AMENDMENT NO. 6 TO AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT
10.5
***Text
Omitted and Filed Separately
Confidential
Treatment Requested
Under
17 C.F.R. §§ 200.80(b)(4)
and
17. C.F.R. 24b-2
AMENDMENT
NO. 6
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This
Amendment No. 6 to Amended and Restated Credit Agreement is
dated as of March 24, 2017 (this “Agreement”), and
is among the Persons identified on the signature pages hereof as
Lenders (which Persons (1) include each Person identified on
the signature pages hereof as a new Lender (each, a “New
Lender”) and each Person identified on the signature pages
hereof as an existing Lender, and (2) constitute the Required
Lenders and, as applicable, all of the Lenders directly affected by
the applicable amendments to be effected by this Agreement), XXXXX
FARGO BANK, NATIONAL ASSOCIATION, a national banking association
(“Xxxxx Fargo”), as agent for the Lenders (Xxxxx Fargo,
in that capacity, “Agent”), PAC-VAN, INC., an Indiana
corporation (“Pac-Van”), LONE STAR TANK
RENTAL INC., a Delaware corporation (“Lone Star”),
GFN REALTY COMPANY, LLC, a Delaware limited liability company
(“GFNRC”), and SOUTHERN FRAC, LLC, a Texas limited
liability company (“Southern Frac” and, together with
Pac-Van, Lone Star, and GFNRC, each a
“Borrower”).
The
Lenders, Agent, and Borrowers are party to an Amended and Restated
Credit Agreement dated as of April 7, 2014 (as amended,
restated, supplemented, or otherwise modified before the date of
this Agreement, the “Credit Agreement”).
The
parties desire to modify the Credit Agreement in certain
respects.
The
parties therefore agree as follows:
1. Definitions.
(a) Defined terms used
but not defined in this Agreement are as defined in the Credit
Agreement.
(b) For purposes of
this Agreement, “GFC 2021 Notes Indenture” means,
with respect to the GFC 2021 Notes, an Indenture dated as of
June 18, 2014, between GFC and Xxxxx Fargo, as trustee (as
supplemented by a First Supplemental Indenture dated as of
June 18, 2014, between GFC and Xxxxx Fargo, as trustee, and as
further amended, restated, supplemented, or otherwise modified from
time to time).
2. Restructuring of
Commitments; Deemed Increase; Joinder by New Lenders.
(a) Borrowers
desire to restructure or otherwise modify the commitments under the
Credit Agreement (including the existing Revolver
Commitments).
(b) In connection with
the request described in Section 2(a)
above, and to induce Agent and the Lenders to enter into this
Agreement, each Borrower hereby represents to Agent and the Lenders
as follows and acknowledges the following:
(1)
that the
GFC 2021 Notes Indenture limits the amount of Indebtedness
that Borrowers can incur (including under the Credit
Agreement);
(A)
pursuant to
clause (2) of the definition of “Permitted
Indebtedness” in the GFC 2021 Notes Indenture,
Indebtedness incurred pursuant to the Credit Agreement, including
any permitted refinancing thereof, in an aggregate principal amount
at any time outstanding not to exceed the greater of
$200,000,000 (or $225,000,000 upon the exercise in full of up
to $25,000,000 in accordion increases under Section 2.14 of
the Credit Agreement), less the amount of all required permanent
repayments (which are accompanied by a corresponding permanent
commitment reduction thereunder), and the Borrowing Base;
and
(B)
pursuant to
clause (25) of the definition of “Permitted
Indebtedness” in the GFC 2021 Notes Indenture,
Indebtedness incurred pursuant to a Credit and Security Agreement
dated October 1, 2012, by and among Southern Frac,
GFN Manufacturing, GFC, and Xxxxx Fargo, as amended as of the
date of the GFC 2021 Notes Indenture (the “Southern Frac
Credit Facility”), including any permitted refinancing
thereof, in an aggregate principal amount at any time outstanding
not to exceed $15,000,000, less the amount of all required
permanent repayments (which are accompanied by a corresponding
permanent commitment reduction thereunder);
(4)
that, as more
particularly described in clauses (2) and (3)
above, the GFC 2021 Notes Indenture permits Borrowers to
incur Indebtedness under the Credit Agreement in an aggregate
principal amount at any time outstanding not to exceed $237,000,000
(if Borrowers exercise (or are deemed to have exercised) in full
the $25,000,000 in accordion increases under Section 2.14 of
the Credit Agreement referred to in the GFC 2021 Notes
Indenture, and without regard to the Borrowing Base), less the
amount of all required permanent repayments (which are accompanied
by a corresponding permanent commitment reduction
thereunder).
(c) In connection
with the request described in Section 2(a) above, Borrowers desire for
purposes of the Credit Agreement, to effect (or to be deemed
to have effected) an Increase in the amount of $18,000,000, and
to retain the ability to effect one or more future Increases
in an aggregate amount of up to $7,000,000; and for purposes
of the GFC 2021 Notes Indenture, to exercise (or to be
deemed to have exercised) $18,000,000 in accordion increases under
Section 2.14 of the Credit Agreement, and to retain the
ability to exercise (or to be deemed to have exercised) one or more
future accordion increases under Section 2.14 of the Credit
Agreement in an aggregate amount of up to $7,000,000.
(d) In connection with
the requests described in Sections 2(a) and 2(c)
above:
(1)
the Lenders have
agreed to provide new commitments under the Credit Agreement, to
accept one or more full or partial assignments of existing
commitments under the Credit Agreement (including, as applicable,
existing Revolving Commitments), and/or to otherwise modify their
existing commitments under the Credit Agreement (including, as
applicable, their existing Revolver Commitments);
(2)
the parties desire
that the desired restructuring or other modification of the
commitments under the Credit Agreement (including the existing
Revolver Commitments) become effective as of the effective date of
this Agreement; and
(3)
a portion of the
new, restructured, or otherwise modified commitments under the
Credit Agreement in an aggregate amount equal to $18,000,000 will
be deemed to be an Increase (and, for purposes of the GFC 2021
Notes Indenture, Borrowers will be deemed to have exercised
$18,000,000 in accordion increases under Section 2.14 of the
Credit Agreement).
(e) Each New Lender
hereby does the following: confirms that it has received copies of
the Credit Agreement and the other Loan Documents, together with
copies of the financial statements referred to therein and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Agreement; agrees that it will, independently and without reliance
upon Agent or any other Lender, based upon such documents and
information as it deems appropriate at the time, continue to make
its own credit decisions in taking or not taking any action under
the Loan Documents; appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; and
agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
(f) As of the effective
date of this Agreement, each New Lender will be a party to the
Credit Agreement, as amended by this Agreement, and have the rights
and obligations of a Lender thereunder and under the other Loan
Documents.
(a) Borrowers have
requested that Agent and the Required Lenders consent to the
acquisition by Pac-Van of all or substantially all of the Equity
Interests of […***…], as further described in a
non-binding letter of intent dated January 11, 2017, between
Pac-Van and […***…] (that letter of intent, the
“[…***…] Acquisition LOI”; that
transaction, the
“[…***…] Acquisition”) and an
acquisition proposal dated February 2017 (the
“[…***…] Acquisition Proposal”),
copies of which is attached to this Agreement as
Exhibit […***…].
(b) Agent and the
Required Lenders understand that Borrowers intend to consummate
the[…***…] Acquisition and that Borrowers desire
the […***…] Acquisition to be a Permitted
Acquisition. Borrowers hereby represent to Agent and the
Required Lenders that the [...***...] Acquisition satisfies or
will satisfy all of the applicable conditions for a Permitted
Acquisition other than the condition set forth in clause (e)
of the definition of “Permitted Acquisition”; and
acknowledge that the [...***...] Acquisition thus
does not (and will not, absent this Agreement) satisfy all of the
applicable conditions for a Permitted Acquisition and therefore
requires Agent’s and the Required Lenders’ prior
written consent.
(c) Subject to the
other terms of this Agreement, Agent and the Required Lenders
hereby consent to the consummation of the
[...***...] Acquisition, so long as the
[...***...] Acquisition satisfies all of the applicable
conditions for a Permitted Acquisition other than the condition set
forth in clause (e) of the definition of “Permitted
Acquisition”; Borrowers have Availability plus
Qualified Cash in an amount equal to or greater than $20,000,000
immediately after giving effect to the consummation of the
[...***...] Acquisition; and the final terms and
conditions of the [...***...] Acquisition are substantially
consistent with those set forth in the [...***...] Acquisition
LOI and the [...***...] Acquisition Proposal. Upon its
consummation as consented to under this Agreement, the
[...***...] Acquisition will be deemed a Permitted Acquisition
under the Credit Agreement.
(d) The consents set
forth in this Section 3 do not
affect the continued legality, validity, and binding effect of the
Credit Agreement and the other Loan Documents. The Credit Agreement
and other Loan Documents continue to be fully enforceable in each
case, except as expressly provided in this Agreement. The consents
set forth in this Section 3 are
specifically limited in time and scope as described above and do
not extend or apply to any other event, occurrence, or
circumstances in existence as of the date of this Agreement or
arising after the date of this Agreement. In addition, the consents
set forth in this Section 3 do
not constitute or establish (and are not to be deemed to constitute
or establish) a custom or a practice on the part of Agent or any
Lender and do not prejudice any rights of Agent or any Lender in
respect of any other departure from the terms of the Credit
Agreement or any other Loan Document.
4. Amendments to
Credit Agreement.
(a) Schedule C-1 to
the Credit Agreement is hereby amended to read in its entirety as
set forth in Exhibit A to this Agreement.
(b)
Schedules X-0, X-0, X-0, X-0, 4.1(b), 4.1(c),
4.1(d), 4.6(b), 4.10, 4.11, 4.14, 4.24, 4.27, 5.6, 5.14, 5.16(f),
and 6.5 to the Credit Agreement are hereby amended to read in their
entirety as set forth in Exhibit B to this
Agreement.
(c) The Credit
Agreement is hereby further amended by inserting Exhibit C to
this Agreement as a new Exhibit IC-1 to the Credit
Agreement.
(d) The Credit
Agreement (exclusive of (1) the Schedules thereto that are
expressly amended pursuant to Sections 4(a) and 4(b)
above; (2) Exhibit B-1 (Form of Borrowing Base
Certificate), which Agent will provide separately to Borrowers;
(3) Exhibit IC-1 (Intercreditor Provisions); and
(4) Exhibit P-1 (Form of Perfection Certificate)) is
hereby amended such that, after giving effect to all such
amendments, the Credit Agreement, as amended by this Agreement (and
exclusive of the attachments noted above in this
Section 4(d)), will read in its
entirety as set forth in Exhibit D to this Agreement, with all
revisions to the Credit Agreement, as amended by this Agreement,
reflected in Exhibit D to this Agreement in blackline format
(pursuant to which (A) deleted text is indicated textually in
the same manner as the following example: stricken text; and
(B) added text is indicated textually in the same manner as
the following example: bold and double-underlined
text).
5. Post-Closing
Matters. Borrowers shall complete each of the tasks and other items
set forth on Schedule PC-1 no later than the times specified
therein or such later date as Agent may agree in
writing.
(a) In connection with
this Agreement, Borrowers shall pay the following fees: to
Agent, the fees set forth in the Fee Letter (as defined in the
Credit Agreement, as amended by this Agreement) that are due and
payable on or before the effective date of this Agreement; and
to GACP I, L.P., a Delaware limited partnership, in
its capacity as a Last-Out Term Loan Lender (as defined in the
Credit Agreement, as amended by this Agreement), solely for its own
account and not for the account of any other Person, a closing fee
with respect to the Last-Out Term Loan (as defined in the Credit
Agreement, as amended by this Agreement) in an amount equal to
$600,000.
(b) Each fee described
in this Section 6 is due and
payable on or before the execution of this Agreement by Borrowers.
Each such fee will be deemed to be fully earned on the date of this
Agreement and will be non-refundable when paid.
7. Representations. To
induce Agent and the Lenders to enter into this Agreement, each
Borrower hereby represents to Agent and the Lenders as
follows:
(1)
that that Borrower
is duly authorized to execute and deliver this Agreement and is and
will continue to be duly authorized to borrow monies under the
Credit Agreement, as amended by this Agreement, and to perform its
obligations under the Credit Agreement, as amended by this
Agreement;
(2)
that the execution
and delivery of this Agreement and the performance by that Borrower
of its obligations under the Credit Agreement, as amended by this
Agreement, do not and will not conflict with any provision of law
or of the Governing Documents of that Borrower or of any agreement
binding upon that Borrower;
(3)
that the Credit
Agreement, as amended by this Agreement, is a legal, valid, and
binding obligation of that Borrower, enforceable against that
Borrower in accordance with its terms, except as enforceability is
limited by bankruptcy, insolvency, or other similar laws of general
application affecting the enforcement of creditors’ rights or
by general principles of equity limiting the availability of
equitable remedies;
(4)
that the
representations and warranties set forth in Section 4 of the
Credit Agreement, as amended by this Agreement, are true and
correct in all material respects (but if any representation or
warranty is by its terms qualified by concepts of materiality, that
representation or warranty is true and correct in all respects), in
each case with the same effect as if such representations and
warranties had been made on the date of this Agreement, with the
exception that all references to the financial statements mean the
financial statements most recently delivered to Agent except for
such changes as are specifically permitted under the Credit
Agreement and except to the extent that any such representation or
warranty expressly relates to an earlier date;
(5)
that that Borrower
has complied with and is in compliance with all of the covenants
set forth in the Credit Agreement, as amended by this Agreement,
including those set forth in Section 5, Section 6, and
Section 7 of the Credit Agreement; and
(6)
that as of the date
of this Agreement, no Default or Event of Default has occurred and
is continuing.
8. Conditions. The
effectiveness of this Agreement is subject to satisfaction of the
following conditions:
(1)
that Agent has
received the following documents:
(A)
this Agreement
executed by Agent, the Lenders, and Borrowers;
(B)
a Guarantor
Acknowledgment in the form attached to this Agreement, executed by
each Guarantor;
(C)
an omnibus
amendment and reaffirmation agreement, in form and substance
reasonably satisfactory to Agent, executed by each applicable
Person;
(D)
the Fee Letter (as
defined in the Credit Agreement, as amended by this Agreement),
executed by each applicable Person;
(E)
a master assignment
agreement, in form and substance reasonably satisfactory Agent,
executed by each existing Lender, each New Lender, each applicable
lender under the Credit Agreement that is neither an existing
Lender nor a new Lender, and each other applicable Person (that
agreement, the “Master Assignment
Agreement”);
(F)
each of the other
documents listed in the document checklist attached to this
Agreement as Exhibit E; and
(G)
copies (executed or
certified, as appropriate) of all other legal documents or minutes
of proceedings taken in connection with the execution and delivery
of this Agreement to the extent Agent or its counsel reasonably
requests;
(2)
that substantially
concurrently with, but immediately before, the effective date of
this Agreement, each assignment under the Master
Assignment Agreement has occurred and is effective; and the
“Settlement Date” under and as defined in the Master
Assignment Agreement has occurred;
(3)
that Borrowers have
paid all fees described in Section 6; and all other fees and expenses
required to be paid by Borrowers on the date of this Agreement
under this Agreement, the Credit Agreement, or the other Loan
Documents (including, without limitation, all reasonable documented
costs and expenses (including reasonable documented
attorneys’ fees and due diligence expenses) incurred by Agent
or the Last-Out Term Loan Lenders (as defined in the Credit
Agreement, as amended by this Agreement) in structuring, drafting,
and reviewing this Agreement and the other Loan Documents delivered
in connection with this Agreement);
(4)
that Agent has
received evidence satisfactory to Agent that Borrowers will have
Excess Availability plus Qualified Cash of at least $21,000,000
immediately after giving effect to the transactions contemplated by
this Agreement or to be effected under the Credit Agreement, as
amended by this Agreement (including, without limitation, the
making of the Last-Out Term Loan (as defined in the Credit
Agreement, as amended by this Agreement) and the application of the
proceeds thereof to the outstanding balance of the Revolving Loans;
and the payment of all fees and expenses required to be paid
by Borrowers on or before the effective date of this Agreement
under this Agreement, the Credit Agreement, or the other Loan
Documents); and
(5)
that all legal
matters incident to the execution and delivery of this Agreement
are satisfactory to Agent and its counsel.
9. Release. Each Loan
Party hereby waives and releases any and all current existing
claims, counterclaims, defenses, or set-offs of every kind and
nature which it has or might have against Agent or any Lender
arising out of, pursuant to, or pertaining in any way to the Credit
Agreement, any and all documents and instruments delivered in
connection with or relating to the foregoing, or this Agreement.
Each Loan Party hereby further covenants and agrees not to xxx
Agent or any Lender or assert any claims, defenses, demands,
actions, or liabilities against Agent or any Lender which occurred
prior to or as of the date of this Agreement arising out of,
pursuant to, or pertaining in any way to the Credit Agreement, any
and all documents and instruments delivered in connection with or
relating to the foregoing, or this Agreement.
10. Miscellaneous.
(a) This Agreement is
governed by, and is to be construed in accordance with, the laws of
the State of Illinois. Each provision of this Agreement is
severable from every other provision of this Agreement for the
purpose of determining the legal enforceability of any specific
provision.
(b) This Agreement
binds Agent, the Lenders, and Borrowers and their respective
successors and assigns, and will inure to the benefit of Agent, the
Lenders, and Borrowers and the successors and assigns of Agent and
each Lender.
(c) Except as
specifically modified or amended by the terms of this Agreement,
all other terms and provisions of the Credit Agreement and the
other Loan Documents are incorporated by reference in this
Agreement and in all respects continue in full force and effect.
Each Borrower, by execution of this Agreement, hereby reaffirms,
assumes, and binds itself to all of the obligations, duties,
rights, covenants, terms, and conditions that are contained in the
Credit Agreement and the other Loan Documents.
(d) Each reference in
the Credit Agreement to “this Agreement,”
“hereunder,” “hereof,” or words of like
import, and each reference to the Credit Agreement in any and all
instruments or documents delivered in connection therewith, will be
deemed to refer to the Credit Agreement, as amended by this
Agreement.
(e) This Agreement is a
Loan Document. Each Borrower acknowledges that Agent’s
reasonable costs and out-of-pocket expenses (including reasonable
attorneys’ fees) incurred in drafting this Agreement and in
amending the Loan Documents as provided in this Agreement
constitute Lender Group Expenses.
(f) The parties may
sign this Agreement in several counterparts, each of which will be
deemed to be an original but all of which together will constitute
one instrument.
[Signature pages to
follow]
The
parties are signing this Amendment No. 6 to Amended and
Restated Credit Agreement as of the date stated in the introductory
clause.
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PAC-VAN, INC.
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxxxx X. Xxxxxx
Title:
Secretary
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LONE
STAR TANK RENTAL INC.
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxxxx X. Xxxxxx
Title:
Secretary
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GFN REALTY
COMPANY, LLC
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxxxx X. Xxxxxx
Title:
Secretary
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SOUTHERN
FRAC, LLC
By: GFN
Manufacturing Corporation,
a
Delaware corporation, as Manager
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxxxx X. Xxxxxx
Title:
Secretary
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Signature
page to Amendment No. 6 to Amended and Restated Credit
Agreement (Pac-Van)
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XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Agent and as a Lender
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By:
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/s/ Xxxxx Xxxxx
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Name:
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Xxxxx Xxxxx
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Its Authorized Signatory
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Signature
page to Amendment No. 6 to Amended and Restated Credit
Agreement (Pac-Van)
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EAST
WEST BANK,
as a
new Lender
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By:
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/s/ Xxxx Xxxxxxxx
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Name:
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Xxxx Xxxxxxxx
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Its Authorized Signatory
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Signature
page to Amendment No. 6 to Amended and Restated Credit
Agreement (Pac-Van)
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CIT
BANK, N.A.,
f/k/a
OneWest Bank N.A.,
successor in
interest to OneWest Bank, FSB,
as an
existing Lender
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By:
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/s/ Xxxxxxxxxxx X. Xxxxxxxx
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Name:
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Xxxxxxxxxxx X. Xxxxxxxx
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Its Authorized Signatory
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Signature
page to Amendment No. 6 to Amended and Restated Credit
Agreement (Pac-Van)
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THE
PRIVATEBANK AND TRUST COMPANY,
as an
existing Lender
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By:
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/s/ Xxxxx Xxxxxxx
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Name:
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Xxxxx Xxxxxxx
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Its Authorized Signatory
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Signature
page to Amendment No. 6 to Amended and Restated Credit
Agreement (Pac-Van)
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KEYBANK, NATIONAL
ASSOCIATION,
as a
new Lender
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By:
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/s/ Xxxxxx X. Xxxxx
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Name:
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Xxxxxx X. Xxxxx
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Its Authorized Signatory
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Signature
page to Amendment No. 6 to Amended and Restated Credit
Agreement (Pac-Van)
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BANK
HAPOALIM B.M.,
as a
new Lender
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By:
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/s/ Xxxxxx Xxxxxxx
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Name:
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Xxxxxx Xxxxxxx, Senior Vice President
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Its Authorized Signatory
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx, Senior Vice President
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Its Authorized Signatory
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Signature
page to Amendment No. 6 to Amended and Restated Credit
Agreement (Pac-Van)
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GACP
I, L.P.,
a
Delaware limited partnership,
as a
new Lender
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By:
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/s/ Xxxx Xxx
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Name:
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Xxxx Xxx
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Its Authorized Signatory
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Signature
page to Amendment No. 6 to Amended and Restated Credit
Agreement (Pac-Van)
GUARANTOR
ACKNOWLEDGMENT
This
Guarantor Acknowledgment refers to, and is attached to, an
Amendment No. 6 to Amended and Restated Credit Agreement dated
as of March 24, 2017, among Pac-Van, Inc., an Indiana
corporation (“Pac-Van”), Lone Star Tank
Rental Inc., a Delaware corporation (“Lone Star”),
GFN Realty Company, LLC, a Delaware limited liability
company (“GFNRC”), Southern Frac, LLC, a Texas
limited liability company (“Southern Frac” and,
together with Pac-Van, Lone Star, and GFNRC, each a
“Borrower”), the Lenders identified on the signature
pages thereof as Lenders, and Xxxxx Fargo Bank, National
Association, a national banking association, as agent for the
Lenders (the “Amendment”). Defined terms used but not
defined in this Guarantor Acknowledgment are as defined in the
Amendment.
Each of
the undersigned, in its capacity as a Guarantor, hereby does the
following: (1) consents to the Amendment;
(2) acknowledges that the Amendment does not in any way
modify, limit, or release any of its obligations under the Guaranty
and Security Agreement to which it is a party; (3) ratifies
and confirms its obligations under the Guaranty and Security
Agreement to which it is a party and acknowledges that those
obligations continue in full force and effect; and
(4) acknowledges that its consent to any other modification to
any Loan Document will not be required as a result of the consent
set forth in this Guarantor Acknowledgment having been obtained,
except to the extent, if any, required by the specific terms of
that Loan Document.
Dated
as of the date of the Amendment.
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PV ACQUISITION
CORP.
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxxxx X. Xxxxxx
Title:
Secretary
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GFN MANUFACTURING
CORPORATION
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxxxx X. Xxxxxx
Title:
Secretary
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Guarantor
Acknowledgment to Amendment No. 6 to Amended and Restated
Credit Agreement (Pac-Van)
SCHEDULE PC-1
Post-Closing
Matters
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No
later than 30 days after the Amendment No. 6 Effective
Date
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(a) With
respect to each parcel of Real Property Collateral owned as of the
Amendment No. 6 Effective Date (as defined in the Credit
Agreement after giving effect to this Agreement), deliver to Agent
the following:
(i) one
or more updated Mortgages or amendments to Mortgages;
(ii) if
requested by Agent, one or more appraisals satisfactory to
Agent;
(iii) one
or more updated Mortgage Policies or date-down endorsements to
Mortgage Policies (or marked commitments to issue the same) issued
by a title insurance company satisfactory to Agent, in form and
substance satisfactory to Agent;
(iv) if
requested by Agent, one or more phase-I environmental reports
prepared and issued by an environmental consultant acceptable to
Agent, the scope and results of which are acceptable to
Agent;
(v) if
requested by Agent, a real estate survey with respect to each
parcel composing such Eligible Real Property prepared and issued by
a surveyor acceptable to Agent, the scope and results of which are
acceptable to Agent; and
(vi) all
other Additional Documents as Agent may reasonably request, in form
and substance reasonably satisfactory to Agent.
(b) With
respect to each applicable insurance policy identified in
Schedule 5.6 to the Credit Agreement (as amended by this
Agreement), deliver to Agent each endorsement with respect to such
insurance policy required under Section 5.6 of the Credit
Agreement (as amended by this Agreement).
|
Schedule PC-1
to Amendment No. 6 to Amended and Restated Credit
Agreement
EXHIBIT
A
Replacement
Schedule C-1 to Credit Agreement
(See
attached.)
SCHEDULE
C-1
Commitments
|
Lender
|
Revolver
Commitment
|
Last-Out Term Loan
Commitment
|
Total
Commitment
|
|
Xxxxx Fargo Bank,
National Association
|
$75,000,000
|
$0
|
$75,000,000
|
|
East West
Bank
|
$40,000,000
|
$0
|
$40,000,000
|
|
CIT Bank, N.A.
(f/k/a OneWest Bank N.A., successor in interest to OneWest
Bank, FSB)
|
$35,000,000
|
$0
|
$35,000,000
|
|
The PrivateBank and
Trust Company
|
$25,000,000
|
$0
|
$25,000,000
|
|
KeyBank, National
Association
|
$20,000,000
|
$0
|
$20,000,000
|
|
Bank Hapoalim
B.M.
|
$15,000,000
|
$0
|
$15,000,000
|
|
GACP I, L.P.
|
$0
|
$20,000,000
|
$20,000,000
|
|
|
|
|
|
|
All
Lenders
|
$210,000,000
|
$20,000,000
|
$230,000,000
|
EXHIBIT
B
Replacement
Schedules to Credit Agreement
(See
attached.)
Schedule A-2
SCHEDULE A-2
Authorized
Persons
Xxxx
Xxxxx
Xxxxxxxx
Xxxxxxxxx
Xxxxxxx
Xxxxxxx
Xxxx
Xxxxx
Schedule X-0
XXXXXXXX X-0
Designated
Account
GFNRC
Account
number [...***...] of GFNRC maintained with GFNRC’s
Designated Account Bank, or such other deposit account of a
Borrower (located within the United States) that has been designed
as such, in writing, by Administrative Borrower to
Agent.
“Designated
Account Bank” means Xxxxx Fargo Bank, N.A., 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, XX, ABA #000-000-000.
Lone
Star
Account
number [...***...]
of Lone Star maintained with Lone Star’s Designated Account
Bank, or such other deposit account of a Borrower (located within
the United States) that has been designed as such, in writing, by
Administrative Borrower to Agent.
“Designated
Account Bank” means Xxxxx Fargo Bank, N.A., 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, XX, ABA #000-000-000.
Pac-Van
Account
number [...***...]
of Pac-Van maintained with Pac-Van’s Designated Account Bank,
or such other deposit account of a Borrower (located within the
United States) that has been designed as such, in writing, by
Administrative Borrower to Agent.
“Designated
Account Bank” means Xxxxx Fargo Bank, N.A., 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, XX, ABA #000-000-000.
Southern
Frac
Account
number [...***...]
of Southern Frac maintained with Southern Frac’s Designated
Account Bank, or such other deposit account of a Borrower (located
within the United States) that has been designed as such, in
writing, by Administrative Borrower to Agent.
“Designated
Account Bank” means Xxxxx Fargo Bank, N.A., 00000 Xxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000, ABA
#000-000-000.
Schedule D-1
SCHEDULE P-1
Permitted
Investments
None.
Schedule P-1
SCHEDULE P-2
Permitted
Liens
Liens
created pursuant to that certain (i) Deed of Trust dated December
26, 2012 in favor of Citizens National Bank of Texas with respect
to the premises owned by GFNRC located at 0000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxx 00000 in the original principal amount of
$1,300,000, and (ii) Deed of Trust dated March 27, 2013 in favor of
Citizens National Bank of Texas with respect to the premises owned
by GFNRC located at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxx 00000 in
the original principal amount of $157,748.
Schedule P-2
SCHEDULE
R-1
Real
Property Collateral
|
Real
Property Address:
|
0000
Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxxxx,
XX 00000
|
|
Property
Description:
|
Approximately
1.2 acres with an office building with approximately 10,329 square
feet.
(Transferred
from Pac-Van to GFNRC as described in Amendment
No. 2.)
|
|
|
|
|
|
|
|
Real
Property Address:
|
20301-20325
Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx,
XX 00000
|
|
Property
Description:
|
Approximately
13.1 acres with a building with approximately 16,728 square
feet.
|
|
|
|
|
|
|
|
Real
Property Address:
|
0000
Xxxxxxx Xxxx Xxxx
Xxxxxxx,
XX 00000
|
|
Property
Description:
|
Approximately
8.93 acres.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subject
to delivery of Mortgage and applicable Additional
Documents.
|
|
Schedule R-1
SCHEDULE 4.1(B)
Capitalization
of Borrowers
GFNRC
The
authorized capitalization of GFNRC consists of limited liability
company interests, all of which are held by GFN.
Lone
Star
The
authorized capitalization of Lone Star consists of (i) 1,000 shares
of common stock, par value $0.001, all of which are held by GFN;
and (ii) 5,000,000 shares of preferred stock, par value at $0.001,
of which (A) 400 shares of Series A Cumulative Preferred Stock
shares are authorized and 400 shares of Series A Preferred Stock
are issued and outstanding, all of which are held by GFC; (B) 100
shares of Series B Preferred Stock are authorized and 100 shares of
Series B Preferred Stock are issued and outstanding, all of which
are held by GFC; and (C) 300 shares of Series C Preferred Stock are
authorized and 288 shares of Series C Preferred Stock are issued
and outstanding, all of which are held by GFC.
Pac-Van
The
authorized capitalization of Pac-Van consists of (i) 10,000,000
shares of common stock, par value $0.001, (A) issuable in a series
designated “Class A Common Shares” consisting of
authorized 9,500,000 shares of which 10 shares are issued and
outstanding, all of which are held by GFN; and (B) issuable in a
series designated “Class B Common Shares” consisting of
500,000 shares, of which no shares are issued and outstanding; and
(ii) 5,000,000 shares of preferred stock, par value at $0.001, of
which (A) 1,000 shares of Series A Cumulative Preferred Stock are
authorized and 1,000 shares of Series A Cumulative Preferred Stock
shares are issued and outstanding, all of which are held by GFC;
(B) 320,000 shares of Series B Cumulative Preferred Stock are
authorized and 320,000 shares of Series B Cumulative Preferred
Stock shares are issued and outstanding, all of which are held by
GFC; and (C) 300 shares of Series C Cumulative Preferred Stock are
authorized and 288 shares of Series C Cumulative Preferred Stock
shares are issued and outstanding, all of which are held by
GFC;.
Southern
Frac
The
authorized capitalization of Southern Frac consists of 100
membership interests, of which 100 membership interests are issued
and outstanding, of which (A) 90 membership interests are held
by GFN Manufacturing, and (B) 10 membership
interests are held by Xxxxxxxx Boston.
Schedule 4.1(b)
SCHEDULE 4.1(C)
Capitalization
of Borrowers' Subsidiaries
GFNRC
GFNRC
has no Subsidiaries.
Lone
Star
Lone
Star has no Subsidiaries.
Pac-Van
PV
Acquisition Corp. is a subsidiary of Pac-Van, Inc.
The
authorized capital of PV Acquisition Corp. consists of an unlimited
number of Class A shares, Class B shares, Class C shares and
Preferred Shares of which fully paid and non-assessable 100 Class A
shares are issued and outstanding, all of which are held by
Pac-Van, and no Class B Shares, no Class C shares, and no Preferred
Shares are issued and outstanding.
Container Systems
Storage, Inc. is a subsidiary of Pac-Van, Inc.
The
authorized capital of Container Systems Storage, Inc. consists of
500 shares of common stock of which 115 shares are issued and
outstanding, all of which are held by Pac-Van.
Southern
Frac
Southern Frac has
no Subsidiaries.
Schedule 4.1(c)
SCHEDULE 4.1(D)
Subscriptions,
Options, Warrants, Calls
None.
Schedule 4.1(d)
SCHEDULE 4.6(B)
Litigation
There
are no actions, suits or proceedings with asserted liabilities in
excess of, or that could reasonably be expected to result in
liabilities in excess of, $500,000 that are pending, or to the
knowledge of any Borrower, after due inquiry, threatened against a
Loan Party or any of its Subsidiaries.
Schedule 4.6(b)
SCHEDULE 4.10
Employee
Benefits
None.
Schedule 4.10
SCHEDULE 4.11
Environmental
Matters
Lone
Star’s and Pac-Van’s portable liquid storage tanks may
be used by Lone Star’s or Pac-Van’s customers to store
Hazardous Materials.
Schedule 4.11
SCHEDULE 4.14
Permitted
Indebtedness
Master
Lease Agreement dated April 29, 2014 among Pac-Van, Inc., Lone Star
Tank Rental Inc. and Banc of America Leasing & Capital, LLC in
the aggregate principal amount of $2,601,096 as of April 30,
2015.
Promissory
Note dated March 27, 2013 by GFNRC in favor of Citizens National
Bank of Texas in the original principal amount of
$157,748.
Promissory
Note dated December 26, 2012 by GFNRC in favor of Citizens National
Bank of Texas in the original principal amount of
$1,300,000.
Schedule 4.14
SCHEDULE 4.24
Location
of Inventory
1.
0000 Xxxxxxx Xx.,
Xxxxxx, Xxxxxxx 00000
2.
000 Xxxx Xxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxx 00000
3.
0000 Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000-0000
4.
000 Xxxx Xxxxxx
Xxxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000
5.
0000 Xxxxxxxxxx
Xxxx, Xxxxxx, Xxxxx 00000
6.
0000 Xxxxxxx Xxxx,
Xxxxx, Xxxxx 00000
7.
0000 Xxxx Xxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxxx 00000-0000
8.
0000 Xxxxxxxxx Xxx,
Xxxxxxxxxxx Xxxxxxxxxx 00000
9.
65 and 00 Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000
10.
00 Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
11.
00 Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
12.
00 Xxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
13.
000 Xxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000-0000
14.
00 Xxxxx Xxxxx
Xxxx, Xxxx, Xxxx Xxxxxxxx 00000
15.
0000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
16.
20301 – 00000
Xxxxx Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000
17.
0000 Xxxxx Xxxxx
00, Xxx 0X, Xxxxxxxx, Xxxx 00000
18.
000 Xxxxx Xxxx,
Xxxxxxx, Xxxx 00000-0000
19.
0000 Xxxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx, Xxxx 00000-0000
20.
0000
Xxxxxxx-Xxxxxxxx Xxxx, Xxxxxxx, Xxxx 00000
21.
0000 Xxxxx Xxx, Xxx
Xxxxxxx, Xxxx 00000
22.
0000 X.X. Xxxxxxx
00 Xxxxx, Xxxxxxxx, Xxxxx 00000
23.
0000 Xxxxx Xxxxxx,
Xxxx Xxxxx, Xxxxx 00000
24.
0000 Xxxxx Xxxxxxx,
Xxxx Xxxxx, Xxxxx 00000-0000
25.
0000 Xxxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxx, Xxxxx 00000
26.
00000 Xxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000
27.
0000 Xxxxxx Xxxxxx,
Xxx Xxxxxx, Xxxx 00000
28.
0000 X. Xxxx Xxx,
Xxxxx, Xxxxxxxx 00000
29.
0000 Xxxxxx Xxxx,
Xxxxx, Xxxxxxxx 00000
30.
00000 Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000
31.
00000 Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000-0000
32.
X0000 Xxxxxxx 00,
Xxxxxxx, Xxxxxxxxx 00000
33.
X0000 Xxx Xxxxx,
Xxxxxxx, Xxxxxxxxx 00000
34.
00000 Xxxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxx 00000
35.
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000-0000
36.
00000 Xxxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
37.
000 Xxxxx Xxxxx,
Xxxxx Xxxxxx, Xxxxxxxx 00000
38.
0000 X. Xxxxx
Xxxxx, Xxxx Xxxx, Xxxxxx 00000
39.
0000 Xxxx 00
Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000
40.
0000 Xxxx 00
Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000
41.
000 Xxxxxxx
Xxxxxxxxx and 000 Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000
42.
0000 Xxxxxx Xxxxxx,
Xxxxx, Xxxxxxxxxx 00000-0000
43.
0000 Xxxxxxxx
Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000-0000
44.
0000 Xxxx Xxxxx
Xxxxxx, Xxxx, Xxxxxx 00000
45.
0000 Xxxxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000
46.
000 Xxxxx 00xx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000
Schedule 4.24
47.
0000 Xxxxxxx Xxxx
Xxxx, Xxxxxxx, Xxxxxxxxx 00000
48.
00000 Xxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxx 00000
49.
000 Xxxxxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxx 00000
50.
0000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000
51.
0000 X.X. Xxxxxxx
000, Xxxxx, Xxxxxxxxx 00000
52.
0000 Xxxxxxxxx
Xxxxxxx, Xx Xxxxxx, Xxxxxxxxx 00000-0000
53.
0000 Xxxxxxxxx
Xxxxxxx, Xx Xxxxxx, Xxxxxxxxx 00000-0000
54.
0000 Xxxx Xxxxxx
Xxxx, Xx Xxxxxx, Xxxxxxxxx 00000
55.
000 Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000
56.
00 Xxxxxxxxxx Xxx,
X-Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000
57.
000 Xxx Xxxx, Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000
58.
0000 Xxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000-0000
59.
00000 Xxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000
60.
0000 Xxxxxx Xxxxx
Xxxx, Xxxxxxx, Xxxxxxxx 00000
61.
0000 Xxxx Xxxxx
Xxxxxxx Xxxx and 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx
00000
62.
0000 Xxxxx 00xx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000
63.
0000 XxXxxx Xxxxx
Xxxx, XxXxxx Xxxx, Xxxxxxxxxxxx 00000-0000
64.
0000
000xx
Xxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000
65.
000 Xxxxxxx Xxxx,
Xxxxxx, Xxxxx Xxxxxxxx 00000
66.
000 Xxxxx 000 Xxxx,
Xxxx Xxxx Xxxx, Xxxx 00000
67.
0000 Xxxxx Xxxx
Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000-0000
68.
0000 X. X-00, Xxx
Xxxxxxxxx, Xxxxx 00000
69.
0000 Xxxx xx Xxxxxx
Xxxx, Xxxxxx, Xxxxxxxxxx 00000
70.
0000 X Xxxxxx XX,
Xxxxxx, Xxxxxxxxxx 00000
71.
000 XX
000xx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
72.
0000X Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000
73.
0000 Xxxxx Xxxx
Xxxx 000, Xxxxxxxxxxx, Xxxxxxxx 00000
74.
0000 Xxxx Xxxxxxx
00, Xxxxxxxxx, Xxxxxxxx 00000
75.
00 Xxxxx Xxxxxxx
Xxxxx, X'Xxxxxx, Xxxxxxxx 00000
76.
00 Xxxxx Xxxxxxx
Xxxxx, X'Xxxxxx, Xxxxxxxx 00000-0000
77.
00 Xxxxxxx Xxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000
78.
0000 Xxxxxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000
79.
0000 Xxxxxxxxxx
Xxxx, Xxxxxxxx, Xxxx 00000-0000
80.
0000 Xxx 00 X,
Xxxxxxx Xxxx, Xxxxx Xxxxxx 00000
81.
000 Xxxx Xxxx,
Xxxxxx, Xxxxxxxxxx 00000
82.
00000 X 0xx Xxxxxx,
Xxxxxx, Xxxxxxx 00000
83.
0000 Xxxxxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxxx 00000
84.
0000 X Xxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxx 00000
85.
20301-20325 Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000
86.
0000 Xxxxxxx Xxxx
Xxxx, Xxxxxxx, Xxxxxxxxx 00000
87.
0000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxx 00000
88.
Xxxx #0, 0000
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
89.
0000 00 Xxxxxx XX,
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
90.
0000 Xxxxxxxx
Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X
0X0
91.
0000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxx 00000
92.
0000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxx 00000
93.
0000 Xxxxx Xxxxxxx
00, Xxxxxxxxxx, Xxxxx 00000
94.
000 Xxxxxxx Xxxx
0000, Xxxxxx, Xxxxx 00000
95.
0000 X. XX 00
Xxxxx, Xxxxxx Xxxxxx, Xxxxx
96.
0000 X. XX 00,
Xxxxxx Xxxx, XX 00000
97.
000 Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxx 00000
98.
0000 Xxxx Xxxxxxx
000, Xxxxxx, Xxxxx 00000
99.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxx 00000
Schedule 4.24
SCHEDULE 4.27
Location
of Equipment
1.
0000 Xxxxxxx Xx.,
Xxxxxx, Xxxxxxx 00000
2.
000 Xxxx Xxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxx 00000
3.
0000 Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000-0000
4.
000 Xxxx Xxxxxx
Xxxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000
5.
0000 Xxxxxxxxxx
Xxxx, Xxxxxx, Xxxxx 00000
6.
0000 Xxxxxxx Xxxx,
Xxxxx, Xxxxx 00000
7.
0000 Xxxx Xxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxxx 00000-0000
8.
0000 Xxxxxxxxx Xxx,
Xxxxxxxxxxx Xxxxxxxxxx 00000
9.
65 and 00 Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000
10.
00 Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
11.
00 Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
12.
00 Xxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
13.
000 Xxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000-0000
14.
00 Xxxxx Xxxxx
Xxxx, Xxxx, Xxxx Xxxxxxxx 00000
15.
0000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
16.
20301 – 00000
Xxxxx Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000
17.
0000 Xxxxx Xxxxx
00, Xxx 0X, Xxxxxxxx, Xxxx 00000
18.
000 Xxxxx Xxxx,
Xxxxxxx, Xxxx 00000-0000
19.
0000 Xxxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx, Xxxx 00000-0000
20.
0000
Xxxxxxx-Xxxxxxxx Xxxx, Xxxxxxx, Xxxx 00000
21.
0000 Xxxxx Xxx, Xxx
Xxxxxxx, Xxxx 00000
22.
0000 X.X. Xxxxxxx
00 Xxxxx, Xxxxxxxx, Xxxxx 00000
23.
0000 Xxxxx Xxxxxx,
Xxxx Xxxxx, Xxxxx 00000
24.
0000 Xxxxx Xxxxxxx,
Xxxx Xxxxx, Xxxxx 00000-0000
25.
0000 Xxxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxx, Xxxxx 00000
26.
00000 Xxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000
27.
0000 Xxxxxx Xxxxxx,
Xxx Xxxxxx, Xxxx 00000
28.
0000 X. Xxxx Xxx,
Xxxxx, Xxxxxxxx 00000
29.
0000 Xxxxxx Xxxx,
Xxxxx, Xxxxxxxx 00000
30.
00000 Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000
31.
00000 Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000-0000
32.
X0000 Xxxxxxx 00,
Xxxxxxx, Xxxxxxxxx 00000
33.
X0000 Xxx Xxxxx,
Xxxxxxx, Xxxxxxxxx 00000
34.
00000 Xxxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxx 00000
35.
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000-0000
36.
00000 Xxxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
37.
000 Xxxxx Xxxxx,
Xxxxx Xxxxxx, Xxxxxxxx 00000
38.
0000 X. Xxxxx
Xxxxx, Xxxx Xxxx, Xxxxxx 00000
39.
0000 Xxxx 00
Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000
40.
0000 Xxxx 00
Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000
41.
000 Xxxxxxx
Xxxxxxxxx and 000 Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000
42.
0000 Xxxxxx Xxxxxx,
Xxxxx, Xxxxxxxxxx 00000-0000
43.
0000 Xxxxxxxx
Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000-0000
44.
0000 Xxxx Xxxxx
Xxxxxx, Xxxx, Xxxxxx 00000
45.
0000 Xxxxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000
46.
000 Xxxxx 00xx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000
Schedule 4.27
47.
0000 Xxxxxxx Xxxx
Xxxx, Xxxxxxx, Xxxxxxxxx 00000
48.
00000 Xxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxx 00000
49.
000 Xxxxxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxx 00000
50.
0000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000
51.
0000 X.X. Xxxxxxx
000, Xxxxx, Xxxxxxxxx 00000
52.
0000 Xxxxxxxxx
Xxxxxxx, Xx Xxxxxx, Xxxxxxxxx 00000-0000
53.
0000 Xxxxxxxxx
Xxxxxxx, Xx Xxxxxx, Xxxxxxxxx 00000-0000
54.
0000 Xxxx Xxxxxx
Xxxx, Xx Xxxxxx, Xxxxxxxxx 00000
55.
000 Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000
56.
00 Xxxxxxxxxx Xxx,
X-Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000
57.
000 Xxx Xxxx, Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000
58.
0000 Xxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000-0000
59.
00000 Xxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000
60.
0000 Xxxxxx Xxxxx
Xxxx, Xxxxxxx, Xxxxxxxx 00000
61.
0000 Xxxx Xxxxx
Xxxxxxx Xxxx and 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx
00000
62.
0000 Xxxxx 00xx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000
63.
0000 XxXxxx Xxxxx
Xxxx, XxXxxx Xxxx, Xxxxxxxxxxxx 00000-0000
64.
0000
000xx
Xxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000
65.
000 Xxxxxxx Xxxx,
Xxxxxx, Xxxxx Xxxxxxxx 00000
66.
000 Xxxxx 000 Xxxx,
Xxxx Xxxx Xxxx, Xxxx 00000
67.
0000 Xxxxx Xxxx
Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000-0000
68.
0000 X. X-00, Xxx
Xxxxxxxxx, Xxxxx 00000
69.
0000 Xxxx xx Xxxxxx
Xxxx, Xxxxxx, Xxxxxxxxxx 00000
70.
0000 X Xxxxxx XX,
Xxxxxx, Xxxxxxxxxx 00000
71.
000 XX
000xx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
72.
0000X Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000
73.
0000 Xxxxx Xxxx
Xxxx 000, Xxxxxxxxxxx, Xxxxxxxx 00000
74.
0000 Xxxx Xxxxxxx
00, Xxxxxxxxx, Xxxxxxxx 00000
75.
00 Xxxxx Xxxxxxx
Xxxxx, X'Xxxxxx, Xxxxxxxx 00000
76.
00 Xxxxx Xxxxxxx
Xxxxx, X'Xxxxxx, Xxxxxxxx 00000-0000
77.
00 Xxxxxxx Xxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000
78.
0000 Xxxxxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000
79.
0000 Xxxxxxxxxx
Xxxx, Xxxxxxxx, Xxxx 00000-0000
80.
0000 Xxx 00 X,
Xxxxxxx Xxxx, Xxxxx Xxxxxx 00000
81.
000 Xxxx Xxxx,
Xxxxxx, Xxxxxxxxxx 00000
82.
00000 X 0xx Xxxxxx,
Xxxxxx, Xxxxxxx 00000
83.
0000 Xxxxxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxxx 00000
84.
0000 X Xxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxx 00000
85.
20301-20325 Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000
86.
0000 Xxxxxxx Xxxx
Xxxx, Xxxxxxx, Xxxxxxxxx 00000
87.
0000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxx 00000
88.
Xxxx #0, 0000
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
89.
0000 00 Xxxxxx XX,
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
90.
0000 Xxxxxxxx
Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X
0X0
91.
0000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxx 00000
92.
0000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxx 00000
93.
0000 Xxxxx Xxxxxxx
00, Xxxxxxxxxx, Xxxxx 00000
94.
000 Xxxxxxx Xxxx
0000, Xxxxxx, Xxxxx 00000
95.
0000 X. XX 00
Xxxxx, Xxxxxx Xxxxxx, Xxxxx
96.
0000 X. XX 00,
Xxxxxx Xxxx, XX 00000
97.
000 Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxx 00000
98.
0000 Xxxx Xxxxxxx
000, Xxxxxx, Xxxxx 00000
99.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxx 00000
Schedule 4.27
SCHEDULE 5.6
Insurance
GFNRC
Zurich
Lone
Star
Zurich
Pac-Van
Zurich
AIG
Ironshore
Southern Frac and
GFN Manufacturing Corporation
Property &
Inland Marine
Zurich
Commercial General
Liability/Pollution
Zurich
Pollution
Zurich
Commercial
Automobile
Zurich
Excess
Zurich
Workers
compensation
Zurich
Management
liability
Zurich
Schedule 5.6
SCHEDULE 5.14
Chief
Executive Offices
|
Loan
Party/Subsidiary
|
Address
|
County
|
State/Province
|
|
GFN
Manufacturing Corporation
|
0000
Xxxxxx XxxxXxxxx 000Xxxxxxxxxx, XX
|
Xxxxx
|
Texas
|
|
GFN
Realty Company, LLC
|
00 Xxxx
Xxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx
|
Los
Angeles
|
California
|
|
Lone
Star Tank Rental Inc.
|
0000
Xxxxxx XxxxXxxxx 200Waxahachie, TX
|
Xxxxx
|
Texas
|
|
Pac-Van,
Inc.
|
0000
Xxxxxxxx Xxxx XxxxxXxxxxxxxxxxx, XX 00000-0000
|
Xxxxxx
Xxxxxx
|
Indiana
|
|
PV
Acquisition Corp.
|
0000
Xxxxxxx Xx., Xx. 0
Xxxxxxxx, XX X0X
0X0
|
Not
applicable
|
Alberta
|
|
Southern Frac,
LLC
|
0000
Xxxxxx XxxxXxxxx 000Xxxxxxxxxx, XX
|
Xxxxx
|
Texas
|
Schedule 5.14
SCHEDULE 5.16(f)
Certain
Certificated Xxxxx
0000
Xxxxxxx 330C Trailer
Schedule 5.14
SCHEDULE 6.5
Nature
of Business
GFN
Manufacturing Corporation has no operations and owns 90% of the
membership interests of Southern Frac.
GFNRC
owns real property and leases real property to Lone Star, Pac-Van
and Southern Frac.
Lone Star leases
and services portable liquid storage tank containers and related
equipment.
Pac-Van leases,
sells and services storage, office and portable liquid storage tank
containers, modular buildings, mobile offices and related
equipment.
Southern Frac
manufactures liquid tank containers, trailer chassis, storm
shelters and similar products.
EXHIBIT
C
Exhibit
IC-1 to Credit Agreement
(Intercreditor
Provisions)
(See
attached.)
-2-
Exhibit IC-1
INTERCREDITOR
PROVISIONS
TABLE
OF CONTENTS
Page
-2-
Capitalized terms
used as defined terms but not otherwise defined herein have the
meaning ascribed to such term in the Credit Agreement. The
following terms have the following meanings:
“Bankruptcy
Code” means title 11 of the United States Code, as in effect
from time to time.
“Cash
Collateral” has the meaning set forth in Section
5(b).
“Cross-Over
Obligations” has the meaning set forth in Section
2(c).
“Cross Over
Threshold” means 75%.
“Debt
Reorganization Securities” means Reorganization Securities
that consist of debt obligations or Disqualified Equity of the
reorganized debtor.
“Debt
Transfer” means a transfer of the Obligations by a Lender by
assignment or participation pursuant to the Credit Agreement to any
Person other than (a) its Affiliates, (b) another First Out Holder
who is not also a Last Out Holder, in the case of a Debt Transfer
by a First Out Holder, (c) another Last Out Holder who is not also
a First Out Holder, in the case of a Debt Transfer by a Last Out
Holder, or (d) in connection with a transfer or assignment of all
or a substantial part of such Lender's or its Affiliate's loan
portfolio.
“Debt
Transfer Acceptance” has the meaning set forth in Section
6(a).
“Debt
Transfer Offer” has the meaning set forth in Section
6(a).
“Default
Disposition” means any private or public Disposition of all
Collateral or any material portion of the Collateral by any Loan
Party with the consent of Agent (acting at the direction of the
Required First Out Holders) after the occurrence and during the
continuance of an Event of Default (and prior to the Payment in
Full of First Out Obligations), which Disposition is conducted in
connection with good faith efforts by Agent to collect the
Obligations through the Disposition of Collateral.
“DIP
Cap” sum of (a) the greater of (i) the difference of (x) 5%
of the principal amount of the combined Last-Out Term Loan and
First Out Obligations outstanding at the time of the occurrence of
an Insolvency Proceeding (with all Letter of Credit Usage being
deemed included in the calculation of such principal amount) minus
(y) the amount of any Overadvances (as defined in the Credit
Agreement) outstanding on the date of the occurrence of such
Insolvency Proceeding that do not constitute Excluded Overadvances
and (ii) the difference of (x) $10,000,000 minus (y) the amount of
any Overadvances outstanding on the date of the occurrence of an
Insolvency Proceeding that do not constitute Excluded Overadvances
(the amount under this clause (a) being referred to as the
“Cushion Amount”) (provided that, for the avoidance of
doubt, the Cushion Amount shall be a one-time increase to the
principal amount of the Loans and not be applicable until after the
occurrence of an Insolvency Proceeding) plus, (b) in each case, the
principal amount of any portion of the Last-Out Term Loan and/or
First Out Obligations which is to be refinanced by such DIP
Financing plus (c) all interest, fees, costs, charges, expenses,
indemnities, and other amounts accrued or charged with respect to
the First Out Obligations and/or the Last-Out Term Loan as and when
the same accrues or becomes due and payable, irrespective of
whether the same is added to the principal amount of the First Out
Obligations or Last-Out Term Loan and including the same as would
accrue and become due but for the commencement of an Insolvency
Proceeding, whether or not such amounts are allowed or allowable,
in whole or in part, in any such Insolvency
Proceeding.
“DIP
Financing” has the meaning set forth in Section
5(b).
“DIP
Financing Conditions” means (a) the interest rates, fees,
advance rates, lending sublimits and limits and other terms
applicable to the DIP Financing are commercially reasonable under
the circumstances, (b) the Liens securing the DIP Financing are
senior to or pari passu with any Liens in Collateral securing the
prepetition Obligations and (c) the DIP Financing does not exceed
the DIP Cap.
“Disposition
or Dispose” means the sale, assignment, transfer, license,
lease (as lessor), exchange, or other disposition (including any
sale and leaseback transaction) of any property by any Person (or
the granting of any option or other right to do any of the
foregoing).
“Disqualified
Equity” means any Equity Interests that, by its terms (or by
the terms of any security or other Equity Interests into which it
is convertible or for which it is exchangeable), or upon the
happening of any event or condition (a) matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise
(except as a result of a change of control or asset sale so long as
any rights of the holders thereof upon the occurrence of a change
of control or asset sale event will be subject to the prior
repayment in full of the Obligations), (b) is redeemable at the
option of the holder thereof, in whole or in part, (c) provides for
the scheduled payments of dividends in cash, or (d) is or becomes
convertible into or exchangeable for Debt or any other Equity
Interests that would constitute Disqualified Equity, in each case,
prior to the date that is 90 days after the latest maturity date
applicable to the Obligations.
“Distributions”
means (a) all payments made by any Loan Party on account of the
Obligations, (b) all proceeds of insurance policies and awards or
other payments with respect to any condemnation or similar
proceeding, and (c) all Proceeds of Collateral received in
connection with an Exercise of Remedies, but excluding Permitted
Reorganization Securities received by any Last Out
Holder.
“Exercise
of Remedies” or “Exercise Any Remedies”
means:
(a) the
exercise of any right or remedy against any Loan Party available to
Agent and Lenders under the Loan Documents upon the occurrence of
an Event of Default, including acceleration of all or substantially
all of the First Out Obligations or Last Out
Obligations,
(b) the
exercise of any right or remedy with respect to Collateral provided
to a secured creditor under the Loan Documents or applicable law,
at equity, in an Insolvency Proceeding or otherwise (including the
solicitation of bids from third parties to conduct the Disposition
of all Collateral or a material portion of the Collateral or the
engagement or retention of sales brokers, marketing agents,
investment bankers, accountants, appraisers, auctioneers or other
third parties for the purposes of valuing, marketing, or Disposing
such Collateral, in each case to the extent undertaken and being
diligently pursued in good faith to consummate the Disposition of
such Collateral within a commercially reasonable
time),
(c) the
exercise of any right of setoff or recoupment against Collateral
with respect to Obligations owed to any Loan Party (other than the
exercise by Agent or any First Out Lender providing cash management
services of any setoff or recoupment rights with respect to
returned items in the ordinary course of business unless
accompanied by an event described in clause (a) or (b) above),
and
(d) the
pursuit of any Default Disposition relative to all or a material
portion of the Collateral to the extent undertaken and being
diligently pursued in good faith to consummate the Disposition of
such Collateral within a commercially reasonable time.
Anything to the
contrary contained in the foregoing notwithstanding, Exercise of
Remedies does not include (x) the increase of the rate of interest
(or the imposition of default rate interest) applicable to all or
any portion of the Obligations pursuant to the provisions of the
Loan Documents or (y) the sweeping of cash under blocked account
arrangements unless accompanied by an event described in clause (a)
or (b) above.
“Excluded
Overadvances” means, as of any date of determination,
Overadvances arising as a result of (a) a decline in the most
recent value of Accounts in the Borrowing Base or the most recent
appraised value of any other Collateral which is in the Borrowing
Base, (b) any act or omission of the Borrowers in violation of the
Credit Agreement, (c) any other similar circumstance not caused by
Agent or any First Out Holder, (d) the imposition of any Reserve by
Agent or (e) any Revolver Usage without actual knowledge by Agent
and/or First Out Holders that such Revolver Usage would result in
an Overadvance or increase the amount of any outstanding
Overadvance.
“Exigent
Circumstances” means (a) a fraud has been committed by any
Loan Party in connection with the First Out Obligations or (b) an
event or circumstance that, in the good faith judgment of the
Agent, is reasonably likely to cause a material diminution in the
value of the Collateral or to threaten the First Out Holders'
ability to realize upon any material portion of the
Collateral.
“First Out
Holder” means, as of any date of determination, any holder of
the First Out Obligations at that time, including (a) Agent (to the
extent any Obligations owing to Agent are First Out Obligations),
(b) each Lender holding First Out Obligations, (c) each Issuer with
respect to First Out Obligations consisting of Letter of Credit
Obligations, and (d) each Person with respect to First Out
Obligations consisting of any Bank Product.
“First Out
Obligations” means the Obligations in respect of the
Revolving Loans, Letter of Credit Obligations, Bank Product
Obligations, and Protective Advances, including, without
limitation, all interest, fees, costs, charges, expenses,
indemnities, and other amounts accrued or charged with respect to
any of the foregoing amounts as and when the same accrue or become
due and payable, irrespective of whether the same are added to the
principal amount of the First Out Obligations and including the
same as would accrue and become due but for the commencement of an
Insolvency Proceeding, whether or not such amounts are allowed or
allowable, in whole or in part, in any such Insolvency
Proceeding.
“First
Out Parties” has the meaning set forth in Section
2(c).
“First Out
Pro Rata Share” means, with respect to any First Out
Holder,
(a)
prior to the
Revolver Commitments being terminated or reduced to zero, the
percentage obtained by dividing (1) the sum of such First Out
Holder's Revolver Commitment by (2) the aggregate amount of
Revolver Commitments of all First Out Holders, and
(b)
from and after the
time that the Revolver Commitments have been terminated or reduced
to zero, the percentage obtained by dividing (1) the outstanding
principal amount of such First Out Holder's Revolving Loan Exposure
by (2) the outstanding principal amount of all Revolving Loan
Exposure.
“First Out
Secured Claim” means any portion of the First Out Obligations
that would not be an unsecured claim under section 506(a) of
the Bankruptcy Code if the First Out Obligations were secured by a
separate Lien on the Collateral with priority over a separate Lien
on the Collateral securing the Last Out Obligations.
“First Out
Triggering Event” means the occurrence of
(a) acceleration of all or substantially all of the First Out
Obligations or Last Out Obligation, (b) the Exercise of
Remedies by Agent against all Collateral or a material portion of
the Collateral, (c) any of the Obligations owing to any First Out
Holder have not been paid in full when due and owing (after giving
effect to any applicable grace period), (d) the commencement
of an Insolvency Proceeding against any Loan Party or (e) the
occurrence of a Holdout Event.
“FO Retained
Interest” has the meaning set forth in Section
6(b).
“FO Purchase
Notice” has the meaning set forth in Section
6(c).
“FO
Qualifying Purchaser” means a First Out Holder who, together
with its Affiliates, has a First Out Pro Rata Share greater than
10% and is not a Defaulting Lender.
“Holdout
Event” means the Required Last Out Holders have not consented
to or have withheld their consent to any proposed Modification that
has been approved in writing by the Required First Out Holders (or
that the Required First Out Holders have stated in writing
addressed to the Agent and Last Out Representative that they would
have approved but for the restrictions set forth in Section 2
hereof and/or Section 14.1 of the Credit Agreement), but that has
not been approved by the Required Lenders or all Lenders, as the
case may be.
“Holdout Loan
Holder” means any Last-Out Term Loan Lender that has not
consented to or has withheld its consent to any proposed
Modification that has been approved in writing by the Required
First Out Holders (or that the Required First Out Holders have
stated in writing addressed to the Agent and Last Out
Representative that they would have approved but for the
restrictions set forth in Section 2 hereof and/or Section 14.1 of
the Credit Agreement), but that has not been approved by the
Required Lenders or all Lenders, as the case may be
“Indemnified
Liabilities” has the meaning set forth in Section 7(b).
“Insolvency Default” means an Event of Default
described in Section 8.4 or 8.5 of the Credit Agreement that has
occurred and is continuing.
“Insolvency
Law” means any provision of the Bankruptcy Code or any other
state or federal bankruptcy or insolvency law, assignments for the
benefit of creditors, formal or informal moratoria, compositions,
extensions generally with creditors, or proceedings seeking
reorganization, dissolution, administration, liquidation,
winding-up arrangement, or other similar relief or any analogous
procedure is taken in any jurisdiction.
“Insolvency
Proceeding” means any proceeding commenced by or against any
Loan Party under any provision of any Insolvency Law, assignments
for the benefit of creditors, formal or informal moratoria,
compositions, extensions generally with creditors, or proceedings
seeking reorganization, arrangement, or other similar
relief.
“Last Out
Holder” means, as of any date of determination, the holders
of the Last Out Obligations at that time, including (a) Last Out
Representative and (b) each Lender holding Last Out
Obligations.
“Last Out
Obligations” means the Obligations in respect of the Last-Out
Term Loan, including, without limitation, all interest, fees,
costs, charges, expenses, indemnities, and other amounts accrued or
charged with respect to any of the foregoing amounts as and when
the same accrue or become due and payable, irrespective of whether
the same are added to the principal amount of the Last Out
Obligations and including the same as would accrue and become due
but for the commencement of an Insolvency Proceeding, whether or
not such amounts are allowed or allowable, in whole or in part, in
any such Insolvency Proceeding.
“Last Out
Parties” has the meaning set forth in Section
2(c).
“Last Out Pro
Rata Share” means, with respect to any Last Out Holder, the
percentage obtained by dividing (a) the unpaid principal amount of
such Last Out Holder's portion of the Last-Out Term Loan by (b) the
aggregate unpaid principal amount of the Last-Out Term Loan held by
the Last Out Holders.
“Last Out
Representative” and Last Out Representative-Related
Person” have the meanings set forth in Section
7.
“Last Out
Secured Claim” means any portion of the Last Out Obligations
that would not be an unsecured claim under section 506(a) of
the Bankruptcy Code if the First Out Obligations were secured by a
separate Lien on the Collateral with priority over a separate Lien
on the Collateral securing the Last Out Obligations.
“Last Out
Triggering Event” means the occurrence of
(a) acceleration of all or substantially all of the First Out
Obligations, (b) the Exercise of Remedies by Agent against all
Collateral or a material portion of the Collateral, (c) non-payment
of any interest or principal payment to Last Out Holders of Last
Out Obligations when due under the Credit Agreement (after giving
effect to any applicable grace period, including, without
limitation, the right of Borrowers to defer payment of certain
principal payments without causing an Event of Default pursuant to
Section 2.2(b) of the Credit Agreement), (d) an Insolvency
Default or (e) an Application Event.
“LO Purchase
Notice” has the meaning set forth in Section
6(b).
“LO
Qualifying Purchaser” means a Last Out Holder who, together
with its Affiliates, has a Last Out Pro Rata Share greater than 25%
and is not a Defaulting Lender.
“LO Retained
Interest” has the meaning set forth in Section
6(c).
“Lender
Party” means Agent, Last Out Representative and/or any Lender
party to the Credit Agreement and each of their respective
successors and assigns.
“Lenders”
means the "Lenders" under and as defined in the Credit
Agreement.
“Modify”
or “Modification” as applied to any document or
obligations, includes: (a) modification by amendment, supplement,
termination or replacement of the document or obligations, (b) any
waiver of a provision (including waiver by course of conduct), and
(c) settlement or release of any rights or claims, in each case
whether oral or written, and regardless of whether the modification
is in conformity with the provisions of the document or obligation
governing modifications.
“Non-Conforming
DIP” has the meaning set forth in Section 5(b).
“Non-Debt
Reorganization Securities” means Reorganization Securities
which are not Debt Reorganization Securities.
“Offered
Interest” has the meaning set forth in Section
6(a).
“Payment in
Full of First Out Obligations” means, except to the extent
otherwise expressly provided in Section 5(f):
(a)
payment in full in
cash or immediately available funds of all of the First Out
Obligations, other than outstanding Letters of Credit, Bank Product
Obligations and unasserted contingent indemnification
obligations;
(b)
termination or
expiration of all commitments, if any, of any Lender to extend
First Out Obligations to any Loan Party;
(c)
termination of, or
providing cash collateral (in an amount, to the extent, and in the
manner required by the Credit Agreement) in respect of, all
outstanding Letters of Credit that compose a portion of the First
Out Obligations;
(d)
payment in full of,
termination of, or providing cash collateral (in an amount, to the
extent, and in the manner required by the Credit Agreement) in
respect of, all Bank Product Obligations; and
(e)
providing cash
collateral to Agent in such amount as Agent determines is
reasonably necessary to secure First Out Holders in respect of any
asserted or threatened (in writing) claims, demands, actions,
suits, proceedings, investigations, liabilities, fines, costs,
penalties, or damages for which any of First Out Holders may be
entitled to indemnification by any Loan Party pursuant to the
indemnification provisions in the Loan Documents.
“Permitted
Actions” has the meaning set forth in Section
3(d).
“Permitted
Reorganization Securities” means (a) Debt Reorganization
Securities that are subject to an intercreditor agreement or
agreement among lenders that is substantially consistent with the
terms and substance of this Exhibit IC-1 (including, without
limitation, provisions that preserve the relative payment
priorities of the First Out Obligations vis-a-vis the Last Out
Obligations that have been established pursuant to the terms of the
Credit Agreement); provided, that the waterfall set forth in any
such agreement will only apply to Distributions upon a new
waterfall triggering event as set forth in such agreement that
occurs after the effective date of the applicable Plan, and (b)
Non-Debt Reorganization Securities that are not Disqualified
Equity.
“Plan”
means a confirmed plan of reorganization or similar dispositive
restructuring plan affecting creditors' rights generally pursuant
to an Insolvency Proceeding.
“Proceeds of
Collateral” means all proceeds of Collateral, including (a)
all "proceeds" of Collateral as defined by Article 9 of the Uniform
Commercial Code as in effect in the State of Illinois and (b) all
other amounts or assets distributed on account of any First Out
Secured Claim or Last Out Secured Claim or the proceeds thereof,
but excluding Permitted Reorganization Securities received by any
Last Out Holder.
“Recovery”
has the meaning set forth in Section 5(f).
“Reorganization
Securities” means any notes, equity interests, or other
securities (whether debt, equity, or otherwise) issued by a
reorganized debtor that are distributed pursuant to a Plan on
account of the First Out Obligations and/or the Last Out
Obligations in any Insolvency Proceeding of a Loan
Party.
“Required
First Out Holders” means Lenders whose First Out Pro Rata
Shares aggregate over 50.1%.
“Required
Last Out Holders” means Lenders whose Last Out Pro Rata
Shares aggregate over 50.1%.
“Standstill
Notice” means a written notice from Last Out Representative
at the request of Required Last-Out Term Loan Lenders to Agent
identified by its terms as a Standstill Notice for purposes of this
Exhibit IC-1 when an Event of Default has occurred and remains
continuing (it being understood that if at any time after the
delivery of a Standstill Notice, no Event of Default is continuing,
such Standstill Notice will be deemed not to have been received by
Agent).
“Standstill
Termination Date” means the earliest of (i) 60 days following
Agent's receipt of each applicable Standstill Notice, (ii) the
acceleration of all or substantially all of the First Out
Obligations, (iii) the commencement of an Insolvency Proceeding by
or against a Loan Party, (iv) the receipt by Last Out Holders of
the written consent of Agent and Required First Out Holders to the
termination of the applicable standstill period under clause (i)
above, or (v) the Payment in Full of First Out
Obligations.
“Transferee
Lender” means (a) in the case of a Debt Transfer by a First
Out Holder, each Last Out Holder who, together with its Affiliates,
has a Last Out Pro Rata Share greater than 25% and is not a
Defaulting Lender and (b) in the case of a Debt Transfer by a Last
Out Holder, each First Out Holder who, together with its
Affiliates, holds a First Out Pro Rata Share greater than 25% and
is not a Defaulting Lender.
“Transferor
Lender” means each Lender transferring its Obligations
pursuant to an applicable Debt Transfer.
(b) Usages
Singular and
plural. Definitions of terms in this Exhibit IC-1 apply equally to
the singular and plural forms.
Masculine and
feminine. Pronouns include the corresponding masculine, feminine,
and neuter forms.
Including.
"Include," "includes," and "including" will mean and be deemed to
be followed by the phrase "without limitation."
Will
and shall. "Will" and "shall" have the same meaning.
Or. "A
or B" means "A or B or both."
Statutes.
References to a statute refer to the statute and all regulations
promulgated under or implementing the statute as in effect at the
relevant time. References to a specific provision of a statute
include successor provisions. References to sections of the
Bankruptcy Code also refer to any similar provision of Insolvency
Law.
Successors and
assigns. References to a Person include the Person's permitted
successors and assigns.
Herein,
etc. "Herein," "hereof," "hereunder," and words of similar import
refer to this Exhibit IC-1 in its entirety and not to any
particular provision.
References to
agreements. Unless the context requires otherwise:
(i) except
as otherwise provided herein, any definition of or reference to any
agreement, instrument, or other document herein will be construed
as referring to such agreement, instrument, or other document as
from time to time amended, restated, supplemented, modified,
renewed, extended, refinanced, refunded, or replaced;
(ii) any
reference to any agreement, instrument, or other document herein
"as in effect on the date hereof" will be construed as referring to
such agreement, instrument, or other document without giving effect
to any amendment, restatement, supplement, modification, or
Refinancing thereto or thereof occurring after the date
hereof;
(iii) except
as otherwise expressly provided herein, any reference to Agent
agreeing to or having the right to do, or refraining from or having
the right to refrain from doing, an act will be construed as
binding on each of the Lenders; any reference to Agent will be
construed as referring to Agent, for itself and on behalf of the
Lenders; any reference to Last Out Representative agreeing to or
having the right to do, or refraining from or having the right to
refrain from doing, an act will be construed as binding upon each
Last Out Holder; any reference to Last Out Representative will be
construed as referring to Last Out Representative, for itself and
on behalf of the other Last Out Holders.
Each of
the Agent and Lenders agree that no Modification shall be made to
any of the following provisions without the written consent of each
Last-Out Term Loan Lender directly affected thereby to do any of
the following:
increase the amount
of or extend the expiration date of any Commitment of any Last-Out
Term Loan Lender;
postpone or delay
any date fixed by the Credit Agreement or any other Loan Document
for any payment of principal, interest, fees, or other amounts due
hereunder or under any other Loan Document in respect to any
Last-Out Term Loan Lender;
reduce
the principal of, or the rate of interest on, any loan or other
extension of credit hereunder, or reduce any fees or other amounts
payable hereunder or under any other Loan Document with respect to
Last-Out Term Loan Lender (except (x) in connection with the
waiver of applicability of Section 2.6(c)(i) of the
Credit Agreement (which waiver shall be effective with the written
consent of the Required Lenders), (y) in connection with the
waiver of applicability of Section 2.6(c)(ii) (which
waiver shall be effective with the written consent of the Required
Last Out Holders), and (z) that any amendment or modification
of defined terms used in the financial covenants in the Credit
Agreement shall not constitute a reduction in the rate of interest
or a reduction of fees for purposes of this
clause (iii));
Modify
Section 14.1 of the Credit Agreement or any provision of
the Credit Agreement providing for consent or other action by all
Lenders;
Modify
Section 3.1 or 3.2 of the Credit Agreement;
Modify
Section 15.11 of the Credit Agreement;
other
than as permitted by Section 15.11 of the Credit Agreement or
this Exhibit IC-1, release Agent’s Lien in and to any of the
Collateral;
Modify
the definitions of “Required Lenders,”
“Supermajority Lenders,” or “Pro Rata
Share”;
other
than pursuant to a DIP Financing as to which the Required First Out
Holders have provided their consent or as permitted pursuant to the
definition of “Permitted Indebtedness” or Section 6.1
of the Credit Agreement as in effect as of the Amendment No. 6
Effective Date, contractually subordinate any of Agent’s
Liens;
other
than in connection with a merger, liquidation, dissolution or sale
of such Person expressly permitted by the terms hereof or the other
Loan Documents, release any Borrower or any Guarantor from any
obligation for the payment of money or consent to the assignment or
transfer by any Borrower or any Guarantor of any of its rights or
duties under the Credit Agreement or the other Loan Documents;
or
Modify
any of the provisions of Section 2.4(b)(i), (ii), or
(iii) or Section 2.4(e) or (f) of the Credit
Agreement.
Each of
the Agent and Lenders agree that no Modification shall be made to
any of the following provisions without the written consent of the
Required Last Out Holders and the Required First Out Holders to do
any of the following:
Modify
the definition of “Change of Control” or Section 8.11
of the Credit Agreement;
Modify
Section 5.1 or 5.2 or Schedule 5.1 or 5.2 of the Credit Agreement
(provided that the Required First Out Holders acting alone may
waive any Default or Event of Default arising due to delays in
delivering required reporting (other than Borrowing Base
Certificates) on no more than two (2) occasions in any fiscal
year);
Modify
the definition of “Permitted Indebtedness” or Section
6.1 of the Credit Agreement to permit the incurrence of
Indebtedness that is pari passu or senior in right of payment to
the First Out Obligations;
other than
pursuant to a DIP Financing as to which the Required First Out
Holders have provided their consent, contractually subordinate the
First Out Obligations to any other Indebtedness;
(A) Modify the
definition of “Borrowing Base,” “Borrowing
Base (Individual),” or any of the defined terms that are
used in any such definition to the extent that any such change
results in more credit being made available to one or more
Borrowers based upon the Borrowing Base or any Borrowing
Base (Individual), but not otherwise; (B) Modify the
definition of “Term Loan Collateral Base” or any of the
defined terms that are used in any such definition to the extent
that any such change results in more or less credit being made
available to Borrowers based upon the Last-Out Term Loan Collateral
Base; or (C) Modify the definition of “Initial Maximum Real
Property Sublimit Amount,” “Maximum Real Property
Sublimit Amount,” “Maximum Revolver Amount,” or
“Last-Out Term Loan Amount”;
Modify
any Reserves existing on the Amendment No. 6 Effective Date (other
than the GFC 2021 Notes Indenture Cap Cushion Amount and any
other Reserves which, by their terms, adjust due to criteria set
forth in the Credit Agreement so long as any such adjustment that
results in a reduction of Reserves is a result of the basis for
such Reserve being in place no longer being
applicable);
Modify
any of the definitions of “Overadvance,”
“Protective Advances,” or “Extraordinary
Advance” or the relevant provisions thereof so as to increase
the amount thereof or any applicable time period for which an
Overadvance, Protective Advance or Extraordinary Advance may be
outstanding;
Modify
the definition of “Permitted Disposition” or the
conditions under which any Restricted Payments can be
made;
any
waiver or consent with respect to any Default or Event of Default
under the resulting from the Borrowers failing to comply with any
financial covenant set forth in Section 7 of the Credit
Agreement;
Modify
Section 2.14 of the Credit Agreement or any of the defined terms
used therein in a manner which increases the aggregate amount of
the Revolver Commitments or the Maximum Revolving Amount above the
levels allowed in such Section 2.14 as of the Amendment No. 6
Effective Date; or
any
waiver or consent with respect to any Default or Event of Default
resulting from a violation of any negative covenant contained in
Section 6 of the Credit Agreement arising as a result of the
Borrowers exceeding any dollar-denominated basket or threshold
amount set forth in that negative covenant by 20% or more of that
basket or threshold amount.
In the
event that any Person who is initially a Last Out Holder (together
with its Affiliates and Related Funds, the “Last Out
Parties”) subsequently holds or acquires, whether directly or
indirectly any First Out Obligations that (together with any First
Out Obligations held or acquired by any other Last Out Parties) are
less than the Cross Over Threshold of the aggregate First Out
Obligations outstanding at any date of determination, each such
Last Out Party in any proxy therefor shall be deemed to not be a
First Out Holder under this Exhibit IC-1 for purposes of measuring
First Out Pro Rata Share in connection with the calculation of
Required First Out Holders for purposes of (i) any consent (or
decision not to consent) to any Modification with respect to any of
the terms of this Exhibit IC-1, the Credit Agreement or the other
Loan Documents or in respect of any consent, waiver, vote or other
action in connection with any Insolvency Proceeding, (ii) any other
action on any matter related to this Exhibit IC-1 or any Loan
Document or, in connection with its role as a Lender, occurring in
relation to any Insolvency Proceeding, or (iii) any direction to
Agent or any Lender; and in furtherance thereof, such Last Out
Party in any proxy therefor shall be deemed to have voted (and, at
the request of Required First Out Holders (determined without
giving effect to such Last Out Party), shall so vote, and if it
fails to promptly so vote, such Required First Out Holders shall
have a proxy (which proxy is coupled with an interest and shall be
irrevocable during the term hereof) and the right to vote) its
interest as a First Out Holder in accordance with the vote of the
Required First Out Holders determined without giving effect to Last
Out Parties. In the event that any Person who is initially a First
Out Holder (together with its Affiliates and Related Funds, the
“First Out Parties”) subsequently holds or acquires,
whether directly or indirectly any Last Out Obligations that
(together with any Last Out Obligations held or acquired by any
other First Out Parties) are less than the Cross Over Threshold of
the aggregate Last Out Obligations, each such First Out Party or
any proxy therefor shall be deemed to not be a Last Out Holder
under this Exhibit IC-1 for purposes of measuring Last Out Pro Rata
Share in connection with the calculation of Required Last-Out Term
Loan Lenders for purposes of (i) any consent (or decision not to
consent) to any Modification with respect to any of the terms of
this Exhibit IC-1, the Credit Agreement or the other Loan Documents
or in respect of any consent, waiver, vote or other action in
connection with any Insolvency Proceeding, (ii) any other action on
any matter related to this Exhibit IC-1 or any Loan Document or, in
connection with its role as a Lender, occurring in relation to any
Insolvency Proceeding, or (iii) any direction to Agent or any
Lender; and in furtherance thereof such First Out Party shall be
deemed to have voted (and, at the request of Agent, shall so vote,
and if it fails to promptly so vote, Agent shall have a proxy
(which proxy is coupled with an interest and shall be irrevocable
during the term hereof) and the right to vote) its interest as a
Last Out Holder in accordance with the vote of the Required Last
Out Holders determined without giving effect to First Out Parties.
For purposes of this Section 2(c), if a Person becomes a Lender
under the Credit Agreement and holds both First Out Obligations and
Last Out Obligations at such time, then such Person shall be deemed
to be a Last Out Party if it initially holds more Last Out
Obligations than First Out Obligations at such time and shall be
deemed to be a First Out Party if it initially holds more First Out
Obligations than Last Out Obligations at such time (and if it holds
both types of Obligations in an equal amount, Agent, Last Out
Representative and such Person shall determine reasonably and in
good faith whether such Person shall be deemed to be a First Out
Party or a Last Out Party, and pending such agreement, it shall be
deemed to have voted its interest in the same proportions as the
vote of the other Lenders who are entitled to vote hereunder on the
applicable matter).
For
purposes of this Section 2(c), “Cross-Over Obligations”
means (a) any First Out Obligations and Revolver Commitments
acquired by any Last Out Party, (b) any Last Out Obligations
acquired by any First Out Parties and (c) all First Out
Obligations, Revolver Commitments and Last Out Obligations
simultaneously acquired by any Person, its Affiliates or Related
Funds. Notwithstanding anything to the contrary contained in
Section 2(c)(i), each First Out Party and Last Out Party holding
Cross-Over Obligations will have the rights of a Lender under
Section 14.1 of the Credit Agreement applicable to any matter
requiring the consent or approval of all Lenders except that no
such First Out Holder or Last Out Holder holding Cross-Over
Obligations will have any right under Section 14.1 of the Credit
Agreement in its capacity as a holder of such Cross-Over
Obligations to object to an action taken by Agent pursuant to
Section 3 or Section 5 of this Exhibit IC-1 in respect of any
consent, waiver, vote (other than a vote under a Plan) or other
action in connection with any Insolvency Proceeding.
No
Lender will vote to Modify, or take any action under, any Loan
Document in a manner inconsistent with the provisions of this
Section 2.
Except
as otherwise provided in this Section 3 and Section 6(b)(ii), until
Payment in Full of First Out Obligations, Required First Out
Holders will have the exclusive right to direct Agent in writing to
take one or more Exercise of Remedies and any such direction will
be deemed to have been given by Required Lenders pursuant to the
applicable terms of the Loan Documents.
Notwithstanding the
preceding Section 3(a)(i) except as otherwise provided in Section
6(c)(ii), Required Last Out Holders may direct Agent in writing to
take one or more Exercise of Remedies if
the
Standstill Termination Date has occurred,
within
5 Business Days after receipt of such direction, Agent, acting at
the direction of Required First Out Holders, is not then diligently
pursuing in good faith the Exercise of Remedies with respect to a
material portion of Collateral or diligently attempting to vacate
any stay or prohibition against such Exercise of
Remedies,
the
applicable Event of Default, in respect of which the Exercise of
Remedies would occur, is continuing and has not been cured or
waived (unless a new or different Event of Default has occurred and
is continuing prior to such cure and waiver, and has not been cured
or waived), and
in the good
faith determination of Agent, taking such Exercise of Remedies is
permitted under the terms of the Loan Documents and applicable law
and will not result in any liability of Agent or the Lenders to any
Loan Party or any other Person.
