FINANCING AGREEMENT dated as of March 17, 2023 among DANIMER SCIENTIFIC, INC. as Borrower, THE PERSONS FROM TIME TO TIME PARTY HERETO, as Guarantors, VARIOUS LENDERS FROM TIME TO TIME PARTY HERETO and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as...
Execution Version
Exhibit 10.2
$130,000,000
dated as of March 17, 2023
among
as Borrower,
THE PERSONS FROM TIME TO TIME PARTY HERETO,
as Guarantors,
VARIOUS LENDERS FROM TIME TO TIME PARTY HERETO
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Administrative Agent and Collateral Agent
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION 1
Section 1.1. Definitions 1
Section 1.2. Accounting and Other Terms 49
Section 1.3. Interpretation, etc 50
Section 1.4. Time References 51
ARTICLE II LOANS 51
Section 2.1. Term Loans 51
Section 2.2. Protective Advances 52
Section 2.3. Pro Rata Shares; Availability of Funds 53
Section 2.4. Use of Proceeds 54
Section 2.5. Evidence of Debt; Register; Lenders’ Books and Records; Notes 54
Section 2.6. Interest 55
Section 2.7. Default Interest 55
Section 2.8. Payments Prior to Maturity 55
Section 2.9. Mandatory Prepayments 57
Section 2.10. Application of Prepayments 59
Section 2.11. General Provisions Regarding Payments 59
Section 2.12. Ratable Sharing 62
Section 2.13. Increased Costs; Capital Adequacy 62
Section 2.14. Taxes; Withholding, etc 64
Section 2.15. Obligation to Mitigate 67
Section 2.16. Collateral Accounts 68
ARTICLE III CONDITIONS PRECEDENT 72
Section 3.1. Conditions to Credit Extension on the Closing Date 72
ARTICLE IV REPRESENTATIONS AND WARRANTIES 77
Section 4.1. Organization; Requisite Power and Authority; Qualification 77
Section 4.2. Capital Stock and Ownership 77
Section 4.3. Due Authorization 77
Section 4.4. No Conflict 77
Section 4.5. Governmental Consents 78
Section 4.6. Binding Obligation 78
Section 4.7. Historical Financial Statements 78
Section 4.8. No Material Adverse Effect 78
Section 4.9. Adverse Proceedings, etc 78
Section 4.10. Payment of Taxes 79
Section 4.11. Properties 79
Section 4.12. Environmental Matters 80
Section 4.13. No Defaults 80
Section 4.14. Material Contracts 81
Section 4.15. Investment Company Act 81
Section 4.16. Margin Stock 81
Section 4.17. Employee Matters 81
Section 4.18. Employee Benefit Plans 81
Section 4.19. Certain Fees 82
Section 4.20. Compliance with Organizational Documents and Statutes 82
Section 4.21. Intellectual Property 82
Section 4.22. Equipment 82
Section 4.23. Customers and Suppliers 82
ii
Section 4.24. Insurance 83
Section 4.25. Common Enterprise 83
Section 4.26. Permits, Etc 83
Section 4.27. Bank Accounts and Securities Accounts 83
Section 4.28. Security Interests 83
Section 4.29. Anti-Terrorism Laws, Anti-Corruption Laws and Sanctions 84
Section 4.30. Disclosure 84
Section 4.31. Indebtedness 85
Section 4.32. Use of Proceeds 85
Section 4.33. Solvency 85
ARTICLE V AFFIRMATIVE COVENANTS 85
Section 5.1. Financial Statements and Other Reports 86
Section 5.2. Existence 93
Section 5.3. Payment of Taxes and Claims 93
Section 5.4. Maintenance of Properties 93
Section 5.5. Insurance 94
Section 5.6. Inspections; Books and Records 94
Section 5.7. Private Lenders Meetings and Conference Calls 95
Section 5.8. Compliance with Laws 95
Section 5.9. Environmental 96
Section 5.10. Subsidiaries 96
Section 5.11. Material Real Estate Assets 97
Section 5.12. Location of Equipment 97
Section 5.13. Further Assurances 98
Section 5.14. Miscellaneous Business Covenants 98
iii
Section 5.15. Post-Closing Matters 101
Section 5.16. AON Insurance Policy 101
Section 5.17. [Intentionally omitted] 101
Section 5.18. Changes to Capital Structure 101
Section 5.19. Convertible Notes 101
Section 5.20. Trade Secrets Lockbox Deposit 102
Section 5.21. Existing GARJA Loan Payoff 102
ARTICLE VI NEGATIVE COVENANTS 102
Section 6.1. Indebtedness 103
Section 6.2. Liens 103
Section 6.3. Equitable Lien 103
Section 6.4. No Further Negative Pledges 103
Section 6.5. Restricted Junior Payments 103
Section 6.6. Restrictions on Subsidiary Distributions 105
Section 6.7. Investments 106
Section 6.8. Interest Reserve Account 106
Section 6.9. Fundamental Changes; Disposition of Assets; Acquisitions 106
Section 6.10. Disposal of Subsidiary Interests 108
Section 6.11. Sales and Lease Backs 109
Section 6.12. Transactions with Affiliates 109
Section 6.13. Conduct of Business 110
Section 6.14. Changes to Certain Agreements and Organizational Documents 112
Section 6.15. Accounting Methods 112
Section 6.16. Deposit Accounts and Securities Accounts 112
Section 6.17. Prepayments of Certain Indebtedness; Timely Payment in the Ordinary Course of Business 113
iv
Section 6.18. Anti-Terrorism Laws, Anti-Corruption Laws, Sanctions 113
Section 6.19. Bankruptcy Remote 113
Section 6.20. Unrestricted Subsidiaries 114
Section 6.21. Existing Term Loan Deposit Accounts 115
ARTICLE VII GUARANTY 115
Section 7.1. Guaranty of the Obligations 115
Section 7.2. Contribution by Guarantors 115
Section 7.3. Payment by Guarantors 116
Section 7.4. Liability of Guarantors Absolute 116
Section 7.5. Waivers by Guarantors 118
Section 7.6. Guarantors’ Rights of Subrogation, Contribution, etc 118
Section 7.7. Subordination of Other Obligations 119
Section 7.8. Continuing Guaranty 119
Section 7.9. Authority of Guarantors or Borrower 119
Section 7.10. Financial Condition of Borrower 119
Section 7.11. Bankruptcy, etc 120
Section 7.12. Discharge of Guaranty upon Sale of Guarantor 120
Section 7.13. Limitation 121
ARTICLE VIII EVENTS OF DEFAULT 122
Section 8.1. Events of Default 122
ARTICLE IX AGENTS 126
Section 9.1. Appointment 126
Section 9.2. Nature of Duties; Delegation 127
Section 9.3. Successor Agent 130
Section 9.4. Nonreliance on Agents; Lender Consent 132
v
Section 9.5. Collateral Matters 132
Section 9.6. Administrative Agent May File Proofs of Claim 134
Section 9.7. No Third-Party Beneficiaries 135
Section 9.8. Right to Indemnity 135
Section 9.9. Agency for Perfection 136
Section 9.10. Erroneous Payments 137
Section 9.11. Delivery of Notices to Securitization Trustee 139
ARTICLE X MISCELLANEOUS 140
Section 10.1. Notices 140
Section 10.2. Expenses 141
Section 10.3. Indemnity 142
Section 10.4. Set-Off 143
Section 10.5. Amendments and Waivers 143
Section 10.6. Successors and Assigns; Participations 146
Section 10.7. Independence of Covenants 150
Section 10.8. Survival of Representations, Warranties and Agreements 151
Section 10.9. No Waiver; Remedies Cumulative 151
Section 10.10. Marshalling; Payments Set Aside 151
Section 10.11. Severability 151
Section 10.12. Obligations Several 151
Section 10.13. Headings 152
Section 10.14. APPLICABLE LAW 152
Section 10.15. CONSENT TO JURISDICTION 152
Section 10.16. WAIVER OF JURY TRIAL 153
Section 10.17. Confidentiality 153
vi
Section 10.18. Usury Savings Clause 154
Section 10.19. Counterparts 155
Section 10.20. Effectiveness 155
Section 10.21. PATRIOT Act Notice 155
Section 10.22. Acknowledgement and Consent to Bail-In of EEA Financial Institutions 155
Section 10.23. AON Insurance Policy Refund 156
Section 10.24. Entire Agreement 156
vii
APPENDICES: |
|
A |
Term Loan Commitments |
|
|
|
|
SCHEDULES: |
|
1.1(a) |
Existing Indebtedness |
|
|
1.1(b) |
Permitted Restructuring Transactions |
|
|
4.1 |
Jurisdictions of Organization and Qualification |
|
|
4.2 |
Capital Stock and Ownership |
|
|
4.9 |
Adverse Proceedings |
|
|
4.10 |
Taxes |
|
|
4.11 |
Real Estate Assets |
|
|
4.12 |
Environmental Matters |
|
|
4.13 |
Defaults |
|
|
4.14 |
Material Contracts |
|
|
4.14A |
Material Contract Estoppels |
|
|
4.21 |
Intellectual Property |
|
|
4.22 |
Equipment |
|
|
4.24 |
Insurance |
|
|
4.27 |
Bank Accounts and Securities Accounts |
|
|
5.15 |
Certain Post-Closing Matters |
|
|
5.20 |
Lockbox Deposit Categories |
|
|
6.1 |
Certain Indebtedness |
|
|
6.1A |
Conversion of Certain Indebtedness Into Equity |
|
|
6.2 |
Certain Liens |
|
|
6.7 |
Certain Investments |
|
|
6.9 |
Certain Acquisitions |
|
|
6.11 |
Sales and Lease Backs |
|
|
6.12 |
Certain Affiliate Transactions |
|
|
6.19 |
Co-Owned IP Rights |
|
|
10.1 |
Notice Addresses |
viii
EXHIBITS: |
|
A |
Form of Funding Notice |
|
|
B |
Form of Compliance Certificate |
|
|
C |
Form of Assignment Agreement |
|
|
D |
Form of Certificate Regarding Non-Bank Status |
|
|
E |
Form of Closing Certificate |
|
|
F |
Form of Counterpart Agreement |
|
|
G |
Form of Pledge and Security Agreement |
|
|
H |
[Intentionally omitted] |
|
|
I |
Form of Note |
|
|
J |
Form of Solvency Certificate |
|
|
K |
Form of AON Insurance Policy |
|
|
L |
Form of Intercompany Subordination Agreement |
|
|
M |
Form of AON Valuation Questionnaire |
|
|
N |
[Intentionally omitted] |
|
|
O |
Form of Senior Lien Intercreditor Agreement |
|
|
P |
ABL Intercreditor Agreement Term Sheet |
ix
This FINANCING AGREEMENT dated as of March 17, 2023, is entered into by and among DANIMER SCIENTIFIC, INC., a Delaware corporation (“Borrower”), as borrower, and certain Subsidiaries of Borrower from time to time party hereto (collectively, the “Guarantors” and each, a “Guarantor”), as guarantors, the Lenders from time to time party hereto, and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION and its permitted successors to serve as administrative agent and collateral agent under the Loan Documents (in such capacities, the “Administrative Agent” and the “Collateral Agent”, as applicable, and from time to time referred to herein without differentiation as an “Agent” and, collectively as the “Agents”).
W I T N E S S E T H:
WHEREAS, capitalized terms used in the preamble or these recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, Lenders have agreed to extend a credit facility to Borrower consisting of term loans in the aggregate principal amount of $130,000,000, the proceeds of which will be used as described in Section 2.4 and which will be disbursed in one draw on the Closing Date;
WHEREAS, Xxxxxxxx has agreed to secure all of its Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a Lien on the Collateral owned by Borrower; and
WHEREAS, Guarantors have agreed to guarantee the obligations of Borrower hereunder and to secure their respective Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a Lien on the Collateral owned by Guarantors.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
DEFINITIONS AND INTERPRETATION
Section 1.1.
Definitions. The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:
“ABL Intercreditor Agreement” means an intercreditor agreement with terms substantially consistent with those set forth on Exhibit P, with such additional terms and conditions as agreed to by the Required Lenders in the exercise of their respective reasonable credit judgment.
“Administrative Agent” has the meaning specified in the preamble hereto.
“Administrative Agent’s Account” means an account at a bank designated by Administrative Agent from time to time as the account into which the Loan Parties shall make all payments to Administrative Agent under this Agreement and the other Loan Documents.
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“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Borrower or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims) or other regulatory body or any mediator or arbitrator, whether pending or, to the knowledge of Borrower or any of its Subsidiaries, threatened in writing against Borrower or any of its Subsidiaries or any property of Borrower or any of its Subsidiaries, including, but not limited to, the Consolidated Amended Class Action Complaint filed in the Eastern District of New York on January 19, 2022, naming as defendants Danimer Scientific, Inc., its directors and certain of its officers, a derivative shareholder suit filed in the Court of Chancery of the State of Delaware on May 24, 2021, and a derivative shareholder suit filed in the United States District Court for the District of Delaware on October 6, 2021.
“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (a) to vote 10% or more of the Securities having ordinary voting power for the election of members of the Board of Directors (or similar governing body or Persons performing similar governing functions) of such Person, or (b) to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting Securities or by contract or otherwise. Notwithstanding anything herein to the contrary, in no event shall any Agent or any Lender or any of their Affiliates or Related Funds be considered an “Affiliate” of any Loan Party. For avoidance of doubt, no Person that would otherwise not be an Affiliate shall be considered an Affiliate hereunder solely by reason of such Person’s direct or indirect interest in the Warrant, or any Capital Stock issued in respect of the Warrant.
“Agent” and “Agents” means the Administrative Agent, the Collateral Agent and U.S. Bank National Association as securities intermediary or deposit bank under any Control Agreement.
“Agent Fee Letter” means the letter agreement dated as of the date hereof between Borrower and Agents, as amended, amended and restated, supplemented or otherwise modified from time to time.
“Aggregate Amounts Due” has the meaning specified in Section 2.12(a).
“Aggregate Payments” has the meaning specified in Section 7.2.
“Agreement” means this Financing Agreement and any annexes, exhibits and schedules attached hereto as it may be amended, amended and restated, supplemented or otherwise modified from time to time.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction concerning or relating to bribery or corruption, including, without limitation, the FCPA.
“Anti-Terrorism Laws” means any Law relating to terrorism financing or money laundering, including, without limitation, (a) the Money Laundering Control Act of 1986 (i.e., 18
- 2 -
U.S.C. §§ 1956 and 1957), (b) the Currency and Foreign Transactions Reporting Act (31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959) (the “Bank Secrecy Act”), (c) the PATRIOT Act, (d) any applicable law prohibiting or directed against terrorist activities or the financing of terrorist activities (e.g., 18 U.S.C. §§ 2339A and 2339B), or (e) any similar laws enacted in the United States, the United Kingdom, the European Union or any other jurisdictions in which the parties to this Agreement operate, as any of the foregoing laws may from time to time be amended, renewed, extended, or replaced.
“AON Designee” has the meaning set forth in Section 10.6(j).
“AON Insurance Funded Portion” has the meaning set forth in Section 10.6(j).
“AON Insurance Policy” means that certain Collateral Protection Insurance Policy dated as of the date of this Agreement and issued to Administrative Agent as “insured party” defined therein by the insurers listed on Schedule 2 thereof and substantially in the form attached hereto as Exhibit K. The AON Insurance Policy will provide (i) coverage for 95% of the Term Loan Commitment, which shall be automatically reduced on a pro rata basis with reductions in the principal outstanding amount of the Term Loan, and (ii) Borrower shall have the ability to receive a rebate on unearned premium with respect to the last twelve (12) months of the coverage period.
“AON Insurance Proceeds” has the meaning set forth in Section 10.6(j).
“AON Notice” has the meaning set forth in Section 10.6(j).
“Applicable Parties” has the meaning set forth in Section 5.1.
“Arm’s Length Terms” means, as of any applicable time of determination, terms no less favorable to Borrower and/or any applicable Subsidiary thereof than those terms that would be obtainable in an arm’s length transaction between unaffiliated and disinterested Persons in a transaction in which neither Person is under undue pressure to complete such transaction.
“Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license, sublicense or other disposition to (other than to or with a Loan Party), or any exchange of property with, any Person (other than with a Loan Party), in one transaction or a series of transactions, of all or any part of any Loan Party’s, or of any Subsidiary of a Loan Party’s, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, including specifically, but without limitation, any form of IP Rights, including formulas, trade secrets, know-how, methods or processes, whether now owned or hereafter acquired, including, without limitation, the Capital Stock of any Loan Party, and for purposes of clarification, “Asset Sale” shall include (a) the sale or other disposition for value of any contracts, (b) the early termination or modification of any contract resulting in the receipt by any Loan Party of a Cash payment or other consideration in exchange for such event (other than payments in the ordinary course for accrued and unpaid amounts due through the date of termination or modification) and (c) any sale of merchant accounts (or any rights thereto (including, without limitation, any rights to any residual payment stream with respect thereto)) by any Loan Party, in each case other than:
(a)
any disposition of:
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(i)
Cash or Cash Equivalents,
(ii)
inventory sold, inventory licensed in the ordinary course of business or inventory leased in the ordinary course of business,
(iii)
obsolete or worn-out property, or surplus property no longer used or useful in the business of the Loan Parties and disposed of in the ordinary course of business;
(iv)
improvements made to leased real property to landlords pursuant to customary terms of leases entered into in the ordinary course of business;
(b)
the disposition of any assets by the Loan Parties in a manner permitted pursuant to Section 6.9;
(c)
any disposition constituting a Restricted Junior Payment that is permitted to be made, and is made, under Section 6.5, a Permitted Investment or an acquisition otherwise permitted under this Agreement;
(d)
(i) the lease, assignment or sublease, license or sublicense of any assets or properties (other than IP Rights) of any kind, whether real, personal, or mixed and whether tangible or intangible in the ordinary course of business and (ii) the exercise of termination rights with respect to any such lease, sublease, license or sublicense or other agreement;
(e)
foreclosures, condemnation, expropriation, eminent domain or any similar action (including, for the avoidance of doubt, any casualty event) with respect to assets or the granting of Liens not prohibited hereunder;
(f)
sales of accounts receivable, or participations therein, or the disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent with industry practice or in bankruptcy or similar proceedings;
(g)
the sale, lease, assignment, license, sublease, write-off or discount of inventory, equipment, accounts receivable, notes receivable or other current assets or the conversion of accounts receivable to notes receivable or other dispositions of accounts receivable in connection with the collection thereof, in each case in the ordinary course of business or consistent with industry practice;
(h)
any (i) non-exclusive sublicense transaction in respect of IP Rights in the ordinary course of business and on Arm’s Length Terms, including those granted by a Loan Party to a third party where such sublicenses are associated with a service or product provided or supplied by the Loan Party in the ordinary course of business and on Arm’s Length Terms, and (ii) exclusive sublicense in respect of IP Rights that are associated with a service or product either provided or supplied by the Loan Party or received or supplied to the Loan Party, in the ordinary course of business and on Arm’s Length Terms and that do not interfere in any material respect with the ordinary conduct of the business of the Borrower or value of any Collateral, including use and sublicensing of such exclusively licensed IP Rights for other products and uses (provided that in the case of any exclusive sublicense described in clause (ii) with a cumulative term of greater than two (2) years, the Loan Parties shall first provide written notice of such action to the insurers
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under the AON Insurance Policy, the Administrative Agent and the Lenders at least thirty (30) Business Days prior to the grant of such exclusive sublicense and (x) such grant of exclusive sublicense shall not have, within ten (10) Business Days following receipt of such notice, been objected to in writing by insurers holding at least 50.1% of the risk under the AON Insurance Policy on the terms and conditions set forth in clause (a) of Section IV of the AON Insurance Policy as in effect on the Closing Date without giving effect to any subsequent amendment or modification and (y) the Required Lenders shall not have, within ten (10) Business Days following receipt of such notice, objected in writing to such transaction, and if no such objection of such insurers and Lenders as described in clauses (x) and (y) above is made, the Loan Parties shall be permitted to proceed with the grant of such exclusive sublicense) , and, further with respect to (i) and (ii), that do not constitute an Extraordinary IP Rights Transaction (any such license or sublicense, a “Qualified License”);
(i)
any surrender or waiver of contract rights or the settlement, release or surrender of contract rights or other litigation claims in the ordinary course of business or consistent with industry practice;
(j)
issuances of Capital Stock (i) of Borrower or (ii) by an Unrestricted Subsidiary (or sales, transfers and other dispositions of Capital Stock of an Unrestricted Subsidiary) to an entity other than a Loan Party;
(k)
sales, transfers and other dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to, customary put, drag or tag arrangements (or other provisions of similar effect) between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l)
the lapse or abandonment of IP Rights, which in the good faith determination of Borrower, are not material to the conduct of the business of the Loan Parties either taken as a whole or with respect to any segment thereof (provided that in the case of any lapse, abandonment or other disposition of any issued patent, registered trademark or registered copyright the Loan Parties shall first provide written notice of such action to the insurers under the AON Insurance Policy, the Administrative Agent and the Lenders at least thirty (30) Business Days prior to the last opportunity to prevent such lapse, abandonment or other disposition and (x) such lapse, abandonment or other disposition shall not have, within ten (10) Business Days following receipt of such notice, been objected to in writing by insurers holding at least 50.1% of the risk under the AON Insurance Policy on the terms and conditions set forth in clause (a) of Section IV of the AON Insurance Policy as in effect on the Closing Date without giving effect to any subsequent amendment or modification and (y) the Required Lenders shall not have, within ten (10) Business Days following receipt of such notice, objected in writing to such transaction, and if no such objection of such insurers and Lenders as described in clauses (x) and (y) above is made, the Loan Parties shall be permitted to proceed with such lapse, abandonment or other disposition);
(m)
the granting of a Permitted Lien;
(n)
the disposition of any assets (including Capital Stock) (i) acquired in a transaction permitted hereunder, which assets are not used or useful in the principal business of the Loan Parties or (ii) made in connection with the approval of any applicable antitrust authority
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or otherwise necessary or advisable in the good faith determination of Borrower to consummate any acquisition permitted hereunder; or
(o)
dispositions of property to the extent that such property is concurrently exchanged for credit against the purchase price of substantially concurrently acquired similar replacement property.
“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit C, with such amendments or modifications as may be approved by Administrative Agent.
“Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, chief financial officer, president, one of its vice presidents, controller, secretary or treasurer (in each case, or the equivalent thereof).
“Avoidance Provisions” has the meaning set forth in Section 7.13(b).
“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 Secrecy Act” has the meaning specified in the definition of “Anti-Terrorism Laws”.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
“Beneficial Ownership Certification” means, to the extent Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a certification regarding beneficial ownership in relation to Borrower as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Beneficiary” means each Agent and Lender.
“Blocked Person” means any Person:
(p)
listed in any Sanctions-related list of designated Persons maintained by any Sanctions Authority (including OFAC’s Specially Designated Nationals and Blocked Persons List),
(q)
domiciled, organized or resident in a Sanctioned Country,
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(r)
fifty percent (50%) or more owned or controlled by, or acting for or on behalf of, any Person or Persons described in the foregoing clauses (a) or (b) above or by the government of a Sanctioned Country, or
(s)
otherwise the subject of any Sanctions that prohibit or restrict dealings with such Person.
“Board of Directors” means (a) with respect to any corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of and in lieu of such board for all purposes, (b) with respect to a partnership, the board of directors of the general partner of the partnership, (c) with respect to a limited liability company, the sole member, managing member or members or any controlling committee thereof (if member managed) or board of managers or sole manager (if manager managed) of such company, and (d) with respect to any other Person, the board or committee of such Person serving a similar function.
“Borrower” has the meaning specified in the preamble hereto.
“Borrower Materials” has the meaning specified in Section 5.1.
“Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other Governmental Act to close.
“Capital Asset” means, with respect to Borrower and its Subsidiaries, any asset that should, in accordance with GAAP, be classified and accounted for as a capital asset on a consolidated balance sheet of Borrower and its Subsidiaries.
“Capital Expenditures” means, with respect to Borrower and its Subsidiaries for any period, the aggregate cost of all Capital Assets acquired by Borrower and its Subsidiaries during such period, as determined in accordance with GAAP.
“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person (a) as lessee that, in accordance with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person or (b) as lessee which is a transaction of a type commonly known as a “synthetic lease” (i.e., a transaction that is treated as an operating lease for accounting purposes but with respect to which payments of rent are intended to be treated as payments of principal and interest on a loan for Federal income tax purposes).
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including, without limitation, partnership interests and membership interests, units and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
“Cash” means money, currency or a credit balance in any demand or Deposit Account.
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“Cash Equivalents” means, as at any date of determination, (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States government, or (ii) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date, (b) certificates of deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator), and (ii) has Tier 1 capital (as defined in such regulations) of not less than $130,000,000, and (c) shares of any money market mutual fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than $500,000,000, and (iii) has the highest rating obtainable from either S&P or Moody’s.
“Cash Sweep” shall have the meaning provided in Section 2.16(b)(ii).
“Cash Sweep Cap” means, as of any date of determination, an amount equal to (a) (x) $365,000 multiplied by (y) the number of months for which a Cash Sweep has been required pursuant to Section 2.16(b)(ii)(A) less (b) the aggregate amount of Cash Sweep Proceeds deposited by the Borrower into the Insurance Premium Reserve Account pursuant to Section 2.16(b)(ii)(A) on or prior to such date.
“Cash Sweep Date” means, at any time prior to the payment in full of all premium due in respect of the AON Insurance Policy, the fifth (5th) Business Day of each calendar month.
“Cash Sweep Proceeds” shall have the meaning provided in Section 2.16(b)(ii).
“Certificate Regarding Non-Bank Status” means a certificate substantially in the form of Exhibit D.
“Change of Control” means, at any time, any of the following occurrences:
(t)
the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act (but excluding (i) any employee benefit plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor and (ii) Jefferies, any affiliate thereof or any successor owner of any Capital Stock of Borrower previously held by Jefferies, in a single transaction or in a related series of transactions, including by way of merger, amalgamation, consolidation or other business combination or purchase, of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of Capital Stock of Borrower representing directly or indirectly more than 50% of the total voting power of all of the outstanding voting stock of Borrower;
(u)
a majority of the members of the Board of Directors of Borrower cease to be composed of individuals (i) who were members of that Board of Directors on the date of this Agreement, (ii) whose election or nomination to the Board of Directors was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination
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at least a majority of that Board of Directors or (iii) whose election or nomination to that Board of Directors was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that Board of Directors (excluding, in the case of both clauses (ii) and (iii) any individual whose initial nomination for, or assumption of office as, a member of that Board of Directors occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by a person or group other than a solicitation for the election of one or more directors by or on behalf of that Board of Directors);
(v)
Borrower shall cease to beneficially own and control, directly or indirectly, 100% on a fully diluted basis of the economic and voting interest in the Capital Stock of each other Loan Party (other than (i)as a result of any sale or other disposition of all Capital Stock of a Loan Party permitted under this Agreement, (ii) director’s shares or nominal holdings required to be issued by the applicable law of any jurisdiction of formation and (iii) as a result of a merger or dissolution permitted by Section 6.9);
(w)
the sale, lease or transfer, in a single transaction or in a related series of transactions, of all or substantially all of the assets of any Loan Party, taken as a whole, to any Person, other than any such transaction that is approved by the Board of Directors of the Loan Party in question and is otherwise expressly permitted hereunder, except as set forth in clauses (e) and (f) below;
(x)
IPHoldCo shall cease to beneficially own and control, directly or indirectly, 100% on a fully diluted basis of the economic and voting interest in the Capital Stock of IPCo; or
(y)
the sale, lease or transfer, in a single transaction or in a related series of transactions, of all or substantially all of the assets of IPCo to any Person.
“Closing Certificate” means a Closing Certificate substantially in the form of Exhibit E.
“Closing Date” means March 17, 2023.
“Collateral” means, collectively, all of the real, personal and mixed property, whether tangible or intangible (including, without limitation, (x) the Capital Stock issued by any Subsidiary to a Loan Party and (y) other Capital Stock held by a Loan Party, including minority interests), and all interests therein and proceeds thereof now owned or hereafter acquired by any Person upon which a Lien is granted or purported to be granted by such Person pursuant to the Collateral Documents as security for the Obligations; provided that in no event shall any Excluded Assets constitute Collateral.
“Collateral Account Report” has the meaning specified in Section 2.16(c)(iii).
“Collateral Account Report Date” has the meaning specified in Section 2.16(c)(iii).
“Collateral Accounts” means, as applicable, the Interest Reserve Account, the Insurance Premium Reserve Account and any other reserve account established at the Collateral Agent after the Closing Date.
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“Collateral Agent” has the meaning specified in the preamble hereto.
“Collateral Documents” means the Pledge and Security Agreement, any Material Contract Estoppels, any Mortgages, any Control Agreements and all other intellectual property security agreements, personal property mortgages, instruments, documents, undertakings and agreements executed (or purported to be executed) and delivered by any Loan Party pursuant to this Agreement or any of the other Loan Documents in order to grant to Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed property of that Loan Party as security for the Obligations, in each case, as such Collateral Documents may be amended, amended and restated or otherwise modified from time to time.
“Commitment” means any Term Loan Commitment.
“Communications” has the meaning set forth in Section 5.1.
“Competitor” has the meaning specified in the definition of “Disqualified Institution”.
“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit B.
“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“Control Agreement” means a control agreement, in form and substance reasonably satisfactory to the Required Lenders and the Collateral Agent, executed and delivered by a Loan Party, Collateral Agent, and the applicable securities intermediary (with respect to a Securities Account) or depositary bank (with respect to a Deposit Account), which, (a) with respect to any Collateral Account, shall provide for “blockage on notice” of the applicable Securities Account or Deposit Account and (b) with respect to any other Deposit Account shall provide for “blockage on notice” of the applicable Securities Account or Deposit Account after the occurrence and during the continuance of an Event of Default.
“Convertible Notes” means, collectively, the Existing Convertible Notes and any New Convertible Notes.
“Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit F delivered by a Loan Party pursuant to Section 5.10.
“Credit Date” means the date of a Credit Extension.
“Credit Extension” means the making of a Term Loan.
“Debtor Relief Law” means the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
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receivership, insolvency, reorganization, or similar debtor relief Law of the United States or other applicable jurisdiction from time to time in effect and affecting the rights of creditors generally.
“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
“Default Rate” means any interest payable pursuant to Section 2.7.
“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association or credit union, in each case which institution must have an investment grade long-term issuer credit rating by Moody’s, other than an account evidenced by a negotiable certificate of deposit.
“Deposit Materials” means the categories of design information and technical specifications with respect to Borrower’s product lines and operations set forth in Schedule 5.20 and as supplemented in accordance with Section 5.20.
“Disqualified Capital Stock” means any Capital Stock that, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, (a) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock), 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, and expressly subordinated to, the prior repayment in full of the Term Loans and all other Obligations that are accrued and payable), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Capital Stock), in whole or in part, (c) provides for the scheduled payments of dividends or distributions in Cash, or (d) is convertible into or exchangeable for (i) Indebtedness or (ii) any other Capital Stock that would constitute Disqualified Capital Stock, provided, that (i) Capital Stock that would not constitute Disqualified Capital Stock but for terms thereof giving holders thereof the right to require such Person to redeem or purchase such Capital Stock upon the occurrence of an “asset sale,” a “change of control” or similar event shall not constitute Disqualified Capital Stock if any such requirement becomes operative only after repayment in full in cash of all the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and (ii) if Capital Stock is issued pursuant to any plan for the benefit of employees of the Borrower or any of the Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Borrower or any of the Subsidiaries in order to satisfy applicable statutory or regulatory obligations of the Borrower or any of its Subsidiaries.
“Disqualified Institution” means (a) the direct competitors of the Loan Parties and their Subsidiaries, including, but not limited to, manufacturers of bio-sourced or biodegradable plastics, identified in writing by or on behalf of Borrower to Jefferies on or prior to the Closing Date, which list may be updated to identify additional Competitors from time to time after the Closing Date by Borrower acting reasonably and in good faith by written notice to the Lenders and Administrative Agent (provided that any such designation shall not apply retroactively to any prior assignment or participation to any Lender permitted hereunder at the time of such assignment or such participation, as the case may be), and (b) controlled Affiliates of any entity described in
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the preceding clause (a) that are reasonably identifiable on the basis of their name (the Persons described in clauses (a) and (b), each a “Competitor”), provided, however, for the avoidance of doubt, that no direct or indirect lender to, investor in or equity holder in, or member of, any of the entities identified above (regardless of the control or percentage held) shall constitute a Disqualified Institution unless specifically identified as a Competitor on the Closing Date in the list above.
“DOE” has the meaning specified in clause (bb) of the definition of “Permitted Liens”.
“Dollars” and the sign “$” mean the lawful money of the United States.
“Domestic Subsidiary” shall mean any Subsidiary of a Loan Party that is organized and existing under the laws of the United States or any state or commonwealth thereof or under the laws of the District of Columbia.
“Draw” means a request by Xxxxxxxx for and the funding of one Term Loan advanced by the Lenders on the Closing Date under their respective Term Loan Commitments in an aggregate amount equal to the Draw Amount.
“Draw Amount” means $130,000,000.
“DSKY Blocked Account” means the blocked account of the Borrower established at U.S. Bank National Association which shall be subject to a control agreement reasonably acceptable to the Required Lenders.
“DSKY NMTC Assets” means the assets securing the DSKY NMTC Transaction.
“DSKY NMTC Consents” means the consents granted to Danimer Scientific Kentucky, Inc., by the requisite lenders and/or agents for the DSKY NMTC Transaction permitting Danimer Scientific Kentucky, Inc. to enter into the Agreement as a Guarantor, the Pledge and Security Agreement as a Grantor and all other applicable Loan Documents.
“DSKY NMTC Transaction” means the QLICI Loan and Security Agreement, dated as of November 7, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and between Danimer Scientific Kentucky, Inc., and AmCREF Fund 51, LLC.
“DSM NMTC Assets” means the assets securing the DSM NMTC Transaction.
“DSM NMTC Consents” means the consents granted to Danimer Scientific Manufacturing, Inc., by the requisite lenders and/or agents for the DSM NMTC Transaction permitting Danimer Scientific Manufacturing, Inc. to enter into the Agreement as a Guarantor, the Pledge and Security Agreement as a Grantor and all other applicable Loan Documents.
“DSM NMTC Transaction” means the Loan Agreement, dated as of April 25, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to
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time), by and among Danimer Scientific Manufacturing, Inc., Xxxxxx Development CDE VI, LLC, and ST CDE LXII, LLC.
“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 clause (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 Assignee” means (a) any Lender, any Affiliate of any Lender and any Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), any commercial bank, any insurance company, any investment or mutual fund, any institutional investor, any family office, any private equity investor, any pension fund or any other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans as one of its businesses, (b) any other Person (other than a natural Person) with respect to whom a Lender shall have provided written notice to the Administrative Agent ten (10) Business Days prior to the execution of such proposed assignment and the Administrative Agent shall not have objected to such assignment within such ten (10) Business Days following receipt of such notice, (c) any Securitization Trust and (d) one or more of the insurers that are party to the AON Insurance Policy or their joint U.S. domestic designee(s); provided that (i) no Disqualified Institution shall, in any event, be an Eligible Assignee without the prior written consent of Borrower unless an Event of Default has occurred and is continuing at the time of assignment to a Disqualified Institution in which event no Borrower consent shall be required, (ii) neither Borrower nor any Affiliate of Borrower shall, in any event, be an Eligible Assignee and (iii) no Person owning or controlling (x) any trade debt or Indebtedness of any Loan Party other than (A) the Obligations, (B) obligations arising under the Securitization Trust (in the case of an assignment to the Securitization Trust) or (C) the AON Insurance Policy (in the case of an assignment to the insurers that are party to the AON Insurance Policy or their joint U.S. domestic designee(s)) or (y) any Capital Stock of any Loan Party (in each case under this clause (iii), unless a Lender shall have provided written notice to the Administrative Agent (expressly identifying this clause (iii) and requesting that the Administrative Agent provide such written notice to the Lenders) ten (10) Business Days prior to the execution of such proposed assignment and the Required Lenders shall not have objected to such assignment within such ten (10) Business Days following receipt of such notice) shall, in any event, be an Eligible Assignee and each assignee will so represent in the applicable Assignment Agreement. For avoidance of doubt, no Person that would otherwise be an Eligible Assignee shall be disqualified as an Eligible Assignee solely by reason of such Person’s direct or indirect interest in the Warrant or any Capital Stock issued in respect of the Warrant. As provided in Section 10.6(j), upon payment to the Administrative Agent of the full amount due under the AON Insurance Policy, the principal
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amount of the Obligations shall automatically be transferred to the insurers or their joint domestic U.S. designee(s) without any further action by the Lenders or the Administrative Agent.
“Eligible Investments” means any (i) Dollars or (ii) any Dollar investment that is one or more of the following obligations or securities (other than obligations or securities which are zero coupon obligations or securities):
(z)
marketable securities issued or directly and unconditionally guaranteed as to interest and principal by the United States government, marketable securities issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, demand and time deposits in, certificates of deposit of and bankers' acceptances issued by, bank deposit products of or federal funds sold by, any depository institution or trust company incorporated under the laws of the United States of America (including U.S. Bank Trust Company, National Association and its Affiliates) with, in each case, that matures not later than the Business Day immediately preceding the Interest Payment Date immediately following the date of investment therein and subject to supervision and examination by governmental banking authorities so long as the commercial paper and/or the debt obligations of such depository institution or trust company (or, in the case of the principal depository institution in a holding company system, the commercial paper or debt obligations of such holding company) at the time of such investment or contractual commitment have a rating of not less than the applicable Eligible Investments Minimum Rating; and
(aa)
commercial paper having, at the time of such investment, a credit rating of not less than the applicable Eligible Investments Minimum Rating and that either are bearing interest or are sold at a discount to the face amount thereof and that matures not later than the Business Day immediately preceding the Interest Payment Date immediately following the date of investment therein; and
(bb)
registered money market funds that (x) have, at all times, credit ratings of “Aaa-mf” by Moody’s or the highest credit rating available for money market funds by Moody’s at such time, (y) themselves invest only in items that constitute obligations or securities described in (a) or (b) above and (z) contain no restriction or penalty with respect to the frequency and/or amount of withdrawals; and
(cc)
notwithstanding the forgoing, at all times on and prior to the last Business Day of the thirteenth full month following the Closing Date (i) a portion of funds on deposit in the Interest Reserve Account that is sufficient to pay all interest on the Term Loans that will come due on or before the last Business Day of such thirteenth full month shall be invested in (x) Dollars or (y) investment property of the type described in (a), (b) or (c) and be available in Dollars at least one (1) Business Day prior to each Interest Payment Date; (ii) the remaining balance of funds on deposit in the Interest Reserve Account may be invested in (x) Dollars or (y) investment property of the type described in (a) or (c) (so long as such money market funds shall invest only in investment property described in (a)), provided that the stated duration to maturity of such investment property may exceed the duration provided for in (a) so long as all such maturities for such remaining balance comply with (e) below; and
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(dd)
funds invested pursuant to Clause (d)(ii) may be invested in investment property of the type described in clause (a) above having a duration to maturity not to exceed 364 days from date of issuance, provided that the any such maturity shall occur not later than one (1) Business Day prior to the Interest Payment Date occurring during or after the thirteenth full month after the Closing Date; and
(ee)
which, in each case under clauses (a) or (b) above, (w) excludes extendible commercial paper, (x) provides for payment of a pre-determined fixed amount of principal on maturity that is not subject to change, (y) has a stated maturity no later than permitted above and (z) either (A) has a stated maturity (giving effect to any applicable grace period) no later than the Business Day immediately preceding each of (1) the date provided for in (d) above and (2) the fifth anniversary of the date hereof (unless such Eligible Investments are issued by U.S. Bank Trust Company, National Association and its Affiliates in which event such Eligible Investments may mature on the date specified in clauses (1) and (2)) or (B) in the case of clause (c) above, may be capable of being liquidated on demand without penalty; provided, however, that Eligible Investments shall not (X) include any (a) mortgage backed security, (b) interest only security, (c) security subject to withholding or similar taxes (other than as imposed pursuant to FATCA), unless the obligor thereof is required to make payments of additional amounts (so-called “gross-up payments”), (d) security rated with an “f”" “r,” “p,” “pi,” “q” or “t” subscript by S&P, (e) security purchased at a price in excess of 100% of par, or (f) security whose repayment is subject to substantial non-credit related risk or (Y) be disposed of for a price that is less (on a cost basis) than the price paid by Borrower for such investment property at the time of its acquisition unless Borrower in the exercise of its business judgment believes such investment property has a significant risk of declining in credit quality or price. Eligible Investments may include, without limitation, those investments made with or issued by U.S. Bank Trust Company, National Association and its Affiliates or for which U.S. Bank Trust Company, National Association or its Affiliates act as offeror or provide services and receives compensation.
“Eligible Investments Minimum Rating” means a long-term issuer credit rating by Moody’s of A2 (and not on watch for downgrade) or higher or a short-term issuer credit rating by Moody’s of P-1 (and not on watch for downgrade).
“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (other than any Multiemployer Plan) which is sponsored, maintained or contributed to by, or required to be contributed by, any Loan Party or any of its ERISA Affiliates.
“Environmental Claim” means any complaint, summons, citation, investigation, notice, directive, notice of violation, order, claim, demand, action, litigation, judicial or administrative proceeding, judgment, letter or other communication from any Governmental Authority or any other Person involving (a) any actual or alleged violation of any Environmental Law, (b) any Hazardous Material or any actual or alleged Hazardous Materials Activity, (c) injury to the environment, natural resource, any Person (including wrongful death) or property (real or personal) in connection with Hazardous Materials or actual or alleged violations of Environmental Laws, (d) any Environmental Liabilities and Costs or (e) actual or alleged Releases or threatened Releases of Hazardous Materials either (i) on, at or migrating from any assets, properties or
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businesses currently or formerly owned or operated by any Loan Party or any of its Subsidiaries or any predecessor in interest, (ii) from adjoining properties or businesses, or (iii) onto any facilities which received Hazardous Materials generated by any Loan Party or any of its Subsidiaries or any predecessor in interest.
“Environmental Laws” means any and all current or future foreign or domestic, federal or state (or any subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, decrees, permits, licenses or binding determinations of any Governmental Authorizations, or any other requirements of Governmental Authorities relating to (a) the manufacture, generation, use, storage, transportation, treatment, disposal or Release of Hazardous Materials; or (b) occupational safety and health, industrial hygiene, land use or the protection of the environment, human, plant or animal health or welfare.
“Environmental Liabilities and Costs” means all liabilities, monetary obligations, losses (including monies paid in settlement), damages, punitive damages, natural resources damages, consequential damages, treble damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigations and feasibility studies), fines, penalties, sanctions and interest incurred in connection with any Remedial Action, any Environmental Claim, or any other claim or demand by any Governmental Authority or any Person that relates to any actual or alleged violation of Environmental Laws, actual or alleged exposure or threatened exposure to Hazardous Materials, or any actual or alleged Release or threatened Release of Hazardous Materials.
“Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs.
“Equity Interest” means any share or equity, interest or other equivalent of any Person, whether voting or non-voting and whether common or preferred, all options, warrants and other rights to acquire, and all securities, convertible into, any of the foregoing, all rights to receive income, dividends, distributions, returns of capital and other amounts (whether in Cash, securities, property, or a combination thereof) by virtue of the ownership of such share, equity or similar interest, and including, without limitation, all rights to receive amounts due and to become due under or in respect of any investment agreement or upon the termination thereof, and all other rights, powers, privileges, interests, claims and other property in any manner arising out of or relating to any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.
“ERISA Affiliate” means, together with the Loan Party, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which the Loan Party is a member; (b) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which the Loan Party is a member; and (c) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which the Loan Party, any corporation described in clause (a) above or any trade or business described in clause (b) above is a member.
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“ERISA Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for notice to the PBGC has been waived by regulation); (b) the failure by any Loan Party or any ERISA Affiliate to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure by any Loan Party or any ERISA Affiliate to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure by any Loan Party or any ERISA Affiliate to make any required contribution to a Multiemployer Plan under Section 412, 431 or 432 of the Internal Revenue Code; (c) the receipt by any Loan Party or any ERISA Affiliate from the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal by a Loan Party or any of its ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to any Loan Party or any of its ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which would reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the imposition of liability on any Loan Party or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the withdrawal of any Loan Party or any of its ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any liability therefor, or the receipt by any Loan Party or any of its ERISA Affiliates of notice from any Multiemployer Plan that it is in insolvency pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; or (h) the imposition of a Lien pursuant to Section 401(a)(29) or 430(k) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.
“Erroneous Payment Subrogation Rights” has the meaning set forth in Section 9.10(d).
“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” means each of the conditions or events set forth in Section 8.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.
“Excluded Accounts” means (a) payroll, payroll taxes or employee benefit accounts and related trust accounts, (b) other trust accounts, (c) escrow accounts (other than the Collateral Accounts), (d) tax accounts (including, without limitation, sales tax accounts), (e) accounts maintained solely in trust for the benefit of third parties and fiduciary purposes, (f) zero balance or swept accounts, (g) de minimis deposit accounts to the extent the aggregate daily balance in all such accounts does not at any time exceed $50,000, (h) accounts located in jurisdictions outside the United States provided, that under no circumstances shall the balance at
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any time in any such account or the aggregate balance across all such accounts exceed $500,000, (i) accounts containing funds of the types as deposits securing Liens described in clauses (f) and (g) of the definition of “Permitted Liens” or used exclusively to maintain cash collateral subject to a Permitted Lien, provided, that under no circumstances shall the balance at any time in any such Excluded Account described in (b) through (g) or the aggregate balance across all such Excluded Accounts described in (b) through (g), inclusive, exceed $500,000.
