SUPER-PRIORITY SENIOR SECURED DEBTOR-IN-POSSESSION NOTE PURCHASE AGREEMENT dated as of October 2, 2023 among CAPSTONE GREEN ENERGY CORPORATION, as a Chapter 11 Debtor and Debtor-in-Possession and Company, and THE OTHER DEBTORS PARTY HERETO FROM TIME...
EXHIBIT 4.1
SUPER-PRIORITY SENIOR SECURED DEBTOR-IN-POSSESSION NOTE PURCHASE AGREEMENT
dated as of October 2, 2023
among
CAPSTONE GREEN ENERGY CORPORATION,
as a Chapter 11 Debtor and Debtor-in-Possession and Company,
and
THE OTHER DEBTORS PARTY HERETO FROM TIME TO TIME,
Each as a Chapter 11 Debtor and Debtor-in Possession and as a Guarantor,
BROAD STREET CREDIT HOLDINGS LLC,
as Purchaser and
XXXXXXX XXXXX SPECIALTY LENDING GROUP, L.P.
as Collateral Agent
________________________________________________________
$30,000,000 Super-Priority Senior Secured Debtor-in-Possession Notes
________________________________________________________
TABLE OF CONTENTS
Page
i
iii
iv
APPENDICES:ACommitments
BNotice Addresses
SCHEDULES:1.1(b)Certain Material Real Estate Assets
1.1(c) Guarantors
4.1Jurisdictions of Organization and Qualification
4.2Capital Stock and Ownership
4.13Real Estate Assets
4.15Defaults
4.16Material Contracts
5.15Certain Post Closing Matters
6.1Certain Indebtedness
6.7Certain Investments
6.12Certain Affiliate Transactions
6.24Certain Employee Retention Plans
EXHIBITS:AFunding Notice
BLetter of Direction
CCompliance Certificate
D [Reserved]
E-1U.S. Tax Compliance Certificate
E-2[Reserved]
E-3[Reserved]
E-4U.S. Tax Compliance Certificate
F-1Closing Date Certificate
GCounterpart Agreement
H[Reserved]
IIntercompany Note
J-1New Money DIP Note
J-2Roll Up DIP Note
v
SUPER-PRIOIRITY SENIOR SECURED DEBTOR-IN-POSSESSION NOTE PURCHASE AGREEMENT
This SUPER-PRIOIRITY SENIOR SECURED DEBTOR-IN-POSSESSION NOTE PURCHASE AGREEMENT, dated as of October 2, 2023, is entered into by and among CAPSTONE GREEN ENERGY CORPORATION (“Company”), as issuer, certain Subsidiaries of Company, each as Guarantor from time to time party hereto, each such Guarantor and Company as Chapter 11 debtor and debtor-in-possession, BROAD STREET CREDIT HOLDINGS LLC (“BSCH”) as Purchaser and XXXXXXX XXXXX SPECIALTY LENDING GROUP, L.P. as collateral agent (in such capacity, “Collateral Agent”).
RECITALS:
WHEREAS, on September 28, 2023 (the “Petition Date”), Company and the Guarantors each filed voluntary petitions and initiated proceedings under Chapter 11 of the Bankruptcy Code (collectively, the “Chapter 11 Cases”) with the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) and have continued in possession of their respective assets and in the management of their respective businesses pursuant to Sections 1107 and 1108 of the Bankruptcy Code;
WHEREAS, Company and the Guarantors are party to that certain Amended and Restated Note Purchase Agreement, dated as of September 1, 2020 (as amended, modified or supplemented from time to time prior to the Petition Date, the “Pre-Petition Note Purchase Agreement”), among Company, the Guarantors, the purchasers party thereto (collectively, the “Pre-Petition Purchasers”), Xxxxxxx Xxxxx Specialty Lending Group, L.P., as collateral agent (in such capacity, the “Pre-Petition Note Purchase Agent”), pursuant to which Company and the Guarantors executed and delivered various DIP Note Documents, as defined therein (collectively with the Pre-Petition Note Purchase Agreement, the “Pre-Petition Note Documents”), which, among other things, guaranteed and secured the obligations of Company and all of the Guarantors under the Pre-Petition Note Purchase Agreement;
WHEREAS, in accordance with the terms hereof, Xxxxxxxxx has agreed to purchase super priority senior secured debtor-in-possession notes from the Company in the amounts and upon the terms and conditions more particularly set forth herein, the proceeds of which will be used in accordance with the Approved Budget; and
WHEREAS, in connection therewith, Company and the other Guarantors party hereto have agreed to guarantee the Obligations of the other DIP Note Parties hereunder and to secure all such Persons’ respective Obligations by granting to Collateral Agent, for the benefit of Secured Parties, the Liens described herein.
NOW, THEREFORE, to induce Purchaser to purchase the DIP Notes from Company and in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
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| Section 1 | DEFINITIONS AND INTERPRETATION |
“Acceptable Auditor” means (i) Xxxxxx LLP, (ii) a “Big Four” accounting firm, (iii) an independent certified public accountant of recognized national standing, (iv) a regional “mid-tier” firm of good public standing approved by the Public Company Accounting Oversight Board selected by Company or (v) any other independent certified public accountant reasonably satisfactory to Purchaser.
“Accounts” means all “accounts” (as defined in the UCC) of Company (or, if referring to another Person, of such Person), including accounts, accounts receivable, monies due or to become due and obligations in any form (whether arising in connection with contracts, contract rights, instruments, general intangibles, or chattel paper), in each case whether arising out of goods sold or services rendered or from any other transaction and whether or not earned by performance, now or hereafter in existence, and all documents of title or other documents representing any of the foregoing, and all collateral security and guaranties of any kind, now or hereafter in existence, given by any Person with respect to any of the foregoing.
“Acquisition” means the acquisition of, by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and capital expenditures, in each case in the ordinary course of business), the business, a substantial portion of the property or assets of, or a substantial portion of the Capital Stock or other evidence of beneficial ownership of, any Person, any division or line of business, or any other business unit of any Person.
“Additional DIP Notes Closing Date” means the date the Company issues New Money Additional DIP Notes and such New Money Additional DIP Notes are purchased by Purchaser in accordance with Section 2.1.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided, that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Adverse Proceeding” means any action, suit, proceeding, hearing (in each case, whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Company or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of Company or any of its Subsidiaries, threatened in writing against or affecting Company or any of its Subsidiaries or any property of Company or any of its Subsidiaries.
“Affected DIP Notes” as defined in Section 2.17(c).
“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
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by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (i) to vote 10% or more of the Capital Stock having ordinary voting power for the election of members of the Board of Directors of such Person, or (ii) to direct or cause the direction of the management and policies of that Person, whether through the ability to exercise voting power, by contract or otherwise. Notwithstanding anything in this definition to the contrary, neither the Warrant Holder nor any of its affiliates shall be considered an “Affiliate” of any DIP Note Party or of any Subsidiary of any DIP Note Party.
“Agent Affiliates” as defined in Section 10.1(b)(iii).
“Agreement” means this Super-Priority Senior Secured Debtor-in-Possession Note Purchase Agreement, as amended, restated, amended and restated, or otherwise modified from time to time.
“Anti-Corruption and Anti-Bribery Laws” means any and all requirements of law related to anti-bribery or anti-corruption matters, including the United States Foreign Corrupt Practices Act of 1977.
“Anti-Terrorism and Anti-Money Laundering Laws” means any and all requirements of law related to engaging in, financing, or facilitating terrorism or money laundering, including the PATRIOT Act, The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31 U.S.C. §§5311-5330 and 12 U.S.C. §§1818(s), 1820(b) and 1951-1959), Trading With the Enemy Act (50 U.S.C. §1 et seq.), Executive Order 13224 (effective September 24, 2001) and each of the laws, regulations, and executive orders administered by OFAC (31 C.F.R., Subtitle B, Chapter V).
“Applicable Margin” means (i) in the case of SOFR Rate DIP Notes, a percentage, per annum, equal to 8.75% and (ii) in the case of DIP Notes bearing interest at the Base Rate, a percentage, per annum, equal to 7.75%.
“Approved Budget” as defined in Section 5.1(y).
“Approved Electronic Communications” means any notice, demand, communication, information, document or other material that any DIP Note Party provides to Purchaser pursuant to any DIP Note Document or the transactions contemplated therein that is distributed to Collateral Agent or Purchaser by means of electronic communications pursuant to Section 10.1(b).
“Asset Sale” means a sale, lease or sub lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer (including through a plan of division), exclusive license (as licensor or sublicensor), or other disposition to, or any exchange of property with, any Person (other than to or with Company or any other DIP Note Party), in one transaction or a series of transactions, of all or any part of Company’s or any of its Subsidiaries’ respective businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased, or licensed, including the Capital Stock of any of Company’s Subsidiaries, other than inventory sold or leased to unaffiliated customers in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (x) include (A) the sale or other disposition for value of any contracts and (B) the early termination or
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modification of any contract resulting in the receipt by Company or any of its Subsidiaries of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course for accrued and unpaid amounts that would have been due through the date of termination or modification without giving effect thereto) and (y) exclude a sale or issuance by Company of its own common stock (including, for the avoidance of doubt, in connection with any at the market offering of Company’s Capital Stock).
“Authorized Officer” means, as applied to any Person that is an entity, any duly authorized individual natural Person holding the position of chairman of the Board of Directors (if an officer), chief executive officer, president, vice president, Chief Financial Officer, or, if approved by Xxxxxxxxx, any other officer position with similar authority; provided, that the secretary or assistant secretary of such Person, or another officer of such Person satisfactory to Purchaser, shall have delivered an incumbency certificate to Purchaser verifying the authority of such Authorized Officer.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of the term “Interest Period” pursuant to Section 2.17.
“Avoidance Action Proceeds” means proceeds of claims and causes of action under Sections 502(d), 544, 545, 547, 548, 550 and 553 of the Bankruptcy Code.
“Bankruptcy Code” means Title 11 of the United States Code.
“Bankruptcy Court” as defined in the Recitals hereto.
“Bankruptcy Plan” means the Debtors’ Joint Prepackaged Chapter 11 Plan that is substantially in the form attached to the TSA as Exhibit A and prepared and distributed in accordance with the Bankruptcy Code, as it may be altered, amended, modified, or supplemented from time to time in accordance with the Bankruptcy Code and the TSA and otherwise in form and substance satisfactory to Collateral Agent and Purchaser (including with respect to the treatment of any outstanding Pre-Petition Obligations).
“Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus ½ of 1.00%, (iii) the sum of (a) Adjusted Term SOFR (after giving effect to the Floor) for a one month tenor in effect on such day plus (b) the difference between the Applicable Margin for SOFR Rate DIP Notes and the Applicable Margin for Base Rate DIP Notes, and (iv) the Floor. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or Adjusted Term SOFR shall be effective on the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or Adjusted Term SOFR, respectively.
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“Base Rate DIP Notes” means a DIP Note bearing interest at a rate determined by reference to the Base Rate.
“Base Rate Term SOFR Determination Day” as defined in the definition of “Term SOFR”.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.17.
“Benchmark Replacement” means with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by Collateral Agent for the applicable Benchmark Replacement Date:
| a. | The sum of (i) Daily Simple SOFR and (ii) 0.11448% (11.448 basis points); or |
If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the interest rate specified in clause (a) of the definition of “Floor”, the Benchmark Replacement will be deemed to be the interest rate specified in clause (a) of the definition of “Floor” for the purposes of this Agreement and the other DIP Note Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Collateral Agent and the Company giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means a date and time determined by the Collateral Agent, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark:
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| a. | in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or |
| b. | in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date. |
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
| a. | a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); |
| b. | a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or |
| c. | a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative. |
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For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any DIP Note Document in accordance with Section 2.17 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any DIP Note Document in accordance with Section 2.17.
“Beneficiary” means Collateral Agent and Purchaser.
“Board of Directors” means, (a) with respect to any corporation or company, the board of directors of the corporation or company or any committee thereof duly authorized to act on behalf of such board, (b) with respect to a partnership, the board of directors or equivalent governing body of the general partner of the partnership, (c) with respect to a limited liability company, the manager, the managing member or members or any controlling committee or board of managers (or equivalent governing body) of such company or the sole member or the managing member thereof, and (d) with respect to any other Person, the entity, individual, board or committee of such Person serving a similar function.
“Board of Governors” means the Board of Governors of the United States Federal Reserve System, or any successor Governmental Authority.
“Business Day” means any day excluding Saturday, Sunday and any day that is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in any such state are authorized or required by law or other governmental action to close.
“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person (i) as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person or (ii) 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); provided that “Capital Lease” shall in no event include Operating Lease Liabilities.
“Capital Lease Obligation” means, as applied to any Person that is a lessee under any Capital Lease, that portion of obligations under such Capital Lease that is properly classified as a liability on a balance sheet in conformity with GAAP.
“Capital Stock” means any and all shares, stock, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership or profits interests in a Person that is another type of entity, including partnership interests, membership interests, voting trust certificates, certificates of interest, and profits interests, participations, or similar arrangements, and any and all warrants, rights or options to
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purchase, or other arrangements or rights to acquire, subscribe, convert to or otherwise receive or participate in the economic or other rights associated with any of the foregoing.
“Carve-Out” means the sum of: (i) all fees required to be paid to the clerk of the Bankruptcy Court and all statutory fees payable to the U.S. Trustee under section 1930(a) of title 28 of the United States Code plus interest at the statutory rate; (ii) all reasonable fees, costs and expenses in an aggregate amount not to exceed $25,000 incurred by a trustee under section 726(b) of the Bankruptcy Code; (iii) to the extent allowed at any time, whether by the interim order, procedural order, final order, or otherwise, all unpaid fees, costs, and expenses of persons or firms retained by the Debtors pursuant to sections 327, 328 or 363 of the Bankruptcy Code (the “Debtor Professionals”) and any Creditors’ Committee (the “Creditors’ Committee Professionals” and, together with the Debtor Professionals, the “Professional Persons”) appointed in the Chapter 11 Cases pursuant to section 1103 of the Bankruptcy Code, which shall be in accordance with the Approved Budget and incurred at any time on or before the first business day following delivery by the Collateral Agent to the Debtors and the Creditors’ Committee (if any) of a Carve-Out Trigger Notice (as defined in the Interim or Final Order), whether allowed by the Bankruptcy Court prior to or after such date; and (iv) Allowed Professional Fees (as defined in the Interim Order) of the Professional Persons in an aggregate amount not to exceed (x) $250,000 incurred or accrued after the first business day following delivery by the Collateral Agent of a Carve-Out Trigger Notice (as defined in the Interim or Final Order), to the extent allowed at any time, whether by interim order, procedural order, final order, or otherwise, (the amounts set forth in this clause (iv) being the “Post-Carve-Out Trigger Notice Cap”).
“Cash” means money, currency or a credit balance in any demand or Deposit Account.
“Cash Equivalents” means, as at any date of determination, (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the U.S. Federal Government, or (b) issued by any agency of the U.S., in each case of sub-clauses (a) and (b), the obligations of which are backed by the full faith and credit of the U.S., mature within one year after such date, and have, at the time of the acquisition thereof, a rating of at least A-1 from S&P and at least P-1 from Moody’s; (ii) marketable direct obligations issued by any state of the U.S. or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iii) certificates of deposit or bankers’ acceptances maturing within three months after such date and issued or accepted by Purchaser or by any commercial bank organized under the laws of the U.S. or any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as defined in the regulations of its primary federal banking regulator), and (b) has Tier 1 capital (as defined in such regulations) of not less than $250,000,000; and (iv) shares of any money market mutual fund that (a) has at least 95% of its assets invested continuously in the types of investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than $500,000,000, and (c) has the highest rating obtainable from either S&P or Moody’s.
“Change in Law” means the occurrence, after the date hereof, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or
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application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the U.S. or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means, at any time: (i) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) other than the Warrant Holder or any of its affiliates (a) shall have acquired beneficial ownership or control of 25% or more on a fully diluted basis of (1) the voting interests in the Capital Stock of Company and/or (2) the economic interests in the Capital Stock of Company, or (b) shall have obtained the power (whether or not exercised) to elect a majority of the members of the Board of Directors of Company; or (ii) the majority of the seats (other than vacant seats) on the Board of Directors of Company cease to be occupied by Persons who either (a) were members of the Board of Directors of Company on the Closing Date, or (b) were nominated for election by the Board of Directors of Company, a majority of whom were directors on the Closing Date or whose election or nomination for election was previously approved by a majority of such directors.
“Chapter 11 Cases” as defined in the Recitals hereto.
“Chief Financial Officer” means, as applied to any Person that is an entity, any duly authorized individual natural Person holding the position of chief financial officer or, if approved by Purchaser, any other officer position with similar financial responsibility; provided, that the secretary or assistant secretary of such Person, or another officer of such Person satisfactory to Purchaser, shall have delivered an incumbency certificate to Purchaser verifying the authority of such Authorized Officer.
“Closing Date” means the date this Agreement was executed and the Roll Up DIP Notes were issued and purchased by Purchaser, which occurred on October 2, 2023.
“Closing Date Certificate” means a certificate dated as of the Closing Date as applicable, and substantially in the form of Exhibit F-1.
“Code” means the Internal Revenue Code of 1986, as amended, and any Treasury regulations promulgated thereunder. For the avoidance of doubt, references to specific sections of the Code shall include references to Treasury regulations interpreting such sections.
“Collateral” means, collectively, all of the real, personal and mixed property (including Capital Stock) in which Liens are granted and/or purported to be granted pursuant to the Collateral Documents as security for the Obligations, but excluding, for the avoidance of doubt, Excluded Property
“Collateral Agent” as defined in the preamble hereto.
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“Collateral Documents” means the Orders, the Pledge and Security Agreement, any Intellectual Property Security Agreements, any Mortgages, any Deposit Account Control Agreements, any Securities Account Control Agreements, and all other instruments, documents and agreements that are expressly designated pursuant to their terms to be “Collateral Documents” or are otherwise executed and delivered by or on behalf of any DIP Note Party or any other Person pursuant to this Agreement or any of the other DIP Note Documents in order to grant to, or perfect in favor of, Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed property of that DIP Note Party as security for the Obligations, in each case, as the same may be amended, restated, amended and restated or otherwise modified from time to time.
“Commitment” means the commitment of Purchaser to make or otherwise purchase the DIP Notes. The amount of Purchaser’s Commitment, is set forth on Appendix A-1, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of Commitments as of the Closing Date immediately prior to giving effect to the purchasing of the DIP Notes was $30,000,000, consisting of a $15,000,000 commitment to purchase Roll Up DIP Notes, the “Roll Up Commitment” and a $15,000,000 commitment to purchase New Money DIP Notes, the “New Money Commitment.”
“Company” as defined in the preamble hereto.
“Compliance Certificate” means a certificate of the Chief Financial Officer of Company substantially in the form of Exhibit C.
“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.17(d) and other technical, administrative or operational matters) that the Collateral Agent reasonably decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Collateral Agent in a manner substantially consistent with market practice (or, if the Collateral Agent reasonably decides that adoption of any portion of such market practice is not administratively feasible or if the Collateral Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Collateral Agent decides is reasonably necessary in connection with the administration of this Agreement and the other DIP Note Documents).
“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.
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“Controlled Account” means (a) any Deposit Account of a DIP Note Party that is subject to a Deposit Account Control Agreement, and (b) any Securities Account of a DIP Note Party that is subject to a Securities Account Control Agreement.
“Controlled Entity” means any DIP Note Party’s Controlled Affiliates. As used in this definition, “Control” means the power, directly or indirectly, to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit G delivered by a DIP Note Party pursuant to Section 5.10.
“Credit Date” means the date of the issuance and purchase of DIP Notes.
“Creditors’ Committee” means any official committee of unsecured creditors appointed pursuant to Section 1102 of the Bankruptcy Code in the Chapter 11 Cases.
“Creditors’ Committee Professionals” as defined in the definition of “Carve-Out”.
“Currency Agreement” means any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic cap or other similar agreement or arrangement, each of which is for the purpose of hedging the foreign currency risk associated with Company’s and its Subsidiaries’ operations and not for speculative purposes.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Collateral Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that if the Collateral Agent reasonably decides that any such convention is not administratively feasible for the Collateral Agent, then the Collateral Agent may establish another convention in its reasonable discretion.
“Debtor Professionals” as defined in the definition of “Carve-Out”.
“Debtor Relief Laws” means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the U.S., any state or territory thereof, the District of Columbia or any other applicable jurisdictions.
“Debtors” means the Company and the Guarantors.
“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 2.9.
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“Deposit Account” means any “deposit account” as defined in Article 9 of the UCC.