Within 5
Business Days after receipt of such direction under Section
3(a)(ii), Agent may, and at the written direction of Required Last
Out Holders will, offer to appoint Last Out Representative as a
sub-agent of Agent to Exercise Any Remedies as directed by Required
Last Out Holders in accordance with Section 3(a)(ii). Within 5
Business Days of such appointment, Last Out Representative may
elect to not accept such appointment in which event Agent may
appoint any other Lender or other third Person, reasonably
acceptable to both Agent and Last Out Representative, to serve as a
sub-agent of Agent for such purposes. Each accepted appointment of
a sub-agent pursuant to this clause must be unconditional and
irrevocable and each sub-agent that accepts such appointment will
be deemed to have assumed the responsibilities of Agent under this
Exhibit IC-1 and the other Loan Documents solely with respect to
the Exercise of Remedies that are the subject of the applicable
direction. If an applicable sub-agent does not accept an
appointment under this subsection, Agent will remain obligated to
Exercise Any Remedies as directed and otherwise in accordance with
the Loan Documents and this Exhibit IC-1.
Agent
will not Exercise Any Remedies except upon a written demand from
Required Lenders or pursuant to clauses (a)(i) and (a)(ii) of this
Section 3. Agent will promptly deliver to each Lender a copy of
each written direction of the other Lenders to Exercise Any
Remedies.
Agent,
Last Out Representative and each applicable sub-agent appointed
under this Section 3 will Exercise Any Remedies in a manner that
complies with this Exhibit IC-1, the Loan Documents and applicable
law.
Agent
is entitled to all of the rights and benefits under the Loan
Documents, including Section 15.7 of the Credit Agreement, in
connection with any direction made under this Exhibit IC-1 to
Exercise Any Remedies. Last Out Representative and each applicable
sub-agent appointed under this Section 3 is entitled to all of the
rights and benefits under this Exhibit IC-1 for Last Out
Representative including Section 7, in connection with any
direction made under this Exhibit IC-1 to Exercise Any Remedies. As
set forth in Section 7, only Last Out Holders will owe
indemnification obligations to Last Out Representative and any
sub-agent appointed pursuant to this Section 3.
Agent
(and each applicable sub-agent appointed under this Section 3) will
provide to each Lender, subject to the execution of a customary
access letter if required by any investment banker or appraiser,
copies of any appraisals and valuations obtained by Agent in
connection with the Exercise of Remedies.
No Last
Out Holder will take any action that would hinder, delay or
otherwise interfere with any Exercise of Remedies directed by
Required First Out Holders in accordance with this Exhibit IC-1. No
First Out Holder will take any action that would hinder, delay or
otherwise interfere with any Exercise of Remedies directed by
Required Last Out Holders in accordance with this Exhibit
IC-1.
Each
Lender waives all rights to object to the manner that Agent, Last
Out Representative or any applicable sub-agent appointed under
Section 3 seeks to Exercise Any Remedies so long as such Exercise
of Remedies is otherwise in accordance with this Exhibit IC-1, the
Loan Documents and applicable law.
Subject
to the other terms of this Exhibit IC-1 and notwithstanding
anything in the Loan Documents to the contrary, the following
actions (“Permitted Actions”) will be taken by Agent
acting at the direction of Required First Out Holders or by Last
Out Representative acting at the direction of Required Last Out
Holders:
legal
action against any Loan Party for specific performance or
injunctive relief to compel a Loan Party to comply with (or not
violate or breach) Sections 5.1 and 5.2 of the Credit Agreement,
provided such action (1) is not accompanied by a claim for monetary
damages or other monetary relief, (2) is not an action to or
accompanied by an action seeking to enjoin or restrain, or seeking
other equitable relief in respect of, any Collateral, including the
Disposition thereof, and (3) does not hinder, delay or interfere
with any Exercise of Remedies pursuant to this Exhibit
IC-1,
legal
action within thirty (30) days of the expiration of, and solely to
the extent necessary to prevent the running of, any applicable
statute of limitation or similar restriction on claims under
applicable law (provided that no monetary damages, other monetary
relief or Proceeds of Collateral are received or retained in
connection therewith in contravention of the terms of this Exhibit
IC-1),
the
filing of responsive or defensive pleadings in opposition to any
motion, claim, adversary proceeding or other pleadings in
opposition to any motion, claim, adversary proceeding or other
pleading made by any Person objecting to or otherwise seeking the
disallowance of the Obligations, so long as such pleading is not
otherwise in contravention of the terms of this Exhibit
IC-1,
any
action to assert a compulsory crossclaim or counterclaim against a
Loan Party (provided no monetary damages, other monetary relief or
Proceeds of Collateral are received or retained in connection
therewith in contravention of the terms of this Exhibit IC-1),
and
during
an Insolvency Proceeding (1) the filing of any proof of claim and
(2) the making of any other filings or arguments and motions that
are, in each case under this Section 3(d)(v), in accordance with
and not in contravention of any of the terms of this Exhibit
IC-1.
First
Out Holders agree not to object to a credit bid of the Last Out
Obligations made by the Last Out Holders in accordance with Section
363(k) of the Bankruptcy Code (or any similar provision in any
other Insolvency Law) so long as the Payment in Full of First Out
Obligations occurs in conjunction with or prior to any such credit
bid, and Last Out Holders are authorized to effectuate (or direct
Agent to effectuate) the foregoing. Last Out Holders agree not to
object to a credit bid of the First Out Loan Obligations owing to
First Out Holders and their Affiliates made by the First Out
Holders in accordance with Section 363(k) of the Bankruptcy Code
(or any similar provision in any other Insolvency Law) so long as
the First Out Loan owing to First Out Holders and their Affiliates
are paid or offset against in accordance with Section 2.4(b) of the
Credit Agreement, and First Out Holders are authorized to
effectuate (or direct Agent to effectuate) the
foregoing.
Except
as otherwise expressly set forth in this Exhibit IC-1, all
Distributions received by Agent or any Lender shall be applied in
accordance with the terms of Section 2.4(b) of the Credit
Agreement. Any Distributions received by any Last Out Holder as a
result of the collusion by any Last Out Holder with any Loan Party
in violation of the rights of any First Out Holder (within the
meaning of section 9-332 of the Uniform Commercial Code) must be
segregated and held in trust and forthwith paid over to Agent for
application in accordance with Section 2.4(b) of the Credit
Agreement, in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise
direct. Agent is hereby authorized to make any such endorsements as
agent for Last Out Holders and this authorization is coupled with
an interest and is irrevocable until the Payment in Full of First
Out Obligations and payment in full in cash of the Last Out
Obligations.
Non-Cash
Proceeds
Any
Distributions received by Agent in a form other than cash will be
held by Agent as Collateral and, at such time as such non-cash
proceeds, amount or assets, are monetized and reduced to cash, will
be applied in the order of application set forth in either Section
2.4(b) of the Credit Agreement. Agent will have no duty or
obligation to take actions to monetize such non-cash Distributions
unless Agent is otherwise required to do so in accordance with the
terms of the Loan Documents. Notwithstanding the foregoing, in
connection with a Disposition of Collateral pursuant to any
Exercise of Remedies or pursuant to Section 5(c), Agent may accept
non-cash proceeds in satisfaction of a portion of the Obligations
in an amount as may be agreed to among Required Lenders or as
otherwise determined pursuant to a final, non-appealable order by a
court of competent jurisdiction.
Notwithstanding any
rights or remedies available to any Last Out Holder under any Loan
Document, applicable law or otherwise, without the prior written
consent of Required First Out Holders no Last Out Holder may
commence or join in the commencement of an Insolvency Proceeding
against any Loan Party at any time prior to the Standstill
Termination Date.
Notwithstanding any
rights or remedies available to any First Out Holder under any Loan
Document, applicable law or otherwise, except as otherwise provided
in Section 6(b)(ii), any First Out Holder may commence or join in
the commencement of an Insolvency Proceeding against any Loan Party
without providing notice to Last Out Representative or any Last Out
Holder.
Required First Out
Holders may direct Agent (A) to consent or object to any use of
Collateral consisting of cash collateral (as such term is defined
in section 363 of the Bankruptcy Code) (“Cash
Collateral”) and (B) to consent or object to any Loan Party
obtaining financing provided under section 364 of the Bankruptcy
Code (any such Cash Collateral usage and/or financing pursuant to
section 364 of the Bankruptcy Code, a “DIP Financing”).
If such DIP Financing meets all of the applicable DIP Financing
Conditions, no Last Out Holder may object to such DIP Financing in
its capacity as a secured creditor. If such DIP Financing meets
some but not all of the applicable DIP Financing Conditions, then
Required Last Out Holders may direct Last Out Representative to
object only with respect to the DIP Financing Condition(s) which
are not met.
Subject
to clause (iii), nothing contained in sub-clause (i) will be deemed
to limit (1) any First Out Holder from seeking to provide DIP
Financing on terms that do not satisfy the DIP Financing Conditions
(a “Non-Conforming DIP”) or (2) the rights of Required
First Out Holders to direct Agent to object to, or the rights of
Required Last Out Holders to direct Last Out Representative to
object to, any Non-Conforming DIP when offered.
Except
as expressly set forth in this Section 5(b)(iii), each Last Out
Holder agrees that neither it nor its Affiliates or Related Funds
may, directly or indirectly, provide, offer to provide, or
participate in (by participation, guarantee or similar credit
enhancement), any DIP Financing without the prior written consent
of the Agent and Required First Out Holders. Notwithstanding the
foregoing, the Last Out Holders can provide a DIP Financing if (A)
Required First Out Holders have not consented to Cash Collateral
use and are not seeking to provide DIP Financing and (B) the DIP
Financing provided or offered by the Last Out Holders is secured by
a Lien on a junior basis to the Liens securing (or purporting to
secure) any of the First Out Obligations, unless such DIP
Financing provided or offered by the Last Out Holders results
in Payment in Full of First Out Obligations on the initial closing
of such DIP Financing. Each First Out Holder expressly reserves the
right to object to, and direct the Agent to object to, any DIP
Financing offered by a Last Out Holder of the type prohibited in
this Section 5(b)(iii).
Required Last Out
Holders may direct Last Out Representative to object to any use of
Cash Collateral or DIP Financing if such objection could be
asserted by a creditor of the applicable Loan Party whose claims
are not secured by Liens on such Collateral, so long as such
objections are not in contravention of the provisions of this
Exhibit IC-1 (including the relative priorities specified herein)
and are not based on grounds that only may be asserted by the
holder of a Lien on such Collateral.
Required First Out
Holders may direct Agent to consent or object to any Disposition of
Collateral under section 363 or section 1129 of the Bankruptcy
Code. Last Out Holders may not object to or oppose any such
Disposition in its capacity as a secured creditor (including under
sections 363(e) and (f) of the Bankruptcy Code) if Agent has
consented to Disposition. Required Last Out Holders may direct Last
Out Representative to raise any objections to such Disposition of
the Collateral that could be raised by a creditor of the applicable
Loan Party whose claims are not secured by Liens on such
Collateral, so long as such objections are not in contravention of
the provisions of this Exhibit IC-1 (including the relative
priorities specified herein) and are not based on grounds that only
may be asserted by the holder of a Lien on such
Collateral.
Required First Out
Holders may direct Agent to seek relief from the automatic stay
imposed by section 362 of the Bankruptcy Code.
Last
Out Holders may not (i) seek (or support any other Person seeking)
relief from the automatic stay or any other stay in any Insolvency
Proceeding in respect of the Collateral except and to the extent
such relief is first obtained by Agent or any First Out Lender, or
(ii) oppose any request by Agent to seek relief from the automatic
stay or any other stay in any Insolvency Proceeding in respect of
the Collateral.
Required First Out
Holders may direct Agent (x) to seek adequate protection of the
interests of Agent and Lenders in the Collateral, including
replacement or additional Liens on any property of the estate of
any Loan Party and superpriority or other administrative claims
under Section 507(b) of the Bankruptcy Code or any similar
provision of Insolvency Law and (y) to object to any motion,
relief, action or proceeding based upon any lack of adequate
protection of the interests of Agent or any Lender in the
Collateral. Last Out Holders may not object to or otherwise oppose
any such action by Agent described in this Section 5(e)(i) so long
as such adequate protection is obtained on behalf of all Lenders
generally subject to the other terms and priorities of this Exhibit
IC-1 and the Credit Agreement.
If
Required First Out Holders direct Agent to seek adequate protection
in the form of cash or administrative expense claims, Required Last
Out Holders may direct Agent to seek such adequate protection
solely in the form of adequate protection obtained, with the cash
proceeds of such adequate protection being applied in accordance
with Section 2.4(b) of the Credit Agreement. If the Required First
Out Holders do not direct Agent to seek adequate protection
pursuant to this Section 5(e)(ii), then subject to Section 5(b),
Required Last Out Holders may direct Agent to seek adequate
protection of the interests of Agent and Lenders in the Collateral
in the form of replacement Liens on any property of the estate of
any Loan Party (without objection from any First out Holder),
subject to mutually agreeable terms between the First Out Holders
and the Last Out Holders. Except as set forth in this Section
5(e)(ii), no Last Out Holder may seek or direct Agent to seek
adequate protection of the interests of Agent and Lenders in the
Collateral. In each case, if so directed by the Required Last Out
Holders or the Last Out Representative in accordance with this
Section 5(e)(ii), Agent shall use reasonable efforts to honor such
directives.
If
Agent is granted adequate protection in the form of additional or
replacement Liens or in the form of superpriority or other
administrative expense claim, such Liens and claims and will
constitute Proceeds of Collateral pursuant to the terms of the Loan
Documents and this Exhibit IC-1. Payment of any such superpriority
or administrative expense claims under section 1129(a)(9) of the
Bankruptcy Code or otherwise and payment of any proceeds of Liens
will be made to Agent and applied in accordance with Section 2.4(b)
of the Credit Agreement.
No Last
Out Holder shall object to, oppose, or challenge the determination
of the extent of any Liens held Agent for the benefit of the First
Out Obligations or the value of the Collateral or any right to
payment pursuant to Section 2.4(b) of the Credit Agreement for any
post-petition interest, fees, costs or other charges.
If any
First Out Holder is required or otherwise agrees in any Insolvency
Proceeding or otherwise to turn over, disgorge, or otherwise pay to
the estate of any Loan Party any amount paid in cash in respect of
the Obligations (a “Recovery”), then (i) such First Out
Holder will be entitled to a reinstatement of the First Out
Obligations with respect to all such amounts, (ii) Payment in Full
of First Out Obligations will be deemed not to have occurred and
(iii) all rights, interests, priorities, and privileges recognized
in this Exhibit IC-1 will apply with respect to any such Recovery.
If the Credit Agreement and/or this Exhibit IC-1 has been
terminated prior to such Recovery, the Credit Agreement and/or this
Exhibit IC-1 will be reinstated in full force and effect, and such
prior termination will not diminish, release, discharge, impair, or
otherwise affect the obligations of the Parties hereto from such
date of reinstatement. If any Last Out Holder is required or
otherwise agrees in any Insolvency Proceeding or otherwise to turn
over, disgorge, or otherwise pay to the estate of any Loan Party
any amount paid in respect of the Obligations, then (i) such Last
Out Holder will be entitled to a reinstatement of the Last Out
Obligations with respect to all such amounts, (ii) Payment in Full
of Last Out Obligations will be deemed not to have occurred and
(iii) all rights, interests, priorities, and privileges recognized
in the Credit Agreement and this Exhibit IC-1 will apply with
respect to any such Last Out Obligations. If the Credit Agreement
and/or this Exhibit IC-1 has been terminated prior to such turn
over, disgorgement, or payment, the Credit Agreement and this
Exhibit IC-1 will be reinstated in full force and effect, and such
prior termination will not diminish, release, discharge, impair, or
otherwise affect the obligations of the Parties hereto from such
date of reinstatement and, to the extent the amount of Last Out
Obligations were decreased in connection with such payment, the
Last Out Obligations will be increased to such extent.
Notwithstanding
anything herein to the contrary and unless otherwise agreed to in
writing by Required Lenders, Last Out Holders only may receive and
retain Permitted Reorganization Securities (i) after First Out
Holders have received under a Plan Debt Reorganization Securities
of a value determined as of the effective date of a Plan equal to
the allowed amount of the First Out Secured Claims, (ii) if and to
the extent the value of such Debt Reorganization Securities is less
than the allowed amount of First Out Secured Claims, after First
Out Holders have received payment and property under such Plan
(including Disqualified Equity and Non-Debt Reorganization
Securities) having a value equal to the allowed amount of the First
Out Secured Claims or (iii) if Payment in Full of First Out
Obligations occurs prior to or concurrent with the issuance of any
such Permitted Reorganization Securities.
Each
First Out Holder and Last Out Holder agrees to not object to the
separate classification under a Plan of the First Out Secured
Claims from the Last Out Secured Claims. If First Out Secured
Claims and Last Out Secured Claims are classified in the same class
(within the meaning of section 1126(c)), (x) no First Out
Holder will, in its capacity as a holder of a First Out Secured
Claim, vote to "accept" such Plan unless Last Out Holders holding
at least one-half in number and two-thirds in amount of the Last
Out Secured Claims voting on such Plan have voted to accept such
Plan with respect to such class, and (y) no Last Out Holder will,
in its capacity as a holder of a Last Out Secured Claim, vote to
"accept" such Plan unless First Out Holders holding at least
one-half in number and two-thirds in amount of the First Out
Secured Claims voting on such Plan have voted to accept such Plan
with respect to such class. Each Last Out Holder hereby agrees that
it will not propose, vote in favor of, or otherwise support any
Plan that is in contravention of any of the provisions set forth in
Section 2.4(b) of the Credit Agreement (including the defined
terms used in such Section). Agent is irrevocably authorized by
each Lender to withdraw any vote submitted by such Lender in
contravention of the procedures set forth herein.
Each
Lender retains the right to object to or otherwise contest any
proposed Plan on any grounds (other than on the grounds of separate
classification as provided above) so long as such objection or
contest is not in contravention of the other express provisions of
this Exhibit IC-1.
Notwithstanding
anything to the contrary contained herein or in any other Loan
Document, during any Insolvency Proceeding Required Last Out
Holders may direct Last Out Representative to consent, object, or
take any other action that does not contravene the terms of this
Exhibit IC-1 (and will be deemed in each case to be sub-agent for
such purpose solely to the extent necessary to confer standing
under the Loan Documents) including with respect to (A) subject to
Section 5(c), any Disposition of Collateral under
section 363 of the Bankruptcy Code, (B) subject to
Section 5(b), any DIP Financing or use of Cash Collateral or
(C) subject to Sections 5(b)-(e), the seeking of adequate
protection, in each case, solely to the extent Required Lenders
have not directed Agent with respect to the foregoing.
Notwithstanding
anything to the contrary contained herein or in any other Loan
Document, during any Insolvency Proceeding Required First Out
Holders may direct Agent to consent, object, or take any other
action that does not contravene the terms of this Exhibit IC-1
including with respect to (A) subject to Section 5(c), any
Disposition of Collateral under section 363 of the Bankruptcy
Code, (y) subject to Section 5(b), any DIP Financing or use of
Cash Collateral or (z) subject to Sections 5(b)-(e), the seeking of
adequate protection, in each case, solely to the extent Required
Lenders have not directed Agent with respect to the
foregoing.
This
Exhibit IC-1 will be applicable both before and after the
commencement of any Insolvency Proceeding involving any Loan Party
and all converted or succeeding cases in respect thereof. The
relative rights of Agent and Lenders to Distributions, Permitted
Reorganization Securities and any other payment or property
distributed by any Loan Party on account of the Obligations will
continue after the commencement of any such Insolvency
Proceeding.
Prior
to consummating any Debt Transfer, each Transferor Lender which is
a holder of any Last Out Obligations (other than Xxxxx Fargo, its
Affiliates and/or its Related Funds so long as Xxxxx Fargo or any
of its Affiliates or Related Funds remains Agent) shall offer in
writing to Agent (each such offer, a “Debt Transfer
Offer”) a right to consummate the Debt Transfer with respect
to all (but not less than all) of its interest in the Obligations
so offered on the same terms and conditions as are offered in
connection with such proposed Debt Transfer (such interest, the
“Offered Interest”), ratably based upon its First Out
Pro Rata Share (in the case of a Transferee Lender who is a holder
of any First Out Obligations) or its Last Out Pro Rata Share (in
the case of an Transferee Lender who is a holder of any Last Out
Obligations). Notwithstanding anything to the contrary contained in
this Exhibit IC-1, so long as, after giving effect to any proposed
Debt Transfer, GACP I, L.P. and its Affiliates continue to own
and control Last Out Obligations sufficient to independently
exercise all rights as the Required Last Out Holders, GACP I,
L.P. and its Affiliates shall not be required to comply with the
terms of this Section 6(a)(i) with respect to any Debt Transfer
proposed by GACP I, L.P. and/or its Affiliates.
The
Debt Transfer Offer provided by each Transferor Lender for each
Offered Interest to each Transferee Lender will contain a
reasonable description of the terms and conditions of the proposed
Debt Transfer (including price) together with a representation that
such description is true and complete in all material respects.
Upon request, Agent will promptly provide to each Transferor Lender
the names and addresses of each Transferee Lender.
Each
Transferee Lender will be deemed to have declined to make an offer
for such Offered Interest unless within 5 Business Days after
delivery of the Debt Transfer Offer such Transferee Lender delivers
a written acceptance (each, a “Debt Transfer
Acceptance”) to Transferor Lender of its agreement to
purchase the Offered Interest on the terms and the price set forth
in the Debt Transfer Offer.
Promptly and in no
event more than 10 Business Days after delivery of a Debt Transfer
Acceptance, each Transferor Lender and Transferee Lender will
consummate the Debt Transfer for the subject Offered Interest at
the purchase price and upon the terms set forth in the Debt
Transfer Offer, provided that in no event may the consummation
occur more than 10 Business Days from the delivery of a Debt
Transfer Offer. Each Debt Transfer will be made subject to the
rights of each Lender pursuant to this Section.
Each
such purchase and sale will be effectuated by the execution and
delivery of an assignment agreement in substantially the form of
agreement provided for in the Credit Agreement (with such changes
thereto as may be required to evidence the transactions described
in this Section). Each such assignment will be expressly made
without representation or warranty of any kind by Transferor Lender
as to the Obligations so purchased, or otherwise, and without
recourse to Agent or any Transferor Lender, except that each
Transferor Lender will represent and warrant that: (i) the amount
quoted by such Transferor Lender as its portion of the Obligations
transferred is as reflected on its books and records, (ii) it owns,
or has the right to transfer to the Transferee Lender the rights
and Obligations being transferred, and (iii) such transfer will be
free and clear of Liens created by it (other than the options
described in this Section 6).
If such
Transferee Lender does not timely deliver a Debt Transfer
Acceptance by the date required in Section 6(a)(iii), then, subject
to the terms of the Credit Agreement, for the 90-day period
thereafter such Transferor Lender may transfer the Offered Interest
to any other Person for a net cash consideration (after giving
effect to all of the provisions of the Debt Transfer) and on other
pricing terms no more favorable to such third Person than the
pricing terms in the Debt Transfer Offer. If a Debt Transfer is not
consummated within such 90-day period, the provisions of this
Section 6 will apply to any subsequent Debt Transfer.
Agent
may, in its discretion, offer to assign to one or more of the other
First Out Holders any such portion of any Last Out Offered Interest
as it may elect, and upon the written acceptance of such offer,
each such First Out Holder shall be entitled to become a Transferee
Lender with respect to such Offered Interest in accordance with the
applicable share allocated by Agent to such Transferor
Lender.
Upon
the occurrence and during the continuation of a Last Out Triggering
Event, each LO Qualifying Purchaser will have the right, but not
the obligation, upon 5 Business Days prior written notice from (or
on behalf of) such LO Qualifying Purchaser (a “LO Purchase
Notice”) to Agent to acquire from First Out Holders all (but
not less than all) of the right, title, and interest of First Out
Holders in and to the First Out Obligations and the Loan Documents.
Each LO Purchase Notice, if given, is irrevocable. Each LO
Qualifying Purchaser will have a ratable right to provide the LO
Purchase Notice based upon its Last Out Pro Rata Share and to
proportionately increase its rights under this Section 6(b) by the
amount not purchased by another LO Qualifying
Purchaser.
On the
date specified by LO Qualifying Purchasers in the LO Purchase
Notice (which may not be more than 5 Business Days after the
receipt by Agent of the LO Purchase Notice), First Out Holders will
sell to the LO Qualifying Purchasers and the LO Qualifying
Purchasers will purchase from First Out Holders, the First Out
Obligations. If Agent has commenced the Exercise of Remedies and if
a LO Purchase Notice has been given, until the earliest of the
consummation of the purchase of the First Out Obligations or the
fifth Business Day after receipt by Agent of the LO Purchase
Notice, absent Exigent Circumstances, the Required Lenders shall be
deemed to have directed Agent to cease such Exercise of Remedies,
and if Agent has not yet commenced an Exercise of Remedies, absent
Exigent Circumstances, the Required Lenders shall be deemed to have
directed Agent to not commence any Exercise of Remedies until the
earliest of the consummation of the purchase of the First Out
Obligations or the fifth Business Day after receipt by Agent of the
LO Purchase Notice.
On the
date of such purchase and sale, the LO Qualifying Purchaser
will:
pay to
Agent, for the benefit of First Out Holders, as the purchase price
therefor, the full amount of all First Out Obligations then
outstanding (other than indemnification obligations for which no
claim or demand for payment has been made at such time, and First
Out Obligations cash collateralized in accordance with Section
6(b)(iii)(B)),
furnish
cash collateral to Agent in such amounts as Agent determines is
reasonably necessary to secure Agent and the other First Out
Holders in respect of (A) any issued and outstanding Letters of
Credit (but not in any event in an amount greater than 105% of the
aggregate undrawn amount of such Letters of Credit), (B) Bank
Product Obligations, and (C) any asserted or threatened (in
writing) claims, demands, actions, suits, proceedings,
investigations, liabilities, fines, costs, penalties, or damages
that are the subject of the indemnification provisions of Loan
Documents (in each case under subclauses (A), (B) and (C), such
cash collateral will be applied to the reimbursement of the
applicable First Out Obligations as and when they become due and
payable and, at such time as all of such First Out Obligations are
paid in full in cash, the remaining cash collateral held by Agent
in respect of such First Out Obligations will be remitted to Last
Out Representative for the benefit of the LO Qualifying
Purchasers), and
pay to
Agent and the other First Out Holders the amount of all Lender
Group Expenses to the extent earned or due and payable in
accordance with the Loan Documents (including the reimbursement of
attorneys' fees, financial examination expenses, and appraisal
fees).
Such
purchase price and cash collateral must be remitted by wire
transfer of federal funds to such bank account of Agent as Agent
may designate in writing to LO Qualifying Purchasers. Interest will
be calculated to but excluding the Business Day on which such
purchase and sale occurs if the amounts so paid by the LO
Qualifying Purchasers to the bank account designated by Agent are
received in such bank account prior to 2:00 p.m., Chicago
time.
If,
within 90 days following the date on which the LO Qualifying
Purchasers pay the purchase price described in Section
6(b)(iii)(A)-(C), Payment in Full of First Out Obligations occurs
and the LO Qualifying Purchasers receive in cash all or a portion
of any prepayment premium, make-whole obligation, early termination
fee or similar fee or premium payable pursuant to the Loan
Documents on account of the First Out Obligations, then LO
Qualifying Purchasers must promptly (and in no event later than the
third Business Day after its receipt thereof) pay a supplemental
purchase price under this Section 6 to Agent, for the benefit of
the selling First Out Holders who, but for the sale pursuant to
this Section 6(b), would have been entitled to such payment, in an
amount equal to the amount of such prepayment premium or similar
amount received by the LO Qualifying Purchasers.
Such
purchase and sale will be effectuated by the execution and delivery
of an assignment agreement in substantially the form of agreement
provided for in the Credit Agreement (with such changes thereto as
may be required to evidence the transactions described in this
Section) and will be expressly made without representation or
warranty of any kind by Agent and the other First Out Holders as to
the First Out Obligations so purchased, or otherwise, and without
recourse to Agent or any other First Out Holder, except that each
First Out Holder will represent and warrant: (i) that the amount
quoted by such First Out Holder as its portion of the purchase
price represents the First Out Obligations, (ii) it owns, or has
the right to transfer to the LO Qualifying Purchasers, the rights
and Obligations being transferred, and (iii) such transfer will be
free and clear of liens and similar encumbrances (other than the
options described in this Section 6).
If any
LO Qualifying Purchaser consummates the purchase option set forth
in this Section 6(b) or otherwise acquires all First Out
Obligations, (A) Agent will have the right, but not the obligation,
to resign under the Loan Documents, and (B) the LO Qualifying
Purchasers will have the right, but not the obligation, to require
Agent to immediately resign under the Loan Documents. Any successor
agent will be designated and appointed pursuant to the terms of the
Credit Agreement and Agent's rights as a resigning agent will
remain governed by the terms of the Credit Agreement as in effect
on the date of resignation without modification. In connection with
such resignation, Agent will deliver to the successor Agent any
original Loan Documents and any Collateral in its possession and
will execute such other customary documents, instruments, and
agreements necessary to effect such resignation, whereupon Agent
will be relieved from any further duties, obligations, or
liabilities to the Lenders pursuant to this Exhibit IC-1 and the
other Loan Documents.
If any
LO Qualifying Purchaser consummates the purchase option set forth
in this Section 6(b), First Out Holders will retain their
indemnification rights under the Loan Documents for actions or
other matters arising on or prior to the date of such purchase,
(together with all interest, fees, costs, charges, expenses,
indemnities and other amounts thereafter accrued or accruing with
respect thereto, the “FO Retained Interest”). The FO
Retained Interest will continue to be secured by the Collateral,
and the FO Retained Interest will be paid (or cash collateralized,
as applicable) in accordance with the terms of Section 2.4(b) the
Credit Agreement and this Exhibit IC-1 (in each case, as in effect
immediately prior to consummation of such purchase). Each First Out
Holder will continue to have all rights and remedies in respect of
the FO Retained Interest as Lender under the Credit Agreement and
the other Loan Documents (in each case, as in effect immediately
prior to consummation of such purchase), except that no First Out
Holder will have any right to vote or otherwise consent in
connection with any decision by the other Lenders to Modify any
provision of any Loan Document other than (x) those matters that
require the agreement of each affected First Out Holder or all
Lenders under the Credit Agreement as in effect on the date of such
purchase and (y) matters in contravention of the provisions set
forth in this Exhibit IC-1 (as in effect immediately prior to
consummation of such purchase).
Each LO
Qualifying Purchaser may assign it rights under this Section 6(b)
to any of its Affiliates except as may otherwise be prohibited or
restricted under the Credit Agreement.
Upon
the occurrence and during the continuation a First Out Triggering
Event, each FO Qualifying Purchaser will have the right, but not
the obligation, upon 5 Business Days prior written notice from (or
on behalf of) such FO Qualifying Purchaser (a “FO Purchase
Notice”) to Last Out Representative to acquire from Last Out
Holders (or, with respect to a Holdout Event, solely from all
Holdout Loan Holders) all (but not less than all) of the right,
title, and interest of Last Out Holders (or, with respect to a
Holdout Event, of any Holdout Loan Holders) in and to the Last Out
Obligations of such Last Out Holders (or, with respect to a Holdout
Event, of such Holdout Loan Holders) and the Loan Documents. Each
FO Purchase Notice, if given, is irrevocable. Each FO Qualifying
Purchaser will have a ratable right to provide the FO Purchase
Notice based upon its First Out Pro Rata Share and to
proportionately increase its rights under this Section 6(c) by the
amount not purchased by another FO Qualifying
Purchaser.
On the
date specified by FO Qualifying Purchasers in the FO Purchase
Notice (which may not be more than 5 Business Days after the
receipt by Last Out Representative of the FO Purchase Notice), Last
Out Holders (or, with respect to a Holdout Event, Holdout Loan
Holders) will sell to the FO Qualifying Purchasers and the FO
Qualifying Purchasers will purchase from Last Out Holders (or, with
respect to a Holdout Event, from Holdout Loan Holders), the Last
Out Obligations of such Last Out Holders (or, with respect to a
Holdout Event, of such Holdout Loan Holders).
On the
date of such purchase and sale, the FO Qualifying Purchasers will
at their option, either (I) pay to Last Out Representative, for the
benefit of the applicable Last Out Holders, as the purchase price
therefor, the full amount of all Last Out Obligations then
outstanding (or, with respect to a Holdout Event, the full amount
of all Last Out Obligations then outstanding with respect to each
Holdout Loan Holder) or (II) pay to each applicable Last Out Holder
(or, with respect to a Holdout Event, to each applicable Holdout
Loan Holder), as the purchase price therefor,
the
amount of such Last Out Holder’s (or, with respect to a
Holdout Event, such Holdout Loan Holder’s) Last Out
Obligations then outstanding (other than, in each case,
indemnification obligations for which no claim or demand for
payment has been made at such time), and
the
amount of such Last Out Holder’s (or, with respect to a
Holdout Event, such Holdout Loan Holder’s) Lender Group
Expenses to the extent earned or due and payable in accordance with
the Loan Documents (including the reimbursement of attorneys'
fees).
Such
purchase price must be remitted by wire transfer of federal funds
to such bank account of Last Out Representative and/or such Last
Out Holder as such Last Out Representative and/or Last Out Holder
may designate in writing to FO Qualifying Purchasers. Interest will
be calculated to but excluding the Business Day on which such
purchase and sale occurs if the amounts so paid by the FO
Qualifying Purchasers to the bank account(s) so designated are
received in such bank account(s) prior to 2:00 p.m., Chicago
time.
If,
within 90 days following the date on which the FO Qualifying
Purchasers pay the purchase price described in Section
6(c)(iii)(A)-(B), payment in full in cash or immediately available
funds of all of the Last Out Obligations occurs and the FO
Qualifying Purchasers receive in cash all or a portion of any
prepayment premium, make-whole obligation, early termination fee or
similar fee or premium payable pursuant to the Loan Documents on
account of the Last Out Obligations, then FO Qualifying Purchasers
must promptly (and in no event later than the third Business Day
after its receipt thereof) pay a supplemental purchase price under
this Section 6 to either the Last Out Representative, for the
benefit of the selling Last Out Holders or directly to the selling
Last Out Holders (on a ratable basis) who, in each case, but for
the sale pursuant to this Section 6(c), would have been entitled to
such payment, in an amount equal to the amount of such prepayment
premium or similar amount received by the FO Qualifying
Purchasers.
Such
purchase and sale will be effectuated by the execution and delivery
of one or more assignment agreements in substantially the form of
agreement provided for in the Credit Agreement (with such changes
thereto as may be required to evidence the transactions described
in this Section) and will be expressly made without representation
or warranty of any kind by selling Last Out Holders as to the Last
Out Obligations so purchased, or otherwise, and without recourse
any Last Out Holder, except that each Last Out Holder will
represent and warrant: (i) that the amount quoted by such Last Out
Holder as its portion of the purchase price represents the amount
shown as owing with respect to the claims transferred as reflected
on its books and records, (ii) it owns, or has the right to
transfer to the FO Qualifying Purchasers, the rights and
Obligations being transferred, and (iii) such transfer will be free
and clear of liens and similar encumbrances (other than the options
described in this Section 6).
If any
FO Qualifying Purchaser consummates the purchase option set forth
in this Section 6(c), Last Out Holders will retain their
indemnification rights under the Loan Documents for actions or
other matters arising on or prior to the date of such purchase
(together with all interest, fees, costs, charges, expenses,
indemnities and other amounts thereafter accrued or accruing with
respect thereto, the “LO Retained
Interest”).
Each FO
Qualifying Purchaser may assign it rights under this Section 6(c)
to any of its Affiliates except as may otherwise be prohibited or
restricted under the Credit Agreement.
Until Payment
in Full of First Out Obligations, no successor Agent under the Loan
Documents or this Exhibit IC-1 may be a Last Out Holder (or any of
its Affiliates) without the prior written consent of Required First
Out Holders.
Each
Last Out Holder hereby designates and appoints GACP I, L.P., as its
agent under this Exhibit IC-1 and any relating Loan Documents in
respect of the Last Out Obligations (in such capacity, “Last
Out Representative”). Each Last Out Holder hereby irrevocably
authorizes Last Out Representative to take such action on such Last
Out Holder's behalf under the provisions of this Exhibit IC-1 and
to exercise such powers and perform such duties as are expressly
delegated to Last Out Representative by the terms of this Exhibit
IC-1, together with such powers as are reasonably incidental
thereto. Last Out Representative agrees to act as agent for and on
behalf of Last Out Holders on the conditions contained in this
Section 7(b). Notwithstanding anything herein to the contrary,
Last Out Representative will not have any duties or
responsibilities, except those expressly set forth herein, nor will
Last Out Representative have or be deemed to have any fiduciary
relationship with any Last Out Holder, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
will be read into this Exhibit IC-1 or otherwise exist against Last
Out Representative. Without limiting the generality of the
foregoing, the use of the term "agent" in this Exhibit IC-1 with
reference to Last Out Representative is not intended to connote any
fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or
reflect only a representative relationship between independent
contracting parties. Except as expressly otherwise provided in this
Exhibit IC-1, Last Out Representative will have and may use its
sole discretion with respect to exercising or refraining from
exercising any discretionary rights or taking or refraining from
taking any actions that Last Out Representative expressly is
entitled to take or assert under or pursuant to this Exhibit
IC-1.
Last
Out Representative may execute any of its duties under this Exhibit
IC-1 by or through agents, employees or attorneys in fact and will
be entitled to advice of counsel concerning all matters pertaining
to such duties. Last Out Representative will not be responsible for
the negligence or misconduct of any agent or attorney in fact that
it selects as long as such selection was made in good faith and
without gross negligence or willful misconduct.
None of
Last Out Representative, its Affiliates, officers, directors,
employees, attorneys, and agents (collectively, “Last Out
Representative-Related Persons”) will (i) be liable for any
action taken or omitted to be taken by any of them under or in
connection with this Exhibit IC-1 or the transactions contemplated
hereby (except for its or his own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of Agent,
First Out Holders or Last Out Holders for any recital, statement,
representation or warranty made in any certificate, report,
statement or other document referred to or provided for in, or
received by Last Out Representative under or in connection with,
this Exhibit IC-1, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Exhibit IC-1. No Last Out
Representative-Related Person will be under any obligation to any
Agent, First Out Holder or Last Out Holder to ascertain or to
inquire as to the observance or performance of any of the
agreements contained in or conditions of this Exhibit
IC-1.
Last
Out Representative will be entitled to rely, and will be fully
protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, telefacsimile or
other electronic method of transmission, telex or telephone
message, statement or other document or conversation believed by it
to be genuine and correct and to have been signed, sent, or made by
the proper Person, and upon advice and statements of legal counsel
(including counsel to any Last Out Holder), independent accountants
and other experts selected by Last Out Representative. Last Out
Representative will be fully justified in failing or refusing to
take any action under this Exhibit IC-1 unless Last Out
Representative first receives such advice or concurrence of Last
Out Holders as it deems appropriate and until such directions are
received, Last Out Representative will act, or refrain from acting,
as it deems advisable. If Last Out Representative so requests, it
must first be indemnified to its reasonable satisfaction by Last
Out Holders against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such
action. Last Out Representative will in all cases be fully
protected in acting, or in refraining from acting, under this
Exhibit IC-1 in accordance with a request or consent of the
requisite Last Out Holders and such request and any action taken or
failure to act pursuant thereto will be binding upon all Last Out
Holders.
Each
Last Out Holder agrees that:
No Last
Out Representative-Related Person has made any representation or
warranty to it, and that no act taken by any Last Out
Representative-Related Person, including any review of the affairs
of any Loan Party or its Affiliates, will be deemed to constitute
any representation or warranty by any Last Out
Representative-Related Person to any Last Out Holder.
It has,
independently and without reliance upon any Last Out
Representative-Related Person and based on such due diligence,
documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and
creditworthiness of each Loan Party, and all applicable bank
regulatory laws relating to the transactions contemplated hereby,
and made its own decision to enter into this Exhibit
IC-1.
It
will, independently and without reliance upon any Last Out
Representative-Related Person and based on such documents and
information as it deems appropriate at the time, continue to make
its own decisions in taking or not taking action under this Exhibit
IC-1, and to make such investigations as it deems necessary to
inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of any Loan
Party.
Except
for notices, reports, and other documents expressly herein required
to be furnished to Last Out Holder by any Last Out Representative,
Last Out Representative will not have any duty or responsibility to
provide any Last Out Holder with any credit or other information
concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any Borrower or any
other Person party to a Loan Document that may come into the
possession of any of Last Out Representative-Related
Persons.
Whether
or not the transactions contemplated hereby are consummated, each
Last Out Holder, on a ratable basis, will indemnify and defend Last
Out Representative-Related Persons from and against any and all
claims, demands, suits, actions, investigations, proceedings,
liabilities, fines, costs, penalties, and damages, and all
reasonable fees and disbursements of attorneys, experts, or
consultants and all other costs and expenses actually incurred in
connection therewith or in connection with the enforcement of this
indemnification (as and when they are incurred and irrespective of
whether suit is brought), at any time asserted against, imposed
upon, or incurred by any of them (i) in connection with or as a
result of or related to the execution and delivery, enforcement,
performance, or administration (including any restructuring or
workout with respect hereto) of this Exhibit IC-1 or the
transactions contemplated hereby, and (ii) with respect to any
investigation, litigation, or proceeding related to this Exhibit
IC-1 or the use of the proceeds of the credit provided under the
Loan Documents (irrespective of whether any Last Out
Representative-Related Person is a party thereto), or any act,
omission, event, or circumstance in any manner related thereto
(each and all of the foregoing, the “Indemnified
Liabilities”); provided, however, that no Last Out Holder
will be liable for the payment to any Last Out
Representative-Related Person of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence or
willful misconduct as determined by a court of competent
jurisdiction in a final and nonappealable order. Without limitation
of the foregoing, each Last Out Holder will reimburse Last Out
Representative upon demand for such Last Out Holder's ratable share
of any costs or out of pocket expenses (including attorneys,
accountants, advisors, and consultants fees and expenses) incurred
by Last Out Representative in connection with the preparation,
execution, delivery, administration, modification, amendment, or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under this Exhibit IC-1. The undertaking in this
Section 7(b)(vi) will survive the payment of all Obligations
under the Credit Agreement and the resignation or replacement of
Last Out Representative.
Last
Out Representative may resign as Last Out Representative upon 30
days prior written notice to Agent and Last Out Holders (unless
such notice to Last Out Holders is waived by Required Last Out
Holders). If Last Out Representative resigns under this Exhibit
IC-1, Required Last Out Holders will be entitled to appoint a
successor Last Out Representative for Last Out Holders. If no
successor Last Out Representative is appointed prior to the
effective date of the resignation of Last Out Representative, Last
Out Representative may appoint, after consulting with Last Out
Holders, a successor Last Out Representative. If Last Out
Representative has materially breached or failed to perform any
material provision of this Exhibit IC-1 or of applicable law,
Required Last Out Holders may agree in writing to remove and
replace Last Out Representative with a successor Last Out
Representative from among Last Out Holders. In any such event, upon
the acceptance of its appointment as successor Last Out
Representative hereunder, such successor Last Out Representative
will succeed to all the rights, powers, and duties of the retiring
Last Out Representative and the term "Last Out Representative" will
include such successor Last Out Representative and the retiring
Last Out Representative's appointment, powers, and duties as Last
Out Representative will be terminated. After any retiring Last Out
Representative's resignation hereunder as Last Out Representative,
the provisions of this Section 7(b) will inure to its benefit
as to any actions taken or omitted to be taken by it while it was
Last Out Representative under this Exhibit IC-1. If no successor
Last Out Representative has accepted appointment as Last Out
Representative by the date which is 30 days following a retiring
Last Out Representative's notice of resignation, the retiring Last
Out Representative's resignation will nevertheless thereupon become
effective and Last Out Holders will perform all of the duties of
Last Out Representative hereunder until such time, if any, as Last
Out Holders appoint a successor Last Out Representative as provided
for above.
All
notices to Last Out Representative must be sent to the address set
forth below:
GACP I,
L.P.
Attn.:
Xxxxx X. Xxxx
00000
Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
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With a
copy (which will not constitute notice) to:
Xxxx
Xxxxxxxx LLP
Attn.:
Xxxxxx Xxxxxxx, Esq.
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
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Last
Out Representative and its Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, provide
financial accommodations to, acquire Equity Interests in, and
generally engage in any kind of banking, trust, financial advisory,
underwriting, or other business with any Loan Party and its
Subsidiaries and Affiliates and any other Person party to any Loan
Document as though Last Out Representative were not Last Out
Representative hereunder, and, in each case, without notice to or
consent of the other Last Out Holders. Last Out Holders acknowledge
that, pursuant to such activities, Last Out Representative and its
Affiliates may receive information regarding Loan Parties or their
Affiliates or any other Person party to any Loan Document that is
subject to confidentiality obligations in favor of Loan Parties or
such other Person and that prohibit the disclosure of such
information to Last Out Holders, and Last Out Holders acknowledge
that, in such circumstances (and in the absence of a waiver of such
confidentiality obligations), Last Out Representative will not be
under any obligation to provide such information to
them.
Only
Last Out Holders and Last Out Representative Related Persons will
have any obligations, liabilities and duties, including
indemnification and reimbursement obligations, arising under this
Section 7 and no First Out Holder who is also not a Last Out Holder
will have any such obligations, liabilities and
duties.
This
Exhibit IC-1 and the Loan Documents reflect the entire
understanding of the parties with respect to the transactions
contemplated hereby and may not be contradicted or qualified by any
other agreement, oral or written, before the date hereof. Agent,
Last Out Representative and Lenders have not entered, and will not
enter, into any agreements with any other Lender that conflict with
the terms of this Exhibit IC-1. As among Agent, Last Out
Representative and the Lenders, if this Exhibit IC-1 is deemed to
conflict with any Loan Documents, this Exhibit IC-1 will
control.
No
agreement to Modify any provision of this Exhibit IC-1 will in any
event be effective unless the same will be in writing and signed by
each of the parties required pursuant to Section 14.1(b)(iii) of
the Credit Agreement, and any waiver or consent will be effective
only in the specific instance and for the specific purpose for
which given.
Each
provision of this Exhibit IC-1 is severable from every other
provision of this Exhibit IC-1 for the purpose of determining the
legal enforceability of any specific provision.
If any
Lender Party in any way takes or attempts to take any action
contrary to terms of this Exhibit IC-1, or fails to take any action
required by this Exhibit IC-1, each other Lender Party may obtain
relief against such breaching Lender Party by injunction, specific
performance, or other appropriate equitable relief. The Lender
Parties agree that the non-breaching Lender Party's damages from
such actions may at that time be difficult to ascertain and may be
irreparable. Each breaching Lender Party waives any defense that
such non-breaching Lender Party cannot demonstrate damage or be
made whole by the awarding of damages. Each breaching Lender Party
further waives any defense based on the adequacy of a remedy at law
and any other defense which might be asserted to bar the remedy of
specific performance in any action which may be brought by the
non-breaching Lender Party.
With
respect to any payments or distributions in cash, property, or
other assets that any Last Out Holder pays over to Agent or any
other First Out Holder under the terms of this Exhibit IC-1, such
Last Out Holder will be subrogated to the rights of First Out
Holders. Notwithstanding the foregoing, no Last Out Holder may
assert or enforce any such rights of subrogation it may acquire as
a result of any payment hereunder until Payment in Full of First
Out Obligations.
Until
Payment in Full of First Out Obligations and except as otherwise
expressly permitted hereunder, no Last Out Holder may assert and
each hereby waives, to the fullest extent permitted by law, any
right to demand, request, plead, or otherwise assert, or otherwise
claim the benefit of, any marshaling, appraisal, valuation, or
other similar right that may otherwise be available under
applicable law with respect to the Collateral or any other similar
rights a junior secured creditor may have under applicable
law.
This
Exhibit IC-1, the construction, interpretation and enforcement
hereof, and the rights of the parties hereto with respect to all
matters arising hereunder or related hereto will be determined
under, governed by, and construed in accordance with the laws of
the State of Illinois.
All
claims, causes of action or proceedings arising under or related to
this Exhibit IC-1 may be tried and litigated only in the State of
Illinois and, to the extent permitted by applicable law, the
federal courts located in Xxxx County, Illinois. Each Lender Party
waives, to the maximum extent permitted by applicable law, any
right to assert the doctrine of forum non conveniens or to
otherwise object to venue for any proceeding commenced in
accordance with this subsection.
Each
Lender Party hereby irrevocably waives its right to a jury trial of
any claim or cause of action based upon or arising out of this
Exhibit IC-1 or any of the transactions contemplated herein. The
scope of this waiver is intended to encompass any and all disputes
that may be filed in any court and that relate to the subject
matter hereof, including contract claims, tort claims, breach of
duty claims and all other common law and statutory claims. Each
Lender Party acknowledges that this waiver is a material inducement
to enter into the Credit Agreement and be bound by the terms of
this Exhibit IC-1. Each Lender Party represents that it has
reviewed this waiver and knowingly and voluntarily waives its jury
trial rights following consultation with counsel. This Exhibit IC-1
may be filed as a written consent to a trial by the
court.
This
Exhibit IC-1 will bind and inure to the benefit of the respective
successors and assigns of each of the Lender Parties, including,
without limitation, all other Lenders that are successors to or
assignees of each Lender, any successor Agent or successor Last Out
Representative.
This
Exhibit IC-1 is intended to be enforceable as a subordination
agreement within the meaning of section 510 of the Bankruptcy Code
and no Loan Party will have any rights or remedies under this
Exhibit IC-1 of any kind.
[End of
Exhibit IC-1]
EXHIBIT
D
As-Amended
Credit Agreement
(See
attached.)
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AMENDED AND RESTATED
CREDIT
AGREEMENT
by and among
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as
Administrative Agent,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
and
EAST
WEST BANK,
as
Co-Lead Arrangers, Joint Book Runners, and Co-Syndication
Agents,
THE LENDERS THAT ARE PARTIES HERETO,
as the
Lenders,
PAC-VAN, INC.,
LONE
STAR TANK RENTAL INC.,
GFN
REALTY COMPANY, LLC,
SOUTHERN
FRAC, LLC,
and
THE
AFFILIATES THAT ARE SIGNATORIES HERETO,
as
Borrowers
Dated as of April 7, 2014
(as
amended through the Amendment No. 6 Effective
Date)
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TABLE OF CONTENTS
Page
1.
DEFINITIONS AND
CONSTRUCTION 1
1.1
Definitions 1
1.2
Accounting
Terms 1
1.3
Code 1
1.4
Construction 1
1.5
Time
References 1
1.6
Schedules and
Exhibits 1
1.7
Existing Obligations;
Amendment and Restatement 1
2.
LOANS AND TERMS OF
PAYMENT 1
2.1
Revolving
Loans 1
2.2
Last-Out Term
Loan 1
2.3
Borrowing Procedures
and Settlements 1
2.4
Payments; Reductions
of Commitments; Prepayments 1
2.5
Promise to Pay;
Promissory Notes 1
2.6
Interest Rates and
Letter of Credit Fee: Rates, Payments, and
Calculations 1
2.7
Crediting
Payments 1
2.8
Designated
Account 1
2.9
Maintenance of Loan
Account and Loan Sub-Accounts; Statements of
Obligations 1
2.10 Fees
1
2.11 Letters
of Credit
1
2.12 LIBOR
Option
1
2.13 Capital
Requirements
1
2.14 Accordion
1
2.15 Joint
and Several Liability of Borrowers
1
3.
CONDITIONS; TERM OF
AGREEMENT 1
3.1
Conditions Precedent
to the Initial Extension of Credit 1
3.2
Conditions Precedent
to all Extensions of Credit 1
3.3
Maturity 1
3.4
Effect of
Maturity 1
3.5
Early Termination by
Borrowers 1
3.6
Conditions Precedent
to Real Property Sublimit Loans 1
3.7
Conditions Precedent
to Last-Out Term Loan 1
4.
REPRESENTATIONS AND
WARRANTIES 1
4.1
Due Organization and
Qualification; Subsidiaries 1
4.2
Due Authorization; No
Conflict 1
4.3
Governmental
Consents 1
4.4
Binding Obligations;
Perfected Liens 1
4.5
Title to Assets; No
Encumbrances 1
4.6
Litigation 1
4.7
Compliance with
Laws 1
4.8
No Material Adverse
Effect 1
4.9
Solvency 1
4.10 Employee
Benefits
1
4.11 Environmental
Condition
1
4.12 Complete
Disclosure
1
4.13 Patriot
Act
1
4.14 Indebtedness
1
4.15 Payment
of Taxes
1
4.16 Margin
Stock
1
4.17 Governmental
Regulation
1
4.18 Sanctions
1
4.19 Employee
and Labor Matters
1
4.20 [Reserved]
1
4.21 Leases
1
4.22Eligible Accounts,
Eligible Extended Lone Star Accounts, Eligible Backend Charge
Accounts, and Eligible Southern Frac
Accounts 1
4.23Eligible
Inventory; Eligible Southern Frac Raw Materials Inventory; Eligible
Southern Frac Tanks inn 1
4.24 Location
of Inventory
1
4.25 Inventory
Records
1
4.26 Eligible
Equipment
1
4.27 Location
of Equipment
1
4.28 Equipment
Records
1
4.29 Other
Documents
1
4.30 Hedge
Agreements
1
4.31 CSSI
as Dormant Subsidiary
1
5.
AFFIRMATIVE
COVENANTS 1
5.1
Financial Statements,
Reports, Certificates 1
5.2
Reporting 1
5.3
Existence 1
5.4
Maintenance of
Properties 1
5.5
Taxes 1
5.6
Insurance 1
5.7
Inspection 1
5.8
Compliance with
Laws 1
5.9
Environmental 1
5.10 Disclosure
Updates
1
5.11 Formation
of Subsidiaries
1
5.12 Further
Assurances
1
5.13 Lender
Meetings
1
5.14 Location
of Inventory and Equipment
1
5.15 Rental
Fleet Inventory Leases
1
5.16 Certificated
Units
1
5.17 Non-Certificated
Units
1
5.18 Fixtures
1
5.19 Compliance
with ERISA and the IRC
1
5.20 Post-Closing
Matters
1
6.
NEGATIVE
COVENANTS 1
6.1
Indebtedness 1
6.2
Liens 1
6.3
Restrictions on
Fundamental Changes 1
6.4
Disposal of
Assets 1
6.5
Nature of
Business 1
6.6
Prepayments and
Amendments 1
6.7
Restricted
Payments 1
6.8
Accounting
Methods 1
6.9
Investments 1
6.10 Transactions
with Affiliates
1
6.11 Use
of Proceeds
1
6.12 Limitation
on Issuance of Equity Interests
1
6.13 Inventory
or Equipment with Bailees
1
6.14 Rental
Fleet Inventory Transfers
1
6.15 Employee
Benefits
1
6.16 CSSI
as Dormant Subsidiary
1
7.
FINANCIAL
COVENANTS 1
8.
EVENTS OF
DEFAULT 1
8.1
Payments 1
8.2
Covenants 1
8.3
Judgments 1
8.4
Voluntary Bankruptcy,
etc 1
8.5
Involuntary
Bankruptcy, etc 1
8.6
Default Under Other
Agreements 1
8.7
Representations,
etc 1
8.8
Guaranty 1
8.9
Security
Documents 1
8.10 Loan
Documents
1
8.11 Change
of Control
1
8.12 ERISA
1
8.13 Required
Series C Preferred Equity Contributions
1
8.14 Required
GFC 2021 Notes Equity Contributions
1
9.
RIGHTS AND
REMEDIES 1
9.1
Rights and
Remedies 1
9.2
Remedies
Cumulative 1
10.
WAIVERS;
INDEMNIFICATION 1
10.1 Demand;
Protest; etc
1
10.2 The
Lender Group’s Liability for Collateral
1
11.
NOTICES 1
12.
CHOICE OF LAW AND
VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE
PROVISION 1
13.
ASSIGNMENTS AND
PARTICIPATIONS; SUCCESSORS 1
13.1 Assignments
and Participations
1
13.2 Successors
1
14.
AMENDMENTS;
WAIVERS 1
14.1 Amendments
and Waivers
1
14.2 Replacement
of Certain Lenders
1
14.3 No
Waivers; Cumulative Remedies
1
15.
AGENT; THE LENDER
GROUP 1
15.1 Appointment
and Authorization of Agent
1
15.2 Delegation
of Duties
1
15.3 Liability
of Agent
1
15.4 Reliance
by Agent
1
15.5 Notice
of Default or Event of Default
1
15.6 Credit
Decision
1
15.7 Costs
and Expenses; Indemnification
1
15.8 Agent
in Individual Capacity
1
15.9 Successor
Agent
1
15.10 Lender
in Individual Capacity
1
15.11 Collateral
Matters
1
15.12 Restrictions
on Actions by Lenders; Sharing of Payments
1
15.13 Agency
for Perfection
1
15.14 Payments
by Agent to the Lenders
1
15.15 Concerning
the Collateral and Related Loan Documents
1
15.16Field Examination
Reports; Confidentiality; Disclaimers by Lenders; Other Reports and
Information 1
15.17 Several
Obligations; No Liability
1
15.18 Co-Lead
Arranger, Joint Book Runner, and Co-Syndication
Agent
1
15.19 Intercreditor
Provisions
1
16.
WITHHOLDING
TAXES 1
16.1 Payments
1
16.2 Exemptions
1
16.3 Reductions
1
16.4 Refunds
1
17.
GENERAL
PROVISIONS 1
17.1 Effectiveness
1
17.2 Section
Headings
1
17.3 Interpretation
1
17.4 Severability
of Provisions
1
17.5 Bank
Product Providers
1
17.6 Debtor-Creditor
Relationship
1
17.7 Counterparts;
Electronic Execution
1
17.8 Revival
and Reinstatement of Obligations; Certain
Waivers
1
17.9 Confidentiality
1
17.10 Survival
1
17.11 Patriot
Act
1
17.12 Integration
1
17.13 Pac-Van
as Agent for Borrowers
1
17.14 [Reserved]
1
17.15 Currency
Indemnity
1
17.16Acknowledgment
and Consent to Bail-In of EEA Financial
Institutions 1
EXHIBITS AND SCHEDULES
Exhibit
A-1
Form of Assignment
and Acceptance
Exhibit
B-1
Form of Borrowing
Base Certificate
Exhibit B-2
Form of Bank
Product Provider Agreement
Exhibit
C-1
Form of Compliance
Certificate
Exhibit IC-1
Intercreditor
Provisions
Exhibit
L-1
Form of LIBOR
Notice
Exhibit
P-1
Form of Perfection
Certificate
Schedule A-1
Agent’s
Account
Schedule A-2
Authorized
Persons
Schedule C-1
Commitments
Schedule D-1
Designated
Account
Schedule P-1
Permitted
Investments
Schedule P-2
Permitted
Liens
Schedule 1.1
Definitions
Schedule 3.1
Conditions
Precedent
Schedule 4.1(b)
Capitalization of
Borrowers
Schedule 4.1(c)
Capitalization of
Borrowers’ Subsidiaries
Schedule 4.1(d)
Subscriptions,
Options, Warrants, Calls
Schedule 4.6(b)
Litigation
Schedule 4.10
Employee
Benefits
Schedule 4.11
Environmental
Matters
Schedule 4.14
Permitted
Indebtedness
Schedule 4.24
Location of
Inventory
Schedule 4.27
Location of
Equipment
Schedule 5.1
Financial
Statements, Reports, Certificates
Schedule 5.2
Collateral
Reporting
Schedule 5.6
Insurance
Schedule 5.14
Chief Executive
Offices
Schedule 5.16(f)
Certain
Certificated Units
Schedule 6.5
Nature of
Business
AMENDED AND RESTATED CREDIT AGREEMENT
(as amended through the Amendment No. 6 Effective
Date)
THIS
AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), is entered
into as of April 7, 2014, by and among the lenders identified
on the signature pages hereof (each of such lenders, together with
its successors and permitted assigns, is referred to hereinafter as
a “Lender”, as that term is
hereinafter further defined); XXXXX FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, as administrative
agent for each member of the Lender Group and the Bank Product
Providers (in such capacity, together with its successors and
assigns in such capacity, “Agent”); effective as of
the Amendment No. 6 Effective Date, XXXXX FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, as co-lead arranger
(any institution serving in such capacity, together with its
successors and assigns in such capacity, a “Co-Lead Arranger”);
effective as of the Amendment No. 6 Effective Date, XXXXX
FARGO BANK, NATIONAL ASSOCIATION, a national banking association,
as a book runner (any institution serving in such capacity,
together with its successors and assigns in such capacity, a
“Joint
Book Runner”); effective as of the Amendment
No. 6 Effective Date, XXXXX FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, as syndication agent (any
institution serving in such capacity, together with its successors
and assigns in such capacity, a “Co-Syndication Agent”);
effective as of the Amendment No. 6 Effective Date, East West
Bank, a California banking corporation, as Co-Lead Arranger, Joint
Book Runner, and Co-Syndication Agent; PAC-VAN, INC., an
Indiana corporation (“Pac-Van”); LONE STAR TANK
RENTAL INC., a Delaware corporation (“Lone Star”);
effective as of the Amendment No. 2 Effective Date, GFN REALTY
COMPANY, LLC, a Delaware limited liability company
(“GFNRC”); effective as of
the Amendment No. 4 Effective Date, SOUTHERN FRAC, LLC, a
Texas limited liability company (“Southern Frac”); and the
Affiliates of Pac-Van, Lone Star, GFNRC, and Southern Frac that may
become a party hereto from time to time (such Subsidiaries,
together with Pac-Van, Lone Star, GFNRC, and Southern Frac,
are referred to hereinafter each individually as a
“Borrower”, and
individually and collectively, jointly and severally, as the
“Borrowers”).
This
Agreement refers to a Credit Agreement dated as of
September 7, 2012, by and among certain Borrowers, the
Lenders, and the Agent, as administrative agent (that agreement as
amended, restated, supplemented, or otherwise modified before the
date of this Agreement, the “Existing Credit
Agreement”). Lone Star desires to become a
Borrower. The parties (including each Lender party to the Existing
Credit Agreement) desire to amend and restate the Existing Credit
Agreement as set forth in this Agreement.
The
parties therefore agree as follows:
1. DEFINITIONS
AND CONSTRUCTION: AMENDMENT AND RESTATEMENT.
1.1 Definitions.
Capitalized terms used in this Agreement shall have the meanings
specified therefor on Schedule 1.1.
1.2 Accounting
Terms. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP; provided, that if Borrowers
notify Agent that Borrowers request an amendment to any provision
hereof to eliminate the effect of any Accounting Change occurring
after the Closing Date or in the application thereof on the
operation of such provision (or if Agent notifies Borrowers that
the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given
before or after such Accounting Change or in the application
thereof, then Agent and Borrowers agree that they will negotiate in
good faith amendments to the provisions of this Agreement that are
directly affected by such Accounting Change with the intent of
having the respective positions of the Lenders and Borrowers after
such Accounting Change conform as nearly as possible to their
respective positions as of the date of this Agreement and, until
any such amendments have been agreed upon and agreed to by the
Required Lenders, the provisions in this Agreement shall be
calculated as if no such Accounting Change had occurred. When used
herein, the term “financial statements” shall include
the notes and schedules thereto. Whenever the term
“Borrowers” is used in respect of a financial covenant
or a related definition, it shall be understood to mean Borrowers
and their Subsidiaries on a consolidated basis, unless the context
clearly requires otherwise. Notwithstanding anything to the
contrary contained herein, (a) all financial statements
delivered hereunder shall be prepared, and all financial covenants
contained herein shall be calculated, without giving effect to any
election under the Statement of Financial Accounting Standards No.
159 (or any similar accounting principle) permitting a Person to
value its financial liabilities or Indebtedness at the fair value
thereof, and (b) the term “unqualified opinion” as
used herein to refer to opinions or reports provided by accountants
shall mean an opinion or report that is (i) unqualified, and
(ii) does not include any explanation, supplemental comment,
or other comment concerning the ability of the applicable Person to
continue as a going concern or concerning the scope of the
audit
1.3 Code. Any
terms used in this Agreement that are defined in the Code shall be
construed and defined as set forth in the Code unless otherwise
defined herein; provided, that to the extent
that the Code is used to define any term herein and such term is
defined differently in different Articles of the Code, the
definition of such term contained in Article 9 of the Code shall
govern.
1.4 Construction.
Unless the context of this Agreement or any other Loan Document
clearly requires otherwise, references to the plural include the
singular, references to the singular include the plural, the terms
“includes” and “including” are not
limiting, and the term “or” has, except where otherwise
indicated, the inclusive meaning represented by the phrase
“and/or.” The words “hereof,”
“herein,” “hereby,”
“hereunder,” and similar terms in this Agreement or any
other Loan Document refer to this Agreement or such other Loan
Document, as the case may be, as a whole and not to any particular
provision of this Agreement or such other Loan Document, as the
case may be. Section, subsection, clause, schedule, and exhibit
references herein are to this Agreement unless otherwise specified.
Any reference in this Agreement or in any other Loan Document to
any agreement, instrument, or document shall include all
alterations, amendments, changes, extensions, modifications,
renewals, replacements, substitutions, joinders, and supplements,
thereto and thereof, as applicable (subject to any restrictions on
such alterations, amendments, changes, extensions, modifications,
renewals, replacements, substitutions, joinders, and supplements
set forth herein). The words “asset” and
“property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible
assets and properties. Any reference herein or in any other Loan
Document to the satisfaction, repayment, or payment in full of the
Obligations shall mean (a) the payment or repayment in full in
immediately available funds of (i) the principal amount of,
and interest accrued and unpaid with respect to, all outstanding
Loans, together with the payment of any premium applicable to the
repayment of the Loans, (ii) all Lender Group Expenses that
have accrued and are unpaid regardless of whether demand has been
made therefor, and (iii) all fees or charges that have accrued
hereunder or under any other Loan Document (including the Letter of
Credit Fee and the Unused Line Fee) and are unpaid, (b) in the
case of contingent reimbursement obligations with respect to
Letters of Credit, providing Letter of Credit Collateralization,
(c) in the case of obligations with respect to Bank Products
(other than Hedge Obligations), providing Bank Product
Collateralization, (d) the receipt by Agent of cash collateral
in order to secure any other contingent Obligations for which a
claim or demand for payment has been made on or prior to such time
or in respect of matters or circumstances known to Agent or a
Lender at such time that are reasonably expected to result in any
loss, cost, damage, or expense (including attorneys’ fees and
legal expenses), such cash collateral to be in such amount as Agent
reasonably determines is appropriate to secure such contingent
Obligations, (e) the payment or repayment in full in
immediately available funds of all other outstanding Obligations
(including the payment of any termination amount then applicable
(or which would or could become applicable as a result of the
repayment of the other Obligations) under Hedge Agreements provided
by Hedge Providers) other than (i) unasserted contingent
indemnification Obligations, (ii) any Bank Product Obligations
(other than Hedge Obligations) that, at such time, are allowed by
the applicable Bank Product Provider to remain outstanding without
being required to be repaid or cash collateralized, and
(iii) any Hedge Obligations that, at such time, are allowed by
the applicable Hedge Provider to remain outstanding without being
required to be repaid, and (f) the termination of all of the
Commitments of the Lenders. Any reference herein to any Person
shall be construed to include such Person’s successors and
assigns. Any requirement of a writing contained herein or in any
other Loan Document shall be satisfied by the transmission of a
Record. Unless the context of this Agreement or any other Loan
Document clearly requires otherwise or Agent otherwise determines,
amounts expressed in Dollars at any time when used with respect to
any Loan Parties or Subsidiaries thereof that are not formed or
organized in the United States or similar matters shall be deemed
to mean the Dollar equivalent of such amounts based on the Exchange
Rate at such time.
1.5 Time
References. Unless the context of this Agreement or any
other Loan Document clearly requires otherwise, all references to
time of day refer to Central standard time or Central daylight
saving time, as in effect in Chicago, Illinois, on such day. For
purposes of the computation of a period of time from a specified
date to a later specified date, the word “from” means
“from and including” and the words “to” and
“until” each means “to and including”;
provided that, with
respect to a computation of fees or interest payable to Agent or
any Lender, such period shall in any event consist of at least one
full day.
1.6 Schedules and
Exhibits. All of the schedules and exhibits attached to this
Agreement shall be deemed incorporated herein by
reference.
1.7 Existing
Obligations; Amendment and Restatement.
(a) Borrowers, Agent,
and the Lenders acknowledge that effective as of the Closing Date
all “Letters of Credit” (as defined in and issued under
the Existing Credit Agreement), if any, will constitute Letters of
Credit under this Agreement with the same effect issued by Issuing
Bank at the request of Borrowers on the Closing Date. Borrowers,
Agent, and the Lenders further acknowledge that effective as of the
Closing Date all interest, fees, expenses, and other Existing
Obligations that remain unpaid and outstanding as of the Closing
Date will be assumed by Borrowers and remain outstanding and
payable under this Agreement and the other Loan Documents. Each
Borrower acknowledges that all Obligations outstanding as of the
Closing Date constitute valid and binding obligations of such
Borrower without offset, counterclaim, defense, or recoupment of
any kind, except as enforcement may be limited by equitable
principles or by bankruptcy, insolvency, reorganization,
moratorium, or similar laws relating to or limiting
creditor’s rights generally.
(b) On the Closing
Date, the Existing Credit Agreement will be amended and restated in
its entirety by this Agreement and the Existing Credit Agreement
will thereafter be of no further force and effect, but this
Agreement is not in any way intended to constitute a novation of
the obligations and liabilities existing under the Existing Credit
Agreement or to evidence payment of all or any portion of such
obligations and liabilities.
(c) The terms and
conditions of this Agreement and Agent’s and the
Lenders’ rights and remedies under this Agreement and the
other Loan Documents apply to all of the Obligations incurred under
the Existing Credit Agreement.
(d) Each Borrower
hereby reaffirms the Liens granted pursuant to the Loan Documents
to Agent for the benefit of the Lenders, which Liens will continue
in full force and effect during the term of this Agreement and any
renewals thereof and will continue to secure the
Obligations.
(e) On and after the
Closing Date, (i) all references to the Existing Credit
Agreement in the Loan Documents (other than this Agreement) will be
deemed to refer to the Existing Credit Agreement as amended and
restated by this Agreement; (ii) all references to any section
(or subsection) of the Existing Credit Agreement in any Loan
Document (but not in this Agreement) will be deemed amended,
mutatis mutandis, to refer
to the corresponding provisions of this Agreement; and
(iii) except as the context otherwise requires, on or after
the Closing Date all references in this Agreement to this Agreement
(including for purposes of indemnification and reimbursement of
fees) will be deemed to be references to the Existing Credit
Agreement as amended and restated by this Agreement.
(f) The amendment and
restatement effected by this Agreement is limited as written and is
not a consent to any other amendment, restatement, or waiver or
other modification, whether or not similar, and, except as
expressly provided in this Agreement or in any other Loan Document,
all terms and conditions of the Loan Documents remain in full force
and effect unless otherwise specifically amended by this Agreement
or by any other Loan Document.
2. LOANS AND TERMS OF PAYMENT.
2.1 Revolving
Loans.
(a) Subject to the
terms and conditions of this Agreement, and during the term of this
Agreement, each Revolving Lender agrees (severally, not jointly or
jointly and severally) to make revolving loans (“Revolving Loans”) to
Borrowers in an amount at any one time outstanding not to exceed
the lesser of:
(i) such Lender’s
Revolver Commitment, or
(ii) such
Lender’s Pro Rata Share of an amount equal to the lesser of:
(A) the amount equal to
(1) the Maximum Revolver Amount, less (2) the sum of (x) the
Letter of Credit Usage at such time, plus (y) the principal amount of
Swing Loans outstanding at such time, plus (z) if the Borrowing Base as
of such date (based upon the most recent Borrowing Base Certificate
delivered by Borrowers to Agent) is less than the Maximum Revolver
Amount, the GFC 2021 Notes Indenture Cap Cushion Amount,
and
(B) the amount equal to
(1) the Borrowing Base as of such date (based upon the most recent
Borrowing Base Certificate delivered by Borrowers to Agent),
less (2) the sum of
(x) the Letter of Credit Usage at such time, plus (y) the principal amount of Swing
Loans outstanding at such time, plus (z) if the Borrowing Base as
of such date (based upon the most recent Borrowing Base Certificate
delivered by Borrowers to Agent) is greater than or equal to the
Maximum Revolver Amount, the GFC 2021 Notes Indenture Cap
Cushion Amount.
(b) Amounts borrowed
pursuant to this Section 2.1 may be repaid
and, subject to the terms and conditions of this Agreement,
reborrowed at any time during the term of this Agreement, except
that any principal amount of a Real Property Sublimit Loan that is
repaid or prepaid may not be reborrowed. The outstanding principal
amount of the Revolving Loans, together with interest accrued and
unpaid thereon, shall constitute Obligations and, subject to the
terms and conditions of this Agreement, shall be due and payable on
the Maturity Date or, if earlier, on the date on which they are
declared due and payable pursuant to the terms of this Agreement.
The principal of each Real Property Sublimit Loan shall be repaid
in equal monthly installments, each in an amount equal to 1/150th
(0.666666667%) of the original principal amount of such Real
Property Sublimit Loan, on the first day of each month, beginning
on the first day of the month following the month in which such
Real Property Sublimit Loan was made. Each such repayment of the
Real Property Sublimit Loans pursuant to this Agreement shall
permanently reduce the Maximum Real Property Sublimit Amount by an
amount equal to the amount of such repayment, until the Maximum
Real Property Sublimit Amount is reduced to zero, but no such
repayment shall reduce the Maximum Revolver Amount.
(c) Anything to the
contrary in this Section 2.1
notwithstanding, but subject to the other terms of this
Section 2.1(c),
Agent shall have the right (but not the obligation), in the
exercise of its Permitted Discretion, to establish and increase or
decrease Receivable Reserves, Inventory Reserves, Bank Product
Reserves, Real Property Reserves, the Last-Out Term Loan Reserve,
and other Reserves against the Borrowing Base, any Borrowing
Base (Individual), the Maximum Real Property Sublimit Amount,
and/or the Maximum Revolver Amount; provided, that (i) except
at the instruction of the Required Last-Out Term Loan Lenders,
Agent shall have the obligation the impose the Last-Out Term Loan
Reserve, if any, against the Maximum Revolver Amount, and
(ii) except at the instruction of the Required Last-Out Term
Loan Lenders and the Required Revolving Lenders, Agent
(A) shall establish Bank Product Reserves in respect of all
Bank Products then provided or outstanding other than Cash
Management Services (based upon the Bank Product Providers’
determination of the liabilities and obligations of each Borrower
and its Subsidiaries in respect of the applicable Bank Product
Obligations), and (B) shall have the obligation to impose such
Bank Product Reserves, if any, against the Maximum Revolver Amount.
The amount of any Receivable Reserve, Inventory Reserve, Bank
Product Reserve, Real Property Reserve, Last-Out Term Loan Reserve,
or other Reserve established by Agent shall have a reasonable
relationship to the event, condition, other circumstance, or fact
that is the basis for such reserve and shall not be duplicative of
any other reserve established and currently
maintained.
(d) Anything to the
contrary in this Section 2.1
notwithstanding (including, without limitation, in Section 2.1(a)(ii)(B)),
after the occurrence and during the continuance of a
Partition Event, the maximum amount of Revolving Loans to each
Borrower at any time shall not exceed an amount equal to the result
of (i) the Borrowing Base (Individual) of such Borrower
at such time (based upon the most recent Borrowing Base Certificate
delivered by Borrowers to Agent), less (ii) the sum of (A) the
Letter of Credit Usage of such Borrower at such time, plus (B) the principal amount of
Swing Loans attributable to such Borrower outstanding at such
time.
2.2 Last-Out Term
Loan.
(a) Subject to the
terms and conditions of this Agreement, on the Amendment No. 6
Effective Date each Lender with a Last-Out Term Loan Commitment
agrees (severally, not jointly or jointly and severally) to make
term loans (collectively, the “Last-Out Term Loan”) to
Borrowers in an amount equal to such Lender’s Pro Rata Share
of the Last-Out Term Loan Amount.
(b) The principal of
the Last-Out Term Loan shall be repaid in equal quarterly
installments, each in an amount equal to $500,000, on the first day
of each fiscal quarter, beginning on October 1, 2018. Subject
to the Intercreditor Provisions, without the prior written consent
of Agent and the Required Lenders, Borrowers may not make an
amortization payment of the Last-Out Term Loan under this
Section 2.2(b)
unless the Last-Out Term Loan Amortization Condition is satisfied
with respect to such payment. Borrowers’ first failure in any
period of twelve consecutive months to pay when due and
payable any amortization payment of the Last-Out Term Loan required
under this Section 2.2(b) (whether as
the result of the Last-Out Term Loan Amortization Condition not
being satisfied or otherwise) will not constitute an Event of
Default, but any second or subsequent failure by Borrowers in any
period of twelve consecutive months to pay when due and
payable any amortization payment of the Last-Out Term Loan required
under this Section 2.2(b) (whether as
the result of the Last-Out Term Loan Amortization Condition not
being satisfied or otherwise) will constitute an Event of
Default.
(c) The outstanding
unpaid principal balance and all accrued and unpaid interest on the
Last-Out Term Loan shall be due and payable on the earlier of
(i) the Maturity Date, and (ii) the date of the
acceleration of the Last-Out Term Loan in accordance with the terms
hereof. Any principal amount of the Last-Out Term Loan that is
repaid or prepaid may not be reborrowed. All principal of, interest
on, and other amounts payable in respect of the Last-Out Term Loan
shall constitute Obligations hereunder.
(d) Anything to
the contrary in this Section 2.2
notwithstanding, Agent (in consultation with the Last-Out Term Loan
Lenders) shall have the right (but not the obligation), in the
exercise of its Permitted Discretion, to establish and increase or
decrease Receivable Reserves, Inventory Reserves, Bank Product
Reserves, and other Reserves against the Last-Out Term Loan
Collateral Base. The amount of any Receivable Reserve, Inventory
Reserve, Bank Product Reserve, or other Reserve established by
Agent shall have a reasonable relationship to the event, condition,
other circumstance, or fact that is the basis for such reserve and
shall not be duplicative of any other reserve established and
currently maintained.
2.3 Borrowing
Procedures and Settlements.
(a) Procedure for Borrowing Revolving Loans.
Each Borrowing shall be made by a written request by an Authorized
Person delivered to Agent and received by Agent no later than noon
(i) on the Business Day that is the requested Funding Date in
the case of a request for a Swing Loan, and (ii) on the
Business Day that is 1 Business Day prior to the requested Funding
Date in the case of all other requests, specifying (A) the
amount of such Borrowing, and (B) the requested Funding Date
(which shall be a Business Day); provided, that Agent may, in
its sole discretion, elect to accept as timely requests that are
received later than noon on the applicable Business Day. At
Agent’s election, in lieu of delivering the above-described
written request, any Authorized Person may give Agent telephonic
notice of such request by the required time. In such circumstances,
Borrowers agree that any such telephonic notice will be confirmed
in writing within 24 hours of the giving of such telephonic notice,
but the failure to provide such written confirmation shall not
affect the validity of the request.
(b) Making of Swing Loans. In the case of a
request for a Revolving Loan and so long as either (i) the
aggregate amount of Swing Loans made since the last Settlement
Date, minus all payments or
other amounts applied to Swing Loans since the last Settlement
Date, plus the amount of
the requested Swing Loan does not exceed the greater of
(A) $21,000,000 and (B) an amount equal to 10% of the
Maximum Revolver Amount, or (ii) Swing Lender, in its sole
discretion, agrees to make a Swing Loan notwithstanding the
foregoing limitation, Swing Lender shall make a Revolving Loan (any
such Revolving Loan made by Swing Lender pursuant to this
Section 2.3(b) being
referred to as a “Swing Loan” and all such
Revolving Loans being referred to as “Swing Loans”) available
to Administrative Borrower on behalf of each applicable Borrower on
the Funding Date applicable thereto by transferring immediately
available funds in the amount of such requested Borrowing to the
Designated Account. Each Swing Loan shall be deemed to be a
Revolving Loan hereunder and shall be subject to all the terms and
conditions (including Section 3) applicable to
other Revolving Loans, except that all payments (including
interest) on any Swing Loan shall be payable to Swing Lender solely
for its own account. Subject to the provisions of Section 2.3(d)(ii), Swing
Lender shall not make and shall not be obligated to make any Swing
Loan if Swing Lender has actual knowledge that (i) one or more
of the applicable conditions precedent set forth in Section 3 will not be
satisfied on the requested Funding Date for the applicable
Borrowing, or (ii) the requested Borrowing would exceed the
Availability on such Funding Date. Swing Lender shall not otherwise
be required to determine whether the applicable conditions
precedent set forth in Section 3 have been
satisfied on the Funding Date applicable thereto prior to making
any Swing Loan. The Swing Loans shall be secured by Agent’s
Liens, constitute Revolving Loans and Obligations, and bear
interest at the rate applicable from time to time to Revolving
Loans that are Base Rate Loans.
(c) Making
of Revolving Loans.
(i) In the event that
Swing Lender is not obligated to make a Swing Loan, then after
receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent
shall notify the Lenders by telecopy, telephone, email, or other
electronic form of transmission, of the requested Borrowing; such
notification to be sent on the Business Day that is 1 Business Day
prior to the requested Funding Date. If Agent has notified the
Lenders of a requested Borrowing on the Business Day that is 1
Business Day prior to the Funding Date, then each Lender shall make
the amount of such Lender’s Pro Rata Share of the requested
Borrowing available to Agent in immediately available funds, to
Agent’s Account, not later than noon on the Business Day that
is the requested Funding Date. After Agent’s receipt of the
proceeds of such Revolving Loans from the Lenders, Agent shall make
the proceeds thereof available to Administrative Borrower on behalf
of each applicable Borrower on the applicable Funding Date by
transferring immediately available funds equal to such proceeds
received by Agent to the Designated Account; provided, that, subject to the
provisions of Section 2.3(d)(ii), no
Lender shall have an obligation to make any Revolving Loan, if (1)
one or more of the applicable conditions precedent set forth in
Section 3 will
not be satisfied on the requested Funding Date for the applicable
Borrowing unless such condition has been waived, or (2) the
requested Borrowing would exceed the Availability on such Funding
Date.
(ii) Unless
Agent receives notice from a Lender prior to 11:30 a.m. on the
Business Day that is the requested Funding Date relative to a
requested Borrowing as to which Agent has notified the Lenders of a
requested Borrowing that such Lender will not make available as and
when required hereunder to Agent for the account of Borrowers the
amount of that Lender’s Pro Rata Share of the Borrowing,
Agent may assume that each Lender has made or will make such amount
available to Agent in immediately available funds on the Funding
Date and Agent may (but shall not be so required), in reliance upon
such assumption, make available to Borrowers a corresponding
amount. If, on the requested Funding Date, any Lender shall not
have remitted the full amount that it is required to make available
to Agent in immediately available funds and if Agent has made
available to Administrative Borrower and/or Borrowers such amount
on the requested Funding Date, then such Lender shall make the
amount of such Lender’s Pro Rata Share of the requested
Borrowing available to Agent in immediately available funds, to
Agent’s Account, no later than noon on the Business Day that
is the first Business Day after the requested Funding Date (in
which case, the interest accrued on such Lender’s portion of
such Borrowing for the Funding Date shall be for Agent’s
separate account). If any Lender shall not remit the full amount
that it is required to make available to Agent in immediately
available funds as and when required hereby and if Agent has made
available to Administrative Borrower and/or Borrowers such amount,
then that Lender shall be obligated to immediately remit such
amount to Agent, together with interest at the Defaulting Lender
Rate for each day until the date on which such amount is so
remitted. A notice submitted by Agent to any Lender with respect to
amounts owing under this Section 2.3(c)(ii) shall
be conclusive, absent manifest error. If the amount that a Lender
is required to remit is made available to Agent, then such payment
to Agent shall constitute such Lender’s Revolving Loan for
all purposes of this Agreement. If such amount is not made
available to Agent on the Business Day following the Funding Date,
Agent will notify Administrative Borrower of such failure to fund
and, upon demand by Agent, Borrowers shall pay such amount to Agent
for Agent’s account, together with interest thereon for each
day elapsed since the date of such Borrowing, at a rate per annum
equal to the interest rate applicable at the time to the Revolving
Loans composing such Borrowing.