“Excluded Assets” means (a) any Real Estate Asset that is not a Material Real Estate Asset and any leasehold interests in real property (it being understood that no action shall be required with respect to creation or perfection of security interests with respect to such leases, including to obtain landlord waivers, estoppels or collateral access letters), (b) motor vehicles and other assets subject to certificates of title to the extent a Lien thereon cannot be perfected by the filing of a UCC financing statement, (c) assets for so long as a pledge thereof or a security interest therein is prohibited by applicable Laws, (d) Excluded Accounts, (e) any lease, license or other agreements, or any property subject to a purchase money security interest, Capital Lease or similar arrangements, in each case in accordance with the Loan Documents, to the extent that a pledge thereof or security interest therein would violate or invalidate such lease, license or agreement, purchase money, Capital Lease or similar arrangement, or create a right of termination in favor of any other party thereto (other than the Loan Parties) after giving effect to the applicable anti-assignment provisions of the UCC and applicable Laws, other than the proceeds and receivables thereof the assignment of which is expressly deemed effective under applicable Laws notwithstanding such prohibition, (f) assets for which the Required Lenders and Borrower have determined in their reasonable judgment and agree in writing that the cost of creating or perfecting such pledges or security interests therein would be excessive in view of the benefits to be obtained by the Lenders therefrom, (g) any intent-to-use trademark application in the United States prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant, attachment, or enforcement of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable Federal law, (h) proceeds received by the Administrative Agent in respect of a claim under the AON Insurance Policy (which for avoidance of doubt shall not be property of any Loan Party or any Subsidiary thereof), (i) Excluded Capital Stock and (j) (1) all assets and properties of Novomer, Inc. other than its IP Rights, and upon the ninety-first (91st) day following the date that the Loan Parties deliver to Lender evidence of the DSKY NMTC Consents, the IP Rights of Novomer, Inc. and (2) assets and properties of any other Unrestricted Subsidiary. For the avoidance of doubt, neither (x) the Capital Stock issued by any Subsidiary to a Loan Party (other than Excluded Capital Stock) nor (y) other Capital Stock held by a Loan Party constitutes an Excluded Asset and all such Capital Stock shall be included in the Collateral, except (i) the Capital Stock of Firtill Investments sp. z o.o. and (ii) that the Capital Stock of Meredian Bioplastics, Inc. shall become an Excluded Asset upon the termination and release of Lender and Agent’s Lien on such Capital Stock pursuant to clause (bb) of the definition of “Permitted Liens” but only to the extent the Indebtedness securing such Liens remains outstanding. The DSKY NMTC Assets shall be Excluded Assets and no UCC-1 financing statements shall be filed with respect thereto until the earlier of the date that the Loan Parties receive the DSKY NMTC Consents or the DSKY NMTC Transactions are paid off at which time the DSKY NMTC Assets shall automatically and without further notice or action become Collateral and will no longer be Excluded Assets and UCC-1 financing statements shall be filed with respect thereto within one Business Day of receipt of such DSKY NMTC Consents. The DSM
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NMTC Assets shall be Excluded Assets and no UCC-1 financing statements shall be filed with respect thereto until the earlier of the date that the Loan Parties receive the DSM NMTC Consents or the DSM NMTC Transactions are paid off at which time the DSM NMTC Assets shall automatically and without further notice or action become Collateral and will no longer be Excluded Assets and UCC-1 financing statements shall be filed with respect thereto within one Business Day of receipt of such DSM NMTC Consents.
“Excluded Capital Stock” means Capital Stock (a) of any captive insurance companies or not-for-profit Subsidiaries or (b) of any direct or indirect Subsidiary of Borrower to the extent issued, sold or otherwise disposed in accordance with Section 6.10.
“Excluded Subsidiary” means (A) an Included Subsidiary to the extent that becoming a Guarantor and/or granting or perfecting a security interest in the Capital Stock or assets of such entity could result in materially adverse tax consequences to the Borrower and its Subsidiaries, taken as a whole as reasonably determined by the Borrower and the Required Lenders, (B) any Included Subsidiary that functions solely as a sales office for the Borrower or any Included Subsidiary of the Borrower or (C) any Unrestricted Subsidiary.
“Excluded Taxes” means any of the following Taxes: (a) Taxes imposed on or measured by the Recipient’s net income (however denominated) and franchise Taxes imposed on the Recipient, in both cases, (i) by the jurisdiction (or any political subdivision thereof) under the laws of which such Recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located or (ii) as the result of any other present or former connection between such Recipient and the jurisdiction imposing such Tax, (b) in the case of a Lender, United States federal income withholding Taxes imposed on amounts payable to or for the account of such Lender pursuant to a Law in effect on the date on which such Lender becomes a party hereto or such Lender changes its lending office, except that this clause (b) shall not apply to the extent that the assignment or change in lending office was requested by a Loan Party or, pursuant to Section 2.14 amounts with respect to such Taxes were payable either to such Xxxxxx’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office; provided that in no event shall duplicative liability be required for the same amounts, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.14(d) and (d) Taxes imposed under FATCA.
“Existing Convertible Notes” means the 3.250% Convertible Senior Notes due 2026 listed on Schedule 6.1 and issued by the Borrower pursuant to the Indenture.
“Existing GARJA Loan” means that portion of the Existing Term Loan having an initial principal loan amount of $5,499,980.00 and for which Danimer Scientific Holdings, LLC is the borrower and Southeast Community Development Fund X, L.L.C. is the lender.
“Existing GARJA Loan Payoff Date” shall have the meaning set forth in Section 5.21.
“Existing Indebtedness” means Indebtedness and other obligations outstanding under the documentation described on Schedule 1.1(a).
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“Existing Lender” means any Lender prior to the receipt of the first funds paid to the Beneficiary under the AON Insurance Policy and its successors and assigns pursuant to Section 10.6(c). For the avoidance of doubt, Existing Lender does not include any Non-Paying Insurer and any assignee pursuant to Section 10.6(j).
“Existing NMTC Loan” means that portion of the Existing Term Loan having an initial principal loan amount of $4,500,000.00 and for which Meredian Bioplastics, Inc. is the borrower and PIFS SUB-CDE XX, LLC is the lender.
“Existing Term Loan” means that certain Loan and Security Agreement, dated as of March 13, 2019, among Danimer Scientific Holdings, LLC and Meredian Bioplastics, Inc., as borrowers, Meredian, Inc, Danimer Scientific, L.L.C., Danimer Bioplastics, Inc. and Danimer Scientific Kentucky, Inc., as guarantors, the lenders party thereto and Southeast Community Development Fund X, L.L.C., as administrative agent, as amended from time to time.
“Existing Term Loan Deposit Accounts” has the meaning specified in clause (gg) of the definition of “Permitted Liens.”
“Existing Term Loan Lenders” means Southeast Community Development Fund X, L.L.C. and PIFS SUB-CDE XX, LLC, as the lenders under the Existing Term Loan.
“Extended Covered Period” has the meaning specified in Section 5.1(i).
“Extraordinary IP Rights Transaction” means a sale, transfer, assignment or grant of exclusive license or sublicense of any IP Rights in whole or in part, with respect to which (i) the majority of such Net Proceeds are fixed in nature and not dependent on the future volume of sales or revenues attributed to the IP Rights so sold, transferred, assigned, licensed or sublicensed and (ii) such Net Proceeds shall not be dependent on future performance by such Loan Party or Subsidiary.
“Extraordinary Receipts” means any Cash in excess of $2,500,000 in any Fiscal Year received by a Loan Party or any of its Included Subsidiaries not in the ordinary course of business (and not consisting of proceeds described in Section 2.9(a) through (c) hereof), including, without limitation, (a) [reserved], (b) pension plan reversions, (c) judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action, (d) indemnity payments, (e) Net Proceeds of any payment made under an insurance policy or agreement, provided that Extraordinary Receipts shall not include proceeds of any claim under the AON Insurance Policy, but shall, subject to the reinvestment rights in this clause (e), include, without limitation, any other casualty loss proceeds; other than (i) insurance proceeds received in respect of damage to equipment used to effect the repair or replacement of such equipment in the ordinary course of business and (ii) Net Proceeds of any payment made under an insurance policy or agreement, in each case, solely to the extent the Borrower or any of its Included Subsidiaries has, in each case, reinvested such Net Proceeds in assets used in the business of the Borrower or any of its Included Subsidiaries within 270 days following the date of receipt of such Net Proceeds, as applicable (or, if not so reinvested within such 270 day period, has entered into a binding written agreement before the last day of such 270 day period to reinvest such Net Proceeds pursuant to such binding written agreement and has reinvested such Net Proceeds within 180 days of the date
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of such binding written agreement), (f) Net Proceeds of any condemnation or taking by any Governmental Authority and (g) Net Proceeds from an Extraordinary IP Rights Transaction, but in each case excluding any proceeds resulting from an issuance of Capital Stock by any Loan Party or any Included Subsidiary permitted pursuant to Section 6.9(i) or Section 6.10. Extraordinary Receipts shall not include (i) Cash receipts from proceeds of insurance, condemnation awards or similar payments, or indemnity payments to the extent such funds are received by any Person in respect of any third-party claim against such Person and applied to pay (or reimburse such Person for its prior payment of) such claim plus related costs and expenses, (ii) Cash proceeds from the issuance of any Capital Stock (other than Disqualified Capital Stock) or Subordinated Indebtedness of Borrower, or (iii) any purchase price adjustment received in connection with any purchase agreement.
“Fair Market Value” means, as of any applicable time of determination, the price at which a willing seller, under no compulsion to sell, would sell, and a willing buyer, under no compulsion to buy, would buy, the asset or property in question if offered for sale in the open market, with a reasonable time allowed to find such willing buyer.
“Fair Share” has the meaning specified in Section 7.2.
“Fair Share Contribution Amount” has the meaning specified in Section 7.2.
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, in effect as of the date of this Agreement and any current regulations or official interpretations thereof (or any amended or successor version to the extent substantively comparable and not materially more onerous to comply with), any agreement entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, and any law, practices, regulation, rule, promulgation or official agreement adopted pursuant to any official government agreement, treaty, convention or intergovernmental agreement with respect to the foregoing.
“FCPA” has the meaning specified in Section 4.29.
“Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (b) if no such rate is so published, the Federal Funds Effective Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to U.S. Bank National Association on such day on such transactions as determined by U.S. Bank National Association and provided that U.S. Bank National Association shall have no liability for such determination.
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“Fee Letter” means the letter agreement dated as of the date hereof between Xxxxxxxx and Xxxxxxxxx, as amended, amended and restated, supplemented or otherwise modified from time to time.
“Financial Plan” has the meaning specified in Section 5.1(i).
“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Permitted Lien.
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of Borrower and its Subsidiaries ending on December 31 of each calendar year.
“Fixed Rate” means for any day a rate per annum equal to 14.40%.
“Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of Agents, for the benefit of the Secured Parties, and located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.
“Foreign Official” means any officer or employee of a non-U.S. government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.
“Foreign Subsidiary” shall mean any Subsidiary of a Loan Party that does not constitute a Domestic Subsidiary, other than any Unrestricted Subsidiary.
“Funding Notice” means a notice substantially in the form of Exhibit A.
“GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, United States generally accepted accounting principles in effect as of the date of determination thereof.
“GARJA Payoff Notice Period” shall have the meaning set forth in Section 3.1(bb).
“Governmental Act” means any act or omission, whether rightful or wrongful, of any Governmental Authority.
“Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government, including any central bank, stock exchange, regulatory body, arbitrator, public sector entity, supra-national entity (including the European Union and the European Central Bank) and any self-regulatory organization.
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“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.
“Grantor” has the meaning specified in the Pledge and Security Agreement.
“Guaranteed Obligations” has the meaning specified in Section 7.1.
“Guarantor” means each Subsidiary of Borrower other than an Excluded Subsidiary.
“Guaranty” means (a) the guaranty of each Guarantor set forth in Article VII and (b) each other guaranty, in form and substance satisfactory to the Required Lenders, made by any other Guarantor for the benefit of the Secured Parties guaranteeing all or part of the Obligations.
“Hazardous Materials” means, regardless of amount or quantity, (a) any element, compound or chemical that is defined, listed or otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or hazardous substance, extremely hazardous substance or chemical, hazardous waste, special waste, or solid waste under Environmental Laws or that is reasonably likely to cause harm to or have an adverse effect on, the environment or risk to human health or safety, including, without limitation, any pollutant, contaminant, waste, hazardous waste, toxic substance or dangerous good which is defined or identified in any Environmental Law and which is present in the environment in such quantity or state that it contravenes any Environmental Law; (b) petroleum and its refined products; (c) polychlorinated biphenyls; (d) any substance exhibiting a hazardous waste characteristic, including, without limitation, corrosivity, ignitability, toxicity or reactivity as well as any radioactive or explosive materials; (e) any raw materials, building components (including, without limitation, asbestos-containing materials) and manufactured products containing hazardous substances listed or classified as such under Environmental Laws; and (f) any substance or materials that are otherwise regulated under Environmental Law.
“Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.
“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.
“Historical Financial Statements” means as of the Closing Date, the audited consolidated financial statements of Borrower and its Subsidiaries for the Fiscal Year ended December 31, 2021, and the unaudited consolidated financial statements of Borrower and its Subsidiaries for the first three Fiscal Quarters of 2022, consisting of balance sheets and the related consolidated statements of income, stockholders’ equity and cash flows for such Fiscal Year or Fiscal Quarter, as applicable, together with an opinion of a certified public accounting firm
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acceptable to the Lenders that such financial statements for the Fiscal Year ended December 31, 2021, fairly present, in all material respects, the financial condition of Borrower and its consolidated Subsidiaries as at the date indicated and the results of its operations and its cash flows for the period indicated.
“Included Subsidiary” means, for any Loan Party, each Subsidiary of such Loan Party (other than any Unrestricted Subsidiary of such Loan Party).
“Indebtedness” means, as applied to any Person, without duplication: (a) all indebtedness for borrowed money; (b) obligations constituting “principal” with respect to Capital Leases that is properly classified as a liability on a balance sheet in accordance with GAAP; (c) all obligations of such Person evidenced by notes, bonds or similar instruments or upon which interest payments are customarily paid and all obligations in respect of notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (d) any obligation owed for all or any part of the deferred purchase price of property or services, including any earn-outs, seller notes or other deferred payment obligations in connection with an acquisition to the extent such earn-outs, seller notes and deferred payment obligations are fixed and non-contingent (excluding (i) any such obligations incurred under ERISA, (ii) trade payables incurred in the ordinary course of business and repayable in accordance with customary trade terms and (iii) any earn-out until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP); (e) all obligations created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person; (f) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is non-recourse to the credit of that Person, which shall be limited to the lesser of (x) the greater of (A) cost to replace such property or asset and (B) the Fair Market Value of such property or asset and (y) the amount of such indebtedness so secured; (g) the face amount of any letter of credit or letter of guaranty issued, bankers’ acceptances facilities, surety bonds and similar credit transactions issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (h) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another that would constitute Indebtedness under another clause (other than clause (i) or (j)) of this definition; (i) any obligation of such Person that would constitute Indebtedness under another clause (other than clause (h) or (j)) of this definition the primary purpose or intent of which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid or discharged, or any agreement relating thereto will be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof; (j) any liability of such Person for an obligation of another that would constitute Indebtedness under another clause (other than clause (h) or (i)) of this definition through any agreement (contingent or otherwise) (1) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (2) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under the foregoing clause (1) or (2), the primary purpose or intent thereof is as described in clause (i) above; (k) the net termination value of all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, including, without limitation, any Interest Rate Agreement, whether entered into for hedging or speculative purposes; and (l)
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Disqualified Capital Stock. The Indebtedness of any Person shall include the Indebtedness of any partnership or Joint Venture in which such Person is a general partner or joint venturer, unless such Indebtedness is expressly non-recourse to such Person.
“Indemnified Liabilities” means, collectively, any and all liabilities (including Environmental Liabilities and Costs), obligations, losses, damages (including natural resource damages), penalties, claims (including Environmental Claims), costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or xxxxx any Hazardous Materials Activity), expenses and disbursements of any kind or nature whatsoever (including the reasonable and documented fees and disbursements of counsel to the Agents and a single counsel for all other Indemnitees taken as a whole in connection with any investigative, administrative or judicial proceeding commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that are incurred by any such Indemnitee, in any manner relating to or arising out of any claim, litigation, or other proceeding arising out of (a) this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make Credit Extensions or the use or intended use of the proceeds thereof, or any enforcement of any of the Loan Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty)) or (b) any Environmental Claim or any Hazardous Materials Activity relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of Borrower or any of its Subsidiaries.
“Indemnified Taxes” mean (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 clause (a), Other Taxes.
“Indemnitee” has the meaning specified in Section 10.3(a).
“Indemnitee Agent Party” has the meaning specified in Section 9.8.
“Indenture” means that certain Indenture, dated as of December 21, 2021, by and among Xxxxxxxx, as issuer, and U.S. Bank National Association, as Trustee, governing the Existing Convertible Notes.
“Initial Funding Account” means the account of the Borrower established at U.S. Bank National Association on or before the Closing Date.
“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of any Debtor Relief Law.
“Insurance Premium Reserve Account” means an account established on or prior to the Closing Date by IPCo with the Collateral Agent as depository, at all times under the sole dominion and control of the Collateral Agent for the benefit of the Lenders and denominated on
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the books and records of the Collateral Agent as the “Danimer IPCo Insurance Premium Reserve Account.”
“Insurance Premium Reserve Amount” has the meaning specified in Section 2.16(b)(ii).
“Intellectual Property Assignment Agreements” means, collectively those certain Intellectual Property Assignment Agreements dated as of March 17, 2023 pursuant to which each Loan Party (other than Novomer, Inc.) transferred its “Intellectual Property” (as defined in the Pledge and Security Agreement) to IPCo, as well as Intellectual Property Assignment Agreements in equivalent form and substance executed by any new or acquired Included Subsidiaries of any Loan Party (other than Novomer, Inc.) and any other new Loan Parties (other than Novomer, Inc.), in each case together with any short form assignments to be filed with any Governmental Authority in respect of such assignments, as described in Section 3.1(r).
“Intercompany License Agreements” means any license or sublicense agreement between IPCo and another Loan Party pursuant to which such Loan Party has made arrangements to exploit certain intellectual property of IPCo, including without limitation any IP Rights, as such agreements may be amended, restated, amended and restated, supplemented or otherwise modified not in contravention of this Agreement.
“Intercompany Subordination Agreement” means that certain Intercompany Subordination Agreement in the form of Exhibit L dated as of the Closing Date, by the Loan Parties and their Subsidiaries in favor of the Agents for the benefit of the Secured Parties in form and substance satisfactory to the Required Lenders.
“Intercreditor and Subordination Agreement” means an Intercreditor and Subordination Agreement in form and substance reasonably acceptable to the Required Lenders and the Agents entered into by the Agents, the holder or holders of Indebtedness, and the Loan Parties.
“Interest Payment Date” means (i) the last Business Day of each calendar month of each year, commencing on the first such date to occur after the Closing Date and continuing through the Term Loan Maturity Date, (ii) the date upon which the Obligations (other than inchoate indemnity obligations) are paid in full, (iii) the Term Loan Maturity Date, and (iv) following the Term Loan Maturity Date, each Business Day upon demand until the Obligations are paid in full.
“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is (a) for the purpose of hedging the interest rate exposure associated with Borrower’s and its Subsidiaries’ operations and (b) not for speculative purposes.
“Interest Reserve Account” means an account established in the United States on or prior to the Closing Date by IPCo with the Collateral Agent as depository, at all times under the sole dominion and control of the Collateral Agent for the benefit of the Lenders and denominated on the books and records of the Collateral Agent as the “Danimer IPCo Interest Reserve Account”.
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“Interest Reserve Amount” has the meaning set forth in Section 2.16(b).
“Internal Revenue Code” means the U.S. Internal Revenue Code of 1986, as amended to the date hereof and from time-to-time hereafter, and any successor statute.
“Investment” means, as to any Person, (a) any direct or indirect purchase or other acquisition by such Person of, or of a beneficial interest in, any of the Securities or all or substantially all of the assets of any other Person (or of any division or business line of such other Person), (b) any direct or indirect redemption, retirement, purchase, buyback, tender offer or other acquisition or similar transaction for value, by any such Person from any other Person, of any Capital Stock of such Person, (c) any direct or indirect loan, advance or capital contributions by such Person to any other Person, including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business and (d) any direct or indirect guarantee of, provision of surety or credit enhancement in respect of or pledge of collateral to secure any obligations of any other Person. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write ups, write downs or write offs with respect to such Investment, but shall be reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by such Person in respect of such Investment. Neither intercompany monetary obligations arising between Loan Parties in the ordinary course of business nor intercompany monetary obligations with respect to ordinary course cash management operations between Loan Parties shall constitute an Investment.
“Investors” has the meaning specified in the definition of “Holder” in the Warrant.
“IP Rights” means, collectively or individually, ownership of and/or rights to use (by license, co-ownership or otherwise) any of the following: patents, patent rights, trademarks, service marks, trade names, copyrights, technology, software, trade secrets know-how, database rights and all other intellectual property or proprietary rights.
“IPCo” means Danimer IPCo, LLC, a Delaware limited liability company.
“IPHoldCo” means Danimer IPHoldCo, LLC, a Delaware limited liability company.
“Jefferies” means Jefferies Funding LLC, a Delaware limited liability company.
“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form in which a Loan Party directly or indirectly owns 50% or less of the Equity Interests issued thereby; provided in no event shall any corporate Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.
“Label License” means a non-exclusive sublicense to practice a Loan Party’s IP Rights that is granted directly and solely to a Loan Party’s customer wherein such license right is memorialized: (a) on a product label; (b) on product packaging; and/or (c) on an insert that accompanies a product sold to an end-user so that such end-user may use said product for its intended purpose.
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“Laws” means, collectively, all international, foreign, federal, state and local laws (including common law), statutes, treaties, rules, legally enforceable guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities and executive orders, including the legally binding interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“Lender” means each lender listed on the signature pages hereto as a Lender, and any other Person that becomes a party hereto pursuant to an Assignment Agreement other than any Person that ceases to be a party hereto pursuant to any Assignment Agreement.
“Lien” means any lien, mortgage, pledge, assignment, hypothecation, deed of trust, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing, and in the case of Securities, any purchase option, call or similar right of a third party (in each case, other than warrants with respect to the Securities of Borrower) with respect to such Securities, and in the case of IP Rights, any license with respect to such IP Rights.
“Liquid Assets” means (a) Dollars and (b) Cash Equivalents, in each case, that are unrestricted other than being encumbered by (i) a perfected Lien pursuant to the Collateral Documents securing the Obligations or (ii) any Permitted Lien pursuant to clause (b), (o) or (q) of such definition.
“Loan Account” means an account maintained hereunder by Administrative Agent on its books of account and with respect to Xxxxxxxx, in which they will be charged with all Term Loans made to, and all other Obligations incurred by the Loan Parties.
“Loan Document” means any of this Agreement, the Notes, if any, the Collateral Documents, the Agent Fee Letter, the Fee Letter, any Guaranty, any Subordination Agreements, any Intercreditor and Subordination Agreements, the Intercompany Subordination Agreement and all other documents, instruments or agreements executed and delivered by a Loan Party for the benefit of any Agent or any Lender in connection herewith.
“Loan Party” means Borrower or any Guarantor; provided that prior to the ninety-first (91st) day following delivery of the DSKY NMTC Consents, Novomer, Inc. shall be deemed an Unrestricted Subsidiary for purposes of Sections 6.1 and 6.7 and the definitions of Permitted Indebtedness and Permitted Investments.
“Margin Stock” has the meaning specified in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.
“Master Services Agreement” means an agreement between Affiliates of the Borrower or between a Loan Party and any Affiliate pursuant to which one party to the agreement provides operational, managerial, advisory or headquarters services to the other party in consideration of cash compensation at Fair Market Value.
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“Material Adverse Effect” means a material adverse effect on and/or material adverse circumstance or condition with respect to (a) the business, operations, results of operations, properties, assets, financial condition or liabilities of the Loan Parties and their Subsidiaries, taken as a whole, (b) the ability of the Loan Parties (taken as a whole) to fully and timely perform their respective payment obligations under any Loan Document to which they are parties, (c) the legality, validity, binding effect, or enforceability against a Loan Party of a Loan Document to which it is a party, (d) a material portion of the Collateral or the validity, perfection or priority of Agents’ Liens on a material portion of the Collateral or (e) the material rights, remedies and benefits available to, or conferred upon, any Agent and any Lender or any other Secured Party under this Agreement, the Pledge and Security Agreement, any Control Agreement or the other Loan Documents, taken as a whole; provided, however, that no effect, circumstance or condition will be considered when determining whether a Material Adverse Effect has occurred to the extent such effect, circumstance or condition resulted or arose from (i) compliance with the terms of, or the taking of any action required by, this Agreement, the ancillary and other agreements contemplated hereby or (ii) any action taken upon the request of the Administrative Agent or the Required Lenders.
“Material Contract” means (a) the agreements listed on Schedule 4.14 and any other contract or other arrangement to which any Loan Party is a party (other than the Loan Documents) for which breach, non-performance, cancellation or failure to renew would reasonably be expected to have a Material Adverse Effect, (b) any contract, instrument or other agreement to which any Loan Party is a party or by which it is bound which has been filed or was required to have been filed with the Securities and Exchange Commission other than the P&G Contract, (c) any contract or agreement involving IP Rights to which any Loan Party is a party (including, without limitation, any agreement or instrument evidencing or governing Indebtedness) involving the aggregate consideration payable to or by such Loan Party is $5,000,000 or more in any Fiscal Year (other than (i) purchase orders in the ordinary course of the business of the Loan Parties, (ii) contracts that by their terms may be terminated by a Loan Party in the ordinary course of its business without penalty or premium, and (iii) contracts or arrangements between and/or among the Loan Parties and their Subsidiaries) and (d) any lease for real property to which any Loan Party is a party other than with respect to real property which is not used, as its primary or incidental purpose, for the possession, storage, holding, presence, existence, or location of (i) corporate books and records, (ii) trade secrets any strains or customer, customized, biopolymer or Nodax-based formulations or (iii) manufacturing, distribution or research and development of products sold or used by, or useful to the business of, the Borrower and its Subsidiaries.
“Material Contract Estoppel” means an undertaking in form and substance reasonably acceptable to the Required Lenders pursuant to which each Person other than a Loan Party that is party to any agreement set forth on Schedule 4.14A, which Schedule may be amended from time to time at the request of the Required Lenders in their commercial business judgment, (i) consents to the granting of Liens encumbering the applicable Loan Party’s interest in such Material Contract, (ii) consents to the enforcement of such Lien pursuant to the terms of the Loan Documents, (iii) consents to transfer of the applicable Material Contract to any initial transferee following enforcement of such Lien or a transfer in lieu of such enforcement, and (iv) agrees to continue to perform its obligations under such Material Contract so long as such transferee performs the obligations of the Loan Party thereunder.
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“Material Real Estate Asset” means any fee owned Real Estate Asset having a Fair Market Value in excess of $2,500,000 as of the date of the acquisition thereof.
“Minimum Interest Reserve Amount” means at any time of determination an amount equal to at least nine and four-tenths percent (9.40%) of the aggregate balance of Term Loans then outstanding.
“MNPI” has the meaning specified in Section 5.1.
“Moody’s” means Xxxxx’x Investor Services, Inc.
“Xxxxx’x Rating Agency Confirmation” means, for so long as promissory notes issued under the Securitization Trust are outstanding and a Xxxxx’x rating of such promissory notes is in effect, with respect to any specified amendment or waiver of the Loan Documents which would result in a reduction in, or delay of, the principal or interest payments under the promissory notes issued by the Securitization Trust, Moody’s written confirmation (which may take the form of a press release or other written communication) that the occurrence of that amendment or waiver shall not cause Moody’s to downgrade or withdraw its then current rating assigned to such notes.
“Mortgage” means a mortgage, deed of trust or deed to secure debt, in form and substance reasonably satisfactory to the Required Lenders, made by a Loan Party in favor of Collateral Agent for the benefit of the Secured Parties, securing the Obligations and delivered to Collateral Agent.
“Multiemployer Plan” means any “multiemployer plan” as defined in Section 3(37) of ERISA to which any Loan Party or any ERISA Affiliate thereof has within the past six (6) years contributed to or been required to contribute to.
“Narrative Report” means, with respect to Section 5.7(b) for which such narrative report is required, upon reasonable written request by the Required Lenders, such information with respect to the Loan Parties and their results of operations, financial condition or any other matters as the Required Lenders may reasonably request.
“Narrative Report Notice” has the meaning specified in Section 5.7(b).
“Net Proceeds” means (a) with respect to any Asset Sale, an amount equal to: (i) Cash payments received by such Loan Party from such Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (A) legal, accounting and investment banking fees, payments made in order to obtain a necessary consent or required by applicable Law, and brokerage and sales commissions, (B) income or gains taxes payable (or reasonably estimated by the Borrower to become payable) by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period in which the sale occurs, (C) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Term Loans) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale, (D) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by a Loan Party in connection with such Asset Sale;
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provided that upon release of any such reserve, the amount released shall be considered Net Proceeds, and (E) in the case of any such event involving an asset of a non-wholly-owned Subsidiary, the pro rata portion of the Net Proceeds (calculated without regard to this clause (E)) distributed to holders of a minority interest in such non-wholly-owned Subsidiary; (b) with respect to any Cash Sweep, gross revenues with respect to any receipts, revenues or proceeds of operations of a Loan Party minus reserves for Taxes determined in accordance with GAAP (c) to the extent not an Asset Sale, net income determined on a transaction by transaction basis in accordance with GAAP with respect to proceeds of any Extraordinary IP Rights Transaction (minus a reasonable reserve for any contractually obligated claw-back payments that may become due and payable by such Loan Party; provided that upon release of any such reserve, the amount released shall be considered Net Proceeds); (d) with respect to any insurance, condemnation, taking or other casualty proceeds, an amount equal to: (i) any Cash payments or proceeds received by a Loan Party (A) under any casualty, business interruption or “key man” insurance policies in respect of any covered loss thereunder, or (B) as a result of the condemnation or taking of any assets of a Loan Party by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (A) any actual and costs incurred by a Loan Party in connection with the adjustment or settlement of any claims of such Loan Party in respect thereof, (B) any bona fide direct costs incurred in connection with any condemnation or taking of such assets as referred to in clause (b)(i)(B) above to the extent paid or payable to non-Affiliates, including income taxes payable as a result of any gain recognized in connection therewith, (C) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Term Loans) that is secured by a Permitted Lien having a permitted priority that is senior to the Lien securing the Obligations on the assets in question and that is required to be repaid under the terms thereof as a result of such casualty or condemnation, (D) amounts required to be turned over to landlords (or their mortgagees) in respect of a casualty or condemnation of such leased property pursuant to the terms of any lease to which a Loan Party is party, and (E) in the case of any such event involving an asset of a non-wholly-owned Subsidiary, the pro rata portion of the Net Proceeds (calculated without regard to this clause (E)) distributed to holders of a minority interest in such non-wholly-owned Subsidiary; and (e) with respect to Extraordinary Receipts, an amount equal to (i) Cash received by a Loan Party in connection with Extraordinary Receipts minus (ii) any actual costs incurred in connection with obtaining such Extraordinary Receipts, if any.
“New Convertible Notes” means any convertible promissory notes first issued after the Closing Date by Xxxxxxxx.
“Non-Paying Insurer” means any insurer under the AON Insurance Policy that has not paid to the Administrative Agent its full ratable share of a claim made by the Administrative Agent under the AON Insurance Policy.
“Non-Recourse Debt” means Indebtedness (a) as to which no Loan Party (i) provides any guarantee or credit support of any kind (including any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (ii) is directly or indirectly liable (as a guarantor, general partner or otherwise), (b) no default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Indebtedness of a Loan Party to declare a default under such other Indebtedness or cause the
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payment thereof to be accelerated or payable prior to its stated maturity, (c) as to which the express terms provide that there is no recourse against any of the property or assets of any Loan Party and (d) is used only to fund, and is completely consumed to fund, capital expenses of the borrowing Unrestricted Subsidiary. Notwithstanding the foregoing, any Loan Party may enter into customary and reasonable “recourse guaranties” in respect of Non-Recourse Debt incurred by Unrestricted Subsidiaries so long as such “recourse guaranties” (i) are unsecured; (ii) are subject to a fixed liability cap stated in Dollars in an amount not to exceed the lesser of actual damages or the outstanding principal and interest due on Non-Recourse Debt so guarantied; and (iii) guaranty to the lender of such Non-Recourse Debt only payment of actual losses incurred in as a result of enumerated customary “bad boy” actions of the Unrestricted Subsidiary borrower. For avoidance of doubt, any such “recourse guaranties” that satisfy the requirements of the preceding sentence shall constitute “Non-Recourse Debt” for purposes of the definition of Unrestricted Subsidiary.
“Non-US Lender” has the meaning specified in Section 2.14(d)(i).
“Note” means a promissory note evidencing the Term Loans which shall be in the form of Exhibit I, attached hereto.
“Obligations” means all obligations of every nature of each Loan Party from time to time owed to the Agents (including former Agents), the Lenders or any of them, under any Loan Document, whether for principal (including Protective Advances made to pay the AON Insurance Policy premiums), interest (including paid in kind interest and interest which, but for the filing of a petition in bankruptcy with respect to such Loan Party, would have accrued on any Obligation, whether or not a claim is allowed against such Loan Party for such interest in the related bankruptcy proceeding), fees, unpaid deposits, the Specified Premium, Erroneous Payment Subrogation Rights, expenses, indemnification or otherwise and whether primary, secondary, direct, indirect, contingent, fixed or otherwise (including obligations of performance).
“OFAC” means the Department of the Treasury’s Office of Foreign Assets Control.
“Organizational Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization, as amended, and its by-laws, as amended, (b) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (c) with respect to any general partnership, its partnership agreement, as amended, and (d) with respect to any limited liability company, its articles of organization, as amended, and its operating agreement, as amended. In the event any term or condition of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
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“Other Taxes” has the meaning specified in Section 2.14(b).
“P&G Contract” means the Intellectual Property Rights Agreement between the Procter & Xxxxxx Company and Meredian, Inc., dated as September 14, 2007 (as amended from time to time).
“Participant Register” has the meaning specified in Section 10.6(h)(ii).
“PATRIOT Act” has the meaning specified in Section 4.29.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA and which has within the past six (6) years been sponsored, maintained, contributed to or required to be contributed to by any Loan Party or any ERISA Affiliate thereof.
“Perfection Certificate” means a certificate in form and substance satisfactory to the Required Lenders that provides information with respect to the assets of each Loan Party.
“Permitted Acquisition” means any acquisition listed on Schedule 6.9 and any acquisition by any Loan Party, whether by purchase, merger or otherwise, of all or substantially all of the assets or all of the Capital Stock of, or a business line or unit or a division of, any such Person that meets each of the requirements set forth below:
(ff)
immediately prior to, and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom or be reasonably expected to result therefrom;
(gg)
all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws and in conformity with all applicable Governmental Authorizations;
(hh)
in the case of the acquisition of Capital Stock, all of the Capital Stock acquired or otherwise issued to a Loan Party by such Person or any newly formed Guarantor in connection with such acquisition shall be owned 100% by a Loan Party (other than, in the case of Subsidiaries formed outside of the United States, directors’ shares or other nominal shares required to be held by another Person pursuant to applicable law of the jurisdiction of formation), and Borrower shall have taken, or caused to be taken, if such Person becomes a Subsidiary of Borrower, each of the actions set forth in Section 5.10 and/or Section 5.11, as applicable;
(ii)
Borrower shall have delivered to Agents and the Lenders at least ten (10) Business Days prior to such proposed acquisition, (i) a Compliance Certificate evidencing compliance with the terms of this Agreement, together with all relevant financial information with respect to such acquired assets, including, without limitation, the aggregate consideration for such acquisition and any other information requested by Required Lenders, (ii) upon the written request of the Required Lenders, in the case of an acquisition for which the purchase price is greater than
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$10,000,000, a quality of earnings report, prepared by a third party reasonably acceptable to the Required Lenders, with respect to the Persons to be acquired and the acquired assets, (iii) upon the request of the Required Lenders and to the extent the same were issued, the most recently available two (2) years of audited financial statements of the Persons to be acquired and (iv) to the extent available to Borrower or any of its Subsidiaries, upon the request of the Required Lenders, financial statements of the Persons to be acquired for the period from the beginning of the then current fiscal year to the end of the most recently completed month, setting forth in comparative form the corresponding figures for the corresponding periods of the previous fiscal year;
(jj)
upon the request of the Required Lenders, Borrower shall have delivered to Agents and the Lenders at least ten (10) Business Days prior to such proposed acquisition, an executed term sheet and/or commitment letter (setting forth in reasonable detail the terms and conditions of such acquisition), if any. Borrower shall, at the request of the Required Lenders, deliver such other information and documents that such Required Lenders may reasonably request, including, without limitation, executed counterparts of the respective agreements, instruments or other documents pursuant to which such acquisition is to be consummated (including, without limitation, any related management, non-compete, employment, option or other material agreements), any schedules to such agreements, instruments or other documents and all other material ancillary agreements, instruments or other documents to be executed or delivered in connection therewith;
(kk)
any Person or assets or division as acquired in accordance herewith shall be in the business or lines of business that are the same as, similar to, incidental, ancillary or complementary to, or a reasonable extension of, the business or lines of business in which Borrower and/or its Subsidiaries are engaged as of the Closing Date;
(ll)
the acquisition shall have been approved by the Board of Directors or other governing body or controlling Person of the Person acquired or the Person from whom such assets or division is acquired; and
(mm)
with respect to any acquisition for which the cash consideration valued in accordance with GAAP is greater than $500,000, the permitted acquisition is paid for in full (other than any consideration for such acquisition in the form of earn-outs or seller debt in an amount not to exceed 25 percent (25%) of the total consideration for such acquisition) using only (i) the proceeds of a sale of Borrower’s Capital Stock in each case raised after the Closing Date and either (A) substantially concurrently with such acquisition or (B) so long as after giving effect to such acquisition, the Loan Parties have Liquid Assets of no less than $45,000,000 in the aggregate within nine (9) months prior to such acquisition, or (ii) the proceeds of Subordinated Indebtedness.
“Permitted Holder” means any officer or director of Borrower or any entity controlled by such Person.
“Permitted Indebtedness” means:
(nn)
the Obligations;
(oo)
unsecured Indebtedness (i) of Borrower or any of its Included Subsidiaries owing to any other Loan Party, (ii) of an Unrestricted Subsidiary owing to Borrower or any of its
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Included Subsidiaries in an amount not to exceed $35,000,000 in the aggregate but only if, after giving effect to such Indebtedness, the Loan Parties hold Liquid Assets of no less than $45,000,000 in the aggregate, and other than during the continuance of an Event of Default hereunder, and (iii) of any Loan Party owing to any Unrestricted Subsidiary; provided that (x) with respect to each of clauses (i) and (ii), if such Indebtedness shall be evidenced by promissory notes then all such notes shall be Collateral subject to a First Priority Lien pursuant to the Pledge and Security Agreement and (y) in each case, all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the Intercompany Subordination Agreement;
(pp)
Indebtedness incurred by a Loan Party arising from (i) agreements providing for indemnification or obligations in respect of purchase price (including earn-outs) or other similar adjustments, or (ii) guaranties or letters of credit, surety bonds or performance bonds securing the performance of a Loan Party pursuant to such agreements, in each case, in the ordinary course of business;
(qq)
Indebtedness which may be deemed to exist pursuant to any guaranties, performance, bid, surety, statutory, appeal or similar obligations incurred in the ordinary course of business and Indebtedness constituting guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Loan Parties;
(rr)
Indebtedness incurred in the ordinary course of business in respect of and including credit card, debit card or purchasing cards, netting services, overdraft protections and otherwise in connection with deposit accounts;
(ss)
Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except renewals, extensions and replacements (i) that have a maturity date that is no earlier than ninety-one (91) days after the scheduled Term Loan Maturity Date and (ii) are in a principal amount that does not exceed the principal amount so refinanced or replaced plus, accrued interest, any customary premium or other payment required to be paid in connection with such refinancing, the amount of customary fees and expenses of the Borrower or any of its Included Subsidiaries incurred in connection with such refinancing, and any unutilized commitments thereunder;
(tt)
Indebtedness incurred in the ordinary course of business with respect to (i) Capital Leases and (ii) purchase money Indebtedness (including any Indebtedness acquired in connection with a Permitted Acquisition or acquisition of equipment); provided that any such Indebtedness shall, as applicable, be secured only by the asset subject to such Capital Lease or by the asset acquired in connection with the incurrence of such Indebtedness, in each case together with proceeds of any disposition thereof;
(uu)
Indebtedness of a Person that becomes a Guarantor hereunder after the Closing Date in connection with a Permitted Acquisition, provided that such Indebtedness existed at the time such Person became a Guarantor and was not created or incurred in anticipation or contemplation of such Permitted Acquisition;
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(vv)
customary cash management products, Interest Rate Agreements, foreign currency xxxxxx and direct xxxxxx for the purchase of raw materials or commodities that the Loan Parties project to consume during the ordinary course of business within the subsequent twelve (12) month period, in each case that are entered into by the Loan Parties and their Included Subsidiaries in the ordinary course of business and not for speculative or investment purposes;
(ww)
Indebtedness consisting of the financing of insurance premiums arising in the ordinary course of business (including, for the avoidance of doubt, related to insurance required to be maintained pursuant to this Agreement);
(xx)
guaranties with respect to Indebtedness to the extent the Person obligated with respect to such guaranty would not be prohibited from incurring the primary Indebtedness that is guaranteed thereby;
(yy)
unsecured Indebtedness not otherwise permitted hereunder in an aggregate amount not to exceed (x) $500,000 or (y) in any amount so long as such Indebtedness (i) does not require any amortization, (ii) interest thereunder is solely paid in kind, (iii) matures at least ninety-one (91) days after the Term Loan Maturity Date, and (iv) is subject to a subordination agreement acceptable to the Lenders, provided that in such case, immediately after giving effect to such Indebtedness, there would not result an Event of Default hereunder;
(zz)
Indebtedness or other obligations of any type of the Loan Parties at any time arising pursuant to and/or in respect of the Warrant;
(aaa)
guarantee obligations of a Loan Party in respect of the Indebtedness of another Loan Party otherwise permitted to be incurred hereunder; provided that if the Indebtedness being guaranteed is subordinated to the Obligations, such guarantee obligations shall be subordinated to the Guaranty of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(bbb)
Indebtedness representing deferred compensation to employees of the Loan Parties incurred in the ordinary course of business;
(ccc)
Indebtedness consisting of obligations of a Loan Party under deferred compensation or other similar arrangements incurred by such Loan Party in connection with Permitted Investments;
(ddd)
Indebtedness incurred by a Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(eee)
Indebtedness of a Person acquired pursuant to a Permitted Acquisition; provided that such Indebtedness was not undertaken by such Person in connection with, or in contemplation of, such Permitted Acquisition and provided that such Indebtedness shall not be for borrowed money;
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(fff)
Indebtedness arising under letters of credit issued for the account of Borrower or any of its Included Subsidiaries; provided that the aggregate amount of such Indebtedness in respect of all such letters of credit does not exceed $1,000,000 at any time outstanding;
(ggg)
Existing Convertible Notes in effect as of the Closing Date and any extensions, renewals, or replacements thereof, provided that such extensions, renewals, or replacements do not provide for the payment of any Cash interest and mature at least ninety-one (91) days after the Term Loan Maturity Date;
(hhh)
Indebtedness incurred by a Loan Party owing to Xxxxxxxxx or its Affiliates which shall be subject to the Senior Lien Intercreditor Agreement not to exceed an original principal amount of $11,250,000 at any time outstanding;
(iii)
From and after the date in which Borrower has delivered a subordination agreement in form and substance acceptable to the Required Lenders and the insurers holding at least 50.1% of the risk under the AON Insurance Policy with respect to any Liens on the Capital Stock of Danimer Scientific Kentucky, Inc., Indebtedness of a Person secured solely by equipment owned by any Loan Party as of the Closing Date in an aggregate amount not to exceed $40,000,000; provided that, as of any date of determination, the aggregate outstanding principal amount of any Indebtedness relating to any New Market Tax Credit transactions of Danimer Scientific Kentucky, Inc. and Danimer Scientific Manufacturing, Inc. which Indebtedness is secured by a Lien on any asset of any Loan Party that is senior to the Liens granted to the Administrative Agent for the benefit of the Secured Parties and/or for which the Administrative Agent has not been granted a perfected Lien, in each case, shall reduce dollar for dollar such $40,000,000 amount; provided further, that any such reduction shall be reinstated upon the Administrative Agent receiving a senior Lien on such assets; provided further that no Loan Parties may incur any Indebtedness under this clause (v) unless and until the Loan Parties provide evidence of the DSKY NMTC Consents to the Lender;
(jjj)
New Convertible Notes and any extensions, renewals or replacements of such Indebtedness, provided that any such extensions, renewals or replacements are (x) on substantially the same terms as such New Convertible Notes with such modifications as are not materially adverse to the Lenders and (y) have a maturity date that is no earlier than ninety-one (91) days after the scheduled Term Loan Maturity Date;
(kkk)
Non-Recourse Debt of any Unrestricted Subsidiaries and “recourse guaranties” of such Non-Recourse Debt (solely to the extent described in the definition of Non-Recourse Debt) provided by any Loan Party;
(lll)
A revolving credit facility in an aggregate amount not to exceed $30,000,000 at any time outstanding secured solely by the Loan Parties’ accounts receivable and inventory (and, for the avoidance of doubt, not on any IP Rights nor any Capital Stock of IPCo or IPHoldCo), in each case, subject to the ABL Intercreditor Agreement;
(mmm)
(i) guarantee obligations of Meredian, Inc. with respect of Indebtedness owed by Meredian Bioplastics, Inc. so long as such guarantee obligations are recourse solely to the Capital Stock of Meredian Bioplastics, Inc. owned by Meredian, Inc. and (ii) guarantee obligations
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of Danimer Scientific Holdings, LLC (or the then holder of the equity of Novomer, Inc. or any other Unrestricted Subsidiary into which Novomer, Inc. has transferred all or a portion of its assets) with respect of Indebtedness owed by Novomer, Inc. or such successor Unrestricted Subsidiary so long as such guarantee obligations are subject to a subordination agreement that is satisfactory to the Required Lenders in their discretion, are recourse solely to the Capital Stock of Novomer, Inc. or such successor Unrestricted Subsidiaries owned by Danimer Scientific Holdings, LLC or the then holder of such equity and secured by a lien on the Capital Stock of Novomer, Inc. and/or such successor Unrestricted Subsidiaries second in lien priority to the Liens securing the Obligations;
(nnn)
So long as after giving effect to such Indebtedness, the Loan Parties have Liquid Assets of no less than $45,000,000, Indebtedness of any Unrestricted Subsidiary solely funded with the proceeds of a sale of Borrower’s Capital Stock raised after the Closing Date and (x) if owed to the Borrower, raised within nine (9) months prior to incurrence of such Indebtedness or (y) if owed to any Loan Party, either raised substantially concurrently with the issuance of such Indebtedness or raised within nine (9) months prior to incurrence of such Indebtedness if the proceeds of such Capital Stock sale have been segregated into a separate account for such purpose;
(ooo)
Indebtedness incurred by a Loan Party pursuant to a Permitted Restructuring Transaction; and
(ppp)
guarantee obligations of Borrower of Indebtedness of Meredian Bioplastics, Inc., provided such guarantee is unsecured and limited to any costs due to delays and/or cost overruns relating to the project that is the subject of the DOE guaranteed loan pursuant to Title 17 of the Energy Policy Act of 2005.