“Deposit Account Control Agreement” means, with respect to a Deposit Account, an agreement in form and substance reasonably satisfactory to Collateral Agent that (i) is entered into among Collateral Agent, the financial institution or other Person at which such Deposit Account is maintained, and the DIP Note Party maintaining such Deposit Account, and (ii) is effective for Collateral Agent to obtain “control” (within the meaning of Articles 8 and 9 of the UCC) of such Deposit Account.
“DIP Note Documents” means any of this Agreement, the Collateral Documents, the DIP Notes, the Orders and all other documents, certificates, instruments or agreements that are expressly designated pursuant to their terms to be “DIP Note Documents” or are otherwise executed and delivered by or on behalf of a DIP Note Party or any other Person for the benefit of Collateral Agent or Purchaser in connection herewith, excluding, for the avoidance of doubt, the Warrants and any other documents related solely thereto.
“DIP Note Party” means Company, as issuer, and each Guarantor.
“DIP Notes” means the Roll Up DIP Notes and the New Money DIP Notes, as applicable.
“DIP Notes Maturity Date” means the earlier of (i) forty-two (42) calendar days after the Petition Date (the “Scheduled Maturity Date”), (ii) the date that is thirty-five (35) calendar days after the Petition Date if the Final Order has not been entered by the Bankruptcy Court on or before such date; (iii) the date of consummation of any sale of all or substantially all of the assets of any of the Debtors pursuant to section 363 of the Bankruptcy Code; (iv) the occurrence and continuation of an Event of Default not waived by Purchaser; (v) the substantial consummation or effective date of any Chapter 11 plan in the Chapter 11 Cases; (vi) the date the Bankruptcy Court enters an order for the conversion of any of the Chapter 11 Cases of any Debtors to a case under chapter 7 of the Bankruptcy Code; and (vii) dismissal of any of the Chapter 11 Cases of any Debtor; provided that, upon written request of Issuer, the Scheduled Maturity Date may be extended up to fifteen (15) calendar days (or such later date as agreed by Purchaser) in Purchaser’s sole discretion.
“Director” means any natural Person constituting the Board of Directors or an individual member thereof.
“Dispose” means, with respect to any Person, any conveyance, sale, lease (as lessor), license (as licensor), exchange, assignment, transfer or other disposition by such Person of any property or assets (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of Cash, Cash Equivalents, Securities or any other property or assets. For purposes of clarification, “Dispose” shall include (a) the sale or other disposition for value of any contracts, (b) the early termination or modification of any contract by any Person resulting in the receipt by such Person of a Cash payment or other consideration in exchange for such event (other than payments in the ordinary course for previously accrued and unpaid amounts due through the date of termination or modification) or
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(c) any sale of merchant accounts (or any rights thereto (including any rights to any residual payment stream with respect thereto)).
“Disqualified Capital Stock” means any Capital Stock, other than the Warrants, that, by its terms (or by the terms of any other instrument, agreement or Capital Stock into which it is convertible or for which it is exchangeable), or upon the occurrence of any event or condition (i) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of the holder or beneficial owner thereof (other than solely for Capital Stock that is not otherwise Disqualified Capital Stock), in whole or in part, (iii) provides for the scheduled payments of dividends, distributions or other Restricted Junior Payments in cash, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other obligation, instrument, agreement, or Capital Stock that would meet any of the conditions in clauses (i), (ii), or (iii) of this definition, in each case, prior to the date that is one hundred eighty days after the DIP Notes Maturity Date, except, in the case of clauses (i) and (ii), if as a result of a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence of such a change of control or asset sale event are subject to the prior Payment in Full of all Obligations.
“Distribution” as defined in Section 7.7.
“Dollars” and the sign “$” mean the lawful money of the U.S.
“Domestic Subsidiary” means any Subsidiary organized under the laws of the U.S., any state thereof or the District of Columbia.
“Earn Out Obligations” means any obligation or liability consisting of an earnout or similar deferred purchase price that is issued or otherwise incurred as consideration for any acquisition of any property.
“XXXXX System” means the Electronic Data Gathering Analysis and Retrieval System owned and operated by the SEC or any replacement system.
“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA that is or was sponsored, maintained or contributed to by, or required to be contributed by, Company, any of its Subsidiaries or any of their respective ERISA Affiliates.
“Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment.
“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, Governmental Authorizations, or any other requirements of Governmental Authorities relating to (i) environmental matters, including those relating to any Hazardous
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Materials Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous Materials; or (iii) occupational safety and health, industrial hygiene, land use or the protection of human, plant or animal health or welfare, in any manner applicable to Company or any of its Subsidiaries or any Facility.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means, as applied to any Person, (i) any corporation that is a member of a controlled group of corporations within the meaning of Section 414(b) of the Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) that is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Code of which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member. Any former ERISA Affiliate of Company or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of Company or any such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of Company or such Subsidiary and with respect to liabilities arising after such period for which Company or such Subsidiary could be liable under the Code or ERISA.
“ERISA Event” means (i) 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 thirty day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by 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; (iv) the withdrawal by Company, any of its Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to Company, any of its Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition that might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on Company, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or any of their respective 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 potential liability therefor, or the receipt by Company, any of its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission that could give rise to the imposition on Company, any of its Subsidiaries or any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee
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Benefit Plan; (ix) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against Company, any of its Subsidiaries or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; or (xi) the imposition of a Lien pursuant to Section 430(k) of the Code or pursuant to Section 303(k) of ERISA with respect to any Pension Plan.
“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.
“Excluded Accounts” means (i) payroll accounts or employee benefits accounts as long as in the case of payroll accounts, the total amount on deposit at any time does not exceed the current expected amount of payroll obligations of the DIP Note Parties, (ii) zero balance accounts maintained by the DIP Note Parties, as long as any deposits or funds in any such accounts are transferred at least once each Business Day into a Controlled Account (including, for the avoidance of doubt, at any time following the exercise of exclusive control by Collateral Agent under the applicable control agreement with respect to such Controlled Account), (iii) [reserved], (iv) any segregated accounts holding solely Cash collateral for a third party to the extent such Lien is permitted under Section 6.2(n) hereof, the aggregate balance of which shall not at any time exceed 105% of the face value of such obligations and (v) accounts maintained at Xxxxx Fargo Bank, National Association with account numbers 4443331152 and 4121826069; for so long as the aggregate balance in such accounts does not exceed $50,000 for any two (2) consecutive Business Day period.
“Excluded Property” has the meaning set forth in the Pledge and Security Agreement.
“Extraordinary Receipts” means any net Cash proceeds received by or paid for the account of Company or any of its Subsidiaries outside of the ordinary course of such Person’s business and any such payments in respect of purchase price adjustments (excluding working capital adjustments), tax refunds, judgments, settlements for actual or potential litigation or similar claims, pension plan reversions, indemnity payments, payments in respect of Earn Out Obligations or Seller Financing Indebtedness, and similar payments; provided, however, that “Extraordinary Receipts” shall not include (i) proceeds of any indemnity payment to the extent that no Event of Default exists at the time of receipt of such proceeds and such proceeds are promptly (and in any event within five Business Days) used to pay related third party claims and expenses, (ii) proceeds otherwise subject to Sections 2.13(a), 2.13(b) and 2.13(g) or (iii) to the extent any such amounts are (A) immediately payable to a Person that is not an Affiliate of the DIP Note Parties pursuant to an arrangement permitted under this Agreement or (B) received by the DIP Note Party or any of its Subsidiaries as reimbursement for any costs previously incurred or any payment previously made by a DIP Note Party.
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“Facility” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by Company or any of its Subsidiaries.
“FATCA” means (a) Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, (b) any treaty, law, regulation or other official guidance enacted in any jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, with the purpose (in either case) of facilitating the implementation of clause (a) above, or (c) any agreement pursuant to the implementation of clauses (a) or (b) above with the United States Internal Revenue Service, the United States government or any governmental or taxation authority.
“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 on such day, as published by the Federal Reserve Bank of New York on the next Business Day; provided, (i) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the preceding Business Day as so published on the next Business Day, and (ii) if no such rate is so published on such next Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to BSCH.
“Final Order” means a final order of the Bankruptcy Court that, without limitation, authorizes each DIP Note Party’s entry into the DIP Note Documents, the incurrence of the DIP Notes thereunder and grants the Liens and security interests contained herein and therein, which order has not been reversed, vacated, or stayed, and is in form and substance satisfactory to Purchaser.
“Financial Advisor” means Xxxxxxx Consulting, LLC or another advisor acceptable to Collateral Agent in its sole discretion.
“Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the Chief Financial Officer of Company that, as of the date of such certification, such financial statements fairly present, in all material respects, the financial condition of Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments and to the absence of footnotes.
“First Testing Date” as defined in Section 5.1(z).
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of Company and its Subsidiaries ending on March 31 of each calendar year.
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“Flood Certificate” means a “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency and any successor Governmental Authority performing a similar function.
“Flood Program” means the National Flood Insurance Program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004.
“Flood Zone” means areas having special flood hazards as described in the National Flood Insurance Act of 1968.
“Flood Certificate” means a “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency and any successor Governmental Authority performing a similar function.
“Floor” means (a) with respect to Adjusted Term SOFR and any Benchmark Replacement, 1.00% per annum and (b) with respect to the Base Rate, 4.00% per annum.
“Funding Notice” means a notice substantially in the form of Exhibit A.
“GAAP” means, subject to Section 1.2, U.S. generally accepted accounting principles in effect as of the date of determination thereof.
“Xxxxxxx Xxxxx” means Xxxxxxx Xxxxx & Co. LLC.
“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 U.S., the U.S., or a foreign entity or government.
“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority, including each of the Orders.
“Grantor” as defined in the Pledge and Security Agreement.
“Guaranteed Obligations” as defined in Section 7.1.
“Guarantor” means (a) Company, to the extent that Company is not already the primary obligor in respect of any Obligations, (b) each Subsidiary of Company listed on Schedule 1.1(c) and (c) each other Person that guarantees, pursuant to Section 5.10, Section 7.1 or otherwise, all or any part of the Obligations.
“Guarantor Subsidiary” means each Guarantor (other than Company).
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“Guaranty” means (a) the guaranty of each Guarantor set forth in Section 7, and (b) each other guaranty of the Obligations that is made by any other Guarantor in favor of Collateral Agent for the benefit of Secured Parties.
“Hazardous Materials” means any chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Authority or that may or could pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or to the indoor or outdoor environment.
“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.
