Affiliate has provided any security under Section
436 of the IRC.
 
(e)
 
No Loan Party,
 
nor any of its Subsidiaries,
 
maintains or contributes to any
Canadian Defined
 
Benefit Plan
 
nor has
 
any liabilities
 
or obligations
 
in respect
 
of a
 
Canadian
Defined Benefit Plan that
 
has been terminated or
 
wound up other than
 
a Canadian Multi-Employer
Plan.
 
Except as set forth on Schedule 4.10, as of the Closing Date no Loan Party, nor any of their
Subsidiaries, maintains or contributes
 
to any Canadian Pension
 
Plan.
 
Each Canadian Pension Plan
is, and has
 
been maintained in
 
compliance to the
 
Income Tax
 
Act (Canada), all
 
applicable laws
and the terms
 
of each such
 
Canadian Pension Plan,
 
except where the
 
failure to do
 
so would not
reasonably be expected to result in a Material Adverse Effect.
 
4.11.
 
Environmental Condition
.
 
Except as
 
set forth
 
on Schedule
 
4.11 to
 
this
Agreement, (a)
 
to each
 
Borrower's knowledge,
 
no Loan
 
Party's nor
 
any of
 
its Subsidiaries'
properties or assets has ever been used by a Loan Party, its Subsidiaries, or by previous owners or
operators in the disposal
 
of, or to produce,
 
store, handle, treat, release, or
 
transport, any Hazardous
Materials, where such disposal, production, storage, handling,
 
treatment, release or transport was
in violation, in any material respect, of
 
any applicable Environmental Law, (b) to each Borrower's
knowledge, after due inquiry,
 
no Loan Party's nor any
 
of its Subsidiaries' properties or
 
assets has
ever been designated or identified in any manner pursuant to any
 
environmental protection statute
as a Hazardous Materials disposal site,
 
(c) no Loan Party nor any
 
of its Subsidiaries has received
notice that a
 
Lien arising under
 
any Environmental Law
 
has attached to
 
any revenues or
 
to any
Real Property owned
 
or operated by
 
a Loan Party
 
or its Subsidiaries,
 
and (d) no
 
Loan Party nor
any of
 
its Subsidiaries
 
nor any
 
of their
 
respective facilities
 
or operations
 
is subject
 
to any
outstanding written order, consent decree, or
 
settlement agreement with any Person
 
relating to any
Environmental Law
 
or Environmental
 
Liability that,
 
individually or
 
in the
 
aggregate, could
reasonably be expected to result in a Material Adverse Effect.
4.12.
 
Complete Disclosure
.
 
All factual
 
information taken
 
as a
 
whole (other
 
than
forward-looking information
 
and projections and
 
information of a
 
general economic nature
 
and
general information about
 
the industry of
 
any Loan Party
 
or its Subsidiaries)
 
furnished by or
 
on
behalf of
 
a Loan
 
Party or
 
its Subsidiaries
 
in writing
 
to Agent
 
or any
 
Lender (including
 
all
information contained in the Schedules hereto or in the other
 
Loan Documents) for purposes of or
in connection
 
with this
 
Agreement or
 
the other
 
Loan Documents,
 
and all
 
other such
 
factual
information taken as a whole (other than
 
forward-looking information and projections and
information of a general economic nature and general information about the industry of any Loan
Party or its Subsidiaries) hereafter furnished by or on behalf of a Loan Party or its Subsidiaries
 
in
writing to Agent or any
 
Lender will be, true and
 
accurate, in all material respects, on
 
the date as of
which such
 
information is
 
dated or
 
certified and
 
not incomplete
 
by omitting
 
to state
 
any fact
necessary to make such
 
information (taken as
 
a whole) not misleading
 
in any material respect
 
at
such time
 
in light
 
of the
 
circumstances under
 
which such
 
information was
 
provided.
 
The
Projections delivered to
 
Agent on September
 
8, 2020 represent, and
 
as of the
 
date on which
 
any
other Projections are
 
delivered to Agent,
 
such additional Projections
 
represent, Borrowers' good
faith estimate, on
 
the date such
 
Projections are delivered,
 
of the Loan
 
Parties' and their
 
Subsidiaries'
future performance for
 
the periods
 
covered thereby based
 
upon assumptions
 
believed by
Borrowers to be reasonable
 
at the time of
 
the delivery thereof to
 
Agent (it being understood
 
that
such Projections
 
are subject
 
to significant
 
uncertainties and
 
contingencies, many
 
of which
 
are
 
 
 
 
 
 
 
 
 
beyond the control of the Loan Parties and their Subsidiaries, and no assurances can be given that
such Projections will
 
be realized, and
 
although reflecting Borrowers'
 
good faith estimate,
projections or
 
forecasts based
 
on methods
 
and assumptions
 
which Borrowers
 
believed to
 
be
reasonable at the
 
time such Projections were
 
prepared, are not to
 
be viewed as facts,
 
and that actual
results during the
 
period or periods
 
covered by the
 
Projections may differ
 
materially from projected
or estimated results).
 
As of the
 
Closing Date, the
 
information included in
 
the Beneficial Ownership
Certification is true and correct in all respects.
4.13.
 
Patriot Act
.
 
To the extent
 
applicable, each Loan Party is in compliance, in all
material respects, with the
 
(a) Trading with
 
the Enemy Act, as
 
amended, and each of
 
the foreign
assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter
V,
 
as amended)
 
and any
 
other enabling
 
legislation or
 
executive order
 
relating thereto,
 
and (b)
Uniting and
 
Strengthening America
 
by Providing
 
Appropriate Tools
 
Required to
 
Intercept and
Obstruct Terrorism
 
(USA Patriot Act of 2001,
 
as amended) (the "Patriot Act")
 
and all applicable
Canadian Anti-Money Laundering & Anti-Terrorism Legislation.
4.14.
 
Indebtedness
.
 
Set forth
 
on Schedule
 
4.14 to
 
this Agreement
 
is a
 
true and
complete list
 
of all
 
Indebtedness of
 
each Loan
 
Party and
 
each of
 
its Subsidiaries
 
outstanding
immediately prio
 
r
 
to the
 
Closing Date
 
(other than
 
(i) unsecured
 
Permitted Indebtedness
outstanding immediately prior to the
 
Closing Date with respect to
 
any one transaction or a
 
series
of related
 
transactions in
 
an amount
 
not to
 
exceed $250,000,
 
provided, that
 
all such
 
Permitted
Indebtedness, in the aggregate, shall
 
not exceed $500,000, and (ii) the
 
Mexican Term Debt) that is
to remain outstanding immediately
 
after giving effect to the
 
closing hereunder on the
 
Closing Date
and such Schedule accurately sets forth
 
the aggregate principal amount of such Indebtedness
 
as of
the Closing Date.
4.15.
 
Payment of Taxes
.
 
Except as otherwise permitted
 
under Section 5.5, all
 
Tax
returns and reports of
 
each Loan Party and
 
its Subsidiaries required to
 
be filed by any
 
of them have
been timely filed,
 
and all Taxes
 
shown on such
 
Tax
 
returns to be
 
due and payable
 
and all other
Taxes upon a Loan Party and its Subsidiaries and upon their respective assets, income, businesses
and franchises that are due
 
and payable have been paid
 
when due and payable.
 
Each Loan Party
and each of its Subsidiaries
 
have made adequate provision in
 
accordance with GAAP for all
 
Taxes
not yet due
 
and payable.
 
No Borrower knows
 
of any proposed
 
Tax assessment
 
against a Loan
Party or any
 
of its
 
Subsidiaries that is
 
not being
 
actively contested by
 
such Loan
 
Party or
 
such
Subsidiary diligently, in
 
good faith, and by appropriate proceedings;
 
provided, that such reserves
or other appropriate provisions,
 
if any,
 
as shall be
 
required in conformity with
 
GAAP shall have
been made or provided therefor.
4.16.
 
Margin Stock
.
 
Neither any Loan
 
Party nor any
 
of its Subsidiaries
 
owns any
Margin Stock
 
or is
 
engaged principally,
 
or as
 
one of
 
its important
 
activities, in
 
the business
 
of
extending credit
 
for the
 
purpose of
 
purchasing or
 
carrying any
 
Margin Stock.
 
No part
 
of the
proceeds of the Loans made
 
to Borrowers will be
 
used to purchase or carry
 
any Margin Stock or
to extend credit to
 
others for the
 
purpose of purchasing
 
or carrying any Margin
 
Stock or for
 
any
purpose that violates the provisions
 
of Regulation T,
 
U or X of the
 
Board of Governors.
 
Neither
any Loan Party nor any of its Subsidiaries expects to acquire any Margin Stock.
 
 
 
4.17.
 
Governmental Regulation
.
 
No Loan
 
Party nor
 
any of
 
its Subsidiaries
 
is
subject to
 
regulation under
 
the Federal
 
Power Act
 
or the
 
Investment Company
 
Act of
 
1940 or
under any other federal or
 
state statute or regulation which
 
may limit its ability to
 
incur
Indebtedness or which may otherwise render
 
all or any portion of the
 
Obligations unenforceable.
 
No Loan
 
Party nor
 
any of
 
its Subsidiaries
 
is a
 
"registered investment
 
company" or
 
a company
"controlled" by a
 
"registered investment company"
 
or a "principal
 
underwriter" of
 
a "registered
investment company" as such terms are defined in the Investment Company Act of 1940.
4.18.
 
OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws
.
 
No Loan Party or any of its
 
Subsidiaries is in violation of any Sanctions.
 
No Loan Party nor any
of its Subsidiaries nor, to
 
the knowledge of such
 
Loan Party, any director, officer, employee, agent
or Affiliate
 
of such
 
Loan Party
 
or such
 
Subsidiary (a)
 
is a
 
Sanctioned Person
 
or a
 
Sanctioned
Entity, (b) has any assets located in Sanctioned Entities, or (c) derives revenues from investments
in, or transactions with
 
Sanctioned Persons or Sanctioned
 
Entities.
 
Each of the Loan Parties
 
and
its Subsidiaries
 
has implemented
 
and maintains
 
in effect
 
policies and
 
procedures reasonably
designed to
 
ensure compliance
 
with Sanctions,
 
Anti-Corruption Laws
 
and Anti-Money
Laundering Laws.
 
Each of the
 
Loan Parties and
 
its Subsidiaries, and
 
to the knowledge
 
of each
such Loan Party, each director, officer, employee, agent and Affiliate of each such
 
Loan Party and
each such Subsidiary, is in compliance with all Sanctions, Anti-Corruption Laws
 
and Anti-Money
Laundering Laws.
 
No proceeds
 
of any Loan
 
made or Letter
 
of Credit issued
 
hereunder will be
used to fund any operations in, finance any investments or activities in, or make any payments to,
a Sanctioned Person or a Sanctioned Entity,
 
or otherwise used in any manner that
 
would result in
a violation of any Sanction, Anti-Corruption Law or Anti-Money Laundering Law
 
by any Person
(including any Lender,
 
Bank Product Provider,
 
or other individual
 
or entity participating
 
in any
transaction).
4.19.
 
Employee and Labor Matters
.
 
There is (i) no unfair labor practice
 
complaint
pending or, to
 
the knowledge of any
 
Borrower, threatened against
 
any Loan Party or
 
its
Subsidiaries before
 
any Governmental
 
Authority and
 
no grievance
 
or arbitration
 
proceeding
pending or threatened against any Loan Party
 
or its Subsidiaries which arises out
 
of or under any
collective bargaining
 
agreement and
 
that could
 
reasonably be
 
expected to
 
result in
 
a material
liability, (ii)
 
no strike, labor
 
dispute, slowdown, stoppage
 
or similar action
 
or grievance pending
or threatened
 
in writing
 
against any
 
Loan Party
 
or its
 
Subsidiaries that
 
could reasonably
 
be
expected to
 
result in
 
a material
 
liability, or
 
(iii) to
 
the knowledge
 
of any
 
Borrower, after
 
due
inquiry, no union representation question existing
 
with respect to the
 
employees of any Loan
 
Party
or its
 
Subsidiaries and
 
no union
 
organizing activity
 
taking place
 
with respect
 
to any
 
of the
employees of any Loan Party
 
or its Subsidiaries.
 
None of any Loan Party
 
or its Subsidiaries has
incurred any liability or obligation under the Worker
 
Adjustment and Retraining Notification Act
or similar state or
 
other applicable law,
 
which remains unpaid
 
or unsatisfied.
 
The hours worked
and payments made
 
to employees of
 
each Loan Party
 
and its Subsidiaries
 
have not been
 
in violation
of the Fair
 
Labor Standards Act
 
or any other
 
applicable legal requirements,
 
except to the
 
extent
such violations could
 
not, individually or
 
in the aggregate,
 
reasonably be expected
 
to result in
 
a
Material Adverse Effect.
 
All material payments
 
due from any
 
Loan Party or
 
its Subsidiaries on
account of wages and employee health and
 
welfare insurance and other benefits have been paid
 
or
accrued as
 
a liability
 
on the
 
books of
 
Borrowers, except
 
where the
 
failure to
 
do so
 
could not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
 
 
 
 
 
 
 
 
 
 
 
4.20.
 
Leases
.
 
Each Loan Party and
 
its Subsidiaries enjoy peaceful
 
and undisturbed
possession under all leases material to their business and to which they are parties or under which
they are
 
operating, and,
 
subject to
 
Permitted Protests,
 
all of
 
such material
 
leases are
 
valid and
subsisting and no material default
 
by the applicable Loan
 
Party or its Subsidiaries exists
 
under any
of them.
4.21.
 
Eligible Accounts
.
 
As to each
 
Account that is
 
identified by Borrowers
 
as an
Eligible Account in a Borrowing Base Certificate submitted
 
to Agent, such Account is (a) a bona
fide existing payment obligation
 
of the applicable Account
 
Debtor created by the
 
sale and delivery
of Inventory
 
or the
 
rendition of
 
services to
 
such Account
 
Debtor in
 
the ordinary
 
course of
 
a
Borrowing Base Company's
 
business, (b) owed
 
to a Borrowing
 
Base Company without
 
any known
defenses, disputes, offsets, counterclaims, or rights of return or cancellation, and
 
(c) not excluded
as ineligible by virtue of one or
 
more of the excluding criteria (other than
 
any Agent-discretionary
criteria) set forth in the definition of Eligible Accounts.
4.22.
 
Eligible Inventory
.
 
As to each
 
item of Inventory
 
that is identified
 
by
Borrowers as
 
Eligible Finished
 
Goods Inventory,
 
Eligible In
 
-Transit Inventory,
 
Eligible Raw
Materials Inventory
,
or Eligible
 
Work
 
-In-Process Inventory
 
in a
 
Borrowing Base
 
Certificate
submitted to
 
Agent, such
 
Inventory is
 
(a) of
 
good and
 
merchantable quality,
 
free from
 
known
defects, and (b) not excluded as ineligible by virtue of
 
one or more of the excluding criteria (other
than any Agent-discretionary criteria) set
 
forth in the definition of
 
Eligible Inventory (in the case
of Eligible In
 
-Transit Inventory,
 
after giving effect
 
to any exclusions
 
therefrom specified in
 
the
definition of Eligible In-Transit Inventory).
4.23.
 
Location of Inventory
 
and M&E
.
 
Except as set
 
forth in Schedule
 
4.25, the
Inventory and
 
M&E of
 
Loan Parties
 
and their
 
Subsidiaries is
 
not stored
 
with a
 
bailee,
warehouseman, or similar
 
party and is
 
located only at,
 
or in-transit between,
 
the locations identified
on Schedule 4.25 to this Agreement (as such Schedule may be updated pursuant to Section 5.14).
4.24.
 
Inventory Records
.
 
Each Loan
 
Party keeps
 
correct and
 
accurate records
itemizing and describing
 
the type, quality,
 
and quantity of
 
its and its
 
Subsidiaries' Inventory and
the book value thereof.
4.25.
 
Hedge Agreements
.
 
On each date that
 
any Hedge Agreement
 
is executed by
any Hedge
 
Provider, Borrower
 
and each
 
other Loan
 
Party satisfy
 
all eligibility,
 
suitability and
other requirements under
 
the Commodity Exchange
 
Act (7 U.S.C.
 
§ 1, et
 
seq., as in
 
effect from
time to time) and the Commodity Futures Trading Commission regulations.
5.
 
AFFIRMATIVE COVENANTS.
Each Borrower covenants
 
and agrees
 
that, until
 
the termination
 
of all
 
of the
Commitments and payment in full of the Obligations:
5.1.
 
Financial Statements,
 
Reports, Certificates
.
 
Borrowers (a)
 
will deliver
 
to
Agent, with copies
 
to each Lender,
 
each of the
 
financial statements, reports,
 
and other items
 
set
forth on Schedule 5.1 to this Agreement no later than the
 
times specified therein, (b) agree that no
Subsidiary of a Loan Party will have a fiscal year different from that of Administrative Borrower,
(c) agree to maintain a
 
system of accounting that enables
 
Borrowers to produce financial
 
 
 
 
 
 
 
 
statements in accordance with GAAP, and (d) agree that they will, and will cause each other
 
Loan
Party to, (i) keep
 
a reporting system that
 
shows all additions, sales,
 
claims, returns, and allowances
with respect
 
to their
 
and their
 
Subsidiaries' sales,
 
and (ii)
 
maintain their
 
billing systems
 
and
practices substantially as
 
in effect
 
as of the
 
Closing Date and
 
shall only make
 
material
modifications thereto with notice to, and with the consent of, Agent.
5.2.
 
Reporting
.
 
Borrowers (a) will deliver to Agent (and if so requested by Agent,
with copies for each Lender) each of
 
the reports set forth on Schedule 5.2 to this
 
Agreement at the
times specified therein, and
 
(b) agree to use commercially
 
reasonable efforts in
 
cooperation with
Agent to facilitate
 
and implement a
 
system of electronic
 
collateral reporting in
 
order to provide
electronic reporting of each of the items set forth on such Schedule.
 
Borrowers and Agent hereby
agree that the delivery of
 
the Borrowing Base Certificate through
 
the Agent's electronic platform
or portal,
 
subject to
 
Agent's authentication process,
 
by such other
 
electronic method
 
as may be
approved by Agent
 
from time to
 
time in its
 
sole discretion, or
 
by such other
 
electronic input of
information necessary to calculate the Borrowing
 
Bases as may be approved
 
by Agent from time
to time in its sole discretion,
 
shall in each case be deemed
 
to satisfy the obligation of Borrowers
 
to
deliver such
 
Borrowing Base
 
Certificate, with
 
the same
 
legal effect
 
as if
 
such Borrowing
 
Base
Certificate had been manually executed by Borrowers and delivered to Agent.
5.3.
 
Existence
.
 
Except as
 
otherwise permitted
 
under Section
 
6.3 or
 
Section 6.4,
each Loan Party will,
 
and will cause each
 
of its Subsidiaries to,
 
at all times preserve
 
and keep in
full force and effect such Person's valid existence and good standing in its jurisdiction of
organization and, except
 
as could not
 
reasonably be expected
 
to result in
 
a Material Adverse
 
Effect,
good standing with respect to all other jurisdictions in which it is qualified to do business and any
rights, franchises, permits,
 
licenses, accreditations, authorizations,
 
or other approvals material
 
to
their businesses.
5.4.
 
Maintenance of Properties
.
 