“Permitted Investments” means:
(qqq)
Investments in Dollars and Investments in assets that were Cash Equivalents when such Investment was made;
(rrr)
Investments by any Loan Party in Borrower or any Included Subsidiaries thereof (provided that Investments in IPCo by any Loan Party in the form of Indebtedness shall not be permitted);
(sss)
Investments constituting (i) Securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors, (ii) deposits, prepayments and other credits to suppliers made in the ordinary course of business and (iii) endorsements for collection or deposit and customary trade arrangements with customers consistent with the past practices of the Loan Parties or in the ordinary course of business;
(ttt)
intercompany loans to the extent permitted under clause (b) of the definition of “Permitted Indebtedness” and accounts receivable;
(uuu)
loans and advances to employees of the Borrower and any other Loan Party (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes in an aggregate principal amount for all such loans outstanding not to exceed $100,000, (ii) constituting notes in an aggregate principal amount for all such loans outstanding not to exceed $100,000 accepted as consideration in connection with the sale of
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restricted stock or as exercise price for options and (iii) for purposes not described in the foregoing clauses (i) or (ii) in an aggregate principal amount for all such loans outstanding not to exceed $100,000;
(vvv)
Permitted Acquisitions permitted pursuant to Section 6.9;
(www)
Investments described in Schedule 6.7 and any modification, replacement, renewal, reinvestment or extension of any such Investments; provided that the amount of any such Investment is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise would constitute a Permitted Investment;
(xxx)
asset purchases (including purchases of inventory, supplies and materials) in the ordinary course of business and the entry into Qualified Licenses of intellectual property pursuant to joint marketing arrangements with other Persons;
(yyy)
Investments consisting of Permitted Indebtedness and fundamental changes and Asset Sales permitted by Section 6.9 (other than, in each case, by reference to Permitted Investments);
(zzz)
promissory notes and other non-Cash consideration received in connection with Asset Sales permitted by Section 6.9;
(aaaa)
advances of payroll payments to employees in the ordinary course of business in an aggregate principal amount for all such loans outstanding not to exceed $250,000;
(bbbb)
Investments to the extent that payment for such Investments is made solely with Capital Stock (other than Disqualified Capital Stock);
(cccc)
Investments made to consummate the Transactions;
(dddd)
any guarantees permitted under the Loan Documents;
(eeee)
other Investments that do not exceed an aggregate amount for all such Investments equal to $500,000 at any time outstanding;
(ffff)
Deposit Accounts and investment accounts maintained in the ordinary course of business and in accordance with the terms of the Loan Documents;
(gggg)
Investments in connection with interest rate or foreign currency hedging or swaps, in the ordinary course of business and not for speculative purposes;
(hhhh)
Investments consisting of pledges and deposits in the ordinary course of business in connection with real estate leases, supply agreements or other agreements in the ordinary course of business and entered into on Arm’s Length Terms;
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(iiii)
Investments held by any Person as of the date such Person is acquired in connection with a Permitted Acquisition; provided, that such Investments were not made, in any case, by such Person in connection with, or in contemplation of, such Permitted Acquisition;
(jjjj)
So long as after giving effect to such Investments, the Loan Parties have Liquid Assets of no less than $45,000,000, Investments in Joint Ventures engaged in any similar or adjacent line of business to that of the Borrower and its Subsidiaries (or one reasonably ancillary or complementary thereto, or which is a reasonable extension, development or expansion thereof) in an amount not to exceed $5,000,000 in the aggregate and funded solely with (x) the proceeds of a sale of Xxxxxxxx’s Capital Stock raised after the Closing Date but within nine (9) months prior to such Investment or (y) the proceeds of Subordinated Indebtedness; provided that, subject to Section 5.13(c), any Capital Stock held by any Loan Party in any such Joint Venture shall be pledged in favor of Agents for the benefit of the Secured Parties pursuant to the Pledge and Security Agreement;
(kkkk)
So long as after giving effect to such Investment, the Loan Parties have Liquid Assets of no less than $45,000,000, Investments in any Unrestricted Subsidiary solely with the proceeds of a sale of Borrower’s Capital Stock raised after the Closing Date and within nine (9) months prior to such Investment;
(llll)
Investments in Meredian Bioplastics, Inc. comprised of the conversion of the outstanding amounts of Indebtedness described in Schedule 6.1A into equity; and
(mmmm)
Permitted Restructuring Transactions.
“Permitted Liens” means:
(nnnn)
Liens in favor of either Agent for the benefit of Secured Parties granted pursuant to any Loan Document;
(oooo)
Liens for Taxes, assessments or governmental charges (i) which are not overdue for a period of more than 30 days, (ii) which are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and reserves in accordance with GAAP have been made, or (iii) in connection with the taxes listed on Schedule 4.10;
(pppp)
statutory or common law Liens of landlords, banks (and rights of set off), of carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such Lien imposed pursuant to Section 401(a)(29) or 430(k) of the Internal Revenue Code or by ERISA), in each case incurred in the ordinary course of business (i) which secure amounts not overdue for a period of more than 30 days or if more than 30 days overdue, are unfiled (or, if filed, have been discharged or stayed) and no other action has been taken to enforce such Lien or (ii) which are being contested in good faith by appropriate proceedings promptly instituted and diligently conduced and reserves in accordance have GAAP have been made;
(qqqq)
pledges, deposits or Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds,
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bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no foreclosure, sale or similar proceedings have been commenced with respect to any portion of the Collateral on account thereof;
(rrrr)
all items of record, survey exceptions, easements, rights of way, restrictions, encroachments, and other minor defects or irregularities in title, in each case which do not and will not interfere in any material respect with the ordinary conduct of the business of Borrower or any of its Subsidiaries;
(ssss)
any interest or title of a lessor or sublessor under any lease permitted hereunder and any deposit securing obligations relating to any lease permitted hereunder;
(tttt)
Liens solely on any Xxxx xxxxxxx money deposits made by Borrower or any of its Included Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;
(uuuu)
purported Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of personal property entered into in the ordinary course of business;
(vvvv)
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 in the ordinary course of business;
(wwww)
any zoning, municipal ordinances or similar law or right reserved to or vested in any governmental office or agency to control or regulate the use of any real property;
(xxxx)
to the extent otherwise permitted pursuant to this Agreement, licenses or sublicenses of patents, trademarks or other intellectual property rights granted by Borrower or any of its Included Subsidiaries, which are in the ordinary course of business and not interfering in any respect with the ordinary conduct of the business of Borrower or such Subsidiary, subject, in each case, to the mandatory prepayment requirement set forth in Section 2.9;
(yyyy)
Xxxxx described in Schedule 6.2 that secure Indebtedness described in Schedule 6.1, but no extensions, renewals or replacements of such Liens shall be permitted except renewals, extensions and replacements thereof in connection with Permitted Indebtedness described in clause (f) of the definition thereof;
(zzzz)
Liens securing purchase money Indebtedness permitted pursuant to clause (g) of the definition of “Permitted Indebtedness” (including any Indebtedness originally incurred by the target acquired in connection with a Permitted Acquisition or acquisition of equipment); provided any such Lien shall encumber only, as applicable, the asset subject to such Capital Lease or the asset acquired with the proceeds of such Indebtedness together with the proceeds of any disposition thereof;
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(aaaaa)
Liens securing judgments (and pledges or Cash deposits made in lieu of, or to secure the performance of appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.1(h);
(bbbbb)
bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to Cash and Cash Equivalents on deposit in one or more accounts maintained by Borrower or an Included Subsidiary, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements; provided that, unless such Liens are non-consensual and arise by operation of law, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;
(ccccc)
Liens on insurance policies and the proceeds thereof (excluding any benefits or any rights to receive payment under any insurance policies) and on unearned premiums incurred in connection with the financing in the ordinary course of business of insurance premiums, provided that such Liens shall be limited only to the unused portion of the premiums payable under such insurance policies and the proceeds of such insurance premiums;
(ddddd)
Liens on deposit accounts or securities accounts in connection with overdraft protection and netting services;
(eeeee)
Liens securing Indebtedness incurred under clause (g) of the definition of “Permitted Indebtedness” which amount shall only be a first priority perfected lien on new equipment or real estate purchased with the proceeds of such Indebtedness and shall be subordinated and junior liens, second in lien priority to the Liens securing the Obligations with respect to IP Rights and all other assets, as evidenced by a first lien second lien intercreditor agreement in form reasonably acceptable to Required Lenders;
(fffff)
Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes an Included Subsidiary of a Loan Party, in each case after the date hereof; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming an Included Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property; it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition) and (iii) the Indebtedness secured thereby constitutes Permitted Indebtedness;
(ggggg)
Liens on cash collateral securing reimbursement obligations with respect to letters of credit in an amount up to 105% of such letters of credit permitted under clause (s) of “Permitted Indebtedness”;
(hhhhh)
Liens on cash collateral supporting Indebtedness permitted to be incurred pursuant to clauses (e) and (i) (provided that in the case of clause (i), such Liens shall attach only
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to assets acquired in the associated Permitted Acquisition) of the defined term “Permitted Indebtedness”;
(iiiii)
Any interest or title of a lessor, sublessor, licensor or sublicensor under any lease or license entered into in accordance with this Agreement;
(jjjjj)
Undetermined inchoate Liens arising or potentially arising under statutory provisions which have not at the time been filed or registered in accordance with applicable law or of which written notice has not been duly given in accordance with applicable law or which, although filed or registered, relate to obligations not due or delinquent;
(kkkkk)
Liens, if any, arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Loan Parties in the ordinary course of business;
(lllll)
Liens on the property of a Person existing at the time such Person is acquired in connection with a Permitted Acquisition; provided, that (i) such Liens were not created in contemplation of such Permitted Acquisition, and (ii) such Liens do not extend to any assets other than those of such Person and provided further that such Liens do not secure Indebtedness for borrowed money;
(mmmmm)
first priority or senior Liens securing Indebtedness incurred under clauses (u) or (y) of the definition of “Permitted Indebtedness”;
(nnnnn)
so long as Lenders hold no less than a second priority Lien on equipment securing Indebtedness permitted under clause (v) of the definition of “Permitted Indebtedness”, senior Liens in favor of any third party; provided that the principal amount of the Indebtedness secured thereby does not exceed 100% of the purchase price of such equipment;
(ooooo)
senior Liens on the Capital Stock of Meredian Bioplastics, Inc. in favor of the United States Department of Energy, Federal Financing Bank, United States Department of Treasury or affiliate entities (collectively, “DOE”) on such Capital Stock it being acknowledged and agreed by Xxxxxx and Agent that in the event of a secured loan transaction between Meredian Bioplastics, Inc. and the DOE, Lender and Agent shall terminate and release any Lien on the Capital Stock of Meredian Bioplastics, Inc. at or prior to the closing of such DOE guaranteed loan pursuant to Title 17 of the Energy Policy Act of 2005;
(ppppp)
so long as Lenders hold no less than a second priority Lien on the Capital Stock of Danimer Scientific Kentucky, Inc., senior Liens in favor of the lenders pursuant to New Market Tax Credit transactions with Danimer Scientific Kentucky, Inc. and so long as Lenders hold no less than a second priority Lien on the Capital Stock of Danimer Scientific Manufacturing, Inc., senior Liens in favor of the lenders pursuant to New Market Tax Credit transactions with Xxxxxxx Scientific Manufacturing, Inc.;
(qqqqq)
exclusive Liens on Deposit Accounts of Danimer Scientific Manufacturing, Inc., and Danimer Scientific Kentucky, Inc., in each case, solely in which are held reserves for the benefit of the New Market Tax Credit lenders to such entities;
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(rrrrr)
so long as Lenders hold no less than a second priority Lien on such Collateral, senior Liens on the Collateral in favor of the Existing Term Loan Lenders; provided, that, such senior liens shall have been terminated no later than the Existing GARJA Loan Payoff Date;
(sssss)
Liens existing on property at the time transferred pursuant to a Permitted Restructuring Transaction; or
(ttttt)
exclusive Liens on Deposit Accounts of Borrower solely in which are held reserves for the benefit of the Existing Term Loan Lenders (the “Existing Term Loan Deposit Accounts”); provided, that, such Liens shall have been terminated no later than the Existing GARJA Loan Payoff Date.
“Permitted Restructuring Transactions” means the transactions set forth on Schedule 1.1(b).
“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.
“Platform” has the meaning specified in Section 5.1.
“Pledge and Security Agreement” means the Pledge and Security Agreement executed by Grantors in favor of Agents for the benefit of the Secured Parties, substantially in the form of Exhibit G, as it may be amended, amended and restated, supplemented or otherwise modified from time to time.
“Public Lender” has the meaning set forth in Section 5.1.
“Principal Office” means, for Administrative Agent, such Person’s “Principal Office” as set forth on Schedule 10.1, or such other office as such Person may from time to time designate in writing to Borrower, Administrative Agent and each Lender; provided that for the purpose of making any payment on the Obligations or any other amount due hereunder or any other Loan Document, the Principal Office of Administrative Agent shall be U.S. Bank Trust Company, National Association, 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, XX 00000-0000, XX-XX-X00X (or such other location as Administrative Agent may from time to time designate in writing to Borrower and each Lender).
“Private Lender” means Lenders other than Public Lenders who have executed a confidentiality agreement with respect to receipt and confidential treatment of MNPI.
“Pro Rata Share” means with respect to any Lender the percentage obtained by dividing (i) the Term Loan Exposure of that Lender, by (ii) the aggregate Term Loan Exposure of all Lenders.
“Protective Advances” has the meaning specified in Section 2.2.
“Public Lender” has the meaning specified in Section 5.1.
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“Qualified Capital Stock” means Capital Stock that is not Disqualified Capital Stock.
“Qualified License” has the meaning specified in the definition of “Asset Sale”.
“Real Estate Asset” means, at any time of determination, any fee-owned Real Property owned by any Loan Party.
“Real Property” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by any Loan Party.
“Recipient” means (a) any Agent or (b) any Lender.
“Register” has the meaning specified in Section 2.5(b).
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Reinvestment Amount” has the meaning specified in Section 2.9(a).
“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.
“Remedial Action” means all actions taken to (a) correct or address any actual or threatened non-compliance with Environmental Law, (b) clean up, remove, remediate, contain, treat, monitor, assess, evaluate or in any other way address Hazardous Materials in the indoor or outdoor environment, (c) 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, (d) perform pre-remedial studies and investigations and post-remedial operation and maintenance activities or (e) perform any other actions authorized or required by Environmental Law or Governmental Authority.
“Required Lenders” means Lenders collectively holding more than 50% of the outstanding Term Loans in effect at any time of determination.
“Requirements of Law” means, with respect to any Person, collectively, the common law and all federal, state, provincial, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations,
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directives, requirements or requests of, any Governmental Authority, in each case that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Restricted Junior Payment” means (a) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of Borrower now or hereafter outstanding, except a dividend payable solely in shares of that class of Capital Stock to the holders of that class, (b) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Capital Stock of Borrower or any of its Included Subsidiaries now or hereafter outstanding, (c) any payment made to retire, or to obtain the surrender of and, other than during the continuance of an Event of Default hereunder, any payments, prepayments or other transfers on account of the principal amount of any Subordinated Indebtedness, in each case whether or not scheduled, and following the occurrence of and during the continuance of any Event of Default hereunder, any payments, prepayments, or other transfers on account of the principal amount of or interest owed under any Subordinated Indebtedness in each case whether or not scheduled and (d) any payment made to retire, or to obtain the surrender of and, other than during the continuance of an Event of Default hereunder, any payments, prepayments or other transfers on account of the principal amount of any Convertible Notes, in each case whether or not scheduled, and following the occurrence of and during the continuance of any Event of Default hereunder, any payments, prepayments, or other transfers on account of the principal amount of or interest owed under any Convertible Notes in each case whether or not scheduled. For the avoidance of doubt, neither (i) cash management transfers or other payments between and among Loan Parties nor (ii) forfeitures of equity securities by any officer or employee of Borrower or any of its Subsidiaries to Borrower made to satisfy tax withholding and/or exercise price obligations in respect of Borrower equity awards to such Person shall constitute Restricted Junior Payments.
“S&P” means Standard & Poor’s Ratings Group, a division of S&P Global.
“Sanctioned Country” means, at any time, a country, region or territory which is the subject or target of comprehensive Sanctions, currently, Cuba, Iran, Syria, North Korea, and the Crimea, so-called People’s Republic of Donetsk (DNR) and so-called People’s Republic of Luhansk (LNR) regions of Ukraine.
“Sanctions” means all economic and financial sanctions administered and enforced by any Sanctions Authority.
“Sanctions Authority” means (a) the United Nations Security Council, (b) the United States government, (c) the United Kingdom government, (d) the European Union, including the government of any member state thereof, and (e) any other relevant Governmental Authority having jurisdiction over the Borrower or any of its Subsidiaries.
“Secured Parties” has the meaning assigned to that term in the Pledge and Security Agreement.
“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options,
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warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing; provided, however, that notes or other evidences of indebtedness relating to a revolving credit facility, any deferred purchase price of assets acquired in the conduct of the business of any Loan Party, trade payables and similar indebtedness shall not be deemed Securities.
“Securities Account” means a securities account (as defined in the UCC).
“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.
“Securitization Trust” means a Person to which the aggregate amount of the Term Loan is assigned by the originating Lenders for purposes of facilitating a securitization of the aggregate amount of the Term Loan pursuant to a Note Purchase and Security Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among the issuer, the purchasers referred to therein and U.S. Bank Trust Company, National Association, in the capacities as the collateral agent, securities intermediary, information agent and note agent under the Note Purchase Agreement; provided that, except upon the occurrence and during the continuance of an Event of Default, the originating Lenders shall not be permitted to make any such assignment to a Disqualified Institution. For avoidance of doubt, the assignment of the aggregate amount of the Term Loan to a Securitization Trust shall not require consent of any Loan Party or the Administrative Agent.
“Securitization Trustee” means at any time the collateral agent, securities intermediary, information agent and note agent, engaged in respect of notes sold by the Securitization Trust pursuant to the Note Purchase Agreement.
“Senior Lien Intercreditor Agreement” means an intercreditor agreement with terms substantially consistent with those set forth on Exhibit O, with such additional terms and conditions as agreed to by the Required Lenders in the exercise of its reasonable credit judgment.
“Specified Event” has the meaning specified in the definition of “Specified Premium”.
“Specified Payment” has the meaning set forth in Section 2.8(b)(i).
“Specified Premium” means, with respect to any Term Loan on any date that a prepayment or repayment becomes due and owing under this Agreement, whether or not paid or any Term Loan that is actually repaid, prepaid, terminated, reduced, paid, redeemed, satisfied, released, distributed, discharged, or accelerated on or prior to the date that is 24 months following the Closing Date (each, a “Specified Event”), the present value of the sum of the amounts of each interest payment due on the repaid, prepaid, terminated, reduced, paid, redeemed, satisfied, released, distributed, discharged, or accelerated portion of such Term Loan on each Interest Payment Date during the period extending from the date such prepayment or repayment becomes due and owing under this Agreement, whether or not paid, through and including the date that is
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24 months following the Closing Date (excluding accrued but unpaid interest as of the date of prepayment or repayment, which shall be separately paid in accordance with the terms of Section 2.6, as applicable) computed using a discount rate equal to the Treasury Rate (determined as of the Business Day prior to such date of prepayment) plus 0.50%.
“Subordinated Indebtedness” means Indebtedness (including unsecured Indebtedness convertible into or exchangeable or exercisable for any Capital Stock, including, without limitation, Convertible Notes) or Disqualified Capital Stock, in either case of any Loan Party (a) that is subordinated in right of payment and lien priority (as applicable) to the Term Loans pursuant to a Subordination Agreement, (b) with respect to payment subordination, contains subordination provisions that are customary in the good faith determination of Borrower for senior subordinated notes or subordinated notes issued under Rule 144A of the Securities Act (or other corporate issuers in private placements or public offerings of securities), or (c) that contains customary subordination provisions that include, without limitation, the following customary terms (or such other terms as shall have been delivered to the Lenders and the Administrative Agent ten (10) Business Days prior to the execution of such proposed subordination agreement and the Required Lenders shall not have objected in writing to such proposed subordination agreement within such ten (10) Business Days following receipt of such draft): (i) such Indebtedness shall be unsecured, (ii) interest in cash shall be payable only at maturity, (iii) the maturity date of all such Indebtedness shall not be earlier than six (6) months after the scheduled Term Loan Maturity Date, (iv) such Indebtedness shall be subordinated in right of payment (with an enforcement standstill and extension of payment due dates under such Indebtedness) to the payment in full of the Obligations and (v) such Indebtedness, if convertible, shall convert to Capital Stock automatically concurrently with the next round of equity financing or at its stated maturity date.
“Subordination Agreement” means a subordination agreement in form and substance reasonably acceptable to the Required Lenders entered into by any officer or director of, consultant to or direct or indirect shareholder of, any Loan Party, on the one hand, and a Loan Party, on the other hand, with respect to Indebtedness owed by such Loan Party to such Person.
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding, provided, further, that any Person in which any Loan Party has acquired Capital Stock pursuant to a Permitted Investment in a Joint Venture shall not constitute a Subsidiary for purposes of this Agreement until such time as a Loan Party or other Subsidiary holds more than 50% of the total voting power of shares of stock or other ownership interests at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, at which time, such entity shall become a Subsidiary.
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“Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding in the nature of a tax, withheld or assessed by a Governmental Authority and all interest, penalties or additions to tax with respect thereto.
“Term Loan” or “Loan” means a loan made by a Lender to Borrower pursuant to Section 2.1(a). The initial holder of all of Term Loans shall be the Lender identified as holding Term Loans on Appendix A hereto.
“Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Term Loan and “Term Loan Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Term Loan Commitment, if any, is set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Term Loan Commitments as of the Closing Date is $130,000,000.
“Term Loan Exposure” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Term Loans of such Lender plus, until terminated, the unutilized portion of such Xxxxxx’s Term Loan Commitment.
“Term Loan Maturity Date” means the earlier of (a) March 17, 2027, (b) September 15, 2026, if more than $100,000,000 of the Existing Convertible Notes remains outstanding as of such date or (c) such earlier date to which the Term Loan Maturity Date may be advanced pursuant to this Agreement or operation of law. For avoidance of doubt the Term Loan Maturity Date shall apply to all Term Loans regardless of when funded.
“Third Party License Agreement” has the meaning set forth in Section 5.14(c).
“Threshold Amount” means $2,000,000.
“Title Policy” means an ALTA mortgagee title insurance policies or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to the Required Lenders with respect to each Material Real Estate Asset, in the amount which is reasonably satisfactory to Required Lenders, but in no event more than the Fair Market Value of such Material Real Estate Asset, together with a title report issued by a title company with respect thereto, dated not more than 30 days prior to the date of the applicable Mortgage and, upon the request of the Required Lenders, copies of all available recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Required Lenders together with such available endorsements as are reasonably requested by the Required Lenders, and such surveys, affidavits, certificates, instruments of indemnification, including a so-called “gap” indemnification as shall be reasonably required to induce the title insurance company to issue the Title Policy contemplated above;
“Trade Announcements” has the meaning specified in Section 10.17.
“Transaction Costs” means the fees, costs and expenses payable by Borrower or any of its Subsidiaries on or before the Closing Date in connection with the Transactions.
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“Transactions” means, collectively, (a) the issuance of the AON Insurance Policy, (b) the funding of the Term Loans on the Closing Date, (c) the execution and delivery of the Loan Documents to be executed and delivered on the Closing Date, or pursuant to Section 5.15 and the Warrant, and (d) the payment of Transaction Costs.
“Treasury Rate” means a rate per annum (computed on the basis of actual days elapsed over a year of 360 days) equal to the rate determined by the Administrative Agent on the date one (1) Business Day prior to the date of prepayment, to be the yield expressed as a rate listed in The Wall Street Journal for United States Treasury securities having a term of no greater than the period of remaining months until the first anniversary of the Closing Date.
“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.
“United States” means the United States of America.
“Unrestricted Subsidiary” means (i) each of Meredian Bioplastics, Inc., Firtill Investments sp. z. o.o., and as of the ninety-first (91st) day following receipt of the DSKY NMTC Consents, Novomer, Inc., (ii) any newly created Subsidiary that is wholly owned by an Unrestricted Subsidiary and (iii) any newly created Subsidiary of a Loan Party into which an Unrestricted Subsidiary transfers all or a portion of its assets, and which such newly created Subsidiary (a) engages in a line of business in which the transferring Unrestricted Subsidiary is engaged in or is reasonably related to or an extension thereof and (b) immediately prior to such transfer and at the time thereof, does not own any assets (other than de minimis assets necessary for the formation of such Subsidiary) or owe any liabilities.
“Voluntary Prepayment” has the meaning specified in Section 2.8(a).
“Warrant” means that certain Warrant to Purchase Common Stock, dated March 17, 2023, made by Borrower and Xxxxxxxxx Funding LLC.
“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.
Section 1.2.
Accounting and Other Terms.
(a)
Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in accordance with GAAP. Financial statements and other information required to be delivered by Borrower to Lenders pursuant to Section 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered together with the reconciliation statements provided for in Section 5.1(e), if applicable). Subject to the foregoing, calculations in connection with the definitions, covenants and other provisions hereof shall utilize accounting principles and policies in conformity with those used to prepare the Historical Financial Statements. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Loan Parties shall
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be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded. Any calculation to be made on a “pro forma basis” shall be calculated assuming that the specified transactions had occurred on the first day of the applicable period.
(b)
All terms used in this Agreement which are defined in Article 8 or Article 9 of the UCC as in effect from time to time in the State of New York and which are not otherwise defined herein shall have the same meanings herein as set forth therein, provided that terms used herein which are defined in the UCC as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as Agents may otherwise determine.
(c)
Notwithstanding any other provision contained herein, for all purposes of this Agreement and the other Loan Documents, including negative covenants and component definitions, GAAP will be deemed to treat operating leases and Capital Leases in a manner consistent with the treatment under GAAP as in effect prior to the issuance by the Financial Accounting Standards Board on February 24, 2016 of Accounting Standards Update No. 2016-02.
Section 1.3.
Interpretation, etc. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word “include” or “including,” when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not no limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any right or interest in or to assets and properties of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible. Any reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations or Guaranteed 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 Term Loans, together with the payment of any premium applicable to the repayment of the Term Loan, including the Specified Premium, (ii) all costs, expenses, or indemnities payable pursuant to Section 10.2 or 10.3 of this Agreement that have accrued and are unpaid (other than contingent reimbursement or indemnification obligations for which no claim has been asserted), (iii) all fees or charges that have accrued hereunder or under any other Loan Document and are unpaid, (b) the receipt by Agents 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 an Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage, or expense (including reasonable attorneys’ fees and legal expenses), such cash collateral to be in such amount as Agents reasonably determine is appropriate to secure such contingent Obligations, (c) the payment or repayment in full in immediately available funds of all other outstanding Obligations, and (d) the termination of all of the Commitments of the
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Lenders. Notwithstanding anything in this Agreement to the contrary, (A) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (B) 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 enacted, adopted, issued, phased in or effective after the date of this Agreement regardless of the date enacted, adopted, issued, phased in or effective.
Section 1.4.
Time References. Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or Eastern Daylight saving time, as in effect in New York City on such day. For purposes of the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; provided, however, that with respect to a computation of fees or interest payable to any Agent or any Lender, such period shall in any event consist of at least one full day.
ARTICLE II
LOANS
LOANS
Section 2.1.
Term Loans.
(a)
Term Loan Commitments. Subject to the terms and conditions hereof, each Lender holding a Term Loan Commitment as set forth on Appendix A severally agrees to make, on the Closing Date, a Term Loan to Borrower in an aggregate amount that equals such Xxxxxx’s Term Loan Commitment. On the Closing Date, Borrower shall make one borrowing under the Term Loan Commitment in the aggregate amount of $130,000,000. Any amount borrowed under this Section 2.1(a) and subsequently repaid or prepaid may not be reborrowed. Subject to Section 2.8 and Section 2.9, all amounts owed hereunder with respect to the Term Loans and the other Obligations shall be paid in full no later than the Term Loan Maturity Date.
(b)
Borrowing Mechanics.
(i)
Borrower shall draw the entire Term Loan Commitment on the Closing Date and all Term Loan Commitments not utilized by Borrower on the Closing Date shall expire and be of no force or effect without need for any action by any Lender.
(ii)
Upon satisfaction of the requirements of Section 3.1 (other than those requirements that cannot be met until funding hereunder, provided that such requirements shall be satisfied substantially concurrently with the funding hereunder), or waiver of such requirements by the Required Lenders in accordance with Section 10.5, Borrower shall deliver to Administrative Agent a fully executed Funding Notice (requesting the Administrative Agent to wire all funds into the Initial Funding Account) no later than 1:00 p.m. New York City time one (1) Business Day prior to the Closing Date. Such Funding Notice shall confirm that (A) to the extent not otherwise waived by the Required Lenders in accordance with Section 10.5, all conditions to funding set forth in Section 3.1 are satisfied (other than those requirements that cannot be met until funding hereunder, provided that such requirements shall be satisfied substantially concurrently with the
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funding hereunder) and (B) after giving effect to the requested advance, the Term Loans made on the Closing Date do not exceed the total amount of Term Loan Commitments as of the Closing Date. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Lender of Borrower’s request to borrow and such Xxxxxx’s Pro Rata Share of the same. To the extent not otherwise waived by the Required Lenders in accordance with Section 10.5, Lenders shall notify Administrative Agent and Borrower as to whether Lenders concur that all conditions to funding set forth in Section 3.1 are satisfied. Administrative Agent and Lenders (A) may act without liability upon the basis of written, facsimile or electronic notice believed by Administrative Agent in good faith to be from Borrower (or from any Authorized Officer thereof designated in writing purportedly from Borrower to Administrative Agent), (B) shall be entitled to rely conclusively on any Authorized Officer’s authority to request Term Loans on behalf of Borrower until Administrative Agent receives written notice to the contrary and (C) shall have no duty to verify the authenticity of the signature appearing on any written Funding Notice.
(iii)
If Required Lenders have not notified the Administrative Agent and Borrower that any conditions to funding set forth in Sections 3.1 are not satisfied or waived in accordance with Section 10.5, prior to 11:00 a.m. New York City time on the requested funding date, each Lender will make available its Pro Rata Share of Term Loan Commitment to the Administrative Agent prior to 12:00 p.m. New York City time on the requested funding date. All such amounts will be made available in Dollars and in immediately available funds at the Principal Office, and, upon receipt of all requested funds, after verifying Borrower’s wire instructions via telephone, the Administrative Agent will make available to Borrower on the requested funding date at the Principal Office the applicable amount so made available by the Lenders. In the event of pre-funding on behalf of a Lender by Administrative Agent, if such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify Borrower and Borrower shall within one (1) Business Day after receiving such notice promptly repay such corresponding amount to the Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the Fixed Rate.
(c)
Promise to Pay. Xxxxxxxx hereby promises to pay to the Administrative Agent or order for the ratable benefit of the Lenders all Term Loans made to Borrower hereunder, all interest due thereon pursuant hereto and all other Obligations owing to an Agent or any Lender, in each case in accordance with the terms of this Agreement. Subject to Section 2.8 and Section 2.9, all amounts owed hereunder, including without limitation, all principal and interest due in respect of the Term Loans, shall be paid by Borrower in full no later than the Term Loan Maturity Date.
Section 2.2.
Protective Advances. Subject to the limitations set forth below, and if an Event of Default shall have occurred and be continuing, each Agent is authorized by Borrower and the Lenders, from time to time at the written direction of the Required Lenders in their sole discretion, to make disbursements or advances to Borrower, which the Required Lenders in their sole discretion deem necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Term Loans and other Obligations, or (c) to pay any other amount chargeable to or required to be paid by Borrower pursuant to the terms of this Agreement and the other Loan Documents, including,
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without limitation, payments of principal, interest, fees and reimbursable expenses (any of such loans are referred to as “Protective Advances”). The interest rate on all Protective Advances shall be at the Fixed Rate. Each Protective Advance shall be secured by the Liens in favor of Agents for the benefit of the Secured Parties in and to the Collateral and shall constitute Obligations hereunder. The Protective Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 2.11(e). Borrower shall pay the unpaid principal amount and all unpaid and accrued interest of each Protective Advance on the earlier of the Term Loan Maturity Date and the date on which demand for payment is made by the applicable Agent. The applicable Agent shall notify each Lender and Borrower in writing of each such Protective Advance, which notice shall include a description of the purpose of such Protective Advance. Without limitation to its obligations pursuant to Section 9.8, each Lender agrees that it shall make available to the applicable Agent, upon such Agent’s demand, in Dollars in immediately available funds, the amount equal to such Xxxxxx’s Pro Rata Share of each such Protective Advance. If such funds are not made available to the applicable Agent by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to the applicable Agent, at the Federal Funds Effective Rate for three (3) Business Days and thereafter at the Fixed Rate. All Protective Advances shall be funded only by, and shall be repayable only to, Lenders holding Term Loans according to their holdings of Term Loans
Section 2.3.
Pro Rata Shares; Availability of Funds.
(a)
Pro Rata Shares. All Term Loans shall be made by Xxxxxxx simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder nor shall any Term Loan Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder. Protective Advance fundings shall be ratably allocated to each Lender holding Term Loans according to their holdings of Term Loans.
(b)
Availability of Funds. Unless Administrative Agent shall have been notified by any Lender prior to the applicable Credit Date that such Lender does not intend to make available to Administrative Agent the amount of such Xxxxxx’s Loan requested on such Credit Date, Administrative Agent may assume that such Xxxxxx has made such amount available to Administrative Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to Borrower a corresponding amount on such Credit Date. If such corresponding amount is not in fact made available to Administrative Agent by such Xxxxxx, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the correction of errors among banks for three Business Days and thereafter at the Fixed Rate. In the event of pre-funding on behalf of a Lender by Administrative Agent, if such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify Borrower and Borrower shall within one (1) Business Day after receiving such notice promptly repay such corresponding amount to the Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the Fixed Rate. Nothing in this Section
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2.3(b) shall be deemed to relieve any Lender from its obligation to fulfill its Term Loan Commitments hereunder or to prejudice any rights that Borrower may have against any Lender as a result of any default by such Xxxxxx xxxxxxxxx.
Section 2.4.
Use of Proceeds. The proceeds of Term Loan advances made on the Closing Date shall be applied by Borrower (a) to pay Transaction Costs, (b) to fund the Interest Reserve Amount, the Insurance Premium Reserve Amount, (c) to pay premiums, taxes, fronting fees, underwriting fees and any other amounts due to any Person in respect of the issuance of the AON Insurance Policy, (d) to pay the Existing Term Loan and (e) for working capital and general corporate purposes of Borrower and its Subsidiaries, including capital expenditures, Permitted Acquisitions, research and development and general and administrative expenses. No portion of the proceeds of the Credit Extension shall be used in any manner that would reasonably be expected to cause such Credit Extension or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof or to violate the Exchange Act.
Section 2.5.
Evidence of Debt; Register; Lenders’ Books and Records; Notes.
(a)
Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of Borrower to such Lender, including the amounts of the Term Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on Borrower, absent manifest error; provided that the failure to make any such recordation, or any error in such recordation, shall not affect Xxxxxxxx’s Obligations in respect of any Term Loans; and provided further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.
(b)
Register. Administrative Agent shall maintain at its Principal Office a register for the recordation of the names and addresses of Lenders and the principal amount of the Term Loans (and stated interest thereon) of each Lender from time to time (the “Register”). The Register shall be available for inspection by Borrower or Agents at any reasonable time and from time to time upon reasonable prior notice. Administrative Agent shall record in the Register the Term Loans, any assignment or transfer of Term Loans and each repayment or prepayment in respect of the principal amount of the Term Loans, and any such recordation shall be conclusive and binding on Borrower and each Lender, absent manifest error, and Borrower, Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender for all purposes of this Agreement; provided that failure to make any such recordation, or any error in such recordation, shall not affect Xxxxxxxx’s Obligations in respect of any Loan. Borrower hereby designates the entity serving as Administrative Agent to serve as Xxxxxxxx’s non-fiduciary agent solely for purposes of maintaining the Register as provided in this Section 2.5, and Xxxxxxxx hereby agrees that, to the extent such entity serves in such capacity, the entity serving as Administrative Agent and its officers, directors, employees, agents and affiliates shall constitute “Indemnitees.”
(c)
Notes. If so requested by any Lender by written notice to Borrower (with a copy to Administrative Agent) at least two (2) Business Days prior to the Closing Date, or at any time thereafter, Xxxxxxxx shall execute and deliver to such Lender (and/or, if applicable and if so
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specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after Xxxxxxxx’s receipt of such notice) a Note or Notes.
Section 2.6.
Interest.
(a)
Except as otherwise set forth herein, each Term Loan shall bear interest at the Fixed Rate on the unpaid principal amount thereof from the date made through the date of repayment (whether by acceleration or otherwise) thereof.
(b)
Except as otherwise set forth herein, interest on each Loan shall be payable in Dollars and in arrears (i) on and to each Interest Payment Date applicable to that Loan, (ii) upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid, (iii) at maturity, including final maturity and (iv) upon the occurrence and during the continuance of an Event of Default, including the failure to repay Obligations on the Term Loan Maturity Date, upon demand.
(c)
Interest payable pursuant to this Section 2.6 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 it accrues. In computing interest on any Term Loan, the date of the making of such Term Loan shall be included, and the date of payment of such Term Loan shall be excluded; provided, if a Term Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.
Section 2.7.
Default Interest. Upon the occurrence and during the continuance of an Event of Default, the principal amount of all Term Loans outstanding and, to the extent permitted by applicable law, any interest payments on the Term Loans or any fees or other amounts owed hereunder (including any Specified Premium), shall thereafter bear interest (including post petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand at a rate that is two (2) percentage points per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Term Loans (or, in the case of any such fees and other amounts, at a rate which is two (2) percentage points per annum in excess of the Fixed Rate). Payment or acceptance of the increased rates of interest provided for in this Section 2.7 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of any Agent or any Lender.
Section 2.8.
Payments Prior to Maturity.
(a)
Mechanics.
(i)
Subject to clause (b) below, Borrower may prepay Term Loans on any Business Day in whole or in part, in an aggregate minimum amount of $1,000,000 (each such payment, a “Voluntary Prepayment”).
(ii)
All such Voluntary Prepayments shall be made, together with the Specified Premium, and all interest then due on the principal amount being so prepaid, upon not less than one (1) Business Day’s irrevocable prior written notice given to Administrative Agent by
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12:00 p.m. (New York City time) on the date required (and Administrative Agent will promptly notify each Lender of each such prepayment notice). Upon the giving of any such notice, the principal amount of the Term Loans specified in such notice shall become irrevocably due and payable on the prepayment date specified therein. Any such Voluntary Prepayment shall be applied as specified in Section 2.10. Notwithstanding the foregoing, such written notice may be conditioned on the effectiveness of an agreement, the proceeds of which will be used to pay in full the Obligations.
(b)
Call Protection.
(i)
Except as provided in this Section 2.8(b)(i), each Voluntary Prepayment, each mandatory prepayment that becomes due pursuant to Section 2.9, and each payment that becomes due as a result of acceleration of the Term Loan Maturity Date pursuant to Section 8.1 or otherwise (including, for the avoidance of doubt and without limitation, as a result of Section 8.1(f) or (g) or as a result of applicable law), in each case on or prior to the date that is twenty-four (24) months following the Closing Date (each, a “Specified Payment”) shall be accompanied by the Specified Premium in respect of such Specified Payment.
(ii)
Borrower hereby agrees to pay the Specified Premium to Administrative Agent for the ratable benefit of the Lenders with respect to (x) each Specified Payment of the Term Loan made under Section 2.8 or Section 2.9, (y) any other acceleration of the Term Loan pursuant to Section 8.1 or otherwise (including, for the avoidance of doubt and without limitation, as a result of Section 8.1(f) or (g) or as a result of applicable law)) or (z) the occurrence of any other Specified Event, in each case, with respect to the amount of the Specified Payment of the Term Loan repaid, prepaid, terminated, reduced, paid, redeemed, satisfied, released, distributed, discharged or accelerated (whether or not paid), concurrently with such repayment, prepayment, redemption, satisfaction, discharge or acceleration (whether or not paid).
(iii)
Any Specified Premium payable pursuant to this Section 2.8(b) constitutes liquidated damages sustained by each Lender as the result of the early repayment, prepayment, distribution, termination, reduction, payment, redemption, release, satisfaction, discharge or acceleration (whether or not paid) of its Term Loan and Borrower agrees that it is reasonable under the circumstances in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s losses as a result thereof. Any prepayment, repayment, payment, satisfaction (whether in whole or in part), distribution, termination, release, reduction or discharge of the Term Loan (including, without limitation, by foreclosure (whether by power of sale or judicial proceeding) or by any other means), irrespective of whether such prepayment, repayment, payment, satisfaction, distribution, release, discharge, termination or reduction occurs following any earlier maturity of the Term Loan, including, without limitation, pursuant to any voluntary or involuntary acceleration of the Term Loan pursuant to Section 8.1 or otherwise (including, for the avoidance of doubt and without limitation, as a result of Section 8.1(f) or (g) or as a result of applicable law), or the commencement of any Insolvency Proceeding or other proceeding pursuant to any Debtor Relief Laws, or pursuant to a plan of reorganization, and including, without limitation, any prepayment, repayment, payment, termination, reduction, release, satisfaction, distribution or discharge of the Term Loan (a) pursuant to this Section 2.8 or Section 2.9, (b) after acceleration thereof, including, without limitation, pursuant to Section 8.1 (including, for the
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avoidance of doubt and without limitation, as a result of Section 8.1(f) or (g) or as a result of applicable law) or such amount otherwise becoming or being declared immediately due and payable pursuant to the terms hereof and (c) whether before or after any acceleration of the Term Loan pursuant to Section 8.1 (including, for the avoidance of doubt and without limitation, as a result of Section 8.1(f) or (g) or as a result of applicable law), shall, in each case be accompanied by, and there shall become due and payable automatically on the date of any of the foregoing, the Specified Premium, payable in Dollars on the principal amount so prepaid or on the principal amount that has become or is declared to be immediately due and payable pursuant to Section 8.1 or otherwise (including, for the avoidance of doubt and without limitation, as a result of Section 8.1(f) or (g) or as a result of applicable law), or in respect of which such claim in any bankruptcy, insolvency, reorganization, liquidation, judicial management or similar proceeding has arisen, or otherwise constituting the principal amount of the Term Loan prepaid, repaid, paid, satisfied, distributed, discharged, terminated, reduced or accelerated, as applicable.
(iv)
Borrower acknowledges that Lender would not have extended the Term Loan without the inducement of the payment of the Specified Premium. BORROWER EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE SPECIFIED PREMIUM. Borrower expressly agrees (to the fullest extent it may lawfully do so) that: (A) the Specified Premium is the product of a transaction on Arm’s Length Terms between sophisticated business people, ably represented by counsel; (B) the Specified Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and Borrower giving specific consideration in the transactions contemplated by the Loan Documents for such agreement to pay the Specified Premium; and (D) Borrower shall be estopped hereafter from claiming differently than as agreed to herein, including in this Section 2.8(b).