(d) Protective
Advances and Optional Overadvances.
(i) Any contrary
provision of this Agreement or any other Loan Document
notwithstanding but subject to Section 2.3(d)(iv), at any
time (A) after the occurrence and during the continuance of a
Default or an Event of Default, or (B) that any of the other
applicable conditions precedent set forth in Section 3 are not
satisfied, Agent hereby is authorized by Borrowers and the Lenders,
from time to time, in Agent’s sole discretion, to make
Revolving Loans to, or for the benefit of, Borrowers, on behalf of
the Revolving Lenders, that Agent, in its Permitted Discretion,
deems necessary or desirable (1) to preserve or protect the
Collateral, or any portion thereof, or (2) to enhance the
likelihood of repayment of the Obligations (other than the Bank
Product Obligations) (the Revolving Loans described in this
Section 2.3(d)(i) shall
be referred to as “Protective Advances”).
Notwithstanding the foregoing, the aggregate amount of all
Protective Advances outstanding at any one time shall not exceed
$10,000,000.
(ii) Any
contrary provision of this Agreement or any other Loan Document
notwithstanding, but subject to Section 2.3(d)(iv), the
Lenders hereby authorize Agent or Swing Lender, as applicable, and
either Agent or Swing Lender, as applicable, may, but is not
obligated to, knowingly and intentionally, continue to make
Revolving Loans (including Swing Loans) to, or for the benefit of,
Borrowers notwithstanding that an Overadvance exists or would be
created thereby, so long as (A) after giving effect to such
Revolving Loans, the outstanding Revolver Usage does not exceed the
Borrowing Base by more than $3,000,000, and (B) after giving
effect to such Revolving Loans, the outstanding Revolver Usage
(except for and excluding amounts charged to the Loan Account for
interest, fees, or Lender Group Expenses) does not exceed the
Maximum Revolver Amount. In the event Agent obtains actual
knowledge that the Revolver Usage exceeds the amounts permitted by
the immediately foregoing provisions, regardless of the amount of,
or reason for, such excess, Agent shall notify the Lenders as soon
as practicable (and prior to making any (or any additional)
intentional Overadvances (except for and excluding amounts charged
to the Loan Account for interest, fees, or Lender Group Expenses)
unless Agent determines that prior notice would result in imminent
harm to the Collateral or its value, in which case Agent may make
such Overadvances and provide notice as promptly as practicable
thereafter), and the Lenders with Revolver Commitments thereupon
shall, together with Agent, jointly determine the terms of
arrangements that shall be implemented with Borrowers intended to
reduce, within no greater than thirty (30) days, the outstanding
principal amount of the Revolving Loans to Borrowers to an amount
permitted by the preceding sentence. In such circumstances, if any
Lender with a Revolver Commitment objects to the proposed terms of
reduction or repayment of any Overadvance, the terms of reduction
or repayment thereof shall be implemented according to the
determination of the Required Lenders. The foregoing provisions are
meant for the benefit of the Lenders and Agent and are not meant
for the benefit of Borrowers, which shall continue to be bound by
the provisions of Section 2.4(e)(1). Each
Lender with a Revolver Commitment shall be obligated to settle with
Agent as provided in Section 2.3(e) (or
Section 2.3(g), as
applicable) for the amount of such Lender’s Pro Rata Share of
any unintentional Overadvances by Agent reported to such Lender,
any intentional Overadvances made as permitted under this
Section 2.3(d)(ii), and
any Overadvances resulting from the charging to the Loan Account of
interest, fees, or Lender Group Expenses.
(iii) Each
Protective Advance and each Overadvance (each, an
“Extraordinary
Advance”) shall be deemed to be a Revolving Loan
hereunder, except that no Extraordinary Advance shall be eligible
to be a LIBOR Rate Loan and, prior to Settlement therefor, all
payments on the Extraordinary Advances shall be payable to Agent
solely for its own account. The Extraordinary Advances shall be
repayable on demand, secured by Agent’s Liens, constitute
Obligations hereunder, and bear interest at the rate applicable
from time to time to Revolving Loans that are Base Rate Loans. The
provisions of this Section 2.3(d) are
for the exclusive benefit of Agent, Swing Lender, and the Lenders
and are not intended to benefit Borrowers (or any other Loan Party)
in any way.
(iv) Notwithstanding
anything contained in this Agreement or any other Loan Document to
the contrary (but subject to the limitations on Overadvances set
forth in Section 2.3(d)(ii) above):
(A) no Extraordinary Advance may be made by Agent if such
Extraordinary Advance would cause the aggregate principal amount of
Extraordinary Advances outstanding to exceed an amount equal to
$10,000,000; (B) to the extent that the making of any
Extraordinary Advance causes the aggregate Revolver Usage to exceed
the Maximum Revolver Amount, such portion of such Extraordinary
Advance shall be for Agent’s sole and separate account and
not for the account of any Lender and shall be entitled to priority
in repayment in accordance with Section 2.4(b); and
(C) no Lender will be required to fund any Extraordinary
Advance to the extent that such Extraordinary Advance would cause
such Lender’s funded portion of the Revolving Loans to exceed
such Lender’s Revolver Commitment.
(e) Settlement. It is agreed that each
Lender’s funded portion of the Revolving Loans is intended by
the Lenders to equal, at all times, such Lender’s Pro Rata
Share of the outstanding Revolving Loans. Such agreement
notwithstanding, Agent, Swing Lender, and the other Lenders agree
(which agreement shall not be for the benefit of Borrowers) that in
order to facilitate the administration of this Agreement and the
other Loan Documents, settlement among the Lenders as to the
Revolving Loans, the Swing Loans, and the Extraordinary Advances
shall take place on a periodic basis in accordance with the
following provisions:
(i) Agent shall request
settlement (“Settlement”) with the
Lenders on a weekly basis, or on a more frequent basis if so
determined by Agent in its sole discretion (1) on behalf of Swing
Lender, with respect to the outstanding Swing Loans, (2) for
itself, with respect to the outstanding Extraordinary Advances, and
(3) with respect to Borrowers’ or any of their
Subsidiaries’ payments or other amounts received, as to each
by notifying the Lenders by telecopy, telephone, or other similar
form of transmission, of such requested Settlement, no later than
4:00 p.m. on the Business Day immediately prior to the date of such
requested Settlement (the date of such requested Settlement being
the “Settlement
Date”). Such notice of a Settlement Date shall include
a summary statement of the amount of outstanding Revolving Loans,
Swing Loans, and Extraordinary Advances for the period since the
prior Settlement Date. Subject to the terms and conditions
contained herein (including Section 2.3(g)):
(y) if the amount of the Revolving Loans (including Swing
Loans, and Extraordinary Advances) made by a Lender that is not a
Defaulting Lender exceeds such Lender’s Pro Rata Share of the
Revolving Loans (including Swing Loans, and Extraordinary Advances)
as of a Settlement Date, then Agent shall, by no later than noon on
the Settlement Date, transfer in immediately available funds to a
Deposit Account of such Lender (as such Lender may designate), an
amount such that each such Lender shall, upon receipt of such
amount, have as of the Settlement Date, its Pro Rata Share of the
Revolving Loans (including Swing Loans, and Extraordinary
Advances), and (z) if the amount of the Revolving Loans
(including Swing Loans, and Extraordinary Advances) made by a
Lender is less than such Lender’s Pro Rata Share of the
Revolving Loans (including Swing Loans, and Extraordinary Advances)
as of a Settlement Date, such Lender shall no later than noon on
the Settlement Date transfer in immediately available funds to
Agent’s Account, an amount such that each such Lender shall,
upon transfer of such amount, have as of the Settlement Date, its
Pro Rata Share of the Revolving Loans (including Swing Loans and
Extraordinary Advances). Such amounts made available to Agent under
clause (z) of the
immediately preceding sentence shall be applied against the amounts
of the applicable Swing Loans or Extraordinary Advances and,
together with the portion of such Swing Loans or Extraordinary
Advances representing Swing Lender’s Pro Rata Share thereof,
shall constitute Revolving Loans of such Lenders. If any such
amount is not made available to Agent by any Lender on the
Settlement Date applicable thereto to the extent required by the
terms hereof, Agent shall be entitled to recover for its account
such amount on demand from such Lender together with interest
thereon at the Defaulting Lender Rate.
(ii) In
determining whether a Lender’s balance of the Revolving
Loans, Swing Loans, and Extraordinary Advances is less than, equal
to, or greater than such Lender’s Pro Rata Share of the
Revolving Loans, Swing Loans, and Extraordinary Advances as of a
Settlement Date, Agent shall, as part of the relevant Settlement,
apply to such balance the portion of payments actually received in
good funds by Agent with respect to principal, interest, fees
payable by Borrowers and allocable to the Lenders hereunder, and
proceeds of Collateral.
(iii) Between
Settlement Dates, Agent, to the extent Extraordinary Advances or
Swing Loans are outstanding, may pay over to Agent or Swing Lender,
as applicable, any payments or other amounts received by Agent that
in accordance with the terms of this Agreement would be applied to
the reduction of the Revolving Loans, for application to the
Extraordinary Advances or Swing Loans. Between Settlement Dates,
Agent, to the extent no Extraordinary Advances or Swing Loans are
outstanding, may pay over to Swing Lender any payments or other
amounts received by Agent that in accordance with the terms of this
Agreement would be applied to the reduction of the Revolving Loans,
for application to Swing Lender’s Pro Rata Share of the
Revolving Loans. If, as of any Settlement Date, payments or other
amounts of Borrowers or their Subsidiaries received since the then
immediately preceding Settlement Date have been applied to Swing
Lender’s Pro Rata Share of the Revolving Loans other than to
Swing Loans, as provided for in the previous sentence, Swing Lender
shall pay to Agent for the accounts of the Lenders, and Agent shall
pay to the Lenders (other than a Defaulting Lender if Agent has
implemented the provisions of Section 2.3(g)), to be
applied to the outstanding Revolving Loans of such Lenders, an
amount such that each such Lender shall, upon receipt of such
amount, have, as of such Settlement Date, its Pro Rata Share of the
Revolving Loans. During the period between Settlement Dates, Swing
Lender with respect to Swing Loans, Agent with respect to
Extraordinary Advances, and each Lender with respect to the
Revolving Loans other than Swing Loans and Extraordinary Advances,
shall be entitled to interest at the applicable rate or rates
payable under this Agreement on the daily amount of funds employed
by Swing Lender, Agent, or the Lenders, as applicable.
(iv) Anything
in this Section 2.3(e) to the
contrary notwithstanding, in the event that a Lender is a
Defaulting Lender, Agent shall be entitled to refrain from
remitting settlement amounts to the Defaulting Lender and, instead,
shall be entitled to elect to implement the provisions set forth in
Section 2.3(g).
(f) Notation. Agent, as a non-fiduciary
agent for Borrowers, shall maintain a register showing the
principal amount of the Revolving Loans (and portion of the
Last-Out Term Loan, as applicable), owing to each Lender, including
the Swing Loans owing to Swing Lender, and Extraordinary Advances
owing to Agent, and the interests therein of each Lender, from time
to time and such register shall, absent manifest error,
conclusively be presumed to be correct and accurate.
(g) Defaulting Lenders.
(i) Notwithstanding the
provisions of Section 2.4(b)(iii), Agent
shall not be obligated to transfer to a Defaulting Lender any
payments made by Borrowers to Agent for the Defaulting
Lender’s benefit or any proceeds of Collateral that would
otherwise be remitted hereunder to the Defaulting Lender, and, in
the absence of such transfer to the Defaulting Lender, Agent shall
transfer any such payments (A) first, to Swing Lender to the
extent of any Swing Loans that were made by Swing Lender and that
were required to be, but were not, paid by the Defaulting Lender,
(B) second, to
Issuing Bank, to the extent of the portion of a Letter of Credit
Disbursement that was required to be, but was not, paid by the
Defaulting Lender, (C) third, subject to the
Intercreditor Provisions, to each Non-Defaulting Lender ratably in
accordance with their Commitments (but, in each case, only to the
extent that such Defaulting Lender’s portion of a Revolving
Loan (or other funding obligation) was funded by such other
Non-Defaulting Lender), (D) fourth, to a suspense account
maintained by Agent, the proceeds of which shall be retained by
Agent and may be made available to be re-advanced to or for the
benefit of Borrowers (upon the request of Borrowers and subject to
the conditions set forth in Section 3.2) as if such
Defaulting Lender had made its portion of Revolving Loans (or other
funding obligations) hereunder, and (E) fifth, from and after the date
on which all applicable other Obligations have been paid in full,
to such Defaulting Lender in accordance with tier (O) of Section 2.4(b)(iii).
Subject to the foregoing, Agent may hold and, in its discretion,
re-lend to Borrowers for the account of such Defaulting Lender the
amount of all such payments received and retained by Agent for the
account of such Defaulting Lender. Solely for the purposes of
voting or consenting to matters with respect to the Loan Documents
(including the calculation of Pro Rata Share in connection
therewith) and for the purpose of calculating the fee payable under
Section 2.10(b), such
Defaulting Lender shall be deemed not to be a “Lender”
and such Lender’s Commitment shall be deemed to be zero;
provided, that the
foregoing shall not apply to any of the matters governed by
Section 14.1(a)(i) through
(iii). The
provisions of this Section 2.3(g) shall
remain effective with respect to such Defaulting Lender until the
earlier of (y) the date on which all of the Non-Defaulting
Lenders, Agent, Issuing Bank, and Borrowers shall have waived, in
writing, the application of this Section 2.3(g) to such
Defaulting Lender, or (z) the date on which such Defaulting
Lender makes payment of all amounts that it was obligated to fund
hereunder, pays to Agent all amounts owing by Defaulting Lender in
respect of the amounts that it was obligated to fund hereunder,
and, if requested by Agent, provides adequate assurance of its
ability to perform its future obligations hereunder (on which
earlier date, so long as no Event of Default has occurred and is
continuing, any remaining cash collateral held by Agent pursuant to
Section 2.3(g)(ii) shall
be released to Borrowers). The operation of this Section 2.3(g) shall not
be construed to increase or otherwise affect the Commitment of any
Lender, to relieve or excuse the performance by such Defaulting
Lender or any other Lender of its duties and obligations hereunder,
or to relieve or excuse the performance by any Borrower of its
duties and obligations hereunder to Agent, Issuing Bank, or to the
Lenders other than such Defaulting Lender. Any failure by a
Defaulting Lender to fund amounts that it was obligated to fund
hereunder shall constitute a material breach by such Defaulting
Lender of this Agreement and shall entitle Borrowers, at their
option, upon written notice to Agent, to arrange for a substitute
Lender to assume the Commitment of such Defaulting Lender, such
substitute Lender to be reasonably acceptable to Agent. In
connection with the arrangement of such a substitute Lender, the
Defaulting Lender shall have no right to refuse to be replaced
hereunder, and agrees to execute and deliver a completed form of
Assignment and Acceptance in favor of the substitute Lender (and
agrees that it shall be deemed to have executed and delivered such
document if it fails to do so) subject only to being paid its share
of the outstanding Obligations (other than Bank Product
Obligations, but including (1) all interest, fees, and other
amounts that may be due and payable in respect thereof, and
(2) an assumption of its Pro Rata Share of its participation
in the Letters of Credit) determined in accordance with this
Agreement (including the Intercreditor Provisions); provided, that any such
assumption of the Commitment of such Defaulting Lender shall not be
deemed to constitute a waiver of any of the Lender Groups’ or
Borrowers’ rights or remedies against any such Defaulting
Lender arising out of or in relation to such failure to fund. In
the event of a direct conflict between the priority provisions of
this Section 2.3(g) and any
other provision contained in this Agreement (including the
Intercreditor Provisions) or any other Loan Document, it is the
intention of the parties hereto that such provisions be read
together and construed, to the fullest extent possible, to be in
concert with each other. In the event of any actual, irreconcilable
conflict that cannot be resolved as aforesaid, the terms and
provisions of this Section 2.3(g) shall
control and govern (except to the extent that they conflict with
the Intercreditor Provisions, in which case the Intercreditor
Provisions shall control and govern).
(ii) If
any Swing Loan or Letter of Credit is outstanding at the time that
a Lender becomes a Defaulting Lender then:
(A) such Defaulting
Lender’s Swing Loan Exposure and Letter of Credit Exposure
shall be reallocated among the Non-Defaulting Lenders in accordance
with their respective Pro Rata Shares but only to the extent
(x) the sum of all Non-Defaulting Lenders’ Revolving
Loan Exposures plus such Defaulting Lender’s Swing Loan
Exposure and Letter of Credit Exposure does not exceed the total of
all Non-Defaulting Lenders’ Revolver Commitments and
(y) the conditions set forth in Section 3.2 are satisfied
at such time;
(B) if the reallocation
described in clause (A) above
cannot, or can only partially, be effected, Borrowers shall within
one Business Day following notice by Agent (x) first, prepay such Defaulting
Lender’s Swing Loan Exposure (after giving effect to any
partial reallocation pursuant to clause (A) above) and
(y) second,
cash collateralize such Defaulting Lender’s Letter of Credit
Exposure (after giving effect to any partial reallocation pursuant
to clause (A) above),
pursuant to a cash collateral agreement to be entered into in form
and substance reasonably satisfactory to Agent, for so long as such
Letter of Credit Exposure is outstanding; provided, that Borrowers shall
not be obligated to cash collateralize any Defaulting
Lender’s Letter of Credit Exposure if such Defaulting Lender
is also the Issuing Bank;
(C) if Borrowers cash
collateralize any portion of such Defaulting Lender’s Letter
of Credit Exposure pursuant to this Section 2.3(g)(ii),
Borrowers shall not be required to pay any Letter of Credit Fees to
Agent for the account of such Defaulting Lender pursuant to
Section 2.6(b) with
respect to such cash collateralized portion of such Defaulting
Lender’s Letter of Credit Exposure during the period such
Letter of Credit Exposure is cash collateralized;
(D) to the extent the
Letter of Credit Exposure of the Non-Defaulting Lenders is
reallocated pursuant to this Section 2.3(g)(ii), then
the Letter of Credit Fees payable to the Non-Defaulting Lenders
pursuant to Section 2.6(b) shall
be adjusted in accordance with such Non-Defaulting Lenders’
Letter of Credit Exposure;
(E) to the extent any
Defaulting Lender’s Letter of Credit Exposure is neither cash
collateralized nor reallocated pursuant to this Section 2.3(g)(ii), then,
without prejudice to any rights or remedies of the Issuing Bank or
any Lender hereunder, all Letter of Credit Fees that would have
otherwise been payable to such Defaulting Lender under Section 2.6(b) with
respect to such portion of such Letter of Credit Exposure shall
instead be payable to the Issuing Bank until such portion of such
Defaulting Lender’s Letter of Credit Exposure is cash
collateralized or reallocated;
(F) so long as any
Lender is a Defaulting Lender, the Swing Lender shall not be
required to make any Swing Loan and the Issuing Bank shall not be
required to issue, amend, or increase any Letter of Credit, in each
case, to the extent (x) the Defaulting Lender’s Pro Rata
Share of such Swing Loans or Letter of Credit cannot be reallocated
pursuant to this Section 2.3(g)(ii) or
(y) the Swing Lender or Issuing Bank, as applicable, has not
otherwise entered into arrangements reasonably satisfactory to the
Swing Lender or Issuing Bank, as applicable, and Borrowers to
eliminate the Swing Lender’s or Issuing Bank’s risk
with respect to the Defaulting Lender’s participation in
Swing Loans or Letters of Credit; and
(G) Agent may release
any cash collateral provided by Borrowers pursuant to this
Section 2.3(g)(ii) to
the Issuing Bank and the Issuing Bank may apply any such cash
collateral to the payment of such Defaulting Lender’s Pro
Rata Share of any Letter of Credit Disbursement that is not
reimbursed by Borrowers pursuant to Section 2.11(d).
(iii) Subject
to Section 17.16, no reallocation pursuant to
Section 2.3(g)(ii) shall
constitute a waiver or release of any claim of any party hereunder
against a Defaulting Lender arising from that Lender’s having
become a Defaulting Lender, including any claim of a Non-Defaulting
Lender as a result of such Non-Defaulting Lender’s increased
exposure following such reallocation.
(iv) If
Borrowers, Agent, Swing Lender, and Issuing Bank agree in writing
that a Lender is no longer a Defaulting Lender, then Agent will so
notify the parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth
therein (which may include arrangements with respect to any cash
collateral), that Lender will, to the extent applicable, purchase
at par that portion of outstanding Revolving Loans of the other
Lenders or take such other actions as Agent may determine to be
necessary to cause the Revolving Loans and funded and unfunded
participations in Letters of Credit and Swing Loans to be held pro
rata by the Lenders in accordance with the Commitments under the
applicable Facility (without giving effect to Section 2.3(g)(ii)),
whereupon such Lender will cease to be a Defaulting Lender;
provided that no
adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of Borrowers while that Lender was
a Defaulting Lender; provided, that except to the extent otherwise
expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Lender will constitute a waiver or release of
any claim of any party hereunder arising from that Lender’s
having been a Defaulting Lender.
(h) Independent Obligations. All Revolving
Loans (other than Swing Loans and Extraordinary Advances) shall be
made by the Lenders contemporaneously and in accordance with their
Pro Rata Shares. It is understood that (i) no Lender shall be
responsible for any failure by any other Lender to perform its
obligation to make any Revolving Loan (or other extension of
credit) hereunder, nor shall any Commitment of any Lender be
increased or decreased as a result of any failure by any other
Lender to perform its obligations hereunder, and (ii) no
failure by any Lender to perform its obligations hereunder shall
excuse any other Lender from its obligations
hereunder.
2.4 Payments;
Reductions of Commitments; Prepayments.
(a) Payments
by Borrowers.
(i) Except as otherwise
expressly provided herein, all payments by Borrowers shall be made
to Agent’s Account for the account of the Lender Group and
shall be made in immediately available funds, no later than 3:30
p.m. on the date specified herein. Any payment received by Agent
later than 3:30 p.m. shall be deemed to have been received (unless
Agent, in its sole discretion, elects to credit it on the date
received) on the following Business Day and any applicable interest
or fee shall continue to accrue until such following Business
Day.
(ii) Unless
Agent receives notice from Borrowers prior to the date on which any
payment is due to the Lenders that Borrowers will not make such
payment in full as and when required, Agent may assume that
Borrowers have made (or will make) such payment in full to Agent on
such date in immediately available funds and Agent may (but shall
not be so required), in reliance upon such assumption, distribute
to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent Borrowers do not make such
payment in full to Agent on the date when due, each Lender
severally shall repay to Agent on demand such amount distributed to
such Lender, together with interest thereon at the Defaulting
Lender Rate for each day from the date such amount is distributed
to such Lender until the date repaid.
(iii) If
applicable, Agent may, at its option (but is not obligated to),
convert any payments received in respect of the Obligations of Loan
Parties that are not in Dollars to Dollars at the Exchange Rate
calculated by Agent in good faith and Borrowers shall pay the costs
of such conversion (or Agent may, at its option, charge such costs
to the loan account of any Borrower or Administrative Borrower
maintained by such Agent).
(b) Apportionment
and Application.
(i) So long as no
Application Event has occurred and is continuing and except as
otherwise provided herein with respect to Defaulting Lenders and as
otherwise provided in the Intercreditor Provisions, all principal
and interest payments received by Agent shall be apportioned
ratably among the Lenders (according to the unpaid principal
balance of the Obligations to which such payments relate held by
each Lender) and all payments of fees and expenses received by
Agent (other than fees or expenses that are for Agent’s
separate account or for the separate account of Issuing Bank) shall
be apportioned ratably among the Lenders having a Pro Rata Share of
the type of Commitment or Obligation to which a particular fee or
expense relates.
(ii) Subject
to Section 2.4(b)(v),
Section 2.4(d)(ii), and
Section 2.4(e), all
payments to be made hereunder by Borrowers shall be remitted to
Agent and all such payments, and all proceeds of Collateral
received by Agent, shall be applied, so long as no Application
Event has occurred and is continuing and except as otherwise
provided herein with respect to Defaulting Lenders and as otherwise
provided in the Intercreditor Provisions, to reduce the balance of
the Revolving Loans outstanding (in accordance with this Agreement
(including the Intercreditor Provisions)) and, thereafter, to
Borrowers (to be wired to the Designated Account) or such other
Person entitled thereto under applicable law.
(iii) At
any time that an Application Event has occurred and is continuing
and except as otherwise provided herein with respect to Defaulting
Lenders and as otherwise provided in the Intercreditor Provisions,
all payments remitted to Agent and all proceeds of Collateral
received by Agent shall be applied as follows:
(A) first, to pay any Lender Group
Expenses (including cost or expense reimbursements) or indemnities
then due to Agent under the Loan Documents, until paid in
full,
(B) second, to pay any fees or
premiums then due to Agent under the Loan Documents until paid in
full,
(C) third, to pay interest due in
respect of all Protective Advances until paid in full,
(D) fourth, to pay the principal of
all Protective Advances until paid in full,
(E) fifth, ratably, to pay any
Lender Group Expenses (including cost or expense reimbursements) or
indemnities then due to any of the Lenders under the Loan
Documents, until paid in full (provided that the Last-Out Term Loan
Lenders shall only be entitled to reimbursement of reasonable fees
and expenses for one counsel and one set of accountants and
advisors for Last-Out Term Loan Lenders under this clause fifth),
(F) sixth, ratably, to pay any fees
or premiums then due to any of the Lenders (other than the Last-Out
Term Loan Lenders) under the Loan Documents until paid in
full,
(G) seventh, to pay interest
accrued in respect of the Swing Loans until paid in
full,
(H) eighth, to pay the principal of
all Swing Loans until paid in full,
(I) ninth, ratably, to pay interest
accrued in respect of the Revolving Loans (other than Protective
Advances) and, if the Event of Default giving rise to the
Application Event is not an Event of Default described in
Section 8.4 or
Section 8.5,
the Last-Out Term Loan until paid in full,
(J) tenth, ratably
i. ratably, to pay the
principal of all Revolving Loans until paid in full,
ii. to Agent, to be
held by Agent, for the benefit of Issuing Bank (and for the ratable
benefit of each of the Lenders that have an obligation to pay to
Agent, for the account of Issuing Bank, a share of each Letter of
Credit Disbursement), as cash collateral in an amount up to 105% of
the Letter of Credit Usage (to the extent permitted by applicable
law, such cash collateral shall be applied to the reimbursement of
any Letter of Credit Disbursement as and when such disbursement
occurs and, if a Letter of Credit expires undrawn, the cash
collateral held by Agent in respect of such Letter of Credit shall,
to the extent permitted by applicable law, be reapplied pursuant to
this Section 2.4(b)(iii),
beginning with tier
(A) hereof),
iii. ratably,
up to the amount (after taking into account any amounts previously
paid pursuant to this clause iii. during the
continuation of the applicable Application Event) of the most
recently established Bank Product Reserve, which amount
(y) was established prior to the occurrence of, and not in
contemplation of, the subject Application Event, and
(z) solely for purposes of this clause iii. will not
exceed $3,000,000 in the aggregate (after taking into account any
amounts previously paid pursuant to this clause iii. during the
continuation of the applicable Application Event), to (i) the
Bank Product Providers based upon amounts then certified by the
applicable Bank Product Provider to Agent (in form and substance
satisfactory to Agent) to be due and payable to such Bank Product
Providers on account of Bank Product Obligations other than in
respect of Cash Management Services, and (ii) with any balance
to be paid to Agent, to be held by Agent, for the ratable benefit
of the Bank Product Providers, as cash collateral (which cash
collateral may be released by Agent to the applicable Bank Product
Provider and applied by such Bank Product Provider to the payment
or reimbursement of any amounts due and payable with respect to
Bank Product Obligations other than in respect of Cash Management
Services owed to the applicable Bank Product Provider as and when
such amounts first become due and payable and, if and at such time
as all such Bank Product Obligations are paid or otherwise
satisfied in full, the cash collateral held by Agent in respect of
such Bank Product Obligations shall be reapplied pursuant to this
Section 2.4(b)(iii),
beginning with tier (A) hereof,
iv. ratably, to the
Bank Product Providers based upon amounts then certified by the
applicable Bank Product Provider to Agent (in form and substance
satisfactory to Agent) to be due and payable to such Bank Product
Providers on account of Bank Product Obligations in respect of Cash
Management Services,
(K) eleventh, ratably, to pay any
other Lender Group Expenses (including cost or expense
reimbursements) or indemnities then due to any of the Last-Out Term
Loan Lenders under the Loan Documents not satisfied under
clause fifth
above, until paid in full,
(L) twelfth, ratably, to pay any
fees or premiums then due to any of the Last-Out Term Loan Lenders
under the Loan Documents until paid in full,
(M) thirteenth, if the Event of
Default giving rise to the Application Event is an Event of Default
described in Section 8.4 or
Section 8.5,
to pay interest accrued in respect of the Last-Out Term Loan until
paid in full
(N) fourteenth, to pay the
principal of the Last-Out Term Loan until paid in
full,
(O) fifteenth, ratably to pay any
Bank Product Obligations not satisfied under clause tenth
above,
(P) sixteenth, to pay any other
Obligations other than Obligations owed to Defaulting
Lenders,
(Q) seventeenth, ratably to pay any
Obligations owed to Defaulting Lenders; and
(R) eighteenth, to Borrowers (to be
wired to the Designated Account) or such other Person entitled
thereto under applicable law.
(iv) Agent
promptly shall distribute to each Lender, pursuant to the
applicable wire instructions received from each Lender in writing,
such funds as it may be entitled to receive, subject to a
Settlement delay as provided in Section 2.3(e).
(v) In each instance,
so long as no Application Event has occurred and is continuing,
Section 2.4(b)(i) shall
not apply to any payment made by Borrowers to Agent and specified
by Borrowers to be for the payment of specific Obligations then due
and payable (or prepayable) under any provision of this Agreement,
or any other Loan Document.
(vi) Without
in any way limiting the joint and several obligations of each
Borrower to repay the Obligations, after the occurrence and during
the continuance of a Partition Event, Agent may, in its
discretion, allocate payments and proceeds of Collateral in
accordance with the terms of this Section 2.4(b) among and
between each Borrower’s primary Obligations reflected in such
Borrower’s Loan Sub-Account.
(vii) For
purposes of Section 2.4(b)(iii),
“paid in full” of a type of Obligation means payment in
cash or immediately available funds of all amounts owing on account
of such type of Obligation, including interest accrued after the
commencement of any Insolvency Proceeding, default interest,
interest on interest, and expense reimbursements, irrespective of
whether any of the foregoing would be or is allowed or disallowed
in whole or in part in any Insolvency Proceeding.
(viii) In
the event of a direct conflict between the priority provisions of
this Section 2.4 and any other
provision contained in this Agreement (including the Intercreditor
Provisions) or any other Loan Document, it is the intention of the
parties hereto that such provisions be read together and construed,
to the fullest extent possible, to be in concert with each other.
In the event of any actual, irreconcilable conflict that cannot be
resolved as aforesaid, (A) if the conflict relates to the
provisions of Section 2.3(g) and
this Section 2.4, then the
provisions of Section 2.3(g) shall
control and govern, (B) if the conflict relates to the
Intercreditor Provisions and the provisions of this Section 2.4 that provide
for the application of payments and proceeds of Collateral, then
the Intercreditor Provisions shall govern, and (C) if
otherwise, then the terms and provisions of this Section 2.4 shall control
and govern.
(c) Reduction of Commitments.
(i) Revolver Commitments. The Revolver
Commitments shall terminate on the Maturity Date. Subject to
Section 2.6(e),
Borrowers may reduce the Revolver Commitments to an amount (which
may be zero) not less than the sum of (A) the Revolver Usage
as of such date, plus
(B) the principal amount of all Revolving Loans not yet made
as to which a request has been given by Borrowers under
Section 2.3(a),
plus (c) the amount of all Letters of Credit not yet issued as
to which a request has been given by Borrowers pursuant to
Section 2.11(a). Each such
reduction shall be in an amount which is not less than $5,000,000
(unless the Revolver Commitments are being reduced to zero and the
amount of the Revolver Commitments in effect immediately prior to
such reduction are less than $5,000,000), shall be made by
providing not less than 10 Business Days’ prior written
notice to Agent, and shall be irrevocable. Once reduced, the
Revolver Commitments may not be increased. Each such reduction of
the Revolver Commitments shall reduce the Revolver Commitments of
each Lender proportionately in accordance with its ratable share
thereof.
(ii) Last-Out
Term Loan Commitments. The Last-Out Term Loan Commitments
shall terminate upon the making of the Last-Out Term
Loan.
(d) Optional Prepayments.
(i) Revolving Loans. Borrowers may prepay
the principal of any Revolving Loan at any time in whole or in
part, without premium or penalty.
(ii) Last-Out
Term Loan. Borrowers may, upon at least 10 Business
Days’ prior written notice to Agent, prepay the principal of
the Last-Out Term Loan, in whole or in part, so long as before and
immediately after giving effect to any such prepayment, (A) no
Default or Event of Default shall have occurred and be continuing
or would result therefrom, (B) each Borrower is Solvent,
(C) Excess Availability is greater than or equal to
$21,000,000, and (D) the Fixed Charge Coverage Ratio, measured on a
trailing-twelve-months’ basis as of the end of the most
recently completed month for which financial statements have been
provided to Agent pursuant to Section 5.1, both actual and
giving pro forma effect to any such payment, will be greater than
1.25 to 1.00. Each prepayment made pursuant to this Section 2.4(d)(ii) shall be
accompanied by the payment of accrued interest to the date of such
payment on the amount prepaid. Each such prepayment shall
(1) so long as no Application Event shall have occurred and be
continuing, be applied against the remaining installments of
principal due on the Last-Out Term Loan in the inverse order of
maturity (for the avoidance of doubt, any amount that is due and
payable on the Maturity Date shall constitute an installment), and
(2) if an Application Event shall have occurred and be
continuing, be applied in the manner set forth in Section 2.4(b)(iii). Each
prepayment of the Last-Out Term Loan made pursuant to this
Section 2.4(d)(ii)
shall be accompanied by any applicable Last-Out Term Loan
Prepayment Premium, which shall be for the sole account of the
Last-Out Term Loan Lenders.
(e) Mandatory Prepayments.
(i) Borrowing Base (Generally). If, at any
time, except to the extent resulting from the circumstances
described in Section 2.4(e)(viii),
(A) the Revolver Usage on such date exceeds (B) the
Borrowing Base reflected in the Borrowing Base Certificate most
recently delivered by Borrowers to Agent, then Borrowers shall
immediately prepay the Obligations in accordance with Section 2.4(f)(i) in
an aggregate amount equal to the amount of such excess. In
addition, if, at any time after the occurrence and during the
continuance of a Partition Event, except to the extent
resulting from the circumstances described in Section 2.4(e)(viii),
(A) the Revolver Usage of any Borrower on such date exceeds
(B) the Borrowing Base (Individual) of such Borrower
reflected in the Borrowing Base Certificate most recently delivered
by Borrowers to Agent, then Borrowers shall immediately prepay the
Obligations in accordance with Section 2.4(f)(i) in
an aggregate amount equal to the amount of such
excess.
(ii) Dispositions
(Generally). Within 1 Business Day of the date of receipt by
any Borrower or any of its Subsidiaries of the Net Cash Proceeds of
any voluntary or involuntary sale, expropriations, or disposition
by such Borrower or any of its Subsidiaries of assets (including
casualty losses or condemnations but excluding sales or
dispositions which qualify as Permitted Dispositions under
clauses (a),
(b), (c), (d), (e), (j), (k), (l), (m), or (n) of the definition of
Permitted Dispositions) constituting Collateral (other than
Eligible Real Property or Real Property Collateral that is the
subject of Real Property Sublimit Loans), Borrowers shall prepay
the outstanding principal amount of the Obligations in accordance
with Section 2.4(f)(i) in
an amount equal to 100% of such Net Cash Proceeds (including
condemnation or expropriation awards and payments in lieu thereof)
received by such Person in connection with such sales or
dispositions; provided that, so long as
(A) no Default or Event of Default shall have occurred and is
continuing or would result therefrom, (B) such Borrower shall
have given Agent prior written notice of such Borrower’s
intention to apply such monies to the costs of replacement of the
properties or assets that are the subject of such sale or
disposition or the cost of purchase or construction of other assets
useful in the business of such Borrower or its Subsidiaries,
(C) the monies are held in a Deposit Account in which Agent
has a perfected first-priority security interest, and (D) such
Borrower or its Subsidiaries, as applicable, complete such
replacement, purchase, or construction within 365 days after
the initial receipt of such monies, then the Loan Party whose
assets were the subject of such disposition shall have the option
to apply such monies to the costs of replacement of the assets that
are the subject of such sale or disposition or the costs of
purchase or construction of other assets useful in the business of
such Loan Party unless and to the extent that such applicable
period shall have expired without such replacement, purchase, or
construction being made or completed, in which case, any amounts
remaining in the Deposit Account referred to in clause (c) above
shall be paid to Agent and applied in accordance with Section 2.4(f)(i);
provided, that no
Borrower nor any of its Subsidiaries shall have the right to use
such Net Cash Proceeds to make such replacements, purchases, or
construction in excess of $4,000,000 in any given fiscal year.
Nothing contained in this Section 2.4(e)(ii) shall
permit any Borrower or any of its Subsidiaries to sell or otherwise
dispose of any assets other than in accordance with Section 6.4.
(iii) Extraordinary
Receipts. Within 1 Business Day of the date of receipt by
any Borrower or any of its Subsidiaries of any Extraordinary
Receipts, Borrowers shall prepay the outstanding principal amount
of the Obligations in accordance with Section 2.4(f)(i) in
an amount equal to 100% of such Extraordinary Receipts, net of any
reasonable expenses incurred in collecting such Extraordinary
Receipts.
(iv) Indebtedness.
Within 1 Business Day of the date of incurrence by any Borrower or
any of its Subsidiaries of any Indebtedness (other than Permitted
Indebtedness), Borrowers shall prepay the outstanding principal
amount of the Obligations in accordance with Section 2.4(f)(i) in
an amount equal to 100% of the Net Cash Proceeds received by such
Person in connection with such incurrence. The provisions of this
Section 2.4(e)(iv) shall
not be deemed to be implied consent to any such incurrence
otherwise prohibited by the terms of this Agreement.
(v) Equity. Within 1 Business Day of the
date of the issuance by any Borrower or any of its Subsidiaries of
any Equity Interests (other than (A) in the event that any
Borrower or any of its Subsidiaries forms any Subsidiary in
accordance with the terms hereof, the issuance by such Subsidiary
of Equity Interests to such Borrower or such Subsidiary, as
applicable, (B) the issuance of Equity Interests by Pac-Van to
any Person that is an equity holder of Pac-Van prior to such
issuance (a “Subject
Holder”) so long as such Subject Holder did not
acquire any Equity Interests of Pac-Van so as to become a Subject
Holder concurrently with, or in contemplation of, the issuance of
such Equity Interest to such Subject Holder, (C) the issuance
of Equity Interests of Pac-Van to directors, officers and employees
of Pac-Van and its Subsidiaries pursuant to employee stock option
plans (or other employee incentive plans or other compensation
arrangements) approved by the Board of Directors, (D) the
issuance of Equity Interests of Pac-Van in order to finance the
purchase consideration (or a portion thereof) in connection with a
Permitted Acquisition, and (E) the issuance of Equity
Interests by a Subsidiary of a Borrower to its parent or member in
connection with the contribution by such parent or member to such
Subsidiary of the proceeds of an issuance described in clauses (A) through
(E) above),
Borrowers shall prepay the outstanding principal amount of the
Obligations in accordance with Section 2.4(f)(i) in
an amount equal to 100% of the Net Cash Proceeds received by such
Person in connection with such issuance. The provisions of this
Section 2.4(e)(v) shall
not be deemed to be implied consent to any such issuance otherwise
prohibited by the terms of this Agreement.
(vi) Cash
Equity Contributions (Series C Preferred Stock). Within
1 Business Day of the date of receipt by Pac-Van of any cash
equity contribution made in connection with any issuance by GFC of
Series C Preferred Stock of GFC, Borrowers shall prepay the
outstanding principal amount of the Obligations in accordance with
Section 2.4(f)(i) in an amount equal to 100% of such cash equity
contribution.
(vii) Cash
Equity Contributions (GFC 2021 Notes). Within
1 Business Day of the date of receipt by any Borrower of any
cash equity contribution made in connection with the GFC 2021
Notes, Borrowers shall prepay the outstanding principal amount of
the Obligations in accordance with Section 2.4(f)(i) in an amount
equal to 100% of such cash equity contribution.
(viii) Borrowing
Base (Real Property Sublimit Loans). If, at any time,
(A) the aggregate outstanding amount of all Real Property
Sublimit Loans on such date exceeds (B) the Real Property
Sublimit Formula Amount with respect to all Eligible Real Property
reflected in the Borrowing Base Certificate most recently delivered
by Borrowers to Agent, then Borrowers shall immediately prepay the
Obligations in accordance with Section 2.4(f)(i) in
an aggregate amount equal to the amount of such
excess.
(ix) Dispositions
(Real Property Sublimit Loans). Within 1 Business Day of the
date of receipt by any Borrower or any of its Subsidiaries of the
Net Cash Proceeds of any voluntary or involuntary sale,
expropriations, or disposition by such Borrower or any of its
Subsidiaries of assets (including casualty losses or condemnations
but excluding sales or dispositions which qualify as Permitted
Dispositions under clauses (a), (e), or (n) of the definition of
Permitted Dispositions) constituting Eligible Real Property or Real
Property Collateral that is the subject of Real Property Sublimit
Loans, Borrowers shall prepay the outstanding principal amount of
the Obligations in accordance with Section 2.4(f)(i) in
an amount equal to 100% of such Net Cash Proceeds (including
condemnation or expropriation awards and payments in lieu thereof)
received by such Person in connection with such sales or
dispositions. Nothing contained in this Section 2.4(e)(ix) shall
permit any Borrower or any of its Subsidiaries to sell or otherwise
dispose of any assets other than in accordance with Section 6.4.
(x) Last-Out Term Loan Prepayment
Premium. Each prepayment of the Last-Out Term Loan made
pursuant to this Section 2.4(e) shall be
accompanied by any applicable Last-Out Term Loan Prepayment
Premium, which shall be for the sole account of the Last-Out Term
Loan Lenders.
(f) Application of Payments.
(i) Each prepayment
pursuant to Section 2.4(d) or
Section 2.4(e)
shall, (A) so long as no Application Event shall have occurred
and be continuing, be applied as follows: first, to the outstanding
principal amount of the Revolving Loans (without a corresponding
permanent reduction in the Maximum Revolver Amount), until paid in
full, second, to
cash collateralize the Letters of Credit in an amount equal to 105%
of the then outstanding Letter of Credit Usage (without a
corresponding permanent reduction in the Maximum Revolver Amount),
and third, to the
outstanding principal amount of the Last-Out Term Loan, and
(B) if an Application Event shall have occurred and be
continuing, be applied in the manner set forth in Section 2.4(b)(iii). Each
such prepayment of the Last-Out Term Loan shall be applied against
the remaining installments of principal of the Last-Out Term Loan
in the inverse order of maturity (for the avoidance of doubt, any
amount that is due and payable on the Maturity Date shall
constitute an installment).
(ii) Each
prepayment pursuant to Section 2.4(d) or
2.4(e) (other
than Section 2.4(e)(viii) or
Section 2.4(e)(ix))
applied to the outstanding principal amount of the Revolving Loans
pursuant to this Agreement will be deemed to have been applied as
follows: first, to
the outstanding principal amount of all Revolving Loans other than
Real Property Sublimit Loans, until paid in full; and second, to the outstanding
principal amount of all Real Property Sublimit Loans. Each such
prepayment deemed to have been applied to the outstanding principal
amount of the Real Property Sublimit Loans pursuant to this
Section 2.4(f)(iii) shall
(A) permanently reduce the Maximum Real Property Sublimit
Amount by an amount equal to the amount of such prepayment, until
the Maximum Real Property Sublimit Amount is reduced to zero (but
no such repayment shall reduce the Maximum Revolver Amount);
(B) be applied to the outstanding principal amount of all Real
Property Sublimit Loans on a pro rata basis; and (C) be
further applied against the remaining installments of principal of
each Real Property Sublimit Loan in the inverse order of maturity
(for the avoidance of doubt, any amount that is due and payable on
the Maturity Date shall constitute an installment).
(iii) Each
prepayment pursuant to Section 2.4(e)(viii) or
Section 2.4(e)(ix) applied
to the outstanding principal amount of the Revolving Loans pursuant
to this Agreement will be deemed to have been applied as follows:
first, to the
outstanding principal amount of the Real Property Sublimit Loans of
which the applicable Eligible Real Property or Real Property
Collateral is the subject, until paid in full; second, to the outstanding
principal amount of all Revolving Loans other than the other Real
Property Sublimit Loans, until paid in full; and third, to the outstanding
principal amount of all other Real Property Sublimit Loans. Each
such prepayment deemed to have been applied to the outstanding
principal amount of the Real Property Sublimit Loans pursuant to
this Section 2.4(f)(iv) shall
(A) permanently reduce the Maximum Real Property Sublimit
Amount by an amount equal to the amount of such prepayment, until
the Maximum Real Property Sublimit Amount is reduced to zero (but
no such prepayment shall reduce the Maximum Revolver Amount);
(B) be applied to the outstanding principal amount of the Real
Property Sublimit Loans of which the applicable Eligible Real
Property or Real Property Collateral is the subject on a pro rata
basis; (C) be further applied against the remaining
installments of principal of each such Real Property Sublimit Loan
in the inverse order of maturity (for the avoidance of doubt, any
amount that is due and payable on the Maturity Date shall
constitute an installment); (D) if applicable, be applied to
the outstanding principal amount of all other Real Property
Sublimit Loans on a pro rata basis; and (E) if applicable, be
further applied against the remaining installments of principal of
each such other Real Property Sublimit Loan in the inverse order of
maturity (for the avoidance of doubt, any amount that is due and
payable on the Maturity Date shall constitute an
installment).
2.5 Promise to Pay;
Promissory Notes.
(a) Borrowers agree to
pay the Lender Group Expenses on the earlier of (i) the first
day of the month following the date on which the applicable Lender
Group Expenses were first incurred or (ii) the date on which
demand therefor is made by Agent (it being acknowledged and agreed
that any charging of such costs, expenses or Lender Group Expenses
to the Loan Account pursuant to the provisions of Section 2.6(d) shall
be deemed to constitute a demand for payment thereof for the
purposes of this subclause (ii)). Borrowers
promise to pay all of the Obligations (including principal,
interest, premiums, if any, fees, costs, and expenses (including
Lender Group Expenses)) in full on the Maturity Date or, if
earlier, on the date on which the Obligations (other than the Bank
Product Obligations) become due and payable pursuant to the terms
of this Agreement. Borrowers agree that their obligations contained
in the first sentence of this Section 2.5(a) shall
survive payment or satisfaction in full of all other
Obligations.
(b) Any Lender may
request that any portion of its Commitments or the Loans made by it
be evidenced by one or more promissory notes. In such event,
Borrowers shall execute and deliver to such Lender the requested
promissory notes payable to the order of such Lender in a form
furnished by Agent and reasonably satisfactory to Borrowers.
Thereafter, the portion of the Commitments and Loans evidenced by
such promissory notes and interest thereon shall at all times be
represented by one or more promissory notes in such form payable to
the order of the payee named therein.
2.6 Interest
Rates and Letter of Credit Fee: Rates, Payments, and
Calculations.
(a) Interest Rates. Except as provided in
Section 2.6(c), all
Obligations (except for undrawn Letters of Credit) that have been
charged to the Loan Account pursuant to the terms hereof shall bear
interest as follows:
(i) if the relevant
Obligation is (A) a LIBOR Rate Loan that constitutes a Real
Property Sublimit Loan, at a per
annum rate equal to the LIBOR Rate plus the LIBOR Rate Margin plus 0.50%, or (B) a Base Rate
Loan that constitutes a Real Property Sublimit Loan, at a
per annum rate equal to the
Base Rate plus the Base
Rate Margin plus
0.50%;
(ii) if
the relevant Obligation is (A) a LIBOR Rate Loan that does not
constitute a Real Property Sublimit Loan, at a per annum rate equal to the LIBOR Rate
plus the LIBOR Rate Margin,
or (B) a Base Rate Loan that does not constitute a Real
Property Sublimit Loan, at a per
annum rate equal to the Base Rate plus the Base Rate Margin,
and
(iii) otherwise,
at a per annum rate equal
to the Base Rate plus the
Base Rate Margin.
(b) Letter of Credit Fee. Borrowers shall
pay Agent (for the ratable benefit of the Revolving Lenders), a
Letter of Credit fee (the “Letter of Credit Fee”)
(which fee shall be in addition to the fronting fees and
commissions, other fees, charges and expenses set forth in
Section 2.11(k)) that
shall accrue at a per annum
rate equal to the LIBOR Rate Margin times the undrawn amount of all
outstanding Letters of Credit.
(c) Default Rate; Enhanced Last-Out Term Loan
Rate.
(i) Upon the occurrence
and during the continuation of an Event of Default and at the
election of Agent or the Required Lenders,
(A) all Obligations
(except for the Last-Out Term Loan and undrawn Letters of Credit)
that have been charged to the Loan Account pursuant to the terms
hereof shall bear interest at a per annum rate equal to
2 percentage points above the per annum rate otherwise
applicable hereunder; and
(B) the Letter of
Credit Fee shall be increased to 2 percentage points above the
per annum rate otherwise
applicable hereunder; and
(C) the Last-Out Term
Loan shall bear interest at a per
annum rate equal to 3 percentage points above the per
annum rate otherwise applicable hereunder; provided, that such default
rate shall not apply with respect to the Last-Out Term Loan at any
time that the enhanced rate provided for in Section 2.6(c)(ii) below
applies with respect to the Last-Out Term Loan;.
(ii) Following
Borrowers’ first failure in any period of
twelve consecutive months to pay when due and payable any
amortization payment of the Last-Out Term Loan required under
Section 2.2(b)
and for so long as that amortization payment remains unpaid, the
Last-Out Term Loan will bear interest at a per annum rate equal to
3 percentage points above the per annum rate otherwise
applicable hereunder.
(d) Payment. Except to the extent provided
to the contrary in Section 2.10, Section 2.11(k), or
Section 2.12(a),
(i) all interest, all Letter of Credit Fees and all other fees
payable hereunder or under any of the other Loan Documents shall be
due and payable, in arrears, on the first day of each month, and
(ii) all costs and expenses payable hereunder or under any of
the other Loan Documents, and all Lender Group Expenses shall be
due and payable on the earlier of (x) the first day of the
month following the date on which the applicable costs, expenses,
or Lender Group Expenses were first incurred or (y) the date
on which demand therefor is made by Agent (it being acknowledged
and agreed that any charging of such costs, expenses or Lender
Group Expenses to the Loan Account pursuant to the provisions of
the following sentence shall be deemed to constitute a demand for
payment thereof for the purposes of this subclause (y)). Borrowers
hereby authorize Agent, from time to time without prior notice to
Borrowers, to charge to the Loan Account (A) on the first day
of each month, all interest accrued during the prior month on the
Revolving Loans or the Last-Out Term Loan hereunder, (B) on
the first day of each month, all Letter of Credit Fees accrued or
chargeable hereunder during the prior month, (C) as and when
incurred or accrued, all fees and costs provided for in
Section 2.10(a) or
(c), (D) on
the first day of each month, the Unused Line Fee accrued during the
prior month pursuant to Section 2.10(b),
(E) as and when due and payable, all other fees payable
hereunder or under any of the other Loan Documents, (F) as and
when incurred or accrued, the fronting fees and all commissions,
other fees, charges and expenses provided for in Section 2.11(k),
(G) as and when incurred or accrued, all other Lender Group
Expenses, and (H) as and when due and payable all other
payment obligations payable under any Loan Document or any Bank
Product Agreement (including any amounts due and payable to the
Bank Product Providers in respect of Bank Products). All amounts
(including interest, fees, costs, expenses, Lender Group Expenses,
or other amounts payable hereunder or under any other Loan Document
or under any Bank Product Agreement) charged to the Loan Account
shall thereupon constitute Revolving Loans hereunder, shall
constitute Obligations hereunder, and shall initially accrue
interest at the rate then applicable to Revolving Loans that are
Base Rate Loans (unless and until converted into LIBOR Rate Loans
in accordance with the terms of this Agreement).
(e) [Reserved].
(f) Computation. All interest and fees
chargeable under the Loan Documents shall be computed on the basis
of a 360-day year, in each case, for the actual number of days
elapsed in the period during which the interest or fees accrue. In
the event the Base Rate is changed from time to time hereafter, the
rates of interest hereunder based upon the Base Rate automatically
and immediately shall be increased or decreased by an amount equal
to such change in the Base Rate.
(g) Intent to Limit Charges to Maximum Lawful
Rate. In no event shall the interest rate or rates payable
under this Agreement, plus any other amounts paid in connection
herewith, exceed the highest rate permissible under any law that a
court of competent jurisdiction shall, in a final determination,
deem applicable. Borrowers and the Lender Group, in executing and
delivering this Agreement, intend legally to agree upon the rate or
rates of interest and manner of payment stated within it;
provided, that,
anything contained herein to the contrary notwithstanding, if such
rate or rates of interest or manner of payment exceeds the maximum
allowable under applicable law, then, ipso facto, as of the date of this
Agreement, Borrowers are and shall be liable only for the payment
of such maximum amount as is allowed by law, and payment received
from Borrowers in excess of such legal maximum, whenever received,
shall be applied to reduce the principal balance of the Obligations
to the extent of such excess.
2.7 Crediting
Payments. The receipt of any payment item by Agent shall not
be required to be considered a payment on account unless such
payment item is a wire transfer of immediately available federal
funds made to Agent’s Account or unless and until such
payment item is honored when presented for payment. Should any
payment item not be honored when presented for payment, then
Borrowers shall be deemed not to have made such payment and
interest shall be calculated accordingly. Anything to the contrary
contained herein notwithstanding, any payment item shall be deemed
received by Agent only if it is received into Agent’s Account
on a Business Day on or before 3:30 p.m. If any payment item is
received into Agent’s Account on a non-Business Day or after
3:30 p.m. on a Business Day (unless Agent, in its sole discretion,
elects to credit it on the date received), it shall be deemed to
have been received by Agent as of the opening of business on the
immediately following Business Day.
2.8 Designated
Account. Agent is authorized to make the Revolving Loans and
the Last-Out Term Loan, and Issuing Bank is authorized to issue the
Letters of Credit, under this Agreement based upon telephonic or
other instructions received from anyone purporting to be an
Authorized Person or, without instructions, if pursuant to
Section 2.6(d). Borrowers
agree to establish and maintain the Designated Account with the
Designated Account Bank for the purpose of receiving the proceeds
of the Revolving Loans requested by Borrowers and made by Agent or
the Lenders hereunder. Unless otherwise agreed by Agent and
Borrowers, any Revolving Loan or Swing Loan requested by Borrowers
and made by Agent or the Lenders hereunder shall be made to the
Designated Account.
2.9 Maintenance of Loan
Account and Loan Sub-Accounts; Statements of Obligations.
Agent shall maintain an account on its books in the name of
Borrowers (the “Loan
Account”) on which Borrowers will be charged with the
Last-Out Term Loan and all Revolving Loans (including Extraordinary
Advances and Swing Loans) made by Agent, Swing Lender, or the
Lenders to Borrowers or for Borrowers’ account, with the
Letters of Credit issued or arranged by Issuing Bank for
Borrowers’ account, and with all other payment Obligations
hereunder or under the other Loan Documents, including, accrued
interest, fees and expenses, and Lender Group Expenses. After the
occurrence of a Partition Event, in addition to maintaining
the Loan Account, Agent also shall establish and maintain a
separate account on its books in the name of each Borrower (each a
“Loan Sub-Account”)
on such Borrower will be charged with all Revolving Loans
(including Extraordinary Advances and Swing Loans) made by Agent,
Swing Lender, or the Lenders to such Borrower or for such
Borrower’s account, with the Letters of Credit issued or
arranged by Issuing Bank for such Borrower’s account, and
with all other payment Obligations hereunder or under the other
Loan Documents allocated by Agent to such Borrower, including,
accrued interest, fees and expenses, and Lender Group Expenses. In
accordance with Section 2.7, the Loan
Account will be credited with all payments received by Agent from
Borrowers or for Borrowers’ account and, from and after the
occurrence of a Partition Event, each applicable
Loan Sub-Account also will be credited with all such payments
allocable to the applicable Borrower. In addition, upon the
occurrence of a Partition Event, (i) Agent may allocate
the outstanding Obligations evidenced by the Loan Account to one or
more of the Loan Sub-Accounts in such manner as Agent, in its sole
discretion, determinates is appropriate, and (ii) each
reference to the “Loan Account” contained in any other
section of this Agreement and/or any other Loan Document will also
be deemed to refer to the Loan Sub-Account of each applicable
Borrower. Borrowers acknowledge and agree that none of the
occurrence of a Partition Event, the establishment and
maintenance of separate Loan Sub-Accounts, and the allocation of
any Obligations or payments among and between Borrowers and/or
their corresponding Loan Sub-Accounts in any way limits the joint
and several liability of Borrowers for the Obligations as more
fully set forth in Section 2.15. Agent shall
make available to Borrowers monthly statements regarding the Loan
Account (and, from and after the occurrence of a Partition Event,
each Loan Sub-Account), including the principal amount of the
Revolving Loans, interest accrued hereunder, fees accrued or
charged hereunder or under the other Loan Documents, and a summary
itemization of all charges and expenses constituting Lender Group
Expenses accrued hereunder or under the other Loan Documents, and
each such statement, absent manifest error, shall be conclusively
presumed to be correct and accurate and constitute an account
stated between Borrowers and the Lender Group unless, within 30
days after Agent first makes such a statement available to
Borrowers, Borrowers shall deliver to Agent written objection
thereto describing the error or errors contained in such
statement.
2.10 Fees.
(a) Agent Fees. Borrowers shall pay to
Agent, for the account of Agent, as and when due and payable under
the terms of the Fee Letter, the fees set forth in the Fee
Letter.
(b) Unused Line Fee. Borrowers shall pay to
Agent, for the ratable account of the Revolving Lenders, an unused
line fee (the “Unused Line Fee”) in an
amount equal to the Applicable Unused Line Fee Percentage
per annum times the result
of (i) the aggregate amount of the Revolver Commitments,
less (ii) the average
amount of the Revolver Usage during the immediately preceding month
(or portion thereof), which Unused Line Fee shall be due and
payable on the first day of each month from and after the Closing
Date up to the first day of the month prior to the date on which
the Obligations are paid in full and on the date on which the
Obligations are paid in full.
(c) Field Examination and Other Fees.
Borrowers shall pay to Agent, field examination, appraisal, and
valuation fees and charges, as and when incurred or chargeable, as
follows (i) a fee of $1,000 per day, per examiner, plus
out-of-pocket expenses (including travel, meals, and lodging) for
each field examination of any Borrower or its Subsidiaries
performed by personnel employed by Agent, and (ii) the fees or
charges paid or incurred by Agent (but, in any event, no less than
a charge of $1,000 per day, per Person, plus out-of-pocket expenses
(including travel, meals, and lodging)) if it elects to employ the
services of one or more third Persons to perform field examinations
of any Borrower or its Subsidiaries, to establish electronic
collateral reporting systems, to appraise the Collateral, or any
portion thereof, or to assess any Borrower’s or its
Subsidiaries’ business valuation; provided, that so long as no
Event of Default shall have occurred and be continuing, Borrowers
shall not be obligated to reimburse Agent for more than
2 field examinations during any calendar year and more than
3 appraisals of each type of Collateral during any calendar
year.
(d) Last-Out Term Loan Monitoring Fee.
Borrowers shall pay to GACP I, L.P., a Delaware limited
partnership, as representative for the Last-Out Term Loan Lenders
(or such other representative as the Last-Out Term Loan Lenders may
designate for such purpose by written notice to Borrowers) a
quarterly monitoring fee with respect to the Last-Out Term Loan in
the amount of $7,500, which monitoring fee shall be due and payable
to the Last-Out Term Loan Lenders, for their sole and separate
account and not the account of any other Lender, in advance,
(i) on the Amendment No. 6 Effective Date, and (ii) on
the first Business Day of each fiscal quarter thereafter,
commencing on the first Business Day of the fiscal quarter
beginning July 1, 2017.
2.11 Letters
of Credit.
(a) Subject
to the terms and conditions of this Agreement, upon the request of
Borrowers made in accordance herewith, and prior to the Maturity
Date, Issuing Bank agrees to issue a requested Letter of Credit for
the account of Borrowers (including, without limitation, to support
bonds for sales contracts). By submitting a request to Issuing Bank
for the issuance of a Letter of Credit, Borrowers shall be deemed
to have requested that Issuing Bank issue the requested Letter of
Credit. Each request for the issuance of a Letter of Credit, or the
amendment, renewal, or extension of any outstanding Letter of
Credit, shall be irrevocable and shall be made in writing by an
Authorized Person and delivered to Issuing Bank via telefacsimile
or other electronic method of transmission reasonably acceptable to
Issuing Bank and reasonably in advance of the requested date of
issuance, amendment, renewal, or extension. Each such request shall
be in form and substance reasonably satisfactory to Issuing Bank
and (i) shall specify (A) the amount of such Letter of
Credit, (B) the date of issuance, amendment, renewal, or
extension of such Letter of Credit, (C) the proposed
expiration date of such Letter of Credit, (D) the name and
address of the beneficiary of the Letter of Credit, and
(E) such other information (including, the conditions to
drawing, and, in the case of an amendment, renewal, or extension,
identification of the Letter of Credit to be so amended, renewed,
or extended) as shall be necessary to prepare, amend, renew, or
extend such Letter of Credit, and (ii) shall be accompanied by
such Issuer Documents as Agent or Issuing Bank may request or
require, to the extent that such requests or requirements are
consistent with the Issuer Documents that Issuing Bank generally
requests for Letters of Credit in similar circumstances. Issuing
Bank’s records of the content of any such request will be
conclusive absent manifest error. Anything contained herein to the
contrary notwithstanding, Issuing Bank may, but shall not be
obligated to, issue a Letter of Credit that supports the
obligations of Borrowers or one of their Subsidiaries in respect of
(x) a lease of real property, or (y) an employment
contract.
(b) Issuing Bank shall
have no obligation to issue a Letter of Credit if any of the
following would result after giving effect to the requested
issuance:
(i) the Letter of
Credit Usage would exceed $5,000,000, or
(ii) the
Letter of Credit Usage would exceed the Maximum Revolver Amount
less the outstanding amount
of Revolving Loans (including Swing Loans), or
(iii) the
Letter of Credit Usage would exceed the Borrowing Base at such time
less the outstanding
principal balance of the Revolving Loans (inclusive of Swing Loans)
at such time (or, after the occurrence and during the continuance
of a Partition Event, the Letter of Credit Usage of such Borrower
would exceed the Borrowing Base (Individual) of such Borrower
at such time less the
outstanding principal balance of the Revolving Loans (inclusive of
Swing Loans) allocable to such Borrower at such time).
(c) In the event there
is a Defaulting Lender as of the date of any request for the
issuance of a Letter of Credit, the Issuing Bank shall not be
required to issue or arrange for such Letter of Credit to the
extent (i) the Defaulting Lender’s Letter of Credit
Exposure with respect to such Letter of Credit may not be
reallocated pursuant to Section 2.3(g)(ii), or
(ii) the Issuing Bank has not otherwise entered into
arrangements reasonably satisfactory to it and Borrowers to
eliminate the Issuing Bank’s risk with respect to the
participation in such Letter of Credit of the Defaulting Lender,
which arrangements may include Borrowers cash collateralizing such
Defaulting Lender’s Letter of Credit Exposure in accordance
with Section 2.3(g)(ii).
Additionally, Issuing Bank shall have no obligation to issue a
Letter of Credit if (A) any order, judgment, or decree of any
Governmental Authority or arbitrator shall, by its terms, purport
to enjoin or restrain Issuing Bank from issuing such Letter of
Credit, or any law applicable to Issuing Bank or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over Issuing Bank shall
prohibit or request that Issuing Bank refrain from the issuance of
letters of credit generally or such Letter of Credit in particular,
(B) the issuance of such Letter of Credit would violate one or
more policies of Issuing Bank applicable to letters of credit
generally, or (C) if amounts demanded to be paid under any
Letter of Credit will not be or may not be in United States
Dollars.
(d) Any Issuing Bank
(other than Xxxxx Fargo or any of its Affiliates) shall notify
Agent in writing no later than the Business Day immediately
following the Business Day on which such Issuing Bank issued any
Letter of Credit; provided that (i) until
Agent advises any such Issuing Bank that the provisions of
Section 3.2
are not satisfied, or (ii) unless the aggregate amount of the
Letters of Credit issued in any such week exceeds such amount as
shall be agreed by Agent and such Issuing Bank, such Issuing Bank
shall be required to so notify Agent in writing only once each week
of the Letters of Credit issued by such Issuing Bank during the
immediately preceding week as well as the daily amounts outstanding
for the prior week, such notice to be furnished on such day of the
week as Agent and such Issuing Bank may agree. Each Letter of
Credit shall be in form and substance reasonably acceptable to
Issuing Bank, including the requirement that the amounts payable
thereunder must be payable in Dollars. If Issuing Bank makes a
payment under a Letter of Credit, Borrowers shall pay to Agent an
amount equal to the applicable Letter of Credit Disbursement on the
Business Day such Letter of Credit Disbursement is made and, in the
absence of such payment, the amount of the Letter of Credit
Disbursement immediately and automatically shall be deemed to be a
Revolving Loan hereunder (notwithstanding any failure to satisfy
any condition precedent set forth in Section 3) and, initially,
shall bear interest at the rate then applicable to Revolving Loans
that are Base Rate Loans. If a Letter of Credit Disbursement is
deemed to be a Revolving Loan hereunder, Borrowers’
obligation to pay the amount of such Letter of Credit Disbursement
to Issuing Bank shall be automatically converted into an obligation
to pay the resulting Revolving Loan. Promptly following receipt by
Agent of any payment from Borrowers pursuant to this paragraph,
Agent shall distribute such payment to Issuing Bank or, to the
extent that Revolving Lenders have made payments pursuant to
Section 2.11(e) to
reimburse Issuing Bank, then to such Revolving Lenders and Issuing
Bank as their interests may appear.
(e) Promptly following
receipt of a notice of a Letter of Credit Disbursement pursuant to
Section 2.11(d), each
Revolving Lender agrees to fund its Pro Rata Share of any Revolving
Loan deemed made pursuant to Section 2.11(d) on
the same terms and conditions as if Borrowers had requested the
amount thereof as a Revolving Loan and Agent shall promptly pay to
Issuing Bank the amounts so received by it from the Revolving
Lenders. By the issuance of a Letter of Credit (or an amendment,
renewal, or extension of a Letter of Credit) and without any
further action on the part of Issuing Bank or the Revolving
Lenders, Issuing Bank shall be deemed to have granted to each
Revolving Lender, and each Revolving Lender shall be deemed to have
purchased, a participation in each Letter of Credit issued by
Issuing Bank, in an amount equal to its Pro Rata Share of such
Letter of Credit, and each such Revolving Lender agrees to pay to
Agent, for the account of Issuing Bank, such Revolving
Lender’s Pro Rata Share of any Letter of Credit Disbursement
made by Issuing Bank under the applicable Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to
Agent, for the account of Issuing Bank, such Revolving
Lender’s Pro Rata Share of each Letter of Credit Disbursement
made by Issuing Bank and not reimbursed by Borrowers on the date
due as provided in Section 2.11(d), or of any
reimbursement payment that is required to be refunded (or that
Agent or Issuing Bank elects, based upon the advice of counsel, to
refund) to Borrowers for any reason. Each Revolving Lender
acknowledges and agrees that its obligation to deliver to Agent,
for the account of Issuing Bank, an amount equal to its respective
Pro Rata Share of each Letter of Credit Disbursement pursuant to
this Section 2.11(e) shall
be absolute and unconditional and such remittance shall be made
notwithstanding the occurrence or continuation of an Event of
Default or Default or the failure to satisfy any condition set
forth in Section 3. If any such
Revolving Lender fails to make available to Agent the amount of
such Revolving Lender’s Pro Rata Share of a Letter of Credit
Disbursement as provided in this Section, such Revolving Lender
shall be deemed to be a Defaulting Lender and Agent (for the
account of Issuing Bank) shall be entitled to recover such amount
on demand from such Revolving Lender together with interest thereon
at the Defaulting Lender Rate until paid in full.
(f) Each Borrower
agrees to indemnify, defend and hold harmless each member of the
Lender Group (including Issuing Bank and its branches, Affiliates,
and correspondents) and such Person’s respective directors,
officers, employees, attorneys and agents (each, including Issuing
Bank, a “Letter of
Credit Related Person”) (to the fullest extent
permitted by law) from and against any and all claims, demands,
suits, actions, investigations, proceedings, liabilities, fines,
costs, penalties, and damages, and all reasonable fees and
disbursements of attorneys, experts, or consultants and all other
costs and expenses actually incurred in connection therewith or in
connection with the enforcement of this indemnification (as and
when they are incurred and irrespective of whether suit is
brought), which may be incurred by or awarded against any such
Letter of Credit Related Person (other than Taxes, which shall be
governed by Section 16) (the
“Letter of Credit
Indemnified Costs”), and which arise out of or in
connection with, or as a result of:
(i) any Letter of
Credit or any pre-advice of its issuance;
(ii) any
transfer, sale, delivery, surrender or endorsement of any Drawing
Document at any time(s) held by any such Letter of Credit Related
Person in connection with any Letter of Credit;
(iii) any
action or proceeding arising out of, or in connection with, any
Letter of Credit (whether administrative, judicial or in connection
with arbitration), including any action or proceeding to compel or
restrain any presentation or payment under any Letter of Credit, or
for the wrongful dishonor of, or honoring a presentation under, any
Letter of Credit;
(iv) any
independent undertakings issued by the beneficiary of any Letter of
Credit;
(v) any unauthorized
instruction or request made to Issuing Bank in connection with any
Letter of Credit or requested Letter of Credit or error in computer
or electronic transmission;
(vi) an
adviser, confirmer or other nominated person seeking to be
reimbursed, indemnified or compensated;
(vii) any
third party seeking to enforce the rights of an applicant,
beneficiary, nominated person, transferee, assignee of Letter of
Credit proceeds or holder of an instrument or
document;
(viii) the
fraud, forgery or illegal action of parties other than the Letter
of Credit Related Person;
(ix) Issuing
Bank’s performance of the obligations of a confirming
institution or entity that wrongfully dishonors a confirmation;
or
(x) the acts or
omissions, whether rightful or wrongful, of any present or future
de jure or de facto governmental or regulatory authority or cause
or event beyond the control of the Letter of Credit Related
Person;
in each
case, including that resulting from the Letter of Credit Related
Person’s own negligence; provided, however, that such indemnity
shall not be available to any Letter of Credit Related Person
claiming indemnification under clauses (i) through
(x) above to
the extent that such Letter of Credit Indemnified Costs may be
finally determined in a final, non-appealable judgment of a court
of competent jurisdiction to have resulted directly from the gross
negligence or willful misconduct of the Letter of Credit Related
Person claiming indemnity. Borrowers hereby agree to pay the Letter
of Credit Related Person claiming indemnity on demand from time to
time all amounts owing under this Section 2.11(f). If and to
the extent that the obligations of Borrowers under this
Section 2.11(f) are
unenforceable for any reason, Borrowers agree to make the maximum
contribution to the Letter of Credit Indemnified Costs permissible
under applicable law. This indemnification provision shall survive
termination of this Agreement and all Letters of
Credit.
(g) The liability of
Issuing Bank (or any other Letter of Credit Related Person) under,
in connection with or arising out of any Letter of Credit (or
pre-advice), regardless of the form or legal grounds of the action
or proceeding, shall be limited to direct damages suffered by
Borrowers that are caused directly by Issuing Bank’s gross
negligence or willful misconduct in (i) honoring a
presentation under a Letter of Credit that on its face does not at
least substantially comply with the terms and conditions of such
Letter of Credit, (ii) failing to honor a presentation under a
Letter of Credit that strictly complies with the terms and
conditions of such Letter of Credit or (iii) retaining Drawing
Documents presented under a Letter of Credit. Issuing Bank shall be
deemed to have acted with due diligence and reasonable care if
Issuing Bank’s conduct is in accordance with Standard Letter
of Credit Practice or in accordance with this Agreement.
Borrowers’ aggregate remedies against Issuing Bank and any
Letter of Credit Related Person for wrongfully honoring a
presentation under any Letter of Credit or wrongfully retaining
honored Drawing Documents shall in no event exceed the aggregate
amount paid by Borrowers to Issuing Bank in respect of the honored
presentation in connection with such Letter of Credit under
Section 2.11(d), plus
interest at the rate then applicable to Base Rate Loans hereunder.
Borrowers shall take action to avoid and mitigate the amount of any
damages claimed against Issuing Bank or any other Letter of Credit
Related Person, including by enforcing its rights against the
beneficiaries of the Letters of Credit. Any claim by Borrowers
under or in connection with any Letter of Credit shall be reduced
by an amount equal to the sum of (x) the amount (if any) saved
by Borrowers as a result of the breach or alleged wrongful conduct
complained of; and (y) the amount (if any) of the loss that
would have been avoided had Borrowers taken all reasonable steps to
mitigate any loss, and in case of a claim of wrongful dishonor, by
specifically and timely authorizing Issuing Bank to effect a
cure.
(h) Borrowers are
responsible for preparing or approving the final text of the Letter
of Credit as issued by Issuing Bank, irrespective of any assistance
Issuing Bank may provide such as drafting or recommending text or
by Issuing Bank’s use or refusal to use text submitted by
Borrowers. Borrowers are solely responsible for the suitability of
the Letter of Credit for Borrowers’ purposes. With respect to
any Letter of Credit containing an “automatic
amendment” to extend the expiration date of such Letter of
Credit, Issuing Bank, in its sole and absolute discretion, may give
notice of nonrenewal of such Letter of Credit and, if Borrowers do
not at any time want such Letter of Credit to be renewed, Borrowers
will so notify Agent and Issuing Bank at least 15 calendar days
before Issuing Bank is required to notify the beneficiary of such
Letter of Credit or any advising bank of such nonrenewal pursuant
to the terms of such Letter of Credit.
(i) Borrowers’
reimbursement and payment obligations under this Section 2.11 are absolute,
unconditional and irrevocable and shall be performed strictly in
accordance with the terms of this Agreement under any and all
circumstances whatsoever, including:
(i) any lack of
validity, enforceability or legal effect of any Letter of Credit or
this Agreement or any term or provision therein or
herein;
(ii) payment
against presentation of any draft, demand or claim for payment
under any Drawing Document that does not comply in whole or in part
with the terms of the applicable Letter of Credit or which proves
to be fraudulent, forged or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, or which is
signed, issued or presented by a Person or a transferee of such
Person purporting to be a successor or transferee of the
beneficiary of such Letter of Credit;
(iii) Issuing
Bank or any of its branches or Affiliates being the beneficiary of
any Letter of Credit;
(iv) Issuing
Bank or any correspondent honoring a drawing against a Drawing
Document up to the amount available under any Letter of Credit even
if such Drawing Document claims an amount in excess of the amount
available under the Letter of Credit;
(v) the existence of
any claim, set-off, defense or other right that any Borrower or any
of its Subsidiaries may have at any time against any beneficiary,
any assignee of proceeds, Issuing Bank or any other
Person;
(vi) any
other event, circumstance or conduct whatsoever, whether or not
similar to any of the foregoing that might, but for this
Section 2.11(i),
constitute a legal or equitable defense to or discharge of, or
provide a right of set-off against, any Borrower’s or any of
its Subsidiaries’ reimbursement and other payment obligations
and liabilities, arising under, or in connection with, any Letter
of Credit, whether against Issuing Bank, the beneficiary or any
other Person; or
(vii) the
fact that any Default or Event of Default shall have occurred and
be continuing;
provided, however, that subject to
Section 2.11(g) above,
the foregoing shall not release Issuing Bank from such liability to
Borrowers as may be finally determined in a final, non-appealable
judgment of a court of competent jurisdiction against Issuing Bank
following reimbursement or payment of the obligations and
liabilities, including reimbursement and other payment obligations,
of Borrowers to Issuing Bank arising under, or in connection with,
this Section 2.11 or any Letter
of Credit.
(j) Without limiting
any other provision of this Agreement, Issuing Bank and each other
Letter of Credit Related Person (if applicable) shall not be
responsible to Borrowers for, and Issuing Bank’s rights and
remedies against Borrowers and the obligation of Borrowers to
reimburse Issuing Bank for each drawing under each Letter of Credit
shall not be impaired by:
(i) honor of a
presentation under any Letter of Credit that on its face
substantially complies with the terms and conditions of such Letter
of Credit, even if the Letter of Credit requires strict compliance
by the beneficiary;
(ii) honor
of a presentation of any Drawing Document that appears on its face
to have been signed, presented or issued (A) by any purported
successor or transferee of any beneficiary or other Person required
to sign, present or issue such Drawing Document or (B) under a
new name of the beneficiary;
(iii) acceptance
as a draft of any written or electronic demand or request for
payment under a Letter of Credit, even if nonnegotiable or not in
the form of a draft or notwithstanding any requirement that such
draft, demand or request bear any or adequate reference to the
Letter of Credit;
(iv) the
identity or authority of any presenter or signer of any Drawing
Document or the form, accuracy, genuineness or legal effect of any
Drawing Document (other than Issuing Bank’s determination
that such Drawing Document appears on its face substantially to
comply with the terms and conditions of the Letter of
Credit);
(v) acting upon any
instruction or request relative to a Letter of Credit or requested
Letter of Credit that Issuing Bank in good faith believes to have
been given by a Person authorized to give such instruction or
request;
(vi) any
errors, omissions, interruptions or delays in transmission or
delivery of any message, advice or document (regardless of how sent
or transmitted) or for errors in interpretation of technical terms
or in translation or any delay in giving or failing to give notice
to Borrowers;
(vii) any
acts, omissions or fraud by, or the insolvency of, any beneficiary,
any nominated person or entity or any other Person or any breach of
contract between any beneficiary and any Borrower or any of the
parties to the underlying transaction to which the Letter of Credit
relates;
(viii) assertion
or waiver of any provision of the ISP or UCP that primarily
benefits an issuer of a letter of credit, including any requirement
that any Drawing Document be presented to it at a particular hour
or place;
(ix) payment
to any paying or negotiating bank (designated or permitted by the
terms of the applicable Letter of Credit) claiming that it
rightfully honored or is entitled to reimbursement or indemnity
under Standard Letter of Credit Practice applicable to
it;
(x) acting or failing
to act as required or permitted under Standard Letter of Credit
Practice applicable to where Issuing Bank has issued, confirmed,
advised or negotiated such Letter of Credit, as the case may
be;
(xi) honor
of a presentation after the expiration date of any Letter of Credit
notwithstanding that a presentation was made prior to such
expiration date and dishonored by Issuing Bank if subsequently
Issuing Bank or any court or other finder of fact determines such
presentation should have been honored;
(xii) dishonor
of any presentation that does not strictly comply or that is
fraudulent, forged or otherwise not entitled to honor;
or
(xiii) honor
of a presentation that is subsequently determined by Issuing Bank
to have been made in violation of international, federal, state or
local restrictions on the transaction of business with certain
prohibited Persons.
(k) Borrowers shall pay
immediately upon demand to Agent for the account of Issuing Bank as
non-refundable fees, commissions, and charges (it being
acknowledged and agreed that any charging of such fees,
commissions, and charges to the Loan Account pursuant to the
provisions of Section
2.6(d) shall be deemed to constitute a demand for payment
thereof for the purposes of this Section 2.11(k)):
(i) a fronting fee which shall be imposed by Issuing Bank upon
the issuance of each Letter of Credit of 0.250% per annum of the
face amount thereof, plus (ii) any
and all other customary commissions, fees and charges then in
effect imposed by, and any and all expenses incurred by, Issuing
Bank, or by any adviser, confirming institution or entity or other
nominated person, relating to Letters of Credit, at the time of
issuance of any Letter of Credit and upon the occurrence of any
other activity with respect to any Letter of Credit (including
transfers, assignments of proceeds, amendments, drawings, renewals
or cancellations).
(l) If by reason of
(x) any Change in Law, or (y) compliance by Issuing Bank
or any other member of the Lender Group with any direction,
request, or requirement (irrespective of whether having the force
of law) of any Governmental Authority or monetary authority
including, Regulation D of the Board of Governors as from time to
time in effect (and any successor thereto):
(i) any reserve,
deposit, or similar requirement is or shall be imposed or modified
in respect of any Letter of Credit issued or caused to be issued
hereunder or hereby, or
(ii) there
shall be imposed on Issuing Bank or any other member of the Lender
Group any other condition regarding any Letter of
Credit,
and the
result of the foregoing is to increase, directly or indirectly, the
cost to Issuing Bank or any other member of the Lender Group of
issuing, making, participating in, or maintaining any Letter of
Credit or to reduce the amount receivable in respect thereof, then,
and in any such case, Agent may, at any time within a reasonable
period after the additional cost is incurred or the amount received
is reduced, notify Borrowers, and Borrowers shall pay within 30
days after demand therefor, such amounts as Agent may specify to be
necessary to compensate Issuing Bank or any other member of the
Lender Group for such additional cost or reduced receipt, together
with interest on such amount from the date of such demand until
payment in full thereof at the rate then applicable to Base Rate
Loans hereunder; provided, that
(A) Borrowers shall not be required to provide any
compensation pursuant to this Section 2.11(l) for
any such amounts incurred more than 180 days prior to the date on
which the demand for payment of such amounts is first made to
Borrowers, and (B) if an event or circumstance giving rise to
such amounts is retroactive, then the 180-day period referred to
above shall be extended to include the period of retroactive effect
thereof. The determination by Agent of any amount due pursuant to
this Section 2.11(l), as set
forth in a certificate setting forth the calculation thereof in
reasonable detail, shall, in the absence of manifest or
demonstrable error, be final and conclusive and binding on all of
the parties hereto.