Each Loan Party will,
 
and will cause each of
 
its
Subsidiaries to, maintain
 
and preserve all
 
of its assets
 
that are necessary
 
or useful in
 
the proper
conduct of its
 
business in
 
good working
 
order and
 
condition, ordinary wear,
 
tear, casualty,
 
and
condemnation and Permitted
 
Dispositions excepted (and
 
except where the
 
failure to so
 
maintain
and preserve assets could not reasonably be expected to result in a Material Adverse Effect).
5.5.
 
Taxes
.
 
Each Loan Party will, and will cause each of its Subsidiaries to, pay in
full before delinquency or before
 
the expiration of any extension
 
period all Taxes imposed, levied,
or assessed
 
against it,
 
or any
 
of its
 
assets or
 
in respect
 
of any
 
of its
 
income, businesses,
 
or
franchises, other than Taxes
 
not in excess
 
of $200,000 outstanding at
 
any time and
 
other than to
the extent that the validity of such Tax is the subject of a Permitted Protest.
5.6.
 
Insurance
.
(a)
 
Each Loan Party
 
will, and will
 
cause each of
 
its Subsidiaries to,
 
at
Borrowers' expense, maintain insurance respecting each of each Loan Party's and its Subsidiaries'
assets wherever
 
located, covering
 
liabilities, losses
 
or damages
 
as are
 
customarily are
 
insured
against by other Persons engaged in same or
 
similar businesses and similarly situated and located.
 
All such policies of insurance
 
shall be with financially sound
 
and reputable insurance companies
acceptable to
 
Agent (it
 
being agreed
 
that, as
 
of the
 
Closing Date,
 
the Loan
 
Parties' existing
 
insurance providers as set forth in the
 
certificates of insurance delivered to Agent on
 
or about the
Closing Date
 
shall be
 
deemed to
 
be acceptable
 
to Agent)
 
and in
 
such amounts
 
as is
 
carried
generally in accordance with sound
 
business practice by companies
 
in similar businesses similarly
situated and located and, in any event,
 
in amount, adequacy,
 
and scope reasonably satisfactory to
Agent (it
 
being agreed
 
that the
 
amount, adequacy,
 
and scope
 
of the
 
policies of
 
insurance of
Borrowers in effect as of
 
the Closing Date are
 
acceptable to Agent).
 
All the Loan Parties'
 
property
insurance policies are
 
to be made
 
payable to Agent
 
for the benefit
 
of Agent and
 
the Lenders, as
their interests may
 
appear, in case of loss,
 
pursuant to a standard
 
lender's loss payable endorsement
with a standard non-contributory "lender" or
 
"secured party" clause and are to
 
contain such other
provisions as Agent may reasonably require to
 
fully protect the Lenders' interest in the
 
Collateral
and to
 
any payments
 
to be
 
made under
 
such policies.
 
All certificates
 
of property
 
and general
liability insurance
 
are to
 
be delivered
 
to Agent,
 
with the
 
lender's loss
 
payable and
 
additional
insured endorsements in favor of Agent and shall provide for not less than thirty days (ten days in
the case of non-payment) prior written notice
 
to Agent of the exercise of
 
any right of cancellation.
 
Unless Borrowers provide Agent with evidence of the continuing insurance
 
coverage required by
this Agreement,
 
Agent may
 
purchase insurance
 
at Borrowers'
 
expense to
 
protect Agent's
 
and
Lenders' interests in the Collateral. This insurance may, but need not, protect each Borrower's and
each other Loan Party's interests.
 
The coverage that Agent
 
purchases may,
 
but need not, pay any
claim that is made
 
against any Borrower or
 
any other Loan Party
 
in connection with the
 
Collateral.
Borrowers may
 
later cancel
 
any insurance
 
purchased by
 
Agent, but
 
only after
 
providing Agent
with evidence that Borrowers
 
have obtained the insurance
 
coverage required by this
 
Agreement.
If Agent purchases insurance for the Collateral,
 
as set forth above, Borrowers will be
 
responsible
for the costs of that insurance, including interest and any other
 
charges that may be imposed with
the placement
 
of the
 
insurance, until
 
the effective
 
date of
 
the cancellation
 
or expiration
 
of the
insurance and the costs of the insurance
 
may be added to the principal amount of
 
the Loans owing
hereunder.
(b)
 
Borrowers shall give Agent prompt
 
notice of any loss exceeding
 
$350,000
covered by the
 
casualty or business
 
interruption insurance of
 
any Loan Party
 
or its Subsidiaries.
 
Upon the occurrence and during the continuance of an
 
Event of Default, Agent shall have the sole
right to
 
file claims
 
under any property
 
and general
 
liability insurance
 
policies in
 
respect of
 
the
Collateral, to receive, receipt and give
 
acquittance for any payments that
 
may be payable
thereunder, and to execute any
 
and all endorsements, receipts, releases, assignments,
reassignments or other
 
documents that may
 
be necessary to
 
effect the collection,
 
compromise or
settlement of any claims under any such insurance policies.
(c)
 
If at
 
any time
 
the area
 
in which
 
any Real
 
Property that
 
is subject
 
to a
Mortgage is located
 
is designated a
 
"flood hazard area"
 
in any Flood
 
Insurance Rate Map
 
published
by the Federal Emergency
 
Management Agency (or any
 
successor agency), obtain flood
 
insurance
in such total amount and on terms
 
that are satisfactory to Agent and all
 
Lenders from time to time,
and otherwise comply
 
with the Flood
 
Laws or as
 
is otherwise satisfactory
 
to Agent and
 
all Lenders.
5.7.
 
Inspection
.
(a)
 
Each Loan Party will,
 
and will cause each
 
of its Subsidiaries (other
 
than any
Mexican Subsidiary) to,
 
permit Agent, any
 
Lender, and
 
each of their
 
respective duly authorized
representatives or agents
 
to visit any
 
of its properties
 
and inspect any
 
of its assets
 
or books and
 
 
 
 
 
records, to examine and make copies of
 
its books and records, and to discuss
 
its affairs, finances,
and accounts with, and to be advised as to the same by,
 
its officers and employees (provided, that
an authorized representative of
 
a Borrower shall be
 
allowed to be present)
 
at such reasonable times
and intervals as Agent
 
or any Lender,
 
as applicable, may designate and,
 
so long as no
 
Default or
Event of Default
 
has occurred and
 
is continuing, with
 
reasonable prior notice
 
to Borrowers and
during regular business hours, at Borrowers' expense in accordance with the provisions of the Fee
Letter, subject to the limitations set forth below in Section 5.7(c).
(b)
 
Each Loan Party
 
will, and will cause
 
each of its Subsidiaries
 
(other than any
Mexican Subsidiary) to, permit Agent and each of its duly authorized representatives or agents to
conduct field
 
examinations, appraisals
 
or valuations
 
at such
 
reasonable times
 
and intervals
 
as
Agent may designate, at Borrowers'
 
expense in accordance with
 
the provisions of the
 
Fee Letter,
subject to the limitations set forth below in Section 5.7(c).
(c)
 
So long as
 
no Event of
 
Default shall have
 
occurred and be
 
continuing during
a calendar
 
year, Borrowers
 
shall not
 
be obligated
 
to reimburse
 
Agent for
 
more than
 
2 field
examinations during calendar
 
year 2021 or
 
1 field
 
examination in
 
such calendar year
 
thereafter
(increasing to
 
2 field
 
examinations if
 
an Increased
 
Reporting Event
 
has occurred
 
during such
calendar year), 1 inventory appraisal in such calendar year (increasing to 2 inventory appraisals if
an Increased Reporting
 
Event has occurred
 
during such calendar
 
year), 1 equipment appraisal
 
in
such calendar
 
year (increasing
 
to 2
 
equipment appraisals
 
if an
 
Increased Reporting
 
Event has
occurred during such calendar
 
year), and equipment appraisals requested
 
by Borrowers in
connection with
 
a request
 
for the
 
Additional M/E
 
Term Loan,
 
in each
 
case, except
 
for field
examinations and
 
appraisals conducted
 
in connection
 
with a
 
proposed Permitted
 
Acquisition
(whether or not consummated).
5.8.
 
Compliance with
 
Laws
.
 
Each Loan
 
Party will,
 
and will
 
cause each
 
of its
Subsidiaries to, comply with the requirements
 
of all applicable laws, rules, regulations,
 
and orders
of any Governmental
 
Authority, other than laws, rules,
 
regulations, and orders
 
the non-compliance
with which,
 
individually or
 
in the
 
aggregate, could
 
not reasonably
 
be expected
 
to result
 
in a
Material Adverse Effect.
5.9.
 
Environmental
.
 
Each Loan Party will, and will cause each of its Subsidiaries
to,
(a)
 
Keep any
 
property either
 
owned or
 
operated by
 
any Loan
 
Party or
 
its
Subsidiaries free of any
 
Environmental Liens or post
 
bonds or other financial
 
assurances sufficient
to satisfy the obligations or liability evidenced by such Environmental Liens,
(b)
 
Comply, in
 
all material respects, with
 
Environmental Laws and provide
 
to
Agent documentation of such compliance which Agent reasonably requests,
(c)
 
Promptly notify Agent
 
of any release
 
of which any
 
Loan Party has
knowledge of a
 
Hazardous Material
 
in any reportable
 
quantity from
 
or onto
 
property owned or
operated by any
 
Loan Party or
 
its Subsidiaries and
 
take any Remedial
 
Actions required to
 
xxxxx
said release
 
or otherwise
 
to come
 
into compliance,
 
in all
 
material respects,
 
with applicable
Environmental Law, and
 
 
 
(d)
 
Promptly, but in any event
 
within five Business Days of its receipt thereof,
provide Agent with written notice of
 
any of the following:
 
(i) notice that an Environmental
 
Lien
has been filed against any of
 
the real or personal property
 
of a Loan Party or
 
its Subsidiaries, (ii)
commencement of any Environmental Action or written notice that an Environmental Action will
be filed against a Loan Party or its
 
Subsidiaries, and (iii) written notice of a
 
violation, citation, or
other administrative order from a Governmental Authority.
5.10.
 
Disclosure Updates
.
 
Each Loan Party will,
 
promptly and in no
 
event later than
five Business Days
 
after obtaining knowledge
 
thereof, notify
 
Agent if
 
any written
 
information,
exhibit, or report
 
furnished to Agent
 
or the Lenders
 
contained, at the
 
time it was
 
furnished, any
untrue statement
 
of a
 
material fact
 
or omitted
 
to state
 
any material
 
fact necessary
 
to make
 
the
statements contained
 
therein not
 
misleading in
 
light of
 
the circumstances
 
in which
 
made.
 
The
foregoing to the
 
contrary notwithstanding, any
 
notification pursuant to
 
the foregoing provision
 
will
not cure or
 
remedy the effect
 
of the prior
 
untrue statement of
 
a material fact
 
or omission of
 
any
material fact
 
nor shall
 
any such
 
notification have
 
the effect
 
of amending
 
or modifying
 
this
Agreement or any of the Schedules hereto.
5.11.
 
Formation of Subsidiaries
.
 
Each Loan Party
 
will, at the
 
time that any
 
Loan
Party forms any direct
 
or indirect Subsidiary,
 
acquires any direct
 
or indirect Subsidiary
 
after the
Closing Date within
 
ten days of
 
such event (or
 
such later date
 
as permitted by
 
Agent in its
 
sole
discretion) (a)
 
cause such
 
new Subsidiary
 
(i) if
 
such Subsidiary
 
is a
 
Domestic Subsidiary
 
and
Administrative Borrower requests, subject to the
 
consent of Agent, that such Domestic
 
Subsidiary
be joined as a
 
Borrower hereunder, to provide to Agent
 
a Joinder to this Agreement,
 
(ii) to provide
to Agent a joinder
 
to the Guaranty and
 
Security Agreement, as applicable,
 
in each case, together
with such other
 
security agreements (including
 
Mortgages with respect
 
to any Real
 
Property owned
in fee
 
of such
 
new Subsidiary
 
with a
 
fair market
 
value of
 
greater than
 
$1,000,000), as
 
well as
appropriate financing statements
 
(and with respect
 
to all property
 
subject to a
 
Mortgage, fixture
filings), all in form
 
and substance reasonably satisfactory
 
to Agent (including being
 
sufficient to
grant Agent a
 
first priority Lien
 
(subject to Permitted
 
Liens) in and
 
to the assets
 
of such newly
formed or acquired
 
Subsidiary) and
 
(iii) if
 
such Subsidiary is
 
a Subsidiary organized
 
under the
laws of Canada,
 
or any province
 
thereof, to provide
 
to Agent a
 
joinder to the
 
Canadian Security
Agreement or Quebec Security
 
Documents, as applicable,
 
in each case,
 
together with such
 
other
Canadian Security Documents (including
 
Mortgages with respect to
 
any Real Property owned
 
in
fee of
 
such new
 
Subsidiary with
 
a fair
 
market value
 
of greater
 
than $1,000,000),
 
as well
 
as
appropriate financing statements
 
(and with respect
 
to all property
 
subject to a
 
Mortgage, fixture
filings), all in form
 
and substance reasonably satisfactory
 
to Agent (including being
 
sufficient to
grant Agent a
 
first priority Lien
 
(subject to Permitted
 
Liens) in and
 
to the assets
 
of such newly
formed or
 
acquired Subsidiary);
 
(b) provide,
 
or cause
 
the applicable
 
Loan Party
 
to provide,
 
to
Agent a pledge agreement (or an addendum to the Guaranty and Security Agreement or Canadian
Security Documents) and appropriate certificates
 
and powers or financing statements,
 
pledging all
of the
 
direct or
 
beneficial ownership
 
interest in
 
such new
 
Subsidiary in
 
form and
 
substance
reasonably satisfactory to
 
Agent; provided, that
 
only 65% of
 
the total outstanding
 
voting Equity
Interests of any first tier Subsidiary (other than any Canadian Subsidiary) of a
 
Loan Party that is a
CFC (and
 
none of
 
the Equity
 
Interests of
 
any Subsidiary
 
of such
 
CFC) shall
 
be required
 
to be
pledged if pledging a greater amount would result in
 
adverse tax consequences or the costs to the
Loan Parties
 
of providing
 
such pledge
 
are unreasonably
 
excessive (as
 
determined by
 
Agent in
consultation with Borrowers) in
 
relation to the
 
benefits to Agent and
 
the Lenders of
 
the security
 
 
 
 
 
 
afforded thereby (which pledge,
 
if reasonably requested by Agent,
 
shall be governed by the
 
laws
of the jurisdiction of
 
such Subsidiary), and (c)
 
provide to Agent all
 
other documentation, including
the Governing
 
Documents of
 
such Subsidiary
 
and one
 
or more
 
opinions of
 
counsel reasonably
satisfactory to
 
Agent, which,
 
in its
 
opinion, is
 
appropriate with
 
respect to
 
the execution
 
and
delivery of the
 
applicable documentation referred
 
to above (including
 
policies of title
 
insurance,
flood certification documentation or other documentation with respect to all Real Property owned
in fee and
 
subject to a
 
mortgage).
 
Any document, agreement,
 
or instrument executed
 
or issued
pursuant to this Section 5.11 shall constitute a Loan Document.
5.12.
 
Further Assurances
.
 
Each Loan Party
 
will, and will
 
cause each of
 
the other
Loan Parties to, at any time upon the
 
reasonable request of Agent, execute or deliver
 
to Agent any
and all financing
 
statements, fixture filings, security
 
agreements, pledges, assignments,
 
mortgages,
deeds of trust,
 
opinions of
 
counsel, and all
 
other documents
 
(the "Additional
 
Documents") that
Agent may reasonably request
 
in form and substance
 
reasonably satisfactory to Agent,
 
to create,
perfect, and continue perfected or to better perfect Agent's Liens in all of the assets of each of the
Loan Parties (whether now
 
owned or hereafter arising
 
or acquired, tangible or
 
intangible, real or
personal) (other than any
 
assets expressly excluded from
 
the Collateral (as defined
 
in the Guaranty
and Security Agreement or Canadian Security Documents, as applicable) pursuant to Section 3 of
the Guaranty and Security Agreement),
 
to create and perfect
 
Liens in favor of Agent
 
in any Real
Property acquired by any
 
other Loan Party with a
 
fair market value in
 
excess of $1,000,000, and
in order to fully
 
consummate all of the transactions
 
contemplated hereby and under the
 
other Loan
Documents; provided, that the foregoing shall not
 
apply to any Subsidiary of a Loan Party
 
that is
a CFC (other than any Canadian Subsidiary)
 
if providing such documents would result in
 
adverse
tax consequences or the
 
costs to the Loan
 
Parties of providing such
 
documents are unreasonably
excessive (as determined
 
by Agent in
 
consultation with Borrowers)
 
in relation to
 
the benefits to
Agent and the
 
Lenders of
 
the security
 
afforded thereby.
 
To the
 
maximum extent
 
permitted by
applicable law, if
 
any Borrower or any other Loan
 
Party refuses or fails to execute or
 
deliver any
reasonably requested Additional
 
Documents within a
 
reasonable period of
 
time not to
 
exceed 5
Business Days following
 
the request to
 
do so, each
 
Borrower and each
 
other Loan Party
 
hereby
authorizes Agent to execute any such
 
Additional Documents in the applicable Loan
 
Party's name
and authorizes Agent to file such executed Additional Documents in any appropriate
 
filing office.
 
In furtherance of, and not
 
in limitation of, the
 
foregoing, each Loan Party shall
 
take such actions
as Agent may reasonably request
 
from time to time
 
to ensure that the Obligations
 
are guaranteed
by the Guarantors and are secured
 
by substantially all of the assets
 
of the Loan Parties, including
all of the outstanding capital Equity Interests of each Borrower and its
 
Subsidiaries (in each case,
other than
 
with respect
 
to any
 
assets expressly
 
excluded from
 
the Collateral
 
(as defined
 
in the
Guaranty and
 
Security Agreement
 
or Canadian
 
Security Documents,
 
as applicable)
 
pursuant to
Section 3
 
of the
 
Guaranty and
 
Security Agreement).
 
Notwithstanding anything
 
to the
 
contrary
contained herein
 
(including Se
 
ction 5.11
 
hereof and
 
this Section
 
5.12) or
 
in any
 
other Loan
Document, (x) Agent shall not accept delivery of any Mortgage
 
from any Loan Party unless each
of the Lenders has
 
received 45 days prior
 
written notice thereof and
 
Agent has received
confirmation from each Lender that such Lender has
 
completed its flood insurance diligence, has
received copies
 
of all
 
flood insurance
 
documentation and
 
has confirmed
 
that flood
 
insurance
compliance has been completed
 
as required by the Flood
 
Laws or as otherwise
 
satisfactory to such
Lender and (y) Agent shall not accept delivery of any joinder to any Loan Document with respect
to any Subsidiary of any Loan Party that is not a Loan Party,
 
if such Subsidiary that qualifies as a
"legal entity
 
customer" under
 
the Beneficial
 
Ownership Regulation
 
unless such
 
Subsidiary has
 
 
 
 
 
 
 
 
delivered a
 
Beneficial Ownership
 
Certification in
 
relation to
 
such Subsidiary
 
and Agent
 
has
completed its
 
Patriot Act
 
searches, OFAC/PEP
 
searches and
 
customary individual
 
background
checks for such Subsidiary, the results of which shall be satisfactory to Agent.
 
Without limitation
of the
 
foregoing, upon
 
Agent's request
 
at any
 
time that
 
Availability is
 
less than
 
10% of
 
the
Maximum Revolver Amount, the
 
Loan Parties shall cause
 
all loans owed by
 
Mexican Subsidiaries
to the Loan Parties to be evidences by a note and shall execute or deliver to Agent any Additional
Documents as
 
Agent may
 
reasonably request
 
in form
 
and substance
 
reasonably satisfactory
 
to
Agent, to create,
 
perfect, and continue
 
perfected or to
 
better perfect Agent's
 
Liens in such
 
loans
and notes.
5.13.
 