(v)
If the Obligations are accelerated for any reason, including, without limitation, because of default, sale, transfer or encumbrance that results in an Event of Default hereunder (including that by operation of law or otherwise, and including, for the avoidance of doubt and without limitation, as a result of Section 8.1(f) or (g) or as a result of applicable law), the Specified Premium on Term Loan will also automatically and concurrently with such acceleration become due and payable as though said indebtedness was voluntarily prepaid and shall constitute part of the Obligations. The Specified Premium on the Term Loan shall also be payable in the event the Obligations (and/or this Agreement or the Notes (if any) evidencing the Obligations) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. TO THE EXTENT LEGALLY PERMISSIBLE, BORROWER EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW WHICH PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING SPECIFIED PREMIUM ON THE TERM LOAN IN CONNECTION WITH ANY SUCH ACCELERATION.
Section 2.9.
Mandatory Prepayments.
(a)
Asset Sales. No later than the tenth Business Day following the date of receipt by any Loan Party of any Net Proceeds from Asset Sales in excess of $1,000,000 in the aggregate in any Fiscal Year, and to the extent a Cash Sweep will not be required with respect thereto,
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Borrower shall prepay the Term Loans as set forth in Section 2.11(a) in an aggregate amount equal to such Net Proceeds; provided, that if Borrower has delivered to Agent prior written notice of Xxxxxxxx’s intention to apply such monies (the “Reinvestment Amounts”) to reinvest in or to the costs of purchase of other assets used or useful in the business of the Loan Parties, including capital expenditures (together, a “Reinvestment”), the Loan Parties shall have the option to apply such Reinvestment Amounts to a Reinvestment within 180 days after the initial receipt of such Reinvestment Amounts (the “Initial Reinvestment Period”) (or, if such Reinvestment is not completed within the Initial Reinvestment Period, such Reinvestment Amounts are committed pursuant to a binding written agreement within such Initial Reinvestment Period to be applied, and are so applied, within 180 days of the end of the Initial Reinvestment Period (such 180 day period, plus the Initial Reinvestment Period, the “Reinvestment Period”)); provided, further that if any such Reinvestment Amounts are no longer intended to be or cannot be so Reinvested during the applicable Reinvestment Period, an amount equal to any such Reinvestment Amounts shall be applied to the prepayment of the Term Loans within ten (10) Business Days after the Borrower reasonably determines that such Reinvestment Amounts are no longer intended to be or cannot be so Reinvested, and in no event later than the end of the applicable Reinvestment Period as set forth in Section 2.10. Each mandatory prepayment due hereunder made on account of the Obligations shall be accompanied by the applicable Specified Premium pursuant to Section 2.8(b). For avoidance of doubt, Net Proceeds of any Extraordinary IP Rights Transaction shall not be considered an “Asset Sale” for the purposes of this Section 2.9(a), but shall be the subject of a mandatory prepayment pursuant to Section 2.9(d) and not this Section 2.9(a).
(b)
Sale of Novomer, Inc. No later than the tenth Business Day following the date of receipt by any Loan Party of any Net Proceeds from the sale of all or substantially all of the assets of Novomer, Inc., Borrower shall prepay the Term Loans as set forth in Section 2.11(a) in an aggregate amount equal to such Net Proceeds except to the extent such Net Proceeds have been reinvested in a Reinvestment in accordance with Section 2.9(a);
(c)
Issuance of Indebtedness. On the date of receipt by a Loan Party of any Cash proceeds from the incurrence or issuance of any Indebtedness (including Disqualified Capital Stock) of a Loan Party (other than with respect to any Indebtedness (other than Disqualified Capital Stock) permitted to be incurred pursuant to Section 6.1), Borrower shall prepay the Term Loans as set forth in Section 2.11(a) in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and reasonable costs, fees and expenses associated therewith, in each case, paid to non-Affiliates, including reasonable legal fees and expenses. Each mandatory prepayment due hereunder made on account of the Obligations shall be accompanied by the applicable Specified Premium pursuant to Section 2.8(b).
(d)
Extraordinary Receipts. Within ten (10) Business Days following the date of receipt by a Loan Party or any of its Included Subsidiaries of any Extraordinary Receipts not otherwise used to make a prepayment under this Section 2.9, and to the extent a Cash Sweep will not be required with respect thereto, Borrower shall prepay the Term Loans as set forth in Section 2.11(a) in an aggregate amount equal to 100% of the Net Proceeds of such Extraordinary Receipts. For avoidance of doubt, no proceeds received by the Administrative Agent in respect of a claim under the AON Insurance Policy, shall be applied to prepay the outstanding principal balance of any Term Loan. Each mandatory prepayment due hereunder shall be accompanied by the applicable Specified Premium pursuant to Section 2.8(b). For avoidance of doubt, any mandatory
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prepayment in respect of Net Proceeds of any Extraordinary IP Rights Transaction shall not be required under Section 2.9(a), but shall be required pursuant to this Section 2.9(d).
(e)
Prepayment Certificate. Concurrently with any prepayment of the Term Loans pursuant to clauses (a) through (d) above, Borrower shall deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds and compensation owing to Lenders hereunder, if any. In the event that Borrower shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, Borrower shall promptly make an additional prepayment of the Term Loans, and Borrower shall concurrently therewith deliver to Agents a certificate of an Authorized Officer demonstrating the derivation of such excess. Each mandatory prepayment due hereunder made on account of the Obligations shall be accompanied by the applicable Specified Premium pursuant to Section 2.8(b).
(f)
No Specified Premium for Repayment at the Original Maturity. For avoidance of doubt, upon payment of all or any part of the Obligations in Cash in Dollars on, or after the date that is twenty-four (24) months following the Closing Date, no Specified Premium shall be due in respect of that repayment unless the Term Loan Maturity Date has previously been accelerated by election of Lenders or operation of law (in which event a Specified Premium became due upon such acceleration and shall remain payable regardless of when the Obligations are paid).
Section 2.10.
Application of Prepayments. So long as no Event of Default has occurred and is continuing, any voluntary prepayment of the Term Loans pursuant to Section 2.8 or mandatory prepayment of the Term Loans pursuant to Section 2.9 shall be applied to the principal of the Term Loans until paid in full in Cash in Dollars. At any time that an Event of Default has occurred and is continuing, all payments shall be applied pursuant to Section 2.11(g). Nothing contained herein shall modify the provisions of Section 2.8(b) or Section 2.11(b) regarding the requirement that all prepayments be accompanied by accrued interest and fees on the principal amount being prepaid to the date of such prepayment and the Specified Premium, if any, or any requirement otherwise contained herein to pay all other amounts as the same become due and payable.
Section 2.11.
General Provisions Regarding Payments.
(a)
All payments by Borrower of principal, interest, fees and other Obligations shall be made in Dollars in immediately available funds, without defense, recoupment, setoff or counterclaim, free of any restriction or condition, and delivered to Administrative Agent, for the account of Lenders, not later than 1:00 p.m. (New York City time) to Administrative Agent’s Account; funds received by Administrative Agent after that time on such due date may, in Administrative Agent’s discretion, be deemed to have been paid by Xxxxxxxx on the next Business Day and any applicable interest or fee shall continue to accrue.
(b)
All payments in respect of the principal amount of any Loan shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid, any Specified Premium, and other amounts payable with respect to the principal amount being repaid or prepaid.
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(c)
Administrative Agent shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due with respect thereto, including, without limitation, any Specified Premium and all fees payable with respect thereto, to the extent received by Administrative Agent.
(d)
Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest hereunder.
(e)
Borrower hereby authorizes Administrative Agent to charge Xxxxxxxx’s accounts with Administrative Agent or any of its Affiliates in order to cause timely payment to be made to Administrative Agent of all principal, interest, fees and expenses due hereunder. The Lenders and Xxxxxxxx also hereby authorize Administrative Agent to, and Administrative Agent may, from time to time, charge the Loan Account with any amount due and payable by Borrower under any Loan Document. Each of the Lenders and Xxxxxxxx agrees that Administrative Agent shall have the right to make such charges whether or not any Default or Event of Default shall have occurred and be continuing. Any amount charged to the Loan Account shall be deemed an Obligation hereunder. The Lenders and Borrower confirm that any charges which Administrative Agent may so make to the Loan Account as herein provided will be made as an accommodation to Borrower and solely at Administrative Agent’s discretion, provided that Administrative Agent shall from time to time upon the request of Agents, charge the Loan Account of Borrower with any amount due and payable under any Loan Document.
(f)
Administrative Agent may, in its discretion, deem any payment by or on behalf of Borrower hereunder that is not made in same day funds prior to 1:00 p.m. (New York City time) to be a non-conforming payment. Any such payment shall not be deemed to have been received by Administrative Agent until the later of (i) the time such funds become available funds, and (ii) the next Business Day. Administrative Agent shall give prompt notice to Borrower and each applicable Lender if any payment is non-conforming. Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest shall continue to accrue on any principal as to which a non‑conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding Business Day) at the Default Rate determined pursuant to Section 2.7 from the date such amount was due and payable until the date such amount is paid in full.
(g)
At any time an Event of Default has occurred and is continuing, or the maturity of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or proceeds received by any Agent hereunder or under any Collateral Document (other than the proceeds of the Interest Reserve Account, which in all events shall be applied only to Term Loan interest until the Term Loans have been repaid in full) in respect of any of the Obligations, including, but not limited to all proceeds received by any Agent in respect of any sale, any collection from, or other realization upon all or any part of the Collateral, shall be applied in full or in part, subject to the provisions of this Agreement and any Intercreditor and Subordination Agreement, as follows:
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first, ratably to pay the Obligations in respect of any fees (other than any Specified Premium), expense reimbursements, indemnities and other amounts then due and payable (including, without limitation, the fees, charges and disbursements of counsel) to the Agents until paid in full;
second, ratably to pay interest then due and payable in respect of Protective Advances until paid in full;
third, ratably to pay principal of Protective Advances then due and payable until paid in full;
fourth, ratably to pay the Obligations in respect of any fees (other than any Specified Premium) and indemnities then due and payable to the Lenders until paid in full;
fifth, interest then due and payable in respect of the Term Loan until paid in full, provided that the proceeds of the Interest Reserve Account shall be applied only to Term Loan interest;
sixth, ratably to pay principal of the Term Loan until paid in full in Cash in Dollars;
seventh, ratably to pay the Obligations in respect of any Specified Premium then due and payable to the Lenders until paid in full in Cash in Dollars;
eighth, to the ratable payment of all other Obligations then due and payable until paid in full in Cash in Dollars; and
last, the balance, if any, after all of the Obligations (other than inchoate indemnity obligations) have been paid in full, to Borrower or as otherwise required by Law as directed by a court of competent jurisdiction.
For avoidance of doubt, the proceeds of the Interest Reserve Account in all events shall be applied only to timely payment Term Loan interest until the Term Loans have been repaid in full, and following such repayment in full of the Term Loans, and any remaining proceeds of the Interest Reserve Account shall be applied as set forth in this clause (g) above.
(h)
For purposes of clause (g) above (other than clause eighth), “paid in full” means payment in Cash in Dollars of all amounts owing under the Loan Documents according to the terms thereof, including any Specified Premium, loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided that for the purposes of clause eighth of clause (g) above, “paid in full” means payment in Cash in Dollars of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and
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expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(i)
In the event of a direct conflict between the priority provisions of clause (g) above and other provisions contained in any other Loan Document, it is the intention of the parties hereto that both such priority provisions in such documents shall 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 clause (g) above shall control and govern.
Section 2.12.
Ratable Sharing.
(a)
Lenders hereby agree among themselves that, except as otherwise provided in the Collateral Documents with respect to amounts realized from the exercise of rights with respect to Liens on the Collateral and, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Term Loans made and applied in accordance with the terms hereof), through the exercise of any right of set off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees and other amounts then due and owing to such Lender hereunder or under the other Loan Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided that if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest.
(b)
Borrower expressly consents to the foregoing arrangements set forth in Section 2.12(a) and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, set off or counterclaim with respect to any and all monies owing by Borrower to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder.
Section 2.13.
Increased Costs; Capital Adequacy.
(a)
Compensation for Increased Costs and Taxes. Subject to the provisions of Section 2.14 (which shall be controlling with respect to the matters covered thereby), in the event that any Lender shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any law, treaty or governmental rule,
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regulation or order, or any change therein or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or Governmental Authority, in each case that becomes effective after the date hereof, or compliance by such Lender with any guideline, request or directive issued or made after the date hereof by any central bank or other Governmental Authority or quasi-Governmental Authority (whether or not having the force of law): (i) subjects such Lender (or its applicable lending office) to any additional Tax (other than Indemnified Taxes and Excluded Taxes) with respect to this Agreement or any of the other Loan Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, Federal Deposit Insurance Corporation insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender; or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Term Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then, in any such case, Borrower shall promptly pay to such Lender, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable and specific detail the basis for calculating the additional amounts owed to such Lender under this clause (a), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
(b)
Capital Adequacy Adjustment. In the event that any Lender shall have determined that the adoption, effectiveness, phase in or applicability after the Closing Date of any law, rule or regulation (or any provision thereof) regarding capital adequacy, or any change therein or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its applicable lending office) with any guideline, request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of, or with reference to, such Lender’s Term Loans or other obligations hereunder with respect to the Term Loans to a level below that which such Lender or such controlling corporation could have achieved but for such adoption, effectiveness, phase in, applicability, change or compliance (taking into consideration the policies of such Lender or such controlling corporation with regard to capital adequacy), then from time to time, within fifteen (15) Business Days after receipt by Borrower from such Lender of the statement referred to in the next sentence, Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling corporation on an after tax basis for such reduction. Such Lender shall deliver to Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable and specific detail the basis for calculating the additional amounts
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owed to Lender under this Section 2.13(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
Section 2.14.
Taxes; Withholding, etc.
(a)
Withholding of Taxes. All sums payable by any Loan Party hereunder and under the other Loan Documents shall (except to the extent required by Law) be paid free and clear of, and without any deduction or withholding on account of, any Tax. If any Loan Party or any other Person is required by law to make any deduction or withholding on account of any Tax from any sum paid or payable by any Loan Party to any Agent, any Lender or any other Recipient under any of the Loan Documents: (1) Borrower shall notify Administrative Agent of any such requirement or any change in any such requirement as soon as Borrower becomes aware of it; (2) such Loan Party or other Person shall endeavor to pay such Tax before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on any Loan Party) for its own account or (if that liability is imposed on any Agent or such Lender, as the case may be) on behalf of and in the name of such Agent or such Lender; (3) if such Tax is an Indemnified Tax, then the sum payable by such Loan Party shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding or payment (including such deductions, withholdings or payments with respect to additional amounts payable pursuant to this Section 2.14), such Agent or such Lender, as the case may be, receives on the due date a net sum equal to what it would have received had no such deduction, withholding or payment been required or made; and (4) as soon as practicable after paying any sum from which it is required by law to make any deduction or withholding, Borrower shall deliver to Administrative Agent evidence reasonably satisfactory to the other affected parties of such deduction, withholding or payment and of the remittance thereof to the relevant Governmental Authorities.
(b)
Other Taxes. The Loan Parties shall pay to the relevant Governmental Authorities in accordance with applicable law any present or future stamp or documentary Taxes, intangible, recording, filing or similar Taxes, or any excise or property Taxes that arise from any payment made hereunder or from the execution, delivery, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.16) (“Other Taxes”). As soon as practicable after paying any such Other Taxes, each Loan Party shall deliver to Administrative Agent and any Lender evidence reasonably satisfactory to Administrative Agent and Lenders that such Other Taxes have been paid to the relevant Governmental Authority.
(c)
Tax Indemnification. The Loan Parties hereby jointly and severally indemnify and agree to hold each Agent and Lender harmless from and against all Indemnified Taxes and Other Taxes (including, without limitation, Indemnified Taxes and Other Taxes imposed on any amounts payable under this Section 2.14) and any reasonable expenses (including reasonable fees and disbursements of counsel) arising therefrom and with respect thereto paid by such Person. Such indemnification shall be paid within ten days from the date on which any Agent or Lender makes written demand therefor specifying in reasonable detail the nature and amount of such Indemnified Taxes or Other Taxes. A certificate as to the amount of such payment or liability delivered to the Loan Parties by a Lender or Agent (with a copy to the Administrative
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Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or Agent, shall be conclusive absent manifest error.
(d)
Evidence of Exemption from U.S. Withholding Tax.
(i)
Each Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for United States federal income tax purposes (a “Non-US Lender”) shall deliver to Administrative Agent (for transmission to Borrower), on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date such Person becomes a Lender hereunder, and at such other times as may be necessary in the determination of Administrative Agent or Borrower (each in its reasonable exercise of its discretion), (i) two executed copies of Internal Revenue Service Form W-8IMY (with appropriate, properly completed and duly executed attachments satisfactory to the Administrative Agent and Borrower), W-8BEN, W-8BEN-E, or W-8ECI (or any successor forms), as applicable, properly completed and duly executed by such Lender and, to the extent such Lender is eligible, such form shall note that such Lender is not subject to deduction or withholding, or is subject to a reduced deduction or withholding of United States federal income tax with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Loan Documents, and (ii) if such Lender is claiming exemption from United States federal income tax under Section 871(h) or 881(c) of the Internal Revenue Code, a Certificate Regarding Non-Bank Status, properly completed and duly executed by such Lender. In addition, each Lender, if reasonably requested by Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Law or reasonably requested by Borrower or the Administrative Agent as will enable Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender required to deliver any forms or certificates with respect to United States federal income tax withholding matters pursuant to this clause (d) (including, for avoidance of doubt, any forms or certificates required to be delivered pursuant to clause (d)(ii) and clause (d)(ii)) hereby agrees, from time to time after the initial delivery by such Lender of such forms or certificates, whenever a lapse in time or change in circumstances renders such forms or certificates obsolete or inaccurate in any material respect, that such Lender shall deliver to Administrative Agent (for transmission to Borrower) two updated executed copies of such forms or certificates, properly completed and duly executed by such Lender, or promptly notify Administrative Agent and Borrower of its inability to deliver any such forms or certificates.
(ii)
If a payment made to a Lender under any Loan Document would be subject to United States federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to Borrower and Administrative Agent at the time or times prescribed by Requirements of Law and at such time or times reasonably requested by Borrower or Administrative Agent such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that such Xxxxxx has complied with such Xxxxxx’s obligations under FATCA or to determine the amount to
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deduct and withhold from such payment. Solely for purposes of this subclause (ii), FATCA shall include any amendments made to FATCA after the date of this Agreement.
(iii)
Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for United States federal income tax purposes shall deliver to Administrative Agent (for transmission to Borrower), on or prior to the Closing Date (in the case of each such Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date such Person becomes a Lender hereunder, and at such other times as may be necessary in the determination of Administrative Agent (in its reasonable exercise of its discretion), two executed copies of Internal Revenue Service Form W-9 (or any successor forms) properly completed and duly executed by such Lender to establish that such Lender is not subject to United States backup withholding taxes with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Loan Documents.
(e)
Status of Administrative Agent. On or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the reasonable request of Xxxxxxxx), the Administrative Agent will deliver to Borrower either (i) an executed copy of Internal Revenue Service Form W-9, or (ii) with respect to any amounts received on its own account, an executed copy of an applicable Internal Revenue Service Form W-8.
(f)
Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.14 (including by the payment of additional amounts pursuant to this Section 2.14), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.14 with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this clause (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this clause (f) the payment of which would place the indemnified party in a less favorable net after-tax position than the indemnified party 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. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(g)
Investment Unit. The Loan Parties and the Lenders acknowledge and agree that for U.S. federal income tax purposes, the Term Loan funded on the Closing Date is part of an “investment unit” (within the meaning of Treasury Regulations Section 1.1273-2(h)), consisting of the Term Loan and the Warrant. For purposes of allocating the aggregate issue price of the unit between the respective fair market values of the Term Loan and the Warrant, the Loan
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Parties and the Lenders agree that the fair market value and purchase price of the Warrant is de minimis. The Loan Parties and the Lenders shall file all income tax returns consistent with the foregoing tax treatment, including the issue price and purchase price as agreed upon pursuant to the preceding sentence.
(h)
Insurance Premium Tax Treatment. The Loan Parties, Lenders, Administrative Agent, and any other Person that becomes a party to this Agreement shall treat all Premium (as defined in the Aon Insurance Policy) paid or payable with respect to the Aon Insurance Policy (including the initial Premium paid on or around the Closing Date pursuant to Section VII of the Aon Insurance Policy) as paid by and properly deductible by the Borrower for U.S. federal income tax and applicable state and local income tax purposes, and no portion of any Premium paid or payable with respect to the Aon Insurance Policy shall be treated as “original issue discount” within the meaning of Section 1273 of the Code. All parties to this Agreement shall file all applicable tax returns consistent with the foregoing treatment except as otherwise required due to a “determination” within the meaning of Section 1313 of the Code.
(i)
Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Xxxxxx’s failure to comply with the provisions of Section 10.6(h) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (i).
(j)
Survival. Each party’s obligations under this Section 2.14 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
Section 2.15.
Obligation to Mitigate.
(a)
Each Lender agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Term Loans becomes aware of the occurrence of an event or the existence of a condition that would entitle such Lender to receive payments under Section 2.13 or 2.14, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or maintain its Credit Extensions through another office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the circumstances which would cause the additional amounts which would otherwise be required to be paid to such Lender
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pursuant to Section 2.13 or 2.14 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of such Term Loans through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Term Loans or the interests of such Lender; provided such Lender will not be obligated to utilize such other office pursuant to this Section 2.15 unless Borrower agrees to pay all incremental expenses incurred by such Xxxxxx as a result of utilizing such other office as described above. A certificate as to the amount of any such expenses payable by Borrower pursuant to this Section 2.15 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to Borrower (with a copy to Administrative Agent) shall be conclusive absent manifest error.
(b)
Replacement of Lenders. If any Lender requests compensation under Section 2.13, or if Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with paragraph (a) of this Section 2.15, then Borrower may, at its sole expense, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.6), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.13 or Section 2.14) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(i)
Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 10.6;
(ii)
such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrower (in the case of all other amounts);
(iii)
in the case of any such assignment resulting from a claim for compensation under Section 2.13 or payments required to be made pursuant to Section 2.14, such assignment will result in a reduction in such compensation or payments thereafter; and
(iv)
such assignment does not conflict with applicable law.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply.
(c)
Notwithstanding anything in Section 2.15(b) to the contrary, the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 9.3.
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Section 2.16.
Collateral Accounts.
(a)
Establishment; Grant of Security Interest. Each of Borrower and IPCo, as applicable, hereby authorizes and directs Collateral Agent to establish the Collateral Accounts at U.S. Bank National Association, if it is a federally insured bank that regularly accepts deposits in the ordinary course of business, or if Collateral Agent or U.S. Bank National Association does not so take deposits, with a federally insured bank that is acceptable to Borrower and the Required Lenders, provided that Borrower and IPCo, as applicable, and the Required Lenders’ acceptance shall not be required if such bank is an affiliate, agent or sub-custodian of the Collateral Agent, and that regularly accepts deposits in the ordinary course of business and that executes and delivers a Control Agreement, including U.S. Bank National Association. Each of Borrower and IPCo, as applicable, hereby grants to (and subjects to the control of) the Collateral Agent, for the benefit of itself, the Administrative Agent and the Lenders, and agrees to maintain, a First Priority Lien and security interest in the Collateral Accounts and all such cash, deposit accounts and all balances therein, all as security for the Obligations. Borrower and IPCo, as applicable, agree that Borrower and IPCo, as applicable, shall not have any right to at any time direct the disposition or investment of the Collateral Accounts or the amounts on deposit therein, other than as expressly provided in this Agreement, and, that the Liens and security interests of the Collateral Agent in the Collateral Accounts and the amounts on deposit therein are perfected by control pursuant to Section 9-104 of the UCC or Section 8-106 of the UCC, as applicable. If at any time the Administrative Agent determines that amounts on deposit in any Collateral Account are subject to any right or claim of any Person prior to the right or claim of the Collateral Agent or the Lenders as herein provided, Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional cash collateral in an amount that is sufficient to cause such Collateral Account to have the minimum balance on deposit therein required under this Agreement. Borrower and IPCo, as applicable, shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of cash collateral in accordance with the account agreement governing such deposit account. Borrower, IPCo and Collateral Agent acknowledge and agree that the Collateral Accounts have been established in the name of and are property of IPCo, subject to the liens granted therein by IPCo to Collateral Agent. Amounts deposited into Collateral Accounts pursuant to this Section 2.16 may be held in such Collateral Accounts as Dollars or invested in Eligible Investments, as directed by the Borrower; provided that, in the event that all or any portion of such investment no longer qualifies as an Eligible Investment, the Borrower shall or shall direct such investment to be moved to an Eligible Investment within five (5) Business Days of such investment losing its status as an Eligible Investment. Such investments shall be subject to availability and the Collateral Agent’s transaction charges generally charged to its customers (which shall be at the Borrower’s expense); provided, further that at any time that an Event of Default has occurred and is continuing, all new deposits into Collateral Accounts shall be made only in Dollars, and all Eligible Investments that mature during such period shall be reinvested only in Dollars. The Collateral Agent shall have no liability for any loss incurred on any non-Cash investment. Absent receipt of such written instruction from the Borrower, the Collateral Agent shall have no obligation to invest (or otherwise pay interest on) amounts on deposit in Collateral Accounts. In no instance will the Collateral Agent have any obligation to provide investment advice to the Borrower. Any earnings from such investment of amounts held in the Collateral Accounts from time to time shall be redeposited in the respective Collateral Accounts. The Collateral Agent shall have no liability for
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any losses on any investments made as described herein. The Borrower acknowledges that cash deposited or invested with any bank (including the bank acting as Collateral Agent) may make a margin or generate banking income for which such bank shall not be required to account to the Borrower. For avoidance of doubt, neither the Collateral Agent nor the Administrative Agent shall be under any duty or obligation to determine whether any investment constitutes an Eligible Investment under this Agreement. The Collateral Agent shall notify Moody’s at the address listed on Schedule 10.1 of any changes to the depository bank for the Collateral Accounts.
(b)
Funding of Collateral Accounts.
(i)
Interest Reserve Account. On the Closing Date, an amount equal to $12,512,500.00 (the “Interest Reserve Amount”) shall be deposited into and held in the Interest Reserve Account. As provided in Section 6.8, the Loan Parties shall cause the Interest Reserve Account to at all times after the Closing Date contain Dollars and Eligible Investments having a mark-to-market aggregate value as of the close of business of the immediately preceding Business Day equal to the Minimum Interest Reserve Amount. The Interest Reserve Amount shall be reduced and re-funded as it is applied in the manner described below.
(ii)
Insurance Premium Reserve Account.
(A)
Beginning on the first such date following the twelve (12) month anniversary of the Closing Date, on each Cash Sweep Date, the lesser of (1) 2.05% of (x) all Net Proceeds generated by the operations of Loan Parties by the Loan Parties as and when received and (y) the Net Proceeds of any Asset Sale (but excluding proceeds of issuance of Capital Stock by Borrower and Reinvestment Amounts) or other Extraordinary Receipt as and when received, in each case of (x) and (y) since the last day of the most recent Cash Sweep Date and (2) the Cash Sweep Cap (such lesser amount described in (1) and (2) being the “Cash Sweep Proceeds”) shall be deposited by the Borrower into the Insurance Premium Reserve Account (such obligation of the Borrower to make such deposits, the “Cash Sweep”). If following any Cash Sweep Date, the amount on deposit in the Insurance Premium Reserve Account equals or exceeds the Insurance Premium Reserve Amount that remains to be paid in respect of the AON Insurance Policy, then, so long as no Event of Default has occurred and is continuing, the Cash Sweep for Insurance Premium Reserve Account shall no longer be required on any subsequent Cash Sweep Date and the Collateral Agent shall cause any such excess to be promptly released from the Insurance Premium Reserve Account and returned to Borrower upon the Collateral Agent’s receipt of written direction from the Required Lenders and certification that the Cash Sweep for the Insurance Premium Reserve Account shall no longer be required.
(B)
On or before the last Business Day prior to the date on which the second insurance premium is due in respect of the AON Insurance Policy, the Borrower (i) shall deliver to Administrative Agent and the Lenders a certificate of an Authorized Officer specifying the amount of the second insurance premium due on account of the AON Insurance Policy and (ii) (x) shall deliver to Administrative Agent and the Lenders evidence of payment of the second insurance premium or (y) shall have deposited into the Insurance Premium Reserve Account the amount that, when added to the amount already on deposit therein as a result of Cash Sweep activity, equals the amount due as the second insurance premium in respect of the AON Insurance Policy (such amount, the “Insurance Premium Reserve Amount”).
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(C)
Borrower shall, concurrently with the acceleration of the Term Loan Maturity Date at any time as a result of an Event of Default and without requirement for any notice whatsoever, deposit into the Insurance Premium Reserve Account an amount that is equal to the remainder of (a) the unpaid premiums due or expected to become due between the first day of the then-current premium period and the Term Loan Maturity Date in effect immediately prior to its acceleration in respect of the Insurance Premium Reserve Amount minus (b) the amount then on deposit in the Insurance Premium Reserve Account. This deposit shall constitute additional Collateral for the Obligations and shall be used by the Administrative Agent solely to pay premiums due on the AON Insurance Policy without need for notice to or consent of the Loan Parties.
(iii)
[Intentionally omitted].
(iv)
Borrower acknowledges that any failure to satisfy its obligation to make any deposit required by this Section 2.16 shall constitute an Event of Default under Section 8.1(a) and the unpaid amount thereof shall constitute an Obligation and bear interest as provided in Section 2.7.
(c)
Use of the Collateral Accounts.
(i)
Cash interest on Term Loans shall be paid by (A) the Borrower from available unrestricted Dollars on each Interest Payment Date when due, or (B) if not so paid in full by 12:00 p.m. New York City time on any Interest Payment Date, the Administrative Agent shall pay such Cash interest to the Lenders out of the Interest Reserve Account without need for any action by Borrower. To avoid doubt, no Default or Event of Default shall be deemed to have occurred under Section 8.1(a) if any payment of interest is not made under clause (c)(i)(A) provided it is made under clause (c)(i)(B).
(ii)
Any income or gain on Eligible Investments that are permitted by Section 2.16(a) shall remain in such Collateral Account and shall be considered income or gain of the Borrower. All amounts on deposit in a Collateral Account shall be applied as provided for herein with respect to such Collateral Account prior to any other application of such property as may otherwise be provided for herein.
(iii)
At least eight calendar days prior to each Interest Payment Date (the “Collateral Account Report Date”), Borrower shall compile and provide to the Collateral Agent, the Administrative Agent and the Lenders a distribution report showing all debit and credit transactions in such Collateral Account determined as of the close of business on the 15th day of the month in which such Collateral Account Report Date occurs (the “Collateral Account Report”). To the extent Borrower fails to timely deliver a Collateral Account Report or a Lender disagrees with the information in such report, any Lender may, within two Business Days after Borrower’s non-delivery or delivery of such disputed draft Collateral Account Report to such Lender, notify in writing the Collateral Agent, Borrower and the other Lenders of such disagreement. The Required Lenders shall (in consultation with Borrower) within one (1) Business Day of such notification or non-delivery provide direction to the Collateral Agent necessary to resolve any such discrepancy, and the Collateral Agent shall follow such direction, absent manifest error. If by 12:00 p.m. New York City time on any Interest Payment Date (i) Borrower fails to pay Cash interest
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when due on such Interest Payment Date and (ii) no Lender has notified the Collateral Agent and Borrower in writing of any discrepancy within such two Business Day time period, then such Collateral Account Report shall be deemed approved by the Lenders and the Collateral Agent shall proceed to make such distributions out of the Interest Reserve Account to the Administrative Agent, to be further distributed to the Lenders as provided in the Collateral Account Report, provided that if no Collateral Account Report is received, then the Collateral Agent shall release to the Administrative Agent the amount necessary to pay interest as indicated on the Administrative Agent’s account for the Term Loan. Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Agent or the Administrative Agent to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether Borrower has transferred amounts into the Collateral Accounts in accordance with its obligations hereunder, including this Section 2.16.
ARTICLE III
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT
Section 3.1.
Conditions to Credit Extension on the Closing Date. The effectiveness of the Loan Documents and obligation of each Lender to make any Term Loan on the Closing Date, is subject to the satisfaction, or waiver by the Required Lenders in accordance with Section 10.5, of the following conditions precedent:
(a)
Loan Documents. Agents shall have received copies of each Loan Document, executed and delivered by each applicable Loan Party and each other Person party thereto. Borrower and all Subsidiaries of the Borrower that are in existence on the Closing Date (other than any Excluded Subsidiary) shall have executed this Agreement as a Guarantor and shall have executed the Pledge and Security Agreement as a Grantor.
(b)
Organizational and Capital Structure. The organizational structure and capital structure of the Loan Parties and their respective Subsidiaries shall be as set forth on Schedule 4.2. Each of IPCo and IPHoldCo shall be organized as “bankruptcy remote” entities with governance satisfactory to the Lenders including, without limitation, Organizational Documents in form and substance reasonably acceptable to the Required Lenders, which Organizational Documents shall contain usual and customary provisions for (i) appointment of an independent director provided by a recognized corporate service company whose affirmative vote shall be required to commence an insolvency proceeding and (ii) separateness representations and covenants.
(c)
Governmental Authorizations and Consents. Each Loan Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case, that are necessary in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Required Lenders. All applicable waiting periods shall have expired without any action being taken or threatened in writing by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with
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respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.
(d)
Financial Statements. Lenders shall have received from Borrower the Historical Financial Statements.
(e)
Evidence of Insurance. Lenders (with copies to the Agents) shall have received a certificate from Borrower’s insurance broker or other evidence reasonably satisfactory to Lenders that all insurance required to be maintained pursuant to Section 5.5 is in full force and effect, together with endorsements naming the applicable Agent, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.5, in each case, in form and substance reasonably satisfactory to the Required Lenders.
(f)
Bank Regulations. Administrative Agent shall have received all documentation and other information with respect to Borrower reasonably requested that is required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation, and all such documentation and other information shall be in form and substance reasonably satisfactory to the Administrative Agent, which shall include, for the avoidance of doubt, a duly executed Internal Revenue Service Form W-9 or other applicable tax form. As of the Closing Date, the information included in the Beneficial Ownership Certification with respect to any beneficial owner of Borrower is true and correct in all material respects.
(g)
Organizational Documents; Incumbency. Lenders shall have received: (i) copies of each Organizational Document of each Loan Party, certified as of a recent date by the appropriate governmental official; (ii) signature and incumbency certificates of the officers of such Person executing the Loan Documents to which it is a party; (iii) resolutions of the Board of Directors or other governing body of each Loan Party approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the Closing Date, certified on or prior to the Closing Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; and (iv) a good standing certificate or its equivalent from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation (to the extent such certificate may be obtained in such jurisdiction) and in each jurisdiction in which the failure to be in good standing could reasonably be expected to result in a Material Adverse Effect, each dated a recent date prior to the Closing Date.
(h)
Funding Notice. Administrative Agent shall have received a fully executed and delivered Funding Notice requesting Administrative Agent to wire all funds into the Initial Funding Account.
(i)
Representations and Warranties. As of the Closing Date, the representations and warranties contained herein and in each other Loan Document, certificate or other writing delivered by any Loan Party to any Agent or any Lender pursuant hereto or thereto on or prior to the Closing Date shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which
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representations and warranties shall be true and correct in all respects subject to such qualification) on and as of that Closing Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date.
(j)
Compliance with law. The making of such Credit Extension on the Closing Date shall not contravene any law, rule or regulation applicable to any Agent or any Lender.
(k)
Payment of Fees. The Loan Parties shall have paid all fees, costs and expenses then payable by the Loan Parties pursuant to this Agreement and the other Loan Documents, including, without limitation, the Agent Fee Letter, the Fee Letter and Section 10.2 to the extent Borrower has been notified in writing of the amount of such fees, costs and expenses at least one Business Day prior to the making of such Credit Extension.
(l)
No Default. As of such Closing Date, no event shall have occurred and be continuing or would result from the making of a Term Loan on the Closing Date that would constitute an Event of Default or a Default.
(m)
No Litigation. Except as disclosed on Schedule 4.9, there shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments, pending or threatened in writing, against any Loan Party in any court or before any arbitrator or Governmental Authority that in the reasonable discretion of the Lenders would reasonably be expected to have a Material Adverse Effect.
(n)
No Material Adverse Effect. Since December 31, 2021, no event, circumstance or change shall have occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.
(o)
Closing Certificate. Borrower shall deliver to the Agents an originally executed Closing Certificate in the form of Exhibit E, which may be by email on the Closing Date, to be promptly followed by the originally executed version.
(p)
Sources and Uses. On or prior to the Closing Date, Borrower shall have delivered to Lenders (with a copy to Agents) the updated sources and uses of the proceeds of the Term Loans borrowed on the Closing Date.
(q)
[Intentionally omitted].
(r)
Intellectual Property. Concurrently with the funding of the Term Loans on the Closing Date: (A) the Intellectual Property Assignment Agreements shall be in form and substance acceptable to the Lenders and in full force and effect, (B) fully executed and assembled copies of all Intellectual Property Assignment Agreement(s) described in clause (A) shall have been delivered to the Lenders; and (C) the “Property” defined in the Intellectual Property Assignment Agreement(s) described in clause (A) shall be legally and beneficially owned by
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IPCo (the “IPCo IP”), except that with respect to (x) any intent-to-use trademark application in the United States included in the Property for which a “Statement of Use” or “Amendment to Allege Use” has not been filed with the United States Patent and Trademark Office, Borrower shall assign such trademark application to IPCo within thirty (30) days of filing a “Statement of Use” or “Amendment to Allege Use” with respect thereto, (y) such of the IPCo IP that is a pending, unpublished patent application, Borrower shall have five (5) Business Days from the Closing Date to complete recordation of the applicable Intellectual Property Assignment Agreements at the United States Patent and Trademark Office and (z) such of the IPCo IP that is registered in jurisdictions outside of the U.S. which may require recordation of assignment to perfect such assignment shall not be legally and beneficially owned by IPCo until all filings and/or recordations required by the applicable foreign jurisdiction have been made, it being agreed by the parties that all such filings and/or recordations of such IPCo Intellectual Property in such foreign jurisdictions shall be initiated by Borrower and the applicable Subsidiaries no later than ninety (90) days following the Closing Date. For avoidance of doubt, Borrower and its Included Subsidiaries other than Novomer, Inc. shall assign all their respective Intellectual Property to IPCo.
(s)
Personal Property Collateral. Collateral Agent and the Lenders shall have received a completed Perfection Certificate dated as of the Closing Date and executed by an Authorized Officer of each Loan Party, together with all attachments contemplated thereby. In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Collateral, Collateral Agent and the Lenders shall have received (A) the results of a recent search, by a Person reasonably satisfactory to the Required Lenders, of all effective UCC financing statements (or equivalent filings) made with respect to any assets or property of any Loan Party in the jurisdictions specified in the Perfection Certificate (provided, that with respect to Borrower or any Included Subsidiary that is formed or conducts material operations in any jurisdiction other than a state of the United States, if requested by the Collateral Agent acting on instruction of the Required Lenders, local law collateral security documents and filings for such jurisdiction shall be required), together with copies of all such filings disclosed by such search, (B) UCC termination statements (or similar documents) duly authorized by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens) (C) evidence reasonably satisfactory to the Required Lenders of the compliance by each Loan Party of its obligations under the Pledge and Security Agreement and the other Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements and, with respect to Borrower or any Included Subsidiary that is formed or conducts material operations in any jurisdiction other than a state of the United States, if requested by the Collateral Agent acting on instruction of the Required Lenders, local law collateral security documents and filings for such jurisdiction, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein), together with (D) appropriate financing statements on Form UCC 1 (or equivalent filings) made with respect to any assets or property of any Loan Party in the jurisdictions specified in the Perfection Certificate (provided, that with respect to Borrower or any Included Subsidiary that is formed or conducts material operations in any jurisdiction other than a state of the United States, if requested by the Collateral Agent acting on instruction of the Required Lenders, local law collateral security documents and filings for such jurisdiction shall be required) in each case
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duly filed in such office or offices as may be necessary to perfect the security interests purported to be created by the Pledge and Security Agreement.
(t)
Opinions of Counsel to Loan Parties. Xxxxxxx and their respective counsel shall have received executed copies of favorable written opinions of counsel for the Loan Parties, and, in each case, as to such matters as the Required Lenders may reasonably request, dated as of the Closing Date and otherwise in form and substance, and provided by counsel, reasonably satisfactory to the Required Lenders (and each Loan Party hereby instructs such counsel to deliver such opinions to the Agents and the Lenders). Opinions will include (a) customary third-party closing opinions with respect to, among other customary items, due authorization and execution of Loan Documents, enforceability of Loan Documents under applicable law and attachment and perfection of liens and (b) customary Delaware opinions with respect to enforcement of bankruptcy remote provisions for each of IPCo and IPHoldCo, including vertical and horizontal non-consolidation opinions.
(u)
[Intentionally omitted].
(v)
Material Contracts and Material Contract Estoppel. The Lenders shall have received a Material Contract Estoppel with respect to each Material Contract identified on Schedule 4.14A as being accompanied by a Material Contract Estoppel on the Closing Date, entered into by each Person other than a Loan Party that is a party to such Material Contract. Material Contract Estoppels for other Material Contracts identified on Schedule 4.14A shall be delivered on or before the date indicated therefore on Schedule 4.14A.
(w)
Establishment of Collateral Accounts. Each of the Collateral Accounts shall be open with U.S. Bank National Association as depository, ready to receive deposits and subject to a perfected lien in favor of the Collateral Agent pursuant to a Control Agreement.
(x)
AON Insurance Policy. The AON Insurance Policy issued substantially in the form attached as Exhibit K, or a binding commitment of the insurers thereunder to issue the AON Insurance Policy substantially in the form attached as Exhibit K, shall be acceptable to the Lenders holding Term Loan Commitments and shall in either case have been issued to the Administrative Agent, together with enforceability and other opinions with respect thereto and the first three (3) years of the AON Insurance Policy and associated costs therefor in the amount of $21,152,894.74 shall be paid by the Administrative Agent on the Closing Date using proceeds of the Term Loan.
(y)
Warrant. The Warrant shall be in full force and effect and shall have been delivered to the Investors together with enforceability and other customary opinions with respect thereto addressed to the Investors.
(z)
Solvency Certificate. Lenders shall have received a Solvency Certificate of Borrower substantially in form of Exhibit J attached hereto.
(aa)
Credit Rating. Moody’s shall provide a credit rating to enable securitization of the Term Loan and AON Insurance Policy by the Lenders (and Borrower shall use its best efforts to facilitate such issuance).
(bb)
Existing Term Loan Payoff.
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(i)
Borrower shall have received a payoff letter with respect to the Existing NMTC Loan and the Existing NMTC Loan shall be paid off from the reserves held in the applicable Existing Term Loan Deposit Account with respect to the Existing NMTC Loan in accordance with such payoff letter and contemporaneous with the Closing Date.
(ii)
Borrower shall have delivered an irrevocable notice of termination of the Existing GARJA Loan and the applicable Existing Term Loan Deposit Account with respect to the Existing GARJA Loan shall contain funds in an amount sufficient to pay off in full the Existing GARJA Loan promptly following expiration of the thirty (30) day payoff notice period pursuant to the terms of the Existing Term Loan (the “GARJA Payoff Notice Period”) or any waiver by the Existing Term Loan Lenders thereof.
(cc)
Establishment of Initial Funding Account. The Initial Funding Account shall be open with U.S. Bank National Association as depository, ready to receive deposits and subject to a perfected lien in favor of the Collateral Agent pursuant to a Control Agreement.
Any Agent or Required Lenders shall be entitled, but not obligated, to request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Required Lender, such request is warranted under the circumstances. Any Funding Notice shall be executed by an Authorized Officer of Xxxxxxxx in a writing delivered to Administrative Agent and may be transmitted by email. Neither Administrative Agent nor any Lender shall incur any liability to Borrower in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly Authorized Officer or other person authorized on behalf of Borrower or for otherwise acting in good faith.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
In order to induce Agents and Xxxxxxx to enter into this Agreement and to make the Credit Extension to be made thereby, each Loan Party represents and warrants to each Agent and Lender on the Closing Date, that the following statements are true and correct:
Section 4.1.
Organization; Requisite Power and Authority; Qualification. Each Loan Party (a) is duly incorporated, organized or formed, and validly existing and, where applicable, in good standing under the Laws of its jurisdiction of incorporation or organization as identified in Schedule 4.1, (b) has all requisite power and authority to (i) own and operate its properties, to carry on its business as now conducted and as proposed to be conducted and (ii) to enter into the Loan Documents to which it is a party and to carry out the transactions contemplated thereby and, in the case of Xxxxxxxx, to make the borrowings hereunder, and (c) is qualified to do business and, where applicable, in good standing in every jurisdiction wherever necessary to carry out its business and operations, except in each case referred to in clause (a) (other than with respect to Borrower), (b)(i) or (c), to the extent that failure to do so could not be reasonably expected to have a Material Adverse Effect. No Loan Party is an EAA Financial Institution.
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Section 4.2.
Capital Stock and Ownership. Except as set forth on Schedule 4.2, the Capital Stock of Borrower and its Subsidiaries has been duly authorized and validly issued and is fully paid and in the case of Capital Stock representing corporate interests, non-assessable. Except as set forth on Schedule 4.2, as of the date hereof, there is no existing option, warrant, call, right, commitment or other agreement to which Borrower or any of its Subsidiaries is a party requiring, and there is no Capital Stock of Borrower or any of its Subsidiaries outstanding which upon conversion or exchange would require, the issuance by Borrower or any of its Subsidiaries of any additional Capital Stock of Borrower or any of its Subsidiaries or other Securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase, Capital Stock of Borrower or any of its Subsidiaries. Schedule 4.2 correctly sets forth the ownership interest of Borrower and each of its Subsidiaries in their respective Subsidiaries as of the Closing Date. Except for Liens that have been subordinated pursuant to a Subordination Agreement or otherwise as reasonably acceptable to the Required Lenders, no Capital Stock owned by a Loan Party is subject to a Lien other than (i) the Liens in favor of Collateral Agent under the Collateral Documents and (ii) Permitted Liens.