(i)
Unless otherwise
expressly agreed by Issuing Bank and Borrowers when a Letter of
Credit is issued, (i) the rules of the ISP and the UCP shall
apply to each standby Letter of Credit, and (ii) the rules of
the UCP shall apply to each commercial Letter of
Credit.
(j)
In the event of a
direct conflict between the provisions of this Section 2.11 and any
provision contained in any Issuer Document, it is the intention of
the parties hereto that such provisions be read together and
construed, to the fullest extent possible, to be in concert with
each other. In the event of any actual, irreconcilable conflict
that cannot be resolved as aforesaid, the terms and provisions of
this Section 2.11 shall control
and govern.
2.12 LIBOR
Option.
(a) Interest and Interest Payment Dates. In
lieu of having interest charged at the rate based upon the Base
Rate, Borrowers shall have the option, subject to Section 2.12(b) below
(the “LIBOR
Option”) to have interest on all or a portion of the
Revolving Loans or the Last-Out Term Loan be charged (whether at
the time when made (unless otherwise provided herein), upon
conversion from a Base Rate Loan to a LIBOR Rate Loan, or upon
continuation of a LIBOR Rate Loan as a LIBOR Rate Loan) at a rate
of interest based upon the LIBOR Rate. Interest on LIBOR Rate Loans
shall be payable on the earliest of (i) the last day of the
Interest Period applicable thereto, (ii) the date on which all
or any portion of the Obligations are accelerated pursuant to the
terms hereof, or (iii) the date on which this Agreement is
terminated pursuant to the terms hereof. On the last day of each
applicable Interest Period, unless Borrowers have properly
exercised the LIBOR Option with respect thereto, the interest rate
applicable to such LIBOR Rate Loan automatically shall convert to
the rate of interest then applicable to Base Rate Loans of the same
type hereunder. At any time that an Event of Default has occurred
and is continuing, at the written election of the Required Lenders,
Borrowers no longer shall have the option to request that Revolving
Loans bear interest at a rate based upon the LIBOR
Rate.
(b) LIBOR
Election.
(i) Borrowers may, at
any time and from time to time, so long as Borrowers have not
received a notice from Agent (which notice Agent may elect to give
or not give in its discretion unless Agent is directed to give such
notice by the Required Lenders, in which case, it shall give the
notice to Borrowers), after the occurrence and during the
continuance of an Event of Default, to terminate the right of
Borrowers to exercise the LIBOR Option during the continuance of
such Event of Default, elect to exercise the LIBOR Option by
notifying Agent prior to 1:00 p.m. at least 1 Business Day prior to
the commencement of the proposed Interest Period (the
“LIBOR
Deadline”). Notice of Borrowers’ election of the
LIBOR Option for a permitted portion of the Revolving Loans or the
Last-Out Term Loan and an Interest Period pursuant to this
Section shall be made by delivery to Agent of a LIBOR Notice
received by Agent before the LIBOR Deadline, or by telephonic
notice received by Agent before the LIBOR Deadline (to be confirmed
by delivery to Agent of a LIBOR Notice received by Agent prior to
5:00 p.m. on the same day). Promptly upon its receipt of each such
LIBOR Notice, Agent shall provide a copy thereof to each of the
affected Lenders.
(ii) Each
LIBOR Notice shall be irrevocable and binding on Borrowers. In
connection with each LIBOR Rate Loan, each Borrower shall
indemnify, defend, and hold Agent and the Lenders harmless against
any loss, cost, or expense actually incurred by Agent or any Lender
as a result of (A) the payment of any principal of any LIBOR
Rate Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of Default),
(B) the conversion of any LIBOR Rate Loan other than on the
last day of the Interest Period applicable thereto, or (C) the
failure to borrow, convert, continue or prepay any LIBOR Rate Loan
on the date specified in any LIBOR Notice delivered pursuant hereto
(such losses, costs, or expenses, “Funding Losses”). A
certificate of Agent or a Lender delivered to Borrowers setting
forth in reasonable detail any amount or amounts that Agent or such
Lender is entitled to receive pursuant to this Section 2.12 shall be
conclusive absent manifest error. Borrowers shall pay such amount
to Agent or the Lender, as applicable, within 30 days of the date
of its receipt of such certificate. If a payment of a LIBOR Rate
Loan on a day other than the last day of the applicable Interest
Period would result in a Funding Loss, Agent may, in its sole
discretion at the request of Borrowers, hold the amount of such
payment as cash collateral in support of the Obligations until the
last day of such Interest Period and apply such amounts to the
payment of the applicable LIBOR Rate Loan on such last day, it
being agreed that Agent has no obligation to so defer the
application of payments to any LIBOR Rate Loan and that, in the
event that Agent does not defer such application, Borrowers shall
be obligated to pay any resulting Funding Losses.
(iii) Unless
Agent, in its sole discretion, agrees otherwise, Borrowers shall
have not more than 5 LIBOR Rate Loans in effect at any given time.
Borrowers may only exercise the LIBOR Option for proposed LIBOR
Rate Loans of at least $1,000,000.
(c) Conversion. Borrowers may convert LIBOR
Rate Loans to Base Rate Loans at any time; provided, that in the event
that LIBOR Rate Loans are converted or prepaid on any date that is
not the last day of the Interest Period applicable thereto,
including as a result of any prepayment through the required
application by Agent of any payments or proceeds of Collateral in
accordance with Section 2.4(b) or for
any other reason, including early termination of the term of this
Agreement or acceleration of all or any portion of the Obligations
pursuant to the terms hereof, each Borrower shall indemnify,
defend, and hold Agent and the Lenders and their Participants
harmless against any and all Funding Losses in accordance with
Section 2.12
(b)(ii).
(d) Special
Provisions Applicable to LIBOR Rate.
(i) The LIBOR Rate may
be adjusted by Agent with respect to any Lender on a prospective
basis to take into account any additional or increased costs to
such Lender of maintaining or obtaining any eurodollar deposits or
increased costs, in each case, due to changes in applicable law
occurring subsequent to the commencement of the then applicable
Interest Period, including any Changes in Law (including any
changes in tax laws (except changes of general applicability in
corporate income tax laws)) and changes in the reserve requirements
imposed by the Board of Governors, which additional or increased
costs would increase the cost of funding or maintaining loans
bearing interest at the LIBOR Rate. In any such event, the affected
Lender shall give Borrowers and Agent notice of such a
determination and adjustment and Agent promptly shall transmit the
notice to each other Lender and, upon its receipt of the notice
from the affected Lender, Borrowers may, by notice to such affected
Lender (A) require such Lender to furnish to Borrowers a
statement setting forth in reasonable detail the basis for
adjusting such LIBOR Rate and the method for determining the amount
of such adjustment, or (B) repay the LIBOR Rate Loans of such
Lender with respect to which such adjustment is made (together with
any amounts due under Section 2.12(b)(ii)).
(ii) In
the event that any change in market conditions or any Change in Law
shall at any time after the date hereof, in the reasonable opinion
of any Lender, make it unlawful or impractical for such Lender to
fund or maintain LIBOR Rate Loans or to continue such funding or
maintaining, or to determine or charge interest rates at the LIBOR
Rate, such Lender shall give notice of such changed circumstances
to Agent and Borrowers and Agent promptly shall transmit the notice
to each other Lender and (y) in the case of any LIBOR Rate
Loans of such Lender that are outstanding, the date specified in
such Lender’s notice shall be deemed to be the last day of
the Interest Period of such LIBOR Rate Loans, and interest upon the
LIBOR Rate Loans of such Lender thereafter shall accrue interest at
the rate then applicable to Base Rate Loans, and (z) Borrowers
shall not be entitled to elect the LIBOR Option until such Lender
determines that it would no longer be unlawful or impractical to do
so.
(e) No Requirement of Matched Funding.
Anything to the contrary contained herein notwithstanding, neither
Agent, nor any Lender, nor any of their Participants, is required
actually to acquire eurodollar deposits to fund or otherwise match
fund any Obligation as to which interest accrues at the LIBOR
Rate.
2.13 Capital
Requirements.
(a) If, after the date
hereof, Issuing Bank or any Lender determines that (i) any
Change in Law regarding capital or reserve requirements for banks
or bank holding companies, or (ii) compliance by Issuing Bank
or such Lender, or their respective parent bank holding companies,
with any guideline, request or directive of any Governmental
Authority regarding capital adequacy (whether or not having the
force of law), has the effect of reducing the return on Issuing
Bank’s, such Lender’s, or such holding companies’
capital as a consequence of Issuing Bank’s or such
Lender’s commitments hereunder to a level below that which
Issuing Bank, such Lender, or such holding companies could have
achieved but for such Change in Law or compliance (taking into
consideration Issuing Bank’s, such Lender’s, or such
holding companies’ then existing policies with respect to
capital adequacy and assuming the full utilization of such
entity’s capital) by any amount deemed by Issuing Bank or
such Lender to be material, then Issuing Bank or such Lender may
notify Borrowers and Agent thereof. Following receipt of such
notice, Borrowers agree to pay Issuing Bank or such Lender on
demand the amount of such reduction of return of capital as and
when such reduction is determined, payable within 30 days after
presentation by Issuing Bank or such Lender of a statement in the
amount and setting forth in reasonable detail Issuing Bank’s
or such Lender’s calculation thereof and the assumptions upon
which such calculation was based (which statement shall be deemed
true and correct absent manifest error). In determining such
amount, Issuing Bank or such Lender may use any reasonable
averaging and attribution methods. Failure or delay on the part of
Issuing Bank or any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of Issuing Bank’s
or such Lender’s right to demand such compensation;
provided that
Borrowers shall not be required to compensate Issuing Bank or a
Lender pursuant to this Section for any reductions in return
incurred more than 180 days prior to the date that Issuing Bank or
such Lender notifies Borrowers of such Change in Law giving rise to
such reductions and of such Lender’s intention to claim
compensation therefor; provided further that if such claim
arises by reason of the Change in Law that is retroactive, then the
180-day period referred to above shall be extended to include the
period of retroactive effect thereof.
(b) If Issuing Bank or
any Lender requests additional or increased costs referred to in
Section 2.11(l) or
Section 2.12(d)(i) or
amounts under Section 2.13(a) or
sends a notice under Section 2.12(d)(ii) relative
to changed circumstances (such Issuing Bank or Lender, an
“Affected
Lender”), then such Affected Lender shall use
reasonable efforts to promptly designate a different one of its
lending offices or to assign its rights and obligations hereunder
to another of its offices or branches, if (i) in the
reasonable judgment of such Affected Lender, such designation or
assignment would eliminate or reduce amounts payable pursuant to
Section 2.11(l),
Section 2.12(d)(i) or
Section 2.13(a), as
applicable, or would eliminate the illegality or impracticality of
funding or maintaining LIBOR Rate Loans and (ii) in the
reasonable judgment of such Affected Lender, such designation or
assignment would not subject it to any material unreimbursed cost
or expense and would not otherwise be materially disadvantageous to
it. Borrowers agree to pay all reasonable out-of-pocket costs and
expenses incurred by such Affected Lender in connection with any
such designation or assignment. If, after such reasonable efforts,
such Affected Lender does not so designate a different one of its
lending offices or assign its rights to another of its offices or
branches so as to eliminate Borrowers’ obligation to pay any
future amounts to such Affected Lender pursuant to Section 2.11(l),
Section 2.12(d)(i) or
Section 2.13(a), as
applicable, or to enable Borrowers to obtain LIBOR Rate Loans, then
Borrowers (without prejudice to any amounts then due to such
Affected Lender under Section 2.11(l),
Section 2.12(d)(i) or
Section 2.13(a), as
applicable) may, unless prior to the effective date of any such
assignment the Affected Lender withdraws its request for such
additional amounts under Section 2.11(l),
Section 2.12(d)(i) or
Section 2.13(a), as
applicable, or indicates that it is no longer unlawful or
impractical to fund or maintain LIBOR Rate Loans, may designate a
different Issuing Bank or substitute a Lender, in each case,
reasonably acceptable to Agent to purchase the Obligations owed to
such Affected Lender and such Affected Lender’s commitments
hereunder (a “Replacement Lender”), and
if such Replacement Lender agrees to such purchase, such Affected
Lender shall assign to the Replacement Lender its Obligations and
commitments, and upon such purchase by the Replacement Lender,
which such Replacement Lender shall be deemed to be “Issuing
Bank” or a “Lender” (as the case may be) for
purposes of this Agreement and such Affected Lender shall cease to
be “Issuing Bank” or a “Lender” (as the
case may be) for purposes of this Agreement.
(c) Notwithstanding
anything herein to the contrary, the protection of Sections 2.11(l), 2.12(d), and 2.13 shall be available to
Issuing Bank and each Lender (as applicable) regardless of any
possible contention of the invalidity or inapplicability of the
law, rule, regulation, judicial ruling, judgment, guideline, treaty
or other change or condition which shall have occurred or been
imposed, so long as it shall be customary for issuing banks or
lenders affected thereby to comply therewith. Notwithstanding any
other provision herein, neither Issuing Bank nor any Lender shall
demand compensation pursuant to this Section 2.13 if it shall
not at the time be the general policy or practice of Issuing Bank
or such Lender (as the case may be) to demand such compensation in
similar circumstances under comparable provisions of other credit
agreements, if any.
2.14 Accordion.
(a) At any time during
the period from and after the Amendment No. 6 Effective Date
through March 24, 2021, at the option of Borrowers (but
subject to the conditions set forth in clause (b) below),
the Revolver Commitments and the Maximum Revolver Amount may be
increased by an amount in the aggregate for all such increases of
the Revolver Commitments and the Maximum Revolver Amount not to
exceed the Available Increase Amount (each such increase, an
“Increase”). Agent shall
invite each Lender to increase its Revolver Commitments (it being
understood that no Lender shall be obligated to increase its
Revolver Commitments) in connection with a proposed Increase at the
interest margins proposed by Borrowers, and if sufficient Lenders
do not agree to increase their Revolver Commitments in connection
with such proposed Increase, then Agent or Borrowers may invite any
prospective lender who is reasonably satisfactory to Agent and
Borrowers to become a Lender in connection with a proposed
Increase. Any Increase shall be in an amount of at least $1,000,000
and integral multiples of $500,000 in excess thereof. In no event
may the Revolver Commitments and the Maximum Revolver Amount be
increased pursuant to this Section 2.14 on more than
two occasions in the aggregate for all such Increases.
Additionally, for the avoidance of doubt, it is understood and
agreed that in no event shall the aggregate amount of the Increases
to the Revolver Commitments exceed $7,000,000.
(b) Each of the
following shall be conditions precedent to any Increase of the
Revolver Commitments and the Maximum Revolver Amount in connection
therewith:
(i) Agent or Borrowers
have obtained the commitment of one or more Lenders (or other
prospective lenders) reasonably satisfactory to Agent and Borrowers
to provide the applicable Increase and any such Lenders (or
prospective lenders), Borrowers, and Agent have signed a joinder
agreement to this Agreement (an “Increase Joinder”), in
form and substance reasonably satisfactory to Agent, to which such
Lenders (or prospective lenders), Borrowers, and Agent are
party,
(ii) each
of the conditions precedent set forth in Section 3.2 are
satisfied,
(iii) Borrowers
have delivered to Agent updated pro forma Projections (after giving
effect to the applicable Increase) for Borrowers and their
Subsidiaries evidencing compliance on a pro forma basis with
Section 7 for
the 4 fiscal quarters (on a quarter-by-quarter basis) immediately
following the proposed date of the applicable Increase,
and
(iv) Borrowers
shall have reached agreement with the Lenders (or prospective
lenders) agreeing to the increased Revolver Commitments with
respect to the interest margins applicable to Revolving Loans
to be made pursuant to the increased Revolver Commitments (which
interest margins may be made pursuant to the increased Revolver
Commitments, higher than or equal to the interest margins
applicable to Revolving Loans set forth in this Agreement
immediately prior to the date of the increased Revolver Commitments
(the date of the effectiveness of the increased Revolver
Commitments and the Maximum Revolver Amount, as applicable, the
“Increase
Date”)) and shall have communicated the amount of such
interest margins to Agent. Any Increase Joinder may, with the
consent of Agent, Borrowers and the Lenders or prospective lenders
agreeing to the proposed Increase, effect such amendments to this
Agreement and the other Loan Documents as may be necessary or
appropriate to effectuate the provisions of this Section 2.14 (including
any amendment necessary to effectuate the interest margins for the
Revolving Loans to be made pursuant to the increased Revolver
Commitments). Anything to the contrary contained herein
notwithstanding, if the interest margin that is to be applicable to
the Revolving Loans to be made pursuant to the increased Revolver
Commitments are higher than the interest margin applicable to the
Revolving Loans hereunder immediately prior to the applicable
Increase Date (the amount by which the interest margin is higher,
the “Excess”), then the
interest margin applicable to the Revolving Loans immediately prior
to the Increase Date shall be increased by the amount of the
Excess, effective on the applicable Increase Date, and without the
necessity of any action by any party hereto.
(c) [Reserved].
(d) Unless otherwise
specifically provided herein, all references in this Agreement and
any other Loan Document to Revolving Loans shall be deemed, unless
the context otherwise requires, to include Revolving Loans made
pursuant to the increased Revolver Commitments and Maximum Revolver
Amount pursuant to this Section 2.14.
(e) Each of the Lenders
having a Revolver Commitment prior to the Increase Date (the
“Pre-Increase
Revolver Lenders”) shall assign to any Lender which is
acquiring a new or additional Revolver Commitment on the Increase
Date (the “Post-Increase Revolver
Lenders”), and such Post-Increase Revolver Lenders
shall purchase from each Pre-Increase Revolver Lender, at the
principal amount thereof, such interests in the Revolving Loans and
participation interests in Letters of Credit on such Increase Date
as shall be necessary in order that, after giving effect to all
such assignments and purchases, such Revolving Loans and
participation interests in Letters of Credit will be held by
Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders
ratably in accordance with their Pro Rata Share after giving effect
to such increased Revolver Commitments.
(f) The Revolving
Loans, Revolver Commitments, and Maximum Revolver Amount
established pursuant to this Section 2.14 shall
constitute Revolving Loans, Revolver Commitments, and Maximum
Revolver Amount under, and shall be entitled to all the benefits
afforded by, this Agreement and the other Loan Documents, and
shall, without limiting the foregoing, benefit equally and ratably
from any guarantees and the security interests created by the Loan
Documents. Borrowers shall take any actions reasonably required by
Agent to ensure and demonstrate that the Liens and security
interests granted by the Loan Documents continue to be perfected
under the Code or otherwise after giving effect to the
establishment of any such new Revolver Commitments and Maximum
Revolver Amount.
2.15 Joint
and Several Liability of Borrowers.
(a) Each Borrower is
accepting joint and several liability hereunder and under the other
Loan Documents in consideration of the financial accommodations to
be provided by the Lender Group under this Agreement, for the
mutual benefit, directly and indirectly, of each Borrower and in
consideration of the undertakings of the other Borrowers to accept
joint and several liability for the Obligations.
(b) Each Borrower,
jointly and severally, hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and
several liability with the other Borrowers, with respect to the
payment and performance of all of the Obligations (including any
Obligations arising under this Section 2.15), it being
the intention of the parties hereto that all the Obligations shall
be the joint and several obligations of each Borrower without
preferences or distinction among them.
(c) If and to the
extent that any Borrower shall fail to make any payment with
respect to any of the Obligations as and when due or to perform any
of the Obligations in accordance with the terms thereof, then in
each such event the other Borrowers will make such payment with
respect to, or perform, such Obligation until such time as all of
the Obligations are paid in full.
(d) The Obligations of
each Borrower under the provisions of this Section 2.15 constitute
the absolute and unconditional, full recourse Obligations of each
Borrower enforceable against each Borrower to the full extent of
its properties and assets, irrespective of the validity, regularity
or enforceability of the provisions of this Agreement (other than
this Section 2.15(d)) or any
other circumstances whatsoever.
(e) Except as otherwise
expressly provided in this Agreement, each Borrower hereby waives
notice of acceptance of its joint and several liability, notice of
any Revolving Loans or Letters of Credit issued under or pursuant
to this Agreement, notice of the occurrence of any Default, Event
of Default, or of any demand for any payment under this Agreement,
notice of any action at any time taken or omitted by Agent or
Lenders under or in respect of any of the Obligations, any
requirement of diligence or to mitigate damages and, generally, to
the extent permitted by applicable law, all demands, notices and
other formalities of every kind in connection with this Agreement
(except as otherwise provided in this Agreement). Each Borrower
hereby assents to, and waives notice of, any extension or
postponement of the time for the payment of any of the Obligations,
the acceptance of any payment of any of the Obligations, the
acceptance of any partial payment thereon, any waiver, consent or
other action or acquiescence by Agent or Lenders at any time or
times in respect of any default by any Borrower in the performance
or satisfaction of any term, covenant, condition or provision of
this Agreement, any and all other indulgences whatsoever by Agent
or Lenders in respect of any of the Obligations, and the taking,
addition, substitution or release, in whole or in part, at any time
or times, of any security for any of the Obligations or the
addition, substitution or release, in whole or in part, of any
Borrower. Without limiting the generality of the foregoing, each
Borrower assents to any other action or delay in acting or failure
to act on the part of any Agent or Lender with respect to the
failure by any Borrower to comply with any of its respective
Obligations, including, without limitation, any failure strictly or
diligently to assert any right or to pursue any remedy or to comply
fully with applicable laws or regulations thereunder, which might,
but for the provisions of this Section 2.15 afford
grounds for terminating, discharging or relieving any Borrower, in
whole or in part, from any of its Obligations under this
Section 2.15,
it being the intention of each Borrower that, so long as any of the
Obligations hereunder remain unsatisfied, the Obligations of each
Borrower under this Section 2.15 shall not be
discharged except by performance and then only to the extent of
such performance. The Obligations of each Borrower under this
Section 2.15
shall not be diminished or rendered unenforceable by any winding
up, reorganization, arrangement, liquidation, reconstruction or
similar proceeding with respect to any other Borrower or any Agent
or Lender.
(f) Each Borrower
represents and warrants to Agent and Lenders that such Borrower is
currently informed of the financial condition of Borrowers and of
all other circumstances which a diligent inquiry would reveal and
which bear upon the risk of nonpayment of the Obligations. Each
Borrower further represents and warrants to Agent and Lenders that
such Borrower has read and understands the terms and conditions of
the Loan Documents. Each Borrower hereby covenants that such
Borrower will continue to keep informed of Borrowers’
financial condition and of all other circumstances which bear upon
the risk of nonpayment or nonperformance of the
Obligations.
(g) The provisions of
this Section 2.15 are made for
the benefit of Agent, each member of the Lender Group, each Bank
Product Provider, and their respective successors and assigns, and
may be enforced by it or them from time to time against any or all
Borrowers as often as occasion therefor may arise and without
requirement on the part of Agent, any member of the Lender Group,
any Bank Product Provider, or any of their successors or assigns
first to marshal any of its or their claims or to exercise any of
its or their rights against any Borrower or to exhaust any remedies
available to it or them against any Borrower or to resort to any
other source or means of obtaining payment of any of the
Obligations hereunder or to elect any other remedy. The provisions
of this Section 2.15 shall remain
in effect until all of the Obligations shall have been paid in full
or otherwise fully satisfied. If at any time, any payment, or any
part thereof, made in respect of any of the Obligations, is
rescinded or must otherwise be restored or returned by Agent or any
Lender upon the insolvency, bankruptcy or reorganization of any
Borrower, or otherwise, the provisions of this Section 2.15 will
forthwith be reinstated in effect, as though such payment had not
been made.
(h) Each Borrower
hereby agrees that it will not enforce any of its rights of
contribution or subrogation against any other Borrower with respect
to any liability incurred by it hereunder or under any of the other
Loan Documents, any payments made by it to Agent or Lenders with
respect to any of the Obligations or any collateral security
therefor until such time as all of the Obligations have been paid
in full in cash. Any claim which any Borrower may have against any
other Borrower with respect to any payments to any Agent or any
member of the Lender Group hereunder or under any of the Bank
Product Agreements are hereby expressly made subordinate and junior
in right of payment, without limitation as to any increases in the
Obligations arising hereunder or thereunder, to the prior payment
in full in cash of the Obligations and, in the event of any
insolvency, bankruptcy, receivership, liquidation, reorganization
or other similar proceeding under the laws of any jurisdiction
relating to any Borrower, its debts or its assets, whether
voluntary or involuntary, all such Obligations shall be paid in
full in cash before any payment or distribution of any character,
whether in cash, securities or other property, shall be made to any
other Borrower therefor.
(i) Each Borrower
hereby agrees that after the occurrence and during the continuance
of any Default or Event of Default, such Borrower will not demand,
xxx for or otherwise attempt to collect any indebtedness of any
other Borrower owing to such Borrower until the Obligations shall
have been paid in full in cash. If, notwithstanding the foregoing
sentence, such Borrower shall collect, enforce or receive any
amounts in respect of such indebtedness, such amounts shall be
collected, enforced and received by such Borrower as trustee for
Agent, and such Borrower shall deliver any such amounts to Agent
for application to the Obligations in accordance with Section 2.4(b).
3. CONDITIONS;
TERM OF AGREEMENT.
3.1 Conditions
Precedent to the Initial Extension of Credit. The obligation
of each Lender to make the initial extensions of credit provided
for hereunder is subject to the fulfillment, to the satisfaction of
Agent and each Lender, of each of the conditions precedent set
forth on Schedule 3.1 (the making
of such initial extensions of credit by a Lender being conclusively
deemed to be its satisfaction or waiver of the conditions precedent
).
3.2 Conditions
Precedent to all Extensions of Credit. The obligation of the
Lender Group (or any member thereof) to make any Revolving Loans
hereunder (or to extend any other credit hereunder) at any time
shall be subject to the following conditions
precedent:
(a) the representations
and warranties of each Borrower or its Subsidiaries contained in
this Agreement or in the other Loan Documents shall be true and
correct in all material respects (except that such materiality
qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in
the text thereof) on and as of the date of such extension of
credit, as though made on and as of such date (except to the extent
that such representations and warranties relate solely to an
earlier date, in which case such representations and warranties
shall be true and correct in all material respects (except that
such materiality qualifier shall not be applicable to any
representations and warranties that already are qualified or
modified by materiality in the text thereof) as of such earlier
date); and
(b) no Default or Event
of Default shall have occurred and be continuing on the date of
such extension of credit, nor shall either result from the making
thereof.
3.3 Maturity.
This Agreement shall continue in full force and effect for a term
ending on the Maturity Date.
3.4 Effect of
Maturity. On the Maturity Date, all commitments of the
Lender Group to provide additional credit hereunder shall
automatically be terminated and all of the Obligations immediately
shall become due and payable without notice or demand and Borrowers
shall be required to repay all of the Obligations in full. No
termination of the obligations of the Lender Group (other than
payment in full of the Obligations and termination of the
Commitments) shall relieve or discharge any Loan Party of its
duties, obligations, or covenants hereunder or under any other Loan
Document and Agent’s Liens in the Collateral shall continue
to secure the Obligations and shall remain in effect until all
Obligations have been paid in full and the Commitments have been
terminated. When all of the Obligations have been paid in full and
the Lender Group’s obligations to provide additional credit
under the Loan Documents have been terminated irrevocably, Agent
will, at Borrowers’ sole expense, execute and deliver any
termination statements, lien releases, discharges of security
interests, and other similar discharge or release documents (and,
if applicable, in recordable form) as are reasonably necessary to
release, as of record, Agent’s Liens and all notices of
security interests and liens previously filed by
Agent.
3.5 Early Termination
by Borrowers. Borrowers have the option, at any time upon 10
Business Days’ prior written notice to Agent, to terminate
this Agreement and terminate the Commitments hereunder by repaying
to Agent all of the Obligations in full. The foregoing
notwithstanding, (a) Borrowers may rescind termination notices
relative to proposed payments in full of the Obligations with the
proceeds of third-party Indebtedness if the closing for such
issuance or incurrence does not happen on or before the date of the
proposed termination (in which case, a new notice shall be required
to be sent in connection with any subsequent termination), and
(b) Borrowers may extend the date of termination at any time
with the consent of Agent (which consent shall not be unreasonably
withheld or delayed).
3.6 Conditions
Precedent to Real Property Sublimit Loans. The obligation of
the Lender Group (or any member thereof) to make any Real Property
Sublimit Loans in connection with a requested Borrowing hereunder
at any time shall be subject to the following additional conditions
precedent:
(a) the conditions set
forth in Section 3.2 are satisfied at such time;
(b) the notice of the
requested Borrowing identifies, in form and substance reasonably
satisfactory to Agent, the Eligible Real Property that is to be the
subject of the Real Property Sublimit Loans to be made in
connection with the requested Borrowing;
(c) Agent shall have
received the following Additional Documents for or with respect to
the Eligible Real Property that is to be the subject of the Real
Property Sublimit Loans to be made in connection with the requested
Borrowing:
(i) one or more
Mortgages;
(ii) one
or more appraisals satisfactory to Agent;
(iii) one
or more mortgagee title insurance policies (or marked commitments
to issue the same) issued by a title insurance company satisfactory
to Agent (each, a “Mortgage Policy”), in
amounts satisfactory to Agent and otherwise in form and substance
satisfactory to Agent, assuring Agent that each Mortgage on the
applicable Eligible Real Property is a valid and enforceable
first-priority mortgage Lien on such Eligible Real Property free
and clear of all defects and encumbrances except Permitted
Liens;
(iv) one
or more phase-I environmental reports prepared and issued by an
environmental consultant acceptable to Agent, the scope and results
of which are acceptable to Agent;
(v) a real estate
survey with respect to each parcel composing such Eligible Real
Property prepared and issued by a surveyor acceptable to Agent, the
scope and results of which are acceptable to Agent;
and
(vi) all
other Additional Documents as Agent may reasonably request, in form
and substance reasonably satisfactory to Agent;
(d) none of the
applicable Eligible Real Property is or was the subject of any Real
Property Sublimit Loan made in connection with any prior
Borrowing;
(e) the aggregate
original principal amount of all Real Property Sublimit Loans made
on or before the date of the requested Borrowing (including the
Real Property Sublimit Loans to be made in connection with the
requested Borrowing) does not exceed the Maximum Real Property
Sublimit Amount as of the Amendment No. 6. Effective
Date;
(f) the aggregate
original principal amount of the Real Property Sublimit Loans to be
made in connection with the requested Borrowing does not exceed the
lesser of (i) an amount equal to the result of (A) the
Maximum Real Property Sublimit Amount at such time, minus (B) the amount of any
applicable Reserves, minus
(C) the aggregate original principal amount of all Real
Property Sublimit Loans made on or before the date of the requested
Borrowing (other than the Real Property Sublimit Loans to be made
in connection with the requested Borrowing), and (ii) the Real
Property Sublimit Formula Amount for the applicable Eligible Real
Property; and
(g) (i) not more
than one Real Property Sublimit Loan is requested after the
Amendment No. 6 Effective Date, and (ii) the Eligible
Real Property that is to be the subject of such Real Property
Sublimit Loan requested after the Amendment No. 6 Effective
Date is that certain Real Property located in Louisville, Kentucky,
and disclosed to Agent before the Amendment No. 6 Effective
Date.
3.7 Conditions
Precedent to Last-Out Term Loan. The obligation of the
Lender Group (or any member thereof) to make the Last-Out Term Loan
on or about the Amendment No. 6 Effective Date shall be
subject to the following additional conditions
precedent:
(a) the conditions set
forth in Section 3.2 are satisfied at such time;
and
(b) the applicable
conditions set forth in Amendment No. 6 are satisfied at such
time.
4. REPRESENTATIONS
AND WARRANTIES.
In
order to induce the Lender Group to enter into this Agreement, each
Borrower makes the following representations and warranties to the
Lender Group which shall be true, correct, and complete, in all
material respects (except that such materiality qualifier shall not
be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof), as
of the Closing Date, and shall be true, correct, and complete, in
all material respects (except that such materiality qualifier shall
not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text
thereof), as of the Amendment No. 6 Effective Date, and as of
the date of the making of each Revolving Loan (or other extension
of credit) made after the Closing Date, in each case as though made
on and as of that date (except to the extent that such
representations and warranties relate solely to an earlier date, in
which case such representations and warranties shall be true and
correct in all material respects (except that such materiality
qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in
the text thereof) as of such earlier date) and such representations
and warranties shall survive the execution and delivery of this
Agreement:
4.1 Due
Organization and Qualification; Subsidiaries.
(a) Each Loan Party
(i) is duly organized and existing and in good standing under
the laws of the jurisdiction of its organization, (ii) is
qualified to do business in any state where the failure to be so
qualified could reasonably be expected to result in a Material
Adverse Effect, and (iii) has all requisite power and
authority to own and operate its properties, to carry on its
business as now conducted and as proposed to be conducted, to enter
into the Loan Documents to which it is a party and to carry out the
transactions contemplated thereby.
(b) Set forth on
Schedule 4.1(b) (as
such Schedule may be updated from time to time to reflect
changes resulting from transactions permitted under this Agreement)
is a complete and accurate description of the authorized Equity
Interests of each Borrower, by class, and, as of the Amendment
No. 6 Effective Date, a description of the number of shares of
each such class that are issued and outstanding. No Borrower is
subject to any obligation (contingent or otherwise) to repurchase
or otherwise acquire or retire any shares of its Equity Interests
or any security convertible into or exchangeable for any of its
Equity Interests.
(c) Set forth on
Schedule 4.1(c) (as
such Schedule may be updated from time to time to reflect
changes resulting from transactions permitted under this
Agreement), is a complete and accurate list of the Loan
Parties’ direct and indirect Subsidiaries, showing:
(i) the number of shares of each class of common and preferred
Equity Interests authorized for each of such Subsidiaries, and
(ii) the number and the percentage of the outstanding shares
of each such class owned directly or indirectly by Pac-Van. All of
the outstanding Equity Interests of each such Subsidiary has been
validly issued and is fully paid and non-assessable.
(d) Except as set forth
on Schedule 4.1(d), there are
no subscriptions, options, warrants, or calls relating to any
shares of any Borrower’s or any of its Subsidiaries’
Equity Interests, including any right of conversion or exchange
under any outstanding security or other instrument.
4.2 Due
Authorization; No Conflict.
(a) As to each Loan
Party, the execution, delivery, and performance by such Loan Party
of the Loan Documents to which it is a party have been duly
authorized by all necessary action on the part of such Loan
Party.
(b) As to each Loan
Party, the execution, delivery, and performance by such Loan Party
of the Loan Documents to which it is a party do not and will not
(i) violate any material provision of federal, state, or local
law or regulation applicable to any Loan Party or its Subsidiaries,
the Governing Documents of any Loan Party or its Subsidiaries, or
any order, judgment, or decree of any court or other Governmental
Authority binding on any Loan Party or its Subsidiaries,
(ii) conflict with, result in a breach of, or constitute (with
due notice or lapse of time or both) a default under any material
agreement of any Loan Party or its Subsidiaries where any such
conflict, breach or default could individually or in the aggregate
reasonably be expected to have a Material Adverse Effect,
(iii) result in or require the creation or imposition of any
Lien of any nature whatsoever upon any assets of any Loan Party,
other than Permitted Liens, or (iv) require any approval of
any holder of Equity Interests of a Loan Party or any approval or
consent of any Person under any material agreement of any Loan
Party, other than consents or approvals that have been obtained and
that are still in force and effect and except, in the case of
material agreements, for consents or approvals, the failure to
obtain could not individually or in the aggregate reasonably be
expected to cause a Material Adverse Effect.
4.3 Governmental
Consents. The execution, delivery, and performance by each
Loan Party of the Loan Documents to which such Loan Party is a
party and the consummation of the transactions contemplated by the
Loan Documents do not and will not require any registration with,
consent, or approval of, or notice to, or other action with or by,
any Governmental Authority, other than registrations, consents,
approvals, notices, or other actions that have been obtained and
that are still in force and effect and except for filings,
registrations, and recordings with respect to the Collateral to be
made, or otherwise delivered to Agent for filing, registration, or
recordation, as of the Closing Date.
4.4 Binding
Obligations; Perfected Liens.
(a) Each Loan Document
has been duly executed and delivered by each Loan Party that is a
party thereto and is the legally valid and binding obligation of
such Loan Party, enforceable against such Loan Party in accordance
with its respective terms, except as enforcement may be limited by
equitable principles or by bankruptcy, insolvency, reorganization,
moratorium, or similar laws relating to or limiting
creditors’ rights generally.
(b) Agent’s Liens
are validly created, perfected (other than (i) in respect of
motor vehicles that are subject to a certificate of title,
(ii) money, (iii) letter-of-credit rights (other than
supporting obligations, (iv) commercial tort claims (other
than those that, by the terms of any Guaranty and Security
Agreement, are required to be perfected), and (v) any Deposit
Accounts and Securities Accounts not subject to a Control Agreement
as permitted by the applicable Guaranty and Security Agreement, and
subject only to the filing of financing statements and the
recordation of the Mortgages, in each case, in the appropriate
filing offices), and first-priority Liens, subject only to
Permitted Liens which are non-consensual Permitted Liens, permitted
purchase money Liens, or the interests of lessors under Capital
Leases.
4.5 Title to Assets; No
Encumbrances. Each of the Loan Parties and its Subsidiaries
has (a) good, sufficient and legal title to (in the case of
fee interests in Real Property), (b) valid leasehold interests
in (in the case of leasehold interests in real or personal
property), and (c) good and marketable title to (in the case
of all other personal property), all of their respective assets
reflected in their most recent financial statements delivered
pursuant to Section 5.1, in each case
except for assets disposed of since the date of such financial
statements to the extent permitted hereby. All of such assets are
free and clear of Liens except for Permitted Liens.
4.6 Litigation.
(a) There are no
actions, suits, or proceedings pending or, to the knowledge of any
Borrower, after due inquiry, threatened in writing against a Loan
Party or any of its Subsidiaries that either individually or in the
aggregate could reasonably be expected to result in a Material
Adverse Effect.
(b) Schedule 4.6(b) sets
forth a complete and accurate description, with respect to each of
the actions, suits, or proceedings with asserted liabilities in
excess of, or that could reasonably be expected to result in
liabilities in excess of, $500,000 that, as of the Amendment
No. 6 Effective Date, is pending or, to the knowledge of any
Borrower, after due inquiry, threatened against a Loan Party or any
of its Subsidiaries, of (i) the parties to such actions,
suits, or proceedings, (ii) the nature of the dispute that is
the subject of such actions, suits, or proceedings, (iii) the
procedural status, as of the Amendment No. 6 Effective Date,
with respect to such actions, suits, or proceedings, and
(iv) whether any liability of the Loan Parties’ and
their Subsidiaries in connection with such actions, suits, or
proceedings is covered by insurance.
4.7 Compliance with
Laws. No Loan Party nor any of its Subsidiaries (a) is
in violation of any applicable laws, rules, regulations, executive
orders, or codes (including Environmental Laws) that, individually
or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect, or (b) is subject to or in default
with respect to any final judgments, writs, injunctions, decrees,
rules or regulations of any court or any federal, state,
provincial, municipal, foreign, or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.
4.8 No Material Adverse
Effect. All historical financial statements relating to the
Loan Parties and their Subsidiaries that have been delivered by
Borrowers to Agent have been prepared in accordance with GAAP
(subject, in the case of unaudited financial statements, to normal
year-end audit adjustments) and present fairly in all material
respects, the Loan Parties’ and their Subsidiaries’
consolidated financial condition as of the date thereof and results
of operations for the period then ended. Since June 30,
2011, no event, circumstance,
or change has occurred that has or could reasonably be expected to
result in a Material Adverse Effect with respect to the Loan
Parties and their Subsidiaries.
4.9 Solvency.
(a) Each Loan Party is
Solvent.
(b) No transfer of
property is being made by any Loan Party and no obligation is being
incurred by any Loan Party in connection with the transactions
contemplated by this Agreement or the other Loan Documents with the
intent to hinder, delay, or defraud either present or future
creditors of such Loan Party.
4.10 Employee
Benefits.
(a) Except as set forth
in Schedule 4.10, no Loan
Party, none of their Subsidiaries, nor any of their ERISA
Affiliates maintains or contributes to any Benefit Plan or any
Canadian Pension Plan that provides benefits on a defined-benefit
basis.
(b) Each Loan Party and
each of the ERISA Affiliates has complied in all material respects
with ERISA, the IRC and all applicable laws regarding each Employee
Benefit Plan.
(c) Each Employee
Benefit Plan is, and has been, maintained in substantial compliance
with ERISA, the IRC, all applicable laws and the terms of each such
Employee Benefit Plan.
(d) Each Employee
Benefit Plan that is intended to qualify under Section 401(a)
of the IRC has received a favorable determination letter from the
Internal Revenue Service or an application for such letter is
currently being processed by the Internal Revenue Service. To the
best knowledge of each Loan Party and the ERISA Affiliates after
due inquiry, nothing has occurred which would prevent, or cause the
loss of, such qualification.
(e) No liability to the
PBGC or any Governmental Authority (other than for the payment of
current premiums or regular contributions which are not past due)
by any Loan Party or ERISA Affiliate has been incurred or is
expected by any Loan Party or ERISA Affiliate to be incurred with
respect to any Pension Plan. No Lien has arisen with respect to any
Canadian Pension Plan (other than for regular contributions which
are not past due).
(f) No Notification
Event or Termination Event exists or has occurred in the past six
(6) years.
(g) No Loan Party or
ERISA Affiliate sponsors, maintains, or contributes to any Employee
Benefit Plan, including, without limitation, any such plan
maintained to provide benefits to former employees of such entities
that may not be terminated by any Loan Party or ERISA Affiliate in
its sole discretion at any time without material
liability.
(h) No Loan Party or
ERISA Affiliate has provided any security under Section 436 of
the IRC.
4.11 Environmental
Condition. Except as set forth on Schedule 4.11, (a) to
each Borrower’s knowledge, no Loan Party’s nor any of
its Subsidiaries’ properties or assets has ever been used by
a Loan Party, its Subsidiaries, or by previous owners or operators
in the disposal of, or to produce, store, handle, treat, release,
or transport, any Hazardous Materials, where such disposal,
production, storage, handling, treatment, release or transport was
in violation, in any material respect, of any applicable
Environmental Law, (b) to each Borrower’s knowledge,
after due inquiry, no Loan Party’s nor any of its
Subsidiaries’ properties or assets has ever been designated
or identified in any manner pursuant to any environmental
protection statute as a Hazardous Materials disposal site,
(c) no Loan Party nor any of its Subsidiaries has received
notice that a Lien arising under any Environmental Law has attached
to any revenues or to any Real Property owned or operated by a Loan
Party or its Subsidiaries, and (d) no Loan Party nor any of
its Subsidiaries nor any of their respective facilities or
operations is subject to any outstanding written order, consent
decree, or settlement agreement with any Person relating to any
Environmental Law or Environmental Liability that, individually or
in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
4.12 Complete
Disclosure. All factual information taken as a whole (other
than forward-looking information and projections and information of
a general economic nature and general information about
Borrowers’ industry) furnished by or on behalf of a Loan
Party or its Subsidiaries in writing to Agent or any Lender
(including all information contained in the Schedules hereto or in
the other Loan Documents) for purposes of or in connection with
this Agreement or the other Loan Documents, and all other such
factual information (other than forward-looking information and
projections and information of a general economic nature and
general information about Borrowers’ industry) hereafter
furnished by or on behalf of a Loan Party or its Subsidiaries in
writing to Agent or any Lender pursuant to or in connection with
any Loan Document will be, true and accurate, in all material
respects, on the date as of which such information is dated or
certified and not incomplete by omitting to state any fact
necessary to make such information not misleading in any material
respect at such time in light of the circumstances under which such
information was provided. The Projections delivered to Agent on
July 19, 2012, represent, and as of the date on which any
other Projections are delivered to Agent, such additional
Projections represent, Borrowers’ good faith estimate, on the
date such Projections are delivered, of the Loan Parties’ and
their Subsidiaries’ future performance for the periods
covered thereby based upon assumptions believed by Borrowers to be
reasonable at the time of the delivery thereof to Agent (it being
understood that such Projections are subject to significant
uncertainties and contingencies, many of which are beyond the
control of the Loan Parties and their Subsidiaries, and no
assurances can be given that such Projections will be realized, and
although reflecting Borrowers’ good faith estimate,
projections or forecasts based on methods and assumptions which
Borrowers believed to be reasonable at the time such Projections
were prepared, are not to be viewed as facts, and that actual
results during the period or periods covered by the Projections may
differ materially from projected or estimated
results).
4.13 Patriot
Act. Each Loan Party is in compliance, in all material
respects, with the (a) Trading with the Enemy Act, as amended,
and each of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) and any other enabling legislation or executive order
relating thereto, and (b) Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA Patriot Act of 2001) (the “Patriot Act”). No part of
the proceeds of the loans made hereunder will be used by any Loan
Party or any of their Affiliates, directly or indirectly, for any
payments to any governmental official or employee, political party,
official of a political party, candidate for political office, or
anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of
1977, as amended.
4.14 Indebtedness.
Set forth on Schedule 4.14 is a true
and complete list of all Indebtedness of each Loan Party and each
of its Subsidiaries outstanding immediately prior to the Amendment
No. 6 Effective Date that is to remain outstanding immediately
after giving effect to Amendment No. 6 on the Amendment
No. 6 Effective Date and such Schedule accurately sets
forth the aggregate principal amount of such Indebtedness as of the
Amendment No. 6 Effective Date.
4.15 Payment
of Taxes. Except as otherwise permitted under Section 5.5, all tax
returns and reports of each Loan Party and its Subsidiaries
required to be filed by any of them have been timely filed, and all
taxes shown on such tax returns to be due and payable and all
assessments, fees and other governmental charges upon a Loan Party
and its Subsidiaries and upon their respective assets, income,
businesses and franchises that are due and payable have been paid
when due and payable. Each Loan Party and each of its Subsidiaries
have made adequate provision in accordance with GAAP for all taxes
not yet due and payable. No Borrower knows of any proposed tax
assessment against a Loan Party or any of its Subsidiaries that is
not being actively contested by such Loan Party or such Subsidiary
diligently, in good faith, and by appropriate proceedings;
provided such
reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided
therefor.
4.16 Margin
Stock. No Loan Party nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying any
Margin Stock. No part of the proceeds of the loans made to
Borrowers will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying
any Margin Stock or for any purpose that violates the provisions of
Regulation T, U or X of the Board of Governors.
4.17 Governmental
Regulation. No Loan Party nor any of its Subsidiaries is
subject to regulation under the Federal Power Act or the Investment
Company Act of 1940 or under any other federal, state, provincial,
or foreign statute or regulation which may limit its ability to
incur Indebtedness or which may otherwise render all or any portion
of the Obligations unenforceable. No Loan Party nor any of its
Subsidiaries is a “registered investment company” or a
company “controlled” by a “registered investment
company” or a “principal underwriter” of a
“registered investment company” as such terms are
defined in the Investment Company Act of 1940.
4.18 Sanctions.
No Loan Party nor any of its Subsidiaries is in violation of any
Sanctions. No Loan Party nor any of its Subsidiaries (a) is a
Sanctioned Person or a Sanctioned Entity, (b) has its assets
located in Sanctioned Entities, or (c) derives revenues from
investments in, or transactions with Sanctioned Persons or
Sanctioned Entities. No proceeds of any Loan or Letter of Credit
will be used to fund any operations in, finance any investments or
activities in, or make any payments to, a Sanctioned Person or a
Sanctioned Entity.
4.19 Employee
and Labor Matters. There is (i) no unfair labor
practice complaint pending or, to the knowledge of any Borrower,
threatened against any Borrower or its Subsidiaries before any
Governmental Authority and no grievance or arbitration proceeding
pending or threatened against any Borrower or its Subsidiaries
which arises out of or under any collective bargaining agreement
and that could reasonably be expected to result in a material
liability, (ii) no strike, labor dispute, slowdown, stoppage
or similar action or grievance pending or threatened in writing
against any Borrower or its Subsidiaries that could reasonably be
expected to result in a material liability, or (iii) to the
knowledge of any Borrower, after due inquiry, no union
representation question existing with respect to the employees of
any Borrower or its Subsidiaries and no union organizing activity
taking place with respect to any of the employees of any Borrower
or its Subsidiaries. None of any Borrower or its Subsidiaries has
incurred any liability or obligation under the Worker Adjustment
and Retraining Notification Act or similar applicable law, which
remains unpaid or unsatisfied. The hours worked and payments made
to employees of each Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable
legal requirements, except to the extent such violations could not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect. All material payments due from any
Borrower or its Subsidiaries on account of wages and employee
health and welfare insurance and other benefits have been paid or
accrued as a liability on the books of Borrowers and their
Subsidiaries, except where the failure to do so could not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.
4.20 [Reserved].
4.21 Leases.
Each Loan Party and its Subsidiaries enjoy peaceful and undisturbed
possession under all leases material to their business and to which
they are parties or under which they are operating, and, subject to
Permitted Protests, all of such material leases are valid and
subsisting and no material default by the applicable Loan Party or
its Subsidiaries exists under any of them.
4.22 Eligible
Accounts, Eligible Extended Lone Star Accounts, Eligible
Backend-Charge Accounts, and Eligible Southern Frac
Accounts. As to each Account that is identified by Borrowers
as an Eligible Account, an Eligible Extended Lone Star
Account, an Eligible Backend-Charge Account, or an Eligible
Southern Frac Account in a Borrowing Base Certificate submitted to
Agent, such Account is (a) a bona fide existing payment
obligation of the applicable Account Debtor created by the sale or
lease and delivery of Inventory or the rendition of services to
such Account Debtor in the ordinary course of the Loan
Parties’ business, (b) owed to a Borrower or a Qualified
Subsidiary Guarantor (or (i) in the case of Eligible Extended
Lone Star Accounts, owed to Lone Star, and (ii) in
the case of Eligible Southern Frac Accounts, owed to Southern Frac)
without any known defenses, disputes, offsets, counterclaims, or
rights of return or cancellation, (c) in the case of Eligible
Accounts, not excluded as ineligible by virtue of one or more of
the excluding criteria (other than any Agent-discretionary
criteria) set forth in the definition of Eligible Accounts,
(d) in the case Eligible Extended Lone Star Accounts, not
excluded as ineligible by virtue of one or more of the excluding
criteria (other than any Agent-discretionary criteria) set forth in
the definition of Eligible Extended Lone Star Accounts,
(e) in the case Eligible Backend-Charge Accounts, not excluded
as ineligible by virtue of one or more of the excluding criteria
(other than any Agent-discretionary criteria) set forth in the
definition of Eligible Backend-Charge Accounts, and (f) in the
case of Eligible Southern Frac Accounts, not excluded as ineligible
by virtue of one or more of the excluding criteria (other than any
Agent-discretionary criteria) set forth in the definition of
Eligible Southern Frac Accounts.
4.23 Eligible
Inventory; Eligible Southern Frac Raw Materials Inventory; Eligible
Southern Frac Tanks.
(a) As to each item of
Inventory that is identified by Borrowers as Eligible Fleet
Inventory, Eligible Step Inventory, or Eligible Southern Frac
Finished Goods Inventory in a Borrowing Base Certificate submitted
to Agent, such Inventory is (i) of good and merchantable
quality, free from known defects, and (ii) not excluded as
ineligible by virtue of one or more of the excluding criteria
(other than any Agent-discretionary criteria) set forth in the
definition of Eligible Inventory.
(b) As to each item of
Inventory that is identified by Borrowers as Eligible Southern Frac
Raw Materials Inventory in a Borrowing Base Certificate submitted
to Agent, such Inventory is (i) of good and merchantable
quality, free from known defects, and (ii) not excluded as
ineligible by virtue of one or more of the excluding criteria
(other than any Agent-discretionary criteria) set forth in the
definition of Eligible Southern Frac Raw Materials
Inventory.
(c) As to each Southern
Frac Tank that is identified by Borrowers as Eligible Southern Frac
Tank in a Borrowing Base Certificate submitted to Agent, such
Southern Frac Tank is not excluded as ineligible by virtue of one
or more of the excluding criteria (other than any
Agent-discretionary criteria) set forth in the definition of
Eligible Southern Frac Tanks.
4.24 Location
of Inventory. The Inventory of Borrowers and their
Subsidiaries is not stored with a bailee, warehouseman, or similar
party. Except for Excepted Inventory having an aggregate gross book
value not in excess of $500,000, the Inventory of Borrowers and
their Subsidiaries is (i) located only at either (A) a
Customer Location pursuant to a valid, current written rental or
lease agreement or (B) one of the locations identified on
Schedule 4.24
(as such Schedule may be updated pursuant to Section 5.14) or
(ii) in-transit from one such location under clause (i) to another such
location.
4.25 Inventory
Records. Each Loan Party keeps correct and accurate records
itemizing and describing the type, quality, and quantity of its and
its Subsidiaries’ Inventory and the book value
thereof.
4.26 Eligible
Equipment; Eligible Real Property.
(a) As to each item of
Equipment that is identified by Borrowers as Eligible Branch-Use
Equipment or Eligible Rolling Stock Equipment in a Borrowing Base
Certificate submitted to Agent, such Equipment is not excluded as
ineligible by virtue of one or more of the excluding criteria
(other than any Agent-discretionary criteria) set forth in the
definition of Eligible Equipment.
(b) As to each item of
Real Property that is identified by Borrowers as Eligible Real
Property in a Borrowing Base Certificate submitted to Agent, such
Real Property is not excluded as ineligible by virtue of one or
more of the excluding criteria (other than any Agent-discretionary
criteria) set forth in the definition of Eligible Real
Property.
4.27 Location
of Equipment. The Equipment of Borrowers and their
Subsidiaries is not stored with a bailee, warehouseman, or similar
party. Except for Excepted Equipment having an aggregate gross book
value not in excess of $500,000, the Equipment of Borrowers and
their Subsidiaries is (i) located only at either (A) a
Customer Location for or in anticipation of its active use by a
Loan Party at that Customer Location in the ordinary course of Loan
Parties’ business or (B) one of the locations identified
on Schedule 4.27 (as such
Schedule may be updated pursuant to Section 5.14) or
(ii) in-transit from one such location under clause (i) to another such
location.
4.28 Equipment
Records. Each Loan Party keeps correct and accurate records
itemizing and describing the type, quality, and quantity of its and
its Subsidiaries’ Equipment and the book value
thereof.
4.29 Other
Documents.
(a) Borrowers have
delivered to Agent complete and correct copies of the
Lone Star Acquisition Documents, including all schedules and
exhibits thereto. The execution, delivery, and performance of each
of the Lone Star Acquisition Documents has been duly
authorized by all necessary action on the part of each Borrower who
is a party thereto. Each Lone Star Acquisition Document is the
legal, valid, and binding obligation of each Borrower who is a
party thereto, enforceable against each such Borrower in accordance
with its terms, in each case, except (i) as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting generally the
enforcement of creditors’ rights and (ii) the
availability of the remedy of specific performance or injunctive or
other equitable relief is subject to the discretion of the court
before which any proceeding therefor may be brought. No Borrower is
in default in the performance or compliance with any provisions of
any Lone Star Acquisition Document to which is a party. All
representations and warranties made by a Borrower in the
Lone Star Acquisition Documents and in the certificates
delivered in connection therewith are true and correct in all
material respects. To each Borrower’s knowledge, none of the
Lone Star Sellers’ representations or warranties in the
Lone Star Acquisition Documents contain any untrue statement
of a material fact or omit any fact necessary to make the
statements therein not misleading, in any case that could
reasonably be expected to result in a Material Adverse
Effect.
(b) As of the Closing
Date, the Lone Star Acquisition has been consummated in all
material respects, in accordance with the Lone Star Purchase
Agreement and all applicable laws. As of the Closing Date, all
requisite approvals by Governmental Authorities having jurisdiction
over Borrowers and, to each Borrower’s knowledge, any
Lone Star Seller, with respect to the Lone Star
Acquisition, have been obtained (including filings or approvals
required under the Xxxx–Xxxxx–Xxxxxx Antitrust
Improvements Act), except for any approval the failure to obtain
could not reasonably be expected to be material to the interests of
the Lenders. As of the Closing Date, after giving effect to the
transactions contemplated by the Lone Star Acquisition
Documents, Borrowers will have good title to the assets acquired
pursuant to the Lone Star Purchase Agreement, free and clear
of all Liens other than Permitted Liens.
4.30 Hedge
Agreements. On each date that any Hedge Agreement is
executed by any Hedge Provider, each Borrower and each other Loan
Party satisfy all eligibility, suitability, and other requirements
under the Commodity Exchange Act (7 U.S.C. § 1, et seq., as in
effect from time to time) and the Commodity Futures Trading
Commission regulations.
4.31 CSSI
as Dormant Subsidiary. Before the Amendment No. 6
Effective Date, CSSI transferred all of its assets (including,
without limitation, all of its Certificated Units) to Pac-Van. CSSI
is a dormant Subsidiary of Pac-Van and does not have any material
liabilities, own any material assets, or engage in any operations
or business activity.
5. AFFIRMATIVE
COVENANTS.
Each
Borrower covenants and agrees that, until termination of all of the
Commitments and payment in full of the Obligations:
5.1 Financial
Statements, Reports, Certificates. Borrowers (a) will
deliver to Agent, with copies to each Lender, each of the financial
statements, reports, and other items set forth on Schedule 5.1 no later than
the times specified therein, (b) agree that no Loan Party and
no Subsidiary of a Loan Party will have a fiscal year different
from that of Pac-Van, (c) agree to maintain a system of
accounting that enables Borrowers to produce financial statements
in accordance with GAAP, and (d) agree that they will, and
will cause each other Loan Party to, (i) keep a reporting
system that shows all additions, sales, claims, returns, and
allowances with respect to their and their Subsidiaries’
sales, and (ii) maintain their billing systems and practices
substantially as in effect as of the Closing Date and shall only
make material modifications thereto with notice to, and with the
consent of, Agent.
5.2 Reporting.
Borrowers (a) will deliver to Agent (and if so requested by
Agent, with copies for each Lender) each of the reports set forth
on Schedule 5.2 at the times
specified therein, and (b) agree to use commercially
reasonable efforts in cooperation with Agent to facilitate and
implement a system of electronic collateral reporting in order to
provide electronic reporting of each of the items set forth on such
Schedule.
5.3 Existence.
Except as otherwise permitted under Section 6.3 or
Section 6.4,
each Borrower will, and will cause each of its Subsidiaries to, at
all times preserve and keep in full force and effect such
Person’s valid existence and good standing in its
jurisdiction of organization and, except as could not reasonably be
expected to result in a Material Adverse Effect, good standing with
respect to all other jurisdictions in which it is qualified to do
business and any rights, franchises, permits, licenses,
accreditations, authorizations, or other approvals material to
their businesses.
5.4 Maintenance of
Properties. Each Borrower will, and will cause each of its
Subsidiaries to, maintain and preserve all of its assets that are
necessary or useful in the proper conduct of its business in good
working order and condition, ordinary wear, tear, casualty, and
condemnation and Permitted Dispositions excepted.
5.5 Taxes. Each
Borrower will, and will cause each of its Subsidiaries to, pay in
full before delinquency or before the expiration of any extension
period all material governmental assessments and taxes imposed,
levied, or assessed against it, or any of its assets or in respect
of any of its income, businesses, or franchises, except to the
extent that the validity of such governmental assessment or tax is
the subject of a Permitted Protest.
5.6 Insurance.
Each Borrower will, and will cause each of its Subsidiaries to, at
Borrowers’ expense, (a) maintain insurance respecting
each of each Borrower’s and its Subsidiaries’ assets
wherever located, covering liabilities, losses or damages as are
customarily are insured against by other Persons engaged in same or
similar businesses and similarly situated and located. All such
policies of insurance shall be with financially sound and reputable
insurance companies acceptable to Agent (it being agreed that, as
of the Amendment No. 6 Effective Date, the insurers identified
in Schedule 5.6 are
acceptable to Agent) and in such amounts as is carried generally in
accordance with sound business practice by companies in similar
businesses similarly situated and located and, in any event, in
amount, adequacy, and scope reasonably satisfactory to Agent (it
being agreed that the amount, adequacy, and scope of the policies
of insurance of Borrowers in effect as of the Amendment No. 6
Effective Date are acceptable to Agent). All property insurance
policies covering the Collateral are to be made payable to Agent
for the benefit of Agent and the Lenders, as their interests may
appear, in case of loss, pursuant to a standard loss payable
endorsement with a standard non-contributory “lender”
or “secured party” clause and are to contain such other
provisions as Agent may reasonably require to fully protect the
Lenders’ interest in the Collateral and to any payments to be
made under such policies. All certificates of property and general
liability insurance are to be delivered to Agent, with the loss
payable (but only in respect of Collateral) and additional insured
endorsements in favor of Agent and shall provide for not less than
30 days (10 days in the case of non-payment) prior written
notice to Agent of the exercise of any right of cancellation. If
any Borrower or its Subsidiaries fails to maintain such insurance,
Agent may arrange for such insurance, but at Borrowers’
expense and without any responsibility on Agent’s part for
obtaining the insurance, the solvency of the insurance companies,
the adequacy of the coverage, or the collection of claims.
Borrowers shall give Agent prompt notice of any loss exceeding
$500,000 covered by their or their Subsidiaries’ casualty or
business interruption insurance. Upon the occurrence and during the
continuance of an Event of Default, Agent shall have the sole right
to file claims under any property and general liability insurance
policies (and to adjust and approve any award granted in any
condemnation or similar proceeding or any deed in lieu of
condemnation) in respect of any of the Collateral, to receive,
receipt and give acquittance for any payments that may be payable
thereunder, and to execute any and all endorsements, receipts,
releases, assignments, reassignments or other documents that may be
necessary to effect the collection, compromise or settlement of any
claims under any such insurance policies (or condemnation or
similar awards or payments with respect to any such deed in lieu of
condemnation).
5.7 Inspection.
(a) Each Borrower will,
and will cause each of its Subsidiaries to, permit Agent, any
Lender, and each of their respective duly authorized
representatives or agents to visit any of its properties and
inspect any of its assets or books and records, to examine and make
copies of its books and records, and to discuss its affairs,
finances, and accounts with, and to be advised as to the same by,
its officers and employees (provided an authorized representative
of a Borrower shall be allowed to be present) at such reasonable
times and intervals as Agent or any Lender, as applicable, may
designate and, so long as no Default or Event of Default has
occurred and is continuing, with reasonable prior notice to
Borrowers and during regular business hours.
(b) Subject to
Section 2.10(c), each
Borrower will, and will cause each of its Subsidiaries to, permit
Agent and each of its duly authorized representatives or agents to
conduct appraisals and valuations at such reasonable times and
intervals as Agent may designate.
5.8 Compliance with
Laws. Each Borrower will, and will cause each of its
Subsidiaries to, comply with the requirements of all applicable
laws, rules, regulations, and orders of any Governmental Authority,
other than laws, rules, regulations, and orders the non-compliance
with which, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.
5.9 Environmental.
Each Borrower will, and will cause each of its Subsidiaries
to,
(a) Keep any property
either owned or operated by any Borrower or its Subsidiaries free
of any Environmental Liens or post bonds or other financial
assurances sufficient to satisfy the obligations or liability
evidenced by such Environmental Liens,
(b) Comply, in all
material respects, with Environmental Laws and provide to Agent
documentation of such compliance which Agent reasonably
requests,
(c) Promptly notify
Agent of any release of which any Borrower has knowledge of a
Hazardous Material in any reportable quantity from or onto property
owned or operated by any Borrower or its Subsidiaries and take any
Remedial Actions required to xxxxx said release or otherwise to
come into compliance, in all material respects, with applicable
Environmental Law, and
(d) Promptly, but in
any event within 5 Business Days of its receipt thereof, provide
Agent with written notice of any of the following: (i) notice
that an Environmental Lien has been filed against any of the real
or personal property of a Borrower or its Subsidiaries,
(ii) commencement of any Environmental Action or written
notice that an Environmental Action will be filed against a
Borrower or its Subsidiaries, and (iii) written notice of a
violation, citation, or other administrative order from a
Governmental Authority.
5.10 Disclosure
Updates. Each Borrower will, promptly and in no event later
than 5 Business Days after obtaining knowledge thereof, notify
Agent if any written information, exhibit, or report furnished to
Agent or the Lenders contained, at the time it was furnished, any
untrue statement of a material fact or omitted to state any
material fact necessary to make the statements contained therein
not misleading in light of the circumstances in which made. The
foregoing to the contrary notwithstanding, any notification
pursuant to the foregoing provision will not cure or remedy the
effect of the prior untrue statement of a material fact or omission
of any material fact nor shall any such notification have the
effect of amending or modifying this Agreement or any of the
Schedules hereto.
5.11 Formation
of Subsidiaries. Each Borrower will, at the time that any
Loan Party forms any direct or indirect Subsidiary or acquires any
direct or indirect Subsidiary after the Closing Date, within 10
days of such formation or acquisition (or such later date as
permitted by Agent in its sole discretion) (a) cause such new
Subsidiary to provide to Agent a joinder to the applicable Guaranty
and Security Agreement, together with such other security
agreements, as well as appropriate financing statements (and with
respect to all property subject to a mortgage, fixture filings),
all in form and substance reasonably satisfactory to Agent
(including being sufficient to grant Agent a first-priority Lien
(subject to Permitted Liens) in and to the assets of such newly
formed or acquired Subsidiary); provided, that the joinder to
the applicable Guaranty and Security Agreement, and such other
security agreements shall not be required to be provided to Agent
with respect to any Subsidiary of any Borrower that is a CFC if
providing such agreements would result in adverse tax consequences
or the costs to the Loan Parties of providing such guaranty or such
security agreements are unreasonably excessive (as determined by
Agent in consultation with Borrowers) in relation to the benefits
to Agent and the Lenders of the security or guarantee afforded
thereby, (b) provide, or cause the applicable Loan Party to
provide, to Agent a pledge agreement (or an addendum to the
applicable Guaranty and Security Agreement) and appropriate
certificates and powers or financing statements, pledging all of
the direct or beneficial ownership interest in such new Subsidiary
in form and substance reasonably satisfactory to Agent;
provided, that only
65% of the total outstanding voting Equity Interests of any
first-tier Subsidiary of a Borrower that is a CFC (and none of the
Equity Interests of any Subsidiary of such CFC) shall be required
to be pledged if pledging a greater amount would result in adverse
tax consequences or the costs to the Loan Parties of providing such
pledge are unreasonably excessive (as determined by Agent in
consultation with Borrowers) in relation to the benefits to Agent
and the Lenders of the security afforded thereby (which pledge, if
reasonably requested by Agent, shall be governed by the laws of the
jurisdiction of such Subsidiary), and (c) provide to Agent all
other documentation, including one or more opinions of counsel
reasonably satisfactory to Agent, which, in its opinion, is
appropriate with respect to the execution and delivery of the
applicable documentation referred to above (including policies of
title insurance or other documentation with respect to all Real
Property Collateral, including, without limitation, any Real
Property Collateral that Borrowers desire to be or become Eligible
Real Property). Any document, agreement, or instrument executed or
issued pursuant to this Section 5.11 shall
constitute a Loan Document.
5.12 Further
Assurances. Each Borrower will, and will cause each of the
other Loan Parties to, at any time upon the reasonable request of
Agent, execute or deliver to Agent any and all financing
statements, fixture filings, security agreements, pledges,
assignments, mortgages, deeds of trust, opinions of counsel, and
all other documents (the “Additional Documents”)
that Agent may reasonably request in form and substance reasonably
satisfactory to Agent, to create, perfect, and continue perfected
or to better perfect Agent’s Liens in all of the assets of
each Borrower and its Subsidiaries (whether now owned or hereafter
arising or acquired, tangible or intangible, real or personal) to
create and perfect Liens in favor of Agent in any Real Property
Collateral (including, without limitation, any Real Property
Collateral that Borrowers desire to be or become Eligible Real
Property), and in order to fully consummate all of the transactions
contemplated hereby and under the other Loan Documents;
provided that the
foregoing shall not apply to any Subsidiary of a Borrower that is a
CFC (other than PV Acquisition) if providing such documents
would result in adverse tax consequences or the costs to the Loan
Parties of providing such documents are unreasonably excessive (as
determined by Agent in consultation with Borrowers) in relation to
the benefits to Agent and the Lenders of the security afforded
thereby. To the maximum extent permitted by applicable law, if any
Borrower or any other Loan Party refuses or fails to execute or
deliver any reasonably requested Additional Documents within a
reasonable period of time following the request to do so, each
Borrower and each other Loan Party hereby authorizes Agent to
execute any such Additional Documents in the applicable Loan
Party’s name and authorizes Agent to file such executed
Additional Documents in any appropriate filing office. In
furtherance of, and not in limitation of, the foregoing, each Loan
Party shall take such actions as Agent may reasonably request from
time to time to ensure that the Obligations are guaranteed by the
Guarantors and are secured by substantially all of the assets of
each Borrower and its Subsidiaries, including all of the
outstanding capital Equity Interests of Pac-Van’s
Subsidiaries (subject to exceptions and limitations contained in
the Loan Documents with respect to CFCs).
5.13 Lender
Meetings. Borrowers will, within 90 days after the close of
each fiscal year of Pac-Van, at the request of Agent or of the
Required Lenders and upon reasonable prior notice, hold a meeting
(at a mutually agreeable location and time or, at the option of
Agent, by conference call) with all Lenders who choose to attend
such meeting at which meeting shall be reviewed the financial
results of the previous fiscal year and the financial condition of
Borrowers and their Subsidiaries and the projections presented for
the current fiscal year of Pac-Van.
5.14 Location
of Inventory and Equipment. Each Borrower will, and will
cause each of its Subsidiaries to, keep its
Inventory only at the locations identified on Schedule 4.24 (except for
Inventory in transit and Inventory leased by any Loan Party in the
ordinary course of business), its Equipment only at the locations
identified on Schedule 4.27, and its
chief executive offices only at the locations identified on
Schedule 5.14;
provided, that
Borrowers may amend Schedule 4.24,
Schedule 4.27,
or Schedule 5.14 so long as
such amendment occurs by written notice to Agent not less than 10
days prior to the date on which such Inventory or Equipment is
moved to such new location or such chief executive office is
relocated and so long as such new location is within the
continental United States.
5.15 Rental
Fleet Inventory Leases.
(a) At Agent’s
request made after the occurrence and during the continuation of an
Event of Default, each Borrower will, and will cause each of
its Subsidiaries to, do
the following: (i) use commercially reasonable efforts to
ensure that there is only one original of each Rental Fleet
Inventory Lease entered into after the Closing Date; and
(ii) ensure that each Rental Fleet Inventory Lease entered
into after the Closing Date contains an express agreement of the
parties thereto to the effect that each item of Rental Fleet
Inventory subject to that Rental Fleet Inventory Lease is and at
all times will remain personal property, even though that item of
Rental Fleet Inventory is or might become permanently attached to
the real property on which it is or is to be located so as to
become a fixture.
(b) At Agent’s
request made after the occurrence and during the continuation of an
Event of Default, each Borrower will cause, and will cause each of
its Subsidiaries to
cause, each Rental Fleet Inventory Lease entered into after the
date of Agent’s request to include prominently the following
legend or a similar legend reasonably acceptable to
Agent:
All
right, title, and interest of [name of applicable Borrower or
Subsidiary] hereunder has been pledged to, and is subject to
the security interests of, Xxxxx Fargo Bank, National Association,
as administrative agent, pursuant to an Amended and Restated Credit
Agreement dated as of April 7, 2014, among Pac-Van, Inc.,
Lone Star Tank Rental Inc., the other borrowers party
thereto, Xxxxx Fargo Bank, National Association, as administrative
agent, and the lenders from time to time party thereto (as amended,
restated, amended and restated or otherwise modified from time to
time) and pursuant to certain loan documents delivered thereunder.
[name of applicable Borrower or
Subsidiary] has no right to transfer its right, title, or
interest hereunder to any party except pursuant to and in
accordance with the provisions of those loan
documents.
(c) At Agent’s
request made after the occurrence and during the continuation of an
Event of Default, each Borrower will, and will cause each of
its Subsidiaries to,
cause, within 10 Business Days after the date of Agent’s
request, each then-active Rental Fleet Inventory Lease entered into
on or before the date of Agent’s request to be stamped with
the legend set forth in Section 5.15(b) or a
similar legend reasonably acceptable to Agent.
5.16 Certificated
Units.
(a) Subject to
Section 5.16(f), within 30
days (or any longer period to which Agent agrees in writing) after
a Loan Party’s acquisition of a Certificated Unit, each
Borrower will, and will cause each of its Subsidiaries to, use commercially
reasonable efforts to submit (i) an application to the
appropriate Governmental Authority for the Agent’s Lien to be
made on the Certificate of Title applicable to any such
Certificated Unit, which notation, when made, will perfect, under
applicable law, the Trust’s or Agent’s Lien in each
such Certificated Unit, and (ii) an application to the
appropriate Governmental Authority for the removal of any Lien in
favor of a Person (other than the Trust or Agent) noted on the
Certificate of Title for each such Certificated Unit. Upon request
by Agent, Borrowers promptly shall provide Agent with evidence
reasonably satisfactory to Agent that all actions described above
have been taken.
(b) Notwithstanding
anything to the contrary in this Agreement, each Borrower will, and
will cause each of its Subsidiaries to, use commercially
reasonable efforts to cause Certificates of Title to be issued (to
the extent such Certificates of Title will be issued, are required
to be issued, or are available to be issued by the applicable
Governmental Authorities) in the name of the applicable Loan Party,
and the Trust’s Lien or the Agent’s Lien to be duly
noted thereon (to the extent that the Governmental Authority will
note the Trust’s Lien or the Agent’s Lien), for each
Unit in each of the following circumstances: (a) promptly upon
the request of Agent; or (b) within 45 days after
Certificates of Title are required to be issued under applicable
law in respect of Units located in a particular jurisdiction in
order to perfect the Trust’s or Agent’s Lien
therein.
(c) As of the Closing
Date Administrative Borrower shall, on its own behalf and on behalf
of each Loan Party, segregate and maintain all Certificates of
Title in respect of all Certificated Units of the Loan Parties at
the office of Administrative Borrower located at 0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000. Such Certificates of Title
shall be maintained in a fireproof safe and held in such a manner
as to allow Agent and/or the Trust to examine and make copies
thereof or abstracts therefrom in accordance with the inspection
and examination rights otherwise granted pursuant to this Agreement
and the other Loan Documents. Upon (i) the value of all
Certificated Units of the Loan Parties exceeding 15% of the
aggregate value of all Inventory, Branch-Use Equipment, and Rolling
Stock Equipment of the Loan Parties at any time as determined by
Agent, upon written notice from Agent, Administrative Borrower
shall deliver all Certificates of Title in respect of all
Certificated Units of the Loan Parties to Agent or as otherwise
designated by Agent, or (ii) unless Agent shall otherwise direct,
upon the occurrence and during the continuance of a Default or an
Event of Default, Administrative Borrower shall automatically and
without further action by Agent, deliver all Certificates of Title
in respect of all Certificated Units of the Loan Parties to Agent.
In the event that the Certificates of Title are delivered to Agent
or its designee in accordance with this Section 5.16(c), Agent or
such designee shall so hold such Certificates of Title and shall,
unless Agent reasonably objects to such release, release any
Certificates of Title to Borrowing Agent for any Certificated Unit
that is subject to a pending sale in accordance with Section 6.4 of this Agreement;
provided that no
Default or Event of Default shall exist or be
continuing.
(d) So long as
Administrative Borrower has rights to maintain the Certificates of
Title in accordance with Section 5.16, Agent, as
Trust Agent, hereby appoints Administrative Borrower as the
Trust’s attorney, with limited power to sign and file any
documents, as required under any certificate-of-title,
motor-vehicle, or other similar registration statute (each a
“Motor Vehicle
Statute”) in the applicable jurisdiction, to release
the Trust’s Lien in respect of any Certificated Unit that is
sold in accordance with Section 6.4 of this Agreement
on or after the Closing Date. Such appointment shall cease to exist
at any time Administrative Borrower is required to deliver the
Certificates of Title to Agent or its designee in accordance with
this Section 5.16.
(e) Each Borrower
individually and on behalf of each other Loan Party hereby
acknowledges and agrees that upon any termination of the Trust
Agreement, or upon the delivery of notice by Agent to
Administrative Borrower requesting that the Loan Parties note the
name of Agent (rather than the Trust) on the Certificate of Title
for each Certificated Unit, then (i) such Loan Party shall promptly
note the name and other necessary details in respect of Agent on
the Certificate of Title for any Certificated Unit in which the
Trust is named, in such manner as shall indicate that Agent is the
lienholder of record, in accordance with the Motor Vehicle Statutes
adopted in the state where such Certificated Units are titled such
that a first priority security interest has been perfected in favor
of Agent with respect to such Certificated Units, (ii) each
Borrower shall (and shall cause each other Loan Party to) take or
cause to be taken all other actions necessary to perfect, maintain,
protect, and enforce Agent’s Liens in such Certificated
Units, and (iii) all provisions set forth herein and in any other
Loan Document running in favor of or for the benefit of the Trust
shall be deemed to run in favor of or for the benefit of Agent in
lieu thereof.
(f) Schedule 5.16(f) sets
forth a complete and accurate description of each Certificated Unit
transferred to Pac-Van from CSSI before the Amendment No. 6
Effective Date. With respect to each such Certificated Unit, each
Borrower, as applicable, will do the following: (i) with
respect to any such Certificated Unit for which the applicable
Certificate of Title is not in the possession of a Loan Party, use
commercially reasonable efforts to obtain possession of such
Certificate of Title or to cause such Certificate of Title to be
delivered to a processing agent identified by Agent; (ii) with
respect to any such Certificated Unit for which the applicable
Certificate of Title is in the possession of a Loan Party, deliver
(or cause to be delivered) such Certificate of Title to a
processing agent identified by Agent; (iii) deliver (and, with
respect to any applicable Person that is not a Loan Party or a
Subsidiary of a Loan Party, use commercially reasonable efforts to
cause to be delivered) to a processing agent identified by Agent
all other instruments necessary or appropriate to enable such
identified processing agent to submit an application to the
appropriate Governmental Authority (A) for a notation of the
Trust’s or Agent’s Lien to be made on the Certificate
of Title applicable to any such Certificated Unit, which notation,
when made, will perfect, under applicable law, the Trust’s or
Agent’s Lien in each such Certificated Unit, and (B) for
the removal of any Lien in favor of a Person (other than the Trust
or Agent) noted on the Certificate of Title for each such
Certificated Unit; and (iv) with respect to any such
Certificated Unit for which the applicable Certificate of Title and
all other necessary or appropriate instruments are not delivered to
a processing agent identified by Agent within 30 days after
the Amendment No. 6 Effective Date (or any later date that
Agent agrees to in writing), either (A) deliver to a
processing agent identified by Agent such Certificate of Title and
other instruments in accordance with this Section 5.16(f), or
(B) if the aggregate amount of all such Certificated Units
identified in the most recent Borrowing Base Certificate submitted
to Agent as Eligible Equipment or Eligible Inventory is less than
any Reserve set forth in that Borrowing Base Certificate with
respect to those Certificate Units, both (1) confirm in
writing to Agent that Borrowers are unable to deliver to Agent such
Certificates of Title and other instruments at that time and
(2) deliver to Agent reconciliations of any such Certificated
Units to such Borrowing Base Certificate and to the most recent
appraisal of such Certificated Units received by
Agent.
(g) To the extent that
Borrowers do not comply with the applicable provisions of this
Section 5.16,
any Certificated Unit or any Unit for which the Borrowers have
failed to satisfy the applicable conditions set forth in this
Section 5.16
will not be eligible for borrowing purposes under this Agreement,
but no such failure to comply with respect to a Certificated Unit
or a Unit will constitute a Default or an Event of Default under
this Agreement.
5.17 Non-Certificated
Units.
(a) Notwithstanding
anything to contrary contained in this Agreement or the other Loan
Documents, Agent and the Lenders acknowledge that, except to the
extent that further actions are required to be taken in accordance
with the terms of Sections 5.15,
5.16, 5.17, and 5.18 of this Agreement, with
respect to Non-Certificated Units from time to time held by Loan
Parties, Certificates of Title have not been issued with respect
thereto and, accordingly, no notation of a security interest has
been made under the Motor Vehicle Statute of any jurisdiction in
connection therewith. If Borrowers or any of their Subsidiaries
becomes aware that a Certificate of Title is required to be issued
with respect to any Non-Certificated Unit under applicable law,
then each Borrower will, and will cause each of its Subsidiaries to, take all steps in
accordance with Section 5.16 and as may
otherwise be necessary so that a Certificate of Title is issued
with respect thereto, on which the Agent’s Lien (or to the
extent permitted by the terms of Section 5.16, the Trust’s
Lien) is noted. Furthermore, if Agent reasonably believes that
Certificates of Title are required to be issued in connection with
Non-Certificated Units located in any jurisdiction, then Borrowers
shall promptly (and in any event within 30 days after its receipt
of the respective request) following a request by Agent cause
special counsel or special counsels designated by Administrative
Borrower (which counsel or counsels must be reasonably acceptable
to Agent) to issue, with respect to the laws of a requested
jurisdiction or jurisdictions, an opinion in form reasonably
satisfactory to Agent as to whether Certificates of Title are
required to be issued with respect to any Non-Certificated Units
under the laws of such jurisdiction or jurisdictions. If at any
time Agent, whether based on any such opinion or upon the advice of
Agent’s counsel, notifies Borrowers that Agent in good faith
believe that Certificates of Title are required to be issued with
respect to any Non-Certificated Unit under applicable law and
requests that the actions described in Section 5.16 and in this
Section 5.17(a) be taken,
then each Borrower will, and will cause each of its Subsidiaries to, take all steps in
accordance with Section 5.16 and as may
otherwise be necessary so that, within 90 days from the date of
Agent’s request, a Certificate of Title is issued with
respect thereto, on which the Agent’s Lien (or to the extent
permitted by the terms of Section 5.16, the Trust’s
Lien) is noted. So long as no Event of Default shall have occurred
and be continuing, Agent will request an opinion under this
Section 5.17(a) with
respect to any one jurisdiction more than once in any calendar
year.
(b) At
Agent’s request made after the occurrence and during the
continuation of an Event of Default, each Borrower will, and will
cause each of its Subsidiaries to, cause, within
10 Business Days after the date of Agent’s request (or
any longer period to which Agent agrees in writing), each evidence
of ownership and/or any Rental Fleet Inventory Lease pertaining to
any Non-Certificated Unit to be stamped prominently with the
following legend or a similar legend reasonably acceptable to
Agent:
All
right, title, and interest of [name of applicable Borrower or
Subsidiary] hereunder has been pledged to, and is subject to
the security interests of, Xxxxx Fargo Bank, National Association,
as administrative agent, pursuant to an Amended and Restated Credit
Agreement dated as of April 7, 2014, among Pac-Van, Inc.,
Lone Star Tank Rental Inc., the other borrowers party
thereto, Xxxxx Fargo Bank, National Association, as administrative
agent, and the lenders from time to time party thereto (as amended,
restated, amended and restated or otherwise modified from time to
time) and pursuant to certain loan documents delivered thereunder.