Location of Inventory and
 
M&E; Chief Executive Office;
 
Registered
Office
.
 
Each Loan Party will, and
 
will cause each of its
 
Subsidiaries to, keep (a) their
 
Inventory
and M&E
 
only at
 
the locations
 
identified on
 
Schedule 4.25
 
to this
 
Agreement (provided
 
that
Borrowers may amend
 
Schedule 4.25
 
to this
 
Agreement so long
 
as such
 
amendment occurs by
written notice to Agent not
 
less than ten days
 
prior to the date
 
on which such Inventory
 
or M&E
is moved to such
 
new location and so
 
long as Agent has
 
consented to such amendment
 
and such
new location
 
is within
 
the continental
 
United States
 
or Canada),
 
and (b)
 
their respective
 
chief
executive offices (and registered office in the case of Canadian Loan Parties) only at the locations
identified on
 
Schedule 7
 
to the
 
Guaranty and
 
Security Agreement
 
or Canadian
 
Security
Documents, as applicable.
 
Each Loan Party
 
will, and will
 
cause each of
 
its Subsidiaries to,
 
use
their commercially
 
reasonable efforts
 
to obtain
 
Collateral Access
 
Agreements for
 
each of
 
the
locations identified on Schedule 7 to
 
the Guaranty and Security Agreement
 
and Schedule 4.25 to
this Agreement.
5.14.
 
OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws
.
 
Each Loan
 
Party will,
 
and will
 
cause each
 
of its
 
Subsidiaries to,
 
comply with
 
all applicable
Sanctions, Anti-Corruption Laws
 
and Anti-Money Laundering
 
Laws.
 
Each of the
 
Loan Parties
and its
 
Subsidiaries shall
 
implement and
 
maintain in
 
effect policies
 
and procedures
 
reasonably
designed to
 
ensure compliance
 
by the
 
Loan Parties
 
and their
 
Subsidiaries and
 
their respective
directors, officers,
 
employees, agents
 
and Affiliates
 
with Sanctions,
 
Anti-Corruption Laws
 
and
Anti-Money Laundering Laws.
5.15.
 
Compliance with ERISA
 
and the IRC
.
 
In addition to
 
and without limiting
the generality of Section 5.8,, each Loan
 
Party shall, and shall cause each of
 
its ERISA Affiliates
to (a)
 
comply with
 
applicable provisions
 
of ERISA
 
and the
 
IRC with
 
respect to
 
all Employee
Benefit Plans except
 
as could not reasonably
 
be expected to
 
result, individually or
 
in the aggregate,
in a
 
Material Adverse
 
Effect, (b)
 
without the
 
prior written
 
consent of
 
Agent and
 
the Required
Lenders, not take any action
 
or fail to take action
 
the result of which could
 
reasonably be expected
to result in
 
a Loan Party
 
or ERISA Affiliate incurring
 
a liability to
 
the PBGC or
 
to a Multiemployer
Plan (other than to
 
pay contributions, benefits or
 
premiums payable in the
 
ordinary course), except
as could
 
not reasonably
 
be expected
 
to result,
 
individually or
 
in the
 
aggregate, in
 
a Material
Adverse Effect, (c) allow
 
any facts or
 
circumstances to exist with
 
respect to one
 
or more Employee
Benefit Plans that, in the aggregate,
 
reasonably could be expected to result
 
in a Material Adverse
Effect, (d)
 
not participate
 
in any
 
non-exempt prohibited
 
transaction that
 
could reasonably
 
be
expected to
 
result in
 
civil penalty
 
excise tax,
 
fiduciary liability
 
or correction
 
obligation under
ERISA or the
 
IRC, except
 
as could
 
not reasonably
 
be expected
 
to result,
 
individually or
 
in the
aggregate, in a Material Adverse Effect, (e) operate
 
each Employee Benefit Plan in such a
 
manner
 
 
 
 
that will not incur any tax liability under the IRC (including Section 4980B
 
of the IRC) that could
reasonably be expected
 
to result, individually
 
or in the
 
aggregate, in a
 
Material Adverse Effect,
and (e)
 
furnish to
 
Agent upon
 
Agent's written
 
request such
 
additional information
 
about any
Employee Benefit Plan for
 
which any Loan Party
 
or ERISA Affiliate could
 
reasonably expect to
incur any material liability.
 
With respect to each Pension Plan (other than a Multiemployer
 
Plan)
except as could not
 
reasonably be expected to
 
result, individually or in the
 
aggregate, in a Material
Adverse Effect or the imposition of any Lien on the assets of any Loan Party under ERISA or the
IRC, the Loan
 
Parties and
 
the ERISA Affiliates
 
shall (i)
 
satisfy in
 
full and
 
in a timely
 
manner,
without incurring any late payment or underpayment charge
 
or penalty and without giving rise to
any Lien, all of the contribution and funding requirements of the IRC and of ERISA, and (ii) pay,
or cause
 
to be
 
paid, to
 
the PBGC
 
in a
 
timely manner,
 
without incurring
 
any late
 
payment or
underpayment charge or penalty, all premiums required pursuant to ERISA.
5.16.
 
Canadian Compliance
.
 
In addition to
 
and without limiting
 
the generality of
Section 5.8,
 
each Borrower
 
will, and
 
will cause
 
each of
 
its Subsidiaries
 
to, (a)
 
comply with
applicable provisions and
 
funding requirements of
 
the Income Tax
 
Act (Canada) and
 
applicable
federal or provincial pension
 
benefits legislation with respect
 
to all Canadian Pension
 
Plans except
where the failure to do so would not reasonably
 
be expected to result in a Material Adverse Effect
and (b)
 
furnish to
 
Agent upon
 
Agent's written
 
request such
 
additional information
 
about any
Canadian Pension Plan
 
for which Borrowers
 
or their Subsidiaries would
 
reasonably expect to
 
incur
any material liability.
 
All employer or
 
employee payments, contributions
 
or premiums required
to be remitted, paid
 
to or in respect of
 
Canadian statutory benefit plans that
 
any Borrower or any
of its Subsidiaries is required to participate in or comply with, including the Canada Pension Plan
or Quebec
 
Pension Plan
 
as maintained
 
by the
 
Government of
 
Canada or
 
Province of
 
Quebec,
respectively, and plans administered pursuant to
 
applicable workplace safety insurance and
employment insurance legislation will be
 
paid or remitted by
 
each such Person in accordance
 
with
the terms thereof, any agreements relating thereto and all applicable laws except to the extent that
any amount so payable is subject
 
to a Permitted Protest and
 
a Canadian Priority Payable Reserve
for such amount has been established.
 
6.
 
NEGATIVE COVENANTS.
Each Borrower covenants
 
and agrees
 
that, until
 
the termination
 
of all
 
of the
Commitments and the payment in full of the Obligations:
6.1.
 
Indebtedness
.
 
Each Loan
 
Party will
 
not, and
 
will not
 
permit any
 
of its
Subsidiaries to, create,
 
incur, assume,
 
suffer to exist,
 
guarantee, or otherwise become
 
or remain,
directly or indirectly, liable with respect to any Indebtedness, except for Permitted Indebtedness.
6.2.
 
Liens
.
 
Each Loan Party will not, and will not permit any of its
 
Subsidiaries to,
create, incur, assume,
 
or suffer to
 
exist, directly or indirectly,
 
any Lien on or
 
with respect to any
of its
 
assets, of
 
any kind,
 
whether now
 
owned or
 
hereafter acquired,
 
or any
 
income or
 
profits
therefrom, except for Permitted Liens.
 
 
 
 
 
 
 
 
 
 
 
 
6.3.
 
Restrictions on Fundamental
 
Changes
.
 
Each Loan Party
 
will not, and
 
will
not permit any of its Subsidiaries to,
(a)
 
Other than in order to
 
consummate a Permitted Acquisition, enter
 
into any
merger, amalgamation,
 
consolidation, reorganization,
 
or recapitalization, or
 
reclassify its Equity
Interests, except
 
for (i)
 
any merger
 
or amalgamation
 
between Loan
 
Parties; provided,
 
that a
Borrower must be the surviving or continuing entity of any such merger to which it is a party,
 
(ii)
any merger or amalgamation between
 
a Loan Party and a
 
Subsidiary of such Loan
 
Party that is not
a Loan Party so long
 
as such Loan Party is
 
the surviving or continuing entity of
 
any such merger
or amalgamation, and
 
(iii) any merger
 
or amalgamation between
 
Subsidiaries of any
 
Loan Party
that are not Loan Parties,
(b)
 
liquidate, wind
 
up, or
 
dissolve itself
 
(or suffer
 
any liquidation
 
or
dissolution), except for (i)
 
the liquidation or dissolution of
 
non-operating Subsidiaries of any
 
Loan
Party with nominal assets and
 
nominal liabilities, (ii) the liquidation
 
or dissolution of a Loan
 
Party
(other than
 
any Borrower)
 
or any
 
of its
 
wholly-owned Subsidiaries
 
so long
 
as all
 
of the
 
assets
(including any
 
interest in
 
any Equity
 
Interests) of
 
such liquidating
 
or dissolving
 
Loan Party
 
or
Subsidiary are
 
transferred to
 
a Loan
 
Party that
 
is not
 
liquidating or
 
dissolving, or
 
(iii) the
liquidation or dissolution
 
of a Subsidiary
 
of any Loan
 
Party that is
 
not a Loan
 
Party (other than
any such Subsidiary the
 
Equity Interests of which
 
(or any portion thereof)
 
is subject to a
 
Lien in
favor of
 
Agent) so
 
long as
 
all of
 
the assets
 
of such
 
liquidating or
 
dissolving Subsidiary
 
are
transferred to a Subsidiary of a Loan Party that is not liquidating or dissolving,
(c)
 
suspend or
 
cease operating
 
a substantial
 
portion of
 
its or
 
their business,
except as
 
permitted pursuant
 
to clauses
 
(a) or
 
(b) above
 
or in
 
connection with
 
a transaction
permitted under Section 6.4, or
(d)
 
change its classification/status for U.S. federal income tax purposes.
6.4.
 
Disposal of
 
Assets
.
 
Other than
 
Permitted Dispositions
 
or transactions
expressly permitted by Sections 6.3 or 6.9,
 
each Loan Party will not, and will not
 
permit any of its
Subsidiaries to, convey,
 
sell, lease, license, assign,
 
transfer, or otherwise
 
dispose of any of
 
its or
their assets (including by an allocation of assets among newly divided limited liability companies
pursuant to a "plan of division").
6.5.
 
Nature of Business
.
 
Each Loan Party
 
will not, and
 
will not permit
 
any of its
Subsidiaries to, make any change in
 
the nature of its or their
 
business as described in Schedule 6.5
to this Agreement or acquire any
 
properties or assets that are not reasonably
 
related to the conduct
of such business
 
activities; provided, that
 
the foregoing shall
 
not prevent any
 
Loan Party and
 
its
Subsidiaries from engaging
 
in any business
 
that is
 
reasonably related or
 
ancillary to its
 
or their
business.
6.6.
 
Prepayments and
 
Amendments
.
 
Each Loan
 
Party will
 
not, and
 
will not
permit any of its Subsidiaries (other than any Mexican Subsidiary) to,
(a)
 
Except in connection with
 
Refinancing Indebtedness permitted by
 
Section
6.1,
 
 
 
 
 
(i)
 
optionally prepay,
 
redeem, defease, purchase,
 
or otherwise acquire
any Indebtedness of any Loan Party or its Subsidiaries, other than
 
(A) the Obligations in
accordance with this Agreement, (B)
 
Hedge Obligations, (C) Permitted
 
Intercompany Advances,
or (D) other Indebtedness so long as the Payment Conditions are satisfied, or
(ii)
 
make any payment
 
on account of
 
Indebtedness that has
 
been
contractually subordinated in right of payment to the
 
Obligations if such payment is not permitted
at such time under the subordination terms and conditions, or
(b)
 
Directly or indirectly, amend, modify,
 
or change any of the terms or
provisions of:
(i)
 
any agreement,
 
instrument, document,
 
indenture, or
 
other writing
evidencing or
 
concerning Permitted
 
Indebtedness other
 
than (A)
 
the Obligations
 
in accordance
with this
 
Agreement, (B)
 
Hedge Obligations,
 
(C) Permitted
 
Intercompany Advances,
 
and (D)
Indebtedness permitted
 
under clauses
 
(c), (h),
 
(j) and
 
(k) of
 
the definition
 
of Permitted
Indebtedness, in
 
each case,
 
if the
 
effect thereof,
 
either individually
 
or in
 
the aggregate,
 
could
reasonably be expected to be adverse to the interests of the Lenders or the Loan Parties, or
(ii)
 
the Governing
 
Documents of
 
any Loan
 
Party or
 
any of
 
its
Subsidiaries if
 
the effect
 
thereof, either
 
individually or
 
in the
 
aggregate, could
 
reasonably be
expected to be materially adverse to the interests of the Lenders.
6.7.
 
Restricted Payments
.
 
Each Loan Party will not, and will not permit any
 
of its
Subsidiaries to, make any Restricted Payment; provided, that so long as it is permitted by law,
(a)
 
so long
 
as no
 
Default or
 
Event of
 
Default shall
 
have occurred
 
and be
continuing or would result therefrom, Administrative Borrower may make distributions to former
employees, officers,
 
or directors
 
of Administrative
 
Borrower (or
 
any spouses,
 
ex-spouses, or
estates of any
 
of the foregoing)
 
on account of
 
redemptions of Equity
 
Interests of Administrative
Borrower held by
 
such Persons; provided,
 
that the aggregate
 
amount of such
 
redemptions made
by Administrative Borrower during
 
the term of
 
this Agreement
plus
 
the amount of
 
Indebtedness
outstanding under clause (l)
 
of the definition of
 
Permitted Indebtedness, does not exceed
 
$250,000
in the aggregate,
(b)
 
so long
 
as no
 
Default or
 
Event of
 
Default shall
 
have occurred
 
and be
continuing or would result therefrom, Administrative Borrower may make distributions to former
employees, officers,
 
or directors
 
of Administrative
 
Borrower (or
 
any spo
 
uses, ex
 
-spouses, or
estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons
owing to
 
Administrative Borrower
 
on account
 
of repurchases
 
of the
 
Equity Interests
 
of
Administrative Borrower held by such Persons; provided, that such Indebtedness was incurred by
such Persons solely to acquire Equity Interests of Administrative Borrower,
(c)
 
so long
 
as no
 
Default or
 
Event of
 
Default shall
 
have occurred
 
and be
continuing or
 
would result
 
therefrom, Administrative
 
Borrower's Subsidiaries
 
may make
distributions to
 
Administrative Borrower (i)
 
in an
 
amount sufficient
 
to pay
 
franchise taxes
 
and
other fees required to maintain the legal existence of the
 
Loan Parties and their Subsidiaries to the
extent actually used by Administrative Borrower to pay such taxes, costs
 
and expenses, and (ii) in
 
 
 
 
 
 
 
an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in
the nature of
 
overhead in the
 
ordinary course of
 
business of the Loan
 
Parties and their Subsidiaries,
 
(d)
 
Borrowers and their Subsidiaries
 
may make dividends
 
and distributions to
Administrative Borrower to make payments permitted to be made pursuant to Section 6.10(f), or
(e)
 
other Restricted Payments
 
in an aggregate
 
amount not to exceed
 
$1,000,000
so long as the Payment Conditions are satisfied..
 
6.8.
 
Accounting Methods
.
 
Each Loan Party will not, and will
 
not permit any of its
Subsidiaries to, modify or change its fiscal year or its method
 
of accounting (other than as may be
required to conform to GAAP).
6.9.
 
Investments
.
 
Each Loan Party will not, and
 
will not permit any of its
Subsidiaries to,
 
directly or
 
indirectly, make
 
or acquire
 
any Investment
 
or incur
 
any liabilities
(including contingent obligations) for
 
or in connection with
 
any Investment except for
 
Permitted
Investments.
6.10.
 
Transactions with
 
Affiliates
.
 
Each Loan Party
 
will not, and
 
will not permit
any of its Subsidiaries
 
to, directly or indirectly,
 
enter into or permit
 
to exist any transaction
 
with
any Affiliate of any Loan Party or any of its Subsidiaries except for:
(a)
 
transactions (other than
 
the payment
 
of management,
 
consulting,
monitoring, or advisory
 
fees) between such
 
Loan Party or
 
its Subsidiaries, on
 
the one hand,
 
and
any Affiliate of such Loan Party
 
or its Subsidiaries, on the other
 
hand, so long as
 
such transactions
(i) are fully
 
disclosed to
 
Agent prior to
 
the consummation
 
thereof, if they
 
involve one
 
or more
payments by such Loan Party
 
or its Subsidiaries in
 
excess of $500,000 for any
 
single transaction
or series of related
 
transactions, and (ii) are no
 
less favorable, taken as
 
a whole, to such Loan
 
Party
or its Subsidiaries, as
 
applicable, than would be
 
obtained in an arm's
 
length transaction with a
 
non-
Affiliate,
(b)
 
any indemnity
 
provided for
 
the benefit
 
of directors
 
(or comparable
managers) of a Loan Party or one of its Subsidiaries
 
so long as it has been approved by such Loan
Party's or such Subsidiary's
 
board of directors (or comparable
 
governing body) in accordance with
applicable law,
(c)
 
the payment
 
of reasonable
 
compensation, severance,
 
or employee
 
benefit
arrangements to employees,
 
officers, and outside
 
directors of a
 
Loan Party or
 
one of its
Subsidiaries in the ordinary course
 
of business and consistent
 
with industry practice so long
 
as it
has been approved
 
by such
 
Loan Party's or
 
such Subsidiary's
 
board of directors
 
(or comparable
governing body) in accordance with applicable law,
(d)
 
(i) transactions solely
 
among the Loan
 
Parties, and (ii)
 
transactions solely
among Subsidiaries of Loan Parties that are not Loan Parties,
(e)
 
transactions permitted
 
by Section
 
6.3, Section
 
6.7, or
 
Section 6.9,
repayments of Permitted Intercompany Advances, and, to
 
the extent permitted under Section 6.6,
repayments of Subordinated Indebtedness, and
 
 
 
 
 
 
 
(f)
 
agreements for the non-exclusive licensing of intellectual property,
 
or
distribution of products,
 
in each case,
 
among the Loan
 
Parties and their
 
Subsidiaries for the
 
purpose
of the counterparty
 
thereof operating its
 
business, and agreements
 
for the assignment
 
of intellectual
property from any Loan Party or any of its Subsidiaries to any Loan Party.
6.11.
 
Use of
 
Proceeds
.
 