Section 4.3.
Due Authorization. The execution, delivery and performance of the Loan Documents have been duly authorized by all necessary corporate or other organizational action on the part of each Loan Party that is a party thereto.
Section 4.4.
No Conflict. The execution, delivery and performance by the Loan Parties of the Loan Documents to which they are parties and the consummation of the Transactions do not and will not (a) violate (i) any provision of any material law or any material governmental rule or regulation applicable to any Loan Party or any of its Subsidiaries, (ii) any of the Organizational Documents of any Loan Party or any of its Subsidiaries, or (iii) any material order, judgment or decree of any court or other agency of government binding on any Loan Party or any of its Subsidiaries, except (in the case of clauses (a)(i) and (a)(ii), to the extent that such violation could not reasonably be expected to have a Material Adverse Effect, (b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Material Contract of any Loan Party, including, without limitation, the Intercompany License Agreements or any Third Party License Agreements that are Material Contracts, (c) result in or require the creation or imposition of any Lien upon any of the properties or assets of any Loan Party or any of its Subsidiaries (other than any Liens created under any of the Loan Documents in favor of Agents, on behalf of Secured Parties), (d) result in any default, non-compliance, suspension revocation, impairment, forfeiture or non-renewal of any material permit, license, authorization or approval applicable to the material operations or any of the material properties of the Loan Parties, taken as a whole, or (e) require any approval of stockholders, members or partners or any approval or consent of any Person under any Material Contract of any Loan Party, except for (i) such approvals or consents which will be obtained on or before the Closing Date, (ii) those approvals and consents, the failure of which to obtain could not reasonably be expected to have a Material Adverse Effect.
Section 4.5.
Governmental Consents. The execution, delivery and performance by the Loan Parties of the Loan Documents to which they are parties 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 to, with or by, any Governmental Authority and except for (i) filings and recordings with respect to the Collateral to be made, or otherwise delivered to Agents for filing and/or recordation, as of or following the Closing Date
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and (ii) those registrations, consents, approvals, notices or other actions the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect.
Section 4.6.
Binding Obligation. Each Loan Document has been duly executed and delivered by each Loan Party that is a party thereto and is the legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as may be limited by Debtor Relief Laws or by equitable principles relating to enforceability.
Section 4.7.
Historical Financial Statements. The Historical Financial Statements were prepared in accordance with GAAP and fairly present, in all material respects, the financial position, on a consolidated basis, of the Persons described in such financial statements as at the respective dates thereof.
Section 4.8.
No Material Adverse Effect. Since December 31, 2021, no event, circumstance or change has occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.
Section 4.9.
Adverse Proceedings, etc. Except as set forth on Schedule 4.9, there are no Adverse Proceedings, individually or in the aggregate, that (a) relate to any Loan Document or the transactions contemplated hereby or thereby or (b) could reasonably be expected to have a Material Adverse Effect. Neither Borrower nor any of its Subsidiaries (i) is in violation of any applicable laws that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (ii) 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 have a Material Adverse Effect.
Section 4.10.
Payment of Taxes. Except as otherwise permitted under Section 5.3 or otherwise disclosed on Schedule 4.10, all U.S. federal, state and material local income tax returns and other material tax returns and reports of the Loan Parties and their respective Subsidiaries required to be filed by any of them have been timely filed, and all material Taxes due and payable and all assessments, fees and other governmental charges upon the Loan Parties and their respective Subsidiaries and upon their respective properties, assets, income, businesses and franchises which are due and payable have been paid when due and payable except Taxes disclosed on Schedule 4.10 or that are originally contested after the Closing Date, in each case that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP. Neither any Loan Party nor any of its Subsidiaries are currently the subject of any audit relating to Taxes and there are no proposed in writing tax assessments against any Loan Party or any of its Subsidiaries which is not being actively contested by such Loan Party or such Subsidiary in good faith and by appropriate proceedings; provided such reserves or other appropriate provisions, if any, as shall be required in accordance with GAAP shall have been made or provided therefor. Except as set forth on Schedule 4.10, each Subsidiary of Borrower is, and since inception has been, disregarded as separate from Borrower for U.S. federal income tax purposes.
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Section 4.11.
Properties.
(a)
Title. Each Loan Party and its Subsidiaries has (i) good, sufficient, marketable and legal title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the case of leasehold interests in real or personal property), and (iii) good and valid title to (in the case of all other personal property), all of their respective properties and assets reflected in their respective Historical Financial Statements referred to in Section 4.7 and in the most recent financial statements delivered pursuant to Section 5.1, in each case, except for (i) assets disposed of since the date of such financial statements in the ordinary course of business or as otherwise permitted under Section 6.9, (ii) minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such properties or assets for their intended purposes, (iii) Permitted Liens or (iv) any Liens and privileges arising mandatorily by Law, and in each case, except where the failure to have such title or other interest could not reasonably be expected to have a Material Adverse Effect.
(b)
Real Estate. As of the Closing Date, Schedule 4.11 contains a true, accurate and complete list of (i) all Real Estate Assets and (ii) all leases, subleases or assignments of leases (together with all amendments, modifications, supplements, renewals or extensions of any thereof) affecting each Real Estate Asset of any Loan Party, in cases where such Loan Party is the landlord (whether directly or as an assignee or successor in interest) under such lease, sublease or assignment. Each agreement described in clause (ii) of the immediately preceding sentence is in full force and effect and no Loan Party has knowledge of any material default that has occurred and is continuing thereunder with respect to any leased location that is material to the business of the Borrower and its Subsidiaries, taken as a whole, and each such agreement constitutes the legally valid and binding obligation of each applicable Loan Party, enforceable against such Loan Party in accordance with its terms, except as enforcement may be limited by Debtor Relief Laws or by equitable principles. To the knowledge of each Loan Party, no other party to any such agreement is in default of its obligations thereunder, and no Loan Party (or any other party to any such agreement) has at any time delivered or received any notice of default which remains uncured under any such lease and, to the knowledge of each Loan Party, as of the Closing Date, no event has occurred which, with the giving of notice or the passage of time or both, would constitute a material default under any such agreement.
Section 4.12.
Environmental Matters. Except as set forth on Schedule 4.12:
(a)
No Environmental Claim has been asserted against any Loan Party nor has any Loan Party received written notice of any pending or, to the knowledge of Borrower, threatened Environmental Claim against any Loan Party.
(b)
There has been no material Release of Hazardous Materials and there are no Hazardous Materials present in violation of Environmental Law at any of the properties currently owned or operated by any Loan Party, or to the knowledge of any Loan Party, at any disposal or treatment facility which received Hazardous Materials generated by any Loan Party except to the extent such release would not reasonably be expected to result in a Material Adverse Effect.
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(c)
The operation of the business of, and each of the properties owned or operated by, each Loan Party is in compliance with all Environmental Laws, except to the extent such failure to comply would not reasonably be expected to result in a Material Adverse Effect.
(d)
Each Loan Party holds and is in compliance with Governmental Authorizations required under any Environmental Laws in connection with the operations carried on by it and the properties owned or operated by it except to the extent any failure to comply would not reasonably be expected to have a Material Adverse Effect.
(e)
No event or condition has occurred or is occurring with respect to any Environmental Law, any Release of Hazardous Materials, or any Hazardous Materials Activity which could reasonably be expected to form the basis of a material Environmental Claim against any Loan Party.
(f)
No Loan Party has received any written notification pursuant to any Environmental Laws that (i) any material work, repairs, construction or Capital Expenditures are required to be made in respect as a condition of continued compliance with any Environmental Laws, or any license, permit or approval issued pursuant thereto or (ii) any material license, permit or approval referred to above is about to be reviewed, made, subject to limitations or conditions, revoked, withdrawn or terminated.
Section 4.13.
No Defaults. Except as set forth on Schedule 4.13, neither any Loan Party nor any of its Subsidiaries is in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Material Contract, and no condition exists which, with the giving of notice or the lapse of time or both, would reasonably be expected to result in an Event of Default.
Section 4.14.
Material Contracts. Schedule 4.14 contains a true, correct and complete list of all the Material Contracts in effect on the Closing Date and, together with any updates provided pursuant to Section 5.1(l), all such Material Contracts are in full force and effect unless terminated in the ordinary course of business (including by passage of time) and no material defaults currently exist thereunder. For avoidance of doubt, the items listed on Schedule 4.14 are so included by virtue of the contractually agreed definition of Material Contract among the parties hereto that is contained in this Agreement, and shall not be deemed to be material for any other purpose.
Section 4.15.
Investment Company Act. Neither any Loan Party nor any of its Subsidiaries is an “investment company” under the Investment Company Act of 1940, as amended.
Section 4.16.
Margin Stock. Neither any Loan Party nor any of its Subsidiaries 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 Terms Loans made to such Loan Party 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, or is inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System.
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Section 4.17.
Employee Matters. Except as would not reasonably be expected to have a Material Adverse Effect, there is (a) no unfair labor practice complaint pending against any Loan Party or any of its Subsidiaries, or to the best knowledge of Borrower, threatened against any of them before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against any Loan Party or any of its Subsidiaries or to the best knowledge of Borrower, threatened against any of them and (b) no strike or work stoppage in existence or threatened involving Borrower or any of its Subsidiaries.
Section 4.18.
Employee Benefit Plans. Except, in each case, as would not reasonably be expected to have a Material Adverse Effect: (a) no liability to the PBGC (other than required premium payments) or the Internal Revenue Service (other than taxes due in the ordinary course), has been or is expected to be incurred by any Loan Party, any of its Subsidiaries or any of their ERISA Affiliates, (b) no ERISA Event has occurred or is reasonably expected to occur, (c) except to the extent required under Section 4980B of the Internal Revenue Code or similar state laws, no Employee Benefit Plan provides employer-paid, health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of any Loan Party or any of its Subsidiaries, (d) the present value of the aggregate benefit liabilities under each Pension Plan sponsored, maintained or contributed to by any Loan Party or any of its ERISA Affiliates (determined as of the end of the most recent plan year on the basis of the actuarial assumptions specified for funding purposes in the most recent actuarial valuation for such Pension Plan), did not exceed the aggregate current value of the assets of such Pension Plan, (e) as of the most recent valuation date for each Multiemployer Plan to which any Loan Party or any of its ERISA Affiliates contributes or has an obligation to contribute, the potential liability of any Loan Party and its ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such potential liability for a complete withdrawal from all Multiemployer Plans, does not exceed nil and (h) each Loan Party and each of its ERISA Affiliates has complied, in all material respects, with the requirements of Section 515 of ERISA with respect to each Multiemployer Plan and are not in material “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.
Section 4.19.
Certain Fees. Unless disclosed to the Lenders in writing prior to the Closing Date, or as otherwise set forth in the Loan Documents, no broker’s or finder’s fee or commission will be payable with respect hereto or any of the transactions contemplated hereby.
Section 4.20.
Compliance with Organizational Documents and Statutes. Each Loan Party and its Subsidiaries is in compliance with (i) its Organizational Documents and (ii) all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including (a) compliance with all applicable Environmental Laws with respect to any Real Estate Asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such Real Estate Asset or the operations of any Loan Party or any of its Subsidiaries and (b) as set forth in the Pledge and Security Agreement), except, such non‑compliance that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
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Section 4.21.
Intellectual Property. Each Loan Party and each of its Subsidiaries owns, or holds valid written licenses to use, all trademarks, trade names, copyrights, patents, trade secrets, licenses and other IP Rights that are necessary to the conduct of its business as currently conducted, and attached hereto as Schedule 4.21 is a true, correct, and complete listing of all material trademarks, trade names, copyrights, patents, and licenses as to which a Loan Party or one of its Subsidiaries is the owner or is an exclusive licensee; provided that Borrower may amend Schedule 4.21 to add additional IP Rights so long as such amendment occurs by written notice to Agents concurrently with delivery of the Compliance Certificate pursuant to Section 5.1(d). Subject to the filing of the Collateral Documents, Agents possess, to the extent permitted by applicable law, a First Priority security interest with respect to each Loan Party’s rights (excluding any Excluded Assets) under its owned IP Rights and each inbound license of IP Rights that is a Material Contract and that is not generally commercially available, and no such inbound license requires any further consent from the applicable licensor for the Loan Parties to grant to Agents a security interest with respect thereto.
Section 4.22.
Equipment. The equipment (other than vehicles or equipment out for repair) of Borrower and its Subsidiaries are not stored with a bailee, warehouseman, or similar party and are located only at, or in-transit between or to, the locations identified on Schedule 4.22.
Section 4.23.
Customers and Suppliers. There exists no termination or cancellation of, or materially adverse modification to or change in, the business relationship between (a) any Loan Party, on the one hand, and any customer or any group thereof, on the other hand, that would reasonably be expected to result in a Material Adverse Effect, or (b) any Loan Party, on the one hand, and any supplier or any group thereof, on the other hand that would reasonably be expected to result in a Material Adverse Effect, except in each case, to the extent such business relationship is replaced or expected to be replaced with a new business relationship to mitigate such Material Adverse Effect.
Section 4.24.
Insurance. Each Loan Party keeps its property adequately insured (including as set forth in the Pledge and Security Agreement) and maintains (a) insurance to such extent and against such risks, including fire, as is customary with companies in the same or similar businesses, (b) workmen’s compensation insurance in the amount required by applicable law, (c) public liability insurance, which shall include product liability insurance, in the amount customary with companies in the same or similar business against claims for personal injury or death on properties owned, occupied or controlled by it, and (d) such other insurance as may be required by law in any jursidiction in which a Loan Party does business. Schedule 4.24 sets forth a list of all insurance maintained by each Loan Party on the Closing Date.
Section 4.25.
Common Enterprise. The successful operation and condition of each of the Loan Parties is dependent on the continued successful performance of the functions of the group of the Loan Parties as a whole and the successful operation of each of the Loan Parties is dependent on the successful performance and operation of each other Loan Party. Each Loan Party expects to derive benefit (and its Board of Directors or other governing body has determined that it may reasonably be expected to derive benefit), directly and indirectly, from (a) successful operations of each of the other Loan Parties and (b) the credit extended by the Lenders to the Loan Parties hereunder, both in their separate capacities and as members of the group of companies. Each Loan Party has determined that execution, delivery, and performance of this Agreement and
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any other Loan Documents to be executed by such Loan Party is within its purpose, will be of direct and indirect benefit to such Loan Party, and is in its best interest.
Section 4.26.
Permits, Etc. Each Loan Party and each of its Subsidiaries has, and is in compliance with, all permits, licenses, authorizations, approvals, entitlements and accreditations required for such Person lawfully to own, lease, manage or operate, or to acquire, each business currently owned, leased, managed or operated, or to be acquired, by such Person, which, if not obtained, could not reasonably be expected to have a Material Adverse Effect. No condition exists or event has occurred which, in itself or with the giving of notice or lapse of time or both, would result in the suspension, revocation, impairment, forfeiture or non-renewal of any such permit, license, authorization, approval, entitlement or accreditation, and there is no claim that any thereof is not in full force and effect, except, to the extent any such condition, event or claim could not be reasonably be expected to have a Material Adverse Effect.
Section 4.27.
Bank Accounts and Securities Accounts. Schedule 4.27 sets forth a complete and accurate list as of the Closing Date of all deposit, checking and other bank accounts, all securities and other accounts maintained with any broker dealer and all other similar accounts maintained by each Loan Party, together with a description thereof (i.e., the bank or broker dealer at which such deposit or other account is maintained and the account number and the purpose thereof) including as to whether such account is an Excluded Account.
Section 4.28.
Security Interests. The Pledge and Security Agreement upon its execution and delivery on the Closing Date shall create in favor of Agents, for the benefit of Secured Parties, a legal, valid and enforceable security interest in the Collateral secured thereby. Upon the filing of the UCC-1 financing statements made with respect to any assets or property of any Loan Party in the jurisdictions specified in the Perfection Certificate (provided, that with respect to Borrower or any Included Subsidiary that is formed or conducts material operations in any jurisdiction other than a state of the United States, if requested by the Collateral Agent acting on instruction of the Required Lenders, local law collateral security documents and filings for such jurisdiction shall be required), the recording of security interests in the United States Patent and Trademark Office and the United States Copyright Office, and the recordation of appropriate evidence of the security interest in the appropriate foreign registry with respect to all foreign IP Rights, as applicable, the delivery of any possessory collateral as required by the Collateral Documents and the execution of Control Agreements, such security interests in and Liens on the Collateral granted thereby shall be perfected (to the extent perfection of such security interests is required by the Collateral Documents) First Priority security interests, and no further recordings, filings or agreements are or will be required in connection with the creation, perfection or enforcement of such security interests and Liens in the manner required by the Collateral Documents, other than (a) the filing of continuation statements in accordance with applicable law or amendments to financing statements in connection with transactions permitted pursuant to this Agreement, (b) the recording of the Collateral Assignments for Security pursuant to the Pledge and Security Agreement in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, with respect to after-acquired U.S. patent and trademark applications and registrations and U.S. copyrights and (c) the recordation of appropriate evidence of the security interest in the appropriate foreign registry with respect to all foreign IP Rights.
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Section 4.29.
Anti-Terrorism Laws, Anti-Corruption Laws and Sanctions. Neither the Loan Parties nor any of their officers, directors, employees or agents acting on the Loan Parties’ behalf shall use the proceeds of the Term Loans to make any payments, directly or to the knowledge of the Loan Parties, indirectly, to any Foreign Official in violation of the United States Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), or any other applicable Anti-Corruption Law. None of the Loan Parties nor, to the knowledge of the Loan Parties, any officers, directors, employees or agents acting on the Loan Parties’ behalf, is in violation of the Bank Secrecy Act, as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) of 2001 (the “PATRIOT Act”) or any other applicable Anti-Terrorism Law, Anti-Corruption Law or Sanctions, or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any applicable Anti-Terrorism Laws, Anti-Corruption Laws or Sanctions. None of the Loan Parties or any officers, directors, employees or agents acting on the Loan Parties’ behalf, or their respective agents acting or benefiting in any capacity in connection with the Term Loans or other transactions hereunder, is a Blocked Person. None of the Loan Parties, nor, to the knowledge of the Loan Parties, any of their agents acting in any capacity in connection with the Term Loans or other transactions hereunder (A) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person in violation of applicable Sanctions, or (B) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to any applicable Sanctions in violation of applicable Sanctions.
Section 4.30.
Disclosure. No representation or warranty of any Loan Party contained in any Loan Document or in any other documents, certificates or written statements furnished to Lenders by or on behalf of any Loan Party or any of its Subsidiaries for use in connection with the transactions contemplated hereby, when taken as a whole when furnished contains any untrue statement of a material fact or omits to state a material fact (known to Borrower, in the case of any document not furnished by it) necessary in order to make the statements contained herein or therein not materially misleading in light of the circumstances in which the same were made (giving effect to all supplements and updates thereto); provided, that, to the extent such representation or warranty relates to any projections, pro forma financial information or other forward looking information, such projections, pro forma financial information or forward looking statements shall only be required to be based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made, it being recognized by Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results. There are no facts known (or which should upon the reasonable exercise of diligence be known) to any Loan Party or matters of a general industry or economic nature, including, without limitation, the existence of the COVID-19 virus pandemic, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect and that have not been disclosed herein, in any other Loan Documents or in such other documents, certificates and statements furnished to Lenders for use in connection with the transactions contemplated hereby.
Section 4.31.
Indebtedness. Set forth on Schedule 6.1 is a true and complete list of all Indebtedness for borrowed money of each Loan Party outstanding immediately prior to the Closing Date that is to remain outstanding immediately after giving effect to the closing hereunder on the
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Closing Date and such Schedule 6.1 accurately sets forth the aggregate outstanding principal amount of such Indebtedness as of the Closing Date.
Section 4.32.
Use of Proceeds. The proceeds of the Term Loans shall be used by the Loan Parties as described in Section 2.4. No portion of the proceeds of any Credit Extension shall be used in any manner that causes or would reasonably be expected to cause such Credit Extension or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof or to violate the Exchange Act.
Section 4.33.
Solvency. Immediately following the making of the Term Loans on the Closing Date and after giving effect to the application of the proceeds of the Term Loans on the Closing Date, (a) the present fair saleable value of the property of the Loan Parties on a consolidated basis, will be greater than the amount that will be required to pay their debts and other liabilities, (b) the Loan Parties on a consolidated basis will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured and (c) the Loan Parties on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such business is now conducted and is proposed to be conducted following the Closing Date; provided that in each case, the amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. Such foregoing determination has been made by the chief financial officer or other Authorized Officer of Xxxxxxxx after having conducted a diligent inquiry on a good faith basis.
ARTICLE V
AFFIRMATIVE COVENANTS
AFFIRMATIVE COVENANTS
Each Loan Party covenants and agrees that so long as any Commitment is in effect and until payment in full of all Obligations, each Loan Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Article V.
Section 5.1.
Financial Statements and Other Reports. Unless otherwise provided below, Borrower will deliver to Agents and Lender:
(a)
[Intentionally omitted];
(b)
Quarterly Financial Statements. As soon as available, and in any event within 60 days after the end of each Fiscal Quarter (provided that if Borrower files quarterly reports with the Securities and Exchange Commission, then, other than with respect to the fourth Fiscal Quarter, delivery of quarterly financial statements hereunder shall be deemed timely if delivered no later than the last date for timely delivery of Borrower’s Form 10-Q filing to the Securities and Exchange Commission for such Fiscal Quarter) of each Fiscal Year (other than the fourth Fiscal Quarter), the unaudited consolidated balance sheet of Borrower and its Subsidiaries, as at the end of such Fiscal Quarter and the related unaudited consolidated statements of income, stockholders’ equity and cash flows of Borrower and its Subsidiaries for such Fiscal Quarter and for the period
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from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in comparative form the corresponding figures, with respect to the balance sheet, statements of income and statements of cash flows, for the corresponding periods of the previous Fiscal Year to the extent such period ended following the Closing Date, all in reasonable detail.
(c)
Annual Financial Statements. As soon as available, and in any event within 120 days after the end of each Fiscal Year (provided that if Borrower shall request additional time to deliver such annual financial statements in writing to the Adminstrative Agent at least ten (10) Business Days prior to the due date of such annual financial statements, and the Required Lenders do not, within ten (10) Business Days following receipt of such notice, object to providing such additional time, Borrower shall be provided the requested additional time to deliver such annual financial statements, and, provided that if Borrower files annual reports with the Securities and Exchange Commission, then delivery of annual financial statements hereunder shall be deemed timely if delivered no later than the last date for timely delivery of Borrower’s Form 10-K filing to the Securities and Exchange Commission for such Fiscal Year), (i) the consolidated balance sheet of Borrower and its Subsidiaries, as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows of Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year to the extent such Fiscal Year ended following the Closing Date, in reasonable detail and (ii) with respect to such consolidated financial statements, an audit report thereon of an independent certified public accounting firm of recognized national standing selected by Xxxxxxxx and satisfactory to the Required Lenders (which report shall be unqualified as and contain no disclosure related to going concern (other than (y) with respect to, or resulting from, the impending maturity of the Term Loans hereunder or (z) any potential or actual breach of any financial maintenance covenant contained in this Agreement) and scope of audit (any other qualifications therein shall be satisfactory to the Required Lenders in their reasonable credit judgment), and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of Borrower and its Subsidiaries, as at the dates indicated and the results of their operations and their cash flows for the periods indicated in accordance with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the audit by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards);
(d)
Compliance Certificate. Together with each delivery of financial statements of Borrower and its Subsidiaries, pursuant to Section 5.1(b) or Section 5.1(c), a duly executed and completed Compliance Certificate which shall, among other things, report in reasonable detail on compliance with Sections 5.10, 5.12, 5.20, 5.22 and 6.8 as well as the unaudited consolidated balance sheet and the related unaudited consolidated statement of income for Borrower and its Included Subsidiaries during the applicable period;
(e)
Statements of Reconciliation after Change in Accounting Principles. If, as a result of any change in accounting principles and policies (to the extent any change in policies would result in such change being noted in the audit delivered pursuant to Section 5.1(c)) from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of Borrower and its Subsidiaries delivered pursuant to Section 5.1(b) or Section 5.1(c) will differ in any material respect from the consolidated financial statements that would have been
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delivered pursuant to such subdivisions had no such change in accounting principles and policies (to the extent any change in policies would result in such change being noted in the audit delivered pursuant to Section 5.1(c)) been made, then together with the first delivery of such financial statements after such change, one or more statements of reconciliation (including any changes that would affect any calculations relating to the financial covenants) for previous comparative period financial statements in form and substance reasonably satisfactory to the Required Lenders;
(f)
Notice of Default. Promptly (but in any event within five (5) Business Days) upon any officer of Borrower or any other Loan Party obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to Borrower with respect thereto, (ii) that any Person has given any notice to any Loan Party or any of its Included Subsidiaries or taken any other action with respect to any event or condition set forth in Section 8.1(b) or (iii) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of its Authorized Officers specifying the nature and period of existence of such condition, event or change, or specifying the notice given and action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action Borrower has taken, is taking and proposes to take with respect thereto;
(g)
Notice of Litigation. Promptly (but in any event within ten (10) Business Days) upon any officer of Borrower or any other Loan Party obtaining knowledge of (i) the institution of, or non-frivolous written threat of, any Adverse Proceeding not previously disclosed in writing by Borrower to Lenders, or (ii) any material development in any Adverse Proceeding that, in the case of either clause (i) or (ii) if adversely determined, could be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice thereof together with such other information as may be reasonably available to such Loan Party to enable Lenders and their counsel to evaluate such matters;
(h)
ERISA. (i) Promptly (but in any event within ten (10) Business Days) after Borrower or any other Loan Party obtains knowledge of the occurrence of or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof, what action any Loan Party or any of its ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) with reasonable promptness, copies of (A) each Schedule SB (Actuarial Information) to the annual report (Form 5500 Series) filed by any Loan Party or any of its ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan, (B) all notices received by any Loan Party or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event and (C) copies of such other documents or governmental reports or filings relating to any Employee Benefit Plan as the Required Lenders shall reasonably request;
(i)
Financial Plan. As soon as practicable and in any event no later than 90 days after the beginning of each Fiscal Year, a consolidated plan and financial forecast of the Borrower that has been approved by its Board of Directors (a “Financial Plan”) for such Fiscal Year or any such longer period as may be approved by its Board of Directors in its sole discretion (the
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“Extended Covered Period”), including (i) a forecasted consolidated balance sheet and forecasted consolidated statements of income and cash flows of Borrower and its Subsidiaries for such Fiscal Year or, if applicable, each such Fiscal Year in the Extended Covered Period, and an explanation of the assumptions on which such forecasts are based and (ii) forecasted consolidated statements of income and cash flows of Borrower and its Subsidiaries for each financial quarter of such Fiscal Year or, if applicable, each such Fiscal Year in the Extended Covered Period, together, in each case, with an explanation of the assumptions on which such forecasts are based all in form and level of detail reasonably satisfactory to the Required Lenders; provided that any Financial Plan provided pursuant to this Section 5.1(i) shall be marked “PRIVATE”. For the avoidance of doubt, any Financial Plan provided hereunder shall not be provided to the Public Lenders;
(j)
Insurance Report. As soon as practicable and in any event at the earlier of the actual time of delivery of the annual financial statements required to be delivered pursuant to Section 5.1(c), or if such annual financial statements are not timely delivered in any Fiscal Year, at the time that such annual financial statements otherwise were required to be delivered pursuant to Section 5.1(c) in respect of such Fiscal Year, a report outlining all material insurance coverage maintained as of the date of such report by Xxxxxxxx and its Subsidiaries;
(k)
Notice of Change in Board of Directors. Promptly (but in any event within ten (10) Business Days), written notice of any change in the Board of Directors (or similar governing body) of any Loan Party or any of its Included Subsidiaries; provided, that with respect to the Borrower, notice to the Agent of a filing of Form 8-K or other document with the Securities and Exchange Commission on XXXXX disclosing such change shall be sufficient.
(l)
Notice Regarding Material Contracts.
(i)
Promptly (but in any event within ten (10) Business Days) (i) after any Material Contract of a Loan Party is terminated other than due to an expiration of the term, or amended in a manner that is materially adverse to any Loan Party or any such Included Subsidiary, as the case may be, or (ii) any new Material Contract is entered into, a written statement describing such event, with copies of such material amendments or new contracts, delivered to Agents, and an explanation of any actions being taken with respect thereto; and
(ii)
each Loan Party shall deliver promptly to the Administrative Agent a copy of each material demand, material notice or material document received by it relating in any way to any Material Contract.
(m)
Environmental Reports and Audits. Within ten (10) Business Days following the receipt thereof, copies of all environmental audits and reports with respect to any environmental matter which have resulted in or are reasonably likely to result in a material Environmental Claim asserted against any Loan Party or in any material Environmental Liabilities and Costs of any Loan Party;
(n)
Information Regarding Collateral. Borrower will furnish to Agents prior five (5) days’ written notice of any change (i) in any Loan Party’s corporate name, (ii) in any Loan Party’s identity or corporate structure or (iii) in any Loan Party’s federal taxpayer identification number. Each Loan Party agrees not to effect or permit any change referred to in the preceding
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sentence unless all filings have been made under the UCC or otherwise that are required in order for Agents to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral and for the Collateral at all times following such change to have a valid, legal and perfected security interest as contemplated in the Collateral Documents. Each Loan Party also agrees promptly to notify Agents if any material portion of the Collateral is damaged or destroyed;
(o)
Tax Returns. As soon as practicable and in any event within thirty (30) days following the filing thereof, copies of each federal income tax return filed by or on behalf of any Loan Party;
(p)
AON Insurance Policy and License Agreements. (i) As soon as practicable and in any event within five (5) Business Days following the receipt or delivery thereof, copies of all notices sent by or to any Loan Party or its Included Subsidiaries under or in respect of the AON Insurance Policy, any Intercompany License Agreement or any material Third Party License Agreement; provided that notice of any event giving rise to a termination right under any Intercompany License Agreement or any material Third Party License Agreement shall be delivered promptly and in any event within two (2) Business Days of any Loan Party’s knowledge of such event and (ii) together with each delivery of financial statements of Borrower and its Subsidiaries pursuant to Section 5.1(b) or Section 5.1(c), a true, complete and correct copy of any Master Services Agreement not previously provided, together with all amendments thereto through the date of such delivery;
(q)
Extraordinary Receipt. Promptly (but in any event within ten (10) Business Days) after receipt by Borrower or any of its Included Subsidiaries of any Extraordinary Receipt, a written statement describing the amount and source of such Extraordinary Receipt, and the Net Proceeds thereof;
(r)
Information Regarding Location of Equipment. Together with each delivery of financial statements of Borrower and its Subsidiaries pursuant to Section 5.1(b), updates to Schedule 4.22, if any, which updates shall describe new locations to which equipment having a value in excess of $500,000, singly or in the aggregate has been moved during the preceding quarter (other than as permitted pursuant to Section 5.12);
(s)
IP Rights Transactions.
(i)
Except as provided in subclause (ii) below, promptly (but in any event within ten (10) Business Days) after closing by Borrower or any of its Included Subsidiaries of any disposition (including, without limitation, any licensing) of IP Rights to a Person that is not a Loan Party or a Subsidiary of a Loan Party, Borrower shall deliver to the Collateral Agent and Lenders a notice identifying such disposition with reasonable particularity and shall identify such disposition as either a Qualified License or an Extraordinary IP Rights Transaction.
(ii)
As soon as practicable and in any event at the earlier of the actual time of delivery of the annual financial statements required to be delivered pursuant to Section 5.1(c), or if such annual financial statements are not timely delivered in any Fiscal Year, at the time that such annual financial statements otherwise were required to be delivered pursuant to Section 5.1(c)
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in respect of such Fiscal Year, Borrower shall deliver to the Collateral Agent and Lenders a report outlining all third parties with whom any Borrower or Subsidiary has entered into Label Licenses or licenses intended to encourage a Loan Party’s customers to use the NODAX® trademark in connection with the sale of consumer goods containing the NODAX® brand biopolymers.
(t)
Changes to IP Portfolio. Concurrently with the delivery of each Compliance Certificate pursuant to Section 5.1(d), Borrower shall deliver to the Collateral Agent, Lenders and the lead insurer under the AON Insurance Policy a detailed report providing the information set forth on Exhibit M describing, among other things, changes to the portfolio of IP Rights of the Loan Parties, including, without limitation, addition of IP Rights, disposition of IP Rights and any change in the status of IP Rights of which the Borrower has knowledge and in each case occurring during the period reported upon by the concurrently delivered Compliance Certificate and Borrower will, upon the reasonable request of the lead insurer under the AON Insurance Policy following review of such report, participate in a meeting by conference call at such time as may be agreed to by Xxxxxxxx and lead insurer to discuss any material changes to the portfolio of IP Rights of the Loan Parties;
(u)
DSKY NMTC Consents and DSM NMTC Consents. Promptly (but in any event within one (1) Business Day) following receipt thereof, in each case, Borrower shall deliver a copy of the DSKY NMTC Consents and the DSM NMTC Consents to the Collateral Agent; and
(v)
Other Information. (i) Promptly upon becoming available, copies of (A) all financial statements, material reports, material notices and proxy statements sent or made available generally by any Loan Party to its security holders acting in such capacity or by any Included Subsidiary of a Loan Party to its security holders other than a Loan Party or another Subsidiary and (B) all regular and periodic reports and all registration statements and prospectuses, if any, filed by any Loan Party or any of its Included Subsidiaries with the Securities and Exchange Commission or any governmental or private regulatory authority, in each case to the extent not duplicative of information already provided to the Agents or the Lenders, (ii) promptly after submission to any Governmental Authority, all documents and information furnished to such Governmental Authority in connection with any investigation of any Loan Party (other than any investigation which could not reasonably be expected to result in a Material Adverse Effect or Event of Default), provided, that the disclosure of such information is legally permissible, and provided, further, that to the extent such information has not been otherwise publicly disclosed by the Borrower, such disclosure shall not be made available to the Public Lenders, (iii) promptly upon receipt thereof, copies of all financial reports (including, without limitation, management letters) submitted to any Loan Party by its auditors in connection with any annual interim audit of the books thereof and (iv) such other information and data with respect to Borrower or any of its Included Subsidiaries as from time to time may be reasonably requested by the Required Lenders. Information provided upon request of the Required Lenders shall also be delivered to the Administrative Agent for posting to all Lenders.
Documents required to be delivered pursuant to Section 5.1 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earlier of the date (A) on which any Loan Party posts such documents, or provides a link thereto, on such Loan Party’s or one of its Affiliates’ website on the Internet or (B) on which such documents are posted on such Loan Party’s behalf on IntraLinks/IntraAgency or another website, if any, to which each
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Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the filing of any such documents with the Securities and Exchange Commission on XXXXX and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Each Loan Party hereby acknowledges that (a) the Administrative Agent shall make available to the Lenders materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on IntraLinks, DebtDomain, SyndTrak, ClearPar or another similar electronic system chosen by the Administrative Agent and the Required Lenders to be the electronic transmission system or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may not, or may have personnel who do not, wish to receive information regarding any material non-public information with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing (collectively, “MNPI”), and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Loan Parties hereby agree that they will identify that portion of Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC,” the Loan Parties shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as only containing either publicly available information, or information concerning the Borrower, its Subsidiaries and Affiliates, or its or their respective securities that (in the good faith judgment of the Borrower) is not material information (although it may be sensitive and proprietary) with respect to the Borrower or any of its Subsidiaries or Affiliates or its or their respective securities for purposes of United States federal and state securities laws, (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information” and (iv) the Administrative Agent and the Lenders shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
Although the Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent with the approval of the Required Lenders from time to time (including, as of the Closing Date, a user ID/password authorization system) and the Platform is secured through a per-deal authorization method whereby each user may access the Platform only on a deal-by-deal basis, each of the Lenders and the Loan Parties acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure, that the Administrative Agent is not responsible for approving or vetting the representatives or contacts of any Lender that are added to the Platform, and that there may be confidentiality and other risks associated with such distribution. Each of the Lenders and the Loan Parties hereby approves distribution of the Communications through the Platform and understands and assumes the risks of such distribution.
THE PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR
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ERRORS OR OMISSIONS IN THE PLATFORM AND 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 THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER OR ANY OTHER PERSON OR ENTITY 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 THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE PLATFORM. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent or any Lender by means of electronic communications pursuant to this Section 5.1, including through the Platform.
Each Lender agrees that notice to it (as provided in the next sentence) specifying that Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of such Xxxxxx’s email address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.
The Administrative Agent shall store the Communications on the Platform in accordance with the Administrative Agent’s generally applicable document retention procedures and policies.
Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
Anything to the contrary notwithstanding, nothing in this Agreement (beyond performance required by Section 5.20) will require any Loan Party to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter, or provide information (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure is prohibited by Law or binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.
Section 5.2.
Existence. Except as otherwise permitted under Section 6.9, each Loan Party will, and will cause each of its Included Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights and Governmental Authorizations, qualifications, franchises, licenses and permits material to its business and to conduct its business in each jurisdiction in
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which its business is conducted; provided that no Loan Party or any of its Included Subsidiaries shall be required to preserve any such existence, right or Governmental Authorizations, qualifications, franchise, licenses and permits if such Person’s Board of Directors (or similar governing body) or senior, executive level management shall determine that the preservation thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to Lenders and provided, further, that any Included Subsidiary of Borrower may dissolve provided that such Subsidiary has, prior to its dissolution, satisfied all of its liquidated obligations in full in cash and transferred substantially all of its assets to Borrower or another Loan Party (other than IPHoldCo or any Subsidiary of IPHoldCo including IPCo).
Section 5.3.
Payment of Taxes and Claims. Except as set forth on Schedule 4.10 and except to the extent that a failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Loan Party will pay all Taxes imposed upon it or upon its income or profits or upon any of its property, and all claims (including claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have or may become a Lien upon any of its properties or assets, prior to the time when any penalty or fine shall be incurred with respect thereto; provided that no Loan Party shall be required to pay any such Tax or claim, the payment of which is subject to a valid extension or being contested in good faith and by proper proceedings if a reserve is maintained with respect thereto in accordance with GAAP and to the extent required by GAAP.
Section 5.4.
Maintenance of Properties. Except if the failure to do so would not reasonably be expected to have a Material Adverse Effect, each Loan Party will, and will cause each of its Included Subsidiaries to (a) maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted and casualty and condemnation excepted, all material properties used or useful in the business of the Loan Parties and their respective Included Subsidiaries and from time to time will make or cause to be made all necessary repairs, renewals and replacements thereof and (b) comply at all times with the provisions of all material leases to which it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder.
Section 5.5.
Insurance.
(a)
The Loan Parties will maintain or cause to be maintained, with financially sound and reputable insurers, casualty insurance, business interruption insurance, such public liability insurance, third party property damage insurance or such other insurance with respect to liabilities, losses or damage in respect of the assets, properties and businesses of the Loan Parties and their respective Subsidiaries (other than intellectual property indemnity insurance) as may customarily be carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses, in each case in such amounts (giving effect to self-insurance), with such deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for such Persons (including as set forth in the Pledge and Security Agreement). Without limiting the generality of the foregoing, the Loan Parties and their respective Included Subsidiaries will maintain or cause to be maintained (i) flood insurance with respect to each Flood Hazard Property that is located in a community that participates in the National Flood Insurance Program, in each case in compliance with any applicable regulations of
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the Board of Governors of the Federal Reserve System, and (ii) replacement value (if available) casualty insurance on the Collateral under such policies of insurance, with such insurance companies, in such amounts, with such deductibles, and covering such risks as are at all times carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses. If any Loan Party or any of its Subsidiaries fails to maintain such insurance, Agents (acting at the direction of Required Lenders) may arrange for such insurance, but at Borrower’s expense and without any responsibility on Agents’ part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims. Upon the occurrence and during the continuance of an Event of Default, Agents shall have the sole right (without obligation), in the name of the Lenders, any Loan Party and its Subsidiaries, to file claims under any insurance policies, 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.
(b)
Each of the insurance policies required to be maintained under this Section 5.5 shall provide for at least thirty (30) days’ prior written notice to Agents of the cancellation thereof, in each case, or, if less, the maximum amount of prior written notice that the applicable insurance provider will provide. Receipt of such notice shall entitle Agents (but Agents shall not be obligated) to renew any such policies, cause the coverages and amounts thereof to be maintained at levels required pursuant to this Section 5.5 or otherwise to obtain similar insurance in place of such policies, in each case at the expense of the Loan Parties.
Section 5.6.
Inspections; Books and Records. Each Loan Party will, and will cause each of its Included Subsidiaries to, (a) keep adequate books of record and account in which entries that are full, true and correct in all material respects are made of all dealings and transactions in relation to its business and activities, which books of record and account shall be maintained electronically by Xxxxxxxx and (b) permit any representatives designated by any Agent or any Lender (including employees of any Agent, any Lender or any consultants, auditors, accountants, lawyers and appraisers retained by an Agent) to visit and inspect any of the properties of any Loan Party and any of its respective Included Subsidiaries, to inspect, copy and take extracts from its and their financial and accounting records, and to discuss its and their affairs, finances and accounts with its and their officers and independent accountants and auditors, all upon reasonable notice and at such times during normal business hours, provided, that if no Event of Default has occurred and is continuing, such audits and inspections shall take place no more than once annually. The Loan Parties agree to pay the reasonable and documented out-of-pocket costs and expenses incurred in connection with one such visit and inspection per calendar year (provided that such limit shall not apply during the continuance of an Event of Default). The Loan Parties acknowledge that any Agent, after exercising its rights of inspection, may prepare and distribute to the Lenders certain reports pertaining to the Loan Parties’ assets for internal use by Agents and the Lenders.
Section 5.7.
Private Lenders Meetings and Conference Calls.
(a)
Borrower will, upon the reasonable request of Required Lenders, participate in a meeting of Agents, the insurers under the AON Insurance Policy and Private Lenders to be held no more frequently than once every Fiscal Quarter to be held at Borrower’s corporate offices or by conference call (or at such other location as may be agreed to by Borrower, the Required
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Xxxxxxx and Agents) at such time as may be agreed to by Xxxxxxxx, the Required Lenders and Agents.
(b)
Xxxxxxx may request by written notice to Borrower no later than fifteen (15) Business Days after delivery of financial statements and other information required to be delivered pursuant to Section 5.1(b) that Xxxxxxxx prepare and deliver a Narrative Report relating to such immediately preceding Fiscal Quarter (the “Narrative Report Notice”). If a Narrative Report Notice is timely delivered to Borrower, Borrower shall deliver to Agents, a majority of the insurers under the AON Insurance Policy and Private Lenders the Narrative Report relating to such immediately preceding Fiscal Quarter no later than fifteen (15) Business Days after receipt of the Narrative Report Notice. No later than five (5) Business Days after delivery of the Narrative Report, Required Lenders may request by written notice to Borrower (the “Narrative Report Call Notice”) that Borrower cause its chief financial officer or other Authorized Officer to participate in a conference call with Agents, a majority of the insurers under the AON Insurance Policy and all Private Lenders who choose to participate in such conference call during which conference call the chief financial officer or other Authorized Officer shall review the Narrative Report, and such other matters as any Agent or any Private Lender may reasonably request that has been set forth in the Narrative Report Call Notice (the “Narrative Report Call”). If a Narrative Report Call Notice is timely delivered to Borrower, Borrower shall hold the Narrative Report Call no later than five (5) Business Days after receipt of the Narrative Report Call Notice.
Section 5.8.
Compliance with Laws. Each Loan Party will comply, and shall cause each of its Included Subsidiaries to comply and shall use its commercially reasonable efforts to cause all other Persons, if any, on or occupying any Real Estate Assets to comply, with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority (including all Environmental Laws), non-compliance with which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (including as set forth in the Pledge and Security Agreement). In addition, each Loan Party will comply with the material requirements of all applicable material laws, rules, regulations and orders of any Governmental Authority in respect of timely (including extensions) completion of federal securities law filings.
Section 5.9.
Environmental.
(a)
Each Loan Party shall (i) keep all of its Real Property free of any Environmental Liens (other than Permitted Liens), (ii) comply, and take all commercially reasonable steps to cause all tenants and other Persons who may come upon any property owned or operated by it to comply, with all Environmental Laws in all material respects and provide to Agents any documentation of such compliance which the Required Lenders may reasonably request, (iii) maintain and comply in all material respects with all Governmental Authorizations required under applicable Environmental Laws, (iv) take commercially reasonable steps to prevent any material Release of Hazardous Materials from any property owned or operated by any Loan Party, except to the extent such release would not reasonably be expected to result in a Material Adverse Effect, (v) ensure that there are no Hazardous Materials on, at or migrating from any property owned or operated by any Loan Party, except to the extent that failure to comply would not reasonably be expected to result in a Material Adverse Effect, (vi) undertake or cause to be undertaken any and all Remedial Actions in response to any Environmental Claim, Release of Hazardous Materials or violation of Environmental Law that could reasonably be expected to
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result in a Material Adverse Effect, to the extent required by Environmental Law or any Governmental Authority and to repair and remedy any impairment to the Real Property consistent with its current use and, upon request of the Required Lenders, provide Agents all data, information and reports generated in connection therewith.