“Hedge Agreement” means any Interest Rate Agreement, any Currency Agreement, and any other derivative or hedging contract, agreement, confirmation, or other similar transaction or arrangement that is entered into by Company or any of its Subsidiaries, including any commodity or equity exchange, swap, collar, cap, floor, adjustable strike cap, adjustable strike corridor, cross-currency swap or forward rate agreement, spot or forward foreign currency or commodity purchase or sale, listed or over-the-counter option or similar derivative right related to any of the foregoing, non-deliverable forward or option, foreign currency swap agreement, currency exchange rate price hedging arrangement, or other arrangement designed to protect against fluctuations in interest rates or currency exchange rates, commodity, currency, or Securities values, or any combination of the foregoing agreements or arrangements.
“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 Purchaser that are in effect as of the Closing Date or, to the extent allowed by law, under such applicable laws that may be in effect after the Closing Date and allow a higher maximum nonusurious interest rate than applicable laws in effect as of the Closing Date.
“Historical Financial Statements” means as of the Closing Date, the most recent financial statements delivered to the Pre-Petition Purchasers under Sections 5.1(a), 5.1(b) and 5.1(c) of the Pre-Petition Credit Agreement.
“Home Page” means the Company’s corporate home page on the World Wide Web accessible through the Internet via the universal resource locator (URL) identified as xxxx://xxx.xxxxxxxxxxxxxxx.xxx or such other universal resource locator that it shall designate in writing to the Purchaser as its corporate home page on the World Wide Web.
“Immaterial Fee-Owned Properties” means, as of any date of determination, any individual fee-owned Real Estate Asset having a fair market value less than $1,000,000; provided that, notwithstanding the foregoing, (a) if at any time Company and its subsidiaries own, in the aggregate, multiple fee-owned Real Estate Assets that, in the aggregate, have a fair market value in excess of $2,500,000, then Company shall notify Purchaser thereof and Purchaser shall have
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the option, exercisable in its sole discretion, to designate any such Real Estate Assets as Material Real Estate Assets, and (b) any fee-owned Real Estate Asset designated as a Material Real Estate Asset pursuant to clause (iii) of the definition thereof and any fee-owned Real Estate Asset set forth on Schedule 1.1(b) shall not constitute “Immaterial Fee-Owned Properties”.
“Indebtedness” as applied to any Person, means, without duplication, (i) all indebtedness for borrowed money; (ii) Capital Lease Obligations; (iii) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of property or services (excluding any such obligations incurred under ERISA or any trade payable incurred in the ordinary course of business unless (a) more than forty-five (45) days past due, or (b) such obligation is evidenced by a note or a similar written instrument), including any Earn Out Obligations and Seller Financing Indebtedness; (v) 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 nonrecourse to the credit of that Person; (vi) the face amount of any letter of credit or similar instrument issued for the account of (or similar credit transaction entered into for the benefit of) that Person or as to which that Person is otherwise liable for reimbursement of drawings or is otherwise an obligor; (vii) Disqualified Capital Stock, with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price (for purposes hereof, the “maximum fixed repurchase price” of any Disqualified Capital Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Agreement, and as if such price were based upon, or measured by, the fair market value of such Disqualified Capital Stock); (viii) 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; (ix) any obligation of such Person 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; (x) any liability of such Person for an obligation of another through any agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or provide 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 (b) 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 subclauses (a) or (b) of this clause (x), the primary purpose or intent thereof is as described in clause (ix) above; and (xi) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, including under any Hedge Agreement, in each case whether entered into for hedging or speculative purposes or otherwise, provided, the “principal” amount of obligations under any Hedge Agreement that has not been terminated shall be deemed to be the Net Mark-to-Market Exposure of Company and its subsidiaries thereunder.
“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims (including Environmental Claims), actions, judgments, suits, costs (including the costs of any investigation, study, sampling,
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testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or xxxxx any Hazardous Materials Activity), Taxes, expenses and disbursements of any kind or nature whatsoever (including attorneys’ fees and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect, special, or consequential and 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 may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of (i) this Agreement or the other DIP Note Documents or the transactions contemplated hereby or thereby (including the Purchaser’s agreement to purchase any DIP Notes or the use or intended use of the proceeds thereof, or any enforcement of any of the DIP Note Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty)); (ii) any Environmental Claim or Hazardous Materials Activity relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of Company or any of its Subsidiaries and/or (iii) the Chapter 11 Cases.
“Indemnitee” means, each of Collateral Agent, Purchaser and Pre-Petition Purchasers, and each of their respective shareholders, principals, advisors, subsidiaries, affiliates, officers, partners, members, Directors, trustees, employees, agents and sub-agents.
“Indemnitee Agent Party” as defined in Section 9.6.
“Insolvency Proceeding” means, with respect to any DIP Note Party, any (a) case, action or proceeding before any court of Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, (b) general assignment for the benefits of creditors, composition, marshaling of assets for creditors, or (c) similar arrangement in respect of creditors generally or any substantial portion of applicable creditors, in any case , under taken under U.S. federal, state or foreign law.
“Intellectual Property” as defined in the Pledge and Security Agreement.
“Intercompany Note” means a “global” intercompany promissory note and subordination that evidences and subordinates certain Indebtedness and other monetary liabilities owed among DIP Note Parties and their Subsidiaries, substantially in the form of Exhibit I.
“Interest Payment Date” means with respect to (i) any Base Rate DIP Note (a) the last day of each month, commencing on the Closing Date and (b) the final maturity date of such DIP Notes; and (ii) any SOFR Rate DIP Note, the last day of each Interest Period applicable to such DIP Note; provided, in the case of each Interest Period of longer than six months “Interest Payment Date” shall also include each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period.
“Interest Period” means, in connection with any SOFR Rate DIP Note, an interest period of one-, three- or six-months, (in each case, subject to the availability thereof) as selected by Company in the applicable Funding Notice, commencing on October 2, 2023; and thereafter, commencing on (and including) the day on which the immediately preceding Interest Period expires; provided, (a) if an Interest Period would otherwise expire on a day that is not a Business
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Day, such Interest Period shall expire on the next Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month and (c) no tenor that has been removed from this definition pursuant to Section 2.17 shall be available for specification in such Funding Notice.
“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 (i) for the purpose of hedging the interest rate exposure associated with Company’s and its Subsidiaries’ operations, (ii) approved by Purchaser, and (iii) not for speculative purposes.
“Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two U.S. Government Securities Business Days prior to the first day of such Interest Period.
“Interim Order” means an order approved by the Bankruptcy Court entered prior to the date of the Final Order that authorizes each DIP Note Party’s entry into the DIP Note Documents and the incurrence of the DIP Notes thereunder and grants the Liens and security interests contained herein and therein, which order has not been reversed, vacated, or stayed, and is in form and substance satisfactory to Purchaser.
“Investment” means (i) any direct or indirect purchase or other acquisition by Company or any of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person, including the establishment or other creation of a Subsidiary or any other interest in the Securities of any Person; (ii) any direct or indirect redemption, retirement, purchase or other acquisition for value, by any Subsidiary of Company from any Person, of any Capital Stock of such Person; and (iii) any direct or indirect loan, advance (other than advances to employees for customary moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business and consistent with past practice) or capital contributions by Company or any of its Subsidiaries 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 of inventory to that other Person in the ordinary course of business. 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.
“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided, in no event shall any Wholly-Owned Subsidiary of any Person be considered to be a “Joint Venture” to which such Person is a party.
“Leasehold Property” means any leasehold interest of any DIP Note Party as lessee under any lease of real property.
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“Lien” means any mortgage, lien (statutory or other), pledge, hypothecation, assignment, preference, priority, security interest, restrictive covenant, easement, encumbrance or charge (including any conditional sale or other title retention agreement, any sale-leaseback, any financing lease or similar transaction having substantially the same economic effect as any of the foregoing, the filing of any financing statement or similar instrument under the Uniform Commercial Code or comparable law of any other jurisdiction, domestic or foreign, and mechanics’, materialmen’s and other similar liens and encumbrances, as well as any option to purchase, right of first refusal, right of first offer or similar right).
“Majority-in-Interest” means holders of Company’s Capital Stock accounting for 50% or more of the voting power of all of the Capital Stock of Company.
“Margin Stock” as defined in Regulation U.
“Material Adverse Effect” means a material adverse effect on (i) the business operations, properties, assets or financial condition of Company and its Subsidiaries taken as a whole; (ii) the ability of any DIP Note Party to fully and timely perform its Obligations; (iii) the legality, validity, binding effect, or enforceability against a DIP Note Party of a DIP Note Document to which it is a party; (iv) the validity, perfection or priority of a Lien in favor of Collateral Agent for the benefit of Secured Parties on the Collateral, taken as a whole, or (vi) the rights, remedies and benefits available to, or conferred upon, Collateral Agent, Purchaser or any other Secured Party under any DIP Note Document; provided that the filing and administration of the Chapter 11 Cases shall not constitute a Material Adverse Effect.
“Material Contract” means any and all contracts or other arrangements to which Company or any of its Subsidiaries is a party (other than the DIP Note Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect together with those contracts and arrangements that are otherwise listed on Schedule 4.16.
“Material Indebtedness” means Indebtedness (other than the Obligations) of any one or more of Company and its Subsidiaries with an individual principal amount of $250,000 or more or, solely for purposes of Section 8.1(b), that, collectively with any other Indebtedness in respect of which any relevant default or other specified event has occurred, has an aggregate principal amount (or Swap Termination Value) of $500,000 or more.
“Material Real Estate Asset” means any and all of the following: (i) all fee-owned Real Estate Assets other than any Immaterial Fee-Owned Properties, (ii) any Real Estate Asset that Purchaser determines after the Closing Date, in its sole discretion, to be material to the business, operations, properties, assets, condition (financial or otherwise) or prospects of any of Company and its Subsidiaries and designate in writing to be a “Material Real Estate Asset”, and (iii) any Real Estate Asset listed on Schedule 1.1(b).
“Monthly Testing Period” as defined in Section 5.1(z).
“Monthly Variance Report Date” as defined in Section 5.1(z).
“Moody’s” means Xxxxx’x Investors Service, Inc.
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“Mortgage” means a mortgage, dead of trust, or similar instrument in form an substance reasonably acceptable to Collateral Agent.
“Mortgaged Real Estate Documents” means, with respect to each Material Real Estate Asset that is required to be subject to a Mortgage pursuant to this Agreement:
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“Multiemployer Plan” means any Employee Benefit Plan that is a “multiemployer plan” as defined in Section 3(37) of ERISA.
“NAIC” means The National Association of Insurance Commissioners, and any successor thereto.
“Natural Person” means a natural Person or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person.
“Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash payments received by Company or any of its Subsidiaries from such Asset Sale (including any Cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise (including by way of a milestone payment, as applicable), but only as and when so received), minus (ii) any bona fide costs and expenses incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (a) any income or gains taxes payable by Company or any of its Subsidiaries as a result of any gain recognized in connection with such Asset Sale during the tax period in which the sale occurs and sales, transfer and other similar taxes payable in connection with such Asset Sale, (b) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness that is secured by Permitted Priority Liens (other than Pre-petition Security Interest and Primed Liens) 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, (c) amounts deposited in escrow pursuant to the terms of the agreement governing such Asset Sale (only to the extent such proceeds remain in escrow) and (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 Company or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds.
“Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or proceeds received by Company or any of its Subsidiaries (a) under any casualty, business interruption or “key man” insurance policies in respect of any covered loss thereunder, less any applicable taxes payable with respect thereto or (b) as a result of the taking of any assets of Company or any of its Subsidiaries 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 reasonable costs incurred by Company or any of its Subsidiaries in connection with the adjustment or settlement of any claims of Company or such Subsidiary in respect thereof, and (b) any bona fide costs and expenses incurred in connection with any sale of such assets as referred to in clause (i)(b) of this definition to the extent paid or payable to non-Affiliates, including any income or gains taxes payable by Company
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or any of its Subsidiaries as a result of any gain recognized in connection therewith during the tax period the Cash payments or proceeds are received.
“Net Mark-to-Market Exposure” of a Person means, as of any time of determination, the excess (if any) of all unrealized losses over all unrealized profits of such Person arising from Hedge Agreements or other Indebtedness of the type described in clause (xi) of the definition thereof. As used in this definition, “unrealized losses” means the fair market value of the cost to such Person of replacing such Hedge Agreement or such other Indebtedness as of the date of determination (assuming the Hedge Agreement or such other Indebtedness were to be terminated as of that date), and “unrealized profits” means the fair market value of the gain to such Person of replacing such Hedge Agreement or such other Indebtedness as of the time of determination (assuming such Hedge Agreement or such other Indebtedness were to be terminated as of that time).
“New Money Additional DIP Notes” as defined in Section 2.1(b)(ii).
“New Money Commitment” as defined in definition of “Commitment”.
“New Money DIP Notes” means the New Money Initial DIP Notes and the New Money Additional DIP Notes.
“New Money Initial DIP Notes” as defined in Section 2.1(b)(i).
“Non-U.S. Purchaser” as defined in Section 2.19(c).
“Notice” means a Funding Notice.
“Obligations” means all obligations (whether now existing or hereafter arising, absolute or contingent, joint, several, or independent), including for the avoidance of doubt, the Guaranteed Obligations, of every nature of each DIP Note Party from time to time owed to Collateral Agent, Purchaser or any of them, under any DIP Note Document, whether for principal, interest (including interest that, but for the filing of an Insolvency Proceeding with respect to such DIP Note Party, would have accrued on any Obligation, whether or not a claim is allowed against such DIP Note Party for such interest in the related Insolvency Proceeding), fees, expenses, indemnification or otherwise.
“Obligee Guarantor” as defined in Section 7.7.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury and any successor Governmental Authority.
“Operating Lease Liabilities” means (i) prior to the effectiveness of FASB ASC 842 as applied to any Person, all obligations of such Person that are or would be characterized as operating lease obligations of such Person in accordance with GAAP without giving effect to FASB ASC 842, and (ii) after the effective date of FASB ASC 842 as applied to any Person, all operating lease liabilities (within the meaning of FASB ASC 842) of such Person, whether or not such liabilities are required to be capitalized and reflected as a liability on a balance sheet of such Person prepared in accordance with GAAP.
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“Orders” means, collectively, the Interim Order and the Final Order.
“Organizational Documents” means (i) with respect to any corporation or company, its certificate, memorandum, or articles of incorporation or organization, and its by-laws, (ii) with respect to any limited partnership, its certificate or declaration of limited partnership and its partnership agreement, (iii) with respect to any general partnership, its partnership agreement, and (iv) with respect to any limited liability company, its articles of organization and its operating agreement. In the event any term or condition of this Agreement or any other DIP Note 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 Taxes” means any and all present or future stamp, court, intangible, recording, filing or documentary, excise, property or similar Taxes arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other DIP Note Document.
“Paid in Full” and “Payment in Full” mean, with respect to any or all of the Obligations that each of the following events has occurred, as applicable: (a) the payment or repayment in full in immediately available funds of (i) the principal amount of all outstanding DIP Notes, (ii) all accrued and unpaid interest, fees, premiums or other charges owing in respect of any DIP Note or Commitment or otherwise under any DIP Note Document, and (iii) all accrued and unpaid costs and expenses payable by any DIP Note Party to Collateral Agent or Purchaser pursuant to any DIP Note Document, whether or not demand has been made therefor (limited, in the case of indemnification and reimbursement claims to those claims that have been asserted by any such Person prior to such time), (b) the payment or repayment in full in immediately available funds or all other outstanding Obligations or Guaranteed Obligations other than unasserted contingent indemnification and contingent reimbursement obligations and (c) the termination in writing of all of the Commitments.
“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001).
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, that is subject to Section 412 of the Code or Section 302 of ERISA.
“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.
“Permitted Priority Liens” means valid, enforceable, non-avoidable and perfected Liens in existence on the Petition Date (including valid Liens in existence on the Petition
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Date that are perfected after the Petition Date as permitted by Section 546(b) of the Bankruptcy Code).
“Permitted Variances” means, as of each Variance Report Date, aggregate disbursements for operating disbursements of not more than 110% of the aggregate disbursement amounts for such items set forth for such Testing Period in the Approved Budget. “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.
“Petition Date” as defined in the Recitals hereto.
“Platform” as defined in Section 10.1(b).
“Pledge and Security Agreement” means the Pledge and Security Agreement dated as of the Closing Date, executed by Company and each Guarantor in favor of the Collateral Agent for the benefit of the Secured Parties, as it may be amended, restated, supplemented or otherwise modified from time to time.
“Post-Carve-Out Trigger Notice Cap” as defined in the definition of “Carve-Out”.
“Pre-Funding Notes” as defined in the Pre-Petition Notes Purchase Agreement.
“Pre-Funding Roll Up DIP Notes” as defined in Section 2.1(a)(ii).
“Pre-Petition Collateral” means, collectively, the “Collateral” (as defined in the Pre-Petition Note Purchase Agreement) in existence on the Petition Date and all products and proceeds thereof, in any case, securing the Pre-Petition Obligations.
“Pre-Petition Note Documents” as defined in the Recitals hereto.
“Pre-Petition Note Purchase Agent” as defined in the Recitals hereto.
“Pre-Petition Note Purchase Agreement” as defined in the Recitals hereto.
“Pre-Petition Obligations” means all “Obligations” as defined in the Pre-Petition Note Purchase Agreement.
“Pre-Petition Obligation Roll Up DIP Notes” as defined in section 2.1(a)(ii).
“Pre-Petition Security Interests” means the Liens on and security interests in the Pre-Petition Collateral securing the Pre-Petition Obligations.
“Pre-Petition Purchasers” as defined in the Recitals hereto.
“Prime Rate” means the rate of interest quoted in the print edition of The Wall Street Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on
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corporate loans posted by at least 75% of the nation’s thirty largest banks), as in effect from time to time, or, if such source or rate is unavailable, any replacement or successor source or rate as determined by Purchaser. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Purchaser may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.
“Primed Liens” as defined in Section 2.24(a)(iii).
“Professional Persons” as defined in the definition of “Carve-Out”.
“Property” means any interest (including any leasehold or similar interest) in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, including, without limitation, Cash, securities, accounts and contract rights.
“Purchaser” means the financial institution listed on the signature pages hereto as a Purchaser.
“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock.
“Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any DIP Note Party in any real property.
“Register” as defined in Section 2.6(b).
“Regulation D” means Regulation D of the Board of Governors and all official rulings and interpretations thereunder or thereof.
“Regulation T” means Regulation T of the Board of Governors and all official rulings and interpretations thereunder or thereof.
“Regulation U” means Regulation U of the Board of Governors and all official rulings and interpretations thereunder or thereof.
“Regulation X” means Regulation X of the Board of Governors and all official rulings and interpretations thereunder or thereof.
“Related Parties” means any of the officers, directors, employees, agents, attorneys, representatives, subsidiaries, Affiliates or shareholders of a Person.
“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.
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“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Remedies Notice” as defined in Section 8.1.
“Remedies Notice Period” as defined in Section 8.1.
“Replacement Liens” as defined in the Interim Order or, following entry of the Final Order, the Final Order.
“Required Prepayment Date” as defined in Section 2.14(c).
“Restricted Junior Payment” means (i) any dividend, other distribution, or liquidation preference, direct or indirect, on account of any shares of any class of Capital Stock of Company or any of its Subsidiaries now or hereafter outstanding, except a dividend payable solely in shares of that class of Capital Stock (other than any Disqualified Capital Stock) to the holders of that class; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of Company or any of its Subsidiaries (or any direct or indirect parent thereof) now or hereafter outstanding; (iii) 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 Company or any of its Subsidiaries (or any direct or indirect parent thereof) now or hereafter outstanding, excluding any such payment in respect of the Warrants; and (iv) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any Subordinated Indebtedness or any Earn Out Obligations or Seller Financing Indebtedness.
“Roll Up Commitment” as defined in the definition of “Commitment”.
“Roll Up DIP Notes” as defined in Section 2.1(a)(ii).
“S&P” means S&P Global Ratings, or any successor to its rating agency business.
“Sale Transaction” means any transaction pursuant to which (a) Company sells or disposes (in one or a series of related sales or dispositions) of all or substantially all of the assets of Company on a consolidated basis (other than inventory in the ordinary course of business), including any sale or disposition of the securities or assets of the Subsidiaries of Company, (b) Company engages in any merger, consolidation, combination or similar transaction, (in one or a series of related transactions), such that the Majority-in-Interest immediately prior to the transaction or transactions will, immediately after such transaction or transactions, no longer constitute the Majority-in-Interest, or (c) any other transaction constituting a Change of Control.
“Sanctioned Country” means, at any time, a country, territory or region that is, or whose government is, the subject or target of any Sanctions, including, as of the Closing Date, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, Kherson, Luhansk, and Zaporizhzhia regions of Ukraine.