Each Loan
 
Party will
 
not, and
 
will not
 
permit any
 
of its
Subsidiaries to, use
 
the proceeds of
 
any Loan made
 
hereunder for any
 
purpose other than
 
(a) on
the Closing Date, (i) to repay, in full, the outstanding principal, accrued interest,
 
and accrued fees
and expenses owing
 
under or in
 
connection with the
 
Existing Credit Facility,
 
and (ii) to
 
pay the
fees, costs, and expenses incurred in connection with this Agreement, the other Loan Documents,
and the
 
transactions contemplated
 
hereby and
 
thereby, in
 
each case, as
 
set forth
 
in the
 
Flow of
Funds Agreement,
 
and (b)
 
thereafter, consistent
 
with the
 
terms and
 
conditions hereof,
 
for their
lawful and permitted purposes; provided that (x) no part of the proceeds
 
of the Loans will be used
to purchase
 
or carry
 
any such
 
Margin Stock
 
or to
 
extend credit
 
to others
 
for the
 
purpose of
purchasing or carrying
 
any such Margin
 
Stock or for
 
any purpose that
 
violates the provisions
 
of
Regulation T, U or X of the Board of Governors, (y) no part of the proceeds of
 
any Loan or Letter
of Credit will
 
be used, directly
 
or indirectly,
 
to make any
 
payments to a
 
Sanctioned Entity or
 
a
Sanctioned Person,
 
to fund
 
any investments,
 
loans or
 
contributions in,
 
or otherwise make
 
such
proceeds available to,
 
a Sanctioned Entity
 
or a Sanctioned
 
Person, to fund
 
any operations, activities
or business of
 
a Sanctioned Entity or
 
a Sanctioned Person, or
 
in any other manner
 
that would result
in a violation of
 
Sanctions by any
 
Person, and (z) that
 
no part of the
 
proceeds of any
 
Loan or Letter
of Credit will be
 
used, directly or indirectly,
 
in furtherance of an offer,
 
payment, promise to pay,
or authorization of
 
the payment or
 
giving of money,
 
or anything else
 
of value, to
 
any Person in
violation of any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws.
6.12.
 
Limitation on Issuance
 
of Equity Interests
.
 
Except for the
 
issuance or sale
of Qualified Equity Interests
 
by Administrative Borrower,
 
each Loan Party will
 
not, and will not
permit any of its Subsidiaries to, issue or sell any of its Equity Interests.
6.13.
 
Inventory or M&E with Bailees
.
 
Each Borrower will not, and
 
will not permit
any of its Subsidiaries (other than any Mexican Subsidiary) to, store
 
its Inventory or M&E at any
time with a bailee,
 
warehouseman, or similar party
 
except as set forth
 
on Schedule 4.25 (as
 
such
Schedule may be amended in accordance with Section 5.14).
6.14.
 
Employee Benefits
.
 
Each Loan Party
 
will not, and
 
will not permit
 
any of its
Subsidiaries to:
(a)
 
Terminate, or permit any ERISA Affiliate to terminate, any
 
Pension Plan in
a manner,
 
or take any
 
other action with
 
respect to any
 
Pension Plan, which
 
could reasonably be
expected to result in any liability of any Loan Party or ERISA Affiliate to the PBGC.
(b)
 
Fail to make,
 
or permit any
 
ERISA Affiliate to
 
fail to make,
 
full payment
when due
 
of all
 
amounts which,
 
under the
 
provisions of
 
any Benefit
 
Plan, agreement
 
relating
thereto or applicable
 
Law, any
 
Loan Party or
 
ERISA Affiliate
 
is required to
 
pay if such
 
failure
could reasonably be expected to have a Material Adverse Effect.
 
(c)
 
Permit to
 
exist, or
 
allow any
 
ERISA Affiliate
 
to permit
 
to exist,
 
any
accumulated funding deficiency within
 
the meaning of section 302
 
of ERISA or section 412
 
of the
Code, whether
 
or not
 
waived, with
 
respect to
 
any Pension
 
Plan which
 
exceeds $500,000
 
with
respect to all Pension Plans in the aggregate.
(d)
 
Acquire, or permit any
 
ERISA Affiliate to acquire, an
 
interest in any Person
that causes such Person
 
to become an ERISA
 
Affiliate with respect to a
 
Loan Party or with
 
respect
to any ERISA Affiliate if such Person sponsors, maintains, or contributes
 
to, or at any time in the
six-year period preceding
 
such acquisition
 
has sponsored, maintained,
 
or contributed to,
 
(i) any
Pension Plan or (ii) any Multiemployer Plan.
(e)
 
Contribute to or assume
 
an obligation to contribute
 
to, or permit any
 
ERISA
Affiliate to contribute to or assume an obligation to contribute to, any Multiemployer Plan not set
forth on Schedule 4.10.
(f)
 
Amend, or permit any ERISA
 
Affiliate to amend, a
 
Pension Plan resulting
in a material increase in
 
current liability such that a
 
Loan Party or ERISA Affiliate
 
is required to
provide security to such Pension Plan under the IRC.
6.15.
 
Canadian Employee
 
Benefits
.
 
No Borrower
 
will, or
 
will permit
 
any of
 
its
Subsidiaries to:
(a)
 
establish, maintain,
 
sponsor, administer,
 
contribute to,
 
participate in
 
or
assume or incur any liability in respect
 
of any Canadian Defined Benefit Plan or amalgamate
 
with
any Person if such Person, sponsors,
 
administers, contributes to, participates in or
 
has any liability
in respect
 
of, any
 
Canadian Defined
 
Benefit Plan
 
other than
 
a Canadian
 
Multi-Employer Plan,
without the prior
 
written consent of
 
the Agent (which
 
consent shall not
 
be unreasonably
conditioned, withheld or delayed),
(b)
 
terminate any Canadian Pension Plan in a manner,
 
or take any other action
with respect
 
to any
 
Canadian Pension
 
Plan, which
 
would reasonably
 
be expected
 
to result
 
in a
Material Adverse Effect, or
(c)
 
fail to make
 
full payment when
 
due of any
 
amounts, under the
 
provisions
of any Canadian
 
Pension Plan,
 
any agreement relating
 
thereto or
 
applicable law
 
if such
 
failure
would reasonably be expected to result in a Material Adverse Effect.
 
7.
 
FINANCIAL COVENANT.
Each
 
Borrower covenants
 
and agrees
 
that, until
 
the termination
 
of all
 
of the
Commitments and the payment in full of the Obligations:
 
(a)
 
Borrowers will have
 
a Fixed Charge Coverage
 
Ratio, measured on a
 
month-
end basis, of at least the required amount set forth
 
in the following table for the applicable period
set forth opposite thereto:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Applicable Ratio
Applicable Period
1.10:1.0
For the 12 month period
ending November 30, 2020
1.10:1.0
For the 12 month period
ending each month thereafter
 
(b)
 
Borrowers will not permit BRP/Navistar
 
Project Cap Ex to be
 
greater than
the amount set forth in the following table for the applicable period set forth opposite thereto:
Applicable Ratio
Applicable Period
$1,119,000
For the period
commencing on the Closing Date and ending December
31, 2020
$13,672,000
For the 12 month period
ending December 31, 2021
$2,090,000
For the 12 month period
ending December 31, 2022
 
8.
 
EVENTS OF DEFAULT.
Any one or more of the following events shall constitute an event of default (each,
an "Event of Default") under this Agreement:
8.1.
 
Payments
.
 
If Borrowers fail to
 
pay when due and
 
payable, or when declared
due and payable,
 
(a) all or
 
any portion of
 
the Obligations consisting
 
of interest, fees,
 
or charges
due the Lender
 
Group, reimbursement of
 
Lender Group Expenses,
 
or other amounts
 
(other than
any portion thereof constituting principal) constituting Obligations (including any portion thereof
that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed
or allowable in whole
 
or in part
 
as a claim in
 
any such Insolvency
 
Proceeding), and such
 
failure
continues for a period of three Business Days, (b) all or any portion of the
 
principal of the Loans,
or (c)
 
any amount
 
payable to
 
Issuing Bank in
 
reimbursement of
 
any drawing
 
under a
 
Letter of
Credit;
8.2.
 
Covenants
.
 
If any Loan Party or any of its Subsidiaries:
(a)
 
fails to perform
 
or observe
 
any covenant or
 
other agreement contained
 
in
any of (i)
 
Sections 3.6, 5.1,
 
5.2, 5.3 (solely
 
if any Borrower
 
is not in
 
good standing in
 
its jurisdiction
of organization), 5.6,
 
5.7 (solely if any
 
Borrower refuses to allow
 
Agent or its
 
representatives or
agents to visit any Borrower's properties,
 
inspect its assets or books or records,
 
examine and make
copies of its books and records, or discuss Borrowers'
 
affairs, finances, and accounts with officers
and employees of any Borrower), 5.10, 5.11,
 
5.13, or 5.14 of this Agreement, (ii) Section 6 of
 
this
 
 
 
 
 
 
 
 
 
 
 
 
Agreement, (iii)
 
Section 7
 
of this
 
Agreement, or
 
(iv) Section
 
7 of
 
the Guaranty
 
and Security
Agreement or Section 7 of the Canadian Security Agreement;
(b)
 
fails to perform
 
or observe
 
any covenant or
 
other agreement contained
 
in
any of
 
Sections 5.3
 
(other than
 
if any
 
Borrower is
 
not in
 
good standing
 
in its
 
jurisdiction of
organization), 5.4, 5.5, 5.8, and
 
5.12 of this Agreement and such
 
failure continues for a period of
ten days
 
after the
 
earlier of
 
(i) the
 
date on
 
which such
 
failure shall
 
first become known
 
to any
officer of any Borrower,
 
or (ii) the date on which
 
written notice thereof is given to
 
Borrowers by
Agent; or
(c)
 
fails to perform
 
or observe
 
any covenant or
 
other agreement contained
 
in
this Agreement, or in
 
any of the other
 
Loan Documents, in each
 
case, other than any
 
such covenant
or agreement that is
 
the subject of another
 
provision of this Section
 
8 (in which event
 
such other
provision of this Section
 
8 shall govern), and
 
such failure continues for
 
a period of thirty
 
days after
the earlier
 
of (i)
 
the date
 
on which
 
such failure
 
shall first
 
become known
 
to any
 
officer of
 
any
Borrower, or (ii) the date on which written notice thereof is given to Borrowers by Agent;
8.3.
 
Judgments
.
 
If one or more
 
judgments, orders, requirements
 
to pay issued
 
by
any Canadian Governmental
 
Authority or awards
 
for the payment
 
of money involving
 
an aggregate
amount of
 
$500,000, or
 
more (except
 
to the
 
extent fully
 
covered (other
 
than to
 
the extent
 
of
customary deductibles)
 
by insurance
 
pursuant to
 
which the
 
insurer has
 
not denied
 
coverage) is
entered or
 
filed against
 
a Loan
 
Party or
 
any of
 
its Subsidiaries,
 
or with
 
respect to
 
any of
 
their
respective assets, and
 
either (a) there
 
is a period
 
of thirty consecutive
 
days at any
 
time after the
entry of any such judgment, order, or award during which (i)
 
the same is not discharged, satisfied,
vacated, or
 
bonded pending
 
appeal, or
 
(ii) a
 
stay of
 
enforcement thereof
 
is not
 
in effect,
 
or (b)
enforcement proceedings are commenced upon such judgment, order, or award;
8.4.
 
Voluntary
 
Bankruptcy, etc
.
 
If an Insolvency Proceeding is commenced by a
Loan Party or any of its Subsidiaries;
8.5.
 
Involuntary Bankruptcy,
 
etc
.
 
If an
 
Insolvency Proceeding
 
is commenced
against a Loan
 
Party or any
 
of its Subsidiaries and
 
any of the
 
following events occur: (a)
 
such Loan
Party or such Subsidiary
 
consents to the institution
 
of such Insolvency Proceeding
 
against it, (b)
the petition
 
commencing the
 
Insolvency Proceeding
 
is not
 
timely controverted,
 
(c) the
 
petition
commencing the Insolvency Proceeding is not dismissed within sixty calendar days of the date of
the filing thereof,
 
(d) an interim
 
trustee is appointed
 
to take possession
 
of all or
 
any substantial
portion of the properties or assets of, or
 
to operate all or any substantial portion of the
 
business of,
such Loan Party
 
or its Subsidiary, or
 
(e) an order
 
for relief shall
 
have been issued
 
or entered therein;
8.6.
 
Default Under Other
 
Agreements
.
 
If there is
 
(a) any "Event
 
of Default" as
such term
 
is defined
 
in the
 
Mexican Term
 
Loan Agreement,
 
or (b)
 
a default
 
in one
 
or more
agreements to
 
which a
 
Loan Party
 
or any
 
of its
 
Subsidiaries is
 
a party
 
with one
 
or more
 
third
Persons relative to a Loan
 
Party's or any of its
 
Subsidiaries' Indebtedness involving an aggregate
amount of $500,000
 
or more, and
 
such default (i)
 
occurs at the
 
final maturity of
 
the obligations
thereunder, or
 
(ii) results
 
in a
 
right by
 
such third
 
Person, irrespective
 
of whether
 
exercised, to
accelerate the maturity of such Loan Party's or its Subsidiary's obligations thereunder;
 
 
 
 
 
 
8.7.
 
Representations, etc
.
 
If any warranty, representation, certificate,
 
statement, or
Record made herein
 
or in any
 
other Loan Document or
 
delivered in writing
 
to Agent or any
 
Lender
in connection with
 
this Agreement or
 
any other Loan
 
Document proves to
 
be untrue in
 
any material
respect (except that
 
such materiality qualifier
 
shall not
 
be applicable to
 
any representations and
warranties that already are
 
qualified or modified by
 
materiality in the text
 
thereof) as of the
 
date
of issuance or making or deemed making thereof;
8.8.
 
Guaranty
.
 
If the obligation of any Guarantor under the guaranty
 
contained in
the Guaranty and Security Agreement or Canadian Guaranty is
 
limited or terminated by operation
of law or by such Guarantor (other than in accordance with the terms of this Agreement) or if any
Guarantor repudiates or revokes or purports to repudiate or revoke any such guaranty;
8.9.
 
Security Documents
.
 
If the Guaranty and Security Agreement, any Canadian
Security Document
 
or any
 
other Loan
 
Document that
 
purports to
 
create a
 
Lien, shall,
 
for any
reason, fail or
 
cease to create a
 
valid and perfected
 
and, (except to
 
the extent of Permitted
 
Liens
which are
 
non-consensual Permitted
 
Liens, permitted
 
purchase money
 
Liens or
 
the interests
 
of
lessors under Capital
 
Leases) first priority
 
Lien on the
 
Collateral covered thereby, except
 
as a result
of a disposition of the applicable Collateral in a transaction permitted under this Agreement;
8.10.
 
Loan Documents
.
 
The validity or enforceability of any Loan Document shall
at any time for any reason
 
(other than solely as the result of an action or failure to
 
act on the part
of Agent) be declared to be null and
 
void, or a proceeding shall be commenced
 
by a Loan Party or
its Subsidiaries, or
 
by any Governmental
 
Authority having jurisdiction
 
over a Loan
 
Party or its
Subsidiaries, seeking to establish the
 
invalidity or unenforceability thereof, or
 
a Loan Party or its
Subsidiaries shall
 
deny that
 
such Loan
 
Party or
 
its Subsidiaries
 
has any
 
liability or
 
obligation
purported to be created under any Loan Document; or
8.11.
 
Change of
 
Control
.
 
A Change
 
of Control
 
shall occur,
 
whether directly
 
or
indirectly.
9.
 
RIGHTS AND REMEDIES.
9.1.
 
Rights and Remedies
.
 
Upon the occurrence and during the continuation of an
Event of Default, Agent may, and, at
 
the instruction of the Required Lenders, shall, in addition to
any other
 
rights or
 
remedies provided
 
for hereunder
 
or under
 
any other
 
Loan Document
 
or by
applicable law, do any one or more of the following:
(a)
 
by written notice to Borrowers, (i) declare
 
the principal of, and any and all
accrued and unpaid interest and fees in respect of, the Loans and all other Obligations
 
(other than
the Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan
Documents to
 
be immediately
 
due and
 
payable, whereupon
 
the same
 
shall become
 
and be
immediately due and payable and Borrowers shall be obligated to repay all of such Obligations in
full, without presentment, demand, protest, or further notice or other
 
requirements of any kind, all
of which are hereby expressly
 
waived by each Borrower, and (ii) direct Borrowers
 
to provide (and
Borrowers agree that
 
upon receipt
 
of such
 
notice Borrowers will
 
provide) Letter of
 
Credit
Collateralization to
 
Agent to
 
be held
 
as security
 
for Borrowers'
 
reimbursement obligations
 
for
drawings that may subsequently occur under issued and outstanding Letters of Credit;
 
 
 
 
 
(b)
 
by written notice to Borrowers,
 
declare the Commitments terminated,
whereupon the Commitments shall immediately be
 
terminated together with (i) any obligation
 
of
any Revolving Lender to make Revolving Loans, (ii) the obligation of the Swing
 
Lender to make
Swing Loans, and (iii) the obligation of Issuing Bank to issue Letters of Credit; and
(c)
 
exercise all
 
other rights
 
and remedies
 
available to
 
Agent or
 
the Lenders
under the Loan Documents, under applicable law, or in equity.
The foregoing
 
to the
 
contrary notwithstanding,
 
upon the
 
occurrence of
 
any Event
 
of Default
described in Section
 
8.4 or Section
 
8.5, in addition
 
to the remedies
 
set forth above,
 
without any
notice to Borrowers or any
 
other Person or any act
 
by the Lender Group, the
 
Commitments shall
automatically terminate and the
 
Obligations (other than the Bank
 
Product Obligations), inclusive
of the principal
 
of, and any
 
and all accrued
 
and unpaid interest
 
and fees in
 
respect of, the
 
Loans
and all other
 
Obligations (other than
 
the Bank Product
 
Obligations), whether evidenced
 
by this
Agreement or by
 
any of the
 
other Loan Documents,
 
shall automatically become
 
and be
immediately due and payable and Borrowers shall automatically
 
be obligated to repay all of such
Obligations in full
 
(including Borrowers being
 
obligated to provide
 
(and Borrowers agree
 
that they
will provide) (1) Letter
 
of Credit Collateralization
 
to Agent to be
 
held as security for
 
Borrowers'
reimbursement obligations in
 
respect of drawings
 
that may subsequently occur
 
under issued and
outstanding Letters
 
of Credit
 
and (2)
 
Bank Product
 
Collateralization to
 
be held
 
as security
 
for
Borrowers' or
 
their Subsidiaries'
 
obligations in
 
respect of
 
outstanding Bank
 
Products), without
presentment, demand,
 
protest, or
 
notice or
 
other requirements
 
of any
 
kind, all
 
of which
 
are
expressly waived by Borrowers.
9.2.
 
Remedies Cumulative
.
 
The rights and
 
remedies of the
 
Lender Group under
this Agreement, the
 
other Loan Documents,
 
and all
 
other agreements shall
 
be cumulative.
 
The
Lender Group shall have all other
 
rights and remedies not inconsistent herewith
 
as provided under
the Code, by law,
 
or in equity.
 
No exercise by the Lender
 
Group of one right or
 
remedy shall be
deemed an election, and no waiver
 
by the Lender Group of
 
any Default or Event of
 
Default shall
be deemed a continuing waiver.
 
No delay by the Lender
 
Group shall constitute a waiver, election,
or acquiescence by it.
10.
 
WAIVERS;
 
INDEMNIFICATION.
10.1.
 
Demand; Protest;
 
etc
.
 
Each Borrower
 
waives demand,
 
protest, notice
 
of
protest, notice of
 
default or dishonor, notice of
 
payment and nonpayment, nonpayment
 
at maturity,
release, compromise, settlement, extension,
 
or renewal of documents,
 
instruments, chattel paper,
and guarantees at any time held by the
 
Lender Group on which any Borrower may in
 
any way be
liable.
10.2.
 
The Lender Group's Liability for
 
Collateral
.
 