[name of applicable Borrower or
Subsidiary] has no right to transfer its right, title, or
interest hereunder to any party except pursuant to and in
accordance with the provisions of those loan
documents.
5.18 Fixtures.
(a) If any of the
following Rental Fleet Inventory is or could reasonably be expected
to become a fixture, then each Borrower will, and will cause each
of its Subsidiaries to,
use commercially reasonable efforts to duly record in all
applicable filing and/or land-registry offices, and deliver to
Agent, within the following times, fixture filings with respect to
that Rental Fleet Inventory in form and substance reasonably
satisfactory to Agent against the lessee of the applicable and
against the applicable Loan Party: (i) with respect to any
Rental Fleet Inventory Lease to a lessee that is not a Governmental
Authority, all Rental Fleet Inventory under that Rental Inventory
Lease if the aggregate gross book value of that Rental Fleet
Inventory is more than $1,000,000 as of the effective date of that
Rental Fleet Inventory Lease, within 30 days (or any longer
period to which Agent agrees in writing) after the effective date
of that Rental Fleet Inventory Lease; and (ii) any other
Rental Fleet Inventory, promptly following Agent’s request
made after the occurrence and during the continuation of an Event
of Default. To the extent that Borrowers do not comply with the
provisions of this Section 5.18(a), any
Rental Fleet Inventory with respect to which the Borrowers have
failed to satisfy the conditions set forth in this Section 5.18(a) will not
be eligible for borrowing purposes under this Agreement, but no
such failure to comply with respect to any Rental Fleet Inventory
will constitute a Default or an Event of Default under this
Agreement.
(b) If a fixture filing
is required under this Section 5.18 in respect of
any Rental Fleet Inventory, then each Borrower will, and will cause
each of its Subsidiaries to, use commercially
reasonable efforts to cause Collateral Access Agreements from each
owner (if other than the lessee or a Loan Party) and each mortgagee
of the real property on which such Rental Fleet Property is or will
become attached to be executed and delivered to Agent.
5.19 Compliance
with ERISA and the IRC. In addition to and without limiting
the generality of Section 5.8,
(a) comply in all material respects with applicable provisions
of ERISA, the IRC, and all other applicable laws with respect to
all Employee Benefit Plans; (b) without the prior written
consent of Agent and the Required Lenders, not take any action or
fail to take action the result of which could result in a Loan
Party or ERISA Affiliate incurring a material liability to the PBGC
or any other Governmental Authority or to a Multiemployer Plan
(other than to pay contributions or premiums payable in the
ordinary course); (c) allow any facts or circumstances to
exist with respect to one or more Employee Benefit Plans that, in
the aggregate, reasonably could be expected to result in a Material
Adverse Effect, (d) not participate in any prohibited transaction
that could result in other than a de minimis civil penalty excise tax,
fiduciary liability or correction obligation under ERISA, the IRC,
or any other applicable law; (e) operate each Employee Benefit
Plan in such a manner that will not incur any material tax
liability under the IRC (including Section 4980B of the IRC)
or any other applicable law; and (e) furnish to Agent upon
Agent’s written request such additional information about any
Employee Benefit Plan for which any Loan Party or ERISA Affiliate
could reasonably expect to incur any material liability. With
respect to each Pension Plan (other than a Multiemployer Plan)
except as could not reasonably be expected to result in liability
to the Loan Parties, the Loan Parties and the ERISA Affiliates
shall (i) satisfy in full and in a timely manner, without
incurring any late payment or underpayment charge or penalty and
without giving rise to any Lien, all of the contribution and
funding requirements of the IRC, ERISA, and all other applicable
laws, and (ii) pay, or cause to be paid, to the PBGC or any
other Governmental Authority in a timely manner, without incurring
any late payment or underpayment charge or penalty, all premiums
and contributions required pursuant to ERISA or any other
applicable law.
5.20 Post-Closing
Matters. Borrowers shall use commercially reasonable efforts
to deliver to Agent, no later than 60 days after the Closing
Date (or such later date as Agent may agree in writing), a
Collateral Access Agreement for each location or from each
manufacturer, as applicable, for which or from which Agent did not
receive a Collateral Access Agreement on or before the Closing
Date.
6. NEGATIVE
COVENANTS.
Each
Borrower covenants and agrees that, until termination of all of the
Commitments and payment in full of the Obligations:
6.1 Indebtedness.
Each Borrower will not, and will not permit any of its Subsidiaries
to, create, incur, assume, suffer to exist, guarantee, or otherwise
become or remain, directly or indirectly, liable with respect to
any Indebtedness, except for Permitted Indebtedness.
6.2 Liens. Each
Borrower will not, and will not permit any of its Subsidiaries to,
create, incur, assume, or suffer to exist, directly or indirectly,
any Lien on or with respect to any of its assets, of any kind,
whether now owned or hereafter acquired, or any income or profits
therefrom, except for Permitted Liens.
6.3 Restrictions
on Fundamental Changes. Each Borrower will not, and will not
permit any of its Subsidiaries to,
(a) other than in order
to consummate a Permitted Acquisition, enter into any merger,
amalgamation, consolidation, reorganization, or recapitalization,
or reclassify its Equity Interests, except for (i) any merger
or amalgamation between Loan Parties, provided, that a Borrower must
be the surviving or continuing entity of any such merger or
amalgamation to which it is a party, (ii) any merger or
amalgamation between a Loan Party and a Subsidiary of such Loan
Party that is not a Loan Party so long as such Loan Party is the
surviving or continuing entity of any such merger or amalgamation,
and (iii) any merger or amalgamation between Subsidiaries of
any Borrower that are not Loan Parties,
(b) liquidate, wind up,
or dissolve itself (or suffer any liquidation or dissolution),
except for (i) the liquidation, winding up, or dissolution of
non-operating Subsidiaries of any Borrower with nominal assets and
nominal liabilities, (ii) the liquidation, winding up, or
dissolution of a Loan Party (other than any Borrower) or any of its
wholly-owned Subsidiaries so long as all of the assets (including
any interest in any Equity Interests) of such liquidating,
winding-up, or dissolving Loan Party or Subsidiary are transferred
to a Loan Party that is not liquidating, winding up, or dissolving,
or (iii) the liquidation, winding up, or dissolution of a
Subsidiary of any Borrower that is not a Loan Party (other than any
such Subsidiary the Equity Interests of which (or any portion
thereof) is subject to a Lien in favor of Agent) so long as all of
the assets of such liquidating, winding-up, or dissolving
Subsidiary are transferred to a Subsidiary of a Borrower that is
not liquidating, winding up, or dissolving, or
(c) suspend or cease
operating a substantial portion of its or their business, except as
permitted pursuant to clauses (a) or
(b) above or
in connection with a transaction permitted under Section 6.4.
6.4 Disposal of
Assets. Other than Permitted Dispositions or transactions
expressly permitted by Sections 6.3 or 6.9, each Borrower will not,
and will not permit any of its Subsidiaries to, convey, sell,
lease, license, assign, transfer, or otherwise dispose of (or enter
into an agreement to convey, sell, lease, license, assign,
transfer, or otherwise dispose of) any of its or their
assets.
6.5 Nature of
Business. Each Borrower will not, and will not permit any of
its Subsidiaries to, make any change in the nature of its or their
business as described in Schedule 6.5 or acquire
any properties or assets that are not reasonably related to the
conduct of such business activities; provided, that the foregoing
shall not prevent any Borrower and its Subsidiaries from engaging
in any business that is reasonably related or ancillary to its or
their business.
6.6 Prepayments and
Amendments. Each Borrower will not, and will not permit any
of its Subsidiaries to,
(a) Except in
connection with Refinancing Indebtedness permitted by Section 6.1,
(i) optionally prepay,
redeem, defease, purchase, or otherwise acquire any Indebtedness of
any Borrower or its Subsidiaries, other than (A) the
Obligations in accordance with this Agreement; (B) Permitted
Intercompany Advances owing by a Loan Party to GFN, so long as
before and immediately after giving effect to any such payment, (i)
no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (ii) each Borrower is
Solvent, (iii) Excess Availability is greater than or equal to
$21,000,000, and (iv) the Fixed Charge Coverage Ratio, measured on
a trailing-twelve-months’ basis as of the end of the most
recently completed month for which financial statements have been
provided to Agent pursuant to Section 5.1, both actual and
giving pro forma effect to any such payment, will be greater than
1.25 to 1.00; and (C) other Permitted Intercompany Advances in
accordance with the Intercompany Subordination Agreement, as
applicable, or
(ii) make
any payment on account of Indebtedness that has been contractually
subordinated in right of payment to the Obligations if such payment
is not permitted at such time under the subordination terms and
conditions, or
(b) If the effect
thereof, either individually or in the aggregate, could reasonably
be expected to be materially adverse to the interests of the
Lenders, directly or indirectly, amend, modify, or change any of
the terms or provisions of
(i) any agreement,
instrument, document, indenture, or other writing evidencing or
concerning Permitted Indebtedness other than (A) the
Obligations in accordance with this Agreement, (B) Permitted
Intercompany Advances, and (C) Indebtedness permitted under
clauses (c),
(h), (j) and (k) of the definition of
Permitted Indebtedness, or
(ii) the
Governing Documents of any Loan Party or any of its
Subsidiaries.
6.7 Restricted
Payments. Each Borrower will not, and will not permit any of
its Subsidiaries to, make any Restricted Payment (including any
Affiliate Distribution); provided, that, so long as it
is permitted by law, and so long as no Default or Event of Default
shall have occurred and be continuing or would result
therefrom,
(a) [reserved];
(b) [reserved];
(c) [reserved];
(d) any Loan Party may
make any dividend or distribution to
an Affiliate of that Loan Party (other than GFN Manufacturing)
on account of Equity Interests of such Loan Party held by such
Affiliate, so long as such Affiliate is a Loan
Party;
(e) in addition to any
Affiliate Distributions or other dividends permitted under this
Section 6.7,
Pac-Van may declare and pay dividends to GFC on account of Equity
Interests issued to GFC by Pac-Van that constitute
“Series A Cumulative Preferred Stock” (as defined
in Pac-Van’s Governing Documents as in effect on the date of
this Agreement), in an aggregate amount not to exceed $650,000 in
any fiscal year of Pac-Van, so long as before and immediately after
giving effect to the payment of any such dividend, (i) no
Default or Event of Default shall have occurred and be continuing
or would result therefrom, (ii) Pac-Van is Solvent,
(iii) Excess Availability is greater than or equal to
$1,000,000, and (iv) the Fixed Charge Coverage Ratio, measured
on a trailing-twelve-months’ basis as of the end of the most
recently completed month for which financial statements have been
provided to Agent pursuant to Section 5.1, both actual
and giving pro forma effect
to the payment of that dividend, will be greater than 1.25 to
1.00;
(f) in addition to any
Affiliate Distributions or other dividends permitted under this
Section 6.7,
Lone Star may declare and pay dividends to GFC on account of
Equity Interests issued to GFC by Lone Star, in an aggregate
amount not to exceed $725,000 in any fiscal year of Lone Star,
so long as before and immediately after giving effect to the
payment of any such dividend, (i) no Default or Event of
Default shall have occurred and be continuing or would result
therefrom, (ii) Lone Star is Solvent, (iii) Excess
Availability is greater than or equal to $1,000,000, and
(iv) the Fixed Charge Coverage Ratio, measured on a
trailing-twelve-months’ basis as of the end of the most
recently completed month for which financial statements have been
provided to Agent pursuant to Section 5.1, both actual
and giving pro forma effect
to the payment of that dividend, will be greater than 1.25 to
1.00;
(g) any Loan Party may
make any other Affiliate Distribution, so long as before and
immediately after giving effect to the making of any such Affiliate
Distribution, (i) no Default or Event of Default shall have
occurred and be continuing or would result therefrom,
(ii) each Borrower is Solvent, (iii) Excess Availability
is greater than or equal to $21,000,000, and (iv) the Fixed
Charge Coverage Ratio, measured on a trailing-twelve-months’
basis as of the end of the most recently completed month for which
financial statements have been provided to Agent pursuant to
Section 5.1,
both actual and giving pro
forma effect to the making of that Affiliate Distribution,
will be greater than 1.25 to 1.00;
(h) in addition to any
Affiliate Distributions or other dividends permitted under this
Section 6.7,
Pac-Van and Lone Star may declare and pay dividends to GFC on
account of Equity Interests issued to GFC by Pac-Van or
Lone Star that do not constitute “Series A
Cumulative Preferred Stock” (as defined in Pac-Van’s
Governing Documents as in effect on the date of this Agreement or
Lone Star’s Governing Documents as in effect on the date
of this Agreement) in an aggregate amount not to exceed, in any
fiscal year of Borrowers, the lesser of (i) $5,000,000, (ii) the
Series C Preferred Dividend Percentage of the stated
liquidation preference of Series C Preferred Stock of GFC
which is issued and outstanding and (iii) the actual amount of
annual dividends required to be paid in respect of the
Series C Preferred Stock of GFC which is issued and
outstanding, so long as before and immediately after giving effect
to the payment of any such dividend, (1) no Default or Event
of Default shall have occurred and be continuing or would result
therefrom, (2) each of Pac-Van and Lone Star is Solvent,
(3) Excess Availability is greater than or equal to
$5,000,000, (4) the Fixed Charge Coverage Ratio, measured on a
trailing-twelve-months’ basis as of the end of the most
recently completed month for which financial statements have been
provided to Agent pursuant to Section 5.1, both actual
and giving pro forma effect
to the payment of that dividend, will be greater than 1.25 to 1.00
and (5) such dividends are paid no earlier than ten (10) Business
Days prior to the date GFC is required to fund dividends in a like
amount in respect of the Series C Preferred Stock of
GFC;
(i) in addition to any
Affiliate Distributions or other dividends permitted under this
Section 6.7,
Borrowers may declare and pay dividends to GFC on account of Equity
Interests issued to GFC by Pac-Van or Lone Star (that do not
constitute “Series A Cumulative Preferred Stock” (as
defined in Pac-Van’s Governing Documents as in effect on the
date of this Agreement or Lone Star’s Governing
Documents as in effect on the date of this Agreement) in an
aggregate amount not to exceed the outstanding amount of the Royal
Wolf Share Loan, so long as so long as before and immediately after
giving effect to the payment of any such dividend, (1) no
Default or Event of Default shall have occurred and be continuing
or would result therefrom; (2) each Borrower is Solvent;
(3) either (A) Excess Availability is greater than or
equal to $21,000,000, or (B) both (I) Excess Availability
is greater than or equal to $16,000,000, and (II) EBITDA,
measured on a trailing-twelve-months’ basis as of the end of
the most recently completed month for which financial statements
have been provided to Agent pursuant to Section 5.1, is greater
than or equal to $40,000,000; (4) the Fixed Charge Coverage
Ratio, measured on a trailing-twelve-months’ basis as of the
end of the most recently completed month for which financial
statements have been provided to Agent pursuant to Section 5.1, both actual
and giving pro forma effect
to the payment of that dividend, will be greater than 1.25 to 1.00;
and (5) such dividends, to the extent that such dividends are used
to repay the Royal Wolf Share Loan, are paid no earlier than ten
(10) Business Days prior to the date GFC intends to make one or
more repayments in an aggregate like amount in respect of the Royal
Wolf Share Loan;
(j) in addition to any
Affiliate Distributions or other dividends permitted under this
Section 6.7,
Pac-Van and Lone Star may declare and pay dividends to GFC on
account of Equity Interests issued to GFC by Pac-Van or
Lone Star that do not constitute “Series A
Cumulative Preferred Stock” (as defined in Pac-Van’s
Governing Documents as in effect on the date of this Agreement or
Lone Star’s Governing Documents as in effect on the date
of this Agreement) in an aggregate amount not to exceed, in any
fiscal year of Borrowers, the lesser of (i) $6,300,000, and (ii)
the actual amount of annual interest required to be paid in respect
of the GFC 2021 Notes, so long as before and immediately after
giving effect to the payment of any such dividend, (1) no
Default or Event of Default shall have occurred and be continuing
or would result therefrom, (2) each of Pac-Van and
Lone Star is Solvent, (3) Excess Availability is greater
than or equal to $5,000,000, (4) the Fixed Charge Coverage
Ratio, measured on a trailing-twelve-months’ basis as of the
end of the most recently completed month for which financial
statements have been provided to Agent pursuant to Section 5.1, both actual
and giving pro forma effect
to the payment of that dividend, will be greater than 1.25 to 1.00
and (5) such dividends are paid no earlier than ten (10)
Business Days prior to the date GFC is required to fund interest
payments in a like amount in respect of the GFC 2021 Notes;
and
(k) in addition to any
Affiliate Distributions or other dividends permitted under this
Section 6.7,
Borrowers may declare and pay dividends to GFC on account of Equity
Interests issued to GFC by Pac-Van or Lone Star (that do not
constitute “Series A Cumulative Preferred Stock” (as
defined in Pac-Van’s Governing Documents as in effect on the
date of this Agreement or Lone Star’s Governing
Documents as in effect on the date of this Agreement) in an
aggregate amount not to exceed, in any fiscal year of Borrowers,
$10,000,000, so long as so long as before and immediately after
giving effect to the payment of any such dividend, (1) no
Default or Event of Default shall have occurred and be continuing
or would result therefrom; (2) each Borrower is Solvent;
(3) either (A) Excess Availability is greater than or
equal to $21,000,000, or (B) both (I) Excess Availability
is greater than or equal to $16,000,000, and (II) EBITDA,
measured on a trailing-twelve-months’ basis as of the end of
the most recently completed month for which financial statements
have been provided to Agent pursuant to Section 5.1, is greater
than or equal to $40,000,000; (4) the Fixed Charge Coverage
Ratio, measured on a trailing-twelve-months’ basis as of the
end of the most recently completed month for which financial
statements have been provided to Agent pursuant to Section 5.1, both actual
and giving pro forma effect
to the payment of that dividend, will be greater than 1.25 to 1.00;
and (5) such dividends, to the extent that such dividends are used
by GFC to make additional Investments in Royal Wolf, are paid no
earlier than ten (10) Business Days prior to the date GFC
intends to make one or more such additional Investments in Royal
Wolf in an aggregate like amount.
6.8 Accounting
Methods. Each Borrower will not, and will not permit any of
its Subsidiaries to, modify or change its fiscal year or its method
of accounting (other than as may be required to conform to
GAAP).
6.9 Investments.
Each Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, make or acquire any Investment or incur
any liabilities (including contingent obligations) for or in
connection with any Investment except for Permitted
Investments.
6.10 Transactions
with Affiliates. Each Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, enter into or
permit to exist any transaction with any Affiliate of any Borrower
or any of its Subsidiaries except for :
(a) transactions (other
than the payment of management, consulting, monitoring, or advisory
fees) between such Borrower or its Subsidiaries, on the one hand,
and any Affiliate of such Borrower or its Subsidiaries, on the
other hand, so long as (i) such transactions are fully
disclosed to Agent prior to the consummation thereof, if such
transactions (A) involve one or more payments by such Borrower
or its Subsidiaries in excess of $500,000 for any single
transaction or series of related transactions, and (B) are
transactions other than (1) transactions between Pac-Van or
Lone Star, on the one hand, and Southern Frac, on the
other hand, involving the acquisition by Pac-Van or Lone Star
of Inventory or Equipment from Southern Frac, or
(2) transactions between Pac-Van and Lone Star involving
the sale or other transfer of Inventory or Equipment from one such
Borrower to the other, (ii) such transactions are no less
favorable, taken as a whole, to such Borrower or its Subsidiaries,
as applicable, than would be obtained in an arm’s length
transaction with a non-Affiliate, and (iii) if such
transactions involve the sale or other transfer of Inventory or
Equipment from a Borrower or its Subsidiaries to another Borrower
or its Subsidiaries, no Partition Event has occurred or is
continuing,
(b) so long as it has
been approved by such Borrower’s or its applicable
Subsidiary’s board of directors (or comparable governing
body) in accordance with applicable law, any indemnity provided for
the benefit of directors (or comparable managers) of such Borrower
or its applicable Subsidiary,
(c) so long as it has
been approved by such Borrower’s or its applicable
Subsidiary’s board of directors (or comparable governing
body) in accordance with applicable law, the payment of reasonable
compensation, severance, or employee benefit arrangements to
employees, officers, and outside directors of such Borrower and its
Subsidiaries in the ordinary course of business and consistent with
industry practice,
(d) transactions
permitted by Section 6.3 or
Section 6.7,
or any Permitted Intercompany Advance, and
(e) the payment,
pursuant to and in accordance with the Management Agreement, to GFC
of the “Management Fee” under and as defined in the
Management Agreement, so long as so long as before and immediately
after giving effect to the payment of any such dividend,
(1) no Default or Event of Default shall have occurred and be
continuing or would result therefrom; (2) each Borrower is
Solvent; (3) either (A) Excess Availability is greater
than or equal to $21,000,000, or (B) both (I) Excess
Availability is greater than or equal to $16,000,000, and
(II) EBITDA, measured on a trailing-twelve-months’ basis
as of the end of the most recently completed month for which
financial statements have been provided to Agent pursuant to
Section 5.1,
is greater than or equal to $40,000,000; and (4) the Fixed
Charge Coverage Ratio, measured on a trailing-twelve-months’
basis as of the end of the most recently completed month for which
financial statements have been provided to Agent pursuant to
Section 5.1,
both actual and giving pro
forma effect to such payment, will be greater than 1.25 to
1.00.
6.11 Use
of Proceeds. Each Borrower will not, and will not permit any
of its Subsidiaries to, use the proceeds of any loan made hereunder
for any purpose other than (a) on the Closing Date,
(i) to pay a portion of the consideration payable in
connection with the consummation of the Lone Star Acquisition,
and (ii) to pay the fees, costs, and expenses incurred in
connection with this Agreement, the other Loan Documents, and the
transactions contemplated hereby and thereby, and
(b) thereafter, consistent with the terms and conditions
hereof, for their lawful and permitted purposes (including
(i) that no part of the proceeds of the loans made to
Borrowers will be used to purchase or carry any such Margin Stock
or to extend credit to others for the purpose of purchasing or
carrying any such Margin Stock or for any purpose that violates the
provisions of Regulation T, U, or X of the Board of Governors,
(ii) that no part of the proceeds of the loans made to
Borrowers will be used to finance any Acquisition of Real Property
that is (or is intended to be) the subject of any Permitted Real
Property Financing Indebtedness), and (iii) that no part of
the proceeds of the loans made to Borrowers will be used (or lent,
contributed, or otherwise made available to any other Person to be
used) to fund any activities or business of or with any
Sanctioned Person or any Sanctioned Entity or in any other manner
that would result in a violation of Sanctions by any Person
(including any Person participating in the loans made to Borrowers,
whether as underwriter, advisor, investor, or
otherwise).
6.12 Limitation
on Issuance of Equity Interests. Except for the issuance or
sale of Qualified Equity Interests by Pac-Van, each Borrower will
not, and will not permit any of its Subsidiaries to, issue or sell
or enter into any agreement or arrangement for the issuance or sale
of any of its Equity Interests.
6.13 Inventory
or Equipment with Bailees. Each Borrower will not, and will
not permit any of its Subsidiaries to, store its Inventory or
Equipment at any time with a bailee, warehouseman, or similar party
unless such bailee, warehouseman, or similar party has provided
Agent a Collateral Access Agreement in form and substance
satisfactory to Agent.
6.14 Rental
Fleet Inventory Transfers. Each Borrower will not, and will
not permit any of its Subsidiaries to, transfer and/or re-classify
Rental Fleet Inventory with a net book value in excess of $750,000
in the aggregate to Other Fleet Inventory in any fiscal
quarter.
6.15 Employee
Benefits.
(a) Terminate, or
permit any ERISA Affiliate to terminate, any Pension Plan in a
manner, or take any other action with respect to any Plan, which
could reasonably be expected to result in any liability of any Loan
Party or ERISA Affiliate to the PBGC or any other Governmental
Authority.
(b) Fail to make, or
permit any ERISA Affiliate to fail to make, full payment when due
of all amounts which, under the provisions of any Benefit Plan,
agreement relating thereto or applicable law, any Loan Party or
ERISA Affiliate is required to pay if such failure could reasonably
be expected to have a Material Adverse Effect or, with respect to
any Canadian Pension Plan, such failure gives rise to a
Lien.
(c) Permit to exist, or
allow any ERISA Affiliate to permit to exist, any accumulated
funding deficiency within the meaning of Section 302 of ERISA
or Section 412 of the IRC, whether or not waived, with respect
to any Plan which exceeds $500,000 with respect to all Pension
Plans in the aggregate.
(d) Acquire, or permit
any ERISA Affiliate to acquire, an interest in any Person that
causes such Person to become an ERISA Affiliate with respect to a
Loan Party or with respect to any ERISA Affiliate if such Person
sponsors, maintains or contributes to, or at any time in the
six-year period preceding such acquisition has sponsored,
maintained, or contributed to, (i) any Pension Plan or
(ii) any Multiemployer Plan.
(e) Contribute to or
assume an obligation to contribute to, or permit any ERISA
Affiliate to contribute to or assume an obligation to contribute
to, any Multiemployer Plan not set forth on Schedule 4.10 or any
Canadian Pension Plan that provides benefits on a defined-benefit
basis.
(f) Amend, or permit
any ERISA Affiliate to amend, a Pension Plan resulting in a
material increase in current liability such that a Loan Party or
ERISA Affiliate is required to provide security to such Plan under
the IRC or other applicable law.
6.16 CSSI
as Dormant Subsidiary. Pac-Van will not permit CSSI to have
any material liabilities, own any material assets, or engage in any
operations or business activity.
7. FINANCIAL
COVENANTS.
Each
Borrower covenants and agrees that, until termination of all of the
Commitments and payment in full of the Obligations, Borrowers
will:
(a) Fixed Charge Coverage Ratio. Have a
Fixed Charge Coverage Ratio, measured on a calendar-month-end basis
for the 12-calendar-month period then ended, of at least 1.25 to
1.00.
(b) Rental Fleet Utilization Ratio. Have a
Rental Fleet Utilization Ratio, measured on a calendar-month-end
basis for the three-month period then ended (and calculated as a
monthly average by dividing the sum of the Rental Fleet Utilization
Ratio at the end of each calendar month during such period by the
number of calendar months ending during such period), of at least
0.60 to 1.00.
8. EVENTS
OF DEFAULT.
Any one
or more of the following events shall constitute an event of
default (each, an “Event of Default”) under
this Agreement:
8.1 Payments. If
Borrowers fail to pay when due and payable, or when declared due
and payable, (a) all or any portion of the Obligations
consisting of interest, fees, or charges due the Lender Group,
reimbursement of Lender Group Expenses, or other amounts (other
than any portion thereof constituting principal) constituting
Obligations (including any portion thereof that accrues after the
commencement of an Insolvency Proceeding, regardless of whether
allowed or allowable in whole or in part as a claim in any such
Insolvency Proceeding), and such failure continues for a period of
3 Business Days, (b) subject to Section 2.2(b), all or any
portion of the principal of the Loans, or (c) any amount
payable to Issuing Bank in reimbursement of any drawing under a
Letter of Credit;
8.2 Covenants.
If any Loan Party or any of its Subsidiaries:
(a) fails to perform or
observe any covenant or other agreement contained in any of
(i) Sections 5.1, 5.2, 5.3 (solely if any Loan Party
is not in good standing in its jurisdiction of organization),
5.6, 5.7 (solely if any Borrower
refuses to allow Agent or its representatives or agents to visit
any Borrower’s or its Subsidiaries’ properties, inspect
its assets or books or records, examine and make copies of its
books and records, or discuss Borrowers’ or its
Subsidiaries’ affairs, finances, and accounts with officers
and employees of any Borrower or its Subsidiaries), 5.10, 5.11, 5.13, 5.14, 5.15 (except as otherwise
expressly provided therein), 5.16 (except as otherwise
expressly provided therein), 5.17 (except as otherwise
expressly provided therein), or 5.18 (except as otherwise
expressly provided therein) of this Agreement,
(ii) Section 6 of this
Agreement, (iii) Section 7 of this
Agreement, (iv) Section 7 of the U.S. Guaranty and
Security Agreement, or (v) Section 7 of the
Canadian Guaranty and Security Agreement;
(b) fails to perform or
observe any covenant or other agreement contained in any of
Sections 5.3 (other
than if any Loan Party is not in good standing in its jurisdiction
of organization), 5.4, 5.5, 5.8, and 5.12 of this Agreement and such
failure continues for a period of 10 days after the earlier of
(i) the date on which such failure shall first become known to
any officer of any Borrower or (ii) the date on which written
notice thereof is given to Borrowers by Agent; or
(c) fails to perform or
observe any covenant or other agreement contained in this
Agreement, or in any of the other Loan Documents, in each case,
other than any such covenant or agreement that is the subject of
another provision of this Section 8 (in which event
such other provision of this Section 8 shall govern),
and such failure continues for a period of 30 days after the
earlier of (i) the date on which such failure shall first
become known to any officer of any Borrower or (ii) the date
on which written notice thereof is given to Borrowers by
Agent;
8.3 Judgments.
If one or more judgments, orders, or awards for the payment of
money involving an aggregate amount of $3,000,000, or more (except
to the extent fully covered (other than to the extent of customary
deductibles) by insurance pursuant to which the insurer has not
denied coverage) is entered or filed against a Loan Party or any of
its Subsidiaries, or with respect to any of their respective
assets, and either (a) there is a period of 30 consecutive
days at any time after the entry of any such judgment, order, or
award during which (1) the same is not discharged, satisfied,
vacated, or bonded pending appeal, or (2) a stay of enforcement
thereof is not in effect, or (b) enforcement proceedings are
commenced upon such judgment, order, or award;
8.4 Voluntary
Bankruptcy, etc. If an Insolvency Proceeding
is commenced by a Loan Party or any of its
Subsidiaries;
8.5 Involuntary
Bankruptcy, etc. If an Insolvency Proceeding
is commenced against a Loan Party or any of its Subsidiaries and
any of the following events occur: (a) such Loan Party or such
Subsidiary consents to the institution of such Insolvency
Proceeding against it, (b) the petition commencing the
Insolvency Proceeding is not timely controverted, (c) the
petition or notice commencing the Insolvency Proceeding is not
dismissed within 60 calendar days of the date of the filing
thereof, (d) an interim trustee, a trustee, an interim
receiver, a receiver, a receiver-manager, a monitor, or any similar
Person is appointed to take possession of all or any substantial
portion of the properties or assets of, or to operate all or any
substantial portion of the business of, such Loan Party or its
Subsidiary, or (e) an order for relief shall have been issued
or entered therein;
8.6 Default Under Other
Agreements. If there is (a) a default in one or more
agreements to which a Loan Party or any of its Subsidiaries is a
party with one or more third Persons relative to a Loan
Party’s or any of its Subsidiaries’ Indebtedness
involving an aggregate amount of $3,000,000 or more, and such
default (i) occurs at the final maturity of the obligations
thereunder, or (ii) results in a right by such third Person,
irrespective of whether exercised, to accelerate the maturity of
such Loan Party’s or its Subsidiary’s obligations
thereunder;
8.7 Representations,
etc. If any
warranty, representation, certificate, statement, or Record made
herein or in any other Loan Document or delivered in writing to
Agent or any Lender in connection with this Agreement or any other
Loan Document proves to be untrue in any material respect (except
that such materiality qualifier shall not be applicable to any
representations and warranties that already are qualified or
modified by materiality in the text thereof) as of the date of
issuance or making or deemed making thereof;
8.8 Guaranty. If
the obligation of any Guarantor under the guaranty contained in the
applicable Guaranty and Security Agreement is limited or terminated
by operation of law or by such Guarantor (other than in accordance
with the terms of this Agreement);
8.9 Security
Documents. If any Guaranty and Security Agreement or any
other Loan Document that purports to create a Lien, shall, for any
reason, fail or cease to create a valid and perfected and, except
to the extent of Permitted Liens which are non-consensual Permitted
Liens, permitted purchase money Liens or the interests of lessors
under Capital Leases, first-priority Lien on the Collateral covered
thereby, except
(a) as a result of a disposition of the applicable
Collateral in a transaction permitted under this
Agreement,
or (b) as the result of an action or failure to act on the
part of Agent;
8.10 Loan
Documents. The validity or enforceability of any Loan
Document shall at any time for any reason
(other than solely as the result of an action or failure to act on
the part of Agent) be declared to be null and void, or a
proceeding shall be commenced by a Loan Party or its Subsidiaries,
or by any Governmental Authority having jurisdiction over a Loan
Party or its Subsidiaries, seeking to establish the invalidity or
unenforceability thereof, or a Loan Party or its Subsidiaries shall
deny that such Loan Party or its Subsidiaries has any liability or
obligation purported to be created under any Loan
Document;
8.11 Change
of Control. A Change of Control shall occur, whether
directly or indirectly;
8.12 ERISA.
The occurrence of any of the following events: (a) any Loan Party
or ERISA Affiliate fails to make full payment when due of all
amounts which any Loan Party or ERISA Affiliate is required to pay
as contributions, installments, or otherwise to or with respect to
a Pension Plan or Multiemployer Plan, and such failure could
reasonably be expected to result in liability in excess of $500,000
or any Lien arises with respect to a Canadian Pension Plan (other
than for regular contributions which are not past due); (b) an
accumulated funding deficiency or funding shortfall in excess of
$500,000 occurs or exists, whether or not waived, with respect to
any Pension Plan, individually or in the aggregate; (c) a
Notification Event or Termination Event, in any event which could
reasonably be expected to result in liability in excess of
$500,000, either individually or in the aggregate; or (d) any
Loan Party or ERISA Affiliate completely or partially withdraws
from one or more Multiemployer Plans and incurs Withdrawal
Liability in excess of $500,000 in the aggregate, or fails to make
any Withdrawal Liability payment when due;
8.13 Required
Series C Preferred Equity Contributions. The failure of Pac-Van to receive a
cash equity contribution (within five (5) Business Days following
the date of any issuance by GFC of Series C Preferred Stock of
GFC) equal to an amount not less than 80% of the stated liquidation
preference of any shares of Series C Preferred Stock of GFC
issued by GFC.
8.14 Required
GFC 2021 Notes Equity Contributions. The failure of the Borrowers to
receive a cash equity contribution from GFC, within five (5)
Business Days following the date of any receipt by GFC of any
proceeds of the GFC 2021 Notes, in an aggregate amount equal
to an amount not less than 80% of those proceeds received by
GFC.
9. RIGHTS
AND REMEDIES.
9.1 Rights and
Remedies. Upon the occurrence and during the continuation of
an Event of Default, Agent may, and, at the instruction of the
Required Lenders, shall (in each case under clauses (a) or
(b) by written
notice to Borrowers, and in each case subject to the Intercreditor
Provisions), in addition to any other rights or remedies provided
for hereunder or under any other Loan Document or by applicable
law, do any one or more of the following:
(a) (i) declare
the principal of, and any and all accrued and unpaid interest and
fees in respect of, the Loans and all other Obligations (other than
the Bank Product Obligations), whether evidenced by this Agreement
or by any of the other Loan Documents to be immediately due and
payable, whereupon the same shall become and be immediately due and
payable and Borrowers shall be obligated to repay all of such
Obligations in full, without presentment, demand, protest, or
further notice or other requirements of any kind, all of which are
hereby expressly waived by each Borrower, and (ii) direct
Borrowers to provide (and Borrowers agree that upon receipt of such
notice Borrowers will provide) Letter of Credit Collateralization
to Agent to be held as security for Borrowers’ reimbursement
obligations for drawings that may subsequently occur under issued
and outstanding Letters of Credit;
(b) declare the
Commitments terminated, whereupon the Commitments shall immediately
be terminated together with (i) any obligation of any
Revolving Lender to make Revolving Loans, (ii) the obligation
of the Swing Lender to make Swing Loans, and (iii) the
obligation of Issuing Bank to issue Letters of Credit;
and
(c) exercise all other
rights and remedies available to Agent or the Lenders under the
Loan Documents, under applicable law, or in equity.
The
foregoing to the contrary notwithstanding, upon the occurrence of
any Event of Default described in Section 8.4 or
Section 8.5,
in addition to the remedies set forth above, without any notice to
Borrowers or any other Person or any act by the Lender Group, the
Commitments shall automatically terminate and the Obligations
(other than the Bank Product Obligations), inclusive of the
principal of, and any and all accrued and unpaid interest and fees
in respect of, the Loans and all other Obligations (other than the
Bank Product Obligations), whether evidenced by this Agreement or
by any of the other Loan Documents, shall automatically become and
be immediately due and payable and Borrowers shall automatically be
obligated to repay all of such Obligations in full (including
Borrowers being obligated to provide (and Borrowers agree that they
will provide) (1) Letter of Credit Collateralization to Agent to be
held as security for Borrowers’ reimbursement obligations in
respect of drawings that may subsequently occur under issued and
outstanding Letters of Credit and (2) Bank Product
Collateralization to be held as security for Borrowers’ or
their Subsidiaries’ obligations in respect of outstanding
Bank Products), without presentment, demand, protest, or notice or
other requirements of any kind, all of which are expressly waived
by Borrowers.
9.2 Remedies
Cumulative. The rights and remedies of the Lender Group
under this Agreement, the other Loan Documents, and all other
agreements shall be cumulative. The Lender Group shall have all
other rights and remedies not inconsistent herewith as provided
under the Code, by law, or in equity. No exercise by the Lender
Group of one right or remedy shall be deemed an election, and no
waiver by the Lender Group of any Event of Default shall be deemed
a continuing waiver. No delay by the Lender Group shall constitute
a waiver, election, or acquiescence by it.
10. WAIVERS;
INDEMNIFICATION.
10.1 Demand;
Protest; etc. Each Borrower waives demand, protest, notice
of protest, notice of default or dishonor, notice of payment and
nonpayment, nonpayment at maturity, release, compromise,
settlement, extension, or renewal of documents, instruments,
chattel paper, and guarantees at any time held by the Lender Group
on which any Borrower may in any way be liable.
10.2 The
Lender Group’s Liability for Collateral. Each Borrower
hereby agrees that: (a) so long as Agent complies with its
obligations, if any, under the Code or the PPSA, the Lender Group
shall not in any way or manner be liable or responsible for:
(i) the safekeeping of the Collateral, (ii) any loss or
damage thereto occurring or arising in any manner or fashion from
any cause, (iii) any diminution in the value thereof, or
(iv) any act or default of any carrier, warehouseman, bailee,
forwarding agency, or other Person, and (b) all risk of loss,
damage, or destruction of the Collateral shall be borne by
Borrowers.
10.3 Indemnification.
Each Borrower shall pay, indemnify, defend, and hold the
Agent-Related Persons, the Lender-Related Persons, and each
Participant (each, an “Indemnified Person”)
harmless (to the fullest extent permitted by law) from and against
any and all claims, demands, suits, actions, investigations,
proceedings, liabilities, fines, costs, penalties, and damages, and
all reasonable fees and disbursements of attorneys, experts, or
consultants and all other costs and expenses actually incurred in
connection therewith or in connection with the enforcement of this
indemnification (as and when they are incurred and irrespective of
whether suit is brought), at any time asserted against, imposed
upon, or incurred by any of them (a) in connection with or as
a result of or related to the execution and delivery (provided that Borrowers shall
not be liable for costs and expenses (including attorneys’
fees) of any Lender (other than Xxxxx Fargo) incurred in advising,
structuring, drafting, reviewing, administering or syndicating the
Loan Documents), enforcement, performance, or administration
(including any restructuring or workout with respect hereto) of
this Agreement, any of the other Loan Documents, or the
transactions contemplated hereby or thereby or the monitoring of
Borrowers’ and their Subsidiaries’ compliance with the
terms of the Loan Documents (provided, that the
indemnification in this clause (a) shall not
extend to (i) disputes solely between or among the Lenders
that do not involve any acts or omissions of any Loan
Party, or (ii) disputes solely between or among the
Lenders and their respective Affiliates that do not involve any
acts or omissions of any Loan Party; it being understood and
agreed that the indemnification in this clause (a) shall
extend to Agent (but not the Lenders) relative to disputes between
or among Agent on the one hand, and one or more Lenders, or one or
more of their Affiliates, on the other hand, or (iii) any
Taxes or any costs attributable to Taxes, which shall be governed
by Section 16), (b) with
respect to any actual or prospective investigation,
litigation, or proceeding related to this Agreement, any other Loan
Document, the making of any Loans or issuance of any Letters
of Credit hereunder, or the use of the proceeds of the Loans
or the Letters of Credit provided hereunder (irrespective of
whether any Indemnified Person is a party thereto), or any act,
omission, event, or circumstance in any manner related thereto, and
(c) in connection with or arising out of any presence or
release of Hazardous Materials at, on, under, to or from any assets
or properties owned, leased or operated by any Borrower or any of
its Subsidiaries or any Environmental Actions, Environmental
Liabilities or Remedial Actions related in any way to any such
assets or properties of any Borrower or any of its Subsidiaries
(each and all of the foregoing, the “Indemnified
Liabilities”). The foregoing to the contrary
notwithstanding, no Borrower shall have any obligation to any
Indemnified Person under this Section 10.3 with respect
to any Indemnified Liability that a court of competent jurisdiction
finally determines to have resulted from the gross negligence or
willful misconduct of such Indemnified Person or its officers,
directors, employees, attorneys, or agents. This provision shall
survive the termination of this Agreement and the repayment in full
of the Obligations. If any Indemnified Person makes any payment to
any other Indemnified Person with respect to an Indemnified
Liability as to which Borrowers were required to indemnify the
Indemnified Person receiving such payment, the Indemnified Person
making such payment is entitled to be indemnified and reimbursed by
Borrowers with respect thereto. WITHOUT LIMITATION, THE FOREGOING INDEMNITY
SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED
LIABILITIES WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF
ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY
OTHER PERSON.
11. NOTICES.
Unless
otherwise provided in this Agreement, all notices or demands
relating to this Agreement or any other Loan Document shall be in
writing and (except for financial statements and other
informational documents which may be sent by first-class mail,
postage prepaid) shall be personally delivered or sent by
registered or certified mail (postage prepaid, return receipt
requested), overnight courier, electronic mail (at such email
addresses set forth below or as a party may designate in accordance
herewith), or telefacsimile. In the case of notices or demands to
any Borrower or Agent, as the case may be, they shall be sent to
the respective address set forth below:
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If to any Borrower:
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c/o Pac-Van, Inc. 0000 Xxxxxxxx Xxxx XxxxxXxxxxxxxxxxx,
Xxxxxxx 00000 Attn: Xxxxxxxx X. MourouzisFax No.: (000) 000-0000
Email:
xxxxxxxxxx@xxxxxx.xxx
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with copies to:
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General Finance Corporation
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxxxx X. Xxxxxx, General CounselFax No.: (000)
000-0000
Email:
xxxxxxx@xxxxxxxxxxxxxx.xxx
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If to Agent:
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Xxxxx Fargo Bank, National Association10 X. Xxxxxx Drive,
13th FloorMAC N8405-131Chicago, Illinois 60606Attn: Loan
Portfolio Manager (Pac-Van)Fax No.: (000) 000-0000
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with copies to:
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McGuireWoods LLP77 Xxxx Xxxxxx Xxxxx, Xxxxx 0000Xxxxxxx,
Xxxxxxxx 00000
Attn: Xxxxxx X. PerzekFax No.: (000) 000-0000
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Any
party hereto may change the address at which they are to receive
notices hereunder, by notice in writing in the foregoing manner
given to the other party. All notices or demands sent in accordance
with this Section 11, shall be
deemed received on the earlier of the date of actual receipt or 3
Business Days after the deposit thereof in the mail; provided, that (a) notices
sent by overnight courier service shall be deemed to have been
given when received, (b) notices by facsimile shall be deemed
to have been given when sent (except that, if not given during
normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next Business Day for
the recipient) and (c) notices by electronic mail shall be
deemed received upon the sender’s receipt of an
acknowledgment from the intended recipient (such as by the
“return receipt requested” function, as available,
return email or other written acknowledgment).
12. CHOICE
OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE
PROVISION.
(a) THE
VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS
EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN
RESPECT OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, THE RIGHTS OF
THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING
HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO, AND ANY
CLAIMS, CONTROVERSIES OR DISPUTES ARISING HEREUNDER OR THEREUNDER
OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS.
(b) THE
PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION
WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF XXXX, STATE
OF ILLINOIS; PROVIDED,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER
PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF
ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE
SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH BORROWER AND EACH MEMBER OF THE LENDER
GROUP WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY
RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS
OR TO OBJECT TO VENUE TO THE EXTENT
ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS
SECTION
12(b).
(c) TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH BORROWER AND
EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE
RIGHTS, IF ANY, TO A JURY TRIAL OF ANY CLAIM, CONTROVERSY, DISPUTE
OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT
OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS
(EACH A “CLAIM”).
EACH BORROWER AND EACH MEMBER OF
THE LENDER GROUP REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND
EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
(d) EACH
BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN
THE COUNTY OF XXXX AND THE STATE OF ILLINOIS, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT SHALL AFFECT ANY RIGHT THAT AGENT MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.
(e) NO
CLAIM MAY BE MADE BY ANY LOAN PARTY AGAINST AGENT, THE SWING
LENDER, ANY OTHER LENDER, ISSUING BANK, OR ANY AFFILIATE, DIRECTOR,
OFFICER, EMPLOYEE, COUNSEL, REPRESENTATIVE, AGENT, OR
ATTORNEY-IN-FACT OF ANY OF THEM FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES IN RESPECT
OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF
LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION THEREWITH, AND EACH
LOAN PARTY HEREBY WAIVES, RELEASES, AND AGREES NOT TO XXX UPON ANY
CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT
KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
(f) IN
THE EVENT ANY LEGAL PROCEEDING IS FILED IN A COURT OF THE STATE OF
CALIFORNIA (THE “COURT”) BY OR AGAINST ANY
PARTY HERETO IN CONNECTION WITH ANY CLAIM AND THE WAIVER SET FORTH
IN CLAUSE (c) ABOVE IS
NOT ENFORCEABLE IN SUCH PROCEEDING, THE PARTIES HERETO AGREE AS
FOLLOWS:
(i) WITH
THE EXCEPTION OF THE MATTERS SPECIFIED IN SUBCLAUSE (ii) BELOW,
ANY CLAIM SHALL BE DETERMINED BY A GENERAL REFERENCE PROCEEDING IN
ACCORDANCE WITH THE PROVISIONS OF CALIFORNIA CODE OF CIVIL
PROCEDURE SECTIONS 638 THROUGH 645.1. THE
PARTIES INTEND THIS GENERAL REFERENCE AGREEMENT TO BE SPECIFICALLY
ENFORCEABLE. VENUE FOR THE
REFERENCE PROCEEDING SHALL BE IN THE COUNTY OF LOS ANGELES,
CALIFORNIA.
(ii) THE
FOLLOWING MATTERS SHALL NOT BE SUBJECT TO A GENERAL REFERENCE
PROCEEDING: (A) NON-JUDICIAL FORECLOSURE OF ANY SECURITY
INTERESTS IN REAL OR PERSONAL PROPERTY, (B) EXERCISE OF
SELF-HELP REMEDIES (INCLUDING SET-OFF OR RECOUPMENT),
(C) APPOINTMENT OF A RECEIVER, AND (D) TEMPORARY,
PROVISIONAL, OR ANCILLARY REMEDIES (INCLUDING WRITS OF ATTACHMENT,
WRITS OF POSSESSION, TEMPORARY RESTRAINING ORDERS, OR PRELIMINARY
INJUNCTIONS). THIS AGREEMENT
DOES NOT LIMIT THE RIGHT OF ANY PARTY TO EXERCISE OR OPPOSE ANY OF
THE RIGHTS AND REMEDIES DESCRIBED IN CLAUSES (A) THROUGH
(D) AND
ANY SUCH EXERCISE OR OPPOSITION DOES NOT WAIVE THE RIGHT OF ANY
PARTY TO PARTICIPATE IN A REFERENCE PROCEEDING PURSUANT TO THIS
AGREEMENT WITH RESPECT TO ANY OTHER MATTER.
(iii) UPON
THE WRITTEN REQUEST OF ANY PARTY, THE PARTIES SHALL SELECT A SINGLE
REFEREE, WHO SHALL BE A RETIRED JUDGE OR JUSTICE.
IF THE PARTIES DO NOT AGREE UPON A
REFEREE WITHIN 10 DAYS OF SUCH WRITTEN REQUEST, THEN, ANY PARTY
SHALL HAVE THE RIGHT TO REQUEST THE COURT TO APPOINT A REFEREE
PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION
640(B). THE REFEREE SHALL BE
APPOINTED TO SIT WITH ALL OF THE POWERS PROVIDED BY LAW.
PENDING APPOINTMENT OF THE REFEREE,
THE COURT SHALL HAVE THE POWER TO ISSUE TEMPORARY OR PROVISIONAL
REMEDIES.
(iv) EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE REFEREE SHALL
DETERMINE THE MANNER IN WHICH THE REFERENCE PROCEEDING IS CONDUCTED
INCLUDING THE TIME AND PLACE OF HEARINGS, THE ORDER OF PRESENTATION
OF EVIDENCE, AND ALL OTHER QUESTIONS THAT ARISE WITH RESPECT TO THE
COURSE OF THE REFERENCE PROCEEDING. ALL PROCEEDINGS AND HEARINGS CONDUCTED BEFORE
THE REFEREE, EXCEPT FOR TRIAL, SHALL BE CONDUCTED WITHOUT A COURT
REPORTER, EXCEPT WHEN ANY PARTY SO REQUESTS A COURT REPORTER AND A
TRANSCRIPT IS ORDERED, A COURT REPORTER SHALL BE USED AND THE
REFEREE SHALL BE PROVIDED A COURTESY COPY OF THE TRANSCRIPT.
THE PARTY MAKING SUCH REQUEST SHALL
HAVE THE OBLIGATION TO ARRANGE FOR AND PAY THE COSTS OF THE COURT
REPORTER, PROVIDED
THAT SUCH COSTS, ALONG WITH THE
REFEREE’S FEES, SHALL ULTIMATELY BE BORNE BY THE PARTY WHO
DOES NOT PREVAIL, AS DETERMINED BY THE REFEREE.
(v) THE
REFEREE MAY REQUIRE ONE OR MORE PREHEARING CONFERENCES.
THE PARTIES HERETO SHALL BE
ENTITLED TO DISCOVERY, AND THE REFEREE SHALL OVERSEE DISCOVERY IN
ACCORDANCE WITH THE RULES OF DISCOVERY, AND SHALL ENFORCE ALL
DISCOVERY ORDERS IN THE SAME MANNER AS ANY TRIAL COURT JUDGE IN
PROCEEDINGS AT LAW IN THE STATE OF CALIFORNIA.
(vi) THE
REFEREE SHALL APPLY THE RULES OF EVIDENCE APPLICABLE TO PROCEEDINGS
AT LAW IN THE STATE OF CALIFORNIA AND SHALL DETERMINE ALL ISSUES IN
ACCORDANCE WITH CALIFORNIA SUBSTANTIVE AND PROCEDURAL LAW.
THE REFEREE SHALL BE EMPOWERED TO
ENTER EQUITABLE AS WELL AS LEGAL RELIEF AND RULE ON ANY MOTION
WHICH WOULD BE AUTHORIZED IN A TRIAL, INCLUDING MOTIONS FOR DEFAULT
JUDGMENT OR SUMMARY JUDGMENT. THE REFEREE SHALL REPORT HIS OR HER DECISION,
WHICH REPORT SHALL ALSO INCLUDE FINDINGS OF FACT AND CONCLUSIONS OF
LAW. THE REFEREE SHALL ISSUE
A DECISION AND PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE,
SECTION 644, THE REFEREE’S DECISION SHALL BE ENTERED BY THE
COURT AS A JUDGMENT IN THE SAME MANNER AS IF THE ACTION HAD BEEN
TRIED BY THE COURT. THE
FINAL JUDGMENT OR ORDER FROM ANY APPEALABLE DECISION OR ORDER
ENTERED BY THE REFEREE SHALL BE FULLY APPEALABLE AS IF IT HAS BEEN
ENTERED BY THE COURT.
(vii) THE
PARTIES RECOGNIZE AND AGREE THAT ALL CLAIMS RESOLVED IN A GENERAL
REFERENCE PROCEEDING PURSUANT HERETO WILL BE DECIDED BY A REFEREE
AND NOT BY A JURY. AFTER
CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL
OF THEIR OWN CHOICE, EACH PARTY HERETO KNOWINGLY AND VOLUNTARILY
AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION
SHALL APPLY TO ANY DISPUTE BETWEEN THEM THAT ARISES OUT OF OR IS
RELATED TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS.
13. ASSIGNMENTS
AND PARTICIPATIONS; SUCCESSORS.
13.1 Assignments
and Participations.
(a) Subject to
the conditions set forth in clause (a)(ii) below
and the Intercreditor Provisions, any Lender may assign and
delegate all or any portion of its rights and duties under the Loan
Documents (including the Obligations owed to it and its
Commitments) to one or more assignees (each, an “Assignee”), with the
prior written consent (such consent not be unreasonably withheld or
delayed) of:
(A) Borrowers;
provided, that no
consent of Borrowers shall be required (1) if an Event of
Default has occurred and is continuing, or (2) in connection with
an assignment to a Person that is a Lender or an Affiliate (other
than natural persons) of a Lender; provided further, that
Borrowers shall be deemed to have consented to a proposed
assignment unless they object thereto by written notice to Agent
within 5 Business Days after having received notice thereof;
and
(B) Agent, Swing
Lender, and Issuing Bank.
(i) Assignments shall
be subject to the following additional conditions:
(A) no assignment may
be made to a natural person,
(B) no assignment may
be made to a Loan Party or an Affiliate of a Loan
Party,
(C) the amount of the
Commitments and the other rights and obligations of the assigning
Lender hereunder and under the other Loan Documents subject to each
such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to Agent)
shall be in a minimum amount (unless waived by Agent) of $5,000,000
(except such minimum amount shall not apply to (i) an
assignment or delegation by any Lender to any other Lender, an
Affiliate of any Lender, or a Related Fund of such Lender or
(ii) a group of new Lenders, each of which is an Affiliate of
each other or a Related Fund of such new Lender to the extent that
the aggregate amount to be assigned to all such new Lenders is at
least $5,000,000),
(D) each partial
assignment shall be made as an assignment of a proportionate part
of all the assigning Lender’s rights and obligations under
this Agreement,
(E) the parties to each
assignment shall execute and deliver to Agent an Assignment and
Acceptance; provided, that Borrowers and
Agent may continue to deal solely and directly with the assigning
Lender in connection with the interest so assigned to an Assignee
until written notice of such assignment, together with payment
instructions, addresses, and related information with respect to
the Assignee, have been given to Borrowers and Agent by such Lender
and the Assignee,
(F) unless waived by
Agent, the assigning Lender or Assignee has paid to Agent, for
Agent’s separate account, a processing fee in the amount of
$5,000, and
(G) the assignee, if it
is not a Lender, shall deliver to Agent an Administrative
Questionnaire in a form approved by Agent (the “Administrative
Questionnaire”).
(b) From and after the
date that Agent receives the executed Assignment and Acceptance
and, if applicable, payment of the required processing fee,
(i) the Assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment and Acceptance, shall be a
“Lender” and shall have the rights and obligations of a
Lender under the Loan Documents (including the Intercreditor
Provisions), and (ii) the assigning Lender shall, to the
extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights (except with respect to
Section 10.3)
and be released from any future obligations under this Agreement
(including the Intercreditor Provisions) (and in the case of an
Assignment and Acceptance covering all or the remaining portion of
an assigning Lender’s rights and obligations under this
Agreement (including the Intercreditor Provisions) and the other
Loan Documents, such Lender shall cease to be a party hereto and
thereto); provided,
that nothing contained herein shall release any assigning Lender
from obligations that survive the termination of this Agreement
(including the Intercreditor Provisions), including such assigning
Lender’s obligations under Section 15 and
Section 17.9(a).
(c) By executing and
delivering an Assignment and Acceptance, the assigning Lender
thereunder and the Assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning
Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement (including the Intercreditor
Provisions) or any other Loan Document furnished pursuant hereto,
(ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial
condition of any Borrower or the performance or observance by any
Borrower of any of its obligations under this Agreement or any
other Loan Document furnished pursuant hereto, (iii) such
Assignee confirms that it has received a copy of this Agreement,
together with such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance, (iv) such Assignee will,
independently and without reliance upon Agent, such assigning
Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under
this Agreement (including the Intercreditor Provisions),
(v) such Assignee appoints and authorizes Agent to take such
actions and to exercise such powers under this Agreement and the
other Loan Documents as are delegated to Agent, by the terms hereof
and thereof, together with such powers as are reasonably incidental
thereto, and (vi) such Assignee agrees that it will perform
all of the obligations which by the terms of this Agreement
(including the Intercreditor Provisions) are required to be
performed by it as a Lender.
(d) Immediately upon
Agent’s receipt of the required processing fee, if
applicable, and delivery of notice to the assigning Lender pursuant
to Section 13.1(b), this
Agreement shall be deemed to be amended to the extent, but only to
the extent, necessary to reflect the addition of the Assignee and
the resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such Commitments
of the assigning Lender pro
tanto.
(e) Any Lender may at
any time sell to one or more commercial banks, financial
institutions, or other Persons (a “Participant”)
participating interests in all or any portion of its Obligations,
its Commitment, and the other rights and interests of that Lender
(the “Originating
Lender”) hereunder and under the other Loan Documents;
provided, that
(i) the Originating Lender shall remain a “Lender”
for all purposes of this Agreement (including the Intercreditor
Provisions) and the other Loan Documents and the Participant
receiving the participating interest in the Obligations, the
Commitments, and the other rights and interests of the Originating
Lender hereunder shall not constitute a “Lender”
hereunder (including under the Intercreditor Provisions) or under
the other Loan Documents and the Originating Lender’s
obligations under this Agreement (including the Intercreditor
Provisions) shall remain unchanged, (ii) the Originating
Lender shall remain solely responsible for the performance of such
obligations, (iii) Borrowers, Agent, and the Lenders shall
continue to deal solely and directly with the Originating Lender in
connection with the Originating Lender’s rights and
obligations under this Agreement (including the Intercreditor
Provisions) and the other Loan Documents, (iv) no Lender shall
transfer or grant any participating interest under which the
Participant has the right to approve any amendment to, or any
consent or waiver with respect to, this Agreement (including the
Intercreditor Provisions) or any other Loan Document, except to the
extent such amendment to, or consent or waiver with respect to this
Agreement (including the Intercreditor Provisions) or of any other
Loan Document would (A) extend the final maturity date of the
Obligations hereunder in which such Participant is participating,
(B) reduce the interest rate applicable to the Obligations
hereunder in which such Participant is participating,
(C) release all or substantially all of the Collateral or
guaranties (except to the extent expressly provided herein
(including in the Intercreditor Provisions) or in any of the Loan
Documents) supporting the Obligations hereunder in which such
Participant is participating, (D) postpone the payment of, or
reduce the amount of, the interest or fees payable to such
Participant through such Lender (other than a waiver of default
interest), or (E) decreases the amount or postpones the due
dates of scheduled principal repayments or prepayments or premiums
payable to such Participant through such Lender, (v) no
participation shall be sold to a natural person, (vi) no
participation shall be sold to a Loan Party or an Affiliate of a
Loan Party, and (vii) all amounts payable by Borrowers
hereunder shall be determined as if such Lender had not sold such
participation, except that, if amounts outstanding under this
Agreement are due and unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of set
off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under
this Agreement. The rights of any Participant only shall be
derivative through the Originating Lender with whom such
Participant participates and no Participant shall have any rights
under this Agreement (including the Intercreditor Provisions) or
the other Loan Documents or any direct rights as to the other
Lenders, Agent, Borrowers, the Collateral, or otherwise in respect
of the Obligations. No Participant shall have the right to
participate directly in the making of decisions by the Lenders
among themselves.
(f) In connection with
any such assignment or participation or proposed assignment or
participation or any grant of a security interest in, or pledge of,
its rights under and interest in this Agreement, a Lender may,
subject to the provisions of Section 17.9, disclose all
documents and information which it now or hereafter may have
relating to any Borrower and its Subsidiaries and their respective
businesses.
(g) Any other provision
in this Agreement notwithstanding, any Lender may at any time
create a security interest in, or pledge, all or any portion of its
rights under and interest in this Agreement in favor of any Federal
Reserve Bank in accordance with Regulation A of the Federal Reserve
Bank or U.S. Treasury Regulation 31 CFR §203.24, and such
Federal Reserve Bank may enforce such pledge or security interest
in any manner permitted under applicable law.
(h) Agent (as a
non-fiduciary agent on behalf of Borrowers) shall maintain, or
cause to be maintained, a register (the “Register”) on which it
enters the name and address of each Lender as the registered owner
of the Last-Out Term Loan, the Revolving Loans, and/or Obligations
(and the principal amount thereof and stated interest thereon) held
by such Lender (each, a “Registered Loan”). Other
than in connection with an assignment by a Lender of all or any
portion of its portion of the Last-Out Term Loan, Revolving Loans,
and/or Obligations to an Affiliate of such Lender or a Related Fund
of such Lender (i) a Registered Loan (and the registered note,
if any, evidencing the same) may be assigned or sold in whole or in
part only by registration of such assignment or sale on the
Register (and each registered note shall expressly so provide) and
(ii) any assignment or sale of all or part of such Registered
Loan (and the registered note, if any, evidencing the same) may be
effected only by registration of such assignment or sale on the
Register, together with the surrender of the registered note, if
any, evidencing the same duly endorsed by (or accompanied by a
written instrument of assignment or sale duly executed by) the
holder of such registered note, whereupon, at the request of the
designated assignee(s) or transferee(s), one or more new registered
notes in the same aggregate principal amount shall be issued to the
designated assignee(s) or transferee(s). Prior to the registration
of assignment or sale of any Registered Loan (and the registered
note, if any evidencing the same), Borrowers shall treat the Person
in whose name such Registered Loan (and the registered note, if
any, evidencing the same) is registered as the owner thereof for
the purpose of receiving all payments thereon and for all other
purposes, notwithstanding notice to the contrary. In the case of
any assignment by a Lender of all or any portion of its Last-Out
Term Loan, Revolving Loans, and/or Obligations to an Affiliate of
such Lender or a Related Fund of such Lender, and which assignment
is not recorded in the Register, the assigning Lender, on behalf of
Borrowers, shall maintain a register comparable to the
Register.
(i) In the event that a
Lender sells participations in the Registered Loan, such Lender, as
a non-fiduciary agent on behalf of Borrowers, shall maintain (or
cause to be maintained) a register on which it enters the name of
all participants in the Registered Loans held by it (and the
principal amount (and stated interest thereon) of the portion of
such Registered Loans that is subject to such participations) (the
“Participant
Register”). A Registered Loan (and the Registered
Note, if any, evidencing the same) may be participated in whole or
in part only by registration of such participation on the
Participant Register (and each registered note shall expressly so
provide). Any participation of such Registered Loan (and the
registered note, if any, evidencing the same) may be effected only
by the registration of such participation on the Participant
Register.
(j) Agent shall make a
copy of the Register available for review by Borrowers and Lenders
from time to time as Borrowers or Lenders, as applicable, may
reasonably request. Each Lender shall make a copy of its
Participant Register, to the extent it has one, available for
review by Borrowers from time to time as Borrowers may reasonably
request.
13.2 Successors.
This Agreement shall bind and inure to the benefit of the
respective successors and assigns of each of the parties;
provided, that no
Borrower may assign this Agreement or any rights or duties
hereunder without the Lenders’ prior written consent and any
prohibited assignment shall be absolutely void ab initio. No consent to assignment by
the Lenders shall release any Borrower from its Obligations. A
Lender may assign this Agreement and the other Loan Documents and
its rights and duties hereunder and thereunder pursuant to
Section 13.1
and, except as expressly required pursuant to Section 13.1, no consent
or approval by any Borrower is required in connection with any such
assignment.
14. AMENDMENTS;
WAIVERS.
14.1 Amendments
and Waivers.
(a) No amendment,
waiver or other modification of any provision of this Agreement or
any other Loan Document (other than Bank Product Agreements or the
Fee Letter), and no consent with respect to any departure by any
Borrower therefrom, shall be effective unless the same shall be in
writing and signed by the Required Lenders (or by Agent at the
written request of the Required Lenders) and the Loan Parties that
are party thereto and then any such waiver or consent shall be
effective, but only in the specific instance and for the specific
purpose for which given; provided, that no such waiver,
amendment, or consent shall, unless in writing and signed by all of
the Lenders directly affected thereby (except as otherwise provided
in the Intercreditor Provisions) and all of the Loan Parties that
are party thereto, do any of the following:
(i) increase the amount
of or extend the expiration date of any Commitment of any Lender or
amend, modify, or eliminate the last sentence of Section 2.4(c)(i),
(ii) postpone
or delay any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees, or other
amounts due hereunder or under any other Loan
Document,
(iii) reduce
the principal of, or the rate of interest on, any loan or other
extension of credit hereunder, or reduce any fees or other amounts
payable hereunder or under any other Loan Document (except
(x) in connection with the waiver of applicability of
Section 2.6(c)(i) (which
waiver shall be effective with the written consent of the Required
Lenders), (y) in connection with the waiver of applicability
of Section 2.6(c)(ii) (which
waiver shall be effective with the written consent of the Required
Last-Out Term Loan Lenders), and (z) that any amendment or
modification of defined terms used in the financial covenants in
this Agreement shall not constitute a reduction in the rate of
interest or a reduction of fees for purposes of this clause (iii)),
(iv) amend,
modify, or eliminate this Section 14.1 or any
provision of this Agreement providing for consent or other action
by all Lenders,
(v) amend, modify, or
eliminate Section 2.14, 3.1 or 3.2,
(vi) amend,
modify, or eliminate Section 15.11,
(vii) other
than as permitted by Section 15.11 or the
Intercreditor Provisions, release Agent’s Lien in and to any
of the Collateral,
(viii) amend,
modify, or eliminate the definitions of “Required
Lenders,” “Required Revolving Lenders,”
“Required Last-Out Term Loan Lenders,”
“Supermajority Lenders,” or “Pro Rata
Share”,
(ix) contractually
subordinate any of Agent’s Liens,
(x) other than in
connection with a merger, liquidation, dissolution or sale of such
Person expressly permitted by the terms hereof or the other Loan
Documents, release any Borrower or any Guarantor from any
obligation for the payment of money or consent to the assignment or
transfer by any Borrower or any Guarantor of any of its rights or
duties under this Agreement or the other Loan Documents,
or
(xi) amend,
modify, or eliminate any of the provisions of Section 2.4(b)(i),
(ii), or
(iii) or
Section 2.4(e) or
(f);
(b) No amendment,
waiver, modification, or consent shall amend, modify, waive, or
eliminate,
(i) the definition of,
or any of the terms or provisions of, the Fee Letter, without the
written consent of Agent and Borrowers (and shall not require the
written consent of any of the Lenders),
(ii) any
provision of Section 15 pertaining to
Agent, or any other rights or duties of Agent under this Agreement
or the other Loan Documents, without the written consent of Agent,
Borrowers, and the Required Lenders, or
(iii) all
or any part of the Intercreditor Provisions without the written
consent of Agent, the Required Revolving Lenders, and the Required
Last-Out Term Loan Lenders, but no such amendment, waiver,
modification, or consent with respect to the Intercreditor
Provisions shall require consent by or the agreement of any Loan
Party.
(c) No amendment,
waiver, modification, elimination, or consent shall do any of the
following, in each case without written consent of Agent, Borrowers
and the Supermajority Lenders: (i) amend, modify, or eliminate
the definition of Borrowing Base, Borrowing Base (Individual),
or any of the defined terms (including, without limitation, the
definitions of Eligible Accounts, Eligible Backend-Charge Accounts,
Eligible Branch-Use Equipment, Eligible Equipment, Eligible
Extended Lone Star Accounts, Eligible Fleet Inventory, Eligible
Inventory, Eligible Real Property, Eligible Rolling Stock
Equipment, Eligible Step Inventory, Eligible Southern Frac
Accounts, Eligible Southern Frac Finished Goods Inventory, Eligible
Southern Frac Raw Materials Inventory, Eligible Southern Frac
Tanks, and Real Property Sublimit Formula Amount) that are used in
any such definition to the extent that any such change results in
more credit being made available to one or more Borrowers based
upon the Borrowing Base or any Borrowing Base (Individual),
but not otherwise; (ii) amend, modify, or eliminate the
definition of Last-Out Term Loan Collateral Base or any of the
defined terms (including, without limitation, the definitions of
Eligible Accounts, Eligible Branch-Use Equipment, Eligible
Equipment, Eligible Fleet Inventory, Eligible Inventory, Eligible
Rolling Stock Equipment, Eligible Step Inventory, Eligible Southern
Frac Accounts, Eligible Southern Frac Finished Goods Inventory,
Eligible Southern Frac Raw Materials Inventory, and Eligible
Southern Frac Tanks) that are used in any such definition to the
extent that any such change results in more or less credit being
made available to Borrowers based upon the Last-Out Term Loan
Collateral Base; (iii) amend, modify, or eliminate the
definition of Initial Maximum Real Property Sublimit Amount,
Maximum Real Property Sublimit Amount, Maximum Revolver Amount, or
Term Loan Amount; (iv) change Section 2.1(c);
(v) change Section 2.2(d); or
(vi) permit any principal amount of a Real Property Sublimit
Loan that is repaid or prepaid to be reborrowed.
(d) No amendment,
waiver, modification, elimination, or consent shall amend, modify,
or waive any provision of this Agreement or the other Loan
Documents pertaining to Issuing Bank, or any other rights or duties
of Issuing Bank under this Agreement or the other Loan Documents,
without the written consent of Issuing Bank, Agent, Borrowers, and
the Required Lenders.
(e) No amendment,
waiver, modification, elimination, or consent shall amend, modify,
or waive any provision of this Agreement or the other Loan
Documents pertaining to Swing Lender, or any other rights or duties
of Swing Lender under this Agreement or the other Loan Documents,
without the written consent of Swing Lender, Agent, Borrowers, and
the Required Lenders.
(f) Anything in this
Section 14.1
to the contrary notwithstanding, (i) any amendment,
modification, elimination, waiver, consent, termination, or release
of, or with respect to, any provision of this Agreement or any
other Loan Document that relates only to the relationship of the
Lender Group among themselves, and that does not affect the rights
or obligations of any Borrower, shall not require consent by or the
agreement of any Loan Party, and (ii) any amendment, waiver,
modification, elimination, or consent of or with respect to any
provision of this Agreement or any other Loan Document may be
entered into without the consent of, or over the objection of, any
Defaulting Lender other than any of the matters governed by
Section 14.1(a)(i) through
(iii) that
affect such Lender.
14.2 Replacement
of Certain Lenders.
(a) If
(i) any action to be taken by the Lender Group or Agent
hereunder requires the consent, authorization, or agreement of all
Lenders or all Lenders affected thereby and if such action has
received the consent, authorization, or agreement of the Required
Lenders but not of all Lenders or all Lenders affected thereby,
or (ii) any Lender makes a claim for compensation under
Section 16,
then Borrowers or Agent, upon at least 5 Business Days prior
irrevocable notice, may permanently replace any Lender that failed
to give its consent, authorization, or agreement (a
“Non-Consenting
Lender”)
or any Lender that made a claim for compensation (a
“Tax
Lender”) with one or more Replacement Lenders, and the
Non-Consenting Lender or Tax Lender, as applicable, shall have no
right to refuse to be replaced hereunder. Such notice to replace
the Non-Consenting Lender or Tax Lender, as applicable, shall
specify an effective date for such replacement, which date shall
not be later than 15 Business Days after the date such notice is
given.
(b) Prior to the
effective date of such replacement, the Non-Consenting Lender or
Tax Lender, as applicable, and each Replacement Lender shall
execute and deliver an Assignment and Acceptance, subject only to
the Non-Consenting Lender or Tax Lender, as applicable, being
repaid in full its share of the outstanding Obligations (without
any premium or penalty of any kind whatsoever, but
including (i) all
interest, fees and other amounts that may be due in payable in
respect thereof, and (ii) an assumption of its Pro Rata Share
of participations in the Letters of Credit). If the Non-Consenting
Lender or Tax Lender, as applicable, shall refuse or fail to
execute and deliver any such Assignment and Acceptance prior to the
effective date of such replacement, Agent may, but shall not be
required to, execute and deliver such Assignment and Acceptance in
the name or and on behalf of the Non-Consenting Lender or Tax
Lender, as applicable, and irrespective of whether Agent executes
and delivers such Assignment and Acceptance, the Non-Consenting
Lender or Tax Lender, as applicable, shall be deemed to have
executed and delivered such Assignment and Acceptance. The
replacement of any Non-Consenting Lender or Tax Lender, as
applicable, shall be made in accordance with the terms of
Section 13.1.
Until such time as one or more Replacement Lenders shall have
acquired all of the Obligations, the Commitments, and the other
rights and obligations of the Non-Consenting Lender or Tax Lender,
as applicable, hereunder and under the other Loan Documents, the
Non-Consenting Lender or Tax Lender, as applicable, shall remain
obligated to make the Non-Consenting Lender’s or Tax
Lender’s, as applicable, Pro Rata Share of Revolving Loans
and to purchase a participation in each Letter of Credit, in an
amount equal to its Pro Rata Share of participations in such
Letters of Credit.
14.3 No
Waivers; Cumulative Remedies. No failure by Agent or any
Lender to exercise any right, remedy, or option under this
Agreement or any other Loan Document, or delay by Agent or any
Lender in exercising the same, will operate as a waiver thereof. No
waiver by Agent or any Lender will be effective unless it is in
writing, and then only to the extent specifically stated. No waiver
by Agent or any Lender on any occasion shall affect or diminish
Agent’s and each Lender’s rights thereafter to require
strict performance by Borrowers of any provision of this Agreement.
Agent’s and each Lender’s rights under this Agreement
and the other Loan Documents will be cumulative and not exclusive
of any other right or remedy that Agent or any Lender may
have.
15. AGENT;
THE LENDER GROUP.
15.1 Appointment
and Authorization of Agent. Each Lender hereby designates
and appoints Xxxxx Fargo as its agent under this Agreement and the
other Loan Documents and each Lender hereby irrevocably authorizes
(and by entering into a Bank Product Agreement, each Bank Product
Provider shall be deemed to designate, appoint, and authorize)
Agent to execute and deliver each of the other Loan Documents on
its behalf and to take such other action on its behalf under the
provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly
delegated to Agent by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental
thereto (including, without limitation, acting as Trust Agent
to direct the Trust). Agent agrees to act as agent for and on
behalf of the Lenders (and the Bank Product Providers) on the
conditions contained in this Section 15. Any provision
to the contrary contained elsewhere in this Agreement or in any
other Loan Document notwithstanding, Agent shall not have any
duties or responsibilities, except those expressly set forth herein
or in the other Loan Documents, nor shall Agent have or be deemed
to have any fiduciary relationship with any Lender (or Bank Product
Provider), and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against
Agent. Without limiting the generality of the foregoing, the use of
the term “agent” in this Agreement or the other Loan
Documents with reference to Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or
reflect only a representative relationship between independent
contracting parties. Each Lender hereby further authorizes (and by
entering into a Bank Product Agreement, each Bank Product Provider
shall be deemed to authorize) Agent to act as the secured party
under each of the Loan Documents that create a Lien on any item of
Collateral. Except as expressly otherwise provided in this
Agreement, Agent shall have and may use its sole discretion with
respect to exercising or refraining from exercising any
discretionary rights or taking or refraining from taking any
actions that Agent expressly is entitled to take or assert under or
pursuant to this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, or of any other provision
of the Loan Documents that provides rights or powers to Agent,
Lenders agree that Agent shall have the right to exercise the
following powers as long as this Agreement remains in effect:
(a) maintain, in accordance with its customary business
practices, ledgers and records reflecting the status of the
Obligations, the Collateral, payments and proceeds of Collateral,
and related matters, (b) execute or file any and all financing
or similar statements or notices, amendments, renewals,
supplements, documents, instruments, proofs of claim, notices and
other written agreements with respect to the Loan Documents,
(c) make Revolving Loans, for itself or on behalf of Lenders,
as provided in the Loan Documents, (d) exclusively receive,
apply, and distribute payments and proceeds of the Collateral as
provided in the Loan Documents, (e) open and maintain such
bank accounts and cash management arrangements as Agent deems
necessary and appropriate in accordance with the Loan Documents for
the foregoing purposes, (f) perform, exercise, and enforce any
and all other rights and remedies of the Lender Group with respect
to any Borrower or its Subsidiaries, the Obligations, the
Collateral, or otherwise related to any of same as provided in the
Loan Documents, and (g) incur and pay such Lender Group
Expenses as Agent may deem necessary or appropriate for the
performance and fulfillment of its functions and powers pursuant to
the Loan Documents.
15.2 Delegation
of Duties. Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents,
employees or attorneys in fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. Agent
shall not be responsible for the negligence or misconduct of any
agent or attorney in fact that it selects as long as such selection
was made without gross negligence or willful
misconduct.
15.3 Liability
of Agent. None of the Agent-Related Persons shall
(a) be liable for any action taken or omitted to be taken by
any of them under or in connection with this Agreement or any other
Loan Document or the transactions contemplated hereby (except for
its own gross negligence or willful misconduct), or (b) be
responsible in any manner to any of the Lenders (or Bank Product
Providers) for any recital, statement, representation or warranty
made by any Borrower or any of its Subsidiaries or Affiliates, or
any officer or director thereof, contained in this Agreement or in
any other Loan Document, or in any certificate, report, statement
or other document referred to or provided for in, or received by
Agent under or in connection with, this Agreement or any other Loan
Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of any Borrower or its Subsidiaries or
any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lenders (or Bank Product Providers) to ascertain
or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the books and records or
properties of any Borrower or its Subsidiaries.
15.4 Reliance
by Agent. Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, telefacsimile or
other electronic method of transmission, telex or telephone
message, statement or other document or conversation believed by it
to be genuine and correct and to have been signed, sent, or made by
the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to Borrowers or counsel to any
Lender), independent accountants and other experts selected by
Agent. Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Loan Document
unless Agent shall first receive such advice or concurrence of the
Lenders as it deems appropriate and until such instructions are
received, Agent shall act, or refrain from acting, as it deems
advisable. If Agent so requests, it shall first be indemnified to
its reasonable satisfaction by the Lenders (and, if it so elects,
the Bank Product Providers) against any and all liability and
expense that may be incurred by it by reason of taking or
continuing to take any such action. Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request
or consent of the Required Lenders and such request and any action
taken or failure to act pursuant thereto shall be binding upon all
of the Lenders (and Bank Product Providers).
15.5 Notice
of Default or Event of Default. Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event
of Default, except with respect to defaults in the payment of
principal, interest, fees, and expenses required to be paid to
Agent for the account of the Lenders and, except with respect to
Events of Default of which Agent has actual knowledge, unless Agent
shall have received written notice from a Lender or Borrowers
referring to this Agreement, describing such Default or Event of
Default, and stating that such notice is a “notice of
default.” Agent promptly will notify the Lenders of its
receipt of any such notice or of any Event of Default of which
Agent has actual knowledge. If any Lender obtains actual knowledge
of any Event of Default, such Lender promptly shall notify the
other Lenders and Agent of such Event of Default. Each Lender shall
be solely responsible for giving any notices to its Participants,
if any. Subject to Section 15.4, Agent shall
take such action with respect to such Default or Event of Default
as may be requested by the Required Lenders in accordance with
Section 9;
provided, that
unless and until Agent has received any such request, Agent may
(but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of
Default as it shall deem advisable.
15.6 Credit
Decision. Each Lender (and Bank Product Provider)
acknowledges that none of the Agent-Related Persons has made any
representation or warranty to it, and that no act by Agent
hereinafter taken, including any review of the affairs of any
Borrower and its Subsidiaries or Affiliates, shall be deemed to
constitute any representation or warranty by any Agent-Related
Person to any Lender (or Bank Product Provider). Each Lender
represents (and by entering into a Bank Product Agreement, each
Bank Product Provider shall be deemed to represent) to Agent that
it has, independently and without reliance upon any Agent-Related
Person and based on such due diligence, documents and information
as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property,
financial and other condition and creditworthiness of each Borrower
or any other Person party to a Loan Document, and all applicable
bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and
to extend credit to Borrowers. Each Lender also represents (and by
entering into a Bank Product Agreement, each Bank Product Provider
shall be deemed to represent) that it will, independently and
without reliance upon any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and
creditworthiness of each Borrower or any other Person party to a
Loan Document. Except for notices, reports, and other documents
expressly herein required to be furnished to the Lenders by Agent,
Agent shall not have any duty or responsibility to provide any
Lender (or Bank Product Provider) with any credit or other
information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any
Borrower or any other Person party to a Loan Document that may come
into the possession of any of the Agent-Related Persons. Each
Lender acknowledges (and by entering into a Bank Product Agreement,
each Bank Product Provider shall be deemed to acknowledge) that
Agent does not have any duty or responsibility, either initially or
on a continuing basis (except to the extent, if any, that is
expressly specified herein) to provide such Lender (or Bank Product
Provider) with any credit or other information with respect to any
Borrower, its Affiliates or any of their respective business,
legal, financial or other affairs, and irrespective of whether such
information came into Agent’s or its Affiliates’ or
representatives’ possession before or after the date on which
such Lender became a party to this Agreement (or such Bank Product
Provider entered into a Bank Product Agreement).
15.7 Costs
and Expenses; Indemnification. Agent and the Last-Out Term
Loan Lenders may incur and pay Lender Group Expenses to the extent
Agent or the Last-Out Term Loan Lenders reasonably deems necessary
or appropriate for the performance and fulfillment of its
functions, powers, and obligations pursuant to the Loan Documents,
including court costs, attorneys’ fees and expenses, fees and
expenses of financial accountants, advisors, consultants, and
appraisers, costs of collection by outside collection agencies,
auctioneer fees and expenses, and costs of security guards or
insurance premiums paid to maintain the Collateral, whether or not
Borrowers are obligated to reimburse Agent or Lenders for such
expenses pursuant to this Agreement or otherwise. Agent is
authorized and directed to deduct and retain sufficient amounts
from payments or proceeds of the Collateral received by Agent to
reimburse Agent and the Last-Out Term Loan Lenders, as applicable,
for such out-of-pocket costs and expenses prior to the distribution
of any amounts to Lenders (or Bank Product Providers). In the event
Agent is not reimbursed for such costs and expenses of Agent by
Borrowers or their Subsidiaries, each Lender hereby agrees that it
is and shall be obligated to pay to Agent such Lender’s
ratable share thereof; provided, that no Lender shall
have any obligation to reimburse any Last-Out Term Lender for any
costs or expenses incurred by any Last-Out Term Lender. Whether or
not the transactions contemplated hereby are consummated, each of
the Lenders, on a ratable basis, shall indemnify and defend the
Agent-Related Persons (to the extent not reimbursed by or on behalf
of Borrowers and without limiting the obligation of Borrowers to do
so) from and against any and all Indemnified Liabilities;
provided, that no
Lender shall be liable for the payment to any Agent-Related Person
of any portion of such Indemnified Liabilities resulting solely
from such Person’s gross negligence or willful misconduct nor
shall any Lender be liable for the obligations of any Defaulting
Lender in failing to make a Revolving Loan or other extension of
credit hereunder. Without limitation of the foregoing, each Lender
shall reimburse Agent upon demand for such Lender’s ratable
share of any costs or out of pocket expenses (including attorneys,
accountants, advisors, and consultants fees and expenses) incurred
by Agent in connection with the preparation, execution, delivery,
administration, modification, amendment, or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this
Agreement or any other Loan Document to the extent that Agent is
not reimbursed for such expenses by or on behalf of Borrowers. The
undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of Agent;
provided, that no
Lender shall have any obligation to indemnify and./or reimburse any
Last-Out Term Lender for any costs or expenses incurred by any
Last-Out Term Lender.