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“Sanctioned Person” means, at any time, any Person with whom dealings are restricted or prohibited under Sanctions, including (i) any Person listed in any Sanctions-related list of designated Persons maintained by the U.S. (including by OFAC, the U.S. Department of the Treasury, or the U.S. Department of State), or by the United Nations Security Council, the European Union or any EU member state, His Majesty’s Treasury of the United Kingdom or any other relevant sanctions authority, (ii) any Person located, operating, organized or resident in a Sanctioned Country or (iii) any Person owned or controlled, directly or indirectly, by any such Person described in clause (i) or (ii) of this definition.
“Sanctions” means sanctions or trade embargoes enacted, imposed, administered or enforced from time to time by (i) the U.S. government, including those administered by OFAC, U.S. Department of State, or U.S. Department of Commerce, (ii) the United Nations Security Council, the European Union or any of its member states, His Majesty’s Treasury of the United Kingdom, or (iii) any other relevant sanctions authority.
“Scheduled Maturity Date” as defined in definition of “DIP Notes Maturity Date”.
“Section 382 Ownership Shift” means on any day on which Company undergoes an “owner shift”, the aggregate increase in the percentage of Company’s stock owned by each “5-percent shareholder” over the lowest percentage of Company’s stock owned by such shareholder at any time during the “testing period.” For these purposes, the terms “owner shift,” “5-percent shareholder” and “testing period,” shall have the meanings accorded them under section 382 of the Code, and this clause shall be interpreted consistently with the intent of Company and Purchaser to avoid an “ownership change” of Company, within the meaning of section 382(g)(1) of the Code. The determination of the size of the Section 382 Ownership Shift shall be made by Purchaser in good faith and in accordance with the principles of the preceding sentence, after reasonable consultation with Company.
“Secured Parties” as defined 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, 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, including any Capital Stock and Hedge Agreements or other derivatives.
“Securities Account” means any “securities account” as defined in Article 8 of the UCC and any “commodity account” as defined in Article 9 of the UCC.
“Securities Account Control Agreement” means, with respect to a Securities Account, an agreement in form and substance reasonably satisfactory to Collateral Agent that (i) is entered into among Collateral Agent, the Securities Intermediary at which the applicable Securities Account is maintained, and the DIP Note Party having rights in or to the underlying financial assets credited to or maintained in such Securities Account, and (ii) is effective for
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Collateral Agent to obtain “control” (within the meaning of Articles 8 and 9 of the UCC) of such Securities Account.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.
“Securities Intermediary” means any “securities intermediary” or “commodity intermediary” as such terms are defined in the UCC.
“Seller Financing Indebtedness” means any obligation or liability consisting of fixed deferred purchase price, installment payments, or promissory notes that, in each case, is issued or otherwise incurred as consideration for any acquisition of any property.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Rate DIP Note” means a DIP Note that bears interest at a rate determined by reference to Adjusted Term SOFR, other than pursuant to clause (iii) of the definition of “Base Rate.”
“Subordinated Indebtedness” means any Indebtedness that is contractually or structurally subordinated in payment or lien ranking to the Obligations or related Liens.
“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 or appointment of the Person or Persons (whether directors, 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.
“Superpriority Claim” as defined in Section 2.24.
“Swap Termination Value” means, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include Purchaser or any Affiliate).
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“Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding (together with interest, penalties and other additions thereto) of any nature and whatever called, imposed, levied, collected, withheld or assessed by any Governmental Authority; provided, “Tax on the overall net income” of a Person shall be construed as a reference to a tax imposed on all or part of the overall net income (whether worldwide, or only insofar as such overall net income is considered to arise in or to relate to a particular jurisdiction, or otherwise), a franchise Tax, and a branch profits Tax of that Person (and/or, in the case of Purchaser, its applicable investment office) by the jurisdiction in which that Person is organized or in which that Person’s applicable principal office (and/or, in the case of Purchaser, its investment office) is located.
“Term SOFR” means,
| a) | for any calculation with respect to a SOFR Rate DIP Note, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and |
| b) | for any calculation with respect to a Base Rate DIP Note on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day; provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor. |
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“Term SOFR Adjustment” means, for any calculation with respect to a Base Rate DIP Note or SOFR Rate DIP Note, a percentage per annum as set forth below for the applicable type of such DIP Note and (if applicable) Interest Period therefor:
Base Rate DIP Notes:
0.11448% |
SOFR Rate DIP Notes:
Interest Period | Percentage |
One Month | 0.11448% |
Three Months | 0.26161% |
Six Months | 0.42826% |
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by BSCH in its reasonable discretion).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Testing Date” as defined in Section 5.1(z).
“Testing Period” means a Weekly Testing Period or a Monthly Testing Period, as applicable.
“Title Policy” as defined in the definition of Mortgaged Real Estate Documents.
“TSA” means that certain Transaction Support Agreement, dated September 28, 2023 by and among the Debtors on the one hand and Purchaser, on the other hand, as amended, restated, amended and restated or otherwise modified from time to time in accordance therewith.
“UCC” means the Uniform Commercial Code (or any similar or equivalent statute or law) as in effect in any applicable jurisdiction.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
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“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Purchaser” as defined in Section 2.19(c).
“U.S. Tax Compliance Certificate” means a certificate substantially in the form of one of Exhibits E-1, E-2, E-3 or E-4, as applicable.
“U.S. Trustee” means the Office of the United States Trustee for the District of Delaware.
“Variance Report Dates” as defined in Section 5.1(aa).
“Waivable Mandatory Prepayment” as defined in Section 2.14(c).
“WARN” as defined in Section 4.19.
“Warrant Holder” means Xxxxxxx Xxxxx & Co. LLC.
“Warrants” means, collectively, that certain Purchase Warrant for Common Shares, dated as of February 4, 2019, as defined in the Pre-Petition Note Purchase Agreement, issued by Company to the Warrant Holder.
“Weekly Variance Report Date” as defined in Section 5.1(z).
“Wholly-Owned” means, in reference to any Subsidiary of a specified Person, that 100% of the Capital Stock of such Subsidiary (other than (x) Directors’ qualifying shares and (y) shares issued to foreign nationals to the extent required by applicable law) is owned, directly or indirectly, by such Person and/or one or more of such specified Person’s other Subsidiaries that also qualify as Wholly-Owned Subsidiaries under this definition.
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historical transaction or if and to the extent that such basket or exception was relied upon for any later transaction. Notwithstanding any other provision contained herein and any change in GAAP after the date hereof, any lease that would be treated as an operating lease for purposes of GAAP as of the Closing Date (whether such lease is entered into before or after the Closing Date) shall continue to be treated as an operating lease and shall not constitute Indebtedness or a Capital Lease Obligation of Company or any Subsidiary under this Agreement and the other DIP Note Documents. When used herein, the term “financial statements” shall be construed to include all notes and schedules thereto. Whenever the term “Company” is used in respect of a financial covenant or a related definition, it shall be construed to mean “Company and its Subsidiaries on a consolidated basis” unless the context clearly requires otherwise. Except as otherwise provided therein, this Section 1.2 shall apply equally to each other DIP Note Document as if fully set forth therein, mutatis mutandis.
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time, in each case in accordance with the express terms of this Agreement and any other relevant DIP Note Document unless such reference is expressly limited to refer to such agreement, instrument, or other document “as in effect on” a specified date. Unless otherwise expressly stated, if a Person may not take an action under this Agreement, then it may not take that action indirectly, or take any action assisting or supporting any other Person in taking that action directly or indirectly. “Taking an action indirectly” means taking an action that is not expressly prohibited for the Person but is intended to have substantially the same effects as the prohibited action. Except as otherwise provided therein, this Section 1.3 shall apply equally to each other DIP Note Document as if fully set forth therein, mutatis mutandis.
| Section 2 | DIP NOTES |
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Subject to Section 2.13, all amounts owed hereunder shall be Paid in Full no later than the DIP Notes Maturity Date.
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interest in any proceeding under any Debtor Relief Laws) payable on demand at a rate that is 2.00% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable SOFR Rate DIP Notes. Payment or acceptance of (x) the increased rates of interest provided for in this Section 2.9 or (y) any amount of interest that is less than the amount due, in each case 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 Purchaser.
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first, to the payment of all fees other than any premium, and all expenses specified in Section 10.2, in each case to the full extent thereof;
second, to the payment of any accrued interest at the Default Rate, if any;
third, to the payment of any accrued interest (other than Default Rate interest);
fourth, to the payment of the applicable premium, if any, on any DIP Note;
fifth, except in connection with any Waivable Mandatory Prepayment as provided in Section 2.14(c), to prepay the Roll Up DIP Notes on a pro rata basis (in accordance with the respective outstanding principal amounts thereof);
and sixth, except in connection with any Waivable Mandatory Prepayment as provided in Section 2.14(c), to prepay the Roll Up DIP Notes on a pro rata basis (in accordance with the respective outstanding principal amounts thereof);
seventh, to payment of any remaining Obligations then due and payable.
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(i)Collateral Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof, or
(ii)the Purchaser determines that for any reason in connection with any request for a SOFR Rate DIP Note that Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Rate DIP Note does not adequately and fairly reflect the cost to Purchaser of making and maintaining such DIP Note, and Purchaser has provided notice of such determination to Collateral Agent,
Collateral Agent will promptly so notify Company and Purchaser.
Upon notice thereof by Collateral Agent to Company, any obligation of Purchaser to make SOFR Rate DIP Notes shall be suspended (to the extent of the affected SOFR Rate DIP Notes or affected Interest Periods) until Collateral Agent (with respect to clause (ii), at the instruction of Purchaser)
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revokes such notice. Upon receipt of such notice, (i) Company may revoke any pending request for a borrowing of SOFR Rate DIP Notes (to the extent of the affected SOFR Rate DIP Notes or affected Interest Periods). Subject to clause (b), if Collateral Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate DIP Notes shall be determined by Collateral Agent without reference to clause (iii) of the definition of “Base Rate” until Collateral Agent revokes such determination.
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“The sale of this Senior Secured DIP Note has not been and will not be registered under the United States Securities Act 1933 (the “Securities Act”) or with any securities regulatory authority of any state or other jurisdiction of the United States. The holder hereof, by purchasing or otherwise acquiring this security, acknowledges that the sale of this security has not been registered under the Securities Act. The holder agrees for the benefit of Company, any distributors or dealers and any such persons’ affiliates that this security may be offered, resold, pledged or otherwise transferred only in compliance with the Securities Act and any applicable state securities laws and only (1) pursuant to Rule 144 under the Securities Act or (2) pursuant to another exemption from registration under the Securities Act, and in each case in accordance with any applicable securities laws of the states of the United States and other jurisdictions.”