Each Borrower hereby agrees
that:
 
(a) so long as Agent complies with its obligations, if any, under the Code, the Lender Group
shall not in any way
 
or manner be liable
 
or responsible for:
 
(i) the safekeeping of the
 
Collateral,
(ii) any loss or damage thereto occurring or arising in any manner or fashion from any cause, (iii)
any diminution in the
 
value thereof, or (iv)
 
any act or default
 
of any carrier, warehouseman, bailee,
forwarding agency, or other
 
Person, and (b)
 
all risk of
 
loss, damage, or
 
destruction of the
 
Collateral
shall be borne by the Loan Parties.
 
 
 
 
 
10.3.
 
Indemnification
.
 
Each Borrower shall
 
pay, indemnify,
 
defend, and hold
 
the
Agent-Related Persons, the Lender-Related Persons, the
 
Issuing Bank, and each
 
Participant (each,
an "Indemnified Person")
 
harmless (to the
 
fullest extent permitted
 
by law) from
 
and against any
and all claims, demands,
 
suits, actions, investigations, proceedings,
 
liabilities, fines, costs,
penalties, and
 
damages, and
 
all reasonable
 
fees and
 
disbursements of
 
attorneys, experts,
 
or
consultants and
 
all other
 
costs and
 
expenses actually
 
incurred in
 
connection therewith
 
or in
connection with
 
the enforcement
 
of this
 
indemnification (as
 
and when
 
they are
 
incurred and
irrespective of whether suit is brought),
 
at any time asserted against,
 
imposed upon, or incurred by
any of
 
them (a)
 
in connection
 
with or
 
as a
 
result of
 
or related
 
to the
 
execution and
 
delivery
(provided, that Borrowers shall not
 
be liable for costs and
 
expenses (including attorneys' fees) of
any Lender (other than Xxxxx
 
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
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X.
 
Xxxxxx
Fax No. (000) 000-0000
with copies to:
Squire Xxxxxx Xxxxx (US) LLP
2000 Huntington Bank Center
00 X.
 
Xxxx Xxxxxx
Xxxxxxxx, XX
 
00000
Attn:
 
Xxxxxx X.
 
Xxxxxx, Esq.
Fax No.:
 
(000) 000-0000
If to Agent:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
00 X. Xxxxxx Xxxxx 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Loan Portfolio Manager
Fax No.:
 
(000) 000-0000
with copies to:
XXXXXXXX XXXX LTD.
00 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn:
 
Xxxxx X. Xxxxxx, Esq.
Fax No.:
 
(000) 000-0000
 
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
 
XXXX, 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
 
XXXX 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 XXX
 
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, Xxx
 
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 Xxxxx
 
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
.
 
Xxxxx
 
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 Xxxxx
 
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, Xxxxx
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 Xxxxx
 
Fargo in its
individual capacity.
15.9.
 
Successor Agent
.
 
Agent may
 
resign as
 
Agent upon
 
30 days
 
(ten days
 
if an
Event of Default has occurred
 
and is continuing) prior
 
written notice to the
 
Lenders (unless such
notice is
 
waived by
 
the Required
 
Lenders) and
 
Borrowers (unless
 
such notice
 
is waived
 
by
Borrowers or a Default
 
or Event of Default has
 
occurred and is continuing) and
 
without any notice
to the Bank Product
 
Providers.
 
If Agent resigns under
 
this Agreement, the Required Lenders
 
shall
be entitled, with
 
(so long as
 
no Event of
 
Default has occurred
 
and is continuing)
 
the consent of
Borrowers (such
 
consent not
 
to be
 
unreasonably withheld,
 
delayed, or
 
conditioned), appoint
 
a
successor Agent for
 
the Lenders
 
(and the Bank
 
Product Providers).
 
If, at the
 
time that Agent's
 
 
 
 
 
resignation is effective,
 
it is acting
 
as Issuing Bank
 
or the Swing
 
Lender, such
 
resignation shall
also operate to effectuate
 
its resignation as Issuing
 
Bank or the Swing Lender,
 
as applicable, and
it shall automatically
 
be relieved of
 
any further obligation
 
to issue Letters
 
of Credit, or
 
to make
Swing Loans.
 
If no successor Agent is
 
appointed prior to the
 
effective date of the
 
resignation of
Agent, Agent may appoint,
 
after consulting with the
 
Lenders and Borrowers, a
 
successor Agent.
 
If Agent has materially breached or failed to perform any material provision of this Agreement or
of applicable law, the Required Lenders may agree in writing to remove and replace Agent with a
successor Agent from among
 
the Lenders with (so
 
long as no Event
 
of Default has occurred
 
and
is continuing) the consent
 
of Borrowers (such consent
 
not to be unreasonably
 
withheld, delayed,
or conditioned).
 
In any such
 
event, upon the
 
acceptance of its
 
appointment as successor
 
Agent
hereunder, such successor
 
Agent shall succeed to all
 
the rights, powers, and duties
 
of the retiring
Agent and the
 
term "Agent" shall
 
mean such successor
 
Agent and the
 
retiring Agent's appointment,
powers, and duties as Agent shall be terminated.
 
After any retiring Agent's resignation hereunder
as Agent,
 
the provisions
 
of this
 
Section 15
 
shall inure
 
to its
 
benefit as
 
to any
 
actions taken
 
or
omitted to
 
be taken by
 
it while
 
it was Agent
 
under this
 
Agreement.
 
If no successor
 
Agent has
accepted appointment as Agent by the date which
 
is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall
 
nevertheless thereupon become effective and the
Lenders shall perform all of
 
the duties of Agent hereunder
 
until such time, if
 
any, as the
 
Lenders
appoint a successor Agent as provided for above.
15.10.
 
Lender in Individual Capacity
.
 
Any Lender and its respective
 
Affiliates may
make loans
 
to, issue
 
letters of
 
credit for
 
the account
 
of, accept
 
deposits from,
 
provide Bank
Products to, acquire
 
Equity Interests in
 
and generally engage
 
in any kind
 
of banking, trust,
 
financial
advisory, underwriting,
 
or other business with
 
any Loan Party and
 
its Subsidiaries and Affiliates
and any
 
other Person
 
party to
 
any Loan
 
Documents as
 
though such
 
Lender were
 
not a
 
Lender
hereunder without notice
 
to or consent
 
of the other
 
members of the
 
Lender Group (or
 
the Bank
Product Providers).
 
The other members of the
 
Lender Group acknowledge (and by
 
entering into
a Bank Product
 
Agreement, each Bank
 
Product Provider shall
 
be deemed to
 
acknowledge) that,
pursuant to
 
such activities,
 
such Lender
 
and its
 
respective Affiliates
 
may receive
 
information
regarding a Loan Party
 
or its Affiliates
 
or any other Person
 
party to any Loan
 
Documents that is
subject to confidentiality
 
obligations in favor
 
of such
 
Loan Party or
 
such other
 
Person and
 
that
prohibit the disclosure of such information
 
to the Lenders, and the Lenders
 
acknowledge (and by
entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to
acknowledge) that, in such
 
circumstances (and in the
 
absence of a waiver
 
of such confidentiality
obligations, which waiver such Lender will use its reasonable best efforts
 
to obtain), such Lender
shall not be under any obligation to provide such information to them.
15.11.
 
Collateral Matters
.
(a)
 
The Lenders
 
hereby irrevocably
 
authorize (and
 
by entering
 
into a
 
Bank
Product Agreement, each
 
Bank Product Provider
 
shall be deemed
 
to authorize) Agent
 
to release
any Lien
 
on any
 
Collateral (i)
 
upon the
 
termination of
 
the Commitments
 
and payment
 
and
satisfaction in
 
full by
 
the Loan
 
Parties and
 
their Subsidiaries
 
of all
 
of the
 
Obligations, (ii)
constituting property being sold
 
or disposed of
 
if a release
 
is required or
 
desirable in connection
therewith and if Borrowers certify to Agent that the sale or disposition is permitted under Section
6.4 (and
 
Agent may
 
rely conclusively
 
on any
 
such certificate,
 
without further
 
inquiry), (iii)
constituting property in which
 
no Loan Party or
 
any of its Subsidiaries
 
owned any interest at
 
the
 
 
 
 
 
time Agent's
 
Lien was
 
granted nor
 
at any
 
time thereafter,
 
(iv) constituting
 
property leased
 
or
licensed to a
 
Loan Party or
 
its Subsidiaries under
 
a lease or
 
license that has expired
 
or is terminated
in a transaction permitted under this Agreement, or (v)
 
in connection with a credit bid or purchase
authorized under
 
this Section
 
15.11.
 
The Loan
 
Parties and
 
the Lenders
 
hereby irrevocably
authorize (and by entering
 
into a Bank Product
 
Agreement, each Bank Product
 
Provider shall be
deemed to authorize) Agent, based upon the instruction of the Required Lenders, to (a) consent to
the sale of, credit bid, or purchase (either directly or indirectly through
 
one or more entities) all or
any portion of the Collateral at any sale thereof conducted under
 
the provisions of the Bankruptcy
Code, or similar Insolvency Laws
 
in any other relevant
 
jurisdiction, including Section 363 of
 
the
Bankruptcy Code or in connection with any other Insolvency Proceeding in any other jurisdiction
to which a
 
Loan Party is
 
subject, (b) credit
 
bid or purchase
 
(either directly or
 
indirectly through
one or more
 
entities) all or
 
any portion of
 
the Collateral at
 
any sale or
 
other disposition
 
thereof
conducted under the provisions of the Code, including pursuant to Sections 9-610
 
or 9-620 of the
Code, the PPSA, including pursuant to Sections
 
9-610 or 9-620 of the Code, the
 
PPSA or similar
Insolvency Laws in
 
any other relevant
 
jurisdiction or any
 
similar provision
 
of the PPSA,
 
or (c)
credit bid or purchase (either directly or indirectly through one or more entities) all or
 
any portion
of the Collateral at
 
any other sale or
 
foreclosure conducted or consented
 
to by Agent in
 
accordance
with applicable law in
 
any judicial action or
 
proceeding or by
 
the exercise of any
 
legal or equitable
remedy.
 
In connection
 
with any
 
such credit
 
bid or
 
purchase, (i)
 
the Obligations
 
owed to
 
the
Lenders and the Bank
 
Product Providers shall be entitled
 
to be, and shall
 
be, credit bid on a
 
ratable
basis (with Obligations with respect to contingent or unliquidated claims
 
being estimated for such
purpose if the fixing or
 
liquidation thereof would not impair
 
or unduly delay the ability
 
of Agent
to credit bid or purchase at such
 
sale or other disposition of the
 
Collateral and, if such contingent
or unliquidated
 
claims cannot
 
be estimated
 
without impairing
 
or unduly delaying
 
the ability
 
of
Agent to
 
credit bid
 
at such sale
 
or other disposition,
 
then such
 
claims shall
 
be disregarded, not
credit bid, and not entitled to
 
any interest in the Collateral that is
 
the subject of such credit bid
 
or
purchase) and the Lenders and the Bank Product Providers whose Obligations
 
are credit bid shall
be entitled to receive interests (ratably based upon
 
the proportion of their Obligations credit bid in
relation to the aggregate
 
amount of Obligations so
 
credit bid) in the
 
Collateral that is the
 
subject
of such
 
credit bid
 
or purchase
 
(or in
 
the Equity
 
Interests of
 
the any
 
entities that
 
are used
 
to
consummate such
 
credit bid
 
or purchase),
 
and (ii)
 
Agent, based
 
upon the
 
instruction of
 
the
Required Lenders, may accept non-cash consideration, including debt and
 
equity securities issued
by any entities used to
 
consummate such credit bid or
 
purchase and in connection therewith
 
Agent
may reduce the
 
Obligations owed to
 
the Lenders and
 
the Bank Product
 
Providers (ratably based
upon the proportion of their Obligations credit bid in relation to
 
the aggregate amount of
Obligations so
 
credit bid)
 
based upon
 
the value
 
of such
 
non-cash consideration;
 
provided, that
Bank Product Obligations not entitled to the application set forth in Section 2.4(b)(iii)(J) shall not
be entitled to be, and shall
 
not be, credit bid, or used in
 
the calculation of the ratable interest
 
of the
Lenders and Bank Product Providers in the
 
Obligations which are credit bid.
 
Except as provided
above, Agent will not execute
 
and deliver a release of any
 
Lien on any Collateral without the
 
prior
written authorization of
 
(y) if the
 
release is of
 
all or substantially
 
all of the
 
Collateral, all of
 
the
Lenders (without requiring the authorization of the Bank Product Providers), or (z) otherwise, the
Required Lenders
 
(without requiring
 
the authorization
 
of the
 
Bank Product
 
Providers).
 
Upon
request by Agent or
 
Borrowers at any time,
 
the Lenders will (and
 
if so requested, the
 
Bank Product
Providers will) confirm in writing
 
Agent's authority to release any
 
such Liens on particular types
or items of
 
Collateral pursuant to
 
this Section 15.11
 
;
 
provided, that (1)
 
anything to the
 
contrary
 
 
 
contained in any of the
 
Loan Documents notwithstanding, Agent shall
 
not be required to execute
any document
 
or take
 
any action
 
necessary to
 
evidence such
 
release on
 
terms that,
 
in Agent's
opinion, could expose Agent
 
to liability or create
 
any obligation or entail
 
any consequence other
than the release
 
of such Lien
 
without recourse, representation,
 
or warranty,
 
and (2) such
 
release
shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those
expressly released) upon (or obligations of Borrowers
 
in respect of) any and all
 
interests retained
by any Borrower, including, the proceeds of any sale, all
 
of which shall continue to constitute part
of the Collateral.
 
Each Lender further hereby irrevocably authorizes (and by entering into a Bank
Product Agreement, each Bank
 
Product Provider shall be deemed
 
to irrevocably authorize) Agent,
at its option and
 
in its sole discretion,
 
to subordinate (by contract
 
or otherwise) any Lien
 
granted
to or held by Agent on any property under any Loan Document (a) to
 
the holder of any Permitted
Lien on
 
such property
 
if such
 
Permitted Lien
 
secures purchase
 
money Indebtedness
 
(including
Capitalized Lease
 
Obligations) which
 
constitute Permitted
 
Indebtedness and
 
(b) to
 
the extent
Agent has
 
the authority
 
under this
 
Section 15.11
 
to release
 
its Lien
 
on such
 
property.
 
Notwithstanding the provisions
 
of this Section
 
15.11,
 
the Agent shall
 
be authorized, without
 
the
consent of any
 
Lender and without the
 
requirement that an
 
asset sale consisting
 
of the sale, transfer
or other disposition having
 
occurred, to release any
 
security interest in any
 
building, structure or
improvement located in
 
an area determined
 
by the
 
Federal Emergency
 
Management Agency
 
to
have special flood hazards.
(b)
 
Agent shall
 
have no
 
obligation whatsoever
 
to any
 
of the
 
Lenders (or
 
the
Bank Product Providers)
 
(i) to verify
 
or assure that
 
the Collateral exists
 
or is owned
 
by a Loan
Party or any of its
 
Subsidiaries or is cared for,
 
protected, or insured or has
 
been encumbered, (ii)
to verify
 
or assure
 
that Agent's
 
Liens have
 
been properly
 
or sufficiently
 
or lawfully
 
created,
perfected, protected, or enforced
 
or are entitled
 
to any particular priority,
 
(iii) to verify
 
or assure
that any particular items of
 
Collateral meet the eligibility
 
criteria applicable in respect thereof,
 
(iv)
to impose, maintain, increase, reduce, implement, or
 
eliminate any particular reserve hereunder or
to determine whether the amount of any reserve is appropriate or not, or (v) to exercise at all
 
or in
any particular manner or
 
under any duty of care,
 
disclosure or fidelity,
 
or to continue exercising,
any of the rights, authorities and
 
powers granted or available to Agent pursuant to
 
any of the Loan
Documents, it being understood and agreed that in
 
respect of the Collateral, or any act,
 
omission,
or event related
 
thereto, subject to
 
the terms and
 
conditions contained herein,
 
Agent may act
 
in
any manner
 
it may
 
deem appropriate,
 
in its
 
sole discretion
 
given Agent's
 
own interest
 
in the
Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability
whatsoever to
 
any Lender
 
(or Bank
 
Product Provider)
 
as to
 
any of
 
the foregoing,
 
except as
otherwise expressly provided herein.
15.12.
 
Restrictions on Actions by Lenders; Sharing of Payments
.
(a)
 
Each of
 
the Lenders
 
agrees that
 
it shall
 
not, without
 
the express
 
written
consent of Agent,
 
and that it
 
shall, to the
 
extent it is
 
lawfully entitled to
 
do so, upon
 
the written
request of Agent, set off against the Obligations, any amounts owing by such Lender to any Loan
Party or
 
its Subsidiaries
 
or any
 
deposit accounts
 
of any
 
Loan Party
 
or its
 
Subsidiaries now
 
or
hereafter maintained with such Lender.
 
Each of the Lenders further agrees that it shall
 
not, unless
specifically requested to do
 
so in writing by
 
Agent, take or cause to
 
be taken any action,
 
including,
the commencement of any legal
 
or equitable proceedings to
 
enforce any Loan Document against
 
 
 
 
any Borrower
 
or any
 
Guarantor or
 
to foreclose
 
any Lien
 
on, or
 
otherwise enforce
 
any security
interest in, any of the Collateral.
(b)
 
If, at any
 
time or times any
 
Lender shall receive
 
(i) by payment,
 
foreclosure,
setoff, or otherwise,
 
any proceeds of Collateral
 
or any payments
 
with respect to the
 
Obligations,
except for any
 
such proceeds or
 
payments received by
 
such Lender from
 
Agent pursuant to
 
the
terms of this Agreement,
 
or (ii) payments from
 
Agent in excess of
 
such Lender's Pro Rata
 
Share
of all such distributions by Agent, such Lender promptly shall (A) turn
 
the same over to Agent, in
kind, and
 
with such
 
endorsements as
 
may be
 
required to
 
negotiate the
 
same to
 
Agent, or
 
in
immediately available funds,
 
as applicable, for
 
the account of
 
all of the
 
Lenders and for
 
application
to the Obligations
 
in accordance with
 
the applicable provisions
 
of this Agreement, or
 
(B) purchase,
without recourse or
 
warranty, an
 
undivided interest and
 
participation in the
 
Obligations owed to
the other
 
Lenders so
 
that such
 
excess payment
 
received shall
 
be applied
 
ratably as
 
among the
Lenders in accordance
 
with their
 
Pro Rata Shares;
 
provided, that
 
to the extent
 
that such
 
excess
payment received
 
by the
 
purchasing party
 
is thereafter
 
recovered from
 
it, those
 
purchases of
participations shall be
 
rescinded in whole
 
or in part,
 
as applicable, and
 
the applicable portion
 
of
the purchase price
 
paid therefor
 
shall be returned
 
to such purchasing
 
party, but
 
without interest
except to the
 
extent that such
 
purchasing party is
 
required to pay
 
interest in connection
 
with the
recovery of the excess payment.
15.13.
 
Agency for Perfection
.
 
Agent hereby appoints
 
each other Lender
 
(and each
Bank Product Provider) as its agent (and
 
each Lender hereby accepts (and by entering into
 
a Bank
Product Agreement, each Bank
 
Product Provider shall be
 
deemed to accept) such
 
appointment) for
the purpose of perfecting Agent's Liens in assets which, in accordance with Article 8 or Article 9,
as applicable, of
 
the Code or
 
the STA,
 
as applicable, can
 
be perfected by
 
possession or control.
 