15.8 Agent
in Individual Capacity. Xxxxx Fargo and its Affiliates may
make loans to, issue letters of credit for the account of, accept
deposits from, provide Bank Products to, acquire Equity Interests
in, and generally engage in any kind of banking, trust, financial
advisory, underwriting, or other business with any Borrower and its
Subsidiaries and Affiliates and any other Person party to any Loan
Document as though Xxxxx Fargo were not Agent hereunder, and, in
each case, without notice to or consent of the other members of the
Lender Group. The other members of the Lender Group acknowledge
(and by entering into a Bank Product Agreement, each Bank Product
Provider shall be deemed to acknowledge) that, pursuant to such
activities, Xxxxx Fargo or its Affiliates may receive information
regarding a Borrower or its Affiliates or any other Person party to
any Loan Documents that is subject to confidentiality obligations
in favor of such Borrower or such other Person and that prohibit
the disclosure of such information to the Lenders (or Bank Product
Providers), and the Lenders acknowledge (and by entering into a
Bank Product Agreement, each Bank Product Provider shall be deemed
to acknowledge) that, in such circumstances (and in the absence of
a waiver of such confidentiality obligations, which waiver Agent
will use its reasonable best efforts to obtain), Agent shall not be
under any obligation to provide such information to them. The terms
“Lender” and “Lenders” include Xxxxx Fargo
in its individual capacity.
15.9 Successor
Agent. Agent may resign as Agent upon 30 days’ (10
days’ if an Event of Default has occurred and is continuing)
prior written notice to the Lenders (unless such notice is waived
by the Required Lenders) and Borrowers (unless such notice is
waived by Borrowers) and without any notice to the Bank Product
Providers. If Agent resigns under this Agreement, the Required
Lenders shall be entitled, with (so long as no Event of Default has
occurred and is continuing) the consent of Borrowers (such consent
not to be unreasonably withheld, delayed, or conditioned), appoint
a successor Agent for the Lenders (and the Bank Product Providers).
If, at the time that Agent’s resignation is effective, it is
acting as Issuing Bank or the Swing Lender, such resignation shall
also operate to effectuate its resignation as Issuing Bank or the
Swing Lender, as applicable, and it shall automatically be relieved
of any further obligation to issue Letters of Credit, or to make
Swing Loans. If no successor Agent is appointed prior to the
effective date of the resignation of Agent, Agent may appoint,
after consulting with the Lenders and Borrowers, a successor Agent.
If Agent has materially breached or failed to perform any material
provision of this Agreement or of applicable law, the Required
Lenders may agree in writing to remove and replace Agent with a
successor Agent from among the Lenders with (so long as no Event of
Default has occurred and is continuing) the consent of Borrowers
(such consent not to be unreasonably withheld, delayed, or
conditioned). In any such event, upon the acceptance of its
appointment as successor Agent hereunder, such successor Agent
shall succeed to all the rights, powers, and duties of the retiring
Agent and the term “Agent” shall mean such successor
Agent and the retiring Agent’s appointment, powers, and
duties as Agent shall be terminated. After any retiring
Agent’s resignation hereunder as Agent, the provisions of
this Section 15 shall inure to
its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement. If no successor Agent has
accepted appointment as Agent by the date which is 30 days
following a retiring Agent’s notice of resignation, the
retiring Agent’s resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of
Agent hereunder until such time, if any, as the Lenders appoint a
successor Agent as provided for above.
15.10 Lender
in Individual Capacity. Any Lender and its respective
Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, provide Bank Products to, acquire
Equity Interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting, or other business with any
Borrower and its Subsidiaries and Affiliates and any other Person
party to any Loan Documents as though such Lender were not a Lender
hereunder without notice to or consent of the other members of the
Lender Group (or the Bank Product Providers). The other members of
the Lender Group acknowledge (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to
acknowledge) that, pursuant to such activities, such Lender and its
respective Affiliates may receive information regarding a Borrower
or its Affiliates or any other Person party to any Loan Documents
that is subject to confidentiality obligations in favor of such
Borrower or such other Person and that prohibit the disclosure of
such information to the Lenders, and the Lenders acknowledge (and
by entering into a Bank Product Agreement, each Bank Product
Provider shall be deemed to acknowledge) that, in such
circumstances (and in the absence of a waiver of such
confidentiality obligations, which waiver such Lender will use its
reasonable best efforts to obtain), such Lender shall not be under
any obligation to provide such information to them.
15.11 Collateral
Matters.
(a) The Lenders hereby
irrevocably authorize (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to authorize)
Agent to release, discharge, and terminate any Lien on any
Collateral (i) upon the termination of the Commitments and
payment and satisfaction in full by Borrowers of all of the
Obligations, (ii) constituting property being sold or disposed
of if a release is required or desirable in connection therewith
and if Borrowers certify to Agent that the sale or disposition is
permitted under Section 6.4 (and Agent may
rely conclusively on any such certificate, without further
inquiry), (iii) constituting property in which no Borrower or
its Subsidiaries owned any interest at the time Agent’s Lien
was granted nor at any time thereafter, (iv) constituting
property leased or licensed to a Borrower or its Subsidiaries under
a lease or license that has expired or is terminated in a
transaction permitted under this Agreement, or (v) in
connection with a credit bid or purchase authorized under this
Section 15.11.
The Loan Parties and the Lenders hereby irrevocably authorize (and
by entering into a Bank Product Agreement, each Bank Product
Provider shall be deemed to authorize) Agent, based upon the
instruction of the Supermajority Lenders (or as otherwise provided
in the Intercreditor Provisions), to (A) consent to, credit
bid or purchase (either directly or indirectly through one or more
entities) all or any portion of the Collateral at any sale thereof
conducted under the provisions of the Bankruptcy Code, including
Section 363 of the Bankruptcy Code, or any other applicable
law during the course of an Insolvency Proceeding, (B) credit
bid or purchase (either directly or indirectly through one or more
entities) all or any portion of the Collateral at any sale or other
disposition thereof conducted under the provisions of the Code,
including pursuant to Sections 9-610 or 9-620 of the Code, or the
PPSA or (C) credit bid or purchase (either directly or
indirectly through one or more entities) all or any portion of the
Collateral at any other sale or foreclosure conducted or consented
to by Agent in accordance with applicable law in any judicial
action or proceeding or by the exercise of any legal or equitable
remedy. In connection with any such credit bid or purchase,
(i) the Obligations owed to the Lenders and the Bank Product
Providers shall be entitled to be, and shall be, credit bid on a
ratable basis (with Obligations with respect to contingent or
unliquidated claims being estimated for such purpose if the fixing
or liquidation thereof would not impair or unduly delay the ability
of Agent to credit bid or purchase at such sale or other
disposition of the Collateral and, if such contingent or
unliquidated claims cannot be estimated without impairing or unduly
delaying the ability of Agent to credit bid at such sale or other
disposition, then such claims shall be disregarded, not credit bid,
and not entitled to any interest in the Collateral that is the
subject of such credit bid or purchase) and the Lenders and the
Bank Product Providers whose Obligations are credit bid shall be
entitled to receive interests (ratably based upon the proportion of
their Obligations credit bid in relation to the aggregate amount of
Obligations so credit bid) in the Collateral that is the subject of
such credit bid or purchase (or in the Equity Interests of the any
entities that are used to consummate such credit bid or purchase),
and (ii) Agent, based upon the instruction of the
Supermajority Lenders (or as otherwise provided in the
Intercreditor Provisions), may accept non-cash consideration,
including debt and equity securities issued by any entities used to
consummate such credit bid or purchase and in connection therewith
Agent may reduce the Obligations owed to the Lenders and the Bank
Product Providers (ratably based upon the proportion of their
Obligations credit bid in relation to the aggregate amount of
Obligations so credit bid) based upon the value of such non-cash
consideration. Except as provided above or in the Intercreditor
Provisions, Agent will not execute and deliver a release of any
Lien on any Collateral without the prior written authorization of
(y) if the release is of all or substantially all of the
Collateral, all of the Lenders (without requiring the authorization
of the Bank Product Providers), or (z) otherwise, the
Supermajority Lenders (without requiring the authorization of the
Bank Product Providers). Upon request by Agent or Borrowers at any
time, the Lenders will (and if so requested, the Bank Product
Providers will) confirm in writing Agent’s authority to
release, discharge, and terminate any such Liens on particular
types or items of Collateral pursuant to this Section 15.11;
provided, that (1)
anything to the contrary contained in any of the Loan Documents
notwithstanding, Agent shall not be required to execute any
document or take any action necessary to evidence such release,
discharge, or termination on terms that, in Agent’s opinion,
could expose Agent to liability or create any obligation or entail
any consequence other than the release, discharge, or termination
of such Lien without recourse, representation, or warranty, and (2)
such release, discharge, or termination shall not in any manner
discharge, affect, or impair the Obligations or any Liens (other
than those expressly released, discharged, or terminated) upon (or
obligations of Borrowers in respect of) any and all interests
retained by any Borrower, including, the proceeds of any sale, all
of which shall continue to constitute part of the Collateral. Each
Lender
further hereby irrevocably authorizes (and by entering into
a Bank Product Agreement, each Bank Product Provider shall be
deemed to irrevocably authorize)
Agent, at its option and in its sole discretion, to subordinate any
Lien granted to or held by Agent under any Loan Document to the
holder of any Permitted Lien on such property if such Permitted
Lien secures Permitted Purchase Money
Indebtedness.
(b) Agent shall have no
obligation whatsoever to any of the Lenders (or the Bank Product
Providers) (i) to verify or assure that the Collateral exists
or is owned by Borrowers or their Subsidiaries or is cared for,
protected, or insured or has been encumbered, (ii) to verify
or assure that Agent’s Liens have been properly or
sufficiently or lawfully created, perfected, protected, or enforced
or are entitled to any particular priority, (iii) to verify or
assure that any particular items of Collateral meet the eligibility
criteria applicable in respect thereof, (iv) to impose,
maintain, increase, reduce, implement, or eliminate any particular
reserve hereunder or to determine whether the amount of any reserve
is appropriate or not, or (v) to exercise at all or in any
particular manner or under any duty of care, disclosure or
fidelity, or to continue exercising, any of the rights, authorities
and powers granted or available to Agent pursuant to any of the
Loan Documents, it being understood and agreed that in respect of
the Collateral, or any act, omission, or event related thereto,
subject to the terms and conditions contained herein, Agent may act
in any manner it may deem appropriate, in its sole discretion given
Agent’s own interest in the Collateral in its capacity as one
of the Lenders and that Agent shall have no other duty or liability
whatsoever to any Lender (or Bank Product Provider) as to any of
the foregoing, except as otherwise expressly provided
herein.
15.12 Restrictions
on Actions by Lenders; Sharing of Payments.
(a) Each of the Lenders
agrees that it shall not, without the express written consent of
Agent, and that it shall, to the extent it is lawfully entitled to
do so, upon the written request of Agent, set off against the
Obligations, any amounts owing by such Lender to any Borrower or
its Subsidiaries or any deposit accounts of any Borrower or its
Subsidiaries now or hereafter maintained with such Lender. Each of
the Lenders further agrees that it shall not, unless specifically
requested to do so in writing by Agent, take or cause to be taken
any action, including, the commencement of any legal or equitable
proceedings to enforce any Loan Document against any Borrower or
any Guarantor or to foreclose any Lien on, or otherwise enforce any
security interest in, any of the Collateral.
(b) If, at any time or
times any Lender shall receive (i) by payment, foreclosure,
setoff, or otherwise, any proceeds of Collateral or any payments
with respect to the Obligations, except for any such proceeds or
payments received by such Lender from Agent pursuant to the terms
of this Agreement, or (ii) payments from Agent in excess of
such Lender’s Pro Rata Share of all such distributions by
Agent, such Lender promptly shall (A) turn the same over to
Agent, in kind, and with such endorsements as may be required to
negotiate the same to Agent, or in immediately available funds, as
applicable, for the account of all of the Lenders and for
application to the Obligations in accordance with the applicable
provisions of this Agreement, or (B) purchase, without
recourse or warranty, an undivided interest and participation in
the Obligations owed to the other Lenders so that such excess
payment received shall be applied ratably as among the Lenders in
accordance with their Pro Rata Shares; provided, that to the extent
that such excess payment received by the purchasing party is
thereafter recovered from it, those purchases of participations
shall be rescinded in whole or in part, as applicable, and the
applicable portion of the purchase price paid therefor shall be
returned to such purchasing party, but without interest except to
the extent that such purchasing party is required to pay interest
in connection with the recovery of the excess payment.
15.13 Agency
for Perfection. Agent hereby appoints each other Lender (and
each Bank Product Provider) as its agent (and each Lender hereby
accepts (and by entering into a Bank Product Agreement, each Bank
Product Provider shall be deemed to accept) such appointment) for
the purpose of perfecting Agent’s Liens on assets which, in
accordance with Article 8 or Article 9, as applicable, of the Code
or the PPSA, as applicable, can be perfected by possession or
control. Should any Lender obtain possession or control of any such
Collateral, such Lender shall notify Agent thereof, and, promptly
upon Agent’s request therefor shall deliver possession or
control of such Collateral to Agent or in accordance with
Agent’s instructions.
15.14 Payments
by Agent to the Lenders. All payments to be made by Agent to
the Lenders (or Bank Product Providers) shall be made by bank wire
transfer of immediately available funds pursuant to such wire
transfer instructions as each party may designate for itself by
written notice to Agent. Concurrently with each such payment, Agent
shall identify whether such payment (or any portion thereof)
represents principal, premium, fees, or interest of the
Obligations.
15.15 Concerning
the Collateral and Related Loan Documents. Each member of
the Lender Group authorizes and directs Agent to enter into this
Agreement and the other Loan Documents. Each member of the Lender
Group agrees (and by entering into a Bank Product Agreement, each
Bank Product Provider shall be deemed to agree) that any action
taken by Agent in accordance with the terms of this Agreement or
the other Loan Documents relating to the Collateral and the
exercise by Agent of its powers set forth therein or herein,
together with such other powers that are reasonably incidental
thereto, shall be binding upon all of the Lenders (and such Bank
Product Provider).
15.16 Field
Examination Reports; Confidentiality; Disclaimers by Lenders; Other
Reports and Information. By becoming a party to this
Agreement, each Lender:
(a) is deemed to have
requested that Agent furnish such Lender, promptly after it becomes
available, a copy of each field examination report respecting any
Borrower or its Subsidiaries (each, a “Report”) prepared by or
at the request of Agent, and Agent shall so furnish each Lender
with such Reports,
(b) expressly agrees
and acknowledges that Agent does not (i) make any
representation or warranty as to the accuracy of any Report, and
(ii) shall not be liable for any information contained in any
Report,
(c) expressly agrees
and acknowledges that the Reports are not comprehensive audits or
examinations, that Agent or other party performing any field
examination will inspect only specific information regarding
Borrowers and their Subsidiaries and will rely significantly upon
Borrowers’ and their Subsidiaries’ books and records,
as well as on representations of Borrowers’
personnel,
(d) agrees to keep all
Reports and other material, non-public information regarding
Borrowers and their Subsidiaries and their operations, assets, and
existing and contemplated business plans in a confidential manner
in accordance with Section 17.9,
and
(e) without limiting
the generality of any other indemnification provision contained in
this Agreement, agrees: (i) to hold Agent and any other Lender
preparing a Report harmless from any action the indemnifying Lender
may take or fail to take or any conclusion the indemnifying Lender
may reach or draw from any Report in connection with any loans or
other credit accommodations that the indemnifying Lender has made
or may make to Borrowers, or the indemnifying Lender’s
participation in, or the indemnifying Lender’s purchase of, a
loan or loans of Borrowers, and (ii) to pay and protect, and
indemnify, defend and hold Agent, and any such other Lender
preparing a Report harmless from and against, the claims, actions,
proceedings, damages, costs, expenses, and other amounts
(including, attorneys’ fees and costs) incurred by Agent and
any such other Lender preparing a Report as the direct or indirect
result of any third parties who might obtain all or part of any
Report through the indemnifying Lender.
(f) In addition to the
foregoing, (x) any Lender may from time to time request of
Agent in writing that Agent provide to such Lender a copy of any
report or document provided by any Borrower or its Subsidiaries to
Agent that has not been contemporaneously provided by such Borrower
or such Subsidiary to such Lender, and, upon receipt of such
request, Agent promptly shall provide a copy of same to such
Lender, (y) to the extent that Agent is entitled, under any
provision of the Loan Documents, to request additional reports or
information from any Borrower or its Subsidiaries, any Lender may,
from time to time, reasonably request Agent to exercise such right
as specified in such Lender’s notice to Agent, whereupon
Agent promptly shall request of Borrowers the additional reports or
information reasonably specified by such Lender, and, upon receipt
thereof from such Borrower or such Subsidiary, Agent promptly shall
provide a copy of same to such Lender, and (z) any time that
Agent renders to Borrowers a statement regarding the Loan Account,
Agent shall send a copy of such statement to each
Lender.
15.17 Several
Obligations; No Liability. Notwithstanding that certain of
the Loan Documents now or hereafter may have been or will be
executed only by or in favor of Agent in its capacity as such, and
not by or in favor of the Lenders, any and all obligations on the
part of Agent (if any) to make any credit available hereunder shall
constitute the several (and not joint) obligations of the
respective Lenders on a ratable basis, according to their
respective Commitments, to make an amount of such credit not to
exceed, in principal amount, at any one time outstanding, the
amount of their respective Commitments. Nothing contained herein
shall confer upon any Lender any interest in, or subject any Lender
to any liability for, or in respect of, the business, assets,
profits, losses, or liabilities of any other Lender. Each Lender
shall be solely responsible for notifying its Participants of any
matters relating to the Loan Documents to the extent any such
notice may be required, and no Lender shall have any obligation,
duty, or liability to any Participant of any other Lender. Except
as provided in Section 15.7, no member of
the Lender Group shall have any liability for the acts of any other
member of the Lender Group. No Lender shall be responsible to any
Borrower or any other Person for any failure by any other Lender
(or Bank Product Provider) to fulfill its obligations to make
credit available hereunder, nor to advance for such Lender (or Bank
Product Provider) or on its behalf, nor to take any other action on
behalf of such Lender (or Bank Product Provider) hereunder or in
connection with the financing contemplated herein.
15.18 Co-Lead
Arranger, Joint Book Runner, and Co-Syndication Agent. Each
of Co-Lead Arrangers, Joint Book Runners, and Co-Syndication
Agents, in such capacities, shall not have any right, power,
obligation, liability, responsibility, or duty under this Agreement
other than those applicable to it in its capacity as a Lender, as
Agent, as Swing Lender, or as Issuing Bank. Without limiting the
foregoing, each of Co-Lead Arrangers, Joint Book Runners, and
Co-Syndication Agents, in such capacities, shall not have or be
deemed to have any fiduciary relationship with any Lender or any
Loan Party. Each Lender, Agent, Swing Lender, Issuing Bank, and
each Loan Party acknowledges that it has not relied, and will not
rely, on any of Co-Lead Arrangers, Joint Book Runners, and
Co-Syndication Agents in deciding to enter into this Agreement or
in taking or not taking action hereunder. Each of Co-Lead
Arrangers, Joint Book Runners, and Co-Syndication Agents, in such
capacities, shall be entitled to resign at any time by giving
notice to Agent and Borrowers.
15.19 Intercreditor
Provisions. The Lenders acknowledge that the Last-Out Term
Loan is secured by Liens on the Collateral and that the exercise of
certain of the rights and remedies of Agent under the Loan
Documents may be subject to the Intercreditor Provisions. Each
Lender irrevocably (a) consents to the Intercreditor
Provisions; (b) authorizes and directs Agent to take all
actions (and execute all documents) required (or deemed advisable)
by Agent in accordance with the Intercreditor Provisions, in each
case, and without any further consent, authorization, or other
action by such Lender; (c) agrees that, upon the execution and
delivery of this Agreement (as amended by Amendment No. 6),
such Lender will be bound by the Intercreditor Provisions and will
take no actions contrary to the Intercreditor Provisions; (d)
agrees that no Lender shall have any right of action whatsoever
against Agent as a result of any action taken by Agent pursuant to
this Section 15.19 or in
accordance with the Intercreditor Provisions; and (e) acknowledges
(or is deemed to acknowledge) that the Intercreditor Provisions
have been delivered, or made available, to such Lender. Each Lender
hereby further irrevocably authorizes and directs Agent to enter
into such agreements, amendments, supplements, or other
modifications to or in respect of the Intercreditor Provisions as
are approved by Agent, the Required Revolving Lenders, and the
Required Last-Out Term Loan Lenders (except as to any such
agreement, amendment, supplement, or other modification that
expressly requires the approval of all Lenders as set forth in
Section 14.1);
provided, that
Agent may execute and deliver such agreements, amendments,
supplements, and modifications thereto as are contemplated by the
Intercreditor Provisions in connection with any extension, renewal,
refinancing, or replacement of this Agreement or any refinancing of
the Obligations, in each case, on behalf of such Lender and without
any further consent, authorization, or other action by any Lender.
Agent shall have the benefit of each of the provisions of
Section 15
with respect to all actions taken by it pursuant to this
Section 15.19
or in accordance with the Intercreditor Provisions to the full
extent thereof.
16. WITHHOLDING
TAXES.
16.1 Payments.
All payments made by Borrowers or any of their Subsidiaries
hereunder or under any note or other Loan Document will be made
without setoff, counterclaim, or other defense. In addition, all
such payments will be made free and clear of, and without deduction
or withholding for, any present or future Indemnified Taxes, and in
the event any deduction or withholding of Indemnified Taxes is
required, Borrowers shall comply with the next sentence of this
Section 16.1.
If any Indemnified Taxes are so levied or imposed, Borrowers agree
to pay the full amount of such Indemnified Taxes and such
additional amounts as may be necessary so that every payment of all
amounts due under this Agreement, any note, or Loan Document,
including any amount paid pursuant to this Section 16.1 after
withholding or deduction for or on account of any Indemnified
Taxes, will not be less than the amount provided for herein;
provided, that
Borrowers shall not be required to increase any such amounts to the
extent that the increase in such amount payable results from
Agent’s or such Lender’s own willful misconduct or
gross negligence (as finally determined by a court of competent
jurisdiction). Borrowers will furnish to Agent as promptly as
possible after the date the payment of any Indemnified Tax is due
pursuant to applicable law, certified copies of tax receipts
evidencing such payment by Borrowers. Borrowers agree to pay any
present or future stamp, value added or documentary taxes or any
other excise or property taxes, charges, or similar levies that
arise from any payment made hereunder or from the execution,
delivery, performance, recordation, or filing of, or otherwise with
respect to this Agreement or any other Loan Document.
16.2 Exemptions.
(a) If a Lender or
Participant is entitled to claim an exemption or reduction from
United States withholding tax, such Lender or Participant agrees
with and in favor of Agent, to deliver to Agent (or, in the case of
a Participant, to the Lender granting the participation only) one
of the following before receiving its first payment under this
Agreement:
(i) if such Lender or
Participant is entitled to claim an exemption from United States
withholding tax pursuant to the portfolio interest exception,
(A) a statement of the Lender or Participant, signed under
penalty of perjury, that it is not a (i) a “bank”
as described in Section 881(c)(3)(a) of the IRC,
(ii) a 10% shareholder of Pac-Van (within the meaning of
Section 871(h)(3)(b) of the IRC), or (iii) a
controlled foreign corporation related to Borrowers within the
meaning of Section 864(d)(4) of the IRC, and (B) a
properly completed and executed IRS Form W-8BEN or Form W-8IMY
(with proper attachments);
(ii) if
such Lender or Participant is entitled to claim an exemption from,
or a reduction of, withholding tax under a United States tax
treaty, a properly completed and executed copy of IRS Form
W-8BEN;
(iii) if
such Lender or Participant is entitled to claim that interest paid
under this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States trade or
business of such Lender, a properly completed and executed copy of
IRS Form W-8ECI;
(iv) if
such Lender or Participant is entitled to claim that interest paid
under this Agreement is exempt from United States withholding tax
because such Lender or Participant serves as an intermediary, a
properly completed and executed copy of IRS Form W-8IMY (with
proper attachments); or
(v) a properly
completed and executed copy of any other form or forms, including
IRS Form W-9, as may be required under the IRC or other laws of the
United States as a condition to exemption from, or reduction of,
United States withholding or backup withholding tax.
(b) Each Lender or
Participant shall provide new forms (or successor forms) upon the
expiration or obsolescence of any previously delivered forms and to
promptly notify Agent (or, in the case of a Participant, to the
Lender granting the participation only) of any change in
circumstances which would modify or render invalid any claimed
exemption or reduction.
(c) If a Lender or
Participant claims an exemption from withholding tax in a
jurisdiction other than the United States, such Lender or such
Participant agrees with and in favor of Agent, to deliver to Agent
(or, in the case of a Participant, to the Lender granting the
participation only) any such form or forms, as may be required
under the laws of such jurisdiction as a condition to exemption
from, or reduction of, foreign withholding or backup withholding
tax before receiving its first payment under this Agreement, but
only if such Lender or such Participant is legally able to deliver
such forms, provided, that nothing in this
Section 16.2(c) shall
require a Lender or Participant to disclose any information that it
deems to be confidential (including without limitation, its tax
returns). Each Lender and each Participant shall provide new forms
(or successor forms) upon the expiration or obsolescence of any
previously delivered forms and to promptly notify Agent (or, in the
case of a Participant, to the Lender granting the participation
only) of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.
(d) If a Lender or
Participant claims exemption from, or reduction of, withholding tax
and such Lender or Participant sells, assigns, grants a
participation in, or otherwise transfers all or part of the
Obligations of Borrowers or their Subsidiaries to such Lender or
Participant, such Lender or Participant agrees to notify Agent (or,
in the case of a sale of a participation interest, to the Lender
granting the participation only) of the percentage amount in which
it is no longer the beneficial owner of Obligations of Borrowers to
such Lender or Participant. To the extent of such percentage
amount, Agent will treat such Lender’s or such
Participant’s documentation provided pursuant to Section 16.2(a) or
16.2(c) as no
longer valid. With respect to such percentage amount, such
Participant or Assignee may provide new documentation, pursuant to
Section 16.2(a) or
16.2(c), if
applicable. Borrowers, for themselves and on behalf of their
Subsidiaries, agree that each Participant shall be entitled to the
benefits of this Section 16 with respect to
its participation in any portion of the Commitments and the
Obligations so long as such Participant complies with the
obligations set forth in this Section 16 with respect
thereto.
16.3 Reductions.
(a) If a Lender or a
Participant is subject to an applicable withholding tax, Agent (or,
in the case of a Participant, the Lender granting the
participation) may withhold from any payment to such Lender or such
Participant an amount equivalent to the applicable withholding tax.
If the forms or other documentation required by Section 16.2(a) or
16.2(c) are not delivered to Agent (or, in the case of a
Participant, to the Lender granting the participation), then Agent
(or, in the case of a Participant, to the Lender granting the
participation) may withhold from any payment to such Lender or such
Participant not providing such forms or other documentation an
amount equivalent to the applicable withholding tax.
(b) If the IRS or any
other Governmental Authority of the United States or other
jurisdiction asserts a claim that Agent (or, in the case of a
Participant, to the Lender granting the participation) did not
properly withhold tax from amounts paid to or for the account of
any Lender or any Participant due to a failure on the part of the
Lender or any Participant (because the appropriate form was not
delivered, was not properly executed, or because such Lender failed
to notify Agent (or such Participant failed to notify the Lender
granting the participation) of a change in circumstances which
rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason) such Lender shall indemnify
and hold Agent harmless (or, in the case of a Participant, such
Participant shall indemnify and hold the Lender granting the
participation harmless) for all amounts paid, directly or
indirectly, by Agent (or, in the case of a Participant, to the
Lender granting the participation), as tax or otherwise, including
penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to Agent (or, in the case of a
Participant, to the Lender granting the participation only) under
this Section 16, together with
all costs and expenses (including attorneys’ fees and
expenses). The obligation of the Lenders and the Participants under
this subsection shall survive the payment of all Obligations and
the resignation or replacement of Agent.
16.4 Refunds.
If Agent or a Lender determines, in its sole discretion, that it
has received a refund of any Indemnified Taxes to which Borrowers
or their Subsidiaries have paid additional amounts pursuant to this
Section 16, so
long as no Default or Event of Default has occurred and is
continuing, it shall pay over such refund to Borrowers or their
Subsidiaries (but only to the extent of payments made, or
additional amounts paid, by Borrowers or their Subsidiaries under
this Section 16 with respect to
Indemnified Taxes giving rise to such a refund), net of all
out-of-pocket expenses of Agent or such Lender and without interest
(other than any interest paid by the applicable Governmental
Authority with respect to such a refund); provided, that Borrowers, for
themselves and on behalf of their Subsidiaries, upon the request of
Agent or such Lender, agree to repay the amount paid over to
Borrowers or their Subsidiaries (plus any penalties, interest or
other charges, imposed by the applicable Governmental Authority,
other than such penalties, interest or other charges imposed as a
result of the willful misconduct or gross negligence of Agent
hereunder) to Agent or such Lender in the event Agent or such
Lender is required to repay such refund to such Governmental
Authority. Notwithstanding anything in this Agreement to the
contrary, this Section 16 shall not be
construed to require Agent or any Lender to make available its tax
returns (or any other information which it deems confidential) to
Borrowers, any of their Subsidiaries, or any other
Person.
17. GENERAL
PROVISIONS.
17.1 Effectiveness.
This Agreement shall be binding and deemed effective when executed
by each Borrower, Agent, and each Lender whose signature is
provided for on the signature pages hereof.
17.2 Section Headings.
Headings and numbers have been set forth herein for convenience
only. Unless the contrary is compelled by the context, everything
contained in each Section applies equally to this entire
Agreement.
17.3 Interpretation.
Neither this Agreement nor any uncertainty or ambiguity herein
shall be construed against the Lender Group or any Loan Party,
whether under any rule of construction or otherwise. On the
contrary, this Agreement has been reviewed by all parties and shall
be construed and interpreted according to the ordinary meaning of
the words used so as to accomplish fairly the purposes and
intentions of all parties hereto.
17.4 Severability
of Provisions. Each provision of this Agreement shall be
severable from every other provision of this Agreement for the
purpose of determining the legal enforceability of any specific
provision.
17.5 Bank
Product Providers. Each Bank Product Provider in its
capacity as such shall be deemed a third-party beneficiary hereof
and of the provisions of the other Loan Documents for purposes of
any reference in a Loan Document to the parties for whom Agent is
acting. Agent hereby agrees to act as agent for such Bank Product
Providers and, by virtue of entering into a Bank Product Agreement,
the applicable Bank Product Provider shall be automatically deemed
to have appointed Agent as its agent and to have accepted the
benefits of the Loan Documents. It is understood and agreed that
the rights and benefits of each Bank Product Provider under the
Loan Documents consist exclusively of such Bank Product
Provider’s being a beneficiary of the Liens and security
interests (and, if applicable, guarantees) granted to Agent and the
right to share in payments and collections out of the Collateral as
more fully set forth herein. In addition, each Bank Product
Provider, by virtue of entering into a Bank Product Agreement,
shall be automatically deemed to have agreed that Agent shall have
the right, but shall have no obligation, to establish, maintain,
relax, or release reserves in respect of the Bank Product
Obligations and that if reserves are established there is no
obligation on the part of Agent to determine or insure whether the
amount of any such reserve is appropriate or not. In connection
with any such distribution of payments or proceeds of Collateral,
Agent shall be entitled to assume no amounts are due or owing to
any Bank Product Provider unless such Bank Product Provider has
provided a written certification (setting forth a reasonably
detailed calculation) to Agent as to the amounts that are due and
owing to it and such written certification is received by Agent a
reasonable period of time prior to the making of such distribution.
Agent shall have no obligation to calculate the amount due and
payable with respect to any Bank Products, but may rely upon the
written certification of the amount due and payable from the
applicable Bank Product Provider. In the absence of an updated
certification, Agent shall be entitled to assume that the amount
due and payable to the applicable Bank Product Provider is the
amount last certified to Agent by such Bank Product Provider as
being due and payable (less any distributions made to such Bank
Product Provider on account thereof). Borrowers may obtain Bank
Products from any Bank Product Provider, although Borrowers are not
required to do so. Each Borrower acknowledges and agrees that no
Bank Product Provider has committed to provide any Bank Products
and that the providing of Bank Products by any Bank Product
Provider is in the sole and absolute discretion of such Bank
Product Provider. Notwithstanding anything to the contrary in this
Agreement or any other Loan Document, no provider or holder of any
Bank Product shall have any voting or approval rights hereunder (or
be deemed a Lender) solely by virtue of its status as the provider
or holder of such agreements or products or the Obligations owing
thereunder, nor shall the consent of any such provider or holder be
required (other than in their capacities as Lenders, to the extent
applicable) for any matter hereunder or under any of the other Loan
Documents, including as to any matter relating to the Collateral or
the release of Collateral or Guarantors.
17.6 Debtor-Creditor
Relationship. The relationship between the Lenders and
Agent, on the one hand, and the Loan Parties, on the other hand, is
solely that of creditor and debtor. No member of the Lender Group
has (or shall be deemed to have) any fiduciary relationship or duty
to any Loan Party arising out of or in connection with the Loan
Documents or the transactions contemplated thereby, and there is no
agency or joint venture relationship between the members of the
Lender Group, on the one hand, and the Loan Parties, on the other
hand, by virtue of any Loan Document or any transaction
contemplated therein.
17.7 Counterparts;
Electronic Execution. This Agreement may be executed in any
number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, shall be
deemed to be an original, and all of which, when taken together,
shall constitute but one and the same Agreement. Delivery of an
executed counterpart of this Agreement by telefacsimile or other
electronic method of transmission shall be equally as effective as
delivery of an original executed counterpart of this Agreement. Any
party delivering an executed counterpart of this Agreement by
telefacsimile or other electronic method of transmission also shall
deliver an original executed counterpart of this Agreement but the
failure to deliver an original executed counterpart shall not
affect the validity, enforceability, and binding effect of this
Agreement. The foregoing shall apply to each other Loan Document
mutatis
mutandis.
17.8 Revival
and Reinstatement of Obligations; Certain Waivers.
If any member of the Lender Group or any Bank Product Provider
repays, refunds, restores, or returns in whole or in
part, any payment or property (including any proceeds of
Collateral) previously paid
or transferred to such member of the Lender Group or
such Bank Product Provider in full or partial satisfaction
of any Obligation or on account of any
other obligation of any Loan Party under any Loan
Document or any Bank Product Agreement, because the payment,
transfer, or the incurrence of the obligation so satisfied is
asserted or declared to be void, voidable, or otherwise
recoverable under any law relating to creditors’ rights,
including provisions of the Bankruptcy Code or other applicable law
relating to fraudulent transfers, preferences, transfers at
undervalue, or other voidable or recoverable obligations
or transfers (each, a “Voidable Transfer”), or
because such member of the Lender Group or Bank Product
Provider elects to do so on the reasonable advice of its counsel in
connection with a claim that the payment, transfer, or
incurrence is or may be a Voidable Transfer, then, as to any
such Voidable Transfer, or the amount thereof that such member
of the Lender Group or Bank Product Provider elects
to repay, restore, or return (including pursuant to a
settlement of any claim in respect thereof), and as to all
reasonable costs, expenses, and attorneys’ fees of such
member of the Lender Group or Bank Product Provider related
thereto, (i) the liability of the Loan Parties with
respect to the amount or property paid, refunded, restored, or
returned will automatically and immediately be revived, reinstated,
and restored and will exist and (ii) Agent’s
Liens securing such liability shall be effective,
revived, and remain in full force and effect, in each
case, as fully as if such Voidable Transfer had never been
made. If, prior to any of the foregoing, (A) Agent’s
Liens shall have been released, discharged, or terminated or
(B) any provision of this Agreement shall have been terminated
or cancelled, Agent’s Liens, or such provision of
this Agreement, shall be reinstated in full force and effect and
such prior release, discharge, termination, cancellation or
surrender shall not diminish, release, discharge, impair or
otherwise affect the obligation of any Loan Party in respect of
such liability or any Collateral securing
such liability.
17.9 Confidentiality.
(a) Agent and Lenders
each individually (and not jointly or jointly and severally) agree
that material, non-public information regarding Borrowers and their
Subsidiaries, their operations, assets, and existing and
contemplated business plans
(“Confidential
Information”)
shall be treated by Agent and the Lenders in a confidential manner,
and shall not be disclosed by Agent and the Lenders to Persons who
are not parties to this Agreement, except: (i) to attorneys
for and other advisors, accountants, auditors, and consultants to
any member of the Lender Group
and to employees, directors and officers of any member of the
Lender Group (the Persons in this clause (i),
“Lender Group
Representatives”)
on a “need to know” basis in connection with this
Agreement and the transactions contemplated hereby and on a
confidential basis, (ii) to Subsidiaries and Affiliates
of any member of the Lender Group (including the Bank Product
Providers), provided that any such
Subsidiary or Affiliate shall have agreed to receive such
information hereunder subject to the terms of this Section 17.9,
(iii) as may be required by
regulatory authorities so long as such authorities are informed of
the confidential nature of such information, (iv) as may be
required by statute, decision, or judicial or administrative order,
rule, or regulation; provided
that (x) prior to any disclosure under this
clause (iv),
the disclosing party agrees to provide Borrowers with prior notice
thereof, to the extent that it is practicable to do so and to the
extent that the disclosing party is permitted to provide such prior
notice to Borrowers pursuant to the terms of the applicable
statute, decision, or judicial or administrative order, rule, or
regulation and (y) any disclosure under this
clause (iv) shall
be limited to the portion of the Confidential Information as may be
required by such statute, decision, or judicial or
administrative order, rule, or regulation, (v) as may be
agreed to in advance in writing by Borrowers, (vi) as
requested or required by any Governmental Authority pursuant to any
subpoena or other legal process, provided,
that, (x) prior to any disclosure under this
clause (vi) the
disclosing party agrees to provide Borrowers with prior written
notice thereof, to the extent that it is practicable to do so and
to the extent that the disclosing party is permitted to provide
such prior written notice to Borrowers pursuant to the terms of the
subpoena or other legal process and (y) any disclosure under
this clause (vi) shall
be limited to the portion of the Confidential Information as may be
required by such Governmental Authority pursuant to such subpoena
or other legal process, (vii) as to any such
information that is or becomes generally available to the public
(other than as a result of prohibited disclosure by Agent or the
Lenders
or the Lender Group
Representatives), (viii) in connection with any
assignment, participation or pledge of any Lender’s interest
under this Agreement, provided that prior to receipt
of Confidential Information any such assignee, participant, or
pledgee shall have agreed in writing to receive such Confidential
Information either subject to the terms of this Section 17.9 or pursuant
to confidentiality requirements substantially similar to those
contained in this Section 17.9 (and such
Person may disclose such Confidential Information to Persons
employed or engaged by them as described in clause (i) above),
(ix) in connection with any litigation or other adversary
proceeding involving parties hereto which such litigation or
adversary proceeding involves claims related to the rights or
duties of such parties under this Agreement or the other Loan
Documents;
provided,
that, prior to any disclosure to any Person (other than any Loan
Party, Agent, any Lender, any of their respective Affiliates, or
their respective counsel) under this clause (ix) with
respect to litigation involving any Person (other than any
Borrower, Agent, any Lender, any of their respective Affiliates, or
their respective counsel), the disclosing party agrees to provide
Borrowers with prior written notice thereof,
and (x) in connection with, and to the extent
reasonably necessary for, the exercise of any secured creditor
remedy under this Agreement or under any other Loan
Document.
(b) Anything in this
Agreement to the contrary notwithstanding, Agent may disclose
information concerning the terms and conditions of this Agreement
and the other Loan Documents to loan syndication and pricing
reporting services or in its marketing or promotional materials,
with such information to consist of deal terms and other
information customarily found in such publications or marketing or
promotional materials and may otherwise use the name, logos, and
other insignia of any Borrower or the other Loan Parties and the
Commitments provided hereunder in any “tombstone” or
other advertisements, on its website or in other marketing
materials of Agent.
(c) The Loan Parties
hereby acknowledge that Agent or its Affiliates may make available
to the Lenders materials or information provided by or on behalf of
Borrowers hereunder (collectively, “Borrower Materials”) by
posting the Borrower Materials on IntraLinks, SyndTrak or another
similar electronic system (the “Platform”) and certain of
the Lenders may be “public-side” Lenders (i.e., Lenders
that do not wish to receive material non-public information with
respect to the Loan Parties or their securities) (each, a
“Public
Lender”). The Loan Parties shall be deemed to have
authorized Agent and its Affiliates and the Lenders to treat
Borrower Materials marked “PUBLIC” or otherwise at any
time filed with the SEC as not containing any material non-public
information with respect to the Loan Parties or their securities
for purposes of United States federal and state securities laws.
All Borrower Materials marked “PUBLIC” are permitted to
be made available through a portion of the Platform designated as
“Public Investor” (or another similar term). Agent and
its Affiliates and the Lenders shall be entitled to treat any
Borrower Materials that are not marked “PUBLIC” or that
are not at any time filed with the SEC as being suitable only for
posting on a portion of the Platform not marked as “Public
Investor” (or such other similar term).
17.10 Survival.
All representations and warranties made by the Loan Parties in the
Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by
the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding
that Agent, Issuing Bank, or any Lender may have had notice or
knowledge of any Default or Event of Default or incorrect
representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as
the principal of, or any accrued interest on, any Loan or any fee
or any other amount payable under this Agreement is outstanding or
unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or been terminated.
17.11 Patriot
Act. Each Lender that is subject to the requirements of the
Patriot Act hereby notifies Borrowers that pursuant to the
requirements of the Act, it is required to obtain, verify and
record information that identifies each Borrower, which information
includes the name and address of each Borrower and other
information that will allow such Lender to identify each Borrower
in accordance with the Patriot Act. In addition, if Agent is
required by law or regulation or internal policies to do so, it
shall have the right to periodically conduct (a) Patriot Act
searches, OFAC/PEP searches, and customary individual background
checks for the Loan Parties and (b) OFAC/PEP searches and
customary individual background checks for the Loan Parties’
senior management and key principals, and each Borrower agrees to
cooperate in respect of the conduct of such searches and further
agrees that the reasonable costs and charges for such searches
shall constitute Lender Group Expenses hereunder and be for the
account of Borrowers.
17.12 Integration.
This Agreement, together with the other Loan Documents, reflects
the entire understanding of the parties with respect to the
transactions contemplated hereby and shall not be contradicted or
qualified by any other agreement, oral or written, before the date
hereof. The foregoing to the contrary notwithstanding, all Bank
Product Agreements, if any, are independent agreements governed by
the written provisions of such Bank Product Agreements, which will
remain in full force and effect, unaffected by any repayment,
prepayments, acceleration, reduction, increase, or change in the
terms of any credit extended hereunder, except as otherwise
expressly provided in such Bank Product Agreement.
17.13 Pac-Van
as Agent for Borrowers. Each Borrower hereby irrevocably
appoints Pac-Van as the borrowing agent and attorney-in-fact for
all Borrowers (the “Administrative Borrower”)
which appointment shall remain in full force and effect unless and
until Agent shall have received prior written notice signed by each
Borrower that such appointment has been revoked and that another
Borrower has been appointed Administrative Borrower. Each Borrower
hereby irrevocably appoints and authorizes the Administrative
Borrower (a) to provide Agent with all notices, reports,
certifications, and other documents with respect to Revolving Loans
and Letters of Credit obtained for the benefit of any Borrower and
all other notices and instructions under this Agreement and the
other Loan Documents (and any notice or instruction provided by
Administrative Borrower shall be deemed to be given by Borrowers
hereunder and shall bind each Borrower), (b) to receive
notices and instructions from members of the Lender Group (and any
notice or instruction provided by any member of the Lender Group to
the Administrative Borrower in accordance with the terms hereof
shall be deemed to have been given to each Borrower), (c) to
request and receive proceeds of all Revolving Loans (including any
Swing Loans) and Protective Advances to such Borrower on behalf of
such Borrower (and any such Revolving Loan, Swing Loan, and/or
Protective Advance disbursed to or on behalf of Administrative
Borrower shall be deemed to have been made to such Borrower), and
(d) to take such action as the Administrative Borrower deems
appropriate on its behalf to obtain Revolving Loans and Letters of
Credit and to exercise such other powers as are reasonably
incidental thereto to carry out the purposes of this Agreement. It
is understood that the handling of the Loan Account and Collateral
in a combined fashion, as more fully set forth herein, is done
solely as an accommodation to Borrowers in order to utilize the
collective borrowing powers of Borrowers in the most efficient and
economical manner and at their request, and that Lender Group shall
not incur liability to any Borrower as a result hereof. Each
Borrower expects to derive benefit, directly or indirectly, from
the handling of the Loan Account and the Collateral in a combined
fashion since the successful operation of each Borrower is
dependent on the continued successful performance of the integrated
group. To induce the Lender Group to do so, and in consideration
thereof, each Borrower hereby jointly and severally agrees to
indemnify each member of the Lender Group and hold each member of
the Lender Group harmless against any and all liability, expense,
loss or claim of damage or injury, made against the Lender Group by
any Borrower or by any third party whosoever, arising from or
incurred by reason of (i) the handling of the Loan Account and
Collateral of Borrowers as herein provided, or (ii) the Lender
Group’s relying on any instructions of the Administrative
Borrower, except that
Borrowers will have no liability to the relevant Agent-Related
Person or Lender-Related Person under this Section 17.13 with respect
to any liability that has been finally determined by a court of
competent jurisdiction to have resulted solely from the gross
negligence or willful misconduct of such Agent-Related Person or
Lender-Related Person, as the case may be.
17.14 [Reserved].
17.15 Currency
Indemnity. If, for the purposes of obtaining judgment in any
court in any jurisdiction with respect to this Agreement or any of
the other Loan Documents, it becomes necessary to convert into the
currency of such jurisdiction (the “Judgment Currency”) any
amount due under this Agreement or under any of the other Loan
Documents in any currency other than the Judgment Currency (the
“Currency
Due”), then conversion shall be made at the Exchange
Rate at which Agent is able, on the relevant date, to purchase the
Currency Due with the Judgment Currency prevailing on the Business
Day before the day on which judgment is given. In the event that
there is a change in the Exchange Rate prevailing between the
Business Day before the day on which the judgment is given and the
date of receipt by Agent of the amount due, Borrowers will, on the
date of receipt by Agent, pay such additional amounts, if any, as
may be necessary to ensure that the amount received by Agent on
such date is the amount in the Judgment Currency which when
converted at the rate of exchange prevailing on the date of receipt
by Agent is the amount then due under this Agreement or such other
of the Loan Documents in the Currency Due. If the amount of the
Currency Due which Agent is able to purchase is less than the
amount of the Currency Due originally due to it, Loan Parties shall
indemnify and save Agent harmless from and against loss or damage
arising as a result of such deficiency. The indemnity contained
herein shall constitute an obligation separate and independent from
the other obligations contained in this Agreement and the other
Loan Documents, shall give rise to a separate and independent cause
of action, shall apply irrespective of any indulgence granted by
any Agent from time to time and shall continue in full force and
effect notwithstanding any judgment or order for a liquidated sum
in respect of an amount due under this Agreement or any of the
other Loan Documents or under any judgment or order.
17.16 Acknowledgment
and Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in
any other agreement, arrangement, or understanding among any such
parties, each party hereto acknowledges that any liability of any
EEA Financial Institution arising under any Loan Document, to
the extent such liability is unsecured, may be subject to the
write-down and conversion powers of an EEA Resolution Authority and
agrees and consents to, and acknowledges and agrees to be bound by
the following:
(a) the application of
any Write-Down and Conversion Powers by an EEA Resolution Authority
to any such liabilities arising hereunder which may be payable to
it by any party hereto that is an EEA Financial Institution;
and
(b) the effects of any
Bail-in Action on any such liability, including, if applicable, any
of the following:
(i) a reduction in full
or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or
other instruments of ownership in such EEA Financial Institution,
its parent undertaking, or a bridge institution that may be issued
to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any
rights with respect to any such liability under this Agreement or
any other Loan Document; or
(iii) the
variation of the terms of such liability in connection with the
exercise of the write-down and conversion powers of any EEA
Resolution Authority.
[Signature
pages to follow.]
IN
WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed and delivered as of the
date first above written.
|
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PAC-VAN, INC.,as
a Borrower and as the initial Administrative Borrower
By: Name: Title:
|
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LONE
STAR TANK RENTAL INC.,as a Borrower
By: Name: Title:
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GFN REALTY
COMPANY, LLC,as a Borrower
By: Name: Title:
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SOUTHERN
FRAC, LLC,as a Borrower
By: GFN
Manufacturing Corporation,a Delaware corporation, as
Manager
By: Name: Title:
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|
Signature
page to Amended and Restated Credit
Agreement—Pac-Van
WELLS
FARGO BANK, NATIONAL ASSOCIATION,
as
Agent, as a Lender, as a Co-Lead Arranger, as a Joint Book Runner,
and as a Co-Syndication Agent
By:
Name:
Its
Authorized Signatory
Signature
page to Amended and Restated Credit
Agreement—Pac-Van
EAST
WEST BANK,
as a
Lender, as a Co-Lead Arranger, as a Joint Book Runner, and as a
Co-Syndication Agent
By:
Name:
Its
Authorized Signatory
Signature
page to Amended and Restated Credit
Agreement—Pac-Van
CIT
BANK, N.A.,
f/k/a OneWest Bank N.A.,
successor in interest to OneWest
Bank, FSB,
as a
Lender
By:
Name:
Its
Authorized Signatory
Signature
page to Amended and Restated Credit
Agreement—Pac-Van
THE
PRIVATEBANK AND TRUST COMPANY,
as a
Lender
By:
Name:
Its
Authorized Signatory
Signature
page to Amended and Restated Credit
Agreement—Pac-Van
KEYBANK, NATIONAL
ASSOCIATION,
as a
Lender
By:
Name:
Its
Authorized Signatory
Signature
page to Amended and Restated Credit
Agreement—Pac-Van
BANK
HAPOALIM B.M.,
as a
Lender
By:
Name:
Its
Authorized Signatory
By:
Name:
Its
Authorized Signatory
Signature
page to Amended and Restated Credit
Agreement—Pac-Van
GACP I, L.P.,
a
Delaware limited partnership,
as a
Lender
By:
Name:
Its
Authorized Signatory
Signature
page to Amended and Restated Credit
Agreement—Pac-Van
EXHIBIT A-1
Form of Assignment and Acceptance Agreement
This ASSIGNMENT AND ACCEPTANCE AGREEMENT
(“Assignment
Agreement”) is entered
into as of between (“Assignor”)
and (“Assignee”).
Reference is made to the Agreement described in Annex I
hereto (the “Credit
Agreement”). Capitalized
terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Credit Agreement.
1. In
accordance with the terms and conditions of Section 13 of the
Credit Agreement, the Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to the Assignor’s rights and
obligations under the Loan Documents as of the date hereof with
respect to the Obligations owing to the Assignor, and
Assignor’s portion of the Commitments, all to the extent
specified on Annex
I.
2. The
Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim and (ii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment
Agreement and to consummate the transactions contemplated hereby;
(b) makes no representation or warranty and assumes no
responsibility with respect to (i) any statements,
representations or warranties made in or in connection with the
Loan Documents, or (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan
Documents or any other instrument or document furnished pursuant
thereto; (c) makes no representation or warranty and assumes
no responsibility with respect to the financial condition of any
Borrower [or
any Guarantor] or the
performance or observance by any Borrower [or any Guarantor]
of any of [its] [their respective]
obligations under the Loan Documents
or any other instrument or document furnished pursuant thereto, and
(d) represents and warrants that the amount set forth as the
Purchase Price on Annex I
represents the amount owed by Borrower
to Assignor with respect to Assignor’s share of the Last-Out
Term Loan and the Revolving Loans assigned hereunder, as reflected
on Assignor’s books and records.
3. The
Assignee (a) confirms that it has received copies of the
Credit Agreement and the other Loan Documents, together with copies
of the financial statements referred to therein and such other
documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment
Agreement; (b) agrees that it will, independently and without
reliance upon Agent, Assignor, or any other Lender, based upon such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
any action under the Loan Documents; (c) appoints and
authorizes Agent to take such action as agent on its behalf and to
exercise such powers under the Loan Documents as are delegated to
Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (d) agrees that it will perform
in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a
Lender; [and
(e) attaches the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Assignee’s
status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the
Assignee under the Credit Agreement or such other documents as are
necessary to indicate that all such payments are subject to such
rates at a rate reduced by an applicable tax
treaty.]
4. Following
the execution of this Assignment Agreement by the Assignor and
Assignee, the Assignor will deliver this Assignment Agreement to
Agent for recording by Agent. The effective date of this Assignment
(the “Settlement
Date”) shall be the
latest to occur of (a) the date of the execution and delivery
hereof by the Assignor and the Assignee, (b) the receipt by
Agent for its sole and separate account a processing fee in the
amount of $5,000 (if required by the Credit Agreement),
(c) the receipt of any required consent of Agent, and
(d) the date specified in Annex
I.
5. As
of the Settlement Date (a) the Assignee shall be a party to
the Credit Agreement and, to the extent of the interest assigned
pursuant to this Assignment Agreement, have the rights and
obligations of a Lender thereunder and under the other Loan
Documents, and (b) the Assignor shall, to the extent of the
interest assigned pursuant to this Assignment Agreement, relinquish
its rights and be released from its obligations under the Credit
Agreement and the other Loan Documents, provided,
however,
that nothing contained herein shall release any assigning Lender
from obligations that survive the termination of this Agreement,
including such assigning Lender’s obligations under
Section 15 and Section 17.9(a) of the Credit
Agreement.
6. Upon
the Settlement Date, Assignee shall pay to Assignor the Purchase
Price (as set forth in Annex
I). From and after the
Settlement Date, Agent shall make all payments that are due and
payable to the holder of the interest assigned hereunder (including
payments of principal, interest, fees and other amounts) to
Assignor for amounts which have accrued up to but excluding the
Settlement Date and to Assignee for amounts which have accrued from
and after the Settlement Date. On the Settlement Date, Assignor
shall pay to Assignee an amount equal to the portion of any
interest, fee, or any other charge that was paid to Assignor prior
to the Settlement Date on account of the interest assigned
hereunder and that are due and payable to Assignee with respect
thereto, to the extent that such interest, fee or other charge
relates to the period of time from and after the Settlement
Date.
7. This
Assignment Agreement may be executed in counterparts and by the
parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. This Assignment
Agreement may be executed and delivered by telecopier or other
facsimile transmission all with the same force and effect as if the
same were a fully executed and delivered original manual
counterpart.
8. THIS
ASSIGNMENT AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING
CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER, AND JUDICIAL REFERENCE
SET FORTH IN SECTION 12 OF THE CREDIT AGREEMENT, AND SUCH
PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE
MUTATIS
MUTANDIS.
[Signature
pages to follow.]
Exhibit A-1
IN
WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement and Annex I hereto to be executed by their
respective officers, as of the first date written
above.
[NAME
OF ASSIGNOR],
as Assignor
By:
Name:
Title:
[NAME
OF ASSIGNEE],
as Assignee
By:
Name:
Title:
ACCEPTED THIS [*] DAY OF
[*]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, as Agent
By:
Name:
Title:
Exhibit A-1
ANNEX FOR ASSIGNMENT AND ACCEPTANCE
ANNEX I
1.
Borrowers:
Pac-Van, Inc., an Indiana corporation; Lone
Star Tank Rental Inc., a Delaware corporation; GFN Realty
Company, LLC, a Delaware limited liability company; Southern
Frac, LLC, a Texas limited liability company; and certain of their
Affiliates
2.
Name and Date of Credit Agreement:
Amended and Restated Credit Agreement,
dated as of April 7, 2014, by and
among Borrowers, the lenders from time to time a party thereto (the
“Lenders”),
and Xxxxx Fargo Bank, National Association, a national banking
association, as administrative agent for the
Lenders
3.
Date of Assignment
Agreement:
4.
Amounts:
(i)
Assigned Amount of Revolver
Commitment $
(ii)
Assigned Amount of Revolving
Loans $
(iii)
Assigned Amount of Last-Out Term
Loan $
5.
Settlement
Date:
6.
Purchase
Price
$_____________
7.
Notice
and Payment Instructions, etc.
Assignee: Assignor:
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Exhibit X-0
XXXXXXX X-0
Form of Bank Product Provider Agreement
[Letterhead
of Specified Bank Products Provider]
[Date]
To:
Xxxxx Fargo Bank,
National Association
10 X. Xxxxxx Drive, 13th Floor
MAC N8405-131
Xxxxxxx, Xxxxxxxx 00000
Attn: Loan Portfolio Manager (Pac-Van)
Reference hereby is
made to that certain Amended and Restated Credit Agreement dated as
of April 7, 2014 (as amended, restated,
supplemented, or otherwise modified from time to time, the
“Credit
Agreement”), by and among Pac-Van, Inc., an
Indiana corporation (“Pac-Van”), Lone Star
Tank Rental Inc., a Delaware corporation (“Lone Star”), GFN
Realty Company, LLC, a Delaware limited liability company
(“GFNRC”), Southern
Frac, LLC, a Texas limited liability company
(“Southern
Frac”), and the
Affiliates of Pac-Van, Lone Star, GFNRC, and Southern Frac
party thereto as “Borrowers” (collectively, with
Pac-Van, Lone Star, GFNRC, and Southern Frac,
“Borrowers”),
the lenders party thereto as “Lenders” (each of such
Lenders, together with its successors and permitted assigns, is
referred to hereinafter as a “Lender”), and Xxxxx Fargo
Bank, National Association, a national banking association, as
administrative agent for each member of the Lender Group and the
Bank Product Providers (in such capacity, together with its
successors and assigns in such capacity, the “Agent”). Capitalized
terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Credit Agreement.
Reference is also
made to that certain [describe the
Bank Product Agreement or Agreements] ([each, a][the] “Specified Bank Product
Agreement”) dated as of __________, by and between
[Lender or Affiliate of
Lender] (the “Specified Bank Products
Provider”) and [identify the Loan Party].
1. Appointment of Agent. The
Specified Bank Products Provider hereby designates and appoints
Agent, and Agent by its signature below hereby accepts such
appointment, as its agent under the Credit Agreement and the other
Loan Documents. The Specified Bank Products Provider hereby
acknowledges that it has reviewed Sections 15.1 through 15.15 and
Sections 15.17, 15.18, and 17.5 (collectively such sections are
referred to herein as the “Agency Provisions”),
including, as applicable, the defined terms used therein. Specified
Bank Products Provider and Agent each agree that the Agency
Provisions which govern the relationship, and certain
representations, acknowledgements, appointments, rights,
restrictions, and agreements, between Agent, on the one hand, and
the Lenders or the Lender Group, on the other hand, shall, from and
after the date of this letter agreement also apply to and govern,
mutatis mutandis, the
relationship between Agent, on the one hand, and the Specified Bank
Product Provider with respect to the Bank Products provided
pursuant to the Specified Bank Product Agreement[s], on the other hand.
2. Acknowledgement of Certain Provisions
of Credit Agreement. The Specified Bank Products Provider
hereby acknowledges that it has reviewed the provisions of Sections
2.4(b)(iii), 14.1, 15, and 17.5 of the Credit Agreement, including,
as applicable, the defined terms used therein, and agrees to be
bound by the provisions thereof. Without limiting the generality of
any of the foregoing referenced provisions, Specified Bank Product
Provider understands and agrees that its rights and benefits under
the Loan Documents consist solely of it being a beneficiary of the
Liens and security interests granted to Agent and the right to
share in proceeds of the Collateral to the extent set forth in the
Credit Agreement.
3. Reporting Requirements. Agent
shall have no obligation to calculate the amount due and payable
with respect to any Bank Products. On a monthly basis (not later
than the 10th Business Day of each calendar month) or as more
frequently as Agent shall request, the Specified Bank Products
Provider agrees to provide Agent with a written report, in form and
substance satisfactory to Agent, detailing Specified Bank Products
Provider’s reasonable determination of the liabilities and
obligations (and xxxx- to-market exposure) of Borrowers and the
other Loan Parties in respect of the Bank Products provided by
Specified Bank Products Provider pursuant to the Specified Bank
Products Agreement[s]. If
Agent does not receive such written report within the time period
provided above, Agent shall be entitled to assume that the
reasonable determination of the liabilities and obligations of
Borrowers and the other Loan Parties with respect to the Bank
Products provided pursuant to the Specified Bank Products
Agreement[s] is
zero.
4. Bank Product Reserve
Conditions. Specified Bank Products Provider further
acknowledges and agrees that Agent shall have the right (to the
extent permitted pursuant to the Credit Agreement), but shall have
no obligation to establish, maintain, relax, or release reserves in
respect of any of the Bank Product Obligations and that if reserves
are established there is no obligation on the part of Agent to
determine or insure whether the amount of any such reserve is
appropriate or not (including whether it is sufficient in amount).
If Agent chooses to implement a reserve, Specified Bank Products
Provider acknowledges and agrees that Agent shall be entitled to
rely on the information in the reports described above to establish
the Bank Product Reserve Amount.
5. Bank Product Obligations. From
and after the delivery to Agent of this agreement duly executed by
Specified Bank Product Provider and the acknowledgement of this
agreement by Agent and Administrative Borrower, the obligations and
liabilities of Borrowers and the other Loan Parties to Specified
Bank Product Provider in respect of Bank Products evidenced by the
Specified Bank Product Agreement[s] shall constitute Bank Product
Obligations (and which, in turn, shall constitute Obligations), and
Specified Bank Product Provider shall constitute a Bank Product
Provider until such time as Specified Bank Products Provider or its
Affiliate is no longer a Lender. Specified Bank Products Provider
acknowledges that other Bank Products (which may or may not be
Specified Bank Products) may exist at any time.
6. Notices.
All notices and other communications provided for hereunder shall
be given in the form and manner provided in Section 11 of the
Credit Agreement, and, if to Agent, shall be mailed, sent, or
delivered to Agent in accordance with Section 11 in the Credit
Agreement, if to Borrower, shall be mailed, sent, or delivered to
Borrower in accordance with Section 11 in the Credit Agreement,
and, if to Specified Bank Products Provider, shall be mailed, sent,
or delivered to the address set forth
below, or, in each case as to any party, at such other address as
shall be designated by such party in a written notice to the other
party.
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If to Specified Bank Products Provider:
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___________________________________________________________________________Attn:
____________________Fax No. __________________
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7. Miscellaneous. This agreement
shall bind and inure to the benefit of the respective successors
and assigns of each of the parties hereto (including any successor
agent pursuant to Section
15.9 of the Credit Agreement); provided, that Borrower may not
assign this agreement or any rights or duties hereunder without the
other parties’ prior written consent and any prohibited
assignment shall be absolutely void ab initio. Unless the context of this
agreement clearly requires otherwise, references to the plural
include the singular, references to the singular include the
plural, the terms “includes” and
“including” are not limiting, and the term
“or” has, except where otherwise indicated, the
inclusive meaning represented by the phrase “and/or.”
This agreement may be executed in any number of counterparts and by
different parties on separate counterparts. Each of such
counterparts shall be deemed to be an original, and all of such
counterparts, taken together, shall constitute but one and the same
agreement. Delivery of an executed counterpart of this letter by
telefacsimile or other means of electronic transmission shall be
equally effective as delivery of a manually executed
counterpart.
8. Governing Law, Etc. THIS
AGREEMENT SHALL BE SUBJECT TO THE
PROVISIONS REGARDING CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER,
AND JUDICIAL REFERENCE SET FORTH IN SECTION 12 OF THE CREDIT
AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS
REFERENCE MUTATIS
MUTANDIS.
[Signature
pages to follow.]
Exhibit B-2
Sincerely,
[SPECIFIED
BANK PRODUCTS PROVIDER]
By:
Name:
Title:
Acknowledged, accepted, and agreed
as of the date first written above:
PAC-VAN, INC.,
as
Administrative Borrower on behalf of Borrowers
By:
Name:
Title:
Acknowledged, accepted, and agreed
as of _______________, 20____:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, as Agent
By:
Name:
Title:
Exhibit B-2
EXHIBIT C-1
Form of Compliance Certificate
[on
Administrative Borrower’s letterhead]
To:
Xxxxx Fargo Bank,
National Association
10 X. Xxxxxx Drive, 13th Floor
MAC N8405-131
Xxxxxxx, Xxxxxxxx 00000
Attn: Loan Portfolio Manager (Pac-Van)
Re:
Compliance
Certificate dated [_____]
Ladies
and Gentlemen:
Reference is made
to that certain Amended and Restated Credit Agreement dated as of
April 7, 2014 (as
amended, restated, supplemented, or otherwise modified from time to
time, the “Credit
Agreement”), by and among Pac-Van, Inc., an
Indiana corporation (“Pac-Van”), Lone Star
Tank Rental Inc., a Delaware corporation (“Lone Star”), GFN
Realty Company, LLC, a Delaware limited liability company
(“GFNRC”), Southern
Frac, LLC, a Texas limited liability company
(“Southern
Frac”), and the
Affiliates of Pac-Van, Lone Star, GFNRC, and Southern Frac
party thereto as “Borrowers” (collectively, with
Pac-Van, Lone Star, GFNRC, and Southern Frac,
“Borrowers”),
the lenders party thereto as “Lenders” (each of such
Lenders, together with its successors and permitted assigns, is
referred to hereinafter as a “Lender”), and Xxxxx Fargo
Bank, National Association, a national banking association, as
administrative agent for each member of the Lender Group and the
Bank Product Providers (in such capacity, together with its
successors and assigns in such capacity, the “Agent”). Capitalized
terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Credit Agreement.
Pursuant to
Section 5.1 of the Credit Agreement, the undersigned officer
of Administrative Borrower hereby certifies as of the date hereof
that:
1. The
financial information of Borrower and its Subsidiaries furnished in
Schedule 1
attached hereto, has been prepared in accordance with GAAP (except,
in the case of unaudited financial statements, for year-end audit
adjustments and the lack of footnotes), and fairly presents in all
material respects the financial condition of Borrowers and their
Subsidiaries as of the date set forth therein.
2. Such
officer has reviewed the terms of the Credit Agreement and has
made, or caused to be made under his/her supervision, a review in
reasonable detail of the transactions and financial condition of
Borrowers and their Subsidiaries during the accounting period
covered by the financial statements delivered pursuant to
Section 5.1 of the Credit Agreement.
3. Such
review has not disclosed the existence on and as of the date
hereof, and the undersigned does not have knowledge of the
existence as of the date hereof, of any event or condition that
constitutes a Default or Event of Default, except for such
conditions or events listed on Schedule 2 attached
hereto, in each case specifying the nature and period of existence
thereof and what action Borrowers and/or their Subsidiaries have
taken, are taking, or propose to take with respect
thereto.
4. Except
as set forth on Schedule 3 attached
hereto, the representations and warranties of Borrowers and their
Subsidiaries set forth in the Credit Agreement and the other Loan
Documents are true and correct in all material respects (except
that such materiality qualifier shall not be applicable to any
representations and warranties that already are qualified or
modified by materiality in the text thereof) on and as of the date
hereof (except to the extent that such representations and
warranties relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all
material respects (except that such materiality qualifier shall not
be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof) as of
such earlier date.
5. As
of the date hereof, Borrowers and their Subsidiaries are in
compliance with the applicable covenants contained in
Section 7 of the Credit Agreement as demonstrated on
Schedule 4
hereof.
[Signature
page to follow.]
Exhibit C-1
IN
WITNESS WHEREOF, this Compliance Certificate is executed by the
undersigned this _____ day of _______________,
________.
PAC-VAN, INC.,
as
Administrative Borrower
By:
Name:
Title:
Exhibit C-1
SCHEDULE 1
Financial Information
Exhibit C-1
SCHEDULE 2
Default or Event of Default
Exhibit C-1
SCHEDULE 3
Representations and Warranties
Exhibit C-1
SCHEDULE 4
Financial Covenants
Fixed Charge Coverage Ratio
Borrowers’
and their Subsidiaries’ Fixed Charge Coverage Ratio, measured
on a month-end basis for the 12-month period ending [_____], is [_____] to 1.00, which ratio
[is/is not] greater than or
equal to the ratio set forth in Section 7(a) of the
Credit Agreement for the corresponding period.
Rental Fleet Utilization Ratio
Borrowers’
and their Subsidiaries’ Rental Fleet Utilization Ratio,
measured on a month-end basis for the three-month period ending
[_____], is [_____] to 1.00, which ratio
[is/is not] greater than or
equal to the ratio set forth in Section 7(b) of the
Credit Agreement for the corresponding period.
Exhibit C-1
EXHIBIT L-1
Form of LIBOR Notice
Xxxxx
Fargo Bank, National Association, as Agent
10 X. Xxxxxx Drive, 13th Floor
MAC N8405-131
Xxxxxxx, Xxxxxxxx 00000
Attn: Loan Portfolio Manager (Pac-Van)
Ladies
and Gentlemen:
Reference hereby is
made to that certain Amended and Restated Credit Agreement dated as
of April 7, 2014 (as amended, restated,
supplemented, or otherwise modified from time to time, the
“Credit
Agreement”), by and among Pac-Van, Inc., an
Indiana corporation (“Pac-Van”), Lone Star
Tank Rental Inc., a Delaware corporation (“Lone Star”), GFN
Realty Company, LLC, a Delaware limited liability company
(“GFNRC”), Southern
Frac, LLC, a Texas limited liability company
(“Southern
Frac”), and the
Affiliates of Pac-Van, Lone Star, GFNRC, and Southern Frac
party thereto as “Borrowers” (collectively, with
Pac-Van, Lone Star, GFNRC, and Southern Frac,
“Borrowers”),
the lenders party thereto as “Lenders” (each of such
Lenders, together with its successors and permitted assigns, is
referred to hereinafter as a “Lender”), and Xxxxx Fargo
Bank, National Association, a national banking association, as
administrative agent for each member of the Lender Group and the
Bank Product Providers (in such capacity, together with its
successors and assigns in such capacity, the “Agent”). Capitalized
terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Credit Agreement.
This
LIBOR Notice represents Borrowers’ request to elect the LIBOR
Option with respect to outstanding Revolving Loans [or the Last-Out Term Loan] in the
amount of $[_____] (the
“LIBOR Rate
Advance”)[, and is a
written confirmation of the telephonic notice of such election
given to Agent].
The
LIBOR Rate Advance will have an Interest Period of [1, 2, or 3] month(s) commencing on
[_____].
This
LIBOR Notice further confirms Borrowers’ acceptance, for
purposes of determining the rate of interest based on the LIBOR
Rate under the Credit Agreement, of the LIBOR Rate as determined
pursuant to the Credit Agreement.
Administrative
Borrower, on behalf of Borrowers, represents and warrants that
(i) as of the date hereof, the representations and warranties
of Borrowers or their Subsidiaries contained in this Agreement and
in the other Loan Documents are true and correct in all material
respects (except that such materiality qualifier shall not be
applicable to any representations and warranties that already are
qualified or modified by materiality in the text thereof) on and as
of the date hereof, as though made on and as of such date (except
to the extent that such representations and warranties relate
solely to an earlier date, in which case such representations and
warranties shall be true and correct in all material respects
(except that such materiality qualifier shall not be applicable to
any representations and warranties that already are qualified or
modified by materiality in the text thereof) as of such earlier
date)), (ii) each of the covenants and agreements contained in
any Loan Document have been performed (to the extent required to be
performed on or before the date hereof or each such effective
date), and (iii) no Default or Event of Default has occurred
and is continuing on the date hereof, nor will any thereof occur
after giving effect to the request above.
[Signature
page to follow.]
Dated:
PAC-VAN, INC.,
as
Administrative Borrower
By:
Name:
Title:
Acknowledged by:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, as Agent
By:
Name:
Title:
Exhibit X-0
XXXXXXXX X-0
Agent’s Account
An
account at a bank designated by Agent from time to time as the
account into which Borrowers shall make all payments to Agent for
the benefit of the Lender Group and into which the Lender Group
shall make all payments to Agent under this Agreement and the other
Loan Documents; unless and until Agent notifies Administrative
Borrower and the Lender Group to the contrary, Agent’s
Account shall be that certain deposit account bearing account
number [...***...],
reference Pac-Van, and maintained by Agent with Xxxxx Fargo Bank,
N.A., 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX, ABA
#000-000-000.
Schedule A-1
SCHEDULE 1.1
Definitions
As used
in the Agreement, the following terms shall have the following
definitions:
“Account” means an account
(as that term is defined in the Code or the PPSA, as
applicable).
“Account Debtor” means any
Person who is obligated on an Account, chattel paper, or a general
intangible.
“Accounting Changes” means
changes in accounting principles required by the promulgation of
any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified
Public Accountants (or successor thereto or any agency with similar
functions).
“Acquired Indebtedness”
means Indebtedness of a Person whose assets or Equity Interests are
acquired by a Borrower or any of its Subsidiaries in a Permitted
Acquisition; provided, that such
Indebtedness (a) is either purchase money Indebtedness or a
Capital Lease with respect to Equipment or mortgage financing with
respect to Real Property, (b) was in existence prior to the
date of such Permitted Acquisition, and (c) was not incurred
in connection with, or in contemplation of, such Permitted
Acquisition.
“Acquisition” means
(a) the purchase or other acquisition by a Person or its
Subsidiaries of all or substantially all of the assets of (or any
division or business line of) any other Person, (b) the
purchase or other acquisition (whether by means of a merger,
amalgamation, consolidation, or otherwise) by a Person or its
Subsidiaries of all or substantially all of the Equity Interests of
any other Person, or (c) without duplication of clause (a) of this
definition, the purchase or other acquisition by a Person or its
Subsidiaries of any Real Property.
“Additional Documents” has
the meaning specified therefor in Section 5.12 of the
Agreement.
“Administrative Borrower”
has the meaning specified therefor in Section 17.13 of the
Agreement.
“Administrative
Questionnaire” has the meaning specified therefor in
Section 13.1(a) of
the Agreement.
“Affected Lender” has the
meaning specified therefor in Section 2.13(b) of
the Agreement.
“Affiliate” means, as
applied to any Person, any other Person who controls, is controlled
by, or is under common control with, such Person. For purposes of
this definition, “control” means the possession,
directly or indirectly through one or more intermediaries, of the
power to direct the management and policies of a Person, whether
through the ownership of Equity Interests, by contract, or
otherwise; provided, that, for purposes of
the definition of Eligible Accounts, the definition of Eligible
Southern Frac Accounts, and Section 6.10 of the
Agreement: (a) any Person which owns directly or indirectly
20% or more of the Equity Interests having ordinary voting power
for the election of directors or other members of the governing
body of a Person or 20% or more of the partnership or other
ownership interests of a Person (other than as a limited partner of
such Person) shall be deemed an Affiliate of such Person,
(b) each director (or comparable manager) of a Person shall be
deemed to be an Affiliate of such Person, and (c) each
partnership in which a Person is a general partner shall be deemed
an Affiliate of such Person.
“Affiliate
Distribution” means, as
to any Loan Party, any dividend or distribution to an Affiliate of
that Loan Party (which itself is not a Loan Party) on account of
Equity Interests of such Loan Party held by such
Affiliate.
“Agent” has the meaning
specified therefor in the preamble to the Agreement.
“Agent-Related Persons”
means Agent, together with its Affiliates, officers, directors,
employees, attorneys, and agents.
“Agent’s Account”
means the Deposit Account of Agent identified on Schedule A-1 to this
Agreement (or such other Deposit Account of Agent that has been
designated as such, in writing, by Agent to Borrowers and the
Lenders).
“Agent’s Liens”
means the Liens granted by each Borrower or its Subsidiaries to
Agent (or to the Trust for the benefit of Agent) and securing the
Obligations.
“Agreement” means the
Credit Agreement to which this Schedule 1.1 is
attached.
“Amendment No. 2 Effective
Date” means the effective date of an Amendment to Loan
Documents dated as of January 6, 2015, between Agent, certain
of the Lenders, and certain of the Loan Parties, which effective
date is January 6, 2015.
“Amendment No. 3 Effective
Date” means the effective date of an Amendment
No. 3 to Amended and Restated Credit Agreement dated as of
May 29, 2015, between Agent, certain of the Lenders, and
certain of the Loan Parties, which effective date is May 29,
2015.
“Amendment No. 4”
means an Amendment No. 4 to Amended and Restated Credit
Agreement dated as of June 30, 2015, between Agent, certain of
the Lenders, and certain of the Loan Parties.
“Amendment No. 4 Effective
Date” means the effective date of Amendment
No. 4, which effective date is June 30,
2015.
“Amendment No. 5 Effective
Date” means the effective date of an Amendment to Loan
Documents dated as of February 7, 2014, between Agent, certain of
the Lenders, and certain of the Loan Parties, which effective date
is February 7, 2014.
“Amendment No. 6”
means an Amendment No. 6 to Amended and Restated Credit
Agreement dated as of March 24, 2017, between Agent, certain
of the Lenders, and certain of the Loan Parties.
“Amendment
No. 6 Effective Date” means the effective date of
an Amendment No. 6, which effective date is March 27,
2017.
“Applicable Margin” means,
as of any date of determination, the following, as applicable:
(a) with respect to each portion of the Last-Out Term Loan
that is a Base Rate Loan, 9.50%; (b) with respect to each
portion of the Last-Out Term Loan that is a LIBOR Rate Loan,
11.00%; and (c) with respect to all other Base Rate Loans or
LIBOR Rate Loans, as applicable, the applicable margin set forth in
the following table that corresponds to the Average Excess
Availability of Borrowers for the most recently completed month;
provided, that any time an Event of Default has occurred and is
continuing, the Applicable Margin shall be set at the margin in the
row styled “Level III”:
|
Level
|
Average Excess Availability
|
Applicable Margin(Base Rate Loans)
|
Applicable Margin(LIBOR Rate Loans)
|
|
I
|
Greater than or equal to 25% of the Maximum Revolver
Amount
|
1.00%
|
2.50%
|
|
II
|
Less than 25% of the Maximum Revolver Amountbut greater than or
equal to10% of the Maximum Revolver Amount
|
1.25%
|
2.75%
|
|
III
|
Less than 10% of the Maximum Revolver Amount
|
1.50%
|
3.00%
|
The
Applicable Margin shall be re-determined as of the first day of
each calendar month of Borrowers. The Applicable Margin relative to
Base Rate Loans is referred to as the “Base Rate Margin.” The
Applicable Margin relative to LIBOR Rate Loans is referred to as
the “LIBOR Rate
Margin.”
“Applicable Unused Line Fee
Percentage” means, as of any date of determination,
the applicable percentage set forth in the following table that
corresponds to the Average Revolver Usage of Borrowers for the most
recently completed month as determined by Agent in its Permitted
Discretion; provided, that any time an
Event of Default has occurred and is continuing, the Applicable
Unused Line Fee Percentage shall be set at the margin in the row
styled “Level II”:
|
Level
|
Average Revolver Usage
|
Applicable Unused Line Fee Percentage
|
|
I
|
Greater than or equal to 50% of the Maximum Revolver
Amount
|
0.250%
|
|
II
|
Less than 50% of the Maximum Revolver Amount
|
0.375%
|
The
Applicable Unused Line Fee Percentage shall be re-determined on the
first date of each calendar month by Agent.
“Application Event” means
the occurrence of (a) a failure by Borrowers to repay all of
the Obligations in full on the Maturity Date, or (b) an Event
of Default and the election by Agent or the Required Lenders to
require that payments and proceeds of Collateral be applied
pursuant to Section 2.4(b)(iii) of
the Agreement.
“Assignee” has the meaning
specified therefor in Section 13.1(a) of
the Agreement.
“Assignment and
Acceptance” means an Assignment and Acceptance
Agreement substantially in the form of Exhibit A-1 to the
Agreement.
“Authorized Person” means
any one of the individuals identified on Schedule A-2 to the
Agreement, as such schedule is updated from time to time by written
notice from Borrowers to Agent.
“Availability” means, as
of any date of determination, (a) with respect to all
Borrowers, the amount that Borrowers are entitled to borrow as
Revolving Loans under Section 2.1 of the
Agreement (after giving effect to the then outstanding Revolver
Usage), and (b) with respect to each Borrower, the amount that
such Borrower is entitled to borrow as Revolving Loans under
Section 2.1 of
the Agreement (after giving effect to the then outstanding Revolver
Usage). Unless the context otherwise requires,
“Availability” refers to Availability with respect to
all Borrowers.
“Available Increase
Amount” means, as of any date of determination after
the Amendment No. 6 Effective Date, an amount equal to the
result of (a) $7,000,000 minus (b) the aggregate principal
amount of Increases to the Revolver Commitments previously made
after the Amendment No. 6 Effective Date pursuant to
Section 2.14
of the Agreement.
“Average Excess
Availability” means, with respect to any period, the
sum of the aggregate amount of Excess Availability for each
Business Day in such period (calculated as of the end of each
respective Business Day) divided by the number of Business Days in
such period.
“Average Revolver Usage”
means, with respect to any period, the sum of the aggregate amount
of Revolver Usage for each Business Day in such period (calculated
as of the end of each respective Business Day) divided by the
number of Business Days in such period.
“Backend-Charge Account”
means an Account that represents the right to receive fees or other
charges that have been billed to an Account Debtor but are not
payable prior to the completion or termination of the subject
contract for goods or services.
“Bail-In Action” means the
exercise of any Write-Down and Conversion Powers by the applicable
EEA Resolution Authority in respect of any liability of an EEA
Financial Institution.
“Bail-In Legislation”
means, with respect to any EEA Member Country implementing Article
55 of Directive 2014/59/EU of the European Parliament and of the
Council of the European Union, the implementing law for such EEA
Member Country from time to time which is described in the EU
Bail-In Legislation Schedule.