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| Section 3 | CONDITIONS PRECEDENT |
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| Section 4 | REPRESENTATIONS AND WARRANTIES |
In order to induce Collateral Agent and Purchaser to enter into this Agreement and to purchase the DIP Notes, each DIP Note Party represents and warrants to Collateral Agent and Purchaser, on the Closing Date and on each Credit Date, that the following statements are true and correct:
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Schedule 4.2 correctly sets forth the ownership interest of Company and each of its Subsidiaries in their respective Subsidiaries as of the Closing Date.
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As of the Closing Date, neither Company nor any of its Subsidiaries has any contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the Historical Financial Statements or the notes thereto and that in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company and any of its Subsidiaries taken as a whole.
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existence or threatened involving Company or any of its Subsidiaries, and (c) to the best knowledge of Company, no union representation question existing with respect to the employees of Company or any of its Subsidiaries and, to the best knowledge of Company, no union organization activity that is taking place, except (with respect to any matter specified in clause (a), (b) or (c) above, either individually or in the aggregate) such as is not reasonably likely to have a Material Adverse Effect. No DIP Note Party has incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act (“WARN”) or any similar federal or state law that remains unpaid or unsatisfied and could reasonably be expected to result in a Material Adverse Effect.
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| Section 5 | AFFIRMATIVE COVENANTS |
Each DIP Note Party covenants and agrees that until Payment in Full of all Obligations, each DIP Note Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 5.
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foregoing, Company will maintain or cause to be maintained (a) [reserved] and (b) replacement value 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. Each such policy of insurance shall (i) in the case of each liability insurance policy, name Collateral Agent, for the benefit of Secured Parties, as an additional insured thereunder as its interests may appear, (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement, satisfactory in form and substance to Collateral Agent, that names Collateral Agent, for the benefit of Secured Parties as the loss payee thereunder, and (iii) in each case, provide for at least thirty days’ prior written notice to Collateral Agent of any modification or cancellation of such policy.
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replacements or proceeds thereof or with respect to any other property or assets hereafter acquired by Company or any Subsidiary that may be deemed to be part of the Collateral). In furtherance and not in limitation of the foregoing, each DIP Note Party shall take such actions as Purchaser or Collateral Agent may reasonably request from time to time to ensure that the Obligations are guaranteed by the Guarantors and are secured by a Lien described in, and with the priority provided in, Section 2.24, on substantially all of the assets of Company that would constitute Collateral, and its Subsidiaries and all of the outstanding Capital Stock of Company and each of its Subsidiaries (subject to limitations contained in the DIP Note Documents with respect to Subsidiaries that are not Domestic Subsidiaries). Notwithstanding anything to the contrary contained herein, (A) in no event shall Mortgages be required to be delivered in respect of any leasehold interest held by Company or any of its Subsidiaries in any Real Estate Asset and (B) in no event shall actions (including any filings or registrations) outside of the United States or security or pledge agreements governed by any foreign law be required.
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commingle its funds or assets with those of any other entity that is an Affiliate of such entity; and (c) provide that its Board of Directors will hold all appropriate meetings to authorize and approve such entity’s actions, which meetings will be separate from those of other entities.
| Section 6 | NEGATIVE COVENANTS |
Each DIP Note Party covenants and agrees that until Payment in Full of all Obligations, such DIP Note Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 6.
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Notwithstanding anything in this Section 6.2 to the contrary, in no event shall any obligations of any DIP Note Party under any Hedge Agreement be secured by any Lien.
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the foregoing, this covenant shall not be construed as a consent by Purchaser to the creation or assumption of any such Lien not otherwise permitted hereby.
For the avoidance of doubt, no amount shall be permitted to be distributed by any DIP Note Party to pay, or otherwise in connection with, any Tax resulting from the cancellation or discharge of Indebtedness.
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Notwithstanding anything in this Section 6.7 to the contrary, in no event shall any DIP Note Party make any Investment that results in or facilitates in any manner any Restricted Junior Payment.
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| Section 7 | GUARANTY |
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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 (a) any right of subrogation, reimbursement or indemnification that such Guarantor now has or may hereafter have against any other DIP Note Party 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 any other DIP Note Party, 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 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. 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 Company 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 any DIP Note Party, 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 Paid in Full, such amount shall be held in trust for the benefit of Beneficiaries and shall forthwith be paid over to of Beneficiaries to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.
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| Section 8 | EVENTS OF DEFAULT |
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THEN, (1) upon the occurrence of any Event of Default, and at any time thereafter, subject to the Orders, the automatic stay provisions of Section 362 of the Bankruptcy Code shall be vacated and modified solely to the extent necessary to permit Collateral Agent and Purchaser to exercise their remedies under the Orders and the DIP Note Documents, and Collateral Agent may, and at the request of (or with the consent of) Purchaser shall, upon notice to Company take any or all of the following actions, at the same time or different times, in any case, without further order of or application or motion to the Bankruptcy Court: (i) (A) deliver a notice of an Event of Default to the DIP Note Parties (the “Remedies Notice”) and file the Remedies Notice on the docket of the Bankruptcy Court; (B) terminate the DIP Note Commitments, and thereupon such DIP Note Commitments shall terminated immediately; and (C) declare the DIP Notes then outstanding to be immediately due and payable, and thereupon the principal of the DIP Notes so declared to be due and payable, together with all accrued but unpaid interest thereon and all fees and other Obligations of the DIP Note Parties accrued hereunder, shall become due and payable immediately, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by each DIP Note Party and (ii) subject to five (5) Business Days’ prior written notice (which may be delivered by electronic mail) by Collateral Agent to Company, Company’s counsel, counsel to the Creditors’ Committee, if any, and the U.S. Trustee thereof (the “Remedies Notice Period”), to exercise all rights and remedies provided for in the DIP Note Documents or at law, including (x) foreclose upon all of the Collateral, including freezing Cash collateral held in any of the DIP Note Parties’ accounts, (y) immediately set off any and all amounts in accounts maintained by the DIP Note Parties against the Obligations, or otherwise enforce any and all rights against the Collateral in its possession or otherwise, including, without limitation, disposition of the Collateral and application of the net cash proceeds thereof to satisfaction of the Obligations, and (z) take any other actions or exercise any other rights or remedies available to it under the Orders, any DIP Note Document or under applicable law. Following delivery of seventy-two (72) hours written notice by Collateral Agent to Company (the “Cash Collateral Notice Period”), subject to the Carve-Out, Collateral Agent may, and at the request of (or with the consent of) Purchaser shall, cease to permit the DIP Note Parties’ continued use of any Cash collateral; provided that, during the Cash Collateral Notice Period, the DIP Note Parties shall be permitted to use Cash collateral in accordance with the Interim Order (or the Final Order, when applicable) and the Approved Budget. During the Remedies Notice Period, the DIP Note Parties are prohibited from requesting any further draws.
Upon the occurrence of an Event of Default, subject to the Orders, Collateral Agent may, and at the direction of Purchaser shall, exercise any rights and remedies provided to Collateral Agent under the DIP Note Documents or at law or equity, including under any applicable law of the jurisdiction where any Collateral is located. Each of the DIP Note Parties shall cooperate with Collateral Agent and Purchaser in their exercise of rights and remedies, whether against the Collateral or otherwise, including, without limitation, by taking any steps or executing any documentation as the Collateral Agent deems necessary to enforce the Liens on any Collateral in any jurisdiction. Without limiting the obligations of any DIP Note Party hereunder in any respect, subject to the terms of the Orders, each DIP Note Party further agrees that if an Event of Default shall have occurred and be continuing and it, or any of its Subsidiaries, should fail or refuse for
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any reason whatsoever to execute and file any completed application necessary or appropriate to obtain any consent from any Governmental Authority necessary or appropriate for the exercise of any right of Collateral Agent hereunder, then such application may be executed and filed on such DIP Note Party’s behalf by the clerk of any court of competent jurisdiction without notice to such DIP Note Party pursuant to court order.
| Section 9 | COLLATERAL AGENT |
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Agreement or the other DIP Note Documents, 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, Purchaser shall not 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. 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, further, this sentence shall not be deemed to require Purchaser 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
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The Secured Parties hereby irrevocably authorize Collateral Agent, at the direction of Purchaser, to credit bid all or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar laws in any other jurisdictions to which a Note Party is subject or (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) Collateral Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Capital Stock or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (i) Collateral Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by Collateral Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Capital Stock thereof shall be governed, directly or indirectly, by the vote of Purchaser, irrespective of the termination of this Agreement), (iii) Collateral Agent shall be authorized to assign the relevant Obligations to any such acquisition vehicle to Purchaser, as a result of which Purchaser shall be deemed to have received any Capital Stock and/or debt instruments issued by such an acquisition vehicle on account of the assignment of the Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any further action, and (iv) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to Purchaser and the Capital Stock and/or debt instruments issued by any acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
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| Section 10 | MISCELLANEOUS |
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documents prepared in connection herewith or therewith and in connection with any transaction contemplated hereby or thereby; (d) all the reasonable documented out-of-pocket costs and expenses of counsel and other advisors or professionals to Collateral Agent, including but not limited to Xxxxxx Xxxxxxxx Xxxxx &Hamilton LLP and Deloitte Transactions and Business Analytics LLP, in connection with the negotiation of, preparation of, execution of, administration of and enforcement of rights and remedies with respect to, the DIP Note Documents and any consents, amendments, waivers or other modifications thereto and any other documents or matters requested by Company, including without limitation, on account of due diligence therefor and negotiations thereof; (e) all of Collateral Agent’s costs of furnishing all opinions by counsel for Company and the other DIP Note Parties; (f) all the reasonable, documented, out-of-pocket costs and expenses of searching, creating, perfecting, recording, filing, maintaining, and preserving 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 Collateral Agent and of counsel providing any opinions that Collateral Agent or Purchaser may request in respect of the Collateral or the Liens created pursuant to the Collateral Documents; (g) Collateral Agent’s actual costs and reasonable and documented fees, expenses, and disbursements of any auditors, accountants, consultants or appraisers’; (h) all the actual costs and reasonable and documented expenses (including the reasonable and documented fees, expenses and disbursements of any appraisers, consultants, advisors and agents employed or retained by Collateral Agent and its counsel) in connection with the custody or preservation of any of the Collateral; (i) all other actual and reasonable and documented costs and expenses incurred by Agent in connection with the transactions contemplated by the DIP Note Documents and any consents, amendments, waivers or other modifications thereto; (j) all of Purchaser’s and Collateral Agent’s reasonable, documented out-of-pocket costs and expenses incurred in connection with the Chapter 11 Cases; and (k) after the occurrence of a Default or an Event of Default, all costs and expenses, including reasonable and documented attorneys’ fees (including allocated costs of internal counsel) and costs of settlement, incurred by Collateral Agent and Purchaser in enforcing or preparing for enforcement of any Obligations of or in collecting or preparing to collect any payments due from any DIP Note Party hereunder or under the other DIP Note Documents by reason of such Default or Event of Default (including in connection with any actual or prospective sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty) or in connection with any actual or prospective refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work out” or pursuant to or in contemplation of any insolvency or bankruptcy cases or proceedings (including the Chapter 11 Cases), including the engagement of a restructuring advisor or consultant satisfactory to Purchaser in its sole discretion.