Should any Lender
 
obtain possession or
 
control of any
 
such Collateral, such
 
Lender shall notify
Agent thereof, and, promptly upon
 
Agent's request therefor shall
 
deliver possession or control
 
of
such Collateral to Agent or in accordance with Agent's instructions.
15.14.
 
Payments by Agent to the
 
Lenders
.
 
All payments to be made
 
by Agent to the
Lenders (or Bank Product
 
Providers) shall be made
 
by bank wire transfer
 
of immediately available
funds pursuant to such wire transfer instructions
 
as each party may designate for itself
 
by written
notice to Agent.
 
Concurrently with each
 
such payment, Agent
 
shall identify whether
 
such payment
(or any portion thereof) represents principal, premium, fees, or interest of the Obligations.
15.15.
 
Concerning the Collateral and Related Loan Documents
.
 
Each member of
the Lender Group
 
authorizes and directs
 
Agent to enter
 
into this Agreement
 
and the other
 
Loan
Documents.
 
Each member
 
of the
 
Lender Group
 
agrees (and
 
by entering
 
into a
 
Bank Product
Agreement, each Bank Product Provider shall be deemed to
 
agree) that any action taken by Agent
in accordance
 
with the
 
terms of
 
this Agreement
 
or the
 
other Loan
 
Documents relating
 
to the
Collateral and the exercise
 
by Agent of
 
its powers set
 
forth therein or
 
herein, together with
 
such
other powers that are reasonably
 
incidental thereto, shall be binding
 
upon all of the Lenders
 
(and
such Bank Product Provider).
 
 
 
 
15.16.
 
Field Examination Reports;
 
Confidentiality; Disclaimers
 
by Lenders;
Other Reports and Information
.
 
By becoming a party to this Agreement, each Lender:
(a)
 
is deemed to have requested that
 
Agent furnish such Lender, promptly after
it becomes
 
available, a
 
copy of
 
each field
 
examination report
 
respecting any
 
Loan Party
 
or its
Subsidiaries (each, a "Report") prepared by or at the
 
request of Agent, and Agent shall so furnish
each Lender with such Reports,
(b)
 
expressly agrees and acknowledges that Agent does not (i) make any
representation or warranty
 
as to
 
the accuracy of
 
any Report,
 
and (ii)
 
shall not
 
be liable
 
for any
information contained in any Report,
(c)
 
expressly agrees and acknowledges that the Reports are not comprehensive
audits or examinations,
 
that Agent or
 
other party performing
 
any field examination
 
will inspect
only specific information
 
regarding the Loan
 
Parties and their
 
Subsidiaries and will
 
rely
significantly upon
 
Borrowers' and
 
their Subsidiaries'
 
books and
 
records, as
 
well as
 
on
representations of Borrowers' personnel,
(d)
 
agrees to keep all Reports and other material, non-public
 
information
regarding the
 
Loan Parties
 
and their
 
Subsidiaries and
 
their operations,
 
assets, and
 
existing and
contemplated business plans in a confidential manner in accordance with Section 17.9, and
(e)
 
without limiting the generality of any other indemnification
 
provision
contained in this Agreement,
 
agrees:
 
(i) to hold Agent
 
and any other Lender
 
preparing a Report
harmless from any action the indemnifying
 
Lender may take or fail to
 
take or any conclusion the
indemnifying Lender may
 
reach or draw
 
from any Report
 
in connection with
 
any loans or
 
other
credit accommodations that the indemnifying Lender has made or may make to Borrowers, or the
indemnifying Lender's participation in, or the
 
indemnifying Lender's purchase of, a loan
 
or loans
of Borrowers, and
 
(ii) to pay
 
and protect, and
 
indemnify, defend
 
and hold
 
Agent, and any
 
such
other Lender
 
preparing a
 
Report harmless
 
from and
 
against, the
 
claims, actions,
 
proceedings,
damages, costs,
 
expenses, and
 
other amounts
 
(including, attorneys'
 
fees and
 
costs) incurred
 
by
Agent and any
 
such other Lender
 
preparing a Report
 
as the direct
 
or indirect result
 
of any third
parties who might obtain all or part of any Report through the indemnifying Lender.
In addition to the
 
foregoing, (x) any Lender
 
may from time to time
 
request of Agent in
 
writing that
Agent provide to such Lender a copy of
 
any report or document provided by any Loan Party
 
or its
Subsidiaries to Agent that has
 
not been contemporaneously provided by
 
such Loan Party or such
Subsidiary to such Lender, and, upon
 
receipt of such request, Agent
 
promptly shall provide a copy
of same to
 
such Lender, (y)
 
to the extent
 
that Agent is
 
entitled, under any
 
provision of the
 
Loan
Documents, to request additional
 
reports or information from
 
any Loan Party or
 
its Subsidiaries,
any Lender may,
 
from time to
 
time, reasonably request Agent
 
to exercise such
 
right as specified
in such
 
Lender's notice
 
to Agent,
 
whereupon Agent
 
promptly shall
 
request of
 
Borrowers the
additional reports or
 
information reasonably specified
 
by such Lender,
 
and, upon receipt
 
thereof
from such Loan
 
Party or such
 
Subsidiary, Agent
 
promptly shall provide
 
a copy of
 
same to such
Lender, and (z) any time
 
that Agent renders to
 
Borrowers a statement regarding
 
the Loan Account,
Agent shall send a copy of such statement to each Lender.
 
 
 
 
15.17.
 
Several Obligations; No
 
Liability
.
 
Notwithstanding that certain of
 
the Loan
Documents now or hereafter may have been
 
or will be executed only by or
 
in favor of Agent in its
capacity as such, and
 
not by or in
 
favor of the Lenders,
 
any and all obligations on
 
the part of Agent
(if any) to make any credit available hereunder shall constitute the several (and not joint)
obligations of
 
the respective
 
Lenders on
 
a ratable
 
basis, according
 
to their
 
respective
Commitments, to make
 
an amount of
 
such credit not
 
to exceed, in
 
principal amount, at
 
any one
time outstanding, the
 
amount of their
 
respective Commitments.
 
Nothing contained herein
 
shall
confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect of,
the business, assets, profits, losses, or liabilities of any other Lender.
 
Each Lender shall be solely
responsible for
 
notifying its
 
Participants of
 
any matters
 
relating to
 
the Loan
 
Documents to
 
the
extent any such notice may be required, and
 
no Lender shall have any obligation, duty, or liability
to any Participant
 
of any
 
other Lender.
 
Except as
 
provided in
 
Section 15.7,
 
no member
 
of the
Lender Group shall have any liability for
 
the acts of any other member
 
of the Lender Group.
 
No
Lender shall
 
be responsible
 
to any
 
Borrower or
 
any other
 
Person for
 
any failure
 
by any
 
other
Lender (or Bank Product Provider)
 
to fulfill its obligations
 
to make credit available hereunder, nor
to advance for
 
such Lender (or
 
Bank Product Provider)
 
or on its behalf,
 
nor to take
 
any other action
on behalf of
 
such Lender (or
 
Bank Product Provider)
 
hereunder or in
 
connection with the
 
financing
contemplated herein.
15.18.
 
Lead Arranger,
 
and Book
 
Runner
.
 
Each of
 
the Lead
 
Arranger and
 
Book
Runner, in such capacities,
 
shall not have any right, power,
 
obligation, liability,
 
responsibility, or
duty under this Agreement
 
other than those applicable
 
to it in its
 
capacity as a Lender,
 
as Agent,
as Swing Lender, or as Issuing Bank.
 
Without limiting the generality of the foregoing,
 
each of the
J Lead Arranger
 
and Book Runner,
 
in such capacities,
 
shall not have
 
or be deemed
 
to have any
fiduciary relationship with
 
any Lender or
 
any Loan Party.
 
Each Lender,
 
Agent, Swing Lender,
Issuing Bank, and
 
each Loan Party
 
acknowledges that it
 
has not relied,
 
and will not
 
rely, on
 
the
Lead Arranger and Book
 
Runner in deciding to
 
enter into this Agreement
 
or in taking or
 
not taking
action hereunder.
 
Each of the
 
Lead Arranger and
 
Book Runner, in such
 
capacities, shall be
 
entitled
to resign at any time by giving notice to Agent and Borrowers.
15.19.
 
Appointment for the Province of Quebec
.
(a)
 
Hypothecary Representative
.
 
For greater certainty,
 
and without limiting
the powers of Agent, each Lender and each Bank Product Provider hereby irrevocably constitutes
Agent as the hypothecary representative
 
within the meaning of
 
Article 2692 of the CCQ
 
in order
to hold hypothecs and security granted by any Loan
 
Party on property pursuant to the laws of the
Province of Québec in
 
order to secure obligations
 
of any Loan Party
 
hereunder and under the
 
other
Loan Documents.
 
The execution
 
by Agent,
 
acting as
 
hypothecary representative
 
prior to
 
this
Agreement of any deeds
 
of hypothec or other
 
security documents is hereby
 
ratified and confirmed.
(b)
 
Ratification of Hypothecary
 
Representative by
 
Successors and
Assignees, Etc.
 
The constitution of Agent as hypothecary representative shall be deemed to have
been ratified and
 
confirmed by each
 
Person accepting an
 
assignment of, a
 
participation in or
 
an
arrangement in respect of,
 
all or any portion
 
of the rights and
 
obligations of any Lender
 
or Bank
Product Provider
 
under this
 
Agreement by the
 
execution of
 
an assignment
 
(or other
 
agreement
pursuant to which
 
it becomes such
 
assignee or participant)
 
and by each
 
successor Agent by
 
the
 
 
 
 
 
 
 
 
compliance with
 
such formalities
 
pursuant to
 
which it
 
becomes a
 
successor Agent
 
under this
Agreement.
(c)
 
Rights, Etc. of
 
Hypothecary Representative.
 
Agent acting as
hypothecary representative
 
shall have
 
the same
 
rights, powers,
 
immunities, indemnities
 
and
exclusions from liability as are prescribed in favor of Agent in
 
this Agreement, which shall apply
mutatis mutandis to Agent acting as hypothecary
 
representative.
 
In the event of the resignation
 
of
Agent (which shall
 
include its
 
resignation as the
 
hypothecary representative as
 
contemplated in
Section
 
and appointment
 
of a
 
successor Agent
 
under this
 
Agreement, such
 
successor
Agent shall also act as the hypothecary representative, as contemplated by Section 15.19.1.
16.
 
WITHHOLDING TAXES.
16.1.
 
Payments
.
 
All payments made by any Loan
 
Party under any Loan Document
will be made
 
free and clear
 
of, and without
 
deduction or withholding
 
for, any
 
Taxes, except
 
as
otherwise required by applicable
 
law, and
 
in the event
 
any deduction or
 
withholding of Taxes
 
is
required, the applicable Loan Party shall
 
make the requisite withholding, promptly pay
 
over to the
applicable Governmental Authority the withheld
 
tax, and furnish to Agent as
 
promptly as possible
after the date
 
the payment of
 
any such Tax
 
is due pursuant
 
to applicable law,
 
certified copies of
tax receipts evidencing
 
such payment by
 
the Loan
 
Parties.
 
Furthermore, if any
 
such Tax
 
is an
Indemnified Taxes
 
or an Indemnified
 
Tax is
 
so levied or imposed,
 
the Loan Parties agree
 
to pay
the full amount
 
of such Indemnified
 
Taxes and
 
such additional amounts
 
as may be
 
necessary so
that every
 
payment of
 
all amounts
 
due under
 
this Agreement,
 
any note,
 
or Loan
 
Document,
including any amount paid
 
pursuant to this Section
 
16.1 after withholding or
 
deduction for or on
account of any Indemnified
 
Taxes, will not be less than the
 
amount provided for herein.
 
The Loan
Parties will promptly pay any Other Taxes or reimburse Agent for such Other
 
Taxes upon Agent's
demand.
 
The Loan
 
Parties shall
 
jointly and
 
severally indemnify
 
each Indemnified
 
Person (as
defined in
 
Section 10.3)
 
(collectively a
 
"Tax Indemnitee")
 
for the
 
full amount
 
of Indemnified
Taxes arising
 
in connection with
 
this Agreement or
 
any other Loan
 
Document or breach
 
thereof
by any Loan
 
Party (including any
 
Indemnified Taxes
 
imposed or asserted
 
on, or attributable
 
to,
amounts payable
 
under this
 
Section 16)
 
imposed on,
 
or paid
 
by, such
 
Tax
 
Indemnitee and
 
all
reasonable costs and expenses related
 
thereto (including fees and disbursements
 
of attorneys and
other tax professionals), as and when they
 
are incurred and irrespective of whether suit
 
is brought,
whether or
 
not such
 
Indemnified Taxes
 
were correctly
 
or legally
 
imposed or
 
asserted by
 
the
relevant Governmental
 
Authority (other
 
than Indemnified
 
Taxes and
 
additional amounts
 
that a
court of competent
 
jurisdiction finally determines
 
to have resulted
 
from the gross
 
negligence or
willful misconduct of
 
such Tax Indemnitee).
 
The obligations of
 
the Loan Parties
 
under this Section
16 shall survive the termination of this Agreement, the resignation and
 
replacement of the Agent,
and the repayment of the Obligations.
16.2.
 
Exemptions
.
(a)
 
If a Lender
 
or Participant is
 
entitled to claim
 
an exemption or
 
reduction from
United States withholding
 
tax, such Lender
 
or Participant
 
agrees with and
 
in favor of
 
Agent, to
deliver to Agent (or, in the case of a Participant,
 
to the Lender granting the participation only)
 
and
the Administrative Borrower on behalf of
 
all Borrowers one of the following
 
before receiving its
first payment under this Agreement:
 
 
 
(i)
 
if such Lender or Participant is entitled to claim an exemption from
United States withholding tax
 
pursuant to the
 
portfolio interest exception,
 
(A) a statement of
 
the
Lender or Participant, signed under penalty of
 
perjury, that
 
it is not a (I) a
 
"bank" as described in
Section 881(c)(3)(A) of the IRC,
 
(II) a 10% shareholder of
 
any Borrower (within the meaning
 
of
Section 871(h)(3)(B) of
 
the IRC), or
 
(III) a
 
controlled foreign corporation
 
related to Borrowers
within the meaning of
 
Section 864(d)(4) of
 
the IRC, and
 
(B) a properly completed
 
and executed
IRS Form W-8BEN, Form W-8BEN-E or
 
Form W-8IMY (with proper attachments
 
as applicable);
(ii)
 
if such Lender or Participant is
 
entitled to claim an exemption from,
or a
 
reduction of,
 
withholding tax
 
under a
 
United States
 
tax treaty,
 
a properly
 
completed and
executed copy of IRS Form W-8BEN or Form W-8BEN-E,
 
as applicable;
(iii)
 
if such
 
Lender or Participant
 
is entitled
 
to claim
 
that interest
 
paid
under this
 
Agreement is
 
exempt from
 
United States
 
withholding tax
 
because it
 
is effectively
connected with
 
a United
 
States trade
 
or business
 
of such
 
Lender, a
 
properly completed
 
and
executed copy of IRS Form W-8ECI;
(iv)
 
if such
 
Lender or Participant
 
is entitled
 
to claim
 
that interest
 
paid
under this
 
Agreement is
 
exempt from
 
United States
 
withholding tax
 
because such
 
Lender or
Participant serves as
 
an intermediary,
 
a properly completed
 
and executed copy
 
of IRS Form
 
W-
8IMY (including a withholding statement and copies of the tax certification documentation for its
beneficial owner(s) of the income
 
paid to the intermediary, if required based on
 
its status provided
on the Form W-8IMY); or
(v)
 
a properly completed and
 
executed copy of any
 
other form or forms,
including IRS Form W-9,
 
as may be required under the IRC
 
or other laws of the United States
 
as
a condition to exemption from, or reduction of, United
 
States withholding or backup withholding
tax.
(b)
 
Each Lender or
 
Participant shall
 
provide new forms
 
(or successor forms)
upon the
 
expiration or
 
obsolescence of
 
any previously
 
delivered forms
 
and to
 
promptly notify
Agent and Administrative
 
Borrower (or,
 
in the case
 
of a Participant,
 
to the Lender
 
granting the
participation only)
 
of any
 
change in
 
circumstances which
 
would modify
 
or render
 
invalid any
claimed exemption or reduction.
(c)
 
If a Lender
 
or Participant
 
claims an exemption
 
from withholding tax
 
in a
jurisdiction other than the United States, such Lender or such Participant agrees with and in favor
of Agent and
 
Borrowers, to deliver
 
to Agent
 
and Administrative
 
Borrower (or,
 
in the
 
case of a
Participant, to
 
the Lender
 
granting the
 
participation only)
 
any such
 
form or
 
forms, as
 
may be
required under the
 
laws of
 
such jurisdiction
 
as a condition
 
to exemption
 
from, or
 
reduction of,
foreign withholding
 
or backup
 
withholding tax
 
before receiving
 
its first
 
payment under
 
this
Agreement, but only if such Lender
 
or such Participant is legally
 
able to deliver such forms, or
 
the
providing of or delivery
 
of such forms in
 
the Lender's reasonable judgment
 
would not subject such
Lender to any material
 
unreimbursed cost or expense
 
or materially prejudice the legal
 
or
commercial position
 
of such
 
Lender (or
 
its Affiliates);
 
provided, further,
 
that nothing
 
in this
Section 16.2(c) shall
 
require a Lender or
 
Participant to disclose
 
any information that
 
it deems to
be confidential (including
 
its tax
 
returns).
 
Each Lender and
 
each Participant shall
 
provide new
 
 
 
 
 
 
 
 
 
forms (or successor forms) upon the expiration or
 
obsolescence of any previously delivered forms
and promptly notify
 
Agent and Administrative
 
Borrower (or,
 
in the case
 
of a Participant,
 
to the
Lender granting the
 
participation only) of
 
any change in
 
circumstances which would
 
modify or
render invalid any claimed exemption or reduction.
(d)
 
If a
 
Lender or
 
Participant claims
 
exemption from,
 
or reduction
 
of,
withholding tax and
 
such Lender or
 
Participant sells, assigns,
 
grants a participation
 
in, or otherwise
transfers all or part of the Obligations of Borrowers to such Lender or Participant, such Lender or
Participant agrees
 
to notify
 
Agent and
 
Administrative Borrower
 
(or, in
 
the case
 
of a
 
sale of
 
a
participation interest, to
 
the Lender granting
 
the participation only)
 
of the percentage
 
amount in
which it
 
is no
 
longer the
 
beneficial owner
 
of Obligations
 
of Borrowers
 
to such
 
Lender or
Participant.
 
To the
 
extent of such
 
percentage amount, Agent
 
and Administrative Borrower
 
will
treat such Lender's
 
or such
 
Participant's documentation
 
provided pursuant
 
to Section
 
16.2(a) or
16.2(c) as no longer valid.
 
With respect to such percentage amount, such Participant or
 
Assignee
may provide new documentation, pursuant to Section 16.2(a) or 16.2(c), if
 
applicable.
 