(b)
The Loan Parties shall promptly (but in any event within ten (10) Business Days) (i) notify Agents in writing (A) if it knows, suspects or believes there may be a material Release in excess of any reportable quantity or material violation of Environmental Laws in, at, on, under or from any part of the Real Property or any improvements constructed thereon, (B) of any material Environmental Claims asserted against or Environmental Liabilities and Costs of any Loan Party or predecessor in interest or concerning any Real Property, (C) of any failure to comply with Environmental Law in all material respects at any Real Property or that is reasonably likely to result in an Environmental Claim asserted against any Loan Party, (D) any Loan Party’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of any Real Property that could reasonably be expected to cause such Real Property or any part thereof to be subject to any material restrictions on the ownership, occupancy, transferability or use thereof under any Environmental Laws, and (E) any notice of Environmental Lien filed against any Real Property, and (ii) provide such other documents and information as reasonably requested by Required Lenders in relation to any matter pursuant to this Section 5.9(b).
Section 5.10.
Subsidiaries.
(a)
In the event that after the Closing Date any Person becomes a Subsidiary of a Loan Party (other than an Excluded Subsidiary), then within forty-five (45) days of such Person becoming a Subsidiary, the applicable Loan Party shall (a) cause such Subsidiary to become a Guarantor hereunder and a Grantor under and as defined in the Pledge and Security Agreement by executing and delivering to each Agent a Counterpart Agreement, and (b) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, and certificates that Required Lenders shall reasonably request to perfect the security interest in the assets of such Subsidiary constituting Collateral. With respect to each such Subsidiary, Borrower shall promptly send to Agents written notice setting forth with respect to such Person (i) the date on which such Person became a Subsidiary of a Loan Party, and (ii) all of the data required to be set forth in the Schedules hereto with respect to such joining Subsidiary, and such written notice shall be deemed to supplement the applicable Schedules for all purposes hereof. For avoidance of doubt, each future Subsidiary of Borrower that is not an Excluded Subsidiary, whether formed or acquired, shall become a Guarantor in accordance with the foregoing within forty-five (45) days of formation or acquisition.
(b)
Novomer, Inc., and all Included Subsidiaries of the Borrower formed or incorporated in any state of the United States that are in existence on the Closing Date shall execute this Agreement as a Guarantor and shall execute the Pledge and Security Agreement as a Grantor as a condition to the making of the Term Loan on the Closing Date; provided, however, that notwithstanding the foregoing, (i) the obligations of Danimer Scientific Manufacturing, Inc., as a Guarantor under this Agreement and as a Grantor under the Pledge and Security Agreement shall not be effective unless and until the Loan Parties obtain the DSM NMTC Consents, at which point such obligations shall automatically and without further notice or action become effective and (ii) the obligations of Danimer Scientific Kentucky, Inc., as a Guarantor under this Agreement
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and as a Grantor under the Pledge and Security Agreement shall not be effective unless and until the Loan Parties obtain the DSKY NMTC Consents, at which point such obligations shall automatically and without further notice or action become effective. Lender shall release Novomer, Inc. as a Guarantor under the Financing Agreement and as a Grantor under the Pledge and Security Agreement upon the ninety-first (91st) day following receipt of the DSKY NMTC Consents, which release shall be effective automatically and without further notice or action upon receipt of such DSKY NMTC Consents, other than the filing of any necessary UCC financing termination statements with respect thereto, which shall be filed promptly by Collateral Agent or its designee upon receipt of the DSKY NMTC Consents.
(c)
Each Included Subsidiary of Borrower existing on the Closing Date that is formed in any jurisdiction other than a state of the United States (other than any Excluded Subsidiary) shall execute, within sixty (60) days after the Closing Date, joinders to this Agreement as a Guarantor and the Pledge and Security Agreement as a Grantor, each in form and substance reasonably acceptable to Required Lenders, provided that such joinders may contain such reasonable and necessary limitations on the liability of any such joining Subsidiary as may be required under applicable law of the jurisdiction of formation of such joining Subsidiary; and provided further, that with respect to Borrower or any Subsidiary that is formed or conducts material operations in any jurisdiction other than a state of the United States, if required by the Collateral Agent acting on instruction of Required Lenders, local law collateral security documents and filings for such jurisdiction shall be required.
Section 5.11.
Material Real Estate Assets. In the event that any Loan Party acquires a Material Real Estate Asset or a Real Estate Asset owned on the Closing Date becomes a Material Real Estate Asset and such interest has not otherwise been made subject to the Lien of the Collateral Documents in favor of Agents, for the benefit of Secured Parties, then such Loan Party shall within ninety (90) days after acquiring such Material Real Estate Asset, or after a Real Estate Asset owned on the Closing Date becomes a Material Real Estate Asset, take all such actions and execute and deliver, or cause to be executed and delivered, all such Mortgages, documents, instruments, agreements, opinions, surveys, Title Policies, “life of loan” flood hazard determinations with executed notices to Borrower thereto, if applicable, evidence of flood insurance, if applicable, and other certificates, documents and other information as are reasonably requested by the Required Lenders and necessary to grant and perfect a First Priority Lien on such Material Real Estate Asset in favor of the Collateral Agent, for the benefit of the Secured Parties, all in form and substance reasonably acceptable to the Required Lenders. In addition to the foregoing, Borrower shall, at the request of Required Lenders, deliver, from time to time, to Agents such appraisals as are required by law or regulation of Real Estate Assets with respect to which Collateral Agent has been granted a Lien.
Section 5.12.
Location of Equipment. The equipment (other than vehicles or equipment out for repair) of Borrower and its Included Subsidiaries having a value in excess of $500,000, singly or in the aggregate, are not stored with a bailee, warehouseman, or similar party and are located only at, or in-transit between or to, the locations identified on Schedule 4.22. The Borrower shall use commercially reasonable efforts to promptly provide Agent an executed collateral access agreement, in form and substance reasonably satisfactory to the Required Lenders and the Collateral Agent, with respect to any such location that is leased by the Borrower.
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Section 5.13.
Further Assurances.
(a)
At any time or from time to time upon the reasonable request of any Agent, each Loan Party will, at its expense, promptly execute, acknowledge and deliver such further documents and do such other acts and things as such Agent or the Lenders may reasonably request in order to effect fully the purposes of the Loan Documents, including providing Lenders with any information reasonably requested pursuant to Section 10.21. In furtherance and not in limitation of the foregoing, each Loan Party shall take such actions as are reasonably necessary or as any Agent or Lenders may reasonably request from time to time to ensure that the Obligations are guaranteed by the Guarantors and are secured by the Collateral of each Loan Party in the manners set forth in the Loan Documents including, with respect to Borrower or any Included Subsidiary that is formed or conducts material operations in any jurisdiction other than a state of the United States if required by the Collateral Agent acting on instruction of Required Lenders, local law collateral security documents and filings for such jurisdiction. The Loan Parties shall take all reasonable steps necessary to provide that at all times, the Liens granted pursuant to the Collateral Documents shall be First Priority Liens.
(b)
If any Loan Party shall create or assume any Lien upon any of its properties or assets, whether now owned or hereafter acquired, other than Permitted Liens, it shall make or cause to be made effective provisions whereby the Obligations will be secured by such Lien equally and ratably with any and all other Indebtedness secured thereby as long as any such Indebtedness shall be so secured; provided that, notwithstanding the foregoing, this covenant shall not be construed as a consent by Agents or Required Lenders to the creation or assumption of any such Lien not otherwise permitted hereby.
(c)
Any Capital Stock issued by an Excluded Subsidiary to a Loan Party shall be subject to a First Priority Lien granted to the Collateral Agent by such Loan Party except as permitted by clause (bb) of the definition of “Permitted Liens.”
Section 5.14.
Miscellaneous Business Covenants. Unless otherwise consented to by the Required Lenders:
(a)
Non-Consolidation. IPHoldCo will and will cause each of its Subsidiaries to: (i) maintain entity records and books of account separate from those of any other entity which is an Affiliate of such entity (other than IPHoldCo or any of its Subsidiaries); (ii) not commingle its funds or assets with those of any other entity which is an Affiliate of such entity except pursuant to a cash management system permitted pursuant to the below clause (b); (iii) provide that its Board of Directors or other analogous governing body will hold all appropriate meetings to authorize and approve such entity’s actions, which meetings will be separate from those of any other entities (other than IPHoldCo or any of its Subsidiaries); and (iv) otherwise comply with the requirements of the Loan Documents and its Organizational Documents.
(b)
Cash Management Systems. Borrower will and will cause each of its Included Subsidiaries to establish and maintain cash management systems reasonably acceptable to the Required Lenders, including, without limitation, with respect to sweep and pledged account arrangements, with the cash management systems in place on the Closing Date being deemed to be reasonably acceptable to the Required Lenders.
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(c)
License Agreements and Third-Party License Agreements.
(i)
If (i) an Event of Default under this Agreement shall have occurred and be continuing, and (ii) (x) a notice of termination or notice of default (or similar such notification) shall have been delivered under any license agreement (whether existing now or in the future) in respect of IP Rights entered into by a Loan Party as licensor or sublicensor with a person other than a Loan Party or Subsidiary of a Loan Party as licensee or sublicensee (a “Third Party License Agreement”) and the event giving rise to such notice has not been cured by the Loan Parties fifteen (15) days prior to the expiration of the applicable cure period with respect thereto, or (y) any event giving rise to an immediate termination right under any Third Party License Agreement shall have occurred, each Loan Party agrees that any Lender shall have the right, but not the obligation, to perform or cause the relevant Loan Party to perform any of its obligations under any such Third Party License Agreement or deliver any performance required by such Third Party License Agreement. Each Loan Party agrees that any out-of-pocket payments by the Lender providing such performance shall be reimbursable pursuant to Section 10.2, and to the extent not reimbursed upon demand, shall constitute a Protective Advance by such Lender under Section 2.2 for all purposes.
(ii)
If (i) an Event of Default under this Agreement shall have occurred and be continuing, and (ii) (x) a notice of termination or notice of default (or similar such notification) shall have been delivered under any Third Party License Agreement that is a Material Contract and the event giving rise to such notice has not been cured by the Loan Parties fifteen (15) days prior to the expiration of the applicable cure period with respect thereto, or (y) any event giving rise to an immediate termination right under any Third Party License Agreement that is a Material Contract shall have occurred, each Loan Party agrees that any Lender shall have the right, but not the obligation, to perform or cause the relevant Loan Party to perform any of its obligations under any such Third Party License Agreement or deliver any performance required by such Third Party License Agreement. Each Loan Party agrees that any out-of-pocket payments by the Lender providing such performance shall be reimbursable pursuant to Section 10.2, and to the extent not reimbursed upon demand, shall constitute a Protective Advance by such Lender under Section 2.2 for all purposes.
(iii)
If (i) an Event of Default under this Agreement shall have occurred and be continuing, or (ii) a notice of termination or notice of default (or similar such notification) shall have been delivered under any Intercompany License Agreement and the event giving rise to such notice has not been cured by the Loan Parties fifteen (15) days prior to the expiration of the applicable cure period with respect thereto, or (iii) any event giving rise to an immediate termination right under any Intercompany License Agreement shall have occurred, each Loan Party agrees that any Lender shall have the right, but not the obligation, to perform or cause the relevant Loan Party to perform any of its obligations under any such Intercompany License Agreement or deliver any performance required by such Intercompany License Agreement. Each Loan Party agrees that any out-of-pocket payments by the Lender providing such performance shall be reimbursable pursuant to Section 10.2, and to the extent not reimbursed upon demand, shall constitute a Protective Advance by such Lender under Section 2.2 for all purposes.
(iv)
Nothing set forth herein shall prevent or limit the Borrower from entering into or maintaining Third-Party License Agreements in respect of IP Rights so long as such
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agreements are on Arm’s Length Terms and comply with Section 6.9 and, in each case to the extent applicable, the requirements of this Agreement in respect of Extraordinary IP Rights Transactions and Section 6.12.
(d)
Joint Development. From time to time, during the term of this Agreement, a Loan Party may participate in joint research or development projects (“Joint Projects”), either with an Excluded Subsidiary, including Novomer, Inc., or with an unaffiliated third party (a “Third Party Partner”), which may result in the discovery, creation, inventorship or reduction to practice of certain IP Rights (“Developed IP Rights”). Developed IP Rights may be owned solely by a Loan Party (“Sole IP Rights”), jointly by a Loan Party and an Excluded Subsidiary or Third Party Partner (“Joint IP Rights”), or solely by the Excluded Subsidiary or Third Party Partner, subject to the following:
(i)
Joint Projects With Excluded Subsidiaries. A Loan Party may participate in one or more Joint Projects with any Excluded Subsidiary, which Joint Projects shall be entered into on formal Arm’s Length Terms for Fair Market Value. Subject to Section 5.1(s) and Section 6.19, Borrower and each applicable Loan Party will ensure that (A) any Sole IP Rights shall be solely and exclusively owned by the applicable Loan Party and any Joint IP Rights shall be jointly owned in undivided equal parts by the applicable Loan Party and Excluded Subsidiary, (B) the Loan Parties shall have the right to freely use any Joint IP Rights without any obligations (including any right of accounting) to any Excluded Subsidiary or other Person, (C) notwithstanding anything to the contrary herein, any Developed IP Rights that are an improvement, modification, adaptation or derivative of IP Rights owned by a Loan Party shall, as between the Loan Parties and the Excluded Subsidiary, be solely and exclusively owned by the Loan Parties and any Developed IP Rights that are an improvement, modification, adaptation, or derivative of IP Rights solely owned by the Excluded Subsidiary shall, as between the Loan Party and the Excluded Subsidiary, be solely owned by the Excluded Subsidiary, and (D) if any IP Rights owned by an Excluded Subsidiary are necessary for a Loan Party’s use of any Sole IP Rights or Joint IP Rights, such Loan Party shall obtain, and cause such Excluded Subsidiary to grant to such Loan Party a non-exclusive, perpetual, irrevocable, fully paid-up, royalty free, freely transferable and freely sublicensable right and license to use, copy, modify, create derivative works of and otherwise utilize such Sole IP Rights and Joint IP Rights in the conduct of the business of the Loan Parties.
(ii)
Joint Projects With Third Party Partners. A Loan Party may participate in one or more Joint Projects with any Third Party Partner, which Joint Projects shall be entered into on formal Arm’s Length Terms for Fair Market Value. Subject to Section 5.1(r) and Section 6.19, Borrower and each applicable Loan Party will ensure that (A) any Sole IP Rights shall be solely and exclusively owned by the applicable Loan Party and any Joint IP Rights shall be jointly owned in undivided equal parts by the applicable Loan Party and Third Party Partner, (B) the Loan Parties shall have the right to freely use any Joint IP Rights without any obligations (including any right of accounting) to any Third Party Partner or other Person, (C) notwithstanding anything to the contrary herein, any Developed IP Rights that are an improvement, modification, adaptation or derivative of IP Rights owned by a Loan Party shall, as between the Loan Parties and the Third Party Partner, be solely and exclusively owned by the Loan Parties and any Developed IP Rights that are an improvement, modification, adaptation, or derivative of IP Rights solely owned by the Third Party Partner shall, as between the Loan Party and the Third Party Partner, be solely owned
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by the Third Party Partner, and (D) if any IP Rights owned by a Third Party Partner are necessary for a Loan Party’s use of any Sole IP Rights or Joint IP Rights, such Loan Party shall use good faith efforts to obtain and to cause such Third Party Partner to grant to such Loan Party a non-exclusive, perpetual, irrevocable, fully paid-up, royalty free, freely transferable and freely sublicensable right and license to use, copy, modify, create derivative works of and otherwise utilize such Sole IP Rights and Joint IP Rights in the conduct of the business of the Loan Parties.
Section 5.15.
Post-Closing Matters. Borrower shall, and shall cause each of the Loan Parties to, satisfy the requirements set forth on Schedule 5.15 on or before the date specified for such requirement or such later date to be determined by the Required Lenders.
Section 5.16.
AON Insurance Policy. Xxxxxxxx acknowledges and agrees that no proceeds received by the Collateral Agent in respect of a claim under the AON Insurance Policy shall be applied to prepay the outstanding principal balance of any Term Loan nor shall such proceeds constitute Collateral. Xxxxxxx hereby authorize Xxxxxxxx to, and Xxxxxxxx agrees to, deliver or cause any notices or other information relating to the AON Insurance Policy to be delivered to the Administrative Agent.
Section 5.17.
[Intentionally omitted].
Section 5.18.
Changes to Capital Structure. If the Borrower undergoes any material changes to its capital structure (whether by way of additional funding rounds, issuances of Equity Interests, or otherwise), then Borrower shall deliver to Lender an updated capitilization table concurrently with the delivery of any Quarterly Financial Statement described in Section 5.1(b).
Section 5.19.
Convertible Notes.
(a)
Any new indenture or note purchase agreement entered into after the Closing Date for the issuance or sale of New Convertible Notes and any New Convertible Notes issued or sold thereunder or any extensions, renewals, or replacements of Convertible Notes shall be on terms and conditions previously presented to the Required Lenders not less than ten (10) Business Days prior to entry into such new indenture or note purchase agreement and not objected to thereby.
(b)
Any New Convertible Notes or refinancings of Convertible Notes shall not (i) mature, require any scheduled amortization or otherwise require payment of principal prior to ninety-one days after the scheduled Term Loan Maturity Date regardless of whether issued pursuant to the Indenture or otherwise or (ii) provide for interest consisting of (x) a cash coupon rate more than 150% (the “Cash Interest Cap”) or (y) payments in kind in excess of 200% (the “PIK Interest Cap”), in each of the coupon rate of the Convertible Notes as of the Closing Date. For the avoidance of doubt, Convertible Notes under this Section 5.19(b) may provide for both Cash interest at a rate up to an including the Cash Interest Cap and payments in kind interest at a rate up to and including the PIK Interest Cap.
Section 5.20.
Trade Secrets Lockbox Deposit. All trade secrets, know-how and other confidential or proprietary information of the Loan Parties including without limitation those included in the categories set forth in Schedule 5.20 (as updated from time to time) of design, chemistry, engineering, process and other information and technical or other specifications with
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respect to the Loan Parties’ product lines and operations (collectively, the “Deposit Materials”) are documented in writing and Borrower shall at all times ensure that it is documented in writing. Borrower shall, or shall cause IPCo to, (x) within sixty (60) days of the Closing Date (which period shall be extended upon Borrower’s option to extend this period two (2) times for an additional thirty (30) days each upon a showing of its diligent and timely efforts to fully comply with this Section 5.20), and thereafter on the last Business Day of each Fiscal Quarter irrevocably deposit all such final written materials (or if any item is not final, the then most recent draft thereof) into the “documentation vault” maintained by a custodian as designated by the Required Lenders that has not previously been so deposited, (y) include on its Compliance Certificate for such Fiscal Quarter an updated Schedule 5.20 and a certification that the materials provided in the “documentation vault” are current, sound, relevant and complete and report on the nature of the most recent deposit of such material into such “documentation vault” and (z) on an annual basis, verify that the content of the Deposit Materials complies with this Section 5.20. If the Required Lenders determine in good faith in their reasonable business judgment at any time during the term of this Agreement to require an audit of the Deposit Materials (including any supplementations thereto) to verify that the content of such Deposit Materials comply with this Section 5.20, each of Borrower and IPCo agrees to permit the Required Lenders to engage an independent third party to access and inspect such Deposit Materials to verify material compliance with this Section 5.20; provided, that such third party enters into a confidentiality agreement satisfactory to Borrower (acting reasonably and in good faith) prior to any such access, and provided further that except upon the occurrence and during the continuance of an Event of Default, such inspection shall be limited to once per any twelve (12) month period. Xxxxxxxx agrees to work in good faith and use commercially reasonable efforts to assist such third party in its implementation and performance of its inspection and verification of the Deposit Materials. Borrower shall be solely responsible for all reasonable and documented out-of-pocket costs and expenses incurred by and payable to such third party in connection the performance of its duties hereunder.
Section 5.21.
Existing GARJA Loan Payoff. Borrower shall use its commerically reasonable efforts to payoff the Existing GARJA Loan as soon as reasonably practicable following the Closing Date, but in no event later than five (5) Business Days following the expiration of the GARJA Payoff Notice Period or any earlier termination or waiver of such notice period (such payoff date, the “Existing GARJA Loan Payoff Date”).
Section 5.22.
DSKY NMTC Consents Cap; Monthly Reporting Requirement; Novomer Schedules.
(a)
Borrower shall be prohibited from withdrawing any amounts from the DSKY Blocked Account that would cause the balance of such account to be less than $12,000,000 at any time prior to the delivery of the DSKY NMTC Consents to the Agents. If the Loan Parties have not provided the DSKY NMTC Consents to the Agents on or prior to November 30, 2026, the Agent, acting at the instruction of the Required Lenders, shall be authorized to withdraw funds from the DSKY Blocked Account and shall apply such funds to the payment in full (and the Loan Parties authorize such withdrawal and hereby consent to such payment) of all outstanding
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amounts owed by the Borrower or its Subsidiaries pursuant to the DSKY NMTC Transaction with the funds available in the DSKY Blocked Account.
(b)
Unless and until the Loan Parties obtain the DSKY NMTC Consents, the Borrower shall maintain a minimum balance of $45,000,000, in the aggregate, at all times in the Initial Funding Account and the DSKY Blocked Account. For avoidance of doubt, the Agents shall not be required to enforce or monitor the cash balances in either the Initial Funding Account or the DSKY Blocked Account.
(c)
Borrower shall certify the balance of the Initial Funding Account to Lender on or before the tenth (10th) day of each following month until the month following the date that the Loan Parties provide evidence of receipt of the DSKY NMTC Consents to Lender.
(d)
To the extent any Schedules are required under either this Agreement, the Pledge and Security Agreement or any other Loan Document (which such schedules do not require disclosure of information regarding all Unrestricted Subsidiaries), the Loan Parties shall provide final versions of such Schedules with respect to Novomer, Inc., to the Lenders within forty-five (45) days after the Closing Date; provided, however, if the DSKY NMTC Consents are obtained prior to the expiration of such forty-five (45) day period, then the Loan Parties shall not be required to provide such Schedules with respect to Novomer, Inc. to the Lenders. In furtherance of the foregoing, and for the avoidance of doubt, the Loan Parties may amend, supplement and/or modify within such forty-five (45) day period any Schedule previously delivered to the Lenders for the purpose of providing final versions of such Schedule with respect to Novomer, Inc. Any breach of any representation and warranty set forth in Sections 4.11, 4.12, 4.14, 4.21, 4.22, or 4.27 solely as a result of information with respect to Novomer, Inc., that would have been set forth on such Schedules at the expiration of such forty-five (45) day period shall not be deemed a breach of such representation and warranty.
ARTICLE VI
NEGATIVE COVENANTS
NEGATIVE COVENANTS
Each Loan Party covenants and agrees that, so long as any Commitment is in effect and until payment in full of all Obligations, such Loan Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Article VI (provided, that any Subsidiary that has been acquired pursuant to a Permitted Acquisition shall have a period of sixty (60) days following the date of such Permitted Acquisition to perform or comply with, as applicable, the covenants in this Article VI).
Section 6.1.
Indebtedness. No Loan Party shall, nor shall it permit any of its Included Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except Permitted Indebtedness.
Section 6.2.
Liens. No Loan Party shall, nor shall it permit any of its Included Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts
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receivable) of any Loan Party or any of its Included Subsidiaries, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the UCC of any State or under any similar recording or notice statute, except Permitted Liens.
Section 6.3.
Equitable Lien. If any Loan Party or any of its Included Subsidiaries shall create or assume any Lien upon any of its properties or assets, whether now owned or hereafter acquired, other than Permitted Liens, it shall not fail to make or cause to be made effective provisions whereby the Obligations will be secured by such Lien equally and ratably with any and all other Indebtedness secured thereby as long as any such Indebtedness shall be so secured; provided that, notwithstanding the foregoing, this covenant shall not be construed as a consent by Agents or Required Lenders to the creation or assumption of any such Lien not otherwise permitted hereby.
Section 6.4.
No Further Negative Pledges. Except (a) with respect to any specific property encumbered to secure payment of particular Indebtedness or to be sold pursuant to an executed agreement with respect to an Asset Sale permitted under Section 6.9, (b) with respect to restrictions by reason of customary provisions restricting assignments, subletting or other transfers contained in leases, licenses and similar agreements entered into in the ordinary course of business (provided that such restrictions are limited to the property or assets secured by such Liens or the property or assets subject to such leases, licenses or similar agreements, as the case may be), (c) as provided in the AON Insurance Policy and any related documentation and (d) as permitted under the Loan Documents, no Loan Party nor any of its Included Subsidiaries shall enter into any agreement prohibiting the creation or assumption of any Lien upon any of its properties or assets to secure the Obligations, whether now owned or hereafter acquired.
Section 6.5.
Restricted Junior Payments. No Loan Party shall, nor shall it permit any of its Included Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, except:
(a)
Restricted Junior Payments to pay for the repurchase, retirement or other acquisition or retirement for value of Capital Stock (other than Disqualified Capital Stock) of Borrower held by any future, present or former employee, director, officer, member of management or consultant of any Loan Party pursuant to any management equity plan or stock option plan or any other management, service provider or employee benefit plan or agreement, or any equity subscription or equity holder agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower in connection with any such repurchase, retirement or other acquisition) in an amount not to exceed $250,000 in any Fiscal Year, with unused amounts in any Fiscal Year carrying over to the next succeeding Fiscal Year;
(b)
Borrower may purchase, redeem or otherwise acquire Capital Stock issued by it solely with the proceeds received from the issue of new shares of its capital stock within the prior twelve (12) months;
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(c)
any Restricted Junior Payment made in connection with the Transactions and the fees and expenses related thereto or owed to any Affiliate;
(d)
any Loan Party may declare and pay dividends or distributions directly or indirectly to, or make loans or advances to, Borrower to enable Borrower to pay (and Borrower may so pay), in each case without duplication:
(i)
franchise, excise and similar taxes and other fees and expenses, in each case, required to maintain their corporate or other legal existence;
(ii)
for any taxable period for which the Loan Parties are members of a consolidated, combined, unitary or similar income tax group for U.S. federal or applicable foreign, state or local income tax purposes of which Borrower is the common parent (a “Tax Group”), to pay the portion of any U.S. federal, foreign, state and local income taxes of such Tax Group for such taxable period that are attributable to the taxable income of the Loan Parties (net of any payments of such taxes made for the relevant period by the Loan Parties); provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate will not exceed the amount that the Loan Parties, would have been required to pay as a stand-alone Tax Group; provided, further, that losses or credits of a Subsidiary shall only be taken into account to the extent that such Subsidiary is actually a part of the applicable Tax Group and such losses or credits are actually utilized in the relevant period;
(iii)
for any taxable period for which Borrower is a partnership for U.S. Federal or applicable foreign, state or local income tax purposes, distributions to each of Borrower’s members in an amount which will provide each such member with sufficient funds to pay such member’s federal and state income tax liability for the taxable period as estimated by Borrower resulting from such member’s allocation of items of income, gain, loss and deduction for such taxable period (for purposes of making this estimation, (A) it is assumed that (1) all of the members reside in the same state, (2) such state is the state with the highest marginal rate among all of the states in which the members of Borrower reside, and (3) each of the members is taxable at the highest combined state and federal marginal rate and (B) a member’s taxable income for an applicable taxable period will be reduced by any cumulative net taxable loss allocated to such member, in accordance with the operating agreement for Borrower then in effect);
(iv)
salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, employees, directors, officers, members of management and consultants, or any other individual service providers, of Borrower and any payroll, social security or similar taxes thereof;
(v)
non-income taxes and general corporate or other operating, administrative, compliance and overhead costs and expenses (including expenses relating to auditing and other accounting matters) of Borrower attributable to the ownership of the Loan Parties; and
(vi)
fees and expenses (including ongoing compliance costs and listing expenses) related to any equity offering of Borrower;
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(e)
cash payments, or loans, advances, dividends or distributions to Borrower to make payments, in lieu of issuing fractional shares in connection with share dividends, share splits, reverse share splits, mergers, consolidations, amalgamations or other business combinations and in connection with the exercise of warrants, options or other securities convertible or exchangeable for Capital Stock of any Loan Party;
(f)
to the extent constituting a Restricted Junior Payment, the Loan Parties and their Subsidiaries may enter into and consummate transactions expressly permitted (other than by reference to this Section 6.5(f)) by Section 6.1, Section 6.9 or Section 6.12 to be consummated as, or acknowledged therein to be, a Restricted Junior Payment;
(g)
(x) Restricted Junior Payments among Loan Parties and (y) Restricted Junior Payments among IPHoldCo and each of its Subsidiaries;
(h)
Borrower or any of its Included Subsidiaries may make Restricted Junior Payments in respect of customary working capital adjustments or customary purchase price adjustments pursuant to any Permitted Acquisition or other Permitted Investments;
(i)
Restricted Junior Payments to enable Borrower to make payments to Persons who are not Affiliates, directly or indirectly, on account of any customary earn-out in an aggregate amount not to exceed $1,000,000 for all such earn-outs;
(j)
subject to any applicable Subordination Agreement, scheduled payments of interest with respect to Subordinated Indebtedness, provided that payment terms are on equal or more favorable terms to the Lenders than the Existing Convertible Notes; and
(k)
Restricted Junior Payments on amounts owing under the Convertible Notes, solely with the proceeds received from the substantially concurrent issue of new shares of its Capital Stock or Indebtedness otherwise permitted hereunder (other than pursuant to clause (v) of the definition of “Permitted Indebtedness”).
For the avoidance of doubt, if Borrower has any preferred equity outstanding, the Borrower shall not make any distributions on account of such preferred equity prior to the payment of all Obligations in full in Cash in Dollars.
Section 6.6.
Restrictions on Subsidiary Distributions. Except as provided herein or to the extent required by the terms of Indebtedness incurred by an Unrestricted Subsidiary, no Loan Party shall, nor shall it permit any of its Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary of a Loan Party to (a) pay dividends or make any other distributions on any of such Subsidiary’s Capital Stock owned by a Loan Party or any other Subsidiary of a Loan Party, (b) repay or prepay any Indebtedness owed by such Subsidiary to a Loan Party or any other Subsidiary of a Loan Party, (c) make loans or advances to a Loan Party or any other Subsidiary of a Loan Party, (d) make any distribution prohibited by this Agreement, or (e) transfer any of its property or assets to a Loan Party or any other Subsidiary of a Loan Party other than, in each case, restrictions (i) in the Loan Documents and in agreements evidencing purchase money Indebtedness or Capital Leases permitted by clause (g) of the definition of “Permitted Indebtedness” that impose restrictions on the property so acquired, (ii) by reason of customary provisions restricting
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assignments, subletting or other transfers contained in leases, licenses, joint venture agreements and similar agreements entered into in the ordinary course of business, (iii) that are or were created by virtue of any transfer of, agreement to transfer or option or right with respect to any property, assets or Capital Stock not otherwise prohibited under this Agreement, and (iv) restrictions imposed by applicable Law. No Loan Party shall, nor shall it permit its Included Subsidiaries to, enter into any Contractual Obligations which would prohibit an Included Subsidiary of any Loan Party from being a Loan Party.
Section 6.7.
Investments. No Loan Party shall, nor shall it permit any of its Included Subsidiaries to, directly or indirectly, make or own any Investment in any Person, including without limitation any Joint Venture, except Permitted Investments and the contribution to the applicable Included Subsidiary of proceeds of a transfer of its Capital Stock as provided in this Agreement. Notwithstanding the foregoing, in no event shall any Loan Party make any Investment which results in or facilitates in any manner any Restricted Junior Payment not otherwise permitted under the terms of Section 6.5. Notwithstanding the foregoing, in no event shall any Loan Party make any Investment of Cash, Dollars or Cash Equivalents in any Person that was directly or indirectly acquired in a Permitted Acquisition when such Person has on its balance sheet at the time of acquisition Indebtedness for borrowed money or Liens securing Indebtedness for borrowed money.
Section 6.8.
Interest Reserve Account. The Loan Parties shall not at any time after the Closing Date suffer or permit the available balance of Dollars and Eligible Investments in the Interest Reserve Account to have a mark-to-market aggregate value as of the close of business of the immediately preceding Business Day that is less than the Minimum Interest Reserve Amount.
Section 6.9.
Fundamental Changes; Disposition of Assets; Acquisitions. No Loan Party shall, nor shall it permit any of its Included Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or consummate any Asset Sale, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a)
any Subsidiary of Borrower (other than IPHoldCo or any of its Subsidiaries) may be merged with or into Borrower or any Guarantor (other than IPHoldCo or any of its Subsidiaries), or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased (including leases of equipment), transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any Guarantor (other than IPHoldCo or any of its Subsidiaries); provided that in the case of such a merger, (i) Borrower or such Guarantor, as applicable, shall be the continuing or surviving Person, (ii) any Liens in favor of any Person other than Lenders that encumber the assets of the Person so merged shall not attach to any assets of the surviving Person, other than Permitted Liens and (iii) any Liens in favor of Xxxxxxx that encumber the assets of the surviving Person shall attach to any assets of the person so merged on a First Priority basis.
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(b)
(i) Asset Sales (excluding, for the avoidance of doubt, Extraordinary IP Rights Transactions), the collective proceeds of which are less than $1,000,000 in the aggregate in any Fiscal Year and (ii) Extraordinary IP Rights Transactions; in each case, provided that (A) the consideration received for such assets shall be in an amount at least equal to the Fair Market Value thereof (determined in good faith by the Board of Directors of Borrower or the applicable Subsidiary (or similar governing body), (B) no less than 75% of the consideration shall be paid in Cash including deferred payment obligations payable in Cash), (C) the Net Proceeds thereof (other than Reinvestment Amounts) shall be subject to the Cash Sweep (to the extent then in effect) and (D) Borrower shall make a mandatory prepayment pursuant to Section 2.9(a), Section 2.9(b) or Section 2.9(d), as applicable;
(c)
Asset Sales permitted (other than by reference to this Section 6.9(c)) by Section 6.5 and pursuant to the definition of Permitted Liens;
(d)
disposition in the ordinary course of business of property obsolete or worn out or no longer needed in the business or the lapse or abandonment of IP Rights, which in the good faith determination of Borrower, are not material to the conduct of the business of the Loan Parties either taken as a whole or with respect to any segment thereof (and in the case of any lapse, abandonment or other disposition of any issued or applied-for patent, registered or applied-for trademark or registered or applied-for copyright the Loan Parties shall first provide written notice of such request to the insurers under the AON Insurance Policy, the Administrative Agent and the Lenders thirty (30) Business Days prior to the last opportunity to prevent such lapse, abandonment or other disposition and (x) such lapse, abandonment or other disposition shall have been approved by insurers holding at least 50.1% of the risk under the AON Insurance Policy on the terms and conditions set forth in clause (a) of Section IV of the AON Insurance Policy as in effect on the Closing Date without giving effect to any subsequent amendment or modification and (y) the Required Lenders shall not have, within thirty (30) Business Days following receipt of such notice, objected to such transaction, if such approval of insurers is received, and no such objection of Lenders is made, the Loan Parties shall be permitted to proceed with such lapse, abandonment or other disposition);
(e)
(x) acquisitions listed on Schedule 6.9, (y) Permitted Acquisitions funded solely with the proceeds of the issuance of Capital Stock of Borrower that occurs within nine (9) months prior to such acquisition or Subordinated Indebtedness otherwise permitted hereunder issued substantially concurrently with such acquisition, and (z) other Permitted Acquisitions with an amount of cash consideration valued in accordance with GAAP not to exceed $500,000 in the aggregate in any fiscal year of the Borrower, in the case of each of clauses (y) and (z), so long as the requirements enumerated in the definition of Permitted Acquisition are satisfied in the sole discretion of the Required Lenders or provided that such Permitted Acquisition requirements may be modified by delivery of a written request for such modification to the Lenders and the Administrative Agent ten (10) Business Days prior to the consummation of such Permitted Acquisition and the Required Lenders shall not have objected to such modification within such ten (10) Business Days following receipt of such written request, or otherwise waived by the Required Lenders in their sole discretion pursuant to Section 10.5;
(f)
other Permitted Investments;
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(g)
performance of Indebtedness and other obligations of any type by any Loan Party and/or any of its Included Subsidiaries at any time arising pursuant to and in respect of the Warrant;
(h)
transactions permitted pursuant to Section 6.10;
(i)
any Subsidiary of Borrower (other than IPHoldCo and its Subsidiaries including IPCo) may dissolve or liquidate, so long as the assets thereof are distributed to another Loan Party (other than IPHoldCo or any of its Subsidiaries including IPCo);
(j)
Borrower may issue additional Capital Stock; and
(k)
Subject to Section 2.9(c), an Asset Sale consisting of all or substantially all of the assets or Capital Stock of Novomer, Inc.
To the extent any Collateral is sold, transferred or otherwise disposed of as expressly permitted by this Agreement or in connection with a transaction approved by the Required Lenders, in each case to a Person other than a Loan Party, such Collateral shall, except as set forth in this Agreement, be sold, transferred or otherwise disposed of free and clear of the Liens created by the Collateral Documents, and so long as the Loan Parties shall have previously provided to the Collateral Agent and the Administrative Agent such certifications or documents as the Required Lenders, the Collateral Agent or the Administrative Agent shall reasonably request in order to demonstrate compliance with this Agreement and the other Loan Documents, including this Section 6.9, Collateral Agent shall take all actions appropriate or reasonably requested by Borrower in order to effect the foregoing at the sole cost and expense of Borrower and without recourse or warranty by Collateral Agent (including the execution and delivery of appropriate UCC termination statements and such other instruments and releases provided to it and requested by the Loan Parties as may be necessary and appropriate to effect such release). To the extent any such permitted sale, transfer or other disposition results in a Guarantor no longer constituting an Included Subsidiary of Borrower, the Obligations of such Guarantor and all obligations of such Guarantor under the Credit Documents shall terminate and be of no further force and effect, and each of Administrative Agent and Collateral Agent shall take such actions, at the sole expense of Borrower, as are requested by Borrower in connection with such termination.
Section 6.10.
Disposal of Subsidiary Interests. Except as permitted under Section 6.9, no Loan Party shall, nor shall it permit any of its Included Subsidiaries to, (A) directly or indirectly sell, assign, pledge or otherwise encumber (other than any Permitted Liens) or dispose of any Capital Stock of any of its Included Subsidiaries, (B) permit any of its Included Subsidiaries directly or indirectly to sell, assign, pledge or otherwise encumber (other than any Permitted Liens) or dispose of any Capital Stock of any of its Included Subsidiaries, or (C) permit any of its Included Subsidiaries directly or indirectly to issue any Capital Stock, in each case except to another Loan Party (subject to the restrictions on such disposition otherwise imposed hereunder).
Section 6.11.
Sales and Lease Backs. Except as set forth on Schedule 6.11, no Loan Party shall, nor shall it permit any of its Included Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned or hereafter acquired, which such Loan
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Party (a) has sold or transferred or is to sell or to transfer to any other Person (other than any Loan Party or any of its Included Subsidiaries), or (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by such Loan Party to any Person (other than any Loan Party or any of its Included Subsidiaries) in connection with such lease.
Section 6.12.
Transactions with Affiliates. No Loan Party shall, nor shall it permit any of its Included Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act (but excluding (i) any employee benefit plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) any Permitted Holder and (iii) Xxxxxxxxx, any affiliate thereof or any successor owner of any Capital Stock previously held by Xxxxxxxxx) that is or becomes a holder of 10% or more of any class of Capital Stock of Borrower or any of its Included Subsidiaries or with any other Affiliate of Borrower (but excluding (i) any employee benefit plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) any Permitted Holder and (iii) Xxxxxxxxx, any affiliate thereof or any initial transferee of any Capital Stock transferred by Xxxxxxxxx), in each case whether or not in the ordinary course of business; provided that the Loan Parties and their Included Subsidiaries may enter into or permit to exist any such transaction if (a) such transaction is for Fair Market Value on Arm’s Length Terms, (b) such transaction has been approved by the disinterested members of the Board of Directors of Borrower if the aggregate value of the transaction is more than $250,000, and (c) if the aggregate value of the transaction is more than $250,000, the Loan Parties shall provide written notice of such transaction to the Adminstrative Agent and the Lenders ten (10) Business Days prior to the entry into such transaction and the Required Lenders shall have ten (10) Business Days following receipt of such notice to object to the entry into such transaction, and if no such objection is made within such ten (10) Business Day period, the Loan Parties shall be permitted to proceed with such transaction; provided further that the foregoing restrictions shall not apply to any of the following:
(a)
any transaction among the Loan Parties and their Included Subsidiaries, Joint Ventures or any entity that becomes an Included Subsidiary of a Loan Party as a result of such transaction;
(b)
transactions for Fair Market Value on Arm’s Length Terms;
(c)
the Transactions and the payment of Transaction Costs;
(d)
equity issuances, repurchases, redemptions, retirements or other acquisitions of Capital Stock by the Loan Parties and their Subsidiaries permitted under Section 6.5;
(e)
loans and other transactions by and among the Loan Parties and their Subsidiaries to the extent permitted under this Article VI;
(f)
customary fees and reasonable out-of-pocket expenses paid to, and indemnities provided on behalf of, members of the Board of Directors (or similar governing body)
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of the Loan Parties and their Subsidiaries so long as such fees are (x) paid to individuals (or such individual’s personal service company) and (y) approved pursuant to existing policies of such Loan Party or Included Subsidiary and applicable to all such members who are not officers or employees of such Loan Party;
(g)
compensation arrangements for consultants, directors, officers and other employees of the Loan Parties and their respective Subsidiaries entered into in the ordinary course of business and transactions pursuant to stock incentive plans, employee stock purchase plans employee benefit plans and similar arrangements; and
(h)
transactions described in Schedule 6.12.
Borrower shall promptly (but in any event within ten (10) Business Days prior to the consummation thereof) disclose in writing each transaction (other than any transaction described in clause (a) through (g) above) by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act (but excluding (i) any employee benefit plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) any Permitted Holder and (iii) Xxxxxxxxx, any affiliate thereof or any successor owner of any Capital Stock previously held by Xxxxxxxxx)) that becomes a holder of 10% or more of any class of Capital Stock of any Loan Party or any of its Included Subsidiaries or with any Affiliate of any Loan Party to Agents and Lenders; provided, that in the case of Borrower, such holder has filed with the Securities and Exchange Commission a Form 3, Form 4, Schedule 13D or Schedule 13G indicating its ownership of 10% or more of the Capital Stock of Borrower or for which holder Borrower has actual knowledge of such ownership.
Section 6.13.
Conduct of Business.
(a)
From and after the Closing Date, (i) no Loan Party shall, nor shall it permit any of its Included Subsidiaries to, engage in any business other than (x) any business that is the same as, similar to, incidental, ancillary, or complementary to, or a reasonable extension of, the businesses engaged in by such Loan Party or such Subsidiary on the Closing Date (in the case of Meredian Bioplastics, Inc., its existing business shall be deemed to consist of the development of the proposed production capacity buildout at the Greenfield facility located in Bainbridge, Georgia), and (y) such other lines of business as may be consented to by the Required Lenders (and without limiting the foregoing, neither IPCo nor IPHoldCo shall conduct their respective businesses in contravention of Section 6.19) and (ii) subject to the remainder of this Section 6.13(a) the aggregate Cash and Cash Equivalents of any Excluded Subsidiaries (other than any Unrestricted Subsidiary) with respect to which Borrower has not complied with the requirements of Section 5.10(a) shall not exceed $1,500,000 (plus the proceeds of any Investment of Cash or Cash Equivalents into such Excluded Subsidiary (other than any Unrestricted Subsidiary) by any Person that is not an Affiliate of Borrower) at any time. Notwithstanding clause (ii) hereinabove, repatriation and upstreaming of excess Cash and Cash Equivalents from an Excluded Subsidiary (other than any Unrestricted Subsidiary) that is a Foreign Subsidiary is subject to permissibility of the distribution of proceeds to Borrower under local law applicable to such Foreign Subsidiary (e.g., financial assistance, thin capitalization, corporate benefit, restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant Foreign
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Subsidiaries). Further, there will be no requirement to make any Foreign Subsidiary repatriate or upstream Cash or Cash Equivalents to the extent that Borrower or its Subsidiaries deliver an officer certificate certifying in reasonable detail satisfactory to the Required Lenders that the Borrower and its Subsidiaries, taken as a whole, would reasonably be expected to suffer adverse tax consequences that are material as a result of upstreaming or repatriating Cash or Cash Equivalents, provided, that an adverse tax consequence that is material shall only arise to the extent that the upstreaming or repatriation of Cash or Cash Equivalents would reasonably be expected to materially increase the amount of Tax that Borrower or any of its Subsidiaries would otherwise be required to pay if such upstreaming or repatriation were not made, taking into account the availability of any items (including carryforward items) of loss, deduction or credit of Borrower and its Subsidiaries to offset the amount of income required to be included or the amount of Tax required to be paid by Borrower or any of its Subsidiaries. Any excess of Cash or Cash Equivalents held in Excluded Subsidiaries (other than any Unrestricted Subsidiary) solely as a result of the foregoing provisions will not constitute an Event of Default, provided that such Excluded Subsidiary (other than any Unrestricted Subsidiary) institutes a reserve on its books and records in an amount equal to such excess amount. No such reduction of reserve by an Excluded Subsidiary (other than any Unrestricted Subsidiary) that would constitute an Investment pursuant to this Section 6.13(a) shall occur if the making of such Investment can be reasonably expected to result in the occcurrence of an Event of Default hereunder. The Borrower and each Foreign Subsidiary will undertake to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of repatriation.
(b)
No Excluded Subsidiary (other than any Unrestricted Subsidiary) shall possess more equipment or inventory than are reasonably necessary to commence operations in such Excluded Subsidiary’s (other than any Unrestricted Subsidiary) applicable geographic territory, except to the extent required to do so by such Excluded Subsidiary’s (other than any Unrestricted Subsidiary) Organizational Documents or shareholders’ agreement relating thereto that was not entered into in contemplation of this Agreement.