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Section 10.4 are in addition to other rights and remedies (including other rights of set off) that Purchaser or its Affiliates may otherwise have.
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effect of which comes as close as reasonably possible to that of the invalid, illegal or unenforceable provisions.
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OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (V) AGREES THAT AGENTS, AND PURCHASER RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY DIP NOTE PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY DIP NOTE DOCUMENT OR AGAINST ANY COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.
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accordance with this Section 10.17), (ii) disclosures of such information reasonably required by any potential or prospective assignee or transferee in connection with the contemplated assignment or transfer of any DIP Notes or by any direct or indirect contractual counterparties (or the professional advisors thereto) to any swap or derivative transaction relating to any DIP Note Party and its obligations (provided, such assignees, transferees, counterparties and advisors are advised of and agree to be bound by either the provisions of this Section 10.17 or other substantially similar confidentiality restrictions), (iii) disclosure on a confidential basis to any rating agency when required by it,(iv) disclosure on a confidential basis to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the DIP Notes, (v) disclosures in connection with the exercise of any remedies hereunder or under any other DIP Note Document or any action or proceeding relating to this Agreement or any other DIP Note Document or the enforcement of rights hereunder or thereunder, (vi) disclosures made pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law or compulsory legal process (in which case such Person agrees to inform Company promptly thereof to the extent not prohibited by law), (vii) disclosures made upon the request or demand of any regulatory or quasi-regulatory authority (including the NAIC) purporting to have jurisdiction over such Person or any of its Affiliates, (viii) disclosure to any Purchaser’s financing sources; provided that prior to any disclosure such financing source is informed of the confidential nature of the information, (ix) disclosure to rating agencies and (x) disclosures with the consent of the relevant DIP Note Party. Notwithstanding the foregoing, on or after the Closing Date, Xxxxxxx Xxxxx Specialty Lending Group, L.P. 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 DIP Note Parties) (collectively, “Trade Announcements”). No DIP Note Party shall (a) issue any Trade Announcement, (b) use or reference in advertising, publicity, or otherwise the name of Xxxxxxx Xxxxx, Purchaser or any of their respective Affiliates, partners, or employees, or (c) represent that any product or any service provided has been approved or endorsed by Xxxxxxx Xxxxx, Purchaser, or any of their respective Affiliates, except (i) disclosures required by applicable law, regulation, legal process or the rules of the Securities and Exchange Commission or (ii) with the prior approval of Purchaser.
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Accordingly, if Purchaser contracts for, charges, or receives any consideration that constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at Purchaser’s option be applied to the outstanding amount of the DIP Notes issued hereunder or be refunded to Company. In determining whether the interest contracted for, charged, or received by Purchaser 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 and (b) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest, throughout the contemplated term of the Obligations hereunder.
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fiduciary or agency relationship or fiduciary or other implied duty between Purchaser, on the one hand, and such DIP Note Party, its equity holders or its affiliates, on the other. The DIP Note Parties acknowledge and agree that (i) the transactions contemplated by the DIP Note Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between Purchaser, on the one hand, and the DIP Note Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) Purchaser has not assumed an advisory or fiduciary responsibility in favor of any DIP Note Party, its equity holders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether Purchaser has advised, is currently advising or will advise any DIP Note Party, its equity holders or its Affiliates on other matters) or any other obligation to any DIP Note Party except the obligations expressly set forth in the DIP Note Documents and (y) Purchaser is acting solely as principal and not as the agent or fiduciary of any DIP Note Party, its management, stockholders, creditors or any other Person. Each DIP Note Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each DIP Note Party agrees that it will not claim that Purchaser has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such DIP Note Party, in connection with such transaction or the process leading thereto.
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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.
CAPSTONE GREEN ENERGY CORPORATION
By:/s/ Xxxx Xxxxx ________________________
Name: Xxxx Xxxxx
Title: Chief Financial Officer
CAPSTONE TURBINE INTERNATIONAL, INC.
By:/s/ Xxxx Xxxxx ________________________
Name: Xxxx Xxxxx
Title: Chief Financial Officer
CAPSTONE TURBINE FINANCIAL SERVICES, LLC
By:/s/ Xxxx Xxxxx ________________________
Name: Xxxx Xxxxx
Title: Chief Financial Officer
[Signature Page to Super-Priority Senior Secured
Debtor-In-Possession Note Purchase Agreement]
XXXXXXX XXXXX SPECIALTY LENDING GROUP, L.P.
as Collateral Agent
By:/s/ Xxxx Xxxxx________________________
Name: Xxxx Xxxxx
Title: Authorized Signatory
BROAD STREET CREDIT HOLDINGS LLC,
as Purchaser
By:/s/ Xxxx Xxxxx________________________
Name: Xxxx Xxxxx
Title: Authorized Signatory
[Signature Page to Super-Priority Senior Secured
Debtor-In-Possession Note Purchase Agreement]
APPENDIX A-1
TO DIP NOTE PURCHASE AGREEMENT
Commitments
Purchaser | Commitments | Pro Rata Share | |
BROAD STREET CREDIT HOLDINGS LLC | New Money DIP Notes | $12,000,000.00 | 100% |
Roll Up DIP Notes | $18,000,000.00 | ||
Total | $30,000,000.00 | 100% | |
Appendix A
Page 1
TO DIP NOTE PURCHASE AGREEMENT
Notice Addresses
CAPSTONE GREEN ENERGY CORPORATION
00000 Xxxxx Xxxxxx
Xxx Xxxx, CA 91406
Attention: Xxxx Xxxxx, Chief Financial Officer
Email: XXxxxx@XXXXxxxxxx.xxx
CAPSTONE TURBINE INTERNATIONAL, INC.
00000 Xxxxx Xxxxxx
Xxx Xxxx, CA 91406
Attention: Xxxx Xxxxx, Chief Financial Officer
Email: XXxxxx@XXXXxxxxxx.xxx
CAPSTONE TURBINE FINANCIAL SERVICES, LLC
00000 Xxxxx Xxxxxx
Xxx Xxxx, CA 91406
Attention: Xxxx Xxxxx, Chief Financial Officer
Email: XXxxxx@XXXXxxxxxx.xxx
in each case, with a copy to:
Xxxxxx Xxxxxx Xxxxxxxx LLP
000 X. Xxxxxx Xxxxxx
Chicago, IL 60661-3693
Attention: Xxxx X. Xxxx, Esq. and Xxxxx X. Xxxxxx, Esq.
Email: xxxx.xxxx@xxxxxx.xxx and xxxxx.xxxxxx@xxxxxx.xxx
Appendix B
Page 1
XXXXXXX XXXXX SPECIALTY LENDING GROUP, L.P., as Collateral Agent,
and Purchaser, to its address set forth below
Xxxxxxx Xxxxx Specialty Lending Group, L.P.
0000 Xxxx Xxx
Suite 2800
Dallas, TX 75201
Attention: Capstone Turbine Corporation, Account Manager
Email: Xxxx.Xxxxxx@xx.xxx; and xx-xxx-xxxxxxx@xx.xxx
And, in any event, with a copy (which copy shall not constitute notice) to:
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
One Liberty Plaza
New York, NY 10006
Attention: Xxxx X’Xxxx; Xxxx X. Xxxxxx
Email: xxxxxx@xxxx.xxx; xxxxxxx@xxxx.xxx
Appendix B
Page 2
SCHEDULE 1.1(b)
Certain Material Real Estate Assets
SCHEDULE 1.1(c)
Guarantors
SCHEDULE 4.1
Juridictions of Organization and Qualification
SCHEDULE 4.2
Capital Stock and Ownership
SCHEDULE 4.13
Real Estate Assets
SCHEDULE 4.15
Defaults
SCHEDULE 4.16
Material Contracts
SCHEDULE 5.15
Certain Post Closing Matters
SCHEDULE 6.1
Certain Indebtedness
SCHEDULE 6.7
Certain Investments
SCHEDULE 6.12
Certain Affiliate Transactions
SCHEDULE 6.24
Certain Employee Retention Plans
EXHIBIT A TO
NOTE PURCHASE AGREEMENT
FUNDING NOTICE
EXHIBIT B TO
NOTE PURCHASE AGREEMENT
LETTER OF DIRECTION
EXHIBIT C TO
NOTE PURCHASE AGREEMENT
COMPLIANCE CERTIFICATE
EXHIBIT D TO
NOTE PURCHASE AGREEMENT
[Reserved]
EXHIBIT E-1 TO
NOTE PURCHASE AGREEMENT
U.S. TAX COMPLIANCE CERTIFICATE
(For Non-U.S. Person Recipients That Are Not Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT E-2 TO
NOTE PURCHASE AGREEMENT
[Reserved]
EXHIBIT E-3 TO
NOTE PURCHASE AGREEMENT
[Reserved]
EXHIBIT E-4 TO
NOTE PURCHASE AGREEMENT
U.S. TAX COMPLIANCE CERTIFICATE
(For Non-U.S. Person Recipients That Are Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT F-1 TO
NOTE PURCHASE AGREEMENT
CLOSING DATE CERTIFICATE
EXHIBIT G TO
NOTE PURCHASE AGREEMENT
COUNTERPART AGREEMENT
EXHIBIT H TO
NOTE PURCHASE AGREEMENT
[Reserved]
EXHIBIT I TO
NOTE PURCHASE AGREEMENT
INTERCOMPANY NOTE
EXHIBIT J-1 TO
NOTE PURCHASE AGREEMENT
SUPER-PRIORITYSENIOR SECURED NEW MONEY DEBTOR-IN-POSSESSION NOTE
EXHIBIT J-2 TO
NOTE PURCHASE AGREEMENT
SUPER-PRIORITY SENIOR SECURED ROLL UP DEBTOR-IN-POSSESSION NOTE