Borrowers
agree that each
 
Participant shall
 
be entitled to
 
the benefits of
 
this Section
 
16 with respect
 
to its
participation in any portion
 
of the Commitments
 
and the Obligations
 
so long as
 
such Participant
complies with the obligations set forth in this Section 16 with respect thereto.
(e)
 
If a payment made to a
 
Lender under any Loan Document would
 
be subject
to U.S. federal withholding
 
tax imposed by FATCA
 
if such Lender were
 
to fail to comply with
 
the
applicable due
 
diligence and
 
reporting requirements
 
of FATCA
 
(including those
 
contained in
Section 1471(b) or 1472(b)
 
of the IRC, as
 
applicable), such Lender shall
 
deliver to Agent (or,
 
in
the case
 
of a
 
Participant, to
 
the Lender
 
granting the
 
participation only)
 
at the
 
time or
 
times
prescribed by law
 
and at such
 
time or times
 
reasonably requested by
 
Agent (or,
 
in the case
 
of a
Participant, the
 
Lender granting the
 
participation) such
 
documentation prescribed by
 
applicable
law (including as prescribed
 
by Section 1471(b)(3)(C)(i)
 
of the IRC)
 
and such additional
documentation reasonably requested by
 
Agent (or, in the case of
 
a Participant, the Lender
 
granting
the participation) as
 
may be necessary
 
for Agent or
 
Borrowers to comply
 
with their obligations
under FATCA
 
and to
 
determine that
 
such Lender
 
has complied
 
with such
 
Lender's obligations
under FATCA
 
or to determine the amount to deduct and withhold from such payment.
 
Solely for
purposes of this
 
clause (e), "FATCA"
 
shall include
 
any amendments made
 
to FATCA
 
after the
date of this Agreement.
16.3.
 
Reductions
.
(a)
 
If a
 
Lender or
 
a Participant
 
is subject
 
to an
 
applicable withholding
 
tax,
Agent (or, in
 
the case of a
 
Participant, the Lender
 
granting the participation) may
 
withhold from
any payment to
 
such Lender or
 
such Participant
 
an amount equivalent
 
to the applicable
withholding tax.
 
If the forms
 
or other documentation
 
required by Section
 
16.2(a) or 16.2(c)
 
are
not delivered to
 
Agent (or, in
 
the case of
 
a Participant, to
 
the Lender granting
 
the participation),
then Agent (or, in the case of a Participant, to the
 
Lender granting the participation) may withhold
from any payment to
 
such Lender or such
 
Participant not providing
 
such forms or other
documentation an amount equivalent to the applicable withholding tax.
(b)
 
If the IRS
 
or any other
 
Governmental Authority of
 
the United States
 
or other
jurisdiction asserts a claim
 
that Agent (or,
 
in the case of
 
a Participant, to the
 
Lender granting the
 
 
 
 
 
 
 
 
 
participation) did not properly withhold
 
tax from amounts paid to
 
or for the account
 
of any Lender
or any
 
Participant due
 
to a
 
failure on
 
the part
 
of the
 
Lender or
 
any Participant
 
(because the
appropriate form was not
 
delivered, was not properly
 
executed, or because such
 
Lender failed to
notify Agent (or such
 
Participant failed to notify
 
the Lender granting the
 
participation) of a change
in circumstances which rendered the
 
exemption from, or reduction of,
 
withholding tax ineffective,
or for any other reason) such Lender
 
shall indemnify and hold Agent harmless (or, in the case of
 
a
Participant, such
 
Participant shall
 
indemnify and
 
hold the
 
Lender granting
 
the participation
harmless) for all amounts paid, directly or indirectly,
 
by Agent (or, in the
 
case of a Participant, to
the Lender granting
 
the participation),
 
as tax
 
or otherwise, including
 
penalties and interest,
 
and
including any taxes imposed by any jurisdiction
 
on the amounts payable to Agent (or,
 
in the case
of a Participant, to the Lender granting the
 
participation only) under this Section 16, together with
all costs and expenses (including
 
attorneys' fees and expenses).
 
The obligation of the Lenders
 
and
the Participants under this subsection shall survive the payment of all Obligations and the
resignation or replacement of Agent.
16.4.
 
Refunds
.
 
If Agent or a Lender determines, in its
 
sole discretion acting in good
faith, that it has
 
received a refund of any
 
Indemnified Taxes
 
to which the Loan Parties
 
have paid
additional amounts
 
pursuant to
 
this Section
 
16, so
 
long as
 
no Default
 
or Event
 
of Default
 
has
occurred and is continuing, it
 
shall pay over such refund
 
to the Administrative Borrower on
 
behalf
of the Loan Parties
 
(but only to
 
the extent of payments
 
made, or additional amounts
 
paid, by the
Loan Parties under this Section
 
16 with respect to Indemnified
 
Taxes giving rise to such a refund),
net of
 
all out-of-pocket
 
expenses of
 
Agent or
 
such Lender
 
and without
 
interest (other
 
than any
interest paid by the
 
applicable Governmental Authority with
 
respect to such a
 
refund); provided,
that the Loan Parties, upon
 
the request of Agent or
 
such Lender, agrees to
 
repay the amount paid
over to the Loan
 
Parties (plus any penalties,
 
interest or other charges,
 
imposed by the applicable
Governmental Authority, other than such penalties, interest
 
or other charges imposed as
 
a result of
the willful misconduct or gross negligence of Agent or
 
Lender hereunder as finally determined by
a court of
 
competent jurisdiction) to
 
Agent or such
 
Lender in the
 
event Agent or
 
such Lender is
required to repay such refund to such Governmental Authority.
 
Notwithstanding anything in this
Agreement to the contrary,
 
this Section 16 shall not
 
be construed to require Agent
 
or any Lender
to make available
 
its tax returns
 
(or any other
 
information which it
 
deems confidential) to
 
Loan
Parties or any other Person or require Agent or any Lender to pay any amount to an indemnifying
party pursuant to Section 16.4, the payment of
 
which would place Agent or such Lender
 
(or their
Affiliates) in a
 
less favorable net
 
after-Tax
 
position than such
 
Person would have
 
been in if
 
the
Tax subject
 
to indemnification and giving rise to
 
such refund had not been deducted,
 
withheld or
otherwise imposed and the
 
indemnification payments or additional
 
amounts with respect to
 
such
Tax had never been paid.
17.
 
GENERAL PROVISIONS.
17.1.
 
Effectiveness
.
 
This Agreement shall
 
be binding and
 
deemed effective
 
when
executed by
 
each Borrower,
 
Agent, and
 
each Lender
 
whose signature
 
is provided
 
for on
 
the
signature pages hereof.
17.2.
 
Section Headings
.
 
Headings and
 
numbers have
 
been set
 
forth herein
 
for
convenience only.
 
Unless the contrary is compelled by the context,
 
everything contained in each
Section applies equally to this entire Agreement.
 
 
 
 
17.3.
 
Interpretation
.
 
Neither this
 
Agreement nor
 
any uncertainty
 
or ambiguity
herein shall be
 
construed against the
 
Lender Group or
 
any Borrower,
 
whether under any
 
rule of
construction or otherwise.
 
On the contrary,
 
this Agreement has been reviewed
 
by all parties and
shall be construed
 
and interpreted according
 
to the ordinary
 
meaning of the
 
words used so
 
as to
accomplish fairly the purposes and intentions of all parties hereto.
17.4.
 
Severability of Provisions
.
 
Each provision of
 
this Agreement shall
 
be
severable from every other
 
provision of this
 
Agreement for the
 
purpose of determining
 
the legal
enforceability of any specific provision.
17.5.
 
Bank Product Providers
.
 
Each Bank Product Provider in its capacity as such
shall be deemed
 
a third party
 
beneficiary hereof and
 
of the provisions
 
of the other
 
Loan Documents
for purposes of any reference in a
 
Loan Document to the parties for whom Agent
 
is acting.
 
Agent
hereby agrees to
 
act as agent
 
for such Bank
 
Product Providers
 
and, by virtue
 
of entering into
 
a
Bank Product Agreement, the applicable Bank Product Provider shall be automatically deemed to
have appointed Agent as its agent and to have accepted the benefits of the Loan Documents.
 
It is
understood and agreed that the rights and benefits
 
of each Bank Product Provider under the Loan
Documents consist exclusively of
 
such Bank Product
 
Provider's being a beneficiary
 
of the Liens
and security interests
 
(and, if applicable,
 
guarantees) granted to
 
Agent and
 
the right to
 
share in
payments and collections
 
out of the
 
Collateral as more
 
fully set forth
 
herein. In addition,
 
each Bank
Product Provider,
 
by virtue
 
of entering
 
into a
 
Bank Product
 
Agreement, shall
 
be automatically
deemed to have agreed
 
that Agent shall
 
have the right, but
 
shall have no obligation,
 
to establish,
maintain, relax, or release reserves in respect of the Bank Product Obligations and that if reserves
are established
 
there is
 
no obligation
 
on the
 
part of
 
Agent to
 
determine or
 
insure whether
 
the
amount of
 
any such
 
reserve is
 
appropriate or
 
not.
 
In connection with
 
any such
 
distribution of
payments or proceeds
 
of Collateral, Agent shall
 
be entitled to assume
 
no amounts are due
 
or owing
to any Bank Product
 
Provider unless such Bank
 
Product Provider has provided
 
a written
certification (setting forth
 
a reasonably detailed
 
calculation) to Agent
 
as to the
 
amounts that are
due and owing to it and
 
such written certification is received by
 
Agent a reasonable period of time
prior to the
 
making of such
 
distribution.
 
Agent shall have
 
no obligation to
 
calculate the amount
due and payable with respect to any Bank Products, but may rely upon the written certification of
the amount
 
due and
 
payable from
 
the applicable
 
Bank Product
 
Provider.
 
In the absence
 
of an
updated certification,
 
Agent shall
 
be entitled
 
to assume that
 
the amount
 
due and payable
 
to the
applicable Bank
 
Product Provider
 
is the
 
amount last
 
certified to
 
Agent by
 
such Bank
 
Product
Provider as being due and payable (
less
 
any distributions made to such Bank Product Provider on
account thereof).
 
Borrowers may obtain
 
Bank Products from
 
any Bank Product Provider,
 
although
Borrowers are
 
not required
 
to do
 
so.
 
Each Borrower
 
acknowledges and
 
agrees that
 
no Bank
Product Provider
 
has committed
 
to provide
 
any Bank
 
Products and
 
that the
 
providing of
 
Bank
Products by any Bank
 
Product Provider is in the
 
sole and absolute discretion
 
of such Bank Product
Provider.
 
Notwithstanding anything to the contrary in
 
this Agreement or any other Loan
Document, no provider
 
or holder of
 
any Bank Product
 
shall have any
 
voting or approval
 
rights
hereunder (or be deemed a Lender)
 
solely by virtue of its
 
status as the provider or
 
holder of such
agreements or
 
products or
 
the Obligations
 
owing thereunder,
 
nor shall
 
the consent
 
of any
 
such
provider or holder be required
 
(other than in their capacities
 
as Lenders, to the extent
 
applicable)
for any matter
 
hereunder or under
 
any of the
 
other Loan Documents,
 
including as to
 
any matter
relating to the Collateral or the release of Collateral or Guarantors.
 
 
 
 
 
17.6.
 
Debtor-Creditor Relationship
.
 
The relationship
 
between the
 
Lenders and
Agent, on
 
the one
 
hand, and
 
the Loan
 
Parties, on
 
the other
 
hand, is
 
solely that
 
of creditor
 
and
debtor.
 
No member
 
of the
 
Lender Group
 
has (or
 
shall be
 
deemed to
 
have) any
 
fiduciary
relationship or duty to any Loan Party
 
arising out of or in connection with the
 
Loan Documents or
the transactions contemplated
 
thereby, and there is no
 
agency or joint
 
venture relationship between
the members of
 
the Lender Group,
 
on the one
 
hand, and the
 
Loan Parties, on
 
the other hand,
 
by
virtue of any Loan Document or any transaction contemplated therein.
17.7.
 
Counterparts; Electronic
 
Execution
.
 
This Agreement
 
may be
 
executed in
any number of counterparts and
 
by different parties on separate
 
counterparts, each of which, when
executed and delivered, shall be deemed to be
 
an original, and all of which,
 
when taken together,
shall constitute
 
but one
 
and the
 
same Agreement.
 
Delivery of
 
an executed
 
counterpart of
 
this
Agreement by telefacsimile
 
or other electronic
 
method of transmission
 
shall be equally
 
as effective
as delivery
 
of an
 
original executed
 
counterpart of
 
this Agreement.
 
Any party
 
delivering an
executed counterpart of
 
this Agreement by
 
telefacsimile or other
 
electronic method of
 
transmission
also shall deliver an
 
original executed counterpart of
 
this Agreement but the
 
failure to deliver an
original executed counterpart shall not affect
 
the validity, enforceability,
 
and binding effect of this
Agreement.
 
The foregoing shall apply to each other Loan Document mutatis mutandis.
17.8.
 
Revival and Reinstatement of Obligations; Certain Waivers
.
(a)
 
If any member of the
 
Lender Group or any Bank
 
Product Provider repays,
refunds, restores, or returns in whole or in part,
 
any payment or property (including any proceeds
of Collateral) previously
 
paid or transferred
 
to such member
 
of the Lender
 
Group or such
 
Bank
Product Provider
 
in full
 
or partial
 
satisfaction of
 
any Obligation
 
or on
 
account of
 
any other
obligation of any Loan Party
 
under any Loan Document or any
 
Bank Product Agreement, because
the payment, transfer, or
 
the incurrence of the obligation so
 
satisfied is asserted or declared
 
to be
void, voidable,
 
or otherwise
 
recoverable under
 
any law
 
relating to
 
creditors' rights,
 
including
provisions of
 
the Bankruptcy
 
Code or
 
other Insolvency
 
Laws relating
 
to fraudulent
 
transfers,
preferences, or other
 
voidable or recoverable
 
obligations or transfers
 
(each, a "Voidable
Transfer"), or because such member of the
 
Lender Group or Bank Product
 
Provider elects to do so
on the reasonable
 
advice of its
 
counsel in connection
 
with a claim
 
that the payment,
 
transfer, or
incurrence is or may
 
be a Voidable Transfer,
 
then, as to any
 
such Voidable
 
Transfer, or the amount
thereof that such member of
 
the Lender Group or Bank
 
Product Provider elects to repay,
 
restore,
or return
 
(including pursuant
 
to a
 
settlement of
 
any claim
 
in respect
 
thereof), and
 
as to
 
all
reasonable costs,
 
expenses, and
 
attorneys' fees
 
of such
 
member of
 
the Lender
 
Group or
 
Bank
Product Provider related thereto, (i) the liability of the Loan Parties with
 
respect to the amount or
property paid,
 
refunded, restored,
 
or returned
 
will automatically
 
and immediately
 
be revived,
reinstated, and
 
restored and
 
will exist,
 
and (ii)
 
Agent's Liens
 
securing such
 
liability shall
 
be
effective, revived, and
 
remain in full
 
force and effect,
 
in each case,
 
as fully as
 
if such Voidable
Transfer had never been made.
 
If, prior to any
 
of the foregoing, (A) Agent's
 
Liens shall have been
released or
 
terminated, or
 
(B) any
 
provision of
 
this Agreement
 
shall have
 
been terminated
 
or
cancelled, Agent's Liens, or such provision of this Agreement, shall be reinstated in full force and
effect and
 
such prior
 
release, termination,
 
cancellation or
 
surrender shall
 
not diminish,
 
release,
discharge, impair or otherwise
 
affect the obligation
 
of any Loan Party in
 
respect of such liability
or any
 
Collateral securing
 
such liability.
 
This provision
 
shall survive
 
the termination
 
of this
Agreement and the repayment in full of the Obligations.
 
 
 
 
 
 
 
 
 
 
 
 
17.9.
 
Confidentiality
.
(a)
 
Agent and Lenders
 
each individually (and
 
not jointly or
 
jointly and
severally) agree that material, non-public information
 
regarding the Loan Parties and their
Subsidiaries, their operations, assets, and existing and
 
contemplated business plans ("Confidential
Information") shall be treated by Agent and the
 
Lenders in a confidential manner, and shall not be
disclosed by Agent and the Lenders to Persons who
 
are not parties to this Agreement, except:
 
(i)
to attorneys for
 
and other advisors,
 
accountants, auditors, and
 
consultants to any
 
member of the
Lender Group and to
 
employees, directors and officers
 
of any member of
 
the Lender Group (the
Persons in this clause (i), "Lender Group Representatives")
 
on a "need to know" basis in
connection with this
 
Agreement and the
 
transactions contemplated hereby
 
and on a
 
confidential
basis, (ii) to Subsidiaries
 
and Affiliates of any
 
member of the Lender
 
Group (including the Bank
Product Providers); provided,
 
that any such
 
Subsidiary or Affiliate
 
shall have agreed
 
to receive
such information hereunder
 
subject to the
 
terms of this
 
Section 17.9, (iii)
 
as may be
 
required by
regulatory authorities so
 
long as such
 
authorities are informed
 
of the confidential
 
nature of such
information, (iv) as may be required
 
by statute, decision, or judicial
 
or administrative order, rule,
or regulation; provided, that (x) prior to any disclosure under this
 
clause (iv), the disclosing party
agrees to provide Borrowers
 
with prior notice thereof,
 
to the extent
 
that it is practicable
 
to do so
and to the
 
extent that the
 
disclosing party is permitted
 
to provide such
 
prior notice to
 
Borrowers
pursuant to the
 
terms of the
 
applicable statute, decision,
 
or judicial or
 
administrative order, rule,
or regulation and
 
(y) any disclosure
 
under this
 
clause (iv) shall
 
be limited to
 
the portion
 
of the
Confidential Information as may
 
be required by
 
such statute, decision, or
 
judicial or administrative
order, rule,
 
or regulation,
 
(v) as
 
may be
 
agreed to
 
in advance
 
in writing
 
by Borrowers,
 
(vi) as
requested or
 
required by
 
any Governmental
 
Authority pursuant
 
to any
 
subpoena or
 
other legal
process; provided, that (x) prior to
 
any disclosure under this clause (vi)
 
the disclosing party agrees
to provide Borrowers with prior
 
written notice thereof, to the
 
extent that it is
 
practicable to do so
and to
 
the extent
 
that the
 
disclosing party
 
is permitted
 
to provide
 
such prior
 
written notice
 
to
Borrowers pursuant
 
to the
 
terms of
 
the subpoena
 
or other
 
legal process
 
and (y)
 
any disclosure
under this
 
clause (vi)
 
shall be
 
limited to
 
the portion
 
of the
 
Confidential Information
 
as may
 
be
required by such Governmental Authority
 
pursuant to such subpoena
 
or other legal process, (vii)
as to any
 
such information
 
that is
 
or becomes
 
generally available to
 
the public
 
(other than as
 
a
result of
 
prohibited disclosure
 
by Agent
 
or the
 
Lenders or
 
the Lender
 
Group Representatives),
(viii) in connection
 
with any assignment, participation
 
or pledge of any
 
Lender's interest under this
Agreement; provided, that
 
prior to receipt
 
of Confidential Information
 
any such assignee,
participant, or pledgee shall
 
have agreed in writing
 
to receive such Confidential
 
Information either
subject to the terms
 
of this Section
 
17.9 or pursuant to
 
confidentiality requirements substantially
similar to those
 
contained in this
 
Section 17.9 (and
 
such Person may
 
disclose such Confidential
Information to
 
Persons employed
 
or engaged
 
by them
 
as described
 
in clause
 
(i) above),
 
(ix) in
connection with any litigation or
 
other adversary proceeding involving parties
 
hereto which such
litigation or adversary
 
proceeding involves
 
claims related
 
to the
 
rights or
 
duties of such
 
parties
under this Agreement or the
 
other Loan Documents; provided, that
 
prior to any disclosure to
 
any
Person (other than any
 
Loan Party,
 
Agent, any Lender,
 
any of their respective
 
Affiliates, or their
respective counsel)
 
under this
 
clause (ix)
 
with respect to
 
litigation involving
 
any Person
 
(other
than any
 
Borrower, Agent,
 
any Lender,
 
any of
 
their respective
 
Affiliates, or
 
their respective
counsel), the disclosing
 
party agrees to
 
provide Borrowers with
 
prior written notice
 
thereof, and
(x) in
 
connection with,
 
and to
 
the extent
 
reasonably necessary
 
for, the
 
exercise of
 
any secured
creditor remedy under this Agreement or under any other Loan Document.
 