(c)
Any license or sublicense of IP Rights to any Excluded Subsidiary (i) shall be (A) non-exclusive in all respects, (B) non-assignable by such Excluded Subsidiary, except that such Excluded Subsidiary may grant non-exclusive sublicenses to a third party in the ordinary course of business and on Arm’s Length Terms at Fair Market Value and that do not interfere with the ordinary conduct of business of Borrower, or impair the value of any Collateral, in any material respect, including those sublicenses that are implied or incidental with respect to a service or product provided or supplied to the Excluded Subsidiary by a Loan Party, and (C) cancellable (together with any sublicenses granted to a third party, except those that are implied or incidental with respect to service or product that the Excluded Subsidiary has supplied or provided to a third party prior to such cancellation) on account of a material breach of such license, which breach has not been cured by the breaching party within the applicable cure period, if any, under such license or sublicense, (ii) shall include a provision for compensation at Fair Market Value to the licensor Loan Party and (iii) shall be made on Arm’s Length Terms. Any license or sublicense of IP Rights to an Excluded Subsidiary that does not comply in all respects with the prior sentence shall constitute an Extraordinary IP Rights Transaction for all purposes under this Agreement and shall include, or be deemed to include, provision for cash compensation at Fair Market Value to Borrower on Arm’s Length Terms.
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Section 6.14.
Changes to Certain Agreements and Organizational Documents.
(a)
No Loan Party shall (i) amend, waive, modify, restate, supplement or replace, or suffer or permit any waiver, amendments, modifications, restatements, supplements or replacements to any Loan Party’s Organizational Documents if such waiver, amendment, modification, restatement, supplement or replacement would be materially adverse to the interests of Agents or the Lenders, (ii) amend, waive, modify, restate, supplement or replace, or suffer or permit any amendments, modifications, restatements, supplements or replacements to, or terminate or waive any provision of, any Material Contract (including, for avoidance of doubt any Material Contact listed on Schedule 4.14) if such amendment, modification, restatement, supplement or replacement, termination, or waiver would be materially adverse to the interests of Agents or the Lenders, or (iii) amend, waive, modify, restate, supplement or replace, or suffer or permit any waiver, amendments, modifications, restatements, supplements or replacements to, or terminate or waive any provision of, any Intercompany License Agreement, any material Third Party License Agreement or any Organizational Documents of either IPCo or IPHoldCo if such amendment, modification, restatement, supplement or replacement, termination, or waiver would be materially adverse to the interests of Agents or the Lenders.
(b)
No Loan Party shall, nor shall it permit any of its Included Subsidiaries to, amend or otherwise change the terms of any Subordinated Indebtedness, except in accordance with the applicable subordination and/or intercreditor arrangements, the terms and conditions of which are reasonably satisfactory to the Required Lenders.
Section 6.15.
Accounting Methods. The Loan Parties will not and will not permit any of their Subsidiaries to modify or change its fiscal year or or to change or materially modify its method of accounting (other than as may be required to conform to GAAP).
Section 6.16.
Deposit Accounts and Securities Accounts. No Loan Party shall establish or maintain a Deposit Account or a Securities Account (other than an Excluded Account) that is not subject to a Control Agreement. No Loan Party may close any Deposit Account or Securities Account that is subject to a Control Agreement without the consent of the Collateral Agent unless by reason that such Deposit Account or Securities Account has become an Excluded Account. No Loan Party shall permit the deposit of proceeds of accounts receivable directly from the applicable account debtor into any Deposit Account or Securities Account that is not subject to a Control Agreement.
Section 6.17.
Prepayments of Certain Indebtedness; Timely Payment in the Ordinary Course of Business. No Loan Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of any Indebtedness prior to its scheduled maturity, other than (a) the Obligations, (b) Indebtedness secured by a Permitted Lien if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Section 6.9, (c) intercompany Indebtedness to the extent permitted pursuant to the Intercompany Subordination Agreement and (d) to the extent permitted pursuant to the applicable Subordination Agreement, Intercompany Subordination Agreement, Intercreditor and Subordination Agreement or other subordination agreement to which an Agent is a party with respect to such Indebtedness. Each Loan Party shall keep all of its trade payables and other ordinary course of business obligations and expenses paid on a current basis according to the terms
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thereof or within sixty (60) days of the due date thereof, other than with respect to payments that are subject to a bona fide dispute.
Section 6.18.
Anti-Terrorism Laws, Anti-Corruption Laws, Sanctions. None of the Loan Parties, nor any of their controlled Affiliates representatives or agents shall:
(a)
conduct any business or engage in any transaction or dealing with any Blocked Person, including the making or receiving of any contribution of funds, goods or services to or for the benefit of any Blocked Person, in violation of applicable Sanctions,
(b)
deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to any Sanctions, in violation of applicable Sanctions,
(c)
violate, engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any applicable Anti-Terrorism Laws, Anti-Corruption Laws or Sanctions,
(d)
use the proceeds of any Loan, directly or indirectly, to fund, finance or facilitate any activities, business or transaction of or with any Blocked Person, or in any Sanctioned Country, or in any manner that would otherwise result in the violation of any Sanctions applicable to any party hereto, or
(e)
fund all or part of any payment under this Agreement (i) out of proceeds derived from transactions that violate Sanctions or (ii) with or from property of any Blocked Person to the extent that such funding would result in the violation of any Sanctions applicable to any party thereto.
Borrower shall deliver to the Lenders any certification reasonably requested from time to time by any Lender in its sole discretion within a reasonable period of time following such request, confirming Borrower’s compliance with this Section 6.18 and will cooperate in good faith with reasonable requests for information made by Lenders in order to diligence such certifications within a reasonable period of time following such request.
Section 6.19.
Bankruptcy Remote. Neither IPCo nor IPHoldCo shall at any time fail to be organized as a bankruptcy-remote entity having bylaws or an operating agreement, as applicable, in form and substance reasonably acceptable to the Required Lenders (with the Organizational Documents in effect on the Closing Date being deemed to be reasonably acceptable), which bylaws or operating agreement, as applicable, shall contain usual and customary provisions for (i) appointment of an independent director whose affirmative vote shall be required to commence an insolvency proceeding and (ii) separateness representations and covenants. IPCo shall not at any time fail to solely and exclusively own the entire right and title and/or have rights as licensee (except pursuant to the Intercompany License Agreements) in and to the patents and other IP Rights of any form, including formulas, trade secrets, know-how, methods or processes, whether or not registered, which it owns or has licensed except for (A) those rights which are not material to the business of the Loan Parties and their Included Subsidiaries and in the ordinary course of maintaining an intellectual property portfolio are not routinely renewed, and (B) the share or portion of any IP Rights co-owned with a third party pursuant to a Contractual Obligation entered into by any Loan Party in the ordinary course of business and on
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Arm’s Length Terms expressly granting co-ownership in and to such IP Rights to such third party. Without limiting the generality of the foregoing, the parties hereto aknowledge and agree that Schedule 6.19 sets forth a nonexclusive list of co-owned IP Rights as of the date of this Agreement fitting within the exception set forth in the immediately preceding sentence. Each of IPCo and IPHoldCo shall have the following limtiations on business activity: (i) IPCo’s sole business shall be the ownership and maintenance of the IP Rights and being a Guarantor hereunder; (ii) IPCo shall grant no Liens except under the Loan Documents and Permitted Liens under clauses (b) and (k) of the definition thereof and shall have no creditors except the Lenders and professional service providers (including, without limitation, attorneys, tax advisors, auditors and intellectual property service firms); (iii) IPHoldCo’s sole business shall be owning 100% of the Capital Stock of IPCo and being a Guarantor hereunder; and (iv) other than Permitted Liens and the creditors with respect thereto, IPHoldCo shall not grant Liens except under the Loan Documents and shall have no creditors except the Lenders. IPHoldCo shall be a wholly owned direct Subsidiary of Meredian Holdings Group, Inc. or such other Loan Party as the parties may agree. In addition, the Loan Parties shall cause IPCo to comply with all of IPCo’s obligations, including IPCo’s obligations to maintain its special purpose vehicle separateness and bankruptcy remote structure, and the Loan Parties shall not amend any such provisions without the prior written consent of the Required Lenders.
Section 6.20.
Unrestricted Subsidiaries. No Loan Party shall permit any Unrestricted Subsidiary to at any time: (i) own any Capital Stock in, or have any Lien on any property of any Loan Party nor (ii) be a party to any agreement, contract, arrangement or understanding (other than “recourse guaranties” that constitute Non-Recourse Debt, guaranties otherwise expressly permitted hereunder or Qualified Licenses) with any Loan Party or any of its Included Subsidiaries. No Loan Party shall have any direct or indirect obligation (other than a “recourse guaranty” that constitutes Non-Recourse Debt) (A) to subscribe for additional Capital Stock or (B) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results. No Unrestricted Subsidiary shall guarantee or otherwise directly or indirectly provide credit support for any Indebtedness of any Loan Party unless as part of such guarantee or credit support, provision is made for such Unrestricted Subsidiary to also provide a like guarantee or credit support for the Obligations under this Agreement and the other Loan Documents. No Unrestricted Subsidiary shall be a licensee or sublicensee of any IP Rights held by a Loan Party except pursuant to (a) a Qualified License or (b) an Extraordinary IP Rights Transaction that occurs on Arm’s Length Terms for Fair Market Value and is otherwise permitted pursuant to Section 6.12.
Section 6.21.
Existing Term Loan Deposit Accounts. No funds in the Existing Term Loan Deposit Accounts shall be transferred or paid out by Borrower except in connection with the payoff and termination of the Existing Term Loans; provided, that if the amount deposited into the Existing Term Loan Deposit Accounts exceed the amounts required to pay off in full the Existing Term Loan, such excess amount may be swept by Borrower into any other account of Borrower following the payoff of the Existing Term Loan in full.
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ARTICLE VII
GUARANTY
GUARANTY
Section 7.1.
Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors jointly and severally hereby irrevocably and unconditionally guaranty for the ratable benefit of the Beneficiaries the due and punctual payment in full of all Obligations, including without limitation Specified Premium, when the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively, the “Guaranteed Obligations”).
Section 7.2.
Contribution by Guarantors. All Guarantors desire to allocate among themselves, in a fair and equitable manner, their obligations arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any date by a Guarantor under this Guaranty such that its Aggregate Payments exceeds its Fair Share as of such date, such Guarantor shall be entitled to a contribution from each of the other Guarantors in an amount sufficient to cause each Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to any Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Guarantor, to (ii) the aggregate of the Fair Share Contribution Amounts with respect to all Guarantors multiplied by, (b) the aggregate amount paid or distributed on or before such date by all Guarantors under this Guaranty in respect of the Guaranteed Obligations. “Fair Share Contribution Amount” means, with respect to any Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such Guarantor under this Guaranty that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable applicable provisions of state law; provided solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Guarantor for purposes of this Section 7.2, any assets or liabilities of such Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities of such Guarantor. “Aggregate Payments” means, with respect to any Guarantor as of any date of determination, an amount equal to (A) the aggregate amount of all payments and distributions made on or before such date by such Guarantor in respect of this Guaranty (including, without limitation, in respect of this Section 7.2), minus (B) the aggregate amount of all payments received on or before such date by such Guarantor from the other Guarantors as contributions under this Section 7.2. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Guarantor. The allocation among Guarantors of their obligations as set forth in this Section 7.2 shall not be construed in any way to limit the liability of any Guarantor hereunder. Each Guarantor is a third party beneficiary to the contribution agreement set forth in this Section 7.2.
Section 7.3.
Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally agree, in furtherance of the foregoing and not in limitation of any other right which any Beneficiary may have at law or in equity against any Guarantor by virtue hereof, that upon the failure of Borrower to pay any of the Guaranteed Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or
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otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay, or cause to be paid, in Cash in Dollars, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal to the sum of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for Xxxxxxxx becoming the subject of a case under the Bankruptcy Code, would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against Borrower for such interest in the related bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as aforesaid.
Section 7.4.
Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a)
this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b)
any Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between Xxxxxxxx and any Beneficiary with respect to the existence of such Event of Default;
(c)
the obligations of each Guarantor hereunder are independent of the obligations of Borrower and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions;
(d)
payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if any Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the Guaranteed Obligations;
(e)
any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations, (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations, (iii) request and accept other guaranties of
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the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations, (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations, (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guaranteed Obligations and (vi) exercise any other rights available to it under the Loan Documents; and
(f)
this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Loan Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Beneficiary’s consent to the change, reorganization or termination of the corporate structure or existence of any Loan Party or any of its Included Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses, set offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent
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vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations (other than the payment in full of the Obligations).
Section 7.5.
Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of Beneficiaries: (a) any right to require any Beneficiary, as a condition of payment or performance by such Guarantor, to (i) proceed against Borrower, any other guarantor (including any other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held from Borrower, any such other guarantor or any other Person, (iii) proceed against or have resort to any balance of any Deposit Account or credit on the books of any Beneficiary in favor of Borrower or any other Person, or (iv) pursue any other remedy in the power of any Beneficiary whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of Borrower or any other Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of Borrower or any other Guarantor from any cause other than payment in full of the Guaranteed Obligations; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Beneficiary’s errors or omissions in the administration of the Guaranteed Obligations, except behavior which amounts to bad faith, gross negligence or willful misconduct; (e) (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of such Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights to set offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that any Beneficiary protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default hereunder or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto, notices of any extension of credit to Borrower and notices of any of the matters referred to in Section 7.4 and any right to consent to any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof.
Section 7.6.
Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations shall have been indefeasibly paid in full, each Guarantor hereby waives any claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against Borrower or any other Guarantor or any of its assets in connection with this Guaranty or the performance by such Guarantor of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise and including without limitation (a) any right of subrogation, reimbursement or indemnification that such Guarantor now has or may hereafter have against Borrower with respect to the Guaranteed Obligations, (b) any right to enforce, or to participate in, any claim, right or remedy that any Beneficiary now has or may hereafter have against Borrower, and (c) any benefit of, and any right to participate in, any collateral or security now or hereafter held by any Beneficiary. In addition, until the Guaranteed Obligations shall have been indefeasibly paid in full, each Guarantor shall withhold exercise of any right of contribution such Guarantor may have against any other guarantor (including any other Guarantor) of the Guaranteed Obligations, including, without
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limitation, any such right of contribution as contemplated by Section 7.2. Each Guarantor further agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification such Guarantor may have against Borrower or against any collateral or security, and any rights of contribution such Guarantor may have against any such other guarantor, shall be junior and subordinate to any rights any Beneficiary may have against Borrower, to all right, title and interest any Beneficiary may have in any such collateral or security, and to any right any Beneficiary may have against such other guarantor. If any amount shall be paid to any Guarantor on account of any such subrogation, reimbursement, indemnification or contribution rights at any time when all Guaranteed Obligations shall not have been finally and indefeasibly paid in full, such amount shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.
Section 7.7.
Subordination of Other Obligations. Any Indebtedness of Borrower or any Guarantor now or hereafter held by any Guarantor is hereby subordinated in right of payment to the Guaranteed Obligations, and any such indebtedness collected or received by such Guarantor after an Event of Default has occurred and is continuing shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of such Guarantor under any other provision hereof.
Section 7.8.
Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect until all of the Guaranteed Obligations shall have been paid in full. Each Guarantor hereby irrevocably waives any right to revoke this Guaranty as to future transactions giving rise to any Guaranteed Obligations.
Section 7.9.
Authority of Guarantors or Borrower. It is not necessary for any Beneficiary to inquire into the capacity or powers of any Guarantor or Borrower or the officers, directors or any agents acting or purporting to act on behalf of any of them.
Section 7.10.
Financial Condition of Borrower. Any Credit Extension may be made to Borrower or continued from time to time without notice to or authorization from any Guarantor regardless of the financial or other condition of Borrower at the time of any such grant or continuation is entered into, as the case may be. No Beneficiary shall have any obligation to disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the financial condition of Borrower. Each Guarantor has adequate means to obtain information from Borrower on a continuing basis concerning the financial condition of Borrower and its ability to perform its obligations under the Loan Documents, and each Guarantor assumes the responsibility for being and keeping informed of the financial condition of Borrower and of all circumstances bearing upon the risk of non-payment of the Guaranteed Obligations. Each Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary to disclose any matter, fact or thing relating to the business, operations or conditions of Borrower now known or hereafter known by any Beneficiary.
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Section 7.11.
Bankruptcy, etc.
(a)
So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the prior written consent of Agents acting pursuant to the instructions of Required Lenders, commence or join with any other Person in commencing any bankruptcy, reorganization or insolvency case or proceeding of or against Borrower or any other Guarantor. The obligations of Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of Borrower or any other Guarantor or by any defense which Borrower or any other Guarantor may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding.
(b)
Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed Obligations which accrues after the commencement of any case or proceeding referred to in clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by operation of law by reason of the commencement of such case or proceeding, such interest as would have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been commenced) shall be included in the Guaranteed Obligations because it is the intention of Guarantors and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto should be determined without regard to any rule of law or order which may relieve Borrower of any portion of such Guaranteed Obligations. Guarantors will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person to pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such interest accruing after the date on which such case or proceeding is commenced.
(c)
In the event that all or any portion of the Guaranteed Obligations are paid by Borrower, the obligations of Guarantors hereunder shall continue and remain in full force and effect or be reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed Obligations for all purposes hereunder.
Section 7.12.
Discharge of Guaranty upon Sale of Guarantor. If all of the Capital Stock of any Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of (including by merger or consolidation) in accordance with the terms and conditions hereof, the Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall automatically be discharged and released without any further action by any Beneficiary or any other Person effective as of the time of such sale or disposition.
Section 7.13.
Limitation.
(a)
It is the intent of each Guarantor and the Agents that the maximum Guaranteed Obligations hereunder shall be, but not in excess of:
(i)
in a case or proceeding commenced by or against any Guarantor under the provisions of Title 11 of the Bankruptcy Code, on or within one year from the date on which
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any of the Guaranteed Obligations are incurred, the maximum amount which would not otherwise cause the Guaranteed Obligations (or any other obligations of such Guarantor owed to the Beneficiaries) to be avoidable or unenforceable against such Guarantor under (i) Section 548 of the Bankruptcy Code or (ii) any state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii)
in a case or proceeding commenced by or against any Guarantor under the Bankruptcy Code subsequent to one year from the date on which any of the Guaranteed Obligations are incurred, the maximum amount which would not otherwise cause the Guaranteed Obligations (or any other obligations of such Guarantor to the Beneficiaries) to be avoidable or unenforceable against such Guarantor under any state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii)
in a case or proceeding commenced by or against any Guarantor under any law, statute or regulation other than the Bankruptcy Code (including, without limitation, any other bankruptcy, reorganization, arrangement, moratorium, readjustment of debt, dissolution, liquidation or similar debtor relief laws), the maximum amount which would not otherwise cause the Guaranteed Obligations (or any other obligations of such Guarantor to the Beneficiaries) to be avoidable or unenforceable against such Guarantor under such law, statute or regulation, including, without limitation, any state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding.
(b)
The substantive laws under which the possible avoidance or unenforceability of the Guaranteed Obligations (or any other obligations of such Guarantor to the Beneficiaries) as may be determined in any case or proceeding shall hereinafter be referred to as the “Avoidance Provisions”. To the extent set forth in Section 7.13(a)(i), (a)(ii) and (a)(iii) but only to the extent that the Guaranteed Obligations would otherwise be subject to avoidance or found unenforceable under the Avoidance Provisions, if any Guarantor is not deemed to have received valuable consideration, fair value or reasonably equivalent value for the Guaranteed Obligations, or if the Guaranteed Obligations would render such Guarantor insolvent, or leave such Guarantor with an unreasonably small capital to conduct its business, or cause such Guarantor to have incurred debts (or to have intended to have incurred debts) beyond its ability to pay such debts as they mature, in each case as of the time any of the Guaranteed Obligations are deemed to have been incurred under the Avoidance Provisions and after giving effect to the contribution by such Guarantor, the maximum Guaranteed Obligations for which such Guarantor shall be liable hereunder shall be reduced to that amount which, after giving effect thereto, would not cause the Guaranteed Obligations (or any other obligations of such Guarantor to the Beneficiaries), as so reduced, to be subject to avoidance or unenforceability under the Avoidance Provisions and the amount by which such Guaranteed Obligations have been reduced shall be used by such Guarantor only to make the payments for which they were reserved.
(c)
This Section 7.13 is intended solely to preserve the rights of the Beneficiaries hereunder to the maximum extent that would not cause the Guaranteed Obligations of such Guarantor to be subject to avoidance or unenforceability under the Avoidance Provisions, and neither the Guarantors nor any other Person shall have any right or claim under this Section 7.13
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as against the Beneficiaries that would not otherwise be available to such Person under the Avoidance Provisions.
ARTICLE VIII
EVENTS OF DEFAULT
EVENTS OF DEFAULT
Section 8.1.
Events of Default. If any one or more of the following conditions or events shall occur:
(a)
Failure to Make Payments When Due. Failure by Borrower to pay (i) the principal of and Specified Premium, if any, on any Term Loan whether at stated maturity, by acceleration or otherwise, (ii) when due any installment of principal of any Term Loan, by notice of voluntary prepayment, by mandatory prepayment or otherwise or (iii) within three (3) Business Days of when due any interest on any Term Loan or any fee, deposit or any other amount due hereunder; provided that in each case, if (A) proximately caused by ministerial error or delay on the part of the Administrative Agent and (B) the Interest Reserve Account holds funds sufficient to make such applicable payment in full, then the failure of Cash interest in Dollars to be timely paid pursuant to the operation of Section 2.16(c)(i) shall not constitute an Event of Default hereunder; or
(b)
Default in Other Agreements. (i) Failure of any Loan Party or any of their respective Included Subsidiaries to pay when due any principal of or interest on or any other amount payable in respect of one or more items of Indebtedness (other than Indebtedness referred to in Section 8.1(a)) having an aggregate principal amount in excess of the Threshold Amount, in each case beyond the grace period, if any, provided therefor, and such Indebtedness has been accelerated, except to the extent such payment is restricted by a Subordination Agreement in favor of the Collateral Agent; (ii) breach or default by any Loan Party with respect to any other material term of (A) one or more items of Indebtedness in the aggregate principal amount referred to in clause (i) above or (B) any loan agreement, mortgage, indenture, other agreement relating to such item(s) of Indebtedness in each case beyond the grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to permit the holder or holders of that Indebtedness (or a trustee on behalf of such holder or holders), to cause, that Indebtedness to become or be declared due and payable (or subject to a compulsory repurchase or redeemable) or to require the prepayment, redemption, repurchase or defeasance of, or to cause any Loan Party or any of its Included Subsidiaries to make any offer to prepay, redeem, repurchase or defease such Indebtedness, prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be, provided, that the conversion of Indebtedness incurred by Borrower in connection with the Existing Convertible Notes or New Convertible Notes into Equity Interests (or that such Indebtedness has or may become convertible into Equity Interests) in accordance with the indenture governing the Existing Convertible Notes or New Convertible Notes shall not be deemed an Event of Default under this Agreement; or (iii) the occurrence of any “Fundamental Change” as defined by the Indenture; provided, that if any such default is cured or waived without modification to the underlying obligation that is materially adverse to the interests of the Agents or the Lenders (and, for the avoidance of doubt, as permitted in accordance with Section 6.14) prior to the date that any Agent or Lender shall have given notice of default or accelerated the Indebtedness, then any Event of Default arising under this subsection (b) shall be deemed cured;
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provided that clause (b)(ii) shall not apply to secured Indebtedness that becomes due (or requires an offer to purchase) as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness); provided, further, that such failure or breach is unremedied and is not waived by the required holders of such Indebtedness or counterparty to such Material Contract; or
(c)
Breach of Certain Covenants. Failure of any Loan Party to perform or comply with any term or condition contained in (i) Section 2.4, Section 2.16, Section 5.2 (as to existence), Section 5.14, Section 5.15, Section 5.22 or Article VI or (ii) Section 5.1, Section 5.2 (other than with respect to existence), Section 5.3, Section 5.5, Section 5.6, Section 5.7, Section 5.8, Section 5.10, Section 5.11 or Section 5.13 and, in the case of this clause (ii), such default shall not have been remedied or waived within fifteen (15) Business Days after the earlier of (x) an officer of such Loan Party becoming aware of such default and (y) receipt by Borrower of notice from any Agent or any Lender of such default; or
(d)
Breach of Representations, etc. Any representation, warranty, certification or other statement of fact made by any Loan Party in any Loan Document or in any statement or certificate at any time given by any Loan Party or any of its Included Subsidiaries in writing pursuant hereto or thereto or in connection herewith or therewith shall be false in any material respect (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) as of the date made; or
(e)
Other Defaults under Loan Documents. Any Loan Party shall default in the performance of or compliance with any term contained herein or any of the other Loan Documents, other than any such term referred to in any other Clause of this Section 8.1, and such default shall not have been remedied or waived within thirty (30) days after the earlier of (i) an officer of such Loan Party becoming aware of such default and (ii) receipt by Borrower of notice from any Agent or any Lender of such default; or
(f)
Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of competent jurisdiction shall enter a decree or order for relief in respect of any Loan Party or any of its Included Subsidiaries in an involuntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable law of any jurisdiction; or (ii) an involuntary case shall be commenced against any Loan Party or any of its Included Subsidiaries under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect in any jurisdiction; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over any Loan Party or any of its Included Subsidiaries, or over all or a substantial part of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of any Loan Party or any of its Included Subsidiaries for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of any Loan Party or any of its Included Subsidiaries, and any
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such event described in this clause (ii) shall continue for sixty (60) days without having been dismissed, bonded or discharged; or
(g)
Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Any Loan Party or any of its Included Subsidiaries shall have an order for relief entered with respect to it or shall commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law of any jurisdiction now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or any Loan Party or any of its Included Subsidiaries shall make any assignment for the benefit of creditors; or (ii) any Loan Party or any of its Included Subsidiaries shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the Board of Directors (or similar governing body) of any Loan Party or any of its Included Subsidiaries (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to herein or in Section 8.1(f); or
(h)
Judgments and Attachments. Any money judgment, regulatory fine levied by a Governmental Authority, writ or warrant of attachment or similar process involving an amount in excess of the Threshold Amount in an individual case or other legal or regulatory proceeding or in the aggregate at any time (in either case to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has received a properly tendered claim and not denied coverage) shall be entered, decided or filed against any Loan Party or any of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days (or in any event later than five (5) days prior to the date of any proposed sale thereunder); or
(i)
Dissolution. Any order, judgment or decree shall be entered against any Loan Party decreeing the dissolution or split up of such Loan Party, to the extent such dissolution or split up is not permitted pursuant to Section 6.9, and such order shall remain undischarged or unstayed for a period in excess of sixty (60) days; or
(j)
Employee Benefit Plans. There shall occur one or more ERISA Events which individually or in the aggregate results in or could reasonably be expected to result in a Material Adverse Effect; or
(k)
Change of Control. A Change of Control shall have occurred; or
(l)
Guaranties, Collateral Documents and other Loan Documents. At any time after the execution and delivery thereof, (i) the Guaranty for any reason, other than the satisfaction in full of all Obligations, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void or any Guarantor shall repudiate in writing its material obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be in full force and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof or the satisfaction in full of the Obligations in accordance with the terms hereof) or shall be declared null and void, or Agents shall not have or shall cease to have a valid and perfected Lien in a material portion of the Collateral purported to be covered by the Collateral
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Documents with the priority required by the relevant Collateral Document, in each case for any reason other than the failure of Agents or any Secured Party to take any action within its control, or (iii) any Loan Party shall contest the validity or enforceability of any Loan Document in writing or deny in writing that it has any further liability, including with respect to future advances by Xxxxxxx, under any Loan Document to which it is a party (other than by reason of a release of Collateral in accordance with the terms hereof or thereof or the satisfaction in full of the Obligations in accordance with the terms hereof); or
(m)
Proceedings. The conviction of any Loan Party under any criminal statute, or a final non-appealable judgment pursuant to criminal or civil proceedings against any Loan Party pursuant to which statute or proceedings the penalties have resulted in forfeiture to any Governmental Authority of any material portion of the Collateral owned by such Loan Party; or
(n)
Cessation of Business. (i) Any Loan Party or any of its Included Subsidiaries is enjoined, restrained or in any way prevented by the order of any court or any Governmental Authority from conducting all or any material part of its business for more than thirty (30) days, or (ii) any other cessation of a substantial part of the business of any Loan Party or any of its Included Subsidiaries engaged in material operations for a period which materially and adversely affects any Loan Party or any of its Included Subsidiaries; or
(o)
AON Insurance Policy and Intercompany License Agreements. At any time after the execution and delivery thereof, (i) the AON Insurance Policy or any Intercompany License Agreement for any reason, other than the satisfaction in full of all Obligations, shall cease to be in full force and effect or shall be declared to be null and void or any counterparty thereto shall repudiate its obligations thereunder, or (ii) any counterparty to the AON Insurance Policy or any Intercompany License Agreement or any Loan Party shall contest the validity or enforceability of the AON Insurance Policy or any Intercompany License Agreement in writing or deny in writing that it has any further rights or obligations under the AON Insurance Policy or any Intercompany License Agreement; or
(p)
Failure to Fund the Interest Reserve Account. Failure to at all times after the Closing Date maintain in the Interest Reserve Account at least the amount required in Section 2.16(b)(i); or
(q)
Failure to Fund the Insurance Premium Reserve Account. Failure to (i) deposit all Cash Sweep Proceeds into the Insurance Premium Reserve Account in accordance with Section 2.16(b)(ii), (ii) fully fund in cash the Insurance Premium Reserve Account the applicable Insurance Premium Reserve Amount referred to in Section 2.16(b)(ii)(B) at least ten (10) days prior to the date on which the second insurance premium is due under the AON Insurance Policy; provided that, notwithstanding anything herein to the contrary, any Event of Default that occurs pursuant to this Section 8.1(q)(ii) shall be automatically cured if such insurance premium is paid as and when due or (iii) fully fund in cash the Insurance Premium Reserve Accounts with the applicable Insurance Premium Reserve Amount referred to in Section 2.16(b)(iv) immediately upon the occurrence of any Event of Default hereunder;
THEN, (A) upon the occurrence of any Event of Default described in Section 8.1(f) or Section 8.1(g), automatically, (B) upon the occurrence of any Event of Default under Section 8.1(p) and
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the continuance of such Event of Default for ten (10) days, automatically on such tenth (10th) day, and (C) upon the occurrence of any other Event of Default, at the request of (or with the consent of) Required Lenders (1) the Commitments, if any, of each Lender having such Commitments shall immediately terminate; (2) each of the following shall immediately become due and payable, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by each Loan Party: (x) the unpaid principal amount of and accrued interest on the Term Loans, and (y) the Specified Premium and all other Obligations; and (3) Agents may enforce any and all Liens and security interests created pursuant to Collateral Documents and exercise any other remedies available under contract or applicable law. Each Loan Party shall, at the Collateral Agent’s request, following the occurrence of an Event of Default described in any one of Sections 8.1(a), (c)(i), (f), (g), (h), (i), (k), (l) or (p), make its development, engineering, architecture, and design personnel reasonably available to the Collateral Agent and provide such other information, materials, and assistance to the Collateral Agent, in each case as Agent deems reasonably necessary to train and instruct the Collateral Agent and/or its designee(s) in the development, compilation, operation, maintenance and support of the software (both licensed and internal use-only) of the Loan Parties.
ARTICLE IX
AGENTS
AGENTS
Section 9.1.
Appointment.
(a)
Each of the Lenders hereby irrevocably appoints Administrative Agent to serve as administrative agent under the Loan Documents and Collateral Agent to serve as collateral agent under the Loan Documents, and authorizes such Agents to execute, deliver and administer the Loan Documents and to take such actions and to exercise such powers as are delegated to each such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States, each of the Lenders hereby grants to the Agents any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Xxxxxx’s behalf. Neither Borrower nor any other Loan Party shall have rights as a third-party beneficiary of any such provisions.
(b)
Each Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Borrower, any Guarantor, or any other Subsidiary or other Affiliate thereof as if such Person were not an Agent hereunder and without any duty to account therefor to the Lenders.
Section 9.2.
Nature of Duties; Delegation.
(a)
The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents, and their duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (i) the Agents shall not be subject to any fiduciary or
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other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to an Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Requirement of Law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (ii) the Agents shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as either Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that neither Agent shall be required to take any action that, in its opinion, could expose either Agent to liability or be contrary to any Loan Document or any Requirement of Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a defaulting Lender in violation of any Debtor Relief Law; provided, further, that neither Agent shall be required to take any action which exposes such Agent to liability or which is contrary to this Agreement or the Loan Documents or applicable law unless such Agent is furnished with an indemnification reasonably satisfactory to such Agent with respect thereto, and (iii) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party, any other Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as an Agent or any of its Affiliates in any capacity. Neither Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment); provided that no action taken or not taken at the direction of the Required Lenders shall be considered gross negligence or willful misconduct. The Agents shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (conspicuously stating that it is a “notice of default” and providing sufficient detail of such Default or Event of Default) is given to the Administrative Agent by Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Loan Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default or Event of Default, (D) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (E) the satisfaction of any condition set forth in this Agreement or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to an Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the applicable Agent. The Agents shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution)
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believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The Agents also shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and may act upon any such statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Term Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received written notice to the contrary from such Lender prior to the making of such Term Loan. The Agents may consult with legal counsel (who may be counsel for any Lender), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b)
The Agents shall be entitled to refrain from any discretionary act or taking such discretionary action unless and until such Agent shall have received instructions from the Required Lenders, and the Agents shall not incur liability to any Person by reason of so refraining and if, in performing its duties under this Agreement or the Loan Documents, if such Agent is required to decide between alternative courses of action or has received conflicting directions or any other directions from Lenders who do not satisfy the definition of Required Lenders, such Agent may refrain from taking any action until it receives instructions from the Required Lenders. The Agents may at any time request instructions from the Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the Loan Documents the Agents are permitted or required to take or to grant. Whether or not the Agents make such a request for direction, at all times except with respect to an express obligation set forth herein, the Agents shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders, and the Agents shall not incur liability to any Person by reason of so refraining. The Agents shall not be liable for any action taken in good faith and reasonably believed by it to be within the powers conferred upon it, or taken by it pursuant to any direction or instruction by which it is governed, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action (including without limitation for refusing to exercise discretion or for withholding its consent in the absence of its receipt of, or resulting from a failure, delay or refusal on the part of any Lender to provide, written instruction to exercise such discretion or grant such consent from any such Lender, as applicable) in the absence of gross negligence or willful misconduct. The Agents shall not be liable for any error of judgment made in good faith unless it shall be proven that the Agents were grossly negligent in ascertaining the relevant facts. Nothing herein or in any other Loan Document or related documents shall obligate any Agent to advance, expend or risk its own funds, or to take any action which in its reasonable judgment may cause it to incur any expense or financial or other liability for which it is not adequately indemnified. Before acting hereunder, the Agents shall be entitled to request, receive and rely upon such certificates and opinions as such Agent may reasonably determine appropriate with respect to the satisfaction of any specified circumstances or conditions precedent to such action. The Agents shall not be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics,
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pandemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Each Agent will provide copies of notices, certificates and reports that it receives from the Loan Parties to the Lenders to the extent they are not required to be delivered to Lenders by the Loan Parties or any other party to this Agreement, and shall have no obligation to review such notices, certificates or reports except as expressly provided herein. Each Agent shall not be under a duty to examine or independently evaluate, and shall not be charged with knowledge or notice of, the contents of any financial statements or reports delivered to it pursuant to the provisions of this Agreement or the Loan Documents, it being acknowledged that such deliveries are for the purpose of making such materials available to the Lenders.
(c)
Each Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers through their respective controlled Affiliates. The exculpatory provisions of this Article shall apply to any such sub-agent and to the controlled Affiliates of each of either Agent or any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities of the Agents. The Agents shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the applicable Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
(d)
Neither the Agents nor any of their related parties have any duty or obligation to any Lender or participant or any other Person to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Loan Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
(e)
It is expressly agreed and acknowledged that the Agents are not guaranteeing performance of the obligations of the Loan Parties or other parties hereto or any parties to the Collateral. The Agents shall not have liability for any failure, inability or unwillingness on the part of the Loan Parties to provide accurate and complete information on a timely basis to the Agents, or otherwise on the part of any such party to comply with the terms of this Agreement or the other Loan Documents, and shall have no liability for any inaccuracy or error in the performance or observance on the Agents’ part of any of their duties hereunder or under the other Loan Documents that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.
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(f)
For purposes of clarity, phrases such as “satisfactory to the Administrative Agent,” “approved by the Administrative Agent,” “acceptable to the Administrative Agent,” “as determined by the Administrative Agent,” “in the Administrative Agent’s discretion,” “selected by the Administrative Agent,” “elected by the Administrative Agent,” “requested by the Administrative Agent,” and phrases of similar import that authorize and permit the Administrative Agent or the Collateral Agent to approve, disapprove, determine, act or decline to act in its discretion shall be subject to the Administrative Agent or Collateral Agent receiving written direction from the Lenders or Required Lenders, as applicable, to take such action or to exercise such rights (it being understood that nothing contained in this Agreement or any other Loan Document shall impose a duty on the Agents to make any such determination or take any action independent of such written direction from the Lenders or the Required Lenders or exercise any discretionary acts).
(g)
In performing under the Loan Documents, the Agents shall have all of their rights, protections and immunities granted to them under this Agreement. The Lenders hereby authorize, empower and direct the Agents to execute and deliver on their behalf the Loan Documents and all related agreements, documents or instruments as shall be necessary or appropriate as determined by the Required Lenders in good faith and in the forms presented to the Agents as of the date hereof in order to effectuate the purposes of the Loan Documents and any such other related agreements, documents and instruments. Each of the Lenders hereby acknowledges that it has received a copy of the Loan Documents and agrees that it will be bound by and will take no actions contrary to the provisions of the Loan Documents to the extent then in effect.
(h)
Each Agent has executed this Agreement as directed under and in accordance with the terms of this Agreement and will perform this Agreement solely in its capacity as Administrative Agent or Collateral Agent, as applicable, and not individually. In performing under this Agreement, each Agent shall have all rights, protections, immunities and indemnities granted to it under this Agreement. Subject to the terms of this Agreement, each Agent shall have no obligation to perform or exercise any discretionary act.
Section 9.3.
Successor Agent.
(a)
Subject to the terms of this Section 9.3, either Agent may resign at any time from its capacity as such or the Required Lenders can elect to remove any Agent at any time. In connection with such resignation, such Agent shall give notice of its intent to resign to the Lenders and Borrower. In connection with such removal, the Required Lenders shall give notice of their intent to remove such Agent to the Agents, the Lenders and Borrower. Upon receipt of any such notice of resignation or the giving of such notice of removal, the Required Lenders shall have the right, in consultation with (but without need for consent of) Xxxxxxxx, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after such Agent gives notice of its intent to resign or the Required Lenders give notice of their intent to replace such Agent, as the case may be, then such Agent may, on with the consent of the Required Xxxxxxx, appoint a successor Agent, which shall be (i) a bank with an office in New York, New York, or an Affiliate of any such bank, (ii) a Lender or (iii) any other Person with the prior written consent of the Required Lenders; provided that no consent of Borrower shall be required. Upon the acceptance of its appointment as
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Administrative Agent and/or Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the Agent so retiring or removed, and such Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by Xxxxxxxx to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by Xxxxxxxx and such successor.
(b)
Notwithstanding the foregoing, in the event no successor Agent shall have been so appointed and shall have accepted such appointment within thirty (30) days after the retiring Agent gives notice of its intent to resign or the Required Lenders give notice of their intent to replace the Agent being removed, in the case of a retirement, such Agent may give notice of the effectiveness of its resignation to the Lenders and Borrower, or, in the case of a removal, the Required Lenders may give notice of the effectiveness of the removal to the Agents, the Lenders and Borrower, in each case, whereupon, on the date of effectiveness of such resignation or removal stated in such notice, (i) the Agent so retiring or removed shall be discharged from its duties and obligations hereunder and under the other Loan Documents; provided that, solely for purposes of maintaining any security interest granted to an Agent under any Collateral Document for the benefit of the Secured Parties, the Agent so retiring or removed shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of such Agent, shall continue to hold such Collateral, in each case until such time as a successor Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that no Agent so retiring or removed shall have any duty or obligation to take any further action under any Collateral Document, including any action required to maintain the perfection of any such security interest), and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the Agent so retiring or removed; provided that (A) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender.
(c)
Following the effectiveness of either Agent’s resignation or removal from its capacity as such, the provisions of this Article IX, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retired or removed Agent, its sub‑agents and their respective related parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Agent and in respect of the matters referred to in the proviso under clause (b)(i) above.
(d)
Any Person into whom the Agent may be converted or merged, or with whom it may be consolidated, or to whom it may sell or transfer its corporate trust business as a whole or substantially as a whole, or any Person resulting from any such conversion, sale, merger, consolidation or transfer to which the Agent is a party, shall be and become a successor Agent hereunder and be vested with all of the powers, immunities, privileges and other matters as was its predecessor without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto (except as required by Law to effectuate such succession), anything herein to the contrary notwithstanding.
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Section 9.4.
Nonreliance on Agents; Lender Consent.
(a)
Each Lender acknowledges that it has, independently and without reliance upon either Agent or any other Lender, or any of the controlled Affiliates of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either Agent or any other Lender, or any of the controlled Affiliates of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
(b)
Each Lender, by delivering its signature page to this Agreement and funding its Term Loans on the Closing Date, or delivering its signature page to an Assignment Agreement in the form of Exhibit C or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Closing Date.
Section 9.5.
Collateral Matters.
(a)
Except with respect to the exercise of setoff rights of any Lender in accordance with this Agreement or with respect to a Lender’s right to file a proof of claim in an insolvency proceeding, no Secured Party (other than an Agent in its capacity as such) shall have any right individually to realize upon any of the Collateral or to enforce any Guaranty of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by an Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by an Agent or sub-agent on any of the Collateral pursuant to a public or private sale or other disposition, the Agent, any sub-agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and either Agent or any sub-agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition.
(b)
In furtherance of the foregoing and not in limitation thereof, no hedging agreement the obligations under which constitute Obligations will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such hedging agreement shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph.
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(c)
At the direction of the Required Lenders, the Secured Parties irrevocably authorize each of the Agents to subordinate any Lien on any property granted to or held by an Agent under any Loan Document to the holder of any Lien on such property that is a Permitted Lien and to release any Lien in the event there is a disposition of Collateral permitted under this Agreement or approved by the requisite amount of Lenders and to release all Liens upon payment of the Obligations in full and in cash. The Collateral Agent shall (and is hereby irrevocably authorized by each Lender to) upon direction of Required Lenders following the occurrence of a subordination or Lien termination otherwise provided for in this Agreement execute such reasonable and customary documents prepared (and if necessary filed or recorded) at Borrower’s sole expense as may be reasonably necessary to evidence such release or subordination of the Liens granted to the Collateral Agent for the benefit of the Beneficiaries herein or pursuant hereto upon the applicable Collateral. The Agents shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Agents be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d)
The Collateral Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Collateral Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral, other than its responsibility to maintain possession of the Collateral for purposes of perfection of the Liens and security interests granted hereunder or under any Loan Document.
(e)
The Collateral Agent hereby disclaims any representation or warranty to the Lenders concerning and shall have no responsibility to Lenders for the existence, priority or perfection of the Liens and security interests granted hereunder or under any Loan Document or in the value of any of the Collateral and shall not be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral, in each case, other than its responsibility to maintain possession or control of any Collateral for purposes of perfection of the Liens. The Collateral Agent makes no representation as to the value, sufficiency or condition of the Collateral or any part thereof, as to the title of the Loan Parties to the Collateral, as to the security afforded by this Agreement or any other Loan Document. The Collateral Agent shall not be responsible for insuring the Collateral, for the payment of taxes, charges, assessments or liens upon the Collateral or otherwise as to the maintenance of the Collateral, except as provided in the immediately following sentence when the Collateral Agent has possession of the Collateral. The Collateral Agent shall not be under an obligation independently to request or examine insurance coverage with respect to any Collateral. The Collateral Agent shall not be liable for the acts or omissions of any bank, depositary bank, custodian, independent counsel of the Loan Parties or any other party selected by the Collateral Agent with reasonable care or selected by any other party hereto that may hold or possess Collateral or documents related to Collateral and shall not be required to monitor the performance of any such Persons holding Collateral. For the avoidance of doubt, neither Agent shall be responsible to the Lenders for the perfection of any Lien or for the filing, form, content or renewal of any UCC financing statements, fixture filings, mortgages, deeds of trust and such other documents or instruments, provided however that if instructed by the Required Lenders and at the expense of Borrower, the Collateral Agent shall arrange for the
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filing and continuation, of financing statements or other filing or recording documents or instruments made with respect to any assets or property of any Loan Party in the jurisdictions specified in the Perfection Certificate (provided, that with respect to Borrower or any Included Subsidiary that is formed or conducts material operations in any jurisdiction other than a state of the United States, if requested by the Collateral Agent acting on instruction of Required Lenders, local law collateral security documents and filings for such jurisdiction shall be required), (collectively, the “Financing Statements”) for the perfection of security interests in the Collateral; provided, that, the Collateral Agent shall not be responsible for the preparation, form, content, sufficiency or adequacy of any such Financing Statements, all of which shall be provided in writing to the Collateral Agent by the Required Lenders including the jurisdictions and filing offices where the Collateral Agent is required to file such Financing Statements.
(f)
In connection with the exercise of any rights or remedies in respect of, or foreclosure or realization upon, any real estate-related collateral pursuant to this Agreement or any Loan Document, the Collateral Agent shall not be obligated to take title to or possession of real estate in its own name, or otherwise in a form or manner that may, in its reasonable judgment, expose it to liability. In the event that the Collateral Agent deems that it may be considered an “owner or operator” under any environmental laws or otherwise cause the Collateral Agent to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as Collateral Agent or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Agent will not be liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened.