“Bank Product” means any
one or more of the following financial products or accommodations
extended to a Borrower or its Subsidiaries by a Bank Product
Provider: (a) credit cards (including commercial cards
(including so-called “purchase cards”,
“procurement cards” or “p-cards”)),
(b) credit card processing services, (c) debit cards,
(d) stored value cards, (e) Cash Management Services, or
(f) transactions under Hedge Agreements.
“Bank Product Agreements”
means those agreements entered into from time to time by a Borrower
or its Subsidiaries with a Bank Product Provider in connection with
the obtaining of any of the Bank Products.
“Bank Product
Collateralization” means providing cash collateral
(pursuant to documentation reasonably satisfactory to Agent) to be
held by Agent for the benefit of the Bank Product Providers (other
than the Hedge Providers) in an amount determined by Agent as
sufficient to satisfy the reasonably estimated credit exposure with
respect to the then existing Bank Product Obligations (other than
Hedge Obligations).
“Bank Product Obligations”
means (a) all obligations, liabilities, reimbursement
obligations, fees, or expenses owing by each Borrower and its
Subsidiaries to any Bank Product Provider pursuant to or evidenced
by a Bank Product Agreement and irrespective of whether for the
payment of money, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter
arising, (b) all Hedge Obligations, and (c) all amounts
that Agent or any Lender is obligated to pay to a Bank Product
Provider as a result of Agent or such Lender purchasing
participations from, or executing guarantees or indemnities or
reimbursement obligations to, a Bank Product Provider with respect
to the Bank Products provided by such Bank Product Provider to a
Borrower or its Subsidiaries; provided, in order for any item
described in clauses (a), (b), or (c) above, as applicable,
to constitute “Bank Product Obligations,” if the
applicable Bank Product Provider is any Person other than Xxxxx
Fargo or its Affiliates, then the applicable Bank Product must have
been provided on or after the “Closing Date” under and
as defined in the Existing Credit Agreement and Agent shall have
received a Bank Product Provider Agreement within 10 days after the
date of the provision of the applicable Bank Product to a Borrower
or its Subsidiaries.
“Bank Product Provider”
means any Lender or any of its Affiliates in its capacity as
provider of Bank Products, including, without limitation, each of
the foregoing in its capacity, if applicable, as a Hedge Provider;
provided, that no
such Person (other than Xxxxx Fargo or its Affiliates) shall
constitute a Bank Product Provider with respect to a Bank Product
unless and until Agent receives a Bank Product Provider Agreement
from such Person and with respect to the applicable Bank Product
within 10 days after the provision of such Bank Product to a
Borrower or its Subsidiaries; provided further, that if, at any time,
a Lender ceases to be a Lender under the Agreement, then, from and
after the date on which it ceases to be a Lender thereunder,
neither it nor any of its Affiliates shall constitute Bank Product
Providers and the obligations with respect to Bank Products
provided by such former Lender or any of its Affiliates shall no
longer constitute Bank Product Obligations.
“Bank Product Provider
Agreement” means an agreement in substantially the
form attached hereto as Exhibit B-2 to the Agreement,
in form and substance satisfactory to Agent, duly executed by the
applicable Bank Product Provider, Borrowers, and
Agent.
“Bank Product Reserves”
means, as of any date of determination, those reserves that Agent
deems necessary or appropriate to establish (based upon the Bank
Product Providers’ determination of the liabilities and
obligations of each Borrower and its Subsidiaries in respect of
Bank Product Obligations) in respect of Bank Products then provided
or outstanding.
“Bankruptcy Code” means
title 11 of the United States Code, as in effect from time to
time.
“Base Rate” means the
greatest of (a) the Federal Funds Rate plus ½%,
(b) the LIBOR Rate (which rate shall be calculated based upon
an Interest Period of 1 month and shall be determined on a daily
basis), plus 1 percentage point, (c) the rate of interest
announced, from time to time, within Xxxxx Fargo at its principal
office in San Francisco as its “prime rate”, with the
understanding that the “prime rate” is one of Xxxxx
Fargo’s base rates (not necessarily the lowest of such rates)
and serves as the basis upon which effective rates of interest are
calculated for those loans making reference thereto and is
evidenced by the recording thereof after its announcement in such
internal publications as Xxxxx Fargo may designate, and
(d)(i) with respect to the Last-Out Term Loan, 1.00% per
annum, and (ii) in all other cases, 0.00% per
annum.
“Base Rate Loan” means
each portion of the Revolving Loans or the Last-Out Term Loan that
bears interest at a rate determined by reference to the Base
Rate.
“Base Rate Margin” has the
meaning set forth in the definition of Applicable
Margin.
“Benefit Plan” means a
“defined benefit plan” (as defined in
Section 3(35) of ERISA) for which any Borrower or any of its
Subsidiaries or ERISA Affiliates has been an “employer”
(as defined in Section 3(5) of ERISA) within the past six
years.
“Board of Directors”
means, as to any Person, the board of directors (or comparable
managers) of such Person, or any committee thereof duly authorized
to act on behalf of the board of directors (or comparable
managers).
“Board of Governors” means
the Board of Governors of the Federal Reserve System of the United
States (or any successor).
“Borrower” and
“Borrowers” have the
respective meanings specified therefor in the preamble to the
Agreement.
“Borrower Materials” has
the meaning specified therefor in Section 17.9(c) of
the Agreement.
“Borrowing” means a
borrowing consisting of Revolving Loans made on the same day by the
Lenders (or Agent on behalf thereof), or by Swing Lender in the
case of a Swing Loan, or by Agent in the case of an Extraordinary
Advance.
“Borrowing Base” means, as
of any date of determination, the Dollar-equivalent result
of:
(a) 85%
of the amount of Borrowers’ and Qualified Subsidiary
Guarantors’ Eligible Accounts, less the amount, if any, of the
Dilution Reserve, plus
(b) the
lesser of
(i) $500,000,
and
(ii) 50%
of the amount of Borrowers’ and Qualified Subsidiary
Guarantors’ Eligible Backend-Charge Accounts,
less
the amount, if any, of the Dilution
Reserve, plus
(c) the
lesser of
(i) $2,000,000,
and
(ii) 85%
of the amount of Lone Star’s Eligible Extended Lone Star Accounts,
less
the amount, if any, of the Dilution
Reserve, plus
(d) the
lowest of
(i) $10,000,000,
(ii) the
sum of the following:
(A) the
product of 50%, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Rolling Stock Equipment,
plus
(B) the
product of 50%, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Branch-Use Equipment, plus
(C) the
lesser of the following:
(1) $500,000,
and
(2) the
product of 50%, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Step Inventory, and
(iii) the
sum of the following:
(A) the
product of 85%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Rolling Stock Equipment (such
determination may be made as to different categories of such
Eligible Rolling Stock Equipment based upon the Net Recovery
Percentage applicable to such categories) at such time, plus
(B) the
product of 85%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Branch-Use Equipment (such
determination may be made as to different categories of such
Eligible Branch-Use Equipment based upon the Net Recovery
Percentage applicable to such categories) at such time, plus
(C) the
lesser of the following:
(1) $500,000,
and
(2) the
product of 85%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Step Inventory (such determination
may be made as to different categories of such Eligible Step
Inventory based upon the Net Recovery Percentage applicable to such
categories) at such time,
plus
(e) the
lesser of
(i) the
product of 80%, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Fleet Inventory, and
(ii) the
product of 85%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Fleet Inventory (such
determination may be made as to different categories of such
Eligible Fleet Inventory based upon the Net Recovery Percentage
applicable to such categories) at such
time, plus
(f) the
lesser of;
(i) the
Maximum Real Property Sublimit Amount at such time,
and
(ii) the
Real Property Sublimit Formula Amount for all Eligible Real
Property at such time, plus
(g) 85%
of the amount of Southern Frac’s Eligible Southern Frac
Accounts, less the amount, if any, of the Dilution
Reserve, plus
(h) the
lesser of
(i) the
product of 60%, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Southern Frac’s Eligible
Southern Frac Finished Goods Inventory, and
(ii) the
product of 85%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Southern Frac’s Eligible
Southern Frac Finished Goods Inventory (such determination may be
made as to different categories of such Eligible Southern Frac
Finished Goods Inventory based upon the Net Recovery Percentage
applicable to such categories) at such time, plus
(i) the
lesser of
(i) the
product of 60%, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Southern Frac’s Eligible
Southern Frac Raw Materials Inventory, and
(ii) the
product of 85%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Southern Frac’s Eligible
Southern Frac Raw Materials Inventory (such determination may be
made as to different categories of such Eligible Southern Frac Raw
Materials Inventory based upon the Net Recovery Percentage
applicable to such categories) at such time, plus
(j) the
product of 85%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Southern Frac’s Eligible
Southern Frac Tanks (such determination may be made as to different
categories of such Eligible Southern Frac Tanks based upon the Net
Recovery Percentage applicable to such categories) at such
time, minus
(k) the
aggregate amount of Reserves, if any, established by Agent under
Section 2.1(c) of the
Agreement.
“Borrowing
Base (Individual)” means, with respect to each
Borrower, the portion of the Borrowing Base derived solely by
reference to the relevant assets owned by, and the proportional
sublimits and Reserves attributed (at the discretion of Agent) to,
such Borrower and each of its Subsidiaries that is a Qualified
Subsidiary Guarantor.
“Borrowing Base
Certificate” means a certificate in the form of
Exhibit
B-1.
“Branch-Use Equipment”
means new and used modular buildings, mobile and ground-level
offices, storage containers, trailers, frac tanks, and portable
liquid storage tanks used by a Borrower or any of its
Subsidiaries in the conduct of its business at its branch offices
and not held for sale or lease in the ordinary course of
Loan Parties’
business.
“Business Day” means any
day that is not a Saturday, Sunday, or other day on which banks are
authorized or required to close in the State of Illinois, except
that, if a determination of a Business Day shall relate to a LIBOR
Rate Loan, the term “Business Day” also shall exclude
any day on which banks are closed for dealings in Dollar deposits
in the London interbank market.
“Canadian Guaranty and Security
Agreement” means a guaranty and security agreement,
dated as of September 7, 2012, in form and substance
reasonably satisfactory to Agent, executed and delivered to Agent
by each of the Guarantors organized in Canada.
“Canadian Pension Plan”
means a plan, program, or arrangement that is required to be
registered as a pension plan under any applicable pension-benefits
standards or statute or tax statute or regulation in Canada
maintained or contributed to by, or to which there is or may be an
obligation to contribute by, any Loan Party in respect of its
Canadian employees or former employees.
“Canadian Priority
Payables” means amounts payable by a Loan Party
secured by any Liens, xxxxxx or inchoate, that rank or are
reasonably be expected to rank in priority superior to or
pari passu with
Agent’s Lien and/or for amounts that represent costs in
connection with the preservation, protection, collection, or
realization of the Collateral located in Canada, including, without
limitation, any such amounts due and not paid for wages, vacation
pay, severance pay, amounts payable under the Wage Earner
Protection Program Act (Canada), amounts due and not paid under any
legislation relating to workers’ compensation or to
employment insurance, all amounts deducted or withheld and not paid
and remitted when due under the Income Tax Act (Canada), sales tax,
goods and services tax, value-added tax, harmonized sales tax,
excise tax, tax payable pursuant to Part IX of the Excise Tax Act
(Canada) or similar applicable provincial legislation, government
royalties, amounts currently or past due and not paid for realty,
municipal, or similar taxes and all amounts currently or past due
and not contributed, remitted or paid to any Canadian Pension Plan
or under any Canadian Pension Plan or otherwise as required to be
contributed pursuant to any applicable law relating to Canadian
Pension Plans, or any similar statutory or other claims that would
have or would reasonably be expected to have priority superior to
or pari passu with any
Liens granted to Agent in the future.
“Capital Expenditures”
means with respect to any Person the
amount of all expenditures that are required to be capitalized for
financial statement purposes in accordance with GAAP, including
(without duplication) all Indebtedness and Capital Lease
Obligations incurred in connection with any such
expenditure; provided,
however, that “Capital Expenditures” shall not include
(a) expenditures for assets made with insurance proceeds arising
from an insured loss with respect to comparable assets,
condemnation proceeds or trade-ins, (b) expenditures constituting
the Purchase Price for a Permitted Acquisition, (c) expenditures
for Rental Fleet Inventory or Other Fleet Inventory that is
purchased for sale to a Person that is not an Affiliate pursuant to
a valid sales contract or purchase order in effect at the time of
such purchase, so long as such sale is consummated within
180 days after the purchase of such Rental Fleet Inventory or
Other Fleet Inventory, (d) expenditures made during
such period to the extent made with the identifiable proceeds of an
equity investment in a Borrower or any of its Subsidiaries by
Sponsor which equity investment is made substantially
contemporaneously with the making of the expenditure,
(e) capitalized software development costs to the extent such
costs are deducted from net earnings under the definition of EBITDA
for such period, and (f) expenditures during such period that,
pursuant to a written agreement, are reimbursed by a third Person
(excluding any Borrower or any of its Affiliates).
“Capitalized Lease
Obligation” means that portion of the obligations
under a Capital Lease that is required to be capitalized in
accordance with GAAP.
“Capital Lease” means a
lease that is required to be capitalized for financial reporting
purposes in accordance with GAAP.
“Cash Equivalents? means
(a)?marketable direct obligations issued by, or unconditionally
guaranteed by, the United States or issued by any agency thereof
and backed by the full faith and credit of the United States, in
each case maturing within 1 year from the date of acquisition
thereof, (b)?marketable direct obligations issued or fully
guaranteed by any state of the United States or any political
subdivision of any such state or any public instrumentality thereof
maturing within 1 year from the date of acquisition thereof and, at
the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor?s Rating Group
(?S&P”)
or Xxxxx’x Investors Service, Inc. (“Moody’s?), (c)?commercial
paper maturing no more than 270 days from the date of creation
thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Xxxxx?s,
(d)?certificates of deposit, time deposits, overnight bank deposits
or bankers? acceptances maturing within 1 year from the date of
acquisition thereof issued by any bank organized under the laws of
the United States or any state thereof or the District of Columbia
or any United States branch of a foreign bank having at the date of
acquisition thereof combined capital and surplus of not less than
$1,000,000,000, (e)?Deposit Accounts maintained with (i)?any bank
that satisfies the criteria described in clause (d) above, or
(ii) any other bank organized under the laws of the United
States or any state thereof so long as the full amount maintained
with any such other bank is insured by the Federal Deposit
Insurance Corporation, (f) repurchase obligations of any
commercial bank satisfying the requirements of clause (d) of this
definition or recognized securities dealer having combined capital
and surplus of not less than $1,000,000,000, having a term of not
more than seven days, with respect to securities satisfying the
criteria in clauses (a) or
(d) above,
(g) debt securities with maturities of six months or less from
the date of acquisition backed by standby letters of credit issued
by any commercial bank satisfying the criteria described in
clause (d)
above, and (h) Investments in money market funds substantially
all of whose assets are invested in the types of assets described
in clauses (a)
through (g)
above.
“Cash Management Services”
means any cash management or related services including treasury,
depository, return items, overdraft, controlled disbursement,
electronic funds transfer, interstate depository network, automatic
clearing house transfer (including the Automated Clearing House
processing of electronic funds transfers through the direct Federal
Reserve Fedline system).
“Certificated Unit” means
each Unit that is (or is required to be) evidenced by a Certificate
of Title issued under the Motor Vehicle Statute of any jurisdiction
applicable to such Unit or its respective owner.
“Certificate of Title”
means any certificate of title, certificate of ownership, or other
registration certificate issued or required to be issued under the
certificate-of-title, motor-vehicle, or other similar laws of any
jurisdiction applicable to any Unit.
“CFC” means a controlled
foreign corporation (as that term is defined in the
IRC).
“Change of Control” means
that:
(a) any
Person or two or more Persons acting in concert (other than any
Permitted Holder or any combination of Permitted Holders) shall
have acquired beneficial ownership, directly or indirectly, of
Equity Interests of GFC (or other securities convertible into such
Equity Interests) representing 30% or more of the combined voting
power of all Equity Interests of GFC entitled (without regard to
the occurrence of any contingency) to vote for the election of
members of the Board of Directors of GFC;
(b) any
Person or two or more Persons acting in concert (other than any
Permitted Holder or any combination of Permitted Holders) shall
have acquired by contract or otherwise, or shall have entered into
a contract or arrangement that, upon consummation thereof, will
result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management
or policies of GFC or control over the Equity Interests of such
Person entitled to vote for members of the Board of Directors of
GFC on a fully-diluted basis (and taking into account all such
Equity Interests that such Person or group has the right to acquire
pursuant to any option right) representing 30% or more of the
combined voting power of such Equity Interests;
(c) during
any period of 12 consecutive months, a majority of
the Board of Directors of GFC ceases to be composed of individuals
(i) who were members of the Board of Directors of GFC on the
first day of such period, (ii) whose election or nomination to
the Board of Directors of GFC was approved by individuals referred
to in clause (i) above
constituting at the time of such election or nomination at least a
majority of the Board of Directors of GFC, or (iii) whose
election or nomination to the Board of Directors of GFC was
approved by individuals referred to in clauses (i) and
(ii) above
constituting at the time of such election or nomination at least a
majority of the Board of Directors of GFC;
(d) GFC
fails to own and control, directly or indirectly, 100% of the
Equity Interests of each of GFN and
GFN Manufacturing;
(e) GFC
and GFN Manufacturing fail to own and control, directly or
indirectly, at least 90% of the Equity Interests of Southern
Frac;
(f) GFC
and GFN fail to own and control, directly or indirectly, 100% of
the Equity Interests of each Borrower other than Southern
Frac;
(g) Borrowers
fail to own and control, directly or indirectly, 100% of the Equity
Interests of each other Loan Party (other than Southern Frac);
or
(h) the
occurrence of any “change of control” (or similar
event, however denominated) with respect to GFC under (i) any
indenture or other agreement in respect of a GFC’s or any of
its Subsidiaries’ Indebtedness involving an aggregate amount
of $3,000,000 or more, or (ii) any instrument governing any
preferred stock of GFC or any Subsidiary having a liquidation value
or redemption value in excess of $3,000,000.
“Change in
Law” means the occurrence
after the date of the Agreement of: (a) the adoption or
effectiveness of any law, rule, regulation, judicial ruling,
judgment or treaty, (b) any change in any law, rule,
regulation, judicial ruling, judgment or treaty or in the
administration, interpretation, implementation or application by
any Governmental Authority of any law, rule, regulation, guideline
or treaty, or (c) the making or issuance by any Governmental
Authority of any request, rule, guideline or directive, whether or
not having the force of law; provided
that notwithstanding anything in the
Agreement to the contrary, (i) the Xxxx-Xxxxx Xxxx Street
Reform and Consumer Protection Act and all requests, rules,
guidelines or directives thereunder or issued in connection
therewith and (ii) all requests, rules, guidelines or
directives concerning capital adequacy promulgated by the Bank for
International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United
States or foreign regulatory authorities shall, in each case, be
deemed to be a “Change in
Law,” regardless of the
date enacted, adopted or issued.
“Closing Date” means the
date that each of the conditions set forth in Schedule 3.1 has been
satisfied.
“Co-Lead
Arranger” has the meaning set forth in the preamble to
the Agreement.
“Co-Syndication
Agent” has the meaning set forth in the preamble to
the Agreement.
“Code” means the Illinois
Uniform Commercial Code, as in effect from time to
time.
“Collateral” means all
assets and interests in assets and proceeds thereof now owned or
hereafter acquired by any Borrower or its Subsidiaries in or upon
which a Lien is granted by such Person in favor of Agent or the
Lenders under any of the Loan Documents.
“Collateral Access
Agreement” means a landlord waiver, bailee letter, or
acknowledgement agreement of any lessor, warehouseman, processor,
consignee, or other Person in possession of, having a Lien upon, or
having rights or interests in any Borrower’s or its
Subsidiaries’ books and records, Equipment, or Inventory, in
each case, in form and substance reasonably satisfactory to
Agent.
“Commitment” means, with
respect to each Lender, its Revolver Commitment or its Last-Out
Term Loan Commitment, as the context requires, and, with respect to
all Lenders, their Revolver Commitments or their Last-Out Term Loan
Commitments, as the context requires, in each case as such Dollar
amounts are set forth beside such Lender’s name under the
applicable heading on Schedule C-1 to the
Agreement or in the Assignment and Acceptance pursuant to which
such Lender became a Lender under the Agreement, as such amounts
may be reduced or increased from time to time pursuant to
assignments made in accordance with the provisions of Section 13.1 of the
Agreement.
“Compliance Certificate”
means a certificate substantially in the form of Exhibit C-1 to the Agreement
delivered by the chief financial officer of Administrative Borrower
to Agent.
“Confidential Information”
has the meaning specified therefor in Section 17.9(a) of
the Agreement.
“Continuing
Director” means, with respect to each of Pac-Van and
Lone Star, (a) any member of the Board of Directors who
was a director (or comparable manager) of such Person on the
Closing Date, and (b) any individual who becomes a member of
the Board of Directors of such Person after the Closing Date if
such individual was approved, appointed or nominated for election
to the Board of Directors by either GFN or a majority of the
Continuing Directors, but excluding any such individual originally
proposed for election in opposition to the Board of Directors in
office at the Closing Date in an actual or threatened election
contest relating to the election of the directors (or comparable
managers) of such Person and whose initial assumption of office
resulted from such contest or the settlement thereof.
“Control Agreement” means
a control agreement, in form and substance reasonably satisfactory
to Agent, executed and delivered by a Borrower or one of its
Subsidiaries, Agent, and the applicable securities intermediary
(with respect to a Securities Account) or bank (with respect to a
Deposit Account).
“CSSI” means Container
Systems Storage, Inc., a Washington corporation and a
Subsidiary of Pac-Van.
“Currency Due” has the
meaning specified in Section 17.15 of the
Agreement.
“Customer Location” means
a location at which Inventory of a Borrower or any of its
Subsidiaries is put to use by a renter or lessee of such Inventory
in the ordinary course of Loan Parties’
business.
“Default” means an event,
condition, or default that, with the giving of notice, the passage
of time, or both, would be an Event of Default.
“Defaulting Lender” means,
subject to Section 2.3(g)(iv) of the
Agreement, any Lender that (a) has failed to fund any amounts
required to be funded by it under the Agreement within
2 Business Days of the date that it is required to do so under
the Agreement (including the failure to make available to Agent
amounts required pursuant to a Settlement or to make a required
payment in connection with a Letter of Credit Disbursement), unless
such Lender notifies Agent and Borrowers in writing that such
failure is the result of such Lender’s determination that one
or more conditions precedent to funding (each of which conditions
precedent, together with any applicable default, shall be
specifically identified in such writing) has not been satisfied;
(b) notified Borrowers, Agent, or any Lender in writing that
it does not intend to comply with all or any portion of its funding
obligations under the Agreement, unless such writing relates to
such Lender’s obligation to fund a Loan hereunder and states
that such position is based on such Lender’s determination
that a condition precedent to funding (which condition precedent,
together with any applicable default, shall be specifically
identified in such writing) cannot be satisfied; (c) has made
a public statement to the effect that it does not intend to comply
with its funding obligations under the Agreement or under other
agreements generally (as reasonably determined by Agent) under
which it has committed to extend credit, unless such public
statement relates to such Lender’s obligation to fund a Loan
hereunder and states that such position is based on such
Lender’s determination that a condition precedent to funding
(which condition precedent, together with any applicable default,
shall be specifically identified in such public statement) cannot
be satisfied); (d) failed, within 3 Business Days after
written request by Agent, to confirm that it will comply with the
terms of the Agreement relating to its obligations to fund any
amounts required to be funded by it under the Agreement (provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (d) upon receipt of such
written confirmation by the Administrative Agent and the Borrower);
(e) otherwise failed to pay over to Agent or any other Lender
any other amount required to be paid by it under the Agreement
within 2 Business Days of the date that it is required to do
so under the Agreement, unless the
subject of a good faith dispute; or (f) has, or has a
direct or indirect parent company that has (i) become
insolvent, (ii)(A) become the subject of a bankruptcy or
insolvency proceeding, (B) had a receiver, conservator, trustee, or
custodian or appointed for it, or (C) has taken any action in
furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment, or
(D) become the subject of a Bail-In Action; provided, that a Lender shall
not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any equity interest in that Lender or any direct or
indirect parent company thereof by a Governmental Authority so long
as such ownership interest does not result in or provide such
Lender with immunity from the jurisdiction of courts within the
United States or from the enforcement of judgments or writs of
attachment on its assets or permit such Lender (or such
Governmental Authority) to reject, repudiate, disavow, or disaffirm
any contracts or agreements made with such Lender. Any
determination by Agent that a Lender is a Defaulting Lender under
any one or more of clauses
(a) through (f) above shall be conclusive
and binding absent manifest error, and such Lender shall be deemed
to be a Defaulting Lender (subject to Section 2.3(g)(iv) of the
Agreement) upon delivery of written notice of such determination to
Borrowers, Issuing Bank, Swing Lender, and each
Lender.
“Defaulting Lender Rate”
means (a) for the first 3 days from and after the date the
relevant payment is due, the Base Rate, and (b) thereafter,
the interest rate then applicable to Revolving Loans that are Base
Rate Loans (inclusive of the Base Rate Margin applicable
thereto).
“Deposit Account” means
any deposit account (as that term is defined in the
Code).
“Designated Account” means
the Deposit Account of Pac-Van identified on Schedule D-1 to the
Agreement (or such other Deposit Account of a Borrower located at
Designated Account Bank that has been designated as such, in
writing, by Borrowers to Agent).
“Designated Account Bank”
has the meaning specified therefor in Schedule D-1 to the
Agreement (or such other bank that is located within the United
States that has been designated as such, in writing, by Borrowers
to Agent).
“Dilution” means, as of
any date of determination, a percentage, based upon the experience
of the immediately prior 12 months, that is the result of dividing
the Dollar amount of (a) bad debt write-downs, discounts,
advertising allowances, credits, or other dilutive items with
respect to Borrowers’ Accounts during such period, by
(b) Borrowers’ xxxxxxxx with respect to Accounts during
such period.
“Dilution Reserve” means,
as of any date of determination, an amount sufficient to reduce the
advance rate against Eligible Accounts, Eligible Extended
Lone Star Accounts, Eligible Backend-Charge Accounts, and/or
Eligible Southern Frac Accounts by 1 percentage point for each
percentage point by which Dilution is in excess of 5%.
“Disqualified Equity
Interests” shall mean any Equity Interest that, by its
terms (or by the terms of any security or other Equity Interests
into which it is convertible or for which it is exchangeable), or
upon the happening of any event or condition (a) matures or is
mandatorily redeemable (other than solely for Qualified Equity
Interests), pursuant to a sinking fund obligation or otherwise
(except as a result of a change of control or asset sale so long as
any rights of the holders thereof upon the occurrence of a change
of control or asset sale event shall be subject to the prior
repayment in full of the Loans and all other Obligations that are
accrued and payable and the termination of the Commitments),
(b) is redeemable at the option of the holder thereof (other
than solely for Qualified Equity Interests), in whole or in part,
(c) provides for the scheduled payments of dividends in cash,
or (d) is or becomes convertible into or exchangeable for
Indebtedness or any other Equity Interests that would constitute
Disqualified Equity Interests, in each case, prior to the date that
is 180 days after the Maturity Date.
“Dollars” or
“$”
means United States dollars.
“Drawing Document” means
any Letter of Credit or other document presented for purposes of
drawing under any Letter of Credit.
“Earn-Outs” shall mean
unsecured liabilities of a Loan Party arising under an agreement to
make any deferred payment as a part of the Purchase Price for a
Permitted Acquisition, including performance bonuses or consulting
payments in any related services, employment or similar agreement,
in an amount that is subject to or contingent upon the revenues,
income, cash flow or profits (or the like) of the target of such
Permitted Acquisition.
“EBITDA” means, with
respect to any fiscal period,
(a) Borrowers’
consolidated net earnings (or loss),
minus
(b) without
duplication, the sum of the following amounts of Borrowers for such
period to the extent included in determining consolidated net
earnings (or loss) for such period, in each case, determined on a
consolidated basis in accordance with GAAP:
(i) extraordinary
gains, and
(ii) interest
income,
plus
(c) without
duplication, the sum of the following amounts of Borrowers for such
period to the extent included in determining consolidated net
earnings (or loss) for such period, in each case, determined on a
consolidated basis in accordance with GAAP:
(i) non-cash
extraordinary losses,
(ii) non-cash
stock option expense,
(iii) Interest
Expense,
(iv) income
taxes, and
(v) depreciation
and amortization.
For the
purposes of calculating EBITDA for any period of 4 consecutive
fiscal quarters (each, a “Reference Period”), if at
any time during such Reference Period (and after the Closing Date),
any Borrower or any of its Subsidiaries shall have made a Permitted
Acquisition, EBITDA for such Reference Period shall be calculated
after giving pro forma
effect thereto (including pro
forma adjustments arising out of events which are directly
attributable to such Permitted Acquisition, are factually
supportable, and are expected to have a continuing impact, in each
case to be mutually and reasonably agreed upon by Borrowers and
Agent) or in such other manner acceptable to Agent as if any such
Permitted Acquisition or adjustment occurred on the first day of
such Reference Period.
“EEA Financial
Institution” means (a) any credit institution or
investment firm established in any EEA Member Country which is
subject to the supervision of an EEA Resolution Authority, (b) any
entity established in an EEA Member Country which is a parent of an
institution described in clause (a) of this definition,
or (c) any financial institution established in an EEA Member
Country which is a subsidiary of an institution described in
clauses (a) or
(b) of this
definition and is subject to consolidated supervision with its
parent.
“EEA Member Country” means
any of the member states of the European Union, Iceland,
Liechtenstein, and Norway.
“EEA Resolution Authority”
means any public administrative authority or any person entrusted
with public administrative authority of any EEA Member Country
(including any delegee) having responsibility for the resolution of
any EEA Financial Institution.
“Eligible Accounts” means
those Accounts created by a Borrower or a Qualified Subsidiary
Guarantor (other than Southern Frac) in the ordinary course of its
business, that arise out of such Borrower’s or Qualified
Subsidiary Guarantor’s sale of goods or rendition of
services, that comply with each of the representations and
warranties respecting Eligible Accounts made in the Loan Documents,
and that are not excluded as ineligible by virtue of one or more of
the excluding criteria set forth below; provided, that such criteria
may be revised from time to time by Agent in Agent’s
Permitted Discretion to address the results of any field
examination performed by (or on behalf of) Agent from time to time
after the Closing Date. In determining the amount to be included,
Eligible Accounts shall be calculated net of customer deposits,
unapplied cash, taxes, discounts, credits, allowances, and rebates.
Eligible Accounts shall not include the following:
(a) Accounts
that the Account Debtor has failed to pay within 90 days of
original invoice date or Accounts with selling terms of more than
60 days,
(b) Accounts
owed by an Account Debtor (or its Affiliates) where 50% or more of
all Accounts owed by that Account Debtor (or its Affiliates) are
deemed ineligible under clause (a) above,
(c) Accounts
with respect to which the Account Debtor is an Affiliate of any
Borrower or of any Qualified Subsidiary Guarantor or an employee or
agent of any Borrower, any Qualified Subsidiary Guarantor, or any
Affiliate of any Borrower or of any a Qualified Subsidiary
Guarantor,
(d) Accounts
arising in a transaction wherein goods are placed on consignment or
are sold pursuant to a guaranteed sale, a sale or return, a sale on
approval, a xxxx and hold, or any other terms by reason of which
the payment by the Account Debtor may be conditional,
(e) Accounts
that are not payable in Dollars, other than Accounts payable in
Canadian dollars that are not in excess of CAD 3,000,000 in
the aggregate,
(f) Accounts
with respect to which the Account Debtor either (i) does not
maintain its chief executive office in the United States or a
Qualified Canadian Jurisdiction, or (ii) is not organized
under the laws of the United States or any state thereof or under
the laws of Canada or a Qualified Canadian Jurisdiction, or
(iii) is the government of any foreign country or sovereign
state, or of any state, province, municipality, or other political
subdivision thereof, or of any department, agency, public
corporation, or other instrumentality thereof, unless (A) the
Account is supported by an irrevocable letter of credit reasonably
satisfactory to Agent (as to form, substance, and issuer or
domestic confirming bank) that has been delivered to Agent and is
directly drawable by Agent, or (B) the Account is covered by
credit insurance in form, substance, and amount, and by an insurer,
reasonably satisfactory to Agent,
(g) Accounts
with respect to which the Account Debtor is either (i) the
United States or Canada or any department, agency, or
instrumentality of the United States or Canada (exclusive, however,
of Accounts with respect to which Borrowers and Qualified
Subsidiary Guarantors have complied, to the reasonable satisfaction
of Agent, with the Assignment of Claims Act, 31 USC §3727),
the Financial Administration Act (Canada), or other applicable law,
as applicable, or (ii) any state of the United States or any
province of Canada,
(h) Accounts
with respect to which the Account Debtor is a creditor of a
Borrower or a Qualified Subsidiary Guarantor, has or has asserted a
right of recoupment or setoff, or has disputed its obligation to
pay all or any portion of the Account, to the extent of such claim,
right of recoupment or setoff, or dispute,
(i) Accounts
with respect to an Account Debtor or a group of Account Debtors
that are Affiliates whose total obligations owing to Borrowers and
Qualified Subsidiary Guarantors (including Southern Frac) exceed
15% (such percentage, as applied to a particular Account Debtor or
group of Account Debtors that are Affiliates, being subject to
reduction by Agent in its Permitted Discretion if the
creditworthiness of such Account Debtor or such Account Debtors
deteriorates) of the aggregate amount of all otherwise Eligible
Accounts and all otherwise Eligible Southern Frac Accounts, to the
extent of the obligations owing by such Account Debtor or group of
Account Debtors in excess of such percentage; provided, that, in each case,
the amount of Eligible Accounts that are excluded because they
exceed the foregoing percentage shall be determined by Agent based
on all of the otherwise Eligible Accounts and all otherwise
Southern Frac Accounts prior to giving effect to any eliminations
based upon the foregoing concentration limit,
(j) Accounts
with respect to which the Account Debtor is subject to an
Insolvency Proceeding, is not Solvent, has gone out of business, or
as to which any Borrower or any Qualified Subsidiary Guarantor has
received notice of an imminent Insolvency Proceeding or a material
impairment of the financial condition of such Account
Debtor,
(k) Accounts,
the collection of which, Agent, in its Permitted Discretion,
believes to be doubtful, including by reason of the Account
Debtor’s financial condition,
(l) Accounts
that are not subject to a valid and perfected first-priority
Agent’s Lien,
(m) Accounts
with respect to which (i) the goods giving rise to such
Account have not been shipped and billed to the Account Debtor, or
(ii) the services giving rise to such Account have not been
performed and billed to the Account Debtor,
(n) Accounts
with respect to which the Account Debtor is a Sanctioned Person or
Sanctioned Entity,
(o) Backend-Charge
Accounts or Accounts that represent the right to receive progress
payments or other advance xxxxxxxx that are due prior to the
completion of performance by the applicable Borrower or Qualified
Subsidiary Guarantor of the subject contract for goods or services,
or
(p) Accounts
owned by a target acquired in connection with a Permitted
Acquisition, until the completion of an appraisal and field
examination with respect to such target, in each case, reasonably
satisfactory to Agent (which appraisal and field examination
(A) may be conducted prior to the closing of such Permitted
Acquisition and (B) if conducted by or for Agent, will be
subject to Section 2.10(c) and will
be excluded for purposes of the limitation set forth in
Section 2.10(c)
as to the number of appraisals and field examinations for which
Borrowers are obligated to reimburse Agent).
“Eligible
Backend-Charge Accounts” means those Backend-Charge
Accounts created by a Borrower or a Qualified Subsidiary Guarantor
(other than Southern Frac) in the ordinary course of its business,
that arise out of such Borrower’s or Qualified Subsidiary
Guarantor’s sale of goods or rendition of services, that
comply with each of the representations and warranties respecting
Eligible Backend-Charge Accounts made in the Loan Documents, and
that would be Eligible Accounts but for their being excluded as
ineligible by virtue of the excluding criteria set forth in
clause (o) of
the definition of Eligible Accounts.
“Eligible Branch-Use
Equipment” means Equipment of a Borrower or a
Qualified Subsidiary Guarantor (other than Southern Frac) that
qualifies as Eligible Equipment and consists of Branch-Use
Equipment.
“Eligible Equipment” means
Equipment of a Borrower or a Qualified Subsidiary Guarantor that
complies with each of the representations and warranties respecting
Eligible Equipment made in the Loan Documents, and that is not
excluded as ineligible by virtue of one or more of the excluding
criteria set forth below; provided, that such criteria
may be revised from time to time by Agent in Agent’s
Permitted Discretion to address the results of any field
examination or appraisal performed by Agent from time to time after
the Closing Date. In determining the amount to be so included,
Equipment shall be valued at the lower of cost or market on a basis
consistent with Loan Parties’ historical accounting
practices. An item of Equipment shall not be included in Eligible
Equipment if:
(a) a
Borrower or a Qualified Subsidiary Guarantor does not have good,
valid, and marketable title thereto, except that any Certificated
Unit described in Section 5.16(f) that
otherwise would be excluded as ineligible by virtue of the
excluding criteria set forth in this clause (a) but for which
the applicable Certificate of Title and all other necessary or
appropriate instruments have been delivered to a processing agent
identified by Agent on or before the Amendment No. 6 Effective
Date in accordance with Section 5.16(f) will not
be excluded as ineligible by virtue of the excluding criteria set
forth in this clause (a) for
5 Business Days after the Amendment No. 6 Effective
Date,
(b) other
than with respect to Excepted Equipment having an aggregate gross
book value (when combined with the aggregate gross book value of
all Excepted Equipment excepted under clause (c) below) not in
excess of $500,000, a Borrower or a Qualified Subsidiary Guarantor
does not have actual and exclusive possession thereof (either
directly or through a bailee or agent of a Borrower or of a
Qualified Subsidiary Guarantor),
(c) other
than with respect to Excepted Equipment having an aggregate gross
book value (when combined with the aggregate gross book value of
all Excepted Equipment excepted under clause (b) above) not in
excess of $500,000, it is not (i) located at either
(A) one of the locations in the continental United States or a
Qualified Canadian Jurisdiction set forth on Schedule 4.27 to the
Agreement or (B) a Customer Location for or in anticipation of
its active use by a Loan Party at that Customer Location in the
ordinary course of Loan Parties’ business or (ii) in-transit
from one such location under clause (i) to another such
location),
(d) [reserved],
(e) it
is located on real property leased by a Borrower or a Qualified
Subsidiary Guarantor, in a contract warehouse, or at a location of
the manufacturer pending initial delivery to the applicable
Borrower or Qualified Subsidiary Guarantor, in each case, unless
(i) it is subject to a Collateral Access Agreement executed by
the lessor or warehouseman, as the case may be; (ii) it is
segregated or otherwise separately identifiable from goods of
others, if any, stored on the premises; and (iii) with respect
to any such Equipment located at a location of the manufacturer
pending initial delivery to the applicable Borrower or Qualified
Subsidiary Guarantor, that Equipment has been fully paid for
(including, as applicable, as evidenced by Loan Parties’
receipt of a certificate of origin for that
Equipment),
(f) it
is represented (or required to be represented) by a Certificate of
Title, unless the applicable Borrower or Qualified Subsidiary
Guarantor has complied with Section 5.16 of this Agreement
with respect thereto;
(g) it
is not subject to a valid and perfected first-priority Lien in
favor of Agent (or, in the case of any Certificated Unit, to the
extent permitted by the terms of Section 5.16 of this Agreement,
the Trust), except that any Certificated Unit described in
Section 5.16(f) that
otherwise would be excluded as ineligible by virtue of the
excluding criteria set forth in this clause (g) but for which
the applicable Certificate of Title and all other necessary or
appropriate instruments have been delivered to a processing agent
identified by Agent on or before the Amendment No. 6 Effective
Date in accordance with Section 5.16(f) will not
be excluded as ineligible by virtue of the excluding criteria set
forth in this clause (g) for
5 Business Days after the Amendment No. 6 Effective
Date,
(h) without
duplication of clauses (f) and
(g) above, it is
Equipment in respect of which Borrowers and Qualified
Subsidiary Guarantors have not complied with Sections 5.16 and/or
5.17, as
applicable,
(i) it
was acquired in connection with a Permitted Acquisition that is a
Small-Cap Acquisition and the Agent has requested a desktop
appraisal of such Equipment, until the completion of that desktop
appraisal, in each case, reasonably satisfactory to Agent (which
desktop appraisal (A) may be conducted prior to the closing of
such Permitted Acquisition, and (B) will be subject to
Section 2.10(c) but
excluded for purposes of the limitation set forth in Section 2.10(c) as to the
number of appraisals for which Borrowers are obligated to reimburse
Agent), or
(j) it
was acquired in connection with a Permitted Acquisition that is not
a Small-Cap Acquisition, until the completion of an appraisal of
such Equipment, in each case, reasonably satisfactory to Agent
(which appraisal (A) may be conducted prior to the closing of
such Permitted Acquisition, and (B) will be subject to
Section 2.10(c) but
excluded for purposes of the limitation set forth in Section 2.10(c) as to the
number of appraisals for which Borrowers are obligated to reimburse
Agent).
“Eligible Extended Lone Star
Accounts” means those Accounts created by
Lone Star in the ordinary course of its business, that arise
out of Lone Star’s sale of goods or rendition of
services, that comply with each of the representations and
warranties respecting Eligible Extended Lone Star Accounts
made in the Loan Documents, and that would be Eligible Accounts but
for their being excluded as ineligible by virtue of the excluding
criteria set forth in clause (a) of the
definition of Eligible Accounts because they are Accounts that the
Account Debtor has failed to pay within 90 days of the
original invoice date. Eligible Extended Lone Star Accounts
shall not include Accounts that the Account Debtor has failed to
pay within 150 days of the original invoice date.
“Eligible Fleet Inventory”
means Inventory of a Borrower or a Qualified Subsidiary Guarantor
(other than Southern Frac) that qualifies as Eligible Inventory and
consists of Rental Fleet Inventory or Other Fleet
Inventory.
“Eligible Inventory” means
Inventory of a Borrower or a Qualified Subsidiary Guarantor that
complies with each of the representations and warranties respecting
Eligible Inventory made in the Loan Documents, and that is not
excluded as ineligible by virtue of one or more of the excluding
criteria set forth below; provided, that such criteria
may be revised from time to time by Agent in Agent’s
Permitted Discretion to address the results of any field
examination or appraisal performed by Agent from time to time after
the Closing Date. In determining the amount to be so included,
Inventory shall be valued at the lower of cost or market on a basis
consistent with Loan Parties’ historical accounting
practices. An item of Inventory shall not be included in Eligible
Inventory if:
(a) a
Borrower or a Qualified Subsidiary Guarantor does not have good,
valid, and marketable title thereto, except that any Certificated
Unit described in Section 5.16(f) that
otherwise would be excluded as ineligible by virtue of the
excluding criteria set forth in this clause (a) but for which
the applicable Certificate of Title and all other necessary or
appropriate instruments have been delivered to a processing agent
identified by Agent on or before the Amendment No. 6 Effective
Date in accordance with Section 5.16(f) will not
be excluded as ineligible by virtue of the excluding criteria set
forth in this clause (a) for
5 Business Days after the Amendment No. 6 Effective
Date,
(b) other
than with respect to (i) Inventory in the possession of a
renter or lessee of such Inventory in the ordinary course of
business of the applicable Borrower or Qualified Subsidiary
Guarantor pursuant to a valid, current written rental or lease
agreement and (ii) Excepted Inventory having an aggregate
gross book value (when combined with the aggregate gross book value
of all Excepted Inventory excepted under clause (c) below) not in
excess of $500,000, a Borrower or a Qualified Subsidiary Guarantor
does not have actual and exclusive possession thereof (either
directly or through a bailee or agent of a Borrower or of a
Qualified Subsidiary Guarantor),
(c) other
than with respect to Excepted Inventory having an aggregate gross
book value (when combined with the aggregate gross book value of
all Excepted Inventory excepted under clause (b) above) not in
excess of $500,000, it is not (i) located at either
(A) one of the locations in the continental United States or a
Qualified Canadian Jurisdiction set forth on Schedule 4.24 to the
Agreement or (B) a Customer Location pursuant to a valid,
current written rental or lease agreement or (ii) in-transit
from one such location under clause (i) to another such
location,
(d) [reserved],
(e) it
is located on real property leased by a Borrower or a Qualified
Subsidiary Guarantor, in a contract warehouse, or at a location of
the manufacturer pending initial delivery to the applicable
Borrower or Qualified Subsidiary Guarantor, in each case, unless
(i) it is subject to a Collateral Access Agreement executed by
the lessor or warehouseman, as the case may be, or, other than with
respect to any such Inventory located at a location of the
manufacturer pending initial delivery to the applicable Borrower or
Qualified Subsidiary Guarantor, Agent, in its discretion,
institutes a Landlord Reserve or other Inventory Reserves or other
Reserves in accordance with Section 2.1(c) of the
Agreement; (ii) it is segregated or otherwise separately
identifiable from goods of others, if any, stored on the premises;
and (iii) with respect to any such Inventory located at a
location of the manufacturer pending initial delivery to the
applicable Borrower or Qualified Subsidiary Guarantor, that
Inventory has been fully paid for (including, as applicable, as
evidenced by Loan Parties’ receipt of a certificate of origin
for that Inventory),
(f) it
is the subject of a xxxx of lading or is represented (or required
to be represented) by a Certificate of Title unless the applicable
Borrower or Qualified Subsidiary Guarantor has complied with
Section 5.16 of
this Agreement with respect thereto,
(g) it
is not subject to a valid and perfected first-priority Lien in
favor of Agent (or, in the case of any Certificated Unit, to the
extent permitted by the terms of Section 5.16 of this Agreement,
the Trust), except that any Certificated Unit described in
Section 5.16(f) that
otherwise would be excluded as ineligible by virtue of the
excluding criteria set forth in this clause (g) but for which
the applicable Certificate of Title and all other necessary or
appropriate instruments have been delivered to a processing agent
identified by Agent on or before the Amendment No. 6 Effective
Date in accordance with Section 5.16(f) will not
be excluded as ineligible by virtue of the excluding criteria set
forth in this clause (g) for
5 Business Days after the Amendment No. 6 Effective
Date,
(h) it
consists of goods returned or rejected by a Borrower’s or a
Qualified Subsidiary Guarantor’s customers,
(i) it
consists of goods that are obsolete, work-in-process, raw
materials, or goods that constitute spare parts, supplies used or
consumed in Loan Parties’ business, defective goods, or
Inventory acquired on consignment,
(j) it
is subject to third-party trademark, licensing or other proprietary
rights, unless Agent is satisfied that such Inventory can be freely
sold by Agent on and after the occurrence of an Event of a Default
despite such third-party rights,
(k) it
is Inventory (i) subject to a Rental Fleet Inventory Lease in
respect of which Borrowers and Qualified Subsidiary Guarantors have
not complied with Section 5.15, or
(ii) in respect of which Borrowers and Qualified Subsidiary
Guarantors have not complied with Sections 5.16, 5.17, and/or 5.18, as
applicable,
(l) it
was acquired in connection with a Permitted Acquisition that is a
Small-Cap Acquisition and the Agent has requested a desktop
appraisal of such Inventory, until the completion of that desktop
appraisal, in each case, reasonably satisfactory to Agent (which
desktop appraisal (A) may be conducted prior to the closing of
such Permitted Acquisition, and (B) will be subject to
Section 2.10(c) but
excluded for purposes of the limitation set forth in Section 2.10(c) as to the
number of appraisals for which Borrowers are obligated to reimburse
Agent), or
(l) it
was acquired in connection with a Permitted Acquisition that is not
a Small-Cap Acquisition, until the completion of an appraisal of
such Inventory, in each case, reasonably satisfactory to Agent
(which appraisal (A) may be conducted prior to the closing of
such Permitted Acquisition, and (B) will be subject to
Section 2.10(c) but
excluded for purposes of the limitation set forth in Section 2.10(c) as to the
number of appraisals for which Borrowers are obligated to reimburse
Agent).
“Eligible Real Property”
means Real Property Collateral that Borrowers have requested to be
Eligible Real Property, that complies with each of the
representations and warranties respecting Eligible Real Property
made in the Loan Documents, and that is not excluded as ineligible
by virtue of one or more of the excluding criteria set forth below;
provided, that such
criteria may be revised from time to time by Agent in Agent’s
Permitted Discretion to address the results of any appraisal
performed by Agent from time to time after the Amendment No. 2
Effective Date. An item of Real Property Collateral shall not be
included in Eligible Real Property if:
(a) a
Borrower or a Qualified Subsidiary Guarantor does not have good,
valid, and marketable title thereto,
(b) it
is not located in the continental United States,
(c) it
is not subject to a valid and perfected first-priority Lien in
favor of Agent,
(d) it
is Real Property Collateral in respect of which Agent has not
received all of the following: (i) the Additional Documents
described in Section 3.6(c); and
(ii) if the Borrower or Qualified Subsidiary Guarantor that
owns such Real Property Collateral leases it to one or more other
Persons (including, without limitation, one or more Affiliates of
such Borrower or Qualified Subsidiary Guarantor), a copy (executed
or certified, as appropriate) of each such lease and a
subordination agreement, in form and substance reasonably
satisfactory to Agent, duly executed and delivered, with respect to
each such lease,
(e) without
duplication of clauses (c) and
(d) above, it is
Real Property Collateral in respect of which Borrowers and
Qualified Subsidiary Guarantors have not complied with Sections 5.11 and/or
5.12, as
applicable,
(f) it
is not used in the business of the Loan Parties, or
(g) it
Real Property Collateral that was the subject of one or more Real
Property Sublimit Loans that have been repaid in full.
“Eligible Rolling Stock
Equipment” means Equipment of a Borrower or a
Qualified Subsidiary Guarantor (other than Southern Frac) that
qualifies as Eligible Equipment and consists of Rolling Stock
Equipment.
“Eligible Southern Frac
Accounts” means those Accounts created by Southern
Frac in the ordinary course of its business, that arise out of
Southern Frac’s sale of goods or rendition of services, that
comply with each of the representations and warranties respecting
Eligible Southern Frac Accounts made in the Loan Documents, and
that are not excluded as ineligible by virtue of one or more of the
excluding criteria set forth below; provided, that such criteria
may be revised from time to time by Agent in Agent’s
Permitted Discretion to address the results of any field
examination performed by (or on behalf of) Agent from time to time
after the Amendment No. 4 Effective Date. In determining the
amount to be included, Eligible Southern Frac Accounts shall be
calculated net of customer deposits, unapplied cash, taxes,
discounts, credits, allowances, and rebates. Eligible Southern Frac
Accounts shall not include the following:
(a)???????????(i)?in
the case of Accounts owed by one or more of Globe Energy Services
and its Affiliates, Accounts that the Account Debtor has failed to
pay within 120?days of original invoice date; (ii)?in the case of
Accounts owed by one or more of Xxxxx Corp and its Affiliates,
Accounts that the Account Debtor has failed to pay within 105?days
of original invoice date; (iii)?in the case of Accounts owed by one
or more of MVA?Trucking & Rentals,?L.L.C., and its Affiliates,
Accounts that the Account Debtor has failed to pay within 120?days
of original invoice date; and (iv)?in the case of all other
Accounts, Accounts that the Account Debtor has failed to pay within
90?days of original invoice date;
(b) (i) in
the case of Accounts owed by one or more of Globe Energy Services
and its Affiliates, Accounts with selling terms of more than 90
days; and (ii) in the case of all other Accounts, Accounts
with selling terms of more than 60 days;
(c) Accounts
owed by an Account Debtor (or its Affiliates) where 25% or more of
all Accounts owed by that Account Debtor (or its Affiliates) are
deemed ineligible under clause (a) or
(b) above or
clause (i) or
(s)
below;
(d) Accounts
with respect to which the Account Debtor is an Affiliate of any
Borrower or of any Qualified Subsidiary Guarantor or an employee or
agent of any Borrower, any Qualified Subsidiary Guarantor, or any
Affiliate of any Borrower or of any a Qualified Subsidiary
Guarantor;
(e) Accounts
arising in a transaction wherein goods are placed on consignment or
are sold pursuant to a guaranteed sale, a sale or return, a sale on
approval, a xxxx and hold, or any other terms by reason of which
the payment by the Account Debtor may be conditional;
(f) Accounts
that are not payable in Dollars;
(g) Accounts
with respect to which the Account Debtor either (i) does not
maintain its chief executive office in the United States or a
Qualified Canadian Jurisdiction, or (ii) is not organized
under the laws of the United States or any state thereof or under
the laws of Canada or a Qualified Canadian Jurisdiction, or
(iii) is the government of any foreign country or sovereign
state, or of any state, province, municipality, or other political
subdivision thereof, or of any department, agency, public
corporation, or other instrumentality thereof, unless (A) the
Account is supported by an irrevocable letter of credit reasonably
satisfactory to Agent (as to form, substance, and issuer or
domestic confirming bank) that has been delivered to Agent and is
directly drawable by Agent, or (B) the Account is covered by
credit insurance in form, substance, and amount, and by an insurer,
reasonably satisfactory to Agent;
(h) Accounts
with respect to which the Account Debtor is either (i) the
United States or Canada or any department, agency, or
instrumentality of the United States or Canada (exclusive, however,
of Accounts with respect to which Borrowers and Qualified
Subsidiary Guarantors have complied, to the reasonable satisfaction
of Agent, with the Assignment of Claims Act, 31 USC §3727),
the Financial Administration Act (Canada), or other applicable law,
as applicable, or (ii) any state of the United States or any
province of Canada;
(i) Accounts
with respect to which the Account Debtor is a creditor of a
Borrower or a Qualified Subsidiary Guarantor, has or has asserted a
right of recoupment or setoff, or has disputed its obligation to
pay all or any portion of the Account, to the extent of such claim,
right of recoupment or setoff, or dispute;
(j) that
portion of Accounts which reflect a reasonable reserve for warranty
claims or returns or amounts which are owed to account debtors,
including those for rebates, allowances, co-op advertising, new
store allowances or other deductions;
(k) Accounts
with respect to an Account Debtor or a group of Account Debtors
that are Affiliates whose total obligations owing to Borrowers and
Qualified Subsidiary Guarantors (including Southern Frac) exceed
15% (such percentage, as applied to a particular Account Debtor or
group of Account Debtors that are Affiliates, being subject to
reduction by Agent in its Permitted Discretion if the
creditworthiness of such Account Debtor or such Account Debtors
deteriorates) of the aggregate amount of all otherwise Eligible
Accounts and all otherwise Eligible Southern Frac Accounts, to the
extent of the obligations owing by such Account Debtor or group of
Account Debtors in excess of such percentage; provided, that, in each case,
the amount of Eligible Southern Frac Accounts that are excluded
because they exceed the foregoing percentage shall be determined by
Agent based on all of the otherwise Eligible Accounts and all
otherwise Southern Frac Accounts prior to giving effect to any
eliminations based upon the foregoing concentration
limit;
(l) Accounts
with respect to which the Account Debtor is subject to an
Insolvency Proceeding, is not Solvent, has gone out of business, or
as to which any Borrower or any Qualified Subsidiary Guarantor has
received notice of an imminent Insolvency Proceeding or a material
impairment of the financial condition of such Account
Debtor;
(m) Accounts,
the collection of which, Agent, in its Permitted Discretion,
believes to be doubtful, including by reason of the Account
Debtor’s financial condition;
(n) Accounts
representing credit card sales or “C.O.D.”
sales;
(o) Accounts
that are not subject to a valid and perfected first-priority
Agent’s Lien or that are subject to any other Lien, unless
such other Lien is a Permitted Lien and the holder of such
Permitted Lien has entered into an intercreditor agreement with
Lender reasonably acceptable to Agent;
(p) Accounts
that consist of progress xxxxxxxx (such that the obligation of the
Account Debtors with respect to such Accounts is conditioned upon
Southern Frac’s satisfactory completion of any further
performance under the agreement giving rise thereto) or retainage
invoices;
(q) Accounts
with respect to which the Account Debtor is a Sanctioned Person or
Sanctioned Entity;
(r) that
portion of Accounts which represent finance charges, service
charges, sales taxes, or excise taxes;
(s) that
portion of Accounts which has been restructured, extended, amended,
or otherwise modified;
(t) xxxx
and hold invoices, except those with respect to which Agent has
received an agreement in writing from the Account Debtor, in form
and substance reasonably satisfactory to Agent, confirming the
unconditional obligation of the Account Debtor to take the goods
related thereto and pay such invoice, so long as such Accounts
satisfy all other criteria for Eligible Southern Frac Accounts
hereunder;
(u) Accounts
that have not been invoiced;
(v) Accounts
constituting (i) proceeds of copyrightable material, unless
such copyrightable material has been registered with the United
States Copyright Office, or (ii) proceeds of patentable
inventions, unless such patentable inventions have been registered
with the United States Patent and Trademark Office;
(w) Accounts
owned by a target acquired in connection with a Permitted
Acquisition, until the completion of an appraisal and field
examination with respect to such target, in each case, reasonably
satisfactory to Agent (which appraisal and field examination
(i) may be conducted prior to the closing of such Permitted
Acquisition and (ii) if conducted by or for Agent, will be
subject to Section 2.10(c) and will
be excluded for purposes of the limitation set forth in
Section 2.10(c)
as to the number of appraisals and field examinations for which
Borrowers are obligated to reimburse Agent); or
(x) Accounts
or that portion of Accounts otherwise deemed ineligible by Agent in
its Permitted Discretion.
“Eligible Southern Frac Finished Goods
Inventory” means Inventory of Southern Frac (other
than Southern Frac Tanks) that qualifies as Eligible Inventory and
consists of first-quality finished goods held for sale in the
ordinary course of Southern Frac’s business.
“Eligible Southern Frac Raw Materials
Inventory” means Inventory of Southern Frac (other
than Southern Frac Tanks) that consists of first-quality raw
materials and that would be Eligible Inventory but for its being
excluded as ineligible by virtue of the excluding criteria relating
to raw materials set forth in clause (i) of the
definition of Eligible Inventory.
“Eligible Southern Frac
Tanks” means Southern Frac Tanks that qualify as
Eligible Inventory.
“Eligible Step Inventory”
means Inventory of a Borrower or a Qualified Subsidiary Guarantor
(other than Southern Frac) that qualifies as Eligible Inventory and
consists of Step Inventory.
“Employee Benefit Plan”
means any employee benefit plan within the meaning of
Section 3(3) of ERISA, whether or not subject to ERISA, or any
Canadian Pension Plan, in each case (a) that is or within the
preceding six (6) years has been sponsored, maintained or
contributed to by any Loan Party or ERISA Affiliate or (b) to
which any Loan Party or ERISA Affiliate has, or has had at any time
within the preceding six (6) years, any liability, contingent or
otherwise.
“Enhanced Reporting
Period” means a period which shall commence on any
date on which Excess Availability is less than 10% of the Maximum
Revolver Amount and shall continue until the later of (a) the
date that is the last day of the second full fiscal quarter after
that commencement date, and (b) the last day of the fiscal
quarter after that commencement date in which Average Excess
Availability for a period of 60 consecutive days is greater than or
equal to 10% of the Maximum Revolver Amount.
“Environmental Action”
means any written complaint, summons, citation, notice, directive,
order, claim, litigation, investigation, judicial or administrative
proceeding, judgment, letter, or other written communication from
any Governmental Authority, or any third party involving violations
of Environmental Laws or releases of Hazardous Materials
(a) from any assets, properties, or businesses of any
Borrower, any Subsidiary of any Borrower, or any of their
predecessors in interest, (b) from adjoining properties or
businesses, or (c) from or onto any facilities which received
Hazardous Materials generated by any Borrower, any Subsidiary of
any Borrower, or any of their predecessors in
interest.
“Environmental Law” means
any applicable federal, state, provincial, municipal, foreign, or
local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy, or
rule of common law now or hereafter in effect and in each case as
amended, or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or
judgment, in each case, to the extent binding on any Borrower or
its Subsidiaries, relating to the environment, the effect of the
environment on employee health, or Hazardous Materials, in each
case as amended from time to time.
“Environmental
Liabilities” means all liabilities, monetary
obligations, losses, damages, costs and expenses (including all
reasonable fees, disbursements and expenses of counsel, experts, or
consultants, and costs of investigation and feasibility studies),
fines, penalties, sanctions, and interest incurred as a result of
any claim or demand, or Remedial Action required, by any
Governmental Authority or any third party, and which relate to any
Environmental Action.
“Environmental Lien” means
any Lien in favor of any Governmental Authority for Environmental
Liabilities.
“Equipment” means
equipment (as that term is defined in the Code).
“Equity Interest” means,
with respect to a Person, all of the shares, options, warrants,
interests, participations, or other equivalents (regardless of how
designated) of or in such Person, whether voting or nonvoting,
including capital stock (or other ownership or profit interests or
units), preferred stock, or any other “equity security”
(including as such term is defined in Rule 3a11-1 of the General
Rules and Regulations promulgated by the SEC under the Exchange
Act).
“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended, and any
successor statute thereto.
“ERISA Affiliate” means
(a) any Person subject to ERISA whose employees are treated as
employed by the same employer as the employees of any Borrower or
its Subsidiaries under IRC Section 414(b), (b) any trade
or business subject to ERISA whose employees are treated as
employed by the same employer as the employees of any Borrower or
its Subsidiaries under IRC Section 414(c), (c) solely for
purposes of Section 302 of ERISA and Section 412 of the
IRC, any organization subject to ERISA that is a member of an
affiliated service group of which any Borrower or any of its
Subsidiaries is a member under IRC Section 414(m), or
(d) solely for purposes of Section 302 of ERISA and
Section 412 of the IRC, any Person subject to ERISA that is a
party to an arrangement with any Borrower or any of its
Subsidiaries and whose employees are aggregated with the employees
of such Borrower or its Subsidiaries under IRC
Section 414(o).
“EU Bail-In Legislation
Schedule” means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor person),
as in effect from time to time.
“Event of Default” has the
meaning specified therefor in Section 8 of the
Agreement.
“Excepted Equipment” means
Equipment of a Borrower and its Subsidiaries that is either
(i) located at a Customer Location other than for or in
anticipation of its active use by a Loan Party at that Customer
Location in the ordinary course of Loan Parties’ business;
(ii) out for repair; or (iii) located at a location of
the manufacturer of that Equipment pending initial delivery to the
applicable Borrower or Subsidiary.
“Excepted Inventory” means
Inventory of a Borrowers and its Subsidiaries that is either
(i) located at a Customer Location other than pursuant to a
valid, current written rental or lease agreement; (ii) out for
repair; or (iii) located at a location of the manufacturer of
that Inventory pending initial delivery to the applicable Borrower
or Subsidiary.
“Excess” has the meaning
specified therefor in Section 2.14 of the
Agreement.
“Excess Availability”
means, as of any date of determination, the amount equal to
Availability minus the
aggregate amount, if any, of all trade payables of Borrowers and
their Subsidiaries aged in excess of historical levels with respect
thereto and all book overdrafts of Borrowers and their Subsidiaries
in excess of historical practices with respect thereto, in each
case as determined by Agent in its Permitted
Discretion.
“Exchange Act” means the
Securities Exchange Act of 1934, as in effect from time to
time.
“Exchange Rate” means and
refers to the nominal rate of exchange (vis-à-vis Dollars) for
a currency other than Dollars published in The Wall Street Journal (Western
Edition) on the date of determination (which shall be a Business
Day on which The Wall Street
Journal (Western Edition) is published), expressed as the
number of units of such other currency per one Dollar.
“Excluded Taxes” means
(i) any tax imposed on the net income or net profits of any
Lender or any Participant (including any branch profits taxes), in
each case imposed by the jurisdiction (or by any political
subdivision or taxing authority thereof) in which such Lender or
such Participant is organized or the jurisdiction (or by any
political subdivision or taxing authority thereof) in which such
Lender’s or such Participant’s principal office is
located in each case as a result of a present or former connection
between such Lender or such Participant and the jurisdiction or
taxing authority imposing the tax (other than any such connection
arising solely from such Lender or such Participant having
executed, delivered or performed its obligations or received
payment under, or enforced its rights or remedies under the
Agreement or any other Loan Document); (ii) taxes resulting
from a Lender’s or a Participant’s failure to comply
with the requirements of Section 16.2 of the
Agreement; (iii) any United States federal withholding taxes
that would be imposed on amounts payable to a Foreign Lender based
upon the applicable withholding rate in effect at the time such
Foreign Lender becomes a party to the Agreement (or designates a
new lending office), except that Taxes shall include
(A) any amount that such Foreign Lender (or its assignor, if
any) was previously entitled to receive pursuant to Section 16.1 of the
Agreement, if any, with respect to such withholding tax at the time
such Foreign Lender becomes a party to the Agreement (or designates
a new lending office), and (B) additional United States
federal withholding taxes that may be imposed after the time such
Foreign Lender becomes a party to the Agreement (or designates a
new lending office), as a result of a change in law, rule,
regulation, order or other decision with respect to any of the
foregoing by any Governmental Authority; and (iv) any United States
federal withholding taxes imposed under FATCA.
“Existing
Credit Agreement” has the meaning set forth in the
recitals to the Agreement.
“Existing
Obligations” means the “Obligations” under
and as defined in the Existing Credit Agreement.
“Extraordinary Advances”
has the meaning specified therefor in Section 2.3(d)(iii) of
the Agreement.
“Extraordinary Receipts”
means (a) so long as no Event of Default has occurred and is
continuing, proceeds of judgments, proceeds of settlements, or
other consideration of any kind received in connection with any
cause of action or claim, and (b) if an Event of Default has
occurred and is continuing, any payments received by any Borrower
or any of its Subsidiaries not in the ordinary course of business
(and not consisting of proceeds described in Section 2.4(e)(ii) of
the Agreement) consisting of (i) proceeds of judgments,
proceeds of settlements, or other consideration of any kind
received in connection with any cause of action or claim,
(ii) indemnity payments (other than to the extent such
indemnity payments are immediately payable to a Person that is not
an Affiliate of any Borrower or any of its Subsidiaries, and
(iii) any purchase price adjustment received in connection
with any purchase agreement.
“FATCA” means Sections
1471 through 1474 of the IRC, as of the date of the Agreement (or
any amended or successor version that is substantively comparable
and not materially more onerous to comply with) and any current or
future regulations or official interpretations
thereof.
“Fee Letter” means that
certain fee letter, dated as of the Amendment No. 6 Effective
Date, among Borrowers and Agent, in form and substance reasonably
satisfactory to Agent.
“Federal Funds Rate”
means, for any period, a fluctuating interest rate per annum equal
to, for each day during such period, the weighted average of the
rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for
such day on such transactions received by Agent from three Federal
funds brokers of recognized standing selected by it.
“Fixed Charges” means,
with respect to any fiscal period and with respect to Borrowers
determined on a consolidated basis in accordance with GAAP, the
sum, without duplication, of (a) Interest Expense accrued
(other than interest paid-in-kind, amortization of financing fees,
and other non-cash Interest Expense) during such period,
(b) principal payments in respect of Indebtedness (including,
in respect of Real Property Sublimit Loans) that are required to be
paid during such period, (c) [reserved], (d) all federal,
state, and local income taxes paid during such period, (e) all
Affiliate Distributions and other Restricted Payments (other than
(i) Affiliate Distributions under Section 6.7(e), Section 6.7(f), Section 6.7(h), or Section 6.7(i) and
(ii) repayments under Section 6.6(a)(i) of Permitted
Intercompany Advances owing to GFN) paid (whether in cash or other
property, other than common Equity Interest) during such period,
and (f) all payments under Section 6.10(e) paid
(whether in cash or other property, other than common Equity
Interest) during such period.
“Fixed Charge Coverage
Ratio” means, with respect to any fiscal period and
with respect to Borrowers determined on a consolidated basis in
accordance with GAAP, the ratio of (a) the result of
(i) EBITDA for such
period, minus (ii) Net Unfinanced Capital Expenditures for
such period, minus (iii) all Affiliate Distributions
under Section 6.7(e),
Section 6.7(f),
Section 6.7(h),
and/or Section 6.7(i) paid during
such period, to (b) Fixed Charges for such
period.
“Foreign Lender” means any
Lender or Participant that is not a United States person within the
meaning of IRC section 7701(a)(30).
“Funded Indebtedness”
means, as of any date of determination, all Indebtedness for
borrowed money or letters of credit of Borrowers, determined on a
consolidated basis in accordance with GAAP, that by its terms
matures more than one year after the date of determination, and any
such Indebtedness maturing within one year from such date that is
renewable or extendable at the option of any Borrower or its
Subsidiaries, as applicable, to a date more than one year from such
date, including, in any event, but without duplication, with
respect to Borrowers and their Subsidiaries, the Revolver Usage,
the Last-Out Term Loan, and the amount of their Capitalized Lease
Obligations.
“Funding Date” means the
date on which a Borrowing occurs.
“Funding Losses” has the
meaning specified therefor in Section 2.12(b)(ii) of
the Agreement.
“GAAP” means generally
accepted accounting principles as in effect from time to time in
the United States, consistently applied.
“GFC” means General
Finance Corporation, a Delaware corporation and an Affiliate of
Pac-Van and of GFN.
“GFC 2021 Notes”
means the up to $77,500,000 aggregate principal amount of 8.125%
senior unsecured notes due 2021 issued by GFC (including (i) a
tranche of such notes in the aggregate principal amount of
$72,000,000 issued on or about June 18, 2014, and (ii) a
tranche of such notes in an aggregate principal amount of up to
$5,500,000 issued or to be issued in
December 2016).
“GFC 2021 Notes
Indenture” means, with respect to the GFC 2021
Notes, an Indenture dated as of June 18, 2014, between GFC and
Xxxxx Fargo, as trustee (as supplemented by a First Supplemental
Indenture dated as of June 18, 2014, between GFC and Xxxxx
Fargo, as trustee, and as further amended, restated, supplemented,
or otherwise modified from time to time).
“GFC 2021 Notes Indenture Cap
Amount” means, as of any date of determination, the
maximum aggregate amount of Indebtedness under the Agreement
permitted to be incurred by the GFC 2021 Notes Indenture as of
that date. As of the Amendment No. 6 Effective Date, the
GFC 2021 Notes Indenture Cap Amount was
$237,000,000.
“GFC 2021 Notes Indenture Cap
Cushion Amount” means an amount, up to $10,000,000,
determined by Agent in its Permitted Discretion from time to time
with respect to the GFC 2021 Notes Indenture Cap Amount. As of
the Amendment No. 6 Effective Date, the GFC 2021 Notes
Indenture Cap Cushion Amount was $8,000,000.
“GFN” means GFN North
America Corp., a Delaware corporation and an Affiliate of Pac-Van
and of GFC.
“GFN Manufacturing”
means GFN Manufacturing Corporation, a Delaware corporation.
GFN Manufacturing became a Guarantor effective as of the
Amendment No. 4 Effective Date.
“GFNRC” means GFN Realty
Company, LLC, a Delaware limited liability company. GFNRC
became a Borrower effective as of the Amendment No. 2
Effective Date.
“Governing Documents”
means, with respect to any Person, the certificate or articles of
incorporation, by-laws, or other organizational documents of such
Person.
“Governmental Authority”
means the government of any nation or any political subdivision
thereof, whether at the national, state, territorial, provincial,
municipal or any other level, and any agency, authority,
instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of, or pertaining
to, government (including any supra-national bodies such as the
European Union or the European Central Bank).
“Guarantor” means
(a) PV Acquisition, (b) GFN Manufacturing, and
(c) each other Person that becomes a guarantor after the
Closing Date pursuant to Section 5.11 of the
Agreement.
“Guaranty and Security
Agreement” means the Canadian Guaranty and Security
Agreement and the U.S. Guaranty and Security Agreement, as
applicable.
“Hazardous Materials”
means (a) substances that are defined or listed in, or
otherwise classified pursuant to, any applicable laws or
regulations as “hazardous substances,” “hazardous
materials,” “hazardous wastes,” “toxic
substances,” or any other formulation intended to define,
list, or classify substances by reason of deleterious properties
such as ignitability, corrosivity, reactivity, carcinogenicity,
reproductive toxicity, or “EP toxicity”, (b) oil,
petroleum, or petroleum derived substances, natural gas, natural
gas liquids, synthetic gas, drilling fluids, produced waters, and
other wastes associated with the exploration, development, or
production of crude oil, natural gas, or geothermal resources,
(c) any flammable substances or explosives or any radioactive
materials, and (d) asbestos in any form or electrical
equipment that contains any oil or dielectric fluid containing
levels of polychlorinated biphenyls in excess of 50 parts per
million.
“Hedge Agreement” means a
“swap agreement” as that term is defined in
Section 101(53B)(A) of the Bankruptcy Code.
“Hedge Obligations” means
any and all obligations or liabilities, whether absolute or
contingent, due or to become due, now existing or hereafter
arising, of each Borrower and its Subsidiaries arising under, owing
pursuant to, or existing in respect of Hedge Agreements entered
into with one or more of the Hedge Providers.
“Hedge Provider” means any
Lender or any of its Affiliates; provided, that no such Person
(other than Xxxxx Fargo or its Affiliates) shall constitute a Hedge
Provider unless and until Agent receives a Bank Product Provider
Agreement from such Person and with respect to the applicable Hedge
Agreement within 10 days after the execution and delivery of such
Hedge Agreement with a Borrower or its Subsidiaries; provided further, that if, at any time,
a Lender ceases to be a Lender under the Agreement, then, from and
after the date on which it ceases to be a Lender thereunder,
neither it nor any of its Affiliates shall constitute Hedge
Providers and the obligations with respect to Hedge Agreements
entered into with such former Lender or any of its Affiliates shall
no longer constitute Hedge Obligations.
“Increase” has the meaning
specified therefor in Section 2.14.
“Increase Date” has the
meaning specified therefor in Section 2.14.
“Increase Joinder” has the
meaning specified therefor in Section 2.14.
“Indebtedness” as to any
Person means (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by bonds,
debentures, notes, or other similar instruments and all
reimbursement or other obligations in respect of letters of credit,
bankers’ acceptances, or other financial products,
(c) all obligations of such Person as a lessee under Capital
Leases, (d) all obligations or liabilities of others secured
by a Lien on any asset of such Person, irrespective of whether such
obligation or liability is assumed, (e) all obligations of
such Person to pay the deferred purchase price of assets (other
than trade payables incurred in the ordinary course of business and
repayable in accordance with customary trade practices and, for the
avoidance of doubt, other than royalty payments payable in the
ordinary course of business in respect of non-exclusive licenses),
(f) all monetary obligations of such Person owing under Hedge
Agreements (which amount shall be calculated based on the amount
that would be payable by such Person if the Hedge Agreement were
terminated on the date of determination), (g) any Disqualified
Equity Interests of such Person, and (h) any obligation of
such Person guaranteeing or intended to guarantee (whether directly
or indirectly guaranteed, endorsed, co-made, discounted, or sold
with recourse) any obligation of any other Person that constitutes
Indebtedness under any of clauses (a) through
(g) above. For
purposes of this definition, (i) the amount of any
Indebtedness represented by a guaranty or other similar instrument
shall be the lesser of the principal amount of the obligations
guaranteed and still outstanding and the maximum amount for which
the guaranteeing Person may be liable pursuant to the terms of the
instrument embodying such Indebtedness, and (ii) the amount of
any Indebtedness which is limited or is non-recourse to a Person or
for which recourse is limited to an identified asset shall be
valued at the lesser of (A) if applicable, the limited amount
of such obligations, and (B) if applicable, the fair market
value of such assets securing such obligation.
“Indemnified Liabilities”
has the meaning specified therefor in Section 10.3 of the
Agreement.
“Indemnified Person” has
the meaning specified therefor in Section 10.3 of the
Agreement.
“Indemnified Taxes” means,
any Taxes other than Excluded Taxes.
“Insolvency Proceeding”
means any proceeding commenced by or against any Person under any
provision of the Bankruptcy Code or under any other state,
provincial, federal, or foreign bankruptcy or insolvency law
(including the Bankruptcy and Insolvency Act (Canada) and the
Companies’ Creditors Arrangement Act (Canada)), assignments
for the benefit of creditors, formal or informal moratoria,
compositions, proposals, arrangements, extensions generally with
creditors, or proceedings seeking reorganization, arrangement, or
other similar relief.
“Intercompany Subordination
Agreement” means an intercompany subordination
agreement, dated September 7, 2012, executed and delivered by
GFN, each Borrower, each of the Subsidiaries of each Borrower, each
of the other Loan Parties, and Agent, the form and substance of
which is reasonably satisfactory to Agent.
“Intercreditor Provisions”
means the provisions attached to the Agreement as Exhibit IC-1, as amended,
restated, supplemented, or otherwise modified from time to time in
accordance with the Agreement (including the Intercreditor
Provisions).
“Interest Expense” means,
for any period, the aggregate of the interest expense of Borrowers
for such period, determined on a consolidated basis in accordance
with GAAP.
“Interest Period” means,
with respect to each LIBOR Rate Loan, a period commencing on the
date of the making of such LIBOR Rate Loan (or the continuation of
a LIBOR Rate Loan or the conversion of a Base Rate Loan to a LIBOR
Rate Loan) and ending 1, 2, or 3 months thereafter;
provided, that
(a) interest shall accrue at the applicable rate based upon
the LIBOR Rate from and including the first day of each Interest
Period to, but excluding, the day on which any Interest Period
expires, (b) any Interest Period that would end on a day that
is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next
preceding Business Day, (c) with respect to an Interest Period
that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period), the Interest
Period shall end on the last Business Day of the calendar month
that is 1, 2, or 3 months after the date on which the Interest
Period began, as applicable, and (d) Borrowers may not elect
an Interest Period which will end after the Maturity
Date.
“Inventory” means
inventory (as that term is defined in the Code).
“Inventory Reserves”
means, as of any date of determination, (a) Landlord Reserves,
and (b) those reserves that Agent deems necessary or
appropriate, in its Permitted Discretion and subject to
Section 2.1(c)
and/or Section 2.2(d), to
establish and maintain (including reserves for slow moving
Inventory and Inventory shrinkage) with respect to Eligible
Inventory or the Maximum Revolver Amount.
“Investment” means, with
respect to any Person, any investment by such Person in any other
Person (including Affiliates) in the form of loans, guarantees,
advances, capital contributions (excluding (a) commission,
travel, and similar advances to officers and employees of such
Person made in the ordinary course of business, and
(b) bona fide accounts
receivable arising in the ordinary course of business), or
acquisitions of Indebtedness, Equity Interests, or all or
substantially all of the assets of such other Person (or of any
division or business line of such other Person), and any other
items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP. The amount of any
Investment shall be the original cost of such Investment plus the
cost of all additions thereto, without any adjustment for increases
or decreases in value, or write-ups, write-downs, or write-offs
with respect to such Investment.
“IRC” means the Internal
Revenue Code of 1986, as in effect from time to time.
“ISP” means, with respect
to any Letter of Credit, the International Standby Practices 1998
(International Chamber of Commerce Publication No. 590) and any
subsequent revision thereof adopted by the International Chamber of
Commerce on the date such Letter of Credit is issued.
“Issuer Document” means,
with respect to any Letter of Credit, a letter of credit
application, a letter of credit agreement, or any other document,
agreement or instrument entered into (or to be entered into) by a
Borrower in favor of Issuing Bank and relating to such Letter of
Credit.
“Issuing Bank” means Xxxxx
Fargo or any other Lender that, at the request of Borrowers and
with the consent of Agent, agrees, in such Lender’s sole
discretion, to become an Issuing Bank for the purpose of issuing
Letters of Credit pursuant to Section 2.11 of the
Agreement, and Issuing Bank shall be a Lender.
“Joint Book Runner” has
the meaning set forth in the preamble to the
Agreement.
“Judgment Currency” has
the meaning specified in Section 17.15 of the
Agreement.
“Landlord Reserve” means,
as to each location at which a Borrower or a Qualified Subsidiary
Guarantor has Inventory or books and records located and as to
which a Collateral Access Agreement has not been received by Agent,
a reserve in an amount equal to the greater of (a) the number
of months’ rent for which the landlord will have, under
applicable law, a Lien in the Inventory of such Borrower or
Qualified Subsidiary Guarantor to secure the payment of rent or
other amounts under the lease relative to such location, or
(b) 3 months’ rent under the lease relative to such
location.
“Last-Out Term Loan” has
the meaning specified therefor in Section 2.2 of the
Agreement.
“Last-Out Term Loan Amortization
Condition” means, with respect to any amortization
payment of the Last-Out Term Loan required under Section 2.2(b) of the
Agreement, the condition that before and immediately after giving
effect to such payment Excess Availability is greater than or equal
$10,000,000.
“Last-Out Term Loan
Amount” means $20,000,000.