 
 
 
(b)
 
Anything in
 
this Agreement
 
to the
 
contrary notwithstanding,
 
Agent may
disclose information concerning
 
the terms and
 
conditions of this
 
Agreement and the
 
other Loan
Documents to loan
 
syndication and pricing reporting
 
services or in
 
its marketing or promotional
materials, with such information to consist of deal terms and other information customarily found
in such publications
 
or marketing or
 
promotional materials and
 
may otherwise use
 
the name, logos,
and other
 
insignia of
 
any Borrower
 
or the
 
other Loan
 
Parties and
 
the Commitments
 
provided
hereunder in
 
any "tombstone"
 
or other
 
advertisements, on
 
its website
 
or in
 
other marketing
materials of the Agent.
(c)
 
Each Loan
 
Party agrees
 
that Agent
 
may make
 
materials or
 
information
provided by or on
 
behalf of Borrowers hereunder (collectively, "Borrower Materials")
 
available to
the Lenders by
 
posting the
 
Communications on
 
IntraLinks, SyndTrak
 
or a
 
substantially similar
secure electronic transmission system
 
(the "Platform").
 
The Platform is provided
 
"as is" and "as
available."
 
Agent does not
 
warrant the accuracy
 
or completeness of
 
the Borrower Materials,
 
or
the adequacy
 
of the
 
Platform and
 
expressly disclaim
 
liability for
 
errors or
 
omissions in
 
the
communications.
 
No warranty of any kind, express, implied or statutory,
 
including any warranty
of merchantability,
 
fitness for
 
a particular
 
purpose, non-infringement
 
of third
 
party rights
 
or
freedom from viruses
 
or other code
 
defects, is made
 
by Agent in
 
connection with the
 
Borrower
Materials or the Platform.
 
In no event shall Agent or any of the
 
Agent-Related Persons have any
liability to the
 
Loan Parties, any
 
Lender or any
 
other person for
 
damages of any
 
kind, including
direct or indirect,
 
special, incidental or consequential
 
damages, losses or
 
expenses (whether in tort,
contract or otherwise) arising out of any Loan Party's or Agent's
 
transmission of communications
through the
 
Internet, except
 
to the
 
extent the
 
liability of
 
such person
 
is found
 
in a
 
final non-
appealable judgment by
 
a court of competent
 
jurisdiction to have resulted
 
from such person's gross
negligence or willful misconduct.
 
Each Loan Party further agrees that certain of the Lenders may
be "public-side" Lenders (i.e.,
 
Lenders that do not
 
wish to receive material
 
non-public information
with respect to
 
the Loan Parties
 
or their securities)
 
(each, a "Public
 
Lender").
 
The Loan Parties
shall be
 
deemed to
 
have authorized
 
Agent and
 
its Affiliates
 
and the
 
Lenders to
 
treat Borrower
Materials marked "PUBLIC"
 
or otherwise at
 
any time filed
 
with the SEC
 
as not containing
 
any
material non-public information with respect to the
 
Loan Parties or their securities for
 
purposes of
United States
 
federal and
 
state securities
 
laws.
 
All Borrower
 
Materials marked
 
"PUBLIC" are
permitted to be made available
 
through a portion of
 
the Platform designated as
 
"Public Investor"
(or another similar
 
term).
 
Agent and its
 
Affiliates and the
 
Lenders shall be
 
entitled to treat
 
any
Borrower Materials that are not marked
 
"PUBLIC" or that are not at
 
any time filed with the
 
SEC
as being suitable only for posting on a portion of the Platform not
 
marked as "Public Investor" (or
such other similar term).
17.10.
 
Survival
.
 
All representations and
 
warranties made by
 
the Loan Parties
 
in the
Loan Documents
 
and in
 
the certificates
 
or other
 
instruments delivered
 
in connection
 
with or
pursuant to this
 
Agreement or any other
 
Loan Document shall be
 
considered to have been
 
relied
upon by
 
the other
 
parties hereto
 
and shall
 
survive the
 
execution and
 
delivery of
 
the Loan
Documents and the making of any Loans
 
and issuance of any Letters of Credit,
 
regardless of any
investigation made by
 
any such other
 
party or on
 
its behalf and
 
notwithstanding that Agent, Issuing
Bank, or any
 
Lender may have
 
had notice or
 
knowledge of
 
any Default
 
or Event
 
of Default or
incorrect representation or
 
warranty at the
 
time any credit
 
is extended hereunder,
 
and shall continue
in full force and effect as long as the principal
 
of, or any accrued interest on, any Loan or any fee
 
 
or any other amount
 
payable under this Agreement
 
is outstanding or unpaid
 
or any Letter of
 
Credit
is outstanding and so long as the Commitments have not expired or been terminated.
17.11.
 
Patriot Act; Due Diligence
.
 
(a)
 
Each Lender that
 
is subject
 
to the
 
requirements of
 
the Patriot
 
Act hereby
notifies the Loan
 
Parties that pursuant
 
to the requirements
 
of the Patriot
 
Act, it is
 
required to obtain,
verify and record
 
information that identifies
 
each Loan Party, which
 
information includes the
 
name
and address of each Loan Party and other information that will
 
allow such Lender to identify each
Loan Party in accordance with the Patriot Act.
 
In addition, Agent and each Lender shall have the
right to periodically conduct
 
due diligence on all
 
Loan Parties, their senior
 
management and key
principals and legal and beneficial owners.
 
Each Loan Party agrees to cooperate in respect of the
conduct of such due
 
diligence and further agrees
 
that the reasonable costs
 
and charges for any
 
such
due diligence by Agent shall constitute Lender Group Expenses hereunder and
 
be for the account
of Borrowers.
(b)
 
Each Loan Party acknowledges
 
that, pursuant to the provisions
 
of Canadian
Anti-Money Laundering
 
& Anti-Terrorism
 
Legislation, Agent
 
and Lenders
 
may be
 
required to
obtain, verify and
 
record information regarding
 
each Loan Party,
 
its respective directors,
authorized signing officers, direct
 
or indirect shareholders or
 
other Persons in control
 
of such Loan
Party, and the transactions contemplated hereby.
 
The Loan Parties shall
 
promptly provide all such
information, including
 
supporting documentation
 
and other
 
evidence, as may
 
be reasonably
requested by any Lender or Agent, or any
 
prospective assign or participant of a
 
Lender or Agent,
necessary in
 
order to
 
comply with
 
any applicable
 
Canadian Anti-Money
 
Laundering &
 
Anti-
Terrorism
 
Legislation, whether now
 
or hereafter in
 
existence.
 
If Agent has
 
ascertained the identity
of any Loan Party or
 
any authorized signatories of any
 
Loan Party for the purposes
 
of applicable
Canadian Anti-Money Laundering & Anti-Terrorism
 
Legislation, then the Agent:
(i)
 
shall be deemed
 
to have done
 
so as an
 
agent for each
 
Lender, and
this Agreement shall constitute a "written
 
agreement" in such regard between each
 
Lender and the
Agent within
 
the meaning
 
of applicable
 
Canadian Anti-Money
 
Laundering &
 
Anti-Terrorism
 
Legislation;
(ii)
 
shall provide to
 
each Lender copies
 
of all information
 
obtained in
such regard without any representation or warranty as to its accuracy or completeness.
Notwithstanding the provisions of this Section and except as may
 
otherwise be agreed in writing,
each Lender agrees that
 
Agent has no obligation
 
to ascertain the identity
 
of the Loan Parties
 
or any
authorized signatories of the Loan
 
Parties on behalf of any
 
Lender, or to confirm the completeness
or accuracy of any information
 
it obtains from the Loan
 
Parties or any such
 
authorized signatory
in doing so.
17.12.
 
Integration
.
 
This Agreement, together with the
 
other Loan Documents,
reflects the entire
 
understanding of the
 
parties with respect
 
to the transactions
 
contemplated hereby
and shall not be contradicted or qualified
 
by any other agreement, oral or
 
written, before the date
hereof.
 
The foregoing to the
 
contrary notwithstanding, all Bank
 
Product Agreements, if any,
 
are
independent agreements governed
 
by the
 
written provisions
 
of such Bank
 
Product Agreements,
 
 
 
 
 
which will remain
 
in full force
 
and effect, unaffected by
 
any repayment, prepayments,
 
acceleration,
reduction, increase, or change in
 
the terms of any credit
 
extended hereunder, except
 
as otherwise
expressly provided in such Bank Product Agreement.
17.13.
 
CMT as Agent
 
for Borrowers
.
 
Each Borrower hereby
 
irrevocably appoints
CMT as
 
the borrowing agent
 
and attorney-in
 
-fact for all
 
Borrowers (the
 
"Administrative
Borrower") which appointment
 
shall remain in
 
full force and
 
effect unless and
 
until Agent shall
have received
 
prior written
 
notice signed
 
by each
 
Borrower that
 
such appointment
 
has been
revoked and that another Borrower has been appointed Administrative Borrower.
 
Each Borrower
hereby irrevocably appoints and
 
authorizes the Administrative Borrower
 
(a) to provide Agent
 
with
all notices with
 
respect to Revolving Loans
 
and Letters of
 
Credit obtained for
 
the benefit of
 
any
Borrower and all other notices
 
and instructions under this Agreement
 
and the other Loan
Documents (and any notice or
 
instruction provided by Administrative
 
Borrower shall be deemed
to be
 
given by
 
Borrowers hereunder
 
and shall
 
bind each
 
Borrower), (b)
 
to receive
 
notices and
instructions from members
 
of the Lender
 
Group (and any
 
notice or instruction
 
provided by any
member of the Lender Group to the Administrative Borrower in accordance with the terms
 
hereof
shall be deemed
 
to have been
 
given to each
 
Borrower), (c) to
 
enter into Bank
 
Product Provider
Agreements on
 
behalf of
 
Borrowers and
 
their Subsidiaries,
 
and (d)
 
to take
 
such action
 
as the
Administrative Borrower deems appropriate
 
on its behalf to
 
obtain Revolving Loans
 
and Letters
of Credit and
 
to exercise such
 
other powers as
 
are reasonably incidental
 
thereto to carry
 
out the
purposes of this Agreement.
 
It is understood that the
 
handling of the Loan Account
 
and Collateral
in a
 
combined fashion,
 
as more
 
fully set
 
forth herein,
 
is done
 
solely as
 
an accommodation
 
to
Borrowers in order to
 
utilize the collective
 
borrowing powers of
 
Borrowers in the
 
most efficient
and economical manner and at their request, and that Lender Group shall not incur liability to any
Borrower as a result hereof.
 
Each Borrower expects to derive benefit, directly or indirectly,
 
from
the handling of
 
the Loan Account
 
and the Collateral
 
in a combined
 
fashion since the
 
successful
operation of each
 
Borrower is dependent
 
on the continued
 
successful performance of
 
the integrated
group.
 
To induce the Lender Group
 
to do so, and in consideration thereof, each Borrower hereby
jointly and severally
 
agrees to indemnify
 
each member of
 
the Lender Group
 
and hold each
 
member
of the Lender
 
Group harmless against
 
any and all
 
liability, expense,
 
loss or claim
 
of damage or
injury, made against
 
the Lender Group by any Borrower or by
 
any third party whosoever, arising
from or incurred by reason of (i)
 
the handling of the Loan Account and
 
Collateral of Borrowers as
herein provided,
 
or (ii)
 
the Lender
 
Group's relying
 
on any
 
instructions of
 
the Administrative
Borrower, except
 
that Borrowers
 
will have
 
no liability
 
to the
 
relevant Agent-Related
 
Person or
Lender-Related Person under this Section
 
17.13 with respect to any
 
liability that has been finally
determined by a court of competent jurisdiction to have resulted solely from
 
the gross negligence
or willful misconduct
 
of such Agent-Related
 
Person or
 
Lender-Related Person, as
 
the case may
be.
17.14.
 
Acknowledgement and Consent
 
to Bail
 
-In of
 
EEA Financial Institutions
.
 
Notwithstanding anything
 
to the
 
contrary in
 
any Loan
 
Document or
 
in any
 
other agreement,
arrangement or understanding
 
among any such
 
parties, each party
 
hereto acknowledges that
 
any
liability of any
 
EEA Financial
 
Institution arising under
 
any Loan Document,
 
to the extent
 
such
liability is
 
unsecured, may
 
be subject
 
to the
 
write-down and
 
conversion powers
 
of an
 
EEA
Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
 
(a)
 
the application
 
of any
 
Write-Down and
 
Conversion Powers
 
by an
 
EEA
Resolution Authority to any
 
such liabilities arising hereunder
 
which may be payable
 
to it by any
party hereto that is an EEA Financial Institution; and
(b)
 
the effects of
 
any Bail-in Action
 
on any such
 
liability, including,
 
if
applicable:
(i)
 
a reduction in full or in part or cancellation of any such liability;
(ii)
 
a conversion of all, or
 
a portion of, such liability
 
into shares or other
instruments of
 
ownership in
 
such EEA Financial
 
Institution, its
 
parent undertaking, or
 
a bridge
institution that
 
may be
 
issued to
 
it or
 
otherwise conferred
 
on it,
 
and that
 
such shares
 
or other
instruments of
 
ownership will
 
be accepted
 
by it
 
in lieu
 
of any
 
rights with
 
respect to
 
any such
liability under this Agreement or any other Loan Document; or
(iii)
 
the variation
 
of the
 
terms of
 
such liability
 
in connection
 
with the
exercise of the write-down and conversion powers of any EEA Resolution Authority.
17.15.
 
Acknowledgement Regarding Any Supported QFCs
.
 
To the extent
 
that the
Loan Documents provide support,
 
through a guarantee or
 
otherwise, for Hedge Agreements
 
or any
other agreement or instrument that
 
is a QFC (such support,
 
"QFC Credit Support" and each
 
such
QFC a
 
"Supported QFC"),
 
the parties
 
acknowledge and
 
agree as
 
follows with
 
respect to
 
the
resolution power of
 
the Federal Deposit
 
Insurance Corporation under the
 
Federal Deposit
Insurance Act and
 
Title II of
 
the Xxxx-Xxxxx Xxxx
 
Street Reform and
 
Consumer Protection Act
(together with the regulations promulgated thereunder, the "U.S. Special Resolution Regimes") in
respect of such
 
Supported QFC
 
and QFC Credit
 
Support (with
 
the provisions
 
below applicable
notwithstanding that
 
the Loan
 
Documents and
 
any Supported
 
QFC may
 
in fact
 
be stated
 
to be
governed by the
 
laws of the
 
State of New
 
York
 
and/or of the
 
United States or
 
any other state
 
of
the United
 
States).
 
In the
 
event a
 
Covered Entity
 
that is
 
party to
 
a Supported
 
QFC (each,
 
a
"Covered Party") becomes
 
subject to a
 
proceeding under a
 
U.S. Special Resolution
 
Regime, the
transfer of such Supported QFC and the benefit of such QFC Credit Support (and
 
any interest and
obligation in
 
or under
 
such Supported
 
QFC and
 
such QFC
 
Credit Support,
 
and any
 
rights in
property securing such
 
Supported QFC or such
 
QFC Credit Support) from
 
such Covered Party
 
will
be effective to the same
 
extent as the transfer
 
would be effective under
 
the U.S. Special Resolution
Regime if the Supported
 
QFC and such QFC Credit
 
Support (and any such interest,
 
obligation and
rights in property) were governed by the
 
laws of the United States or
 
a state of the United States.
In the
 
event a
 
Covered Party
 
or a
 
BHC Act
 
Affiliate of
 
a Covered
 
Party becomes
 
subject to
 
a
proceeding under a
 
U.S. Special Resolution
 
Regime, Default Rights
 
under the Loan
 
Documents
that might
 
otherwise apply
 
to such
 
Supported QFC
 
or any
 
QFC Credit
 
Support that
 
may be
exercised against such Covered Party are permitted
 
to be exercised to no greater extent
 
than such
Default Rights could
 
be exercised under
 
the U.S. Special
 
Resolution Regime if
 
the Supported QFC
and the Loan Documents were
 
governed by the laws of
 
the United States or a
 
state of the United
States. Without limitation of the foregoing, it is understood and agreed
 
that rights and remedies of
the parties with respect
 
to a Defaulting Lender
 
shall in no
 
event affect the rights
 
of any Covered
Party with respect to a Supported QFC or any QFC Credit Support.
 
 
 
 
17.16.
 
Judgment Currency
.
 
If, for the purposes of obtaining judgment in any court,
it is necessary to convert
 
a sum due hereunder or
 
any other Loan Document
 
in one currency into
another currency,
 
the rate
 
of exchange
 
used shall
 
be that
 
at which
 
in accordance
 
with normal
banking procedures
 
Agent could
 
purchase the
 
first currency
 
with such
 
other currency
 
on the
Business Day preceding that on which
 
final judgment is given.
 
The obligation of each Borrower
in respect of any such sum due from it to
 
Agent or any Lender hereunder or under the other Loan
Documents shall, notwithstanding
 
any judgment in
 
a currency (the
 
"Judgment Currency") other
than that in which
 
such sum is
 
denominated in accordance with
 
the applicable provisions
 
of this
Agreement (the "Agreement Currency"),
 
be discharged only to the
 
extent that on the
 
Business Day
following receipt by Agent or such Lender, as the case
 
may be, of any sum adjudged to be so due
in the
 
Judgment Currency,
 
Agent or
 
such Lender,
 
as the
 
case may
 
be, may
 
in accordance
 
with
normal banking procedures purchase
 
the Agreement Currency with the
 
Judgment Currency.
 
If the
amount of the Agreement
 
Currency so purchased is
 
less than the sum
 
originally due to
 
Agent or
any Lender from any
 
Borrower in the Agreement
 
Currency, such
 
Borrower agrees, as a
 
separate
obligation and notwithstanding
 
any such judgment,
 
to indemnify Agent
 
or such Lender, as
 
the case
may be, against such loss.
 
If the amount of the Agreement Currency so purchased is greater than
the sum originally due to
 
Agent or any Lender in
 
such currency, Agent or such Lender, as the case
may be, agrees to return
 
the amount of any excess
 
to such Borrower (or to
 
any other Person who
may be entitled thereto under applicable law).
 
[Signature pages to follow.]
 
 
 
[
SIGNATURE PAGE
 
TO CREDIT AGREEMENT
]
IN WITNESS WHEREOF
, the parties
 
hereto have caused this
 
Agreement to be
executed and delivered as of the date first above written.
 
 
BORROWERS:
CORE MOLDING TECHNOLOGIES, INC.
a Delaware corporation
 
By:
 
/s/ Xxxx X.
 
Xxxxxx
 
 
Name: Xxxx X.
 
Xxxxxx
 
Title: Chief Financial Officer
 
 
 
 
 
 
 
[
SIGNATURE PAGE
 
TO CREDIT AGREEMENT
]
 
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
, a national banking association, as
Agent
,
as Lead Arranger, as Book Runner
and as a
Lender
 
 
By:
 
/s/ Xxxxxxx X. Xxxxxx
 
 
Name: Xxxxxxx X.
 
Xxxxxx
 
Its Authorized Signatory
 
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Filed: November 2nd, 2020
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