Section 9.6.
Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding with respect to any Loan Party under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(a)
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Term Loans and all other Obligations including any Specified Premium, and indemnified or reimbursable amounts that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Agents allowed in such judicial proceeding; and
(b)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders or the other Secured Parties, to pay to the Administrative Agent any
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amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under this Article IX).
Section 9.7.
No Third-Party Beneficiaries. The provisions of this Article IX are solely for the benefit of the Agents and the Lenders, and, no Loan Party or Subsidiary shall have any rights as a third party beneficiary of any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guaranties of the Secured Obligations (as defined in the Pledge and Security Agreement) provided under the Loan Documents, to have agreed to the provisions of this Article IX.
Section 9.8.
Right to Indemnity. EACH LENDER HOLDING OBLIGATIONS, IN PROPORTION TO ITS PRO RATA SHARE OF THE OBLIGATIONS, SEVERALLY AGREES TO INDEMNIFY AND HOLD EACH AGENT, THEIR AFFILIATES AND THEIR RESPECTIVE OFFICERS, PARTNERS, DIRECTORS, TRUSTEES, EMPLOYEES AND AGENTS OF EACH AGENT (EACH, AN “INDEMNITEE AGENT PARTY”), TO THE EXTENT THAT SUCH INDEMNITEE AGENT PARTY SHALL NOT HAVE BEEN REIMBURSED BY ANY LOAN PARTY, HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES (INCLUDING COUNSEL FEES AND DISBURSEMENTS) OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST SUCH INDEMNITEE AGENT PARTY IN EXERCISING ITS POWERS, RIGHTS AND REMEDIES OR PERFORMING ITS DUTIES HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS OR OTHERWISE IN ITS CAPACITY AS SUCH INDEMNITEE AGENT PARTY IN ANY WAY RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY DIRECTION, INCLUDING WITHOUT LIMITATION, ANY LITIGATION, CLAIMS, CAUSES OF ACTIONS, ARBITRATION OR OTHER PROCEEDING OR INVESTIGATION RELATING TO, OR ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, THE LOAN DOCUMENTS, OR ANY DIRECTION (HEREINAFTER REFERRED TO COLLECTIVELY AS “CLAIMS” AND EACH SINGLY AS A “CLAIM”) (INCLUDING WITHOUT LIMITATION, ANY SUCH CLAIM CONCERNING WHETHER ANY ASPECT OF THE SALE, LIQUIDATION OR OTHER DISPOSITION OF ANY OF THE COLLATERAL PURSUANT TO THE DIRECTIONS WAS NOT COMMERCIALLY REASONABLE (AS SUCH TERM IS DEFINED OR USED IN SECTIONS 9-610(B) AND 9-627 OF THE UCC) (HEREINAFTER REFERRED TO COLLECTIVELY AS “COMMERCIAL REASONABLENESS CLAIMS”) OR WAS NOT IN COMPLIANCE WITH THE APPLICABLE PROVISIONS OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS (HEREINAFTER REFERRED TO COLLECTIVELY AS “COMPLIANCE CLAIMS”), IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE AGENT PARTY; PROVIDED NO LENDER SHALL BE LIABLE FOR ANY PORTION OF SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS RESULTING FROM SUCH INDEMNITEE AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL, NON-APPEALABLE ORDER. NOTWITHSTANDING ANY PROVISION CONTAINED IN THIS
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AGREEMENT (INCLUDING WITHOUT LIMITATION, THE FOREGOING PROVISO) TO THE CONTRARY, IF THE ADMINISTRATIVE AGENT AND/OR THE COLLATERAL AGENT COMPLIES IN ALL MATERIAL RESPECTS WITH EACH AND EVERY DIRECTION FROM THE REQUIRED LENDERS, THEN THIS INDEMNITY SHALL APPLY TO ANY LOSSES NOW OR HEREAFTER INCURRED BY ANY INDEMNITEE AGENT PARTY THAT ARISE FROM, OR RELATE TO, ANY COMMERCIAL REASONABLENESS CLAIM OR ANY COMPLIANCE CLAIM, EVEN IF THERE IS A FINAL DETERMINATION BY A COURT OF COMPETENT JURISDICTION THAT IS NOT SUBJECT TO REVIEW ON APPEAL THAT SUCH LOSSES ARE THE RESULT OF SUCH INDEMNITEE AGENT PARTY’S GROSS NEGLIGENCE. IF ANY INDEMNITY FURNISHED TO ANY INDEMNITEE AGENT PARTY FOR ANY PURPOSE SHALL, IN THE OPINION OF SUCH INDEMNITEE AGENT PARTY, BE INSUFFICIENT OR BECOME IMPAIRED, SUCH INDEMNITEE AGENT PARTY MAY CALL FOR ADDITIONAL INDEMNITY AND CEASE, OR NOT COMMENCE, TO DO THE ACTS INDEMNIFIED AGAINST UNTIL SUCH ADDITIONAL INDEMNITY IS FURNISHED; PROVIDED IN NO EVENT SHALL THIS SENTENCE REQUIRE ANY LENDER HOLDING OBLIGATIONS TO INDEMNIFY ANY INDEMNITEE AGENT PARTY AGAINST ANY LIABILITY, OBLIGATION, LOSS, DAMAGE, PENALTY, ACTION, JUDGMENT, SUIT, COST, EXPENSE OR DISBURSEMENT IN EXCESS OF SUCH XXXXXX’S PRO RATA SHARE THEREOF; AND PROVIDED FURTHER THIS SENTENCE SHALL NOT BE DEEMED TO REQUIRE ANY LENDER TO INDEMNIFY ANY INDEMNITEE AGENT PARTY AGAINST ANY LIABILITY, OBLIGATION, LOSS, DAMAGE, PENALTY, ACTION, JUDGMENT, SUIT, COST, EXPENSE OR DISBURSEMENT DESCRIBED IN THE PROVISO IN THE IMMEDIATELY PRECEDING SENTENCE.
Section 9.9.
Agency for Perfection. Each Agent and each Lender hereby appoints each other Agent and each other Lender as agent and bailee for the purpose of perfection the security interests in and liens upon the Collateral in assets which, in accordance with Article 9 of the UCC, can be perfected only by possession or control (or where the security interest of a secured party with possession or control has priority over the security interest of another secured party) and each Agent and each Lender hereby acknowledges that it holds possession of or otherwise controls any such Collateral for the benefit of the Agents and the Lenders as secured party. Should Administrative Agent or any Lender obtain possession or control of any such Collateral, Administrative Agent or such Lender shall notify Collateral Agent thereof, and, promptly upon Collateral Agent’s request therefore shall deliver such Collateral to Collateral Agent or in accordance with Collateral Agent’s instructions. In addition, Collateral Agent shall also have the power and authority hereunder to appoint such other sub-agents as may be necessary or required under applicable state law or otherwise to perform its duties and enforce its rights with respect to the Collateral and under the Loan Documents. Each Loan Party by its execution and delivery of this Agreement hereby consents to the foregoing.
Section 9.10.
Erroneous Payments.
(a)
If the Administrative Agent notifies a Lender or any Person who has received funds on behalf of a Lender (any such Lender or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment
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Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b)
Without limiting immediately preceding clause (a), each Lender or any Person who has received funds on behalf of a Lender, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i)
It acknowledges and agrees that (A) in the case of immediately preceding clause (x) or clause (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii)
such Lender shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.10(b).
(c)
Each Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement.
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(d)
In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its Term Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Term Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with Borrower) deemed to execute and deliver an Assignment Agreement with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Term Loans to Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Term Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any Term Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Term Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Term Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “Erroneous Payment Subrogation Rights”).
(e)
The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f)
To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any
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claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(g)
Each party’s obligations, agreements and waivers under this Section 9.10 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
Section 9.11.
Delivery of Notices to Securitization Trustee. Each Loan Party agrees to forward to the Collateral Agent, and each Loan Party and the Lenders direct the Collateral Agent to provide to the Securitization Trustee, promptly upon receipt thereof by the Collateral Agent, copies of any notices or writings the Collateral Agent receives from any Loan Party or the insurers under the AON Insurance Policy that specify that such notice or writing relates to the AON Insurance Policy, including but not limited to notices or writings regarding:
(a)
any amendment, waiver or supplement to the AON Insurance Policy;
(b)
any reduction of the “Limit of Liability” under the AON Insurance Policy (as defined therein);
(c)
the replacement of an “AON Insurer” by an “Additional Insurer” and identity of such “Additional Insurer” (each as defined in the AON Insurance Policy); and
(d)
the occurrence of any of the termination events provided in Section X of the AON Insurance Policy.
All notices or writings sent by a Loan Party to the Collateral Agent pursuant to this Section 9.11 shall be accompanied by a written notice to the Collateral Agent that such transmitted notice or writing relates to the AON Insurance Policy. For the avoidance of doubt, no Person that is designated as an observer of Xxxxxxxx’s board of directors by a current or former Lender, or any Affiliate thereof, shall have any obligation to deliver to the Collateral Agent or Securitization Trustee any information delivered to such Person solely in such person’s capacity as an observer of Borrower’s board of directors.
ARTICLE X
MISCELLANEOUS
MISCELLANEOUS
Section 10.1.
Notices.
(a)
Notices Generally. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given to a Loan Party, Collateral Agent, the insurer under the AON Insurance Policy or Administrative Agent, shall be sent to such Person’s address as set forth on Schedule 10.1 or in the other relevant Loan Document, and in the case of any Lender, the address as indicated on Schedule 10.1 or otherwise indicated in writing
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by such Person to Administrative Agent and/or parties to such relevant Loan Document. Each notice of Borrower required hereunder shall also be sent to (x) AON (Bermuda) Limited and (y) Moody’s at the addresses set forth on Schedule 10.1 or otherwise indicated in writing by such Person to Administrative Agent and/or parties to such relevant Loan Document. Any such notice entitled to be received by AON (Bermuda) Limited shall also be delivered at each such insurer’s electronic address set forth in Schedule 10.1 (solely to the extent such insurer has provided its electronic notice address). Each notice hereunder shall be in writing and may be personally served, telexed or sent by facsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of facsimile, or three (3) Business Days after depositing it in the United States mail with postage prepaid and properly addressed; provided no notice to any Agent shall be effective until received by such Agent. For avoidance of doubt, communication by any Person of new addresses for notice (but without waiving any requirements related to physical relocation of any Loan Party) to be given pursuant to a Loan Document does not constitute an amendment, waiver or modification of any Loan Document and does not require consent of any Person. In the event that any Loan Party and the Administrative Agent and/or Required Lenders enter into a forbearance or similar agreement at any time in respect of a Default or Event of Default under this Agreement, Borrower shall give notice of its entry into such a forbearance or similar agreement to AON within (5) five Business Days of such Loan Party’s entry into such forbearance or similar agreement.
(b)
Electronic Communications.
(i)
Each Agent and Loan Party may, in its discretion, agree to accept notices and other communications to it hereunder by electronic transmission or communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic transmission or communication (including e‑mail and Internet or intranet websites) pursuant to procedures approved by the Agents, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Xxxxxx has notified the Agents that it is incapable of receiving notices under such Article by electronic transmission or communication.
(ii)
Unless Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (B) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing subclause (A), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both subclauses (A) and (B) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
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Section 10.2.
Expenses.
(a)
Xxxxxxxx agrees to pay promptly (i) all of each Agent’s, each Lender’s and the Securitization Trust’s reasonable and documented out-of-pocket costs and expenses of preparation of the Loan Documents and any consents, amendments, waivers or other modifications thereto, (ii) all of the reasonable and documented fees, expenses and disbursements of Lenders and the Securitization Trust, including but not limited to Milbank LLP, local counsel, and any ratings agency and, with respect to the Agents, counsel to the Agents and, in connection with the negotiation, preparation, execution and administration of the Loan Documents and any consents, amendments, waivers or other modifications thereto and any other documents or matters in respect thereof or contemplated thereunder, (iii) all the actual costs and reasonable expenses of creating and perfecting Liens in favor of Collateral Agent, for the benefit of Secured Parties, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums and reasonable and documented fees, expenses and disbursements of counsel to the Agents, each Agent and of counsel providing any opinions that any Agent or Required Lenders may request in respect of the Collateral or the Liens created pursuant to the Collateral Documents, (iv) all the reasonable and documented out-of-pocket expenses (including the reasonable fees, expenses and disbursements of any appraisers, consultants, advisors and agents employed or retained by Agents or Lenders and their respective counsel) in connection with the custody or preservation of any of the Collateral, (v) all the reasonable and documented out-of-pocket costs and expenses of Agents and Lenders in connection with the attendance at any meetings in connection with this Agreement and the other Loan Documents (including the meetings referred to in Section 5.7), (vi) all of the AON Insurance Policy lead insurer’s reasonable and documented out-of-pocket costs and expenses (excluding all amounts owing to counsel to the lead insurer of the AON Insurance Policy, which shall be reimburesed solely to the extent so required pursuant to clause (vii) below) of preparation of the Loan Documents and any consents, amendments, waivers or other modifications thereto (not to exceed, in the aggregate with clause (vii) below, $175,000), (vii) all of the reasonable and documented fees, expenses and disbursements of a single counsel to the lead insurer under the AON Insurance Policy, in connection with the negotiation, preparation, execution and administration of the Loan Documents and any consents, amendments, waivers or other modifications thereto and any other documents or matters in respect thereof or contemplated thereunder (not to exceed, in the aggregate with clause (vi) above, $175,000), and (viii) after the occurrence of a Default or an Event of Default, all reasonable and documented costs and expenses, including reasonable and documented attorneys’ fees and costs of settlement, incurred by any Agent and Lenders in enforcing any Obligations of or in collecting any payments due from any Loan Party hereunder or under the other Loan Documents by reason of such Default or Event of Default (including in connection with the sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty) or in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work out” or pursuant to any insolvency or bankruptcy cases or proceedings.
(b)
Notwithstanding anything in Section 10.2(a) to the contrary: (i) amounts set forth in Sections 10.2(a)(vi) and 10.2(a)(vii) above that are reimbursable to the lead insurers or the lead insurers’ counsel and incurred on or prior to the Closing Date, shall not be required to be reimbursed by the Loan Parties in an amount in excess of $75,000. The Loan Parties acknowledge that except as expressly provided in Sections 10.2(a) and (b)(i) hereinabove, the Loan Parties shall
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pay when due all amounts, including attorneys fees and costs, incurred by any Agent or Lender that are reimbursable thereto under this Section 10.2.
Section 10.3.
Indemnity.
(a)
IN ADDITION TO THE PAYMENT OF EXPENSES PURSUANT TO SECTION 10.2, EACH LOAN PARTY, JOINTLY AND SEVERALLY, AGREES TO DEFEND (SUBJECT TO INDEMNITEES’ SELECTION OF COUNSEL), INDEMNIFY, PAY AND HOLD HARMLESS, EACH AGENT AND LENDER, THEIR AFFILIATES AND THEIR RESPECTIVE OFFICERS, PARTNERS, DIRECTORS, TRUSTEES, EMPLOYEES AND AGENTS OF EACH AGENT AND EACH LENDER (EACH, AN “INDEMNITEE”), FROM AND AGAINST ANY AND ALL INDEMNIFIED LIABILITIES, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE; PROVIDED NO LOAN PARTY SHALL HAVE ANY OBLIGATION TO ANY INDEMNITEE HEREUNDER WITH RESPECT TO ANY INDEMNIFIED LIABILITIES TO THE EXTENT SUCH INDEMNIFIED LIABILITIES ARISE FROM (i) THE GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT, AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL, NON-APPEALABLE ORDER, OF THAT INDEMNITEE OR (ii) ANY DISPUTE SOLELY AMONG INDEMNITEES OTHER THAN ANY CLAIMS AGAINST AN INDEMNITEE IN ITS CAPACITY OR IN FULFILLING ITS ROLE AS AN ADMINISTRATIVE AGENT, COLLATERAL AGENT OR ANY SIMILAR ROLE UNDER ANY LOAN DOCUMENT AND OTHER THAN ANY CLAIMS ARISING OUT OF ANY ACT OR OMISSION OF BORROWER OR ANY OF ITS AFFILIATES (AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL, NON-APPEALABLE ORDER). TO THE EXTENT THAT THE UNDERTAKINGS TO DEFEND, INDEMNIFY, PAY AND HOLD HARMLESS SET FORTH IN THIS SECTION 10.3 MAY BE UNENFORCEABLE IN WHOLE OR IN PART BECAUSE THEY ARE VIOLATIVE OF ANY LAW OR PUBLIC POLICY, THE APPLICABLE LOAN PARTY SHALL CONTRIBUTE THE MAXIMUM PORTION THAT IT IS PERMITTED TO PAY AND SATISFY UNDER APPLICABLE LAW TO THE PAYMENT AND SATISFACTION OF ALL INDEMNIFIED LIABILITIES INCURRED BY INDEMNITEES OR ANY OF THEM. THIS CLAUSE (a) SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT REPRESENT INDEMNIFIED LIABILITIES ARISING FROM ANY NON-TAX CLAIM.
(b)
To the extent permitted by applicable law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against Lenders and Agents and their respective Affiliates, directors, employees, attorneys or agents, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Loan Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Loan Party hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
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(c)
Notwithstanding the foregoing, this Section 10.3 shall not operate to require Borrower or any other Loan Party to pay amounts expressly excluded from Section 10.2.
Section 10.4.
Set-Off. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence and during the continuance of any Event of Default each Lender and their respective Affiliates is hereby authorized by each Loan Party at any time or from time to time subject to the consent of Agents (such consent not to be unreasonably withheld or delayed), without notice to any Loan Party or to any other Person (other than an Agent), any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts (in whatever currency)) and any other Indebtedness at any time held or owing by such Lender to or for the credit or the account of any Loan Party (in whatever currency) against and on account of the obligations and liabilities of any Loan Party to such Lender hereunder and under the other Loan Documents, including all claims of any nature or description arising out of or connected hereto, or with any other Loan Document, irrespective of whether or not (a) such Lender shall have made any demand hereunder, (b) the principal of or the interest on the Term Loans or any other amounts due hereunder shall have become due and payable pursuant to Article II and although such obligations and liabilities, or any of them, may be contingent or unmatured or (c) such obligation or liability is owed to a branch or office of such Lender different from the branch or office holding such deposit or obligation or such Indebtedness.
Section 10.5.
Amendments and Waivers.
(a)
Required Lenders’ Consent. Subject to Sections 10.5(b) and 10.5(c), no amendment, modification, termination or waiver of any provision of the Loan Documents, or consent to any departure by any Loan Party therefrom, shall in any event be effective without the written consent of Borrower and the Required Lenders.
(b)
Affected Lenders’ Consent. Without the written consent of Borrower and each Lender that would be affected thereby, no amendment, modification, termination, or consent shall be effective if the effect thereof would:
(i)
extend the scheduled final maturity of any Term Loan or Note (it being understood that a waiver of any Default or mandatory prepayment shall not constitute an extension of any Term Loan or Note of any Lender);
(ii)
waive, reduce or postpone any scheduled repayment (it being understood that the waiver of any condition precedent set forth in Section 3.1 or the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal);
(iii)
reduce the rate of interest on any Term Loan (other than any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.7) or any fee payable hereunder;
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(iv)
extend the time for payment of any such interest or fees (it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of interest);
(v)
extend or increase the Commitment of any Lender;
(vi)
reduce the principal amount of any Term Loan;
(vii)
subject to Section 10.6(j)(iii), consent to any amendment, modification, termination or waiver of any provision of the AON Insurance Policy, provided that Borrower approval of any such amendment, modification, termination or waiver shall only be required if the same affects any portion of the aggregate amount of the premium paid to the insurers or their agent in respect of the AON Insurance Policy, including any related rebate of unearned premium payable to Borrower, and no Borrower consent shall otherwise be required with respect to this clause (vii);
(viii)
amend, modify, terminate or waive any provision of this Section 10.5(b) or Section 10.5(c);
(ix)
amend the definition of “Required Lenders” or “Pro Rata Share” or change the Lender consent standard for any provision requiring Required Lender consent to a standard that is less than Required Lenders;
(x)
release all or substantially all of the Collateral or release any Guarantor from the Guaranty except as expressly provided in the Loan Documents;
(xi)
subordinate any of the Obligations or any Lien created by this Agreement or any other Loan Document; or
(xii)
consent to the assignment or transfer by any Loan Party of any of its rights and obligations under any Loan Document.
(c)
Other Consents. No amendment, modification, termination or waiver of any provision of the Loan Documents, or consent to any departure by any Loan Party therefrom, shall amend, modify, terminate or waive any provision of Article IX as the same applies to any Agent, or any other provision hereof as the same applies to the rights or obligations of any Agent, in each case without the consent of such Agent.
(d)
Execution of Amendments, etc. Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.5 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by a Loan Party, on such Loan Party.
(e)
Other Waivers. The Loan Parties hereby waive the defenses of laches or estoppel with respect to enforcement by the Lenders of their rights.
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(f)
Insurer and Rating Agency Consent. No amendment or waiver of this Agreement shall be effective unless (i) the Administrative Agent has received written confirmation from Required Lenders that (x) such amendment or waiver has been approved by insurers holding at least 50.1% of the risk under the AON Insurance Policy on the terms and conditions set forth in clause (a) of Section IV of the AON Insurance Policy as in effect on the Closing Date without giving effect to any subsequent amendment or waiver, as applicable, or (y) any applicable time for insurers to object under the AON Insurance Policy has expired and no objection has been made and (ii) subject to prior delivery of evidence of insurer approval or the expiration of the time for insurers to object as provided in clause (i) and if such amendment or waiver of this Agreement (A) requires a concurrent amendment or waiver of the AON Insurance Policy, (B) is likely to result in termination of the AON Insurance Policy or (C) would result in a reduction in, or delay of, the principal or interest payments under the promissory notes issued by the Securitization Trust, a Xxxxx’x Rating Agency Confirmation so long as promissory notes issued under the Securitization Trust are outstanding and a Xxxxx’x rating of such promissory notes is in effect. Notwithstanding the foregoing, with respect to any amendment or waiver resulting in a reduction in, or delay of, the principal or interest payments under the promissory notes issued by the Securitization Trust that may otherwise require a Xxxxx’x Rating Agency Confirmation, the requirement for such Xxxxx'x Rating Agency Confirmation shall be deemed for all purposes to be satisfied with respect to such amendment or waiver if (a) Moody's makes a public announcement or informs the Borrower, the Securitization Trustee or holders of such notes that (i) it believes the Xxxxx'x Rating Agency Confirmation is not required with respect to such amendment or waiver or (ii) its practice or policy is to not give such confirmations, (b) in connection with an amendment or waiver requiring unanimous consent of the Lenders, all Lenders have been advised prior to consenting that the then current rating of such notes may be reduced or withdrawn as a result of such amendment or waiver, or (c) Moody's no longer is providing a rating of such notes.
(g)
Certification Regarding Minimum Interest Reserve Amount. If an amendment, modification or waiver is reasonably expected to cause the Interest Reserve Account to hold Dollars and Eligible Investments having a mark-to-market aggregate valuation of less than the Minimum Interest Reserve Amount in effect prior to such amendment, modification or waiver, then Borrower shall concurrently with its execution of such amendment, modification or waiver deliver a written notice to the Administrative Agent and the Lenders stating that such amendment, modification or waiver is reasonably expected to cause the cause the Interest Reserve Account to hold less than Minimum Interest Reserve Amount.
Section 10.6.
Successors and Assigns; Participations.
(a)
Generally. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of Lenders. Except as provided herein (including as permitted under Section 6.9), no Loan Party’s rights or obligations hereunder nor any interest therein may be assigned or delegated by any Loan Party without the prior written consent of all Lenders. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, Indemnitee Agent Parties under Section 9.8, Indemnitees under Section 10.3, their respective successors and assigns permitted hereby and, to the extent expressly contemplated
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hereby, Affiliates of each of the Agents and Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)
Register. Borrower, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Term Loans listed therein for all purposes hereof, and no assignment or transfer of any such Commitment or Term Loan shall be effective, in each case, unless and until an Assignment Agreement effecting the assignment or transfer thereof shall have been delivered to and acknowledged by Administrative Agent and recorded in the Register as provided in Section 10.6(e). Prior to such recordation, all amounts owed with respect to the applicable Commitment or Loan shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Commitments or Term Loans.
(c)
Right to Assign. Each Lender shall have the right at any time to sell, assign or transfer all or a portion of its rights and obligations under this Agreement, including, without limitation, all or a portion of its Commitment or Term Loans owing to it or other Obligations (provided that each such assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any Term Loan and any related Commitments):
(i)
to any Person meeting the criteria of clause (a), clause (c) or clause (d) of the definition of the term of “Eligible Assignee” upon the giving of notice to but without the consent of Xxxxxxxx and Administrative Agent; and
(ii)
to any Person meeting the criteria of clause (b) of the definition of the term, “Eligible Assignee”; provided each such assignment pursuant to this Section 10.6(c)(ii) shall be in an aggregate amount of not less than $1,000,000 (or such lesser amount as may be agreed to by Administrative Agent or as shall constitute the aggregate amount of the Term Loan of the assigning Lender) with respect to the assignment of Term Loans; provided, however, that in no event shall any Lender be permitted to sell, assign or transfer all or any portion of its rights and obligations under this Agreement to any Disqualified Institution, unless an Event of Default under Section 8.1(a), Section 8.1(f) or Section 8.1(g) has occurred and is continuing at the time of such assignment.
(d)
Mechanics. The assigning Xxxxxx and the assignee thereof shall execute and deliver to Administrative Agent an Assignment Agreement, a processing and recordation fee in the amount of $3,500, and, if not already a Lender, an administrative questionnaire and other requested know-your-customer documentation, including such forms or certificates with respect to tax matters as the assignee under such Assignment Agreement may be required to deliver to Administrative Agent pursuant to Section 2.14(d).
(e)
Notice of Assignment. Upon its receipt and acceptance of a duly executed and completed Assignment Agreement, any forms or certificates required by this Agreement in connection therewith, Administrative Agent shall record the information contained in such Assignment Agreement in the Register, shall give prompt notice thereof to Borrower and shall maintain a copy of such Assignment Agreement. The Assignment Agreement shall include a
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representation of the named assignee that it is not a Disqualified Institution. Administrative Agent shall not have any obligation in respect of enforcement of whether a prospective Lender is a Disqualified Institution beyond ascertaining that the representation referred to in the prior sentence is present in the Assignment Agreement.
(f)
Representations and Warranties of Assignee. Each Lender, upon execution and delivery hereof or upon executing and delivering an Assignment Agreement, as the case may be, represents and warrants as of the Closing Date or as of the applicable “Effective Date” (as defined in the applicable Assignment Agreement) that (i) it is an Eligible Assignee and is not a Disqualified Institution, (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commitments or Term Loans, as the case may be, (iii) it will make or invest in, as the case may be, its Commitments or Term Loans for its own account in the ordinary course of its business and without a view to distribution of such Commitments or Term Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 10.6, the disposition of Term Loans or any interests therein shall at all times remain within its exclusive control) and (iv) such Lender does not own or control, or own or control any Person owning or controlling, any trade debt or Indebtedness of any Loan Party other than the Obligations or any Capital Stock of any Loan Party. The Administrative Agent may conclusively rely on an Eligible Assignee’s representations and warranties made in an Assignment Agreement without any independent investigation and the Administrative Agent shall be fully protected on such reliance.
(g)
Effect of Assignment. Subject to the terms and conditions of this Section 10.6, as of the later (i) of the “Effective Date” specified in the applicable Assignment Agreement or (ii) the date such assignment is recorded in the Register: (A) the assignee thereunder shall have the rights and obligations of a “Lender” hereunder to the extent such rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement and shall thereafter be a party hereto and a “Lender” for all purposes hereof; (B) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned thereby pursuant to such Assignment Agreement, relinquish its rights (other than any rights which survive the termination hereof under Section 10.8) and be released from its obligations hereunder (and, in the case of an Assignment Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations hereunder, such Lender shall cease to be a party hereto; provided anything contained in any of the Loan Documents to the contrary notwithstanding, such assigning Lender shall continue to be entitled to the benefit of all indemnities hereunder as specified herein with respect to matters arising out of the prior involvement of such assigning Xxxxxx as a Lender hereunder); (C) the Commitments shall be modified to reflect the Commitment of such assignee and any Commitment of such assigning Lender, if any; and (D) if any such assignment occurs after the issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender its applicable Notes to Administrative Agent for cancellation, and thereupon Borrower shall issue and deliver new Notes, if so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new Commitments and/or outstanding Term Loans of the assignee and/or the assigning Lender.
(h)
Participations.
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(i)
Each Lender shall have the right at any time to sell one or more participations to any Person (other than any Loan Party, any of its Subsidiaries or any of its Affiliates, or any Disqualified Institution) in all or any part of its Commitments, Term Loans or in any other Obligation. The holder of any such participation, other than an Affiliate of the Lender granting such participation, shall not be entitled to require such Lender to take or omit to take any action hereunder except with respect to any amendment, modification or waiver that would (i) extend the final scheduled maturity of any Term Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Term Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (ii) consent to the assignment or transfer by any Loan Party of any of its rights and obligations under this Agreement, or (iii) release all or substantially all of the Collateral under the Collateral Documents or any Guarantor from the Guaranty (in each case, except as expressly provided in the Loan Documents) supporting the Term Loans hereunder in which such participant is participating. Xxxxxxxx agrees that each participant shall be entitled to the benefits of Sections 2.13 and 2.14 (subject to the requirements and limitations therein) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.6(c); provided a participant that would be a Non-US Lender if it were a Lender shall not be entitled to the benefits of Section 2.14 unless, at the time such participant is claiming such benefits, Borrower is notified of the participation sold to such participant and such participant agrees, for the benefit of Xxxxxxxx, to comply with Section 2.14 as though it were a Lender. To the extent permitted by law, each participant also shall be entitled to the benefits of Section 10.4 as though it were a Lender, provided such participant agrees to be subject to Section 2.12 as though it were a Lender.
(ii)
In the event that any Lender sells participations in its Commitments, Term Loans or in any other Obligation hereunder, such Lender shall, acting solely for this purpose as a non-fiduciary agent of Xxxxxxxx, maintain a register on which it enters the name of all participants in the Commitments, Term Loans or Obligations held by it and the principal amount (and stated interest thereon) of the portion of such Commitments, Term Loans or Obligations which are the subject of the participation (the “Participant Register”). A Commitment, Term Loan or Obligation hereunder may be participated in whole or in part only by registration of such participation on the Participant Register (and each Note shall expressly so provide). 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 Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
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(i)
Certain Other Assignments. In addition to any other assignment permitted pursuant to this Section 10.6, any Lender or Agent may assign, pledge and/or grant a security interest in, all or any portion of its Term Loans, the other Obligations owed by or to such Lender, and its Notes, if any, to secure obligations of such Lender or Agent or any of its Affiliates to any Person providing any loan, letter of credit or other extension of credit or financial arrangement to or for the account of such Lender or Agent or any of its Affiliates and any agent, trustee or representative of such Person (without the consent of, or notice to, or any other action by, any other party hereto), including, without limitation, any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any operating circular issued by such Federal Reserve Bank; provided no Lender or Agent, as between Borrower and such Lender or Agent, shall be relieved of any of its obligations hereunder as a result of any such assignment and pledge; provided further in no event shall such Person, agent, trustee or representative of such Person or the applicable Federal Reserve Bank be considered to be a “Lender” or “Agent” or be entitled to require the assigning Lender or Agent to take or omit to take any action hereunder.
(j)
Assignment upon Payment of Claim Under AON Insurance Policy; Assignment Upon Receipt of AON Insurance Proceeds.
(i)
In the event that: (a) the Administrative Agent receives a payment of any amount due in immediately available funds under the AON Insurance Policy (such funds, collectively, the “AON Insurance Proceeds”) and (b) the Administrative Agent and the Lenders receive a notice signed by AON (the “AON Notice”) that (x) confirms the percentage of the amount of such AON Insurance Proceeds divided by the full amount due under the AON Insurance Policy (such percentage, the “AON Insurance Funded Portion”); (y) instructs the Administrative Agent to proceed with the subrogation and assignment of the AON Insurance Funded Portion of the Obligations as provided in this Section 10.6(j) and (z) identifies each of the insurers under the AON Insurance Policy that have made such payment, the identity of such insurers’ joint domestic U.S. organized designee (the insurers under the AON Insurance Policy that have made such payment, or if formed such insurers’ joint domestic U.S. organized designee excluding any insurer (collectively, as applicable, the “AON Designee(s)”)) and such insurers’ respective allocated contribution to such amount stated in dollars, then the parties hereto (including without limitation, each Lender) agree that the AON Designee(s) are automatically subrogated to and assigned the AON Insurance Funded Portion of the Obligations in the amount of such insurers’ respective allocated contribution and all of the rights of the Lenders holding Term Loans in the aggregate outstanding balance of an equivalent percentage of the Obligations as of the date of receipt of the AON Notice (by way of example if AON Insurance Proceeds actually received equal 92% of the aggregate amount due to Beneficiary under the AON Insurance Policy, then 92% of the Obligations will be assigned to the AON Designee(s) and 8% of the Obligations shall continue to be held by any Existing Lender).
(ii)
The Administrative Agent shall provide prompt notice by email to the Lenders of its receipt of the AON Insurance Proceeds.
(iii)
Only Existing Lenders may provide direction on matters regarding the AON Insurance Policy.
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For avoidance of doubt, no Non-Paying Insurer shall be assigned any portion of the Obligations until all amounts payable by such Non-Paying Insurer under the AON Insurance Policy are so funded. At such time as any Non-Paying Insurer delivers the full balance of its pro rata share of any claim under the AON Insurance Policy, such proceeds shall be used by the Administrative Agent only to fund the acquisition of Term Loans held by Existing Lenders and the assignment thereof to such funding Non-Paying Insurer. In furtherance of such automatic subrogation and assignment, the Administrative Agent shall without requirement for any assignment, notice or instruction, immediately and in all events within five (5) Business Days thereof, (x) distribute to such Lender its ratable share of the AON Insurance Proceeds and (y) following such distribution, record in the Register the assignment of the Term Loan to the AON Designee(s), and each such designee’s ratable share of the aggregate outstanding amount of all Obligations. Further, each of the Lenders agrees to execute and deliver to the Administrative Agent and the AON Designee(s) an Assignment Agreement reflecting such automatic assignment effective as of the date of the automatic assignment described in the first sentence of this Section 10.6(j) to the AON Designee(s) of the aggregate outstanding amount of Obligations so assigned in respect of principal, and each of the AON Designee(s) shall promptly, and in all events within ten (10) Business Days, complete and execute the Assignment Agreement and provide to the Administrative Agent such administrative details, tax certificates and other “know your customer” documentation as Administrative Agent may reasonably request. Each insurer under the AON Insurance Policy or their joint domestic U.S. organized designee by its acceptance of the assignment of the Obligations acknowledges that its failure to provide the required information and certifications may result in Tax withholding in respect of interest payments and other obligations pursuant to applicable Law. All obligations of the insurers under the AON Insurance Policy in this Section 10.6(j) may be satisfied by performance of the joint domestic U.S. organized designee, if any, on behalf of such insurer. Each insurer under the AON Insurance Policy and their joint domestic U.S. organized designee is a designated third-party beneficiary of this Section 10.6(j). For avoidance of doubt, failure of the Lenders and the AON Designee(s) to execute any applicable Assignment Agreement shall have no effect on the automatic subrogation and assignment described above. Each Lender that holds Obligations hereby authorizes AON to deliver the AON Notice and instructs the Administrative Agent that the Administrative Agent is entitled to conclusively rely on the AON Notice in the execution of the assignments of the Obligations provided for in this Section 10.6(j) and will be fully protected under Section 10.3 in doing so.
Section 10.7.
Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
Section 10.8.
Survival of Representations, Warranties and Agreements. All representations, warranties and agreements made herein shall survive the execution and delivery hereof and the making of any Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the agreements of each Loan Party set forth in Sections 2.13, 2.14, 10.2, 10.3, 10.4, and 10.10 and the agreements of Lenders set forth in Section 2.12 and Article IX shall survive the payment of the Term Loans and the termination hereof.
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Section 10.9.
No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any Lender in the exercise of any power, right or privilege hereunder or under any other Loan Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall be in addition to and independent of all rights, powers and remedies existing by virtue of any statute or rule of law or in any of the other Loan Documents. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.
Section 10.10.
Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Loan Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any Loan Party makes a payment or payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or Administrative Agent, Collateral Agent or Lenders enforce any security interests or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.
Section 10.11.
Severability. In case any provision in or obligation hereunder or any Note or other Loan Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 10.12.
Obligations Several. The obligations of Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitment of any other Lender hereunder. Nothing contained herein or in any other Loan Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a Joint Venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, provided that the Lenders shall not have the right to individually exercise any rights or remedies under any of the Collateral Documents, all of which shall be exercised solely by the Administrative Agent or Collateral Agent (or any duly appointed sub-agent) upon instruction of Required Lenders for the ratable benefit of all Lenders.
Section 10.13.
Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
Section 10.14.
APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL
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BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 10.15.
CONSENT TO JURISDICTION.
(a)
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY LOAN PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER LOAN DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; AND (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1 AND TO ANY PROCESS AGENT SELECTED IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (IV) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF NEW YORK, GEORGIA, KENTUCKY, AND ANY OTHER JURISDICTION IN WHICH ANY LOAN PARTY OR COLLATERAL IS LOCATED.
(b)
EACH LOAN PARTY HEREBY AGREES THAT PROCESS MAY BE SERVED ON IT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE ADDRESSES PERTAINING TO IT AS SPECIFIED IN SECTION 10.1, AND HEREBY APPOINTS THE BORROWER AS ITS AGENT TO RECEIVE SUCH SERVICE OF PROCESS. ANY AND ALL SERVICE OF PROCESS AND ANY OTHER NOTICE IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE EFFECTIVE AGAINST ANY LOAN PARTY IF GIVEN BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY ANY OTHER MEANS OR MAIL WHICH REQUIRES A SIGNED RECEIPT, POSTAGE PREPAID, MAILED AS PROVIDED ABOVE. IN THE EVENT THE BORROWER SHALL NOT BE ABLE TO ACCEPT SERVICE OF PROCESS AS AFORESAID AND IF ANY LOAN PARTY SHALL NOT MAINTAIN AN OFFICE IN NEW YORK CITY, SUCH LOAN PARTY SHALL PROMPTLY APPOINT AND MAINTAIN AN AGENT QUALIFIED TO ACT AS AN AGENT FOR SERVICE OF PROCESS WITH RESPECT TO THE COURTS SPECIFIED IN THIS SECTION 10.15 ABOVE, AND ACCEPTABLE TO XXXXXXXXX, AS EACH LOAN PARTY’S AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON EACH LOAN PARTY’S BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION, SUIT OR PROCEEDING.
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Section 10.16.
WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS FUTURE DEALINGS RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TERM LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section 10.17.
Confidentiality. Each Agent and Lender shall hold all non-public information regarding each Loan Party and its Subsidiaries and their businesses identified as such by Borrower and obtained by such Agent or Lender from any Loan Party or its Subsidiaries pursuant to the requirements hereof in accordance with such Lender’s customary procedures for handling confidential information of such nature, it being understood and agreed by each Loan Party that, in any event, any Agent or Lender may make (i) disclosures of such information to Affiliates of such Agent or Lender and to their agents, advisors, directors and shareholders (and to other persons authorized by a Lender or Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 10.17), (ii) disclosures of such information reasonably required by any bona fide or potential assignee, transferee or participant in connection with the contemplated assignment, transfer or participation by any such Lender of any Term Loans or any participations therein; provided that such bona fide or potential assignee, transferee or participant shall be subject to a customary confidentiality agreement, (iii) disclosure to any rating agency when required by it, provided that, prior to any disclosure, such rating agency shall undertake in writing to preserve the confidentiality of any confidential information relating to the Loan Parties received by it from any of the Agents or any Lender, (iv) disclosure to any Lender’s financing sources, provided that prior to any disclosure, such financing source is informed of the confidential nature of the information and agrees to treat it in accordance with this Section 10.17, (v) disclosures of such information to any investors and
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partners of any Lender, provided that prior to any disclosure, such investor or partner is informed of the confidential nature of the information and agrees to treat it in accordance with this Section 10.17, (vi) disclosure to the insurers under the AON Insurance Policy and to their agents or advisors; provided that prior to any disclosure, such insurer and their agent or advisor are informed of the confidential nature of the information and agrees to treat it in accordance with this Section 10.17 and (vii) disclosure required in connection with any public filings, whether pursuant to any securities laws or regulations or rules promulgated therefor (including the Investment Company Act of 1940 or otherwise) or representative thereof or by the National Association of Insurance Commissioners (and any successor thereto) or pursuant to legal or judicial process; provided, unless specifically prohibited by applicable law or court order, each Agent and Lender shall make reasonable efforts to notify Borrower of any request by any Governmental Authority or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of such Lender by such Governmental Authority) for disclosure of any such non-public information prior to disclosure of such information. Notwithstanding anything to the contrary set forth herein, each party (and each of their respective employees, representatives or other agents) may disclose to any and all persons, without limitations of any kind, the tax treatment and tax structure of the transactions contemplated by this Agreement and all materials of any kind (including opinions and other tax analyses) that are provided to any such party relating to such tax treatment and tax structure. However, any information relating to the tax treatment or tax structure shall remain subject to the confidentiality provisions hereof (and the foregoing sentence shall not apply) to the extent reasonably necessary to enable the parties hereto, their respective Affiliates, and their and their respective Affiliates’ directors and employees to comply with applicable securities laws. For this purpose, “tax structure” means any facts relevant to the federal income tax treatment of the transactions contemplated by this Agreement but does not include information relating to the identity of any of the parties hereto or any of their respective Affiliates. Notwithstanding the foregoing, on or after the Closing Date, any Agent may, at its own expense issue news releases and publish “tombstone” advertisements and other announcements relating to this transaction in newspapers, trade journals and other appropriate media (which may include use of logos of one or more of the Loan Parties) (collectively, “Trade Announcements”). No Loan Party shall issue any Trade Announcement or disclose the name of any Agent or any Lender except (A) disclosures required by applicable law, regulation, legal process or the rules of the Securities and Exchange Commission or (B) with the prior approval of such Agent and such Lender.
Section 10.18.
Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged or agreed to be paid with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Term Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Term Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, Borrower shall pay to Administrative Agent an amount equal to the difference between the amount
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of interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders and Borrower to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Term Loans made hereunder or be refunded to Borrower. In determining whether the interest contracted for, charged, or received by Administrative Agent or a Lender exceeds the Highest Lawful Rate, such Person may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest, throughout the contemplated term of the Obligations hereunder.
Section 10.19.
Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed signature page to this agreement by electronic transmittal shall be as effective as delivery of a manually executed counterpart of this Agreement.
Section 10.20.
Effectiveness. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by Xxxxxxxx and each Agent of written or telephonic notification of such execution and authorization of delivery thereof.
Section 10.21.
PATRIOT Act Notice. Each Lender and Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the PATRIOT Act, it may be required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of the Loan Parties and other information that will allow such Lender or Agent, as applicable, to identify the Loan Parties in accordance with the PATRIOT Act, including the Beneficial Ownership Regulation.
Section 10.22.
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 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: 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 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 entity, 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.
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Section 10.23.
AON Insurance Policy Refund. Provided that no Default or Event of Default shall then have occurred and be continuing, in the event that (i) the Administrative Agent receives from the insurers under the AON Insurance Policy a refund or rebate of any portion of the aggregate amount of the premium paid to such insurers or their agent in respect of the AON Insurance Policy and (ii) the Administrative Agent receives an officer certificate pursuant to which the chief financial officer or other Authorized Officer of Borrower certifies that Xxxxxxxx has reason to believe that Administrative Agent has received from the insurers under the AON Insurance Policy a refund or rebate of any portion of the aggregate amount of the premium paid to such insurers or their agent in respect of the AON Insurance Policy and that no Event of Default has occurred and is continuing, then, acting at the direction of the Required Lenders, the Administrative Agent shall promptly deliver an amount equal to such payment to Borrower.
Section 10.24.
Entire Agreement. This Agreement and the other Loan Documents, including the documents referred to herein, constitute the entire agreement and understanding of the parties hereto and there are no representations, inducements, or other provisions other than those expressed in writing and included herein or in the other Loan Documents.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
BORROWER:
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
GUARANTORS:
Meredian holdings group, Inc., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
Danimer Scientific HOLDINGS, LLC, a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
Danimer Scientific manufacturing, Inc, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
[Signature Page to Financing Agreement]
Meredian, Inc., a Georgia corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
Xxxxxxx Scientific, L.L.C., a Georgia limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
Danimer Scientific Kentucky, Inc, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
Xxxxxxx Bioplastics, Inc., a Georgia corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
Danimer IPCO, LLC, a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
[Signature Page to Financing Agreement]
Danimer IPholdCO, LLC, a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
[Signature Page to Financing Agreement]
NOVOMER, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
[Signature Page to Financing Agreement]
COLLATERAL AGENT AND ADMINISTRATIVE AGENT:
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
[Signature Page to Financing Agreement]
TERM LOAN LENDER:
XXXXXXXXX FUNDING LLC
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Director
[Signature Page to Financing Agreement]
APPENDIX A
TO FINANCING AGREEMENT
Term Loan Commitments
Lender |
Term Loan Commitment |
Pro Rata Share |
Xxxxxxxxx Funding LLC |
$130,000,000 |
100% |
|
|
|
Total |
$130,000,000 |
100% |
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