“Last-Out Term Loan Collateral
Base” means, as of any date of determination, an
amount equal to the lesser of the following:
(a) the
Last-Out Term Loan Amount; and
(b) as
of that date of determination, the Dollar-equivalent result
of:
(i) the
lesser of the following:
(A) 10%
of the amount of Borrowers’ and Qualified Subsidiary
Guarantors’ Eligible Accounts, less the amount, if any, of the
Dilution Reserve; and
(B) the
result of (1) 95% of the amount of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Accounts,
minus (2) the portion
of the Revolving Loans outstanding as of such date that were made
on account of Availability under clause (a) of the
definition of Borrowing Base; plus
(ii) the
lesser of the following:
(A) the
sum of the following:
(1) the
product of 10%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Rolling Stock Equipment (such
determination may be made as to different categories of such
Eligible Rolling Stock Equipment based upon the Net Recovery
Percentage applicable to such categories) at such time, plus
(2) the
product of 10%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Branch-Use Equipment (such
determination may be made as to different categories of such
Eligible Branch-Use Equipment based upon the Net Recovery
Percentage applicable to such categories) at such time, plus
(3) the
product of 10%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Step Inventory (such determination
may be made as to different categories of such Eligible Step
Inventory based upon the Net Recovery Percentage applicable to such
categories) at such time;
and
(B) the
result of the following:
(1) the
product of 95%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Rolling Stock Equipment (such
determination may be made as to different categories of such
Eligible Rolling Stock Equipment based upon the Net Recovery
Percentage applicable to such categories) at such time, plus
(2) the
product of 95%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Branch-Use Equipment (such
determination may be made as to different categories of such
Eligible Branch-Use Equipment based upon the Net Recovery
Percentage applicable to such categories) at such time, plus
(3) the
product of 95%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Step Inventory (such determination
may be made as to different categories of such Eligible Step
Inventory based upon the Net Recovery Percentage applicable to such
categories) at such time,
minus
(4) the
portion of the Revolving Loans outstanding as of such date that
were made on account of Availability under clause (d) of the
definition of Borrowing Base; plus
(iii) the
lesser of the following:
(A) the
product of 10%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Fleet Inventory (such
determination may be made as to different categories of such
Eligible Fleet Inventory based upon the Net Recovery Percentage
applicable to such categories) at such
time; and
(B) the
result of (1) the product of
95%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Borrowers’ and
Qualified Subsidiary Guarantors’ Eligible Fleet Inventory (such
determination may be made as to different categories of such
Eligible Fleet Inventory based upon the Net Recovery Percentage
applicable to such categories) at such
time, minus
(2) the portion of the Revolving Loans outstanding as of such
date that were made on account of Availability under clause (e) of the
definition of Borrowing Base; plus
(iv) the
lesser of the following:
(A) 10%
of the amount of Southern Frac’s Eligible Southern Frac
Accounts, less the amount, if any, of the Dilution Reserve;
and
(B) the
result of (1) 95% of the amount of Southern Frac’s
Eligible Southern Frac Accounts, minus (2) the portion of the Revolving Loans
outstanding as of such date that were made on account of
Availability under clause (g) of the
definition of Borrowing Base; plus
(v) the
lesser of the following:
(A) the
product of 10%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Southern Frac’s Eligible
Southern Frac Finished Goods Inventory (such determination may be
made as to different categories of such Eligible Southern Frac
Finished Goods Inventory based upon the Net Recovery Percentage
applicable to such categories) at such time;
and
(B) the
result of (1) the product of 95%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Southern Frac’s Eligible
Southern Frac Finished Goods Inventory (such determination may be
made as to different categories of such Eligible Southern Frac
Finished Goods Inventory based upon the Net Recovery Percentage
applicable to such categories) at such time, minus (2) the portion of the Revolving Loans
outstanding as of such date that were made on account of
Availability under clause (h) of the
definition of Borrowing Base;
plus
(vi) the
lesser of the following:
(A) the
product of 10%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Southern Frac’s Eligible
Southern Frac Raw Materials Inventory (such determination may be
made as to different categories of such Eligible Southern Frac Raw
Materials Inventory based upon the Net Recovery Percentage
applicable to such categories) at such time;
and
(B) the
result of (1) the product of 95%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Southern Frac’s Eligible
Southern Frac Raw Materials Inventory (such determination may be
made as to different categories of such Eligible Southern Frac Raw
Materials Inventory based upon the Net Recovery Percentage
applicable to such categories) at such time, minus (2) the portion of the Revolving Loans
outstanding as of such date that were made on account of
Availability under clause (i) of the
definition of Borrowing Base;
plus
(vii) the
lesser of the following:
(A) the
product of 10%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Southern Frac’s Eligible
Southern Frac Tanks (such determination may be made as to different
categories of such Eligible Southern Frac Tanks based upon the Net
Recovery Percentage applicable to such categories) at such time;
and
(B) the
result of (1) the product of 95%, multiplied by
the most recently determined Net
Recovery Percentage, multiplied by
the value (calculated at the lower of
cost or market on a basis consistent with Loan Parties’
historical accounting practices) of Southern Frac’s Eligible
Southern Frac Tanks (such determination may be made as to different
categories of such Eligible Southern Frac Tanks based upon the Net
Recovery Percentage applicable to such categories) at such
time, minus (2) the portion of the Revolving Loans
outstanding as of such date that were made on account of
Availability under clause (j) of the
definition of Borrowing Base;
minus
(viii) the
aggregate amount of Reserves, if any, established by Agent under
Section 2.2(d)
of the Agreement.
“Last-Out Term Loan
Commitment” means, with respect to each Lender, its
Last-Out Term Loan Commitment, and, with respect to all Lenders,
their Last-Out Term Loan Commitments, in each case as such Dollar
amounts are set forth beside such Lender’s name under the
applicable heading on Schedule C-1 to the
Agreement or in the Assignment and Acceptance pursuant to which
such Lender became a Lender under the Agreement, as such amounts
may be reduced or increased from time to time pursuant to
assignments made in accordance with the provisions of Section 13.1 of the
Agreement.
“Last-Out Term Loan
Exposure” means, with respect to any Last-Out Term
Loan Lender, as of any date of determination (a) prior to the
funding of the Last-Out Term Loan, the amount of such
Lender’s Last-Out Term Loan Commitment, and (b) after
the funding of the Last-Out Term Loan, the outstanding principal
amount of the Last-Out Term Loan held by such Lender.
“Last-Out Term Loan
Lender” means a Lender that has a Last-Out Term Loan
Commitment or that has a portion of the Last-Out Term
Loan.
“Last-Out Term Loan Prepayment
Premium” means, with respect to any prepayment of the
Last-Out Term Loan made pursuant to Sections 2.4(d)(ii) or
2.4(e) of the
Agreement, the following amount, as applicable: (a) if such
prepayment is made on or before the first anniversary of the
Amendment No. 6 Effective Date, an amount equal to 3% of the
principal amount of the Last-Out Term Loan prepaid on such date;
(b) if such prepayment is made after the first anniversary of
the Amendment No. 6 Effective Date but on or before the second
anniversary of the Amendment No. 6 Effective Date, an amount
equal to 2% of the principal amount of the Last-Out Term Loan
prepaid on such date; (c) if such prepayment occurs after the
second anniversary of the Amendment No. 6 Effective Date but
on or before the third anniversary of the Amendment No. 6
Effective Date, an amount equal to 1% of the principal amount of
the Last-Out Term Loan prepaid on such date; and (d) if such
prepayment occurs after the third anniversary of the Amendment
No. 6 Effective Date, an amount equal to 0% of the principal
amount of the Last-Out Term Loan prepaid on such date.
“Last-Out Term Loan
Reserve” means, as of any date of determination,
without duplication, a reserve in an aggregate amount equal to the
amount, if any, by which the outstanding principal amount of the
Last-Out Term Loan on such date exceeds the Last-Out Term Loan
Collateral Base reflected in the Borrowing Base Certificate most
recently delivered by Borrowers to Agent.
“Lender” has the meaning
set forth in the preamble to the Agreement, shall include Issuing
Bank and the Swing Lender, and shall also include any other Person
made a party to the Agreement pursuant to the provisions of
Section 13.1
of the Agreement and “Lenders” means each of
the Lenders or any one or more of them.
“Lender Group” means each
of the Lenders (including Issuing Bank and the Swing Lender) and
Agent (as Agent and in its capacity as Trust Agent), or any one or
more of them.
“Lender Group Expenses”
means all (a) reasonable costs or expenses (including taxes
and insurance premiums) required to be paid by any Borrower or its
Subsidiaries under any of the Loan Documents that are paid,
advanced, or incurred by the Lender Group, (b) documented and
reasonable out-of-pocket fees or charges paid or incurred by Agent
or the Last-Out Term Loan Lenders in connection with the Lender
Group’s transactions with each Borrower and its Subsidiaries
under any of the Loan Documents, including photocopying,
notarization, couriers and messengers, telecommunication, public
record searches, filing fees, recording fees, publication, real
estate surveys, real estate title policies and endorsements, and
environmental audits, (c) Agent’s and the Last-Out Term Loan
Lenders’ customary fees and charges imposed or incurred in
connection with any background checks or OFAC/PEP searches related
to any Borrower or its Subsidiaries, (d) Agent’s
customary and reasonable fees and charges (as adjusted from time to
time) with respect to the disbursement of funds (or the receipt of
funds) to or for the account of any Borrower (whether by wire
transfer or otherwise), together with any out-of-pocket costs and
expenses incurred in connection therewith, (e) customary and
reasonable charges imposed or incurred by Agent resulting from the
dishonor of checks payable by or to any Loan Party, (f) reasonable
documented out-of-pocket costs and expenses paid or incurred by the
Lender Group to correct any default or enforce any provision of the
Loan Documents, or during the continuance of an Event of Default,
in gaining possession of, maintaining, handling, preserving,
storing, shipping, selling, preparing for sale, or advertising to
sell the Collateral, or any portion thereof, irrespective of
whether a sale is consummated, (g) field examination, appraisal,
and valuation fees and expenses of Agent related to any field
examinations, appraisals, or valuation to the extent of the fees
and charges (and up to the amount of any limitation) provided in
Section 2.10 of the
Agreement, (h) Agent’s and the Last-Out Term Loan
Lenders’ reasonable costs and expenses (including reasonable
documented attorneys’ fees and expenses) relative to
third-party claims or any other lawsuit or adverse proceeding paid
or incurred, whether in enforcing or defending the Loan Documents
or otherwise in connection with the transactions contemplated by
the Loan Documents, Agent’s Liens in and to the Collateral,
or the Lender Group’s relationship with any Borrower or any
of its Subsidiaries, (i) Agent’s and the Last-Out Term
Loan Lenders’ reasonable documented costs and expenses
(including reasonable documented attorneys’ fees and due
diligence expenses) incurred in advising, structuring, drafting,
reviewing, administering (including travel, meals, and lodging),
syndicating (including reasonable costs and expenses relative to
CUSIP, DXSyndicate™, SyndTrak or other communication costs
incurred in connection with a syndication of the loan facilities),
or amending, waiving, or modifying the Loan Documents, and
(j) Agent’s and each Lender’s reasonable
documented costs and expenses (including reasonable documented
attorneys, accountants, consultants, and other advisors fees and
expenses) incurred in terminating, enforcing (including attorneys,
accountants, consultants, and other advisors fees and expenses
incurred in connection with a “workout,” a
“restructuring,” or an Insolvency Proceeding concerning
any Borrower or any of its Subsidiaries or in exercising rights or
remedies under the Loan Documents), or defending the Loan
Documents, irrespective of whether a lawsuit or other adverse
proceeding is brought, or in taking any enforcement action or any
Remedial Action with respect to the Collateral. For the avoidance
of doubt, the Last-Out Term Loan Lenders may hire counsel and other
professionals separate and different from Agent’s counsel and
professionals, but the fees and expenses of counsel to the Last-Out
Term Loan Lenders that shall constitute Lender Group Expenses shall
in any event be limited to one primary counsel for all Last-Out
Term Loan Lenders
“Lender Group
Representatives” has the meaning specified therefor in
Section 17.9
of the Agreement.
“Lender-Related Person”
means, with respect to any Lender, such Lender, together with such
Lender’s Affiliates, officers, directors, employees,
attorneys, and agents.
“Letter of Credit” means a
letter of credit (as that term is defined in the Code) issued by
Issuing Bank.
“Letter of Credit
Collateralization” means either (a) providing
cash collateral (pursuant to documentation reasonably satisfactory
to Agent, including provisions that specify that the Letter of
Credit Fees and all commissions, fees, charges and expenses
provided for in Section 2.11(k) of
the Agreement (including any fronting fees) will continue to accrue
while the Letters of Credit are outstanding) to be held by Agent
for the benefit of the Revolving Lenders in an amount equal to 105%
of the then existing Letter of Credit Usage, (b) delivering to
Agent documentation executed by all beneficiaries under the Letters
of Credit, in form and substance reasonably satisfactory to Agent
and Issuing Bank, terminating all of such beneficiaries’
rights under the Letters of Credit, or (c) providing Agent
with a standby letter of credit, in form and substance reasonably
satisfactory to Agent, from a commercial bank acceptable to Agent
(in its sole discretion) in an amount equal to 105% of the then
existing Letter of Credit Usage (it being understood that the
Letter of Credit Fee and all fronting fees set forth in the
Agreement will continue to accrue while the Letters of Credit are
outstanding and that any such fees that accrue must be an amount
that can be drawn under any such standby letter of
credit).
“Letter of Credit
Disbursement” means a payment made by Issuing Bank
pursuant to a Letter of Credit.
“Letter of Credit
Exposure” means, as of any date of determination with
respect to any Lender, such Lender’s Pro Rata Share of the
Letter of Credit Usage on such date.
“Letter of Credit Fee” has
the meaning specified therefor in Section 2.6(b) of the
Agreement.
“Letter of Credit Indemnified
Costs” has the meaning specified therefor in
Section 2.11(f) of
the Agreement.
“Letter of Credit Related
Person” has the meaning specified therefor in
Section 2.11(f) of
the Agreement.
“Letter of Credit Usage”
means, as of any date of determination, (a) with respect to
all Borrowers, the aggregate undrawn amount of all outstanding
Letters of Credit, and (b) with respect to each Borrower, the
aggregate undrawn amount of all outstanding Letters of Credit
issued or arranged by Issuing Bank for such Borrower’s
account. Unless the context otherwise requires, “Letter of
Credit Usage” refers to the Letter of Credit Usage with
respect to all Borrowers.
“LIBOR Deadline” has the
meaning specified therefor in Section 2.12(b)(i) of
the Agreement.
“LIBOR Notice” means a
written notice in the form of Exhibit L-1 to the
Agreement.
“LIBOR Option” has the
meaning specified therefor in Section 2.12(a) of
the Agreement.
“LIBOR Rate” means
the greater of (a) the rate per annum appearing on
Macro*World’s (xxx.xxxxxxxxxxxxxx.xxxxxx.xxx; the
“Service”) Page BBA LIBOR
- USD (or on any successor or substitute page of such Service, or
any successor to or substitute for such Service) 2 Business Days
prior to the commencement of the requested Interest Period, for a
term, and in an amount, comparable to the Interest Period and the
amount of the LIBOR Rate Loan requested (whether as an initial
LIBOR Rate Loan or as a continuation of a LIBOR Rate Loan or as a
conversion of a Base Rate Loan to a LIBOR Rate Loan) by Borrowers
in accordance with the Agreement (and, if any such rate is below
zero, the LIBOR Rate shall be deemed to be zero), which
determination shall be made by Agent and shall be conclusive in the
absence of manifest error, and (b)(i) with respect to the
Last-Out Term Loan, 1.00% per annum, and (ii) in all other
cases, 0.00% per annum.
“LIBOR Rate Loan” means
each portion of a Revolving Loan or the Last-Out Term Loan that
bears interest at a rate determined by reference to the LIBOR
Rate.
“LIBOR Rate Margin” has
the meaning set forth in the definition of Applicable
Margin.
“Lien” means any mortgage,
deed of trust, pledge, hypothecation, assignment, charge, deposit
arrangement, encumbrance, easement, lien (statutory or other),
security interest, trust (deemed, statutory, constructive, or
otherwise) or other security arrangement and any other preference,
priority, or preferential arrangement of any kind or nature
whatsoever, including any conditional sale contract or other title
retention agreement, the interest of a lessor under a Capital Lease
and any synthetic or other financing lease having substantially the
same economic effect as any of the foregoing.
“Loan” shall mean any
Revolving Loan, Swing Loan, Extraordinary Advance, or Last-Out Term
Loan made (or to be made) hereunder.
“Loan Account” has the
meaning specified therefor in Section 2.9 of the
Agreement.
“Loan Documents” means the
Agreement, the Control Agreements, any Borrowing Base Certificate,
the Fee Letter, each Guaranty and Security Agreement, the
Intercompany Subordination Agreement, the Trust Agreement, any
Issuer Documents, the Letters of Credit, each Mortgage, the
Trademark Security Agreement, any note or notes executed by
Borrowers in connection with the Agreement and payable to any
member of the Lender Group, and any other instrument or agreement
entered into, now or in the future, by any Borrower or any of its
Subsidiaries and any member of the Lender Group in connection with
the Agreement.
“Loan Party” means any
Borrower or any Guarantor.
“Loan Sub-Account” has the
meaning specified therefor in Section 2.9 of the
Agreement.
“Lone Star
Acquisition” means the Acquisition by Lone Star
of all or substantially all of the assets of the
Lone Star Sellers pursuant to and in accordance with the
Lone Star Purchase Agreement.
“Lone Star Acquisition
Documents” means the Lone Star Purchase Agreement
and all other documents related thereto and executed in connection
therewith.
“Lone Star Purchase
Agreement” means an Asset Purchase Agreement dated as
February 28, 2014, between the Lone Star Sellers, the
“Principals” thereunder and as defined therein and
party thereto, and Lone Star.
“Lone Star Seller
Note” means an unsecured Non-Negotiable Promissory
Note in the principal amount of $5,000,000 made by Lone Star
in connection with the consummation of the Lone Star
Acquisition and payable to the order of the Lone Star
Sellers.
“Lone Star Sellers”
means Lone Star Tank Rental L.P., a Texas limited
partnership, and KHM Rentals, LLC, a Texas limited
liability company.
“Management Agreement”
means the Management Agreement dated as of May 29, 2015,
between GFC, GFNRC, Lone Star, and Pac-Van, as in effect on the
Amendment No. 3 Effective Date and as amended or otherwise
modified with Agent’s prior written consent.
“Margin Stock” as defined
in Regulation U of the Board of Governors as in effect from time to
time.
“Material Adverse Effect”
means (a) a material adverse effect in the business,
operations, results of operations, assets, liabilities or financial
condition of Borrowers and their Subsidiaries, taken as a whole,
(b) a material impairment of Borrowers’ and their
Subsidiaries ability to perform their obligations under the Loan
Documents to which they are parties or of the Lender Group’s
ability to enforce the Obligations or realize upon the Collateral
(other than as a result of as a result of an action taken or not
taken that is solely in the control of Agent), or (c) a
material impairment of the enforceability or priority of
Agent’s Liens with respect to all or a material portion of
the Collateral.
“Maturity Date” means the
earliest to occur of the following: (a) March 24, 2021,
if by that date the scheduled maturity date of the GFC 2021
Notes has not been extended to a date not earlier than 90 days
after the Scheduled Maturity Date or repaid in full or
refinanced or replaced on terms mutually satisfactory to Borrowers
and Agent; (b) the date on which the GFC 2021 Notes are
due and payable (whether at maturity, by acceleration, or
otherwise); and (c) the Scheduled Maturity Date.
“Maximum Real Property Sublimit
Amount” means, as of the Amendment No. 6
Effective Date, $2,000,000, decreased by the amount of payments of
outstanding principal of the Real Property Sublimit Loans made in
accordance with Sections 2.1(b),
2.4(d), and
2.4(e) of the
Agreement on or after the Amendment No. 6 Effective
Date.
“Maximum Revolver Amount”
means $210,000,000, decreased by the amount of reductions in the
Revolver Commitments made in accordance with Section 2.4(c) of the
Agreement and increased by the amount of Increases made in
accordance with Section 2.14 of the
Agreement.
“Xxxxx’x” has the
meaning specified therefor in the definition of Cash
Equivalents.
“Mortgage” means each
mortgage, deed of trust, or deed to secure debt executed and
delivered by a Borrower or one of its Subsidiaries in favor of
Agent, in form and substance reasonably satisfactory to Agent, that
encumber Real Property Collateral.
“Mortgage Policy” have the
meaning set forth in Section 3.6(c)(iii)
hereof.
“Motor Vehicle Statute”
shall have the meaning set forth in Section 5.16(d)
hereof.
“Multiemployer Plan” means
any multiemployer plan within the meaning of Section 3(37) or
4001(a)(3) of ERISA with respect to which any Loan Party or ERISA
Affiliate has an obligation to contribute or has any liability,
contingent or otherwise or could be assessed withdrawal liability
assuming a complete withdrawal from any such multiemployer
plan.
“Net Cash Proceeds”
means:
(a) with
respect to any sale or disposition by any Borrower or any of its
Subsidiaries of assets, the amount of cash proceeds received
(directly or indirectly) from time to time (whether as initial
consideration or through the payment of deferred consideration) by
or on behalf of such Borrower or such Subsidiary, in connection
therewith after deducting therefrom only (i) the amount of any
Indebtedness secured by any Permitted Lien on any asset (other than
(A) Indebtedness owing to Agent or any Lender under the
Agreement or the other Loan Documents and (B) Indebtedness
assumed by the purchaser of such asset) which is required to be,
and is, repaid in connection with such sale or disposition,
(ii) reasonable fees, commissions, and expenses related
thereto and required to be paid by such Borrower or such Subsidiary
in connection with such sale or disposition, (iii) taxes paid
or payable to any taxing authorities by such Borrower or such
Subsidiary in connection with such sale or disposition, in each
case to the extent, but only to the extent, that the amounts so
deducted are, at the time of receipt of such cash, actually paid or
payable to a Person that is not an Affiliate of any Borrower or any
of its Subsidiaries, and are properly attributable to such
transaction; and (iv) all amounts that are set aside as a
reserve (A) for adjustments in respect of the purchase price
of such assets, (B) for any liabilities associated with such
sale or casualty, to the extent such reserve is required by GAAP,
and (C) for the payment of unassumed liabilities relating to
the assets sold or otherwise disposed of at the time of, or within
30 days after, the date of such sale or other disposition, to the
extent that in each case the funds described above in this
clause (iv) are
(x) deposited into escrow with a third-party escrow agent or
set aside in a separate Deposit Account that is subject to a
Control Agreement in favor of Agent and (y) paid to Agent as a
prepayment of the applicable Obligations in accordance with
Section 2.4(e) of the
Agreement at such time when such amounts are no longer required to
be set aside as such a reserve; and
(b) with
respect to the issuance or incurrence of any Indebtedness by any
Borrower or any of its Subsidiaries, or the issuance by any
Borrower or any of its Subsidiaries of any Equity Interests, the
aggregate amount of cash received (directly or indirectly) from
time to time (whether as initial consideration or through the
payment or disposition of deferred consideration) by or on behalf
of such Borrower or such Subsidiary in connection with such
issuance or incurrence, after deducting therefrom only
(i) reasonable fees, commissions, and expenses related thereto
and required to be paid by such Borrower or such Subsidiary in
connection with such issuance or incurrence, (ii) taxes paid
or payable to any taxing authorities by such Borrower or such
Subsidiary in connection with such issuance or incurrence, in each
case to the extent, but only to the extent, that the amounts so
deducted are, at the time of receipt of such cash, actually paid or
payable to a Person that is not an Affiliate of any Borrower or any
of its Subsidiaries, and are properly attributable to such
transaction.
“Net Recovery Percentage”
means, as of any date of determination, the percentage of the book
value of Borrowers’ Inventory or Equipment, as applicable,
that is estimated to be recoverable in an orderly liquidation of
such Inventory or such Equipment, net of all associated costs and
expenses of such liquidation, such percentage to be determined by
Agent in its Permitted Discretion as to each category of Inventory
or Equipment by reference to the most recent applicable appraisal
received by Agent from an appraisal company selected by
Agent.
“Net Unfinanced Capital
Expenditures” means, with
respect to any fiscal period and with respect to Borrowers
determined on a consolidated basis in accordance with GAAP, an
amount equal to the greater of the following:
(a) $0,
and
(b) the
result of the following:
(i) the
sum of the following:
(A) the
amount of Capital Expenditures made or incurred during that
period, plus
(B) with
respect to any Small-Cap Acquisition that is a Permitted
Acquisition, the amount of expenditures made or incurred during
that period in the form of expenditures constituting the Purchase
Price for that Permitted Acquisition, minus
(ii) with
respect to each Capital Expenditure or other expenditure
under clause (i)
constituting an expenditure for an
asset constituting Rolling Stock Equipment, Branch-Use Equipment,
Step Inventory, Rental Fleet Inventory, or Other Fleet Inventory,
the sum of the following:
(A) an
amount equal to the portion of that Capital Expenditure or that
expenditure that Borrowers allocate, to the reasonable
satisfaction of Agent, to the goodwill associated with that asset,
in an aggregate amount not to exceed $2,000,000 in any fiscal
year, plus
(B) an
amount equal to the initial incremental credit availability,
if any, under clause (d) or (e) of the definition of
Borrowing Base that is attributable to that asset, minus
(iii) the
Net Cash Proceeds of sales and dispositions of Branch-Use
Equipment, Rolling Stock Equipment, Step Inventory, Rental Fleet
Inventory, and/or Other Fleet Inventory received during that
period.
“Non-Certificated Unit”
means a Unit that is not a Certificated Unit.
“Non-Consenting Lender”
has the meaning specified therefor in Section 14.2(a) of
the Agreement.
“Non-Defaulting Lender”
means each Lender other than a Defaulting Lender.
“Notification Event” means
(a) the occurrence of a “reportable event”
described in Section 4043 of ERISA for which the 30-day notice
requirement has not been waived by applicable regulations issued by
the PBGC; (b) the withdrawal of any Loan Party or ERISA
Affiliate from a Pension Plan during a plan year in which it was a
“substantial employer” as defined in
Section 4001(a)(2) of ERISA; (c) the termination of a
Pension Plan, the filing of a notice of intent to terminate a
Pension Plan or the treatment of a Pension Plan amendment as a
termination, under Section 4041 of ERISA, if the plan assets
are not sufficient to pay all plan liabilities; (d) the
institution of proceedings to terminate, or the appointment of a
trustee with respect to, any Pension Plan by the PBGC or any
Pension Plan or Multiemployer Plan administrator; (e) any
other event or condition that would constitute grounds under
Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan;
(f) the imposition of a Lien pursuant to the IRC or ERISA in
connection with any Employee Benefit Plan or the existence of any
facts or circumstances that could reasonably be expected to result
in the imposition of a Lien; (g) the partial or complete
withdrawal of any Loan Party or ERISA Affiliate from a
Multiemployer Plan (other than any withdrawal that would not
constitute an Event of Default under Section 8.12),
(h) any event or condition that results in the reorganization
or insolvency of a Multiemployer Plan under Sections of ERISA;
(i) any event or condition that results in the termination of
a Multiemployer Plan under Section 4041A of ERISA or the
institution by the PBGC of proceedings to terminate or to appoint a
trustee to administer a Multiemployer Plan under ERISA;
(j) any Pension Plan being in “at risk status”
within the meaning of IRC Section 430(i); (k) any
Multiemployer Plan being in “endangered status” or
“critical status” within the meaning of IRC Section
432(b) or the determination that any Multiemployer Plan is or is
expected to be insolvent or in reorganization within the meaning of
Title IV of ERISA; (l) with respect to any Pension Plan, any
Loan Party or ERISA Affiliate incurring a substantial cessation of
operations within the meaning of ERISA Section 4062(e);
(m) an “accumulated funding deficiency” within the
meaning of the IRC or ERISA (including Section 412 of the IRC
or Section 302 of ERISA) or the failure of any Pension Plan or
Multiemployer Plan to meet the minimum funding standards within the
meaning of the IRC or ERISA (including Section 412 of the IRC
or Section 302 of ERISA), in each case, whether or not waived;
(n) the filing of an application for a waiver of the minimum
funding standards within the meaning of the IRC or ERISA (including
Section 412 of the IRC or Section 302 of ERISA) with
respect to any Pension Plan or Multiemployer Plan; (o) the
failure to make by its due date a required payment or contribution
with respect to any Pension Plan or Multiemployer Plan;
(p) any event that results in or could reasonably be expected
to result in a liability by a Loan Party pursuant to Title I of
ERISA or the excise tax provisions of the IRC relating to Employee
Benefit Plans or any event that results in or could reasonably be
expected to result in a liability to any Loan Party or ERISA
Affiliate pursuant to Title IV of ERISA or Section 401(a)(29)
of the IRC; or (q) any of the foregoing is reasonably likely
to occur in the following 30 days.
“Obligations” means
(a) all loans (including the Last-Out Term Loan and the
Revolving Loans (inclusive of Extraordinary Advances and Swing
Loans)), debts, principal, interest (including any interest that
accrues after the commencement of an Insolvency Proceeding,
regardless of whether allowed or allowable in whole or in part as a
claim in any such Insolvency Proceeding), reimbursement or
indemnification obligations with respect to Letters of Credit
(irrespective of whether contingent), premiums, liabilities
(including all amounts charged to the Loan Account pursuant to the
Agreement), obligations (including indemnification obligations),
fees (including the fees provided for in the Fee Letter), Lender
Group Expenses (including any fees or expenses that accrue after
the commencement of an Insolvency Proceeding, regardless of whether
allowed or allowable in whole or in part as a claim in any such
Insolvency Proceeding), guaranties, and all covenants and duties of
any other kind and description owing by any Loan Party arising out
of, under, pursuant to, in connection with, or evidenced by the
Agreement or any of the other Loan Documents and irrespective of
whether for the payment of money, whether direct or indirect,
absolute or contingent, due or to become due, now existing or
hereafter arising, and including all interest not paid when due and
all other expenses or other amounts that Borrowers are required to
pay or reimburse by the Loan Documents or by law or otherwise in
connection with the Loan Documents, and (b) all Bank Product
Obligations. Without limiting the generality of the foregoing, the
Obligations of Borrowers under the Loan Documents include the
obligation to pay (i) the principal of the Revolving Loans and
the Last-Out Term Loan, (ii) interest accrued on the Revolving
Loans and the Last-Out Term Loan, (iii) the amount necessary
to reimburse Issuing Bank for amounts paid or payable pursuant to
Letters of Credit, (iv) Letter of Credit commissions, fees
(including fronting fees) and charges, (v) Lender Group
Expenses, (vi) fees payable under the Agreement or any of the
other Loan Documents, and (vii) indemnities and other amounts
payable by any Loan Party under any Loan Document. Any reference in
the Agreement or in the Loan Documents to the Obligations shall
include all or any portion thereof and any extensions,
modifications, renewals, or alterations thereof, both prior and
subsequent to any Insolvency Proceeding.
“OFAC” means The Office of
Foreign Assets Control of the U.S. Department of the
Treasury.
“Originating Lender” has
the meaning specified therefor in Section 13.1(e) of
the Agreement.
“Other Fleet Inventory”
means Inventory (other than Rental Fleet Inventory) of a Borrower
and its Subsidiaries that consists of new and used modular
buildings, mobile and ground-level offices, storage containers,
trailers, frac tanks, and portable liquid storage
tanks.
“Overadvance” means, as of
any date of determination, that the Revolver Usage is greater than
any of the limitations set forth in Section 2.1 or
Section 2.11.
“Participant” has the
meaning specified therefor in Section 13.1(e) of
the Agreement.
“Participant Register” has
the meaning set forth in Section 13.1(i) of
the Agreement.
“Partition Event”
means (a) either (i) the occurrence of an Event of
Default or (ii) Excess Availability on any date being less
than $3,500,000, and (b) the issuance by Agent of written
notice to Administrative Borrower that a
“Partition Event” has occurred.
“Patriot Act” has the
meaning specified therefor in Section 4.13 of the
Agreement.
“PBGC” means the Pension
Benefit Guaranty Corporation or any successor agency.
“Pension Plan” means any
Employee Benefit Plan, other than a Multiemployer Plan, which is
subject to the provisions of Title IV or Section 302 of ERISA
or Sections 412 or 430 of the Code or other applicable law
sponsored, maintained, or contributed to by any Loan Party or ERISA
Affiliate or to which any Loan Party or ERISA Affiliate has any
liability, contingent or otherwise.
“Perfection Certificate”
means a certificate in the form of Exhibit P-1 to the
Agreement.
“Permitted Acquisition”
means any Acquisition, so long as:
(a) no Default
or Event of Default shall have occurred and be continuing or would
result from the consummation of the proposed Acquisition and the
proposed Acquisition is consensual,
(b) (i) no
Indebtedness will be incurred, assumed, or would exist with respect
to any Borrower or its Subsidiaries as a result of such
Acquisition, other than Indebtedness permitted under clauses (f), (g), or (q) of the definition of
Permitted Indebtedness, (ii) no Liens will be incurred,
assumed, or would exist with respect to the assets of any Borrower
or its Subsidiaries as a result of such Acquisition other than
Permitted Liens, and (iii) if such Acquisition is an
Acquisition of Real Property that is (or is intended to be) the
subject of any Permitted Real Property Financing Indebtedness, no
part of the proceeds of the loans made to Borrowers will be used to
finance such Acquisition,
(c) Borrowers
have provided Agent with written confirmation, supported by
reasonably detailed calculations, that on a pro forma basis (including pro forma adjustments arising out of
events which are directly attributable to such proposed
Acquisition, are factually supportable, and are expected to have a
continuing impact, in each case, determined as if the combination
had been accomplished at the beginning of the relevant period; such
eliminations and inclusions to be mutually and reasonably agreed
upon by Borrowers and Agent) created by adding the historical
combined financial statements of Borrowers (including the combined
financial statements of any other Person or assets that were the
subject of a prior Permitted Acquisition during the relevant
period) to the historical consolidated financial statements of the
Person to be acquired (or the historical financial statements
related to the assets to be acquired) pursuant to the proposed
Acquisition, Borrowers and their Subsidiaries (i) would have
been in compliance with the financial covenants in Section 7 of the Agreement
for the 4-fiscal-quarter period ended immediately prior to the
proposed date of consummation of such proposed Acquisition, and
(ii) are projected to be in compliance with the financial
covenants in Section 7 of the Agreement
for the 4-fiscal-quarter period ended one year after the proposed
date of consummation of such proposed Acquisition,
(d) Borrowers
have provided Agent with its due diligence package relative to the
proposed Acquisition, including forecasted balance sheets, profit
and loss statements, and cash flow statements of the Person or
assets to be acquired, all prepared on a basis consistent with such
Person’s (or assets’) historical financial statements,
together with appropriate supporting details and a statement of
underlying assumptions for the 1-year period following the date of
the proposed Acquisition, on a quarter by quarter basis), in form
and substance (including as to scope and underlying assumptions)
reasonably satisfactory to Agent,
(e) (i) with
respect to the proposed Acquisition by Pac-Van of
[…***…], after the Amendment No. 6 Effective Date,
Borrowers shall have Availability plus Qualified Cash in an amount equal
to or greater than $20,000,000 immediately after giving effect to
the consummation of the proposed Acquisition, and (ii) with
respect to any other proposed Acquisition, if the proposed
Acquisition is not a Small-Cap Acquisition, Borrowers shall have
Availability plus Qualified
Cash in an amount equal to or greater than 10% of the Maximum
Revolver Amount immediately after giving effect to the consummation
of the proposed Acquisition,
(f) [reserved],
(g) Borrowers
have provided Agent with written notice of the proposed Acquisition
at least 15 Business Days prior to the anticipated closing date of
the proposed Acquisition and, not later than 5 Business Days prior
to the anticipated closing date of the proposed Acquisition, copies
of the acquisition agreement and other material documents relative
to the proposed Acquisition, which agreement and documents must be
reasonably acceptable to Agent,
(h) the assets
being acquired (other than a de
minimis amount of assets in relation to Borrowers’ and
their Subsidiaries’ total assets), or the Person whose Equity
Interests are being acquired, are useful in or engaged in, as
applicable, the business of Borrowers and their Subsidiaries or a
business reasonably related thereto,
(i) the assets
being acquired (other than a de
minimis amount of assets in relation to the assets being
acquired) are located within the United States or Canada or the
Person whose Equity Interests are being acquired is organized in a
jurisdiction located within the United States or
Canada,
(j) the
subject assets or Equity Interests, as applicable, are being
acquired directly by a Borrower or one of its Subsidiaries that is
a Loan Party, and, in connection therewith, the applicable Loan
Party shall have complied with Section 5.11 or
5.12 of the
Agreement, as applicable, of the Agreement and, in the case of an
acquisition of Equity Interests, the applicable Loan Party shall
have demonstrated to Agent that the new Loan Parties have received
consideration sufficient to make the joinder documents binding and
enforceable against such new Loan Parties, and
(k) the
Purchase Price in respect of all Permitted Acquisitions effected
after the Amendment No. 6 Effective Date shall not exceed
$80,000,000 in the aggregate during the term of the
Agreement.
“Permitted
Discretion” means a determination made in the exercise of
reasonable (from the perspective of a secured asset-based lender)
business judgment.
“Permitted Dispositions”
means:
(a) sales,
abandonment, or other dispositions of Equipment that is
substantially worn, damaged, or obsolete or no longer used or
useful in the ordinary course of business and leases or subleases
of Real Property not useful in the conduct of the business of
Borrowers and their Subsidiaries,
(b) sales of
Inventory to buyers in the ordinary course of
business,
(c) the use or
transfer of money or Cash Equivalents in a manner that is not
prohibited by the terms of the Agreement or the other Loan
Documents,
(d) the
licensing, on a non-exclusive basis, of patents, trademarks,
copyrights, and other intellectual property rights in the ordinary
course of business,
(e) the
granting of Permitted Liens,
(f) the sale
or discount, in each case without recourse, of accounts receivable
arising in the ordinary course of business, but only in connection
with the compromise or collection thereof,
(g) any
involuntary loss, damage or destruction of property,
(h) any
involuntary condemnation, seizure or taking, by exercise of the
power of eminent domain or otherwise, or confiscation or
requisition of use of property,
(i) the
leasing or subleasing of assets of any Borrower or its Subsidiaries
in the ordinary course of business,
(j) the sale
or issuance of Equity Interests (other than Disqualified Equity
Interests) of Pac-Van,
(k) (i) the
lapse of registered patents, trademarks, copyrights and other
intellectual property of any Borrower or any of its Subsidiaries to
the extent not economically desirable in the conduct of its
business or (ii) the abandonment of patents, trademarks,
copyrights, or other intellectual property rights in the ordinary
course of business so long as (in each case under clauses (i) and
(ii)),
(A) with respect to copyrights, such copyrights are not
material revenue generating copyrights, and (B) such lapse is
not materially adverse to the interests of the Lender
Group,
(l) the making
of Restricted Payments (including Affiliate Distributions) that are
expressly permitted to be made pursuant to the
Agreement,
(m) the making
of Permitted Investments,
(n) so long as
no Event of Default has occurred and is continuing or would
immediately result therefrom, transfers of assets (i) from any
Borrower or any of its Subsidiaries (other than any Borrower) to a
Loan Party, and (ii) from any Subsidiary of any Borrower that
is not a Loan Party to any other Subsidiary of any
Borrower,
(o) dispositions
of assets acquired by Borrowers and their Subsidiaries pursuant to
a Permitted Acquisition consummated within 12 months of the date of
the proposed disposition so long as (i) the consideration
received for the assets to be so disposed is at least equal to the
fair market value of such assets, (ii) the assets to be so
disposed are not necessary or economically desirable in connection
with the business of Borrowers and their Subsidiaries, and
(iii) the assets to be so disposed are readily identifiable as
assets acquired pursuant to the subject Permitted
Acquisition,
(p) sales or
dispositions of assets (other than Accounts, Inventory, Equity
Interests of Subsidiaries of any Borrower) not otherwise permitted
in clauses (a) through
(o) above so long
as made at fair market value and the aggregate fair market value of
all assets disposed of in fiscal year (including the proposed
disposition) would not exceed $1,000,000, and
(q) sales,
abandonment, or other dispositions of Equipment and Inventory in
connection with the closing of a branch office of a
Borrower.
“Permitted Holder” means
each of the following: Xxxxxx X. Xxxxxxx; Xxxxx X. Xxxxxx; Xxxxx X.
Xxxxxxxx; Xxxxxx Xxxxxxx; Xxxxx X. Xxxxxxx; Xxxxx Xxxxxx; Xxxxxxx
X. Xxxxxxxxx; Xxxxxxxxxxx X. Xxxxxx; Xxxxxxx X. Xxxxxxxx; Xxxxxx
Xxxxx; Xxxxxxxx X. Xxxxxxxxx; Olowalu Holdings, LLC; Xxxx
Xxxxxx; Xxxxxx Advisors, LLC; Xxxxxx Securities LLC;
Xxxxxx X. Xxxxxx, Xx.; Xxx Xxx X. Xxxxxx; JCS Ventures
II, LLC; and Ebb Tide Investments, LLC.
“Permitted Indebtedness”
means:
(a) Indebtedness
evidenced by the Agreement or the other Loan
Documents,
(b) Indebtedness
set forth on Schedule 4.14 to the
Agreement and any Refinancing Indebtedness in respect of such
Indebtedness,
(c) Permitted
Purchase Money Indebtedness and any Refinancing Indebtedness in
respect of such Indebtedness,
(d) endorsement
of instruments or other payment items for deposit,
(e) Indebtedness
consisting of (i) unsecured guarantees incurred in the
ordinary course of business with respect to surety and appeal
bonds, performance bonds, bid bonds, appeal bonds, completion
guarantee and similar obligations; (ii) unsecured guarantees
arising with respect to customary indemnification obligations to
purchasers in connection with Permitted Dispositions; and
(iii) unsecured guarantees with respect to Indebtedness of any
Borrower or one of its Subsidiaries, to the extent that the Person
that is obligated under such guaranty could have incurred such
underlying Indebtedness,
(f) unsecured
Indebtedness of any Borrower or any of its Subsidiaries that is
incurred on the date of the consummation of a Permitted Acquisition
solely for the purpose of consummating such Permitted Acquisition
so long as (i) no Event of Default has occurred and is
continuing or would result therefrom, (ii) such unsecured
Indebtedness is not incurred for working capital purposes,
(iii) such unsecured Indebtedness does not mature prior to the
date that is 12 months after the Maturity Date, (iv) such
unsecured Indebtedness does not amortize until 12 months after
the Maturity Date, (v) such unsecured Indebtedness does not
provide for the payment of interest thereon in cash or Cash
Equivalents prior to the date that is 12 months after the Maturity
Date, and (vi) such Indebtedness is subordinated in right of
payment to the Obligations on terms and conditions reasonably
satisfactory to Agent,
(g) Acquired
Indebtedness in an amount not to exceed $3,000,000 outstanding at any one
time,
(h) Indebtedness
incurred in the ordinary course of business under performance,
surety, statutory, or appeal bonds,
(i) Indebtedness
owed to any Person providing property, casualty, liability, or
other insurance to any Borrower or any of its Subsidiaries, so long
as the amount of such Indebtedness is not in excess of the amount
of the unpaid cost of, and shall be incurred only to defer the cost
of, such insurance for the year in which such Indebtedness is
incurred and such Indebtedness is outstanding only during such
year,
(j) the
incurrence by any Borrower or its Subsidiaries of Indebtedness
under Hedge Agreements that are incurred for the bona fide purpose
of hedging the interest rate, commodity, or foreign currency risks
associated with Borrowers’ and their Subsidiaries’
operations and not for speculative purposes,
(k) Indebtedness
incurred in the ordinary course of business in respect of credit
cards, credit card processing services, debit cards, stored value
cards, commercial cards (including so-called “purchase
cards”, “procurement cards” or
“p-cards”), or Cash Management Services,
(l) unsecured
Indebtedness of any Borrower owing to former employees, officers,
or directors (or any spouses, ex-spouses, or estates of any of the
foregoing) incurred in connection with the repurchase or redemption
by such Borrower of the Equity Interests of Pac-Van that has been
issued to such Persons, so long as (i) no Default or Event of
Default has occurred and is continuing or would result from the
incurrence of such Indebtedness, (ii) the aggregate amount of
all such Indebtedness outstanding at any one time does not exceed
$250,000, and (iii) such
Indebtedness is subordinated to the Obligations on terms and
conditions reasonably acceptable to Agent,
(m) unsecured
Indebtedness owing to sellers of assets or Equity Interests to a
Loan Party that is incurred by the applicable Loan Party in
connection with the consummation of one or more Permitted
Acquisitions so long as (i) the aggregate principal amount for
all such unsecured Indebtedness does not exceed $5,000,000 at any
one time outstanding, (ii) is subordinated to the Obligations
on terms and conditions reasonably acceptable to Agent, and
(iii) is otherwise on terms and conditions (including all
economic terms and the absence of covenants) reasonably acceptable
to Agent,
(n) contingent
liabilities in respect of any indemnification obligation,
adjustment of purchase price, non-compete, or similar obligation of
any Loan Party incurred in connection with the consummation of one
or more Permitted Acquisitions,
(o) Indebtedness
composing Permitted Investments,
(p) unsecured
Indebtedness incurred in respect of netting services, overdraft
protection, and other like services, in each case, incurred in the
ordinary course of business,
(q) Permitted
Real Property Financing Indebtedness and any Refinancing
Indebtedness in respect of such Indebtedness,
(r) unsecured
Indebtedness of any Borrower or its Subsidiaries in respect of
Earn-Outs owing to sellers of assets or Equity Interests to such
Borrower or its Subsidiaries that is incurred in connection with
the consummation of one or more Permitted Acquisitions so long as
such unsecured Indebtedness is on terms and conditions reasonably
acceptable to Agent,
(s) Indebtedness
in an aggregate outstanding principal amount not to exceed $500,000
at any time outstanding for all Subsidiaries of each Borrower that
are CFCs; provided,
that such Indebtedness is not directly or indirectly recourse to
any of the Loan Parties or of their respective assets,
(t) accrual of
interest, accretion or amortization of original issue discount, or
the payment of interest in kind, in each case, on Indebtedness that
otherwise constitutes Permitted Indebtedness,
(u) Subordinated
Indebtedness, the aggregate outstanding amount of which does not
exceed $10,000,000, and
(v) any other
unsecured Indebtedness incurred by any Borrower or any of its
Subsidiaries in an aggregate outstanding amount not to exceed
$4,000,000 at any one time.
“Permitted Intercompany
Advances” means loans made by (a) a Loan Party to
another Loan Party, (b) a Subsidiary of a Borrower that is not a
Loan Party to another Subsidiary of a Borrower that is not a Loan
Party, (c) a Subsidiary of a Borrower that is not a Loan Party to a
Loan Party, so long as the parties thereto are party to the
Intercompany Subordination Agreement, and (d) GFN to a Loan Party,
so long as the parties thereto are party to the Intercompany
Subordination Agreement.
“Permitted Investments”
means:
(a) Investments
in cash and Cash Equivalents,
(b) Investments
in negotiable instruments deposited or to be deposited for
collection in the ordinary course of business,
(c) advances
made in connection with purchases of goods or services in the
ordinary course of business,
(d) Investments
received in settlement of amounts due to any Loan Party or any of
its Subsidiaries effected in the ordinary course of business or
owing to any Loan Party or any of its Subsidiaries as a result of
Insolvency Proceedings involving an account debtor or upon the
foreclosure or enforcement of any Lien in favor of a Loan Party or
its Subsidiaries,
(e) Investments
owned by any Loan Party or any of its Subsidiaries on the Closing
Date and set forth on Schedule P-1 to the
Agreement,
(f) guarantees
permitted under the definition of Permitted
Indebtedness,
(g) Permitted
Intercompany Advances,
(h) Equity
Interests or other securities acquired in connection with the
satisfaction or enforcement of Indebtedness or claims due or owing
to a Loan Party or its Subsidiaries (in bankruptcy of customers or
suppliers or otherwise outside the ordinary course of business) or
as security for any such Indebtedness or claims,
(i) deposits
of cash made in the ordinary course of business to secure
performance of operating leases,
(j) (i) non-cash
loans and advances to employees, officers, and directors of a
Borrower or any of its Subsidiaries for the purpose of purchasing
Equity Interests in Pac-Van so long as the proceeds of such loans
are used in their entirety to purchase such Equity Interests in
Pac-Van, and (ii) loans and advances to employees and officers
of a Borrower or any of its Subsidiaries in the ordinary course of
business for any other business purpose and in an aggregate amount
not to exceed $250,000 at any one time,
(k) Permitted
Acquisitions,
(l) Investments
in the form of capital contributions and the acquisition of Equity
Interests made by any Loan Party in any other Loan Party (other
than capital contributions to or the acquisition of Equity
Interests of any Borrower),
(m) Investments
resulting from entering into (i) Bank Product Agreements, or
(ii) agreements relative to Indebtedness that is permitted
under clause (j) of the
definition of Permitted Indebtedness,
(n) equity
Investments by any Loan Party in any Subsidiary of such Loan Party
which is required by law to maintain a minimum net capital
requirement or as may be otherwise required by applicable
law,
(o) Investments
held by a Person acquired in a Permitted Acquisition to the extent
that such Investments were not made in contemplation of or in
connection with such Permitted Acquisition and were in existence on
the date of such Permitted Acquisition,
(p) Investments
in the form of Capital Leases made by a Borrower or any of its
Subsidiaries as lessor for the purpose of financing the purchase by
the lessee thereunder of the Equipment subject to that Capital
Lease, so long as the aggregate amount of all such Investments does
not exceed $10,000,000 at any time, and
(q) so long as
no Event of Default has occurred and is continuing or would result
therefrom, any other Investments in an aggregate amount not to
exceed $500,000 during the term of the Agreement.
“Permitted Liens”
means
(a) Liens
granted to, or for the benefit of, Agent to secure the Obligations
(including, without limitation, Liens in favor of the Trust for the
benefit of Agent and the Lenders),
(b) Liens for
unpaid taxes, assessments, or other governmental charges or levies
that either (i) are not yet delinquent, or (ii) do not
have priority over Agent’s and Trust’s Liens and the
underlying taxes, assessments, or charges or levies are the subject
of Permitted Protests,
(c) judgment
Liens arising solely as a result of the existence of judgments,
orders, or awards that do not constitute an Event of Default under
Section 8.3 of
the Agreement,
(d) Liens set
forth on Schedule P-2 to the
Agreement; provided, that to qualify as a
Permitted Lien, any such Lien described on Schedule P-2 to the
Agreement shall only secure the Indebtedness that it secures on the
Amendment No. 6 Effective Date and any Refinancing
Indebtedness in respect thereof,
(e) the
interests of lessors under operating leases and non-exclusive
licensors under license agreements,
(f) (i) purchase
money Liens or the interests of lessors under Capital Leases to the
extent that such Liens or interests secure Permitted Purchase Money
Indebtedness and so long as (A) such Lien attaches only to the
asset purchased or acquired and the proceeds thereof, and
(B) such Lien only secures the Indebtedness that was incurred
to acquire the asset purchased or acquired or any Refinancing
Indebtedness in respect thereof; and (ii) Liens that secure
Permitted Real Property Financing Indebtedness, so long as
(A) such Lien attaches only to the Real Property purchased or
acquired and the proceeds thereof, and (B) such Lien only
secures the Indebtedness that was incurred to acquire the Real
Property purchased or acquired or any Refinancing Indebtedness in
respect thereof,
(g) Liens
arising by operation of law in favor of warehousemen, landlords,
carriers, mechanics, materialmen, laborers, or suppliers, incurred
in the ordinary course of business and not in connection with the
borrowing of money, and which Liens either (i) are for sums
not yet delinquent, or (ii) are the subject of Permitted
Protests,
(h) Liens on
amounts deposited to secure any Borrower’s and its
Subsidiaries obligations in connection with worker’s
compensation or other unemployment insurance,
(i) Liens on
amounts deposited to secure any Borrower’s and its
Subsidiaries obligations in connection with the making or entering
into of bids, tenders, or leases in the ordinary course of business
and not in connection with the borrowing of money,
(j) Liens on
amounts deposited to secure any Borrower’s and its
Subsidiaries reimbursement obligations with respect to surety or
appeal bonds obtained in the ordinary course of
business,
(k) with
respect to any Real Property, easements, rights of way, and zoning
restrictions that do not materially interfere with or impair the
use or operation thereof,
(l) non-exclusive
licenses of patents, trademarks, copyrights, and other intellectual
property rights in the ordinary course of business,
(m) Liens that
are replacements of Permitted Liens to the extent that the original
Indebtedness is the subject of permitted Refinancing Indebtedness
and so long as the replacement Liens only encumber those assets
that secured the original Indebtedness,
(n) rights of
setoff or bankers’ liens upon deposits of funds in favor of
banks or other depository institutions, solely to the extent
incurred in connection with the maintenance of such Deposit
Accounts in the ordinary course of business,
(o) Liens
granted in the ordinary course of business on the unearned portion
of insurance premiums securing the financing of insurance premiums
to the extent the financing is permitted under the definition of
Permitted Indebtedness,
(p) Liens in
favor of customs and revenue authorities arising as a matter of law
to secure payment of customs duties in connection with the
importation of goods,
(q) Liens
solely on any xxxx xxxxxxx money deposits made by a Borrower or any
of its Subsidiaries in connection with any letter of intent or
purchase agreement with respect to a Permitted
Acquisition,
(r) Liens
assumed by any Borrower or its Subsidiaries in connection with a
Permitted Acquisition that secure Acquired Indebtedness,
and
(s) other
Liens which do not secure Indebtedness for borrowed money or
letters of credit and as to which the aggregate amount of the
obligations secured thereby does not exceed $500,000.
“Permitted Protest” means
the right of any Borrower or any of its Subsidiaries to protest any
Lien (other than any Lien that secures the Obligations), taxes
(other than payroll taxes or taxes that are the subject of a United
States federal tax Lien or a Canadian tax Lien), or rental payment,
provided that
(a) a reserve with respect to such obligation is established
on such Borrower’s or its Subsidiaries’ books and
records in such amount as is required under GAAP, (b) any such
protest is instituted promptly and prosecuted diligently by such
Borrower or its Subsidiary, as applicable, in good faith, and
(c) Agent is satisfied that, while any such protest is
pending, there will be no impairment of the enforceability,
validity, or priority of any of Agent’s Liens.
“Permitted Purchase Money
Indebtedness” means, as of any date of determination,
Indebtedness (other than the Obligations, but including Capitalized
Lease Obligations), incurred after the Closing Date and at the time
of, or within 20 days after, the acquisition of any fixed assets
for the purpose of financing all or any part of the acquisition
cost thereof, in an aggregate principal amount outstanding at any
one time not in excess of $1,000,000.
“Permitted Real Property Financing
Indebtedness” means, as of any date of determination,
Indebtedness (other than the Obligations) incurred after the
Amendment No. 3 Effective Date and at the time of the
acquisition of any Real Property for the purpose of financing all
or any part of the acquisition cost thereof, in an aggregate
principal amount outstanding at any one time not in excess of
$5,000,000.
“Person” means natural
persons, corporations, limited liability companies, unlimited
liability companies, limited partnerships, general partnerships,
limited liability partnerships, joint ventures, trusts, land
trusts, business trusts, or other organizations, irrespective of
whether they are legal entities, and governments and agencies and
political subdivisions thereof.
“Platform” has the meaning
specified therefor in Section 17.9(c) of
the Agreement.
“Post-Increase Revolver
Lenders” has the meaning specified therefor in
Section 2.14
of the Agreement.
“PPSA” means the Personal
Property Security Act (Alberta) and the regulations thereunder;
provided, however,
that if validity, perfection, and effect of perfection and
non-perfection of Agent’s Lien on any Collateral of any Loan
Party are governed by the personal property security laws of any
Canadian jurisdiction other than Alberta, “PPSA” shall
mean those personal property security laws (including the Civil
Code of Quebec) in such other jurisdiction for the purposes of the
provisions hereof relating to such validity, perfection, and effect
of perfection and non-perfection and for the definitions related to
such provisions, as from time to time in effect.
“Pre-Increase Revolver
Lenders” has the meaning specified therefor in
Section 2.14
of the Agreement.
“Projections” means
Borrowers’ forecasted (a) balance sheets,
(b) profit and loss statements, and (c) cash flow
statements, all prepared on a basis consistent with Loan
Parties’ historical financial statements, together with
appropriate supporting details and a statement of underlying
assumptions.
“Pro Rata Share” means, as
of any date of determination:
(a) with
respect to a Lender’s obligation to make all or a portion of
the Revolving Loans, with respect to such Lender’s right to
receive payments of interest, fees, and principal with respect to
the Revolving Loans, and with respect to all other computations and
other matters related to the Revolver Commitments or the Revolving
Loans, the percentage obtained by dividing (i) the Revolving
Loan Exposure of such Lender by (ii) the aggregate Revolving
Loan Exposure of all Lenders,
(b) with
respect to a Lender’s obligation to participate in the
Letters of Credit, with respect to such Lender’s obligation
to reimburse Issuing Bank, and with respect to such Lender’s
right to receive payments of Letter of Credit Fees, and with
respect to all other computations and other matters related to the
Letters of Credit, the percentage obtained by dividing (i) the
Revolving Loan Exposure of such Lender by (ii) the aggregate
Revolving Loan Exposure of all Lenders; provided, that if all of the
Revolving Loans have been repaid in full and all Revolver
Commitments have been terminated, but Letters of Credit remain
outstanding, Pro Rata Share under this clause shall be determined
as if the Revolver Commitments had not been terminated and based
upon the Revolver Commitments as they existed immediately prior to
their termination,
(c) with
respect to a Lender’s obligation to make all or a portion of
the Last-Out Term Loan, with respect to such Lender’s right
to receive payments of interest, fees, and principal with respect
to the Last-Out Term Loan, and with respect to all other
computations and other matters related to the Last-Out Term Loan
Commitments or the Last-Out Term Loan, the percentage obtained by
dividing (i) the Last-Out Term Loan Exposure of such Lender by
(ii) the aggregate Last-Out Term Loan Exposure of all Lenders,
and
(d) with
respect to all other matters and for all other matters as to a
particular Lender (including the indemnification obligations
arising under Section 15.7 of the
Agreement), the percentage obtained by dividing (i) the sum of
(A) the Revolving Loan Exposure of such Lender, plus (B) the Last-Out Term Loan
Exposure of such Lender by (ii) the sum of (A) the
aggregate Revolving Loan Exposure of all Lenders, plus (B) the aggregate Last-Out
Term Loan Exposure of all Lenders, in any such case as the
applicable percentage may be adjusted by assignments permitted
pursuant to Section 13.1; provided, that if all of the
Loans have been repaid in full, all Letters of Credit have been
made the subject of Letter of Credit Collateralization, and all
Commitments have been terminated, Pro Rata Share under this clause
shall be determined as if the Revolving Loan Exposures had not been
repaid, collateralized, or terminated and shall be based upon the
Revolving Loan Exposures as they existed immediately prior to their
repayment, collateralization, or termination.
“Protective Advances” has
the meaning specified therefor in Section 2.3(d)(i) of
the Agreement.
“Public Lender” has the
meaning specified therefor in Section 17.9(c) of
the Agreement.
“Purchase Price” means,
with respect to any Acquisition, an amount equal to the aggregate
consideration, whether cash, property or securities (including the
fair market value of any Equity Interests of Pac-Van issued in
connection with such Acquisition and including the maximum amount
of Earn-Outs), paid or delivered by a Borrower or one of its
Subsidiaries in connection with such Acquisition (whether paid at
the closing thereof or payable thereafter and whether fixed or
contingent), but excluding therefrom (a) any cash of the
seller and its Affiliates used to fund any portion of such
consideration and (b) any cash or Cash Equivalents acquired in
connection with such Acquisition.
“PV Acquisition”
means PV Acquisition Corp., an Alberta corporation and a
Subsidiary of Pac-Van.
“Qualified Canadian
Jurisdiction” means any province or territory of
Canada, in each case so long as (i) all recordings, filings,
and other actions (including, without limitation, the execution and
delivery of guarantees and security documentation) necessary or, in
the reasonable discretion of Agent, desirable to perfect and
protect the security interests in and Lien on all of the assets and
property of each applicable Loan Party organized under the laws of
Canada or any province or territory thereof in such jurisdiction
have been made and taken, and (ii) Agent has received, if
requested by Agent, opinions of counsel in form and substance
satisfactory to Agent as to the matters described in clause (i).
“Qualified Cash” means, as
of any date of determination, the amount of unrestricted cash and
Cash Equivalents of Borrowers and their Subsidiaries that is in
Deposit Accounts or in Securities Accounts, or any combination
thereof, and which such Deposit Account or Securities Account is
the subject of a Control Agreement and is maintained by a branch
office of the bank or securities intermediary located within the
United States.
“Qualified Equity
Interest” means and refers to any Equity Interests
issued by Pac-Van (and not by one or more of its Subsidiaries) that
is not a Disqualified Equity Interest.
“Qualified Subsidiary
Guarantor” means PV Acquisition and each other
wholly owned Subsidiary of Pac-Van that (a) is approved in
writing by Agent in its sole discretion, (b) is organized under the
laws of (i) the United States or a state thereof or
(ii) Canada or a Qualified Canadian Jurisdiction, and
(c) is a Guarantor.
“Real Property” means any
estates or interests in real property now owned or hereafter
acquired by any Borrower or one of its Subsidiaries and the
improvements thereto.
“Real Property Collateral”
means (a) the Real Property identified on Schedule R-1 to the
Agreement and (b) any Real Property acquired by any Borrower
or one of its Subsidiaries after the Amendment No. 2 Effective
Date (i) that is the subject of (or requested by Borrowers to
be the subject of) a Real Property Sublimit Loan, or
(ii) except for any such Real Property that is the subject of
any Permitted Real Property Financing Indebtedness or as otherwise
agreed to by Agent in its sole discretion, with an appraised fair
market value in excess of $500,000.
“Real Property Reserves”
means, as of any date of determination, those reserves that Agent
deems necessary or appropriate, in its Permitted Discretion or in
its Permitted Discretion upon the request of any Lender and, in any
such case, subject to Section 2.1(c) and/or
Section 2.2(d), to
establish and maintain with respect to the Eligible Real Property
or the Maximum Real Property Sublimit Amount (including reserves
with respect to (a) conditions relating to compliance with
applicable Environmental Laws and (b) other conditions
affecting appraised fair market value).
“Real Property Sublimit Formula
Amount” means, as of any date of determination, with
respect to any Eligible Real Property, an amount equal to the
lesser of (a) the product of 85%, multiplied by the value (calculated at
the lower of cost or market on a basis consistent with Loan
Parties’ historical accounting practices) of such Eligible
Real Property, and (b) the product of 70%, multiplied by the appraised fair market
value (as determined by reference to the most recent applicable
appraisal received by Agent from an appraisal company selected by
Agent) of such Eligible Real Property.
“Real Property Sublimit
Loan” means each portion of the Revolving Loans made
on account of Availability under clause (f) of the
definition of Borrowing Base.
“Receivable Reserves”
means, as of any date of determination, those reserves that Agent
deems necessary or appropriate, in its Permitted Discretion and
subject to Section 2.1(c), to
establish and maintain (including reserves for rebates, discounts,
warranty claims, and returns) with respect to the Eligible
Accounts, the Eligible Extended Lone Star Accounts, the
Eligible Backend-Charge Accounts, the Eligible Southern Frac
Accounts, or the Maximum Revolver Amount.
“Record” means information
that is inscribed on a tangible medium or that is stored in an
electronic or other medium and is retrievable in perceivable
form.
“Reference Period” has the
meaning set forth in the definition of EBITDA.
“Refinancing Indebtedness”
means refinancings, renewals, or extensions of Indebtedness so long
as:
(a) such
refinancings, renewals, or extensions do not result in an increase
in the principal amount of the Indebtedness so refinanced, renewed,
or extended, other than by the amount of premiums paid thereon and
the fees and expenses incurred in connection therewith and by the
amount of unfunded commitments with respect thereto,
(b) such
refinancings, renewals, or extensions do not result in a shortening
of the average weighted maturity (measured as of the refinancing,
renewal, or extension) of the Indebtedness so refinanced, renewed,
or extended, nor are they on terms or conditions that, taken as a
whole, are or could reasonably be expected to be materially adverse
to the interests of the Lenders,
(c) if the
Indebtedness that is refinanced, renewed, or extended was
subordinated in right of payment to the Obligations, then the terms
and conditions of the refinancing, renewal, or extension must
include subordination terms and conditions that are at least as
favorable to the Lender Group as those that were applicable to the
refinanced, renewed, or extended Indebtedness, and
(d) the
Indebtedness that is refinanced, renewed, or extended is not
recourse to any Person that is liable on account of the Obligations
other than those Persons which were obligated with respect to the
Indebtedness that was refinanced, renewed, or
extended.
“Register” has the meaning
set forth in Section 13.1(h) of
the Agreement.
“Registered Loan” has the
meaning set forth in Section 13.1(h) of
the Agreement.
“Related Fund” means any
Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course and that is
administered, advised or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers, advises or manages a Lender.
“Remedial Action” means
all actions taken to (a) clean up, remove, remediate, contain,
treat, monitor, assess, evaluate, or in any way address Hazardous
Materials in the indoor or outdoor environment, (b) prevent or
minimize a release or threatened release of Hazardous Materials so
they do not migrate or endanger or threaten to endanger public
health or welfare or the indoor or outdoor environment,
(c) restore or reclaim natural resources or the environment,
(d) perform any pre-remedial studies, investigations, or
post-remedial operation and maintenance activities, or
(e) conduct any other actions with respect to Hazardous
Materials required by Environmental Laws.
“Rental Fleet Inventory”
means Inventory of a Borrower and its Subsidiaries that consists of
new and used modular buildings, mobile and ground-level offices,
storage containers, trailers, frac tanks, and portable liquid
storage tanks held by a Borrower or any of its Subsidiaries for
intended lease or rental by such Borrower or any such Subsidiary to
third parties in the ordinary course of Loan Parties’
business.
“Rental Fleet Inventory
Lease” means a written agreement between a Borrower or
any of its Subsidiaries and an Account Debtor, entered into in the
ordinary course of Loan Parties’ business, for the lease or
rental of Rental Fleet Inventory by such Loan Party to such Account
Debtor, including all schedules and supplements thereto. Each such
written agreement will be deemed a separate Rental Fleet Inventory
Lease, but any such written agreement that is a master lease
agreement also will be deemed to include any such written agreement
that is a lease agreement or a rental agreement entered into under
or pursuant to that master lease agreement.
“Rental Fleet Utilization
Ratio” means, with respect to any period, the ratio of
(a) the aggregate gross book value of all Rental Fleet Inventory of
the Borrowers and their Subsidiaries that is then subject to a
valid, current Rental Fleet Inventory Lease between a Borrower or
any of its Subsidiaries and the an Account Debtor that is not an
Affiliate of any Borrower or of any Subsidiary of any Borrower or a
Person controlled by any such Affiliate, to (b) the aggregate gross book
value of Rental Fleet Inventory of Borrowers and their
Subsidiaries.
“Replacement Lender” has
the meaning specified therefor in Section 2.13(b) of
the Agreement.
“Report” has the meaning
specified therefor in Section 15.16 of the
Agreement.
“Required Availability”
means that the sum of (a) Excess Availability, plus (b) Qualified Cash exceeds
$20,000,000.
“Required Lenders” means,
at any time, Lenders having or holding more than 50% of the sum of
(a) the aggregate Revolving Loan Exposure of all Lenders,
plus (b) the
aggregate Last-Out Term Loan Exposure of all Lenders; provided, that (i) the
Revolving Loan Exposure and Last-Out Term Loan Exposure of any
Defaulting Lender shall be disregarded in the determination of the
Required Lenders, (ii) subject to the following
clause (iii), at any time there are 2 or more Lenders who are
not Affiliates of one another, “Required Lenders” must
include at least 2 Lenders who are not Affiliates of one another,
and (iii) at any time there are 3 or more Lenders who are not
Affiliates of one another, “Required Lenders” must
include at least 3 Lenders who are not Affiliates of one
another.
“Required Revolving
Lenders” means, at any time, Lenders having or holding
more than 50% of the aggregate Revolving Loan Exposure of all
Lenders; provided,
that (i) the Revolving Loan Exposure of any Defaulting Lender
shall be disregarded in the determination of the Required Revolving
Lenders, and (ii) at any time there are 2 or more Revolving
Lenders who are not Affiliates of one another, “Required
Revolving Lenders” must include at least 2 Revolving
Lenders who are not Affiliates of one another.
“Required Last-Out Term Loan
Lenders” means, at any time, Lenders having or holding
more than 50% of the aggregate Last-Out Term Loan Exposure of all
Lenders; provided,
that (i) the Last-Out Term Loan Exposure of any Defaulting
Lender shall be disregarded in the determination of the Required
Last-Out Term Loan Lenders, and (ii) at any time there are 2
or more Last-Out Term Loan Lenders who are not Affiliates of one
another, “Required Last-Out Term Loan Lenders” must
include at least 2 Last-Out Term Loan Lenders who are not
Affiliates of one another.
“Reserves” means, as of
any date of determination, those reserves (other than Receivable
Reserves, Bank Product Reserves, Inventory Reserves, Real Property
Reserves, and the Last-Out Term Loan Reserve) that Agent deems
necessary or appropriate, in its Permitted Discretion and subject
to Section 2.1(c) and
2.2(d), to
establish and maintain with respect to the Borrowing Base, the
Maximum Revolver Amount, or the Last-Out Term Loan Collateral Base
(including reserves with respect to (a) sums that any Borrower
or its Subsidiaries are required to pay under any Section of
the Agreement or any other Loan Document (such as taxes,
assessments, insurance premiums, or, in the case of leased assets,
rents or other amounts payable under such leases) and has failed to
pay, (b) amounts owing by any Borrower or its Subsidiaries to
any Person to the extent secured by a Lien on, or trust over, any
of the Collateral (other than a Permitted Lien), which Lien or
trust, in the Permitted Discretion of Agent likely would have a
priority superior to the Agent’s Liens (such as Liens or
trusts in favor of landlords, warehousemen, carriers, mechanics,
materialmen, laborers, or suppliers, or Liens or trusts for ad
valorem, excise, sales, or other taxes where given priority under
applicable law) in and to such item of the Collateral,
(c) Permitted Intercompany Advances made by GFN to a Loan
Party, (d) amounts owing by Lone Star under the
Lone Star Seller Note to the extent that the Indebtedness
evidenced by the Lone Star Seller Note is not subordinated to
the Obligations on terms and conditions reasonably acceptable to
Agent, and (e) without duplication, Canadian Priority
Payables).
“Restricted Payment” means
to (a) make any Affiliate Distribution; (b) declare or
pay any other dividend or make any other payment or other
distribution, directly or indirectly, on account of Equity
Interests issued by Pac-Van (including any payment in connection
with any merger, amalgamation, or consolidation involving Pac-Van)
or to the direct or indirect holders of Equity Interests issued by
Pac-Van in their capacity as such (other than dividends or
distributions payable in Qualified Equity Interests issued by
Pac-Van; (c) purchase, redeem, make any sinking fund or
similar payment, or otherwise acquire or retire for value
(including in connection with any merger, amalgamation, or
consolidation involving Pac-Van) any Equity Interests issued by
Pac-Van; (d) make any payment to retire, or to obtain the
surrender of, any outstanding warrants, options, or other rights to
acquire Equity Interests of Pac-Van now or hereafter outstanding;
or (e) make, or cause or suffer to permit any Borrower or any
of its Subsidiaries to make, 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.
“Revolver Commitment”
means, with respect to each Revolving Lender, its Revolver
Commitment, and, with respect to all Revolving Lenders, their
Revolver Commitments, in each case as such Dollar amounts are set
forth beside such Revolving Lender’s name under the
applicable heading on Schedule C-1 to the
Agreement or in the Assignment and Acceptance pursuant to which
such Revolving Lender became a Revolving Lender under the
Agreement, as such amounts may be reduced or increased from time to
time pursuant to assignments made in accordance with the provisions
of Section 13.1 of the
Agreement.
“Revolver Usage” means, as
of any date of determination, (a) with respect to all
Borrowers, the sum of (i) the amount of outstanding Revolving
Loans (inclusive of Swing Loans and Protective Advances),
plus (ii) the amount
of the Letter of Credit Usage, and (b) with respect to each
Borrower, the sum of (i) the amount of outstanding Revolving
Loans (inclusive of Swing Loans and Protective Advances) allocable
to such Borrower, plus
(ii) the amount of the Letter of Credit Usage of such
Borrower. Unless the context otherwise requires, “Revolver
Usage” refers to the Revolver Usage with respect to all
Borrowers.
“Revolving Lender” means a
Lender that has a Revolver Commitment or that has an outstanding
Revolving Loan.
“Revolving Loan Exposure”
means, with respect to any Revolving Lender, as of any date of
determination (a) prior to the termination of the Revolver
Commitments, the amount of such Lender’s Revolver Commitment,
and (b) after the termination of the Revolver Commitments, the
aggregate outstanding principal amount of the Revolving Loans of
such Lender.
“Revolving Loans” has the
meaning specified therefor in Section 2.1(a) of the
Agreement.
“Rolling Stock Equipment”
means Equipment that consists of trucks, trailers, tractors,
service vehicles, vans, pickup trucks, forklifts, wheel loaders,
and other mobile Equipment and other vehicles used by Borrowers and
their Subsidiaries to transport, install, or remove Inventory of
Borrowers and their Subsidiaries in the ordinary course of Loan
Parties’ business.
“Royal Wolf” means Royal
Wolf Holdings Limited, an Australian corporation.
“Royal Wolf Share Loan”
means Indebtedness in an aggregate principal amount of $25,000,000
incurred by GFC and secured by Equity Interests issued to GFC by
Royal Wolf, the proceeds of which Indebtedness were used to finance
a portion of the Lone Star Acquisition.
“Sanctioned Entity” means
any of the following, in each case, that is subject to or the
target of any Sanctions: (a) a country or a government of a
country, (b) an agency of the government of a country,
(c) an organization directly or indirectly controlled by a
country or its government, (d) a Person resident in or
determined to be resident in a country.
“Sanctioned Person” means
any Person named on the list of Specially Designated Nationals
maintained by OFAC or any other Person that is subject to or the
target of any Sanctions.
“Sanctions” means any of
the territory- or list-based sanctions programs administered and
enforced by OFAC, the U.S. Department of State, the United Nations
Security Council, the European Union, Her Majesty’s Treasury,
or other relevant sanctions authority
“S&P” has the meaning
specified therefor in the definition of Cash
Equivalents.
“Scheduled Maturity Date”
means March 24, 2022.
“SEC” means the United
States Securities and Exchange Commission and any successor
thereto.
“Securities Account” means
a securities account (as that term is defined in the
Code).
“Securities Act” means the
Securities Act of 1933, as amended from time to time, and any
successor statute.
“Series C Preferred Dividend
Percentage” means, the “Stated Rate” as
such term is defined in the Certificate of Designations,
Preferences and Rights of the Series C Cumulative Redeemable
Perpetual Preferred Stock of GFC as in effect on the date of the
initial issuance by GFC of any Series C Preferred Stock of
GFC.
“Series C Preferred Stock of
GFC” means Series C Cumulative Redeemable
Perpetual Preferred Stock issued by GFC, which shall not, in any
event, exceed 540,000 shares of such Equity Interest.
“Settlement” has the
meaning specified therefor in Section 2.3(e)(i) of
the Agreement.
“Settlement Date” has the
meaning specified therefor in Section 2.3(e)(i) of
the Agreement.
“Small-Cap Acquisition”
means any Acquisition (a) for which the Purchase Price does
not exceed $2,000,000 and (b) with respect to which Borrowers
allocate, to the reasonable satisfaction of Agent, not less than
75% of the Purchase Price to Rolling Stock Equipment, Branch-Use
Equipment, Step Inventory Rental Fleet Inventory, and/or Other
Fleet Inventory being purchased or otherwise acquired directly (as
assets being purchased or otherwise acquired) or indirectly (as
assets of any Person whose Equity Interests are being purchased or
otherwise acquired) pursuant to that Acquisition.
“Solvent” means, with
respect to any Person as of any date of determination, that
(a) at fair valuations, the sum of such Person’s debts
(including contingent liabilities) is less than all of such
Person’s assets, (b) such Person is not engaged or about
to engage in a business or transaction for which the remaining
assets of such Person are unreasonably small in relation to the
business or transaction or for which the property remaining with
such Person is an unreasonably small capital, and (c) such
Person has not incurred and does not intend to incur, or reasonably
believe that it will incur, debts beyond its ability to pay such
debts as they become due (whether at maturity or otherwise), and
(d) such Person is “solvent” or not
“insolvent”, as applicable within the meaning given
those terms and similar terms under applicable laws relating to
fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time
shall be computed as the amount that, in light of all of the facts
and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability
(irrespective of whether such contingent liabilities meet the
criteria for accrual under Statement of Financial Accounting
Standard No. 5).
“Southern Frac” means
Southern Frac, LLC, a Texas limited liability company and an
Affiliate of each of Pac-Van and Lone Star. Southern Frac
became a Borrower effective as of the Amendment No. 4
Effective Date.
“Southern Frac Tank” means
a completed but unpainted frac tank or portable liquid storage tank
that constitutes Inventory of Southern Frac held for sale or lease
in the ordinary course of Southern Frac’s
business.
“Standard Letter of Credit
Practice” means, for Issuing Bank, any domestic or
foreign law or letter of credit practices applicable in the city in
which Issuing Bank issued the applicable Letter of Credit or, for
its branch or correspondent, such laws and practices applicable in
the city in which it has advised, confirmed or negotiated such
Letter of Credit, as the case may be, in each case, (a) which
letter of credit practices are of banks that regularly issue
letters of credit in the particular city, and (b) which laws
or letter of credit practices are required or permitted under ISP
or UCP, as chosen in the applicable Letter of Credit.
“Step Inventory” means
Inventory that consists of steps and ramps held for sale or lease
in the ordinary course of Loan Parties’
business.
“Subject Holder” has the
meaning specified therefor in Section 2.4(e)(v) of
the Agreement.
“Subordinated
Indebtedness” means any unsecured Indebtedness of any
Borrower or its Subsidiaries incurred from time to time that is
subordinated in right of payment to the Obligations and
(a) that is only guaranteed by the Guarantors, (b) that
is not subject to scheduled amortization, redemption, sinking fund
or similar payment and does not have a final maturity, in each
case, on or before the date that is six months after the Maturity
Date, (c) that does not include any financial covenants or any
covenant or agreement that is more restrictive or onerous on any
Loan Party in any material respect than any comparable covenant in
the Agreement and is otherwise on terms and conditions reasonably
acceptable to Agent, (d) shall be limited to cross-payment
default and cross-acceleration to designated “senior
debt” (including the Obligations), and (e) the terms and
conditions of the subordination are reasonably acceptable to
Agent.
“Subsidiary” of a Person
means a corporation, partnership, limited liability company, or
other entity in which that Person directly or indirectly owns or
controls the Equity Interests having ordinary voting power to elect
a majority of the Board of Directors of such corporation,
partnership, limited liability company, or other
entity.
“Supermajority Lenders”
means, at any time, Lenders having or holding more than 66-2/3% of
the sum of (a) the aggregate Revolving Loan Exposure of all
Lenders, plus
(b) the aggregate Last-Out Term Loan Exposure of all Lenders;
provided, that
(i) the Revolving Loan Exposure of any Defaulting Lender shall
be disregarded in the determination of the Supermajority Lenders,
(ii) subject to the following clause (iii), at any time
there are 2 or more Lenders who are not Affiliates of one another,
“Supermajority Lenders” must include at least 2 Lenders
who are not Affiliates of one another, and (iii) at any time
there are 3 or more Lenders who are not Affiliates of one another,
“Supermajority Lenders” must include at least 3 Lenders
who are not Affiliates of one another.
“Swing Lender” means Xxxxx
Fargo or any other Lender that, at the request of Borrowers and
with the consent of Agent agrees, in such Lender’s sole
discretion, to become the Swing Lender under Section 2.3(b) of the
Agreement.
“Swing Loan” has the
meaning specified therefor in Section 2.3(b) of the
Agreement.
“Swing Loan Exposure”
means, as of any date of determination with respect to any Lender,
such Lender’s Pro Rata Share of the Swing Loans on such
date.
“Syndication Agent” has
the meaning set forth in the preamble to the
Agreement.
“Taxes” means any taxes,
levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by
any political subdivision or taxing authority thereof or therein,
and all interest, penalties or similar liabilities with respect
thereto.
“Tax Lender” has the
meaning specified therefor in Section 14.2(a) of
the Agreement.
“Termination Event” means
(a) the filing of a notice of intent to terminate in whole or
in part a Canadian Pension Plan or the treatment of a Canadian
Pension Plan amendment as a termination or partial termination
thereof; or (b) the institution of proceedings by any
Governmental Authority to terminate in whole or in part or have a
trustee or third-party administrator appointed to administer a
Canadian Pension Plan.
“Trademark Security
Agreement” has the meaning specified therefor in the
Guaranty and Security Agreement.
“Trust” means Pac-Van
Asset Trust, a Delaware statutory trust formed under the Delaware
Statutory Trust Act, including its successors and
assigns.
“Trust Agent” means Agent
in its capacity as trust agent on behalf of the Trust.
“Trust
Agreement” means a Second Amended and Restated Trust
Agreement of Pac-Van Asset Trust, dated as of the date of the
Agreement, between Pac-Van, Lone Star, the Trustee, and Xxxxx
Fargo, as trust agent and beneficial owner. The Trust Agreement
amends and restates the “Trust Agreement” under and as
defined in the Existing Credit Agreement.
“Trustee” means Xxxxx
Fargo Delaware Trust Company, National Association, not in its
individual capacity but solely as trustee of the Trust under the
Trust Agreement.
“U.S. Guaranty and Security
Agreement” means a guaranty and security agreement,
dated as of September 7, 2012, in form and substance
reasonably satisfactory to Agent, executed and delivered to Agent
by each of the Borrowers organized in the United States and each of
the Guarantors organized in the United States.
“UCP” means, with respect
to any Letter of Credit, the Uniform Customs and Practice for
Documentary Credits 2007 Revision, International Chamber of
Commerce Publication No. 600 and any subsequent revision thereof
adopted by the International Chamber of Commerce on the date such
Letter of Credit is issued.
“Unit” means any unit or
item of Rental Fleet Inventory, Other Fleet Inventory, Branch-Use
Equipment, or Rolling Stock Equipment.
“United States” means the
United States of America.
“Unused Line Fee” has the
meaning specified therefor in Section 2.10(b) of
the Agreement.
“Voidable Transfer” has
the meaning specified therefor in Section 17.8 of the
Agreement.
“Xxxxx Fargo” means Xxxxx
Fargo Bank, National Association, a national banking
association.
“Withdrawal Liability”
means liability with respect to a Multiemployer Plan as a result of
a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
“Write-Down and Conversion
Powers” means, with respect to any EEA Resolution
Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to time under the Bail-In
Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation
Schedule.
Schedule 1.1
SCHEDULE 3.1
Conditions Precedent
The
obligation of each Lender to make its initial extension of credit
provided for in the Agreement is subject to the fulfillment, to the
satisfaction of each Lender (the making of such initial extension
of credit by any Lender being conclusively deemed to be its
satisfaction or waiver of the following), of each of the following
conditions precedent:
(a) the
Closing Date shall occur on or before April 7,
2014;
(b) Agent shall have
received a letter duly executed by each Loan Party authorizing
Agent to file appropriate financing statements in such office or
offices as may be necessary or, in the opinion of Agent, desirable
to perfect the security interests to be created by the Loan
Documents;
(c) Agent shall have
received evidence that appropriate financing statements have been
duly filed in such office or offices as may be necessary or, in the
opinion of Agent, desirable to perfect the Agent’s Liens in
and to the Collateral, and Agent shall have received searches
reflecting the filing of all such financing
statements;
(d) Agent shall have
received each of the following documents, in form and substance
satisfactory to Agent, duly executed and delivered, and each such
document shall be in full force and effect:
(i) the Trust
Agreement,
(ii) an
omnibus amendment, joinder, and reaffirmation agreement with
respect to certain “Loan Documents” under and as
defined in the Existing Credit Agreement, and
(iii) a
Perfection Certificate with respect to Lone Star,
(e) Agent shall have
received a certificate from the Secretary of each Loan Party
(i) attesting to the resolutions of such Loan Party’s
board of directors authorizing its execution, delivery, and
performance of the Loan Documents to which it is a party,
(ii) authorizing specific officers of such Loan Party to
execute the same, and (iii) attesting to the incumbency and
signatures of such specific officers of such Loan
Party;
(f) Agent shall have
received copies of each Loan Party’s Governing Documents, as
amended, modified, or supplemented to the Closing Date, certified
by the Secretary of such Loan Party;
(g) Agent shall have
received a certificate of status with respect to each Loan Party,
dated within 10 days of the Closing Date, such certificate to be
issued by the appropriate officer of the jurisdiction of
organization of such Loan Party, which certificate shall indicate
that such Loan Party is in good standing in such
jurisdiction;
(h) Agent shall have
received certificates of status with respect to each Loan Party,
each dated within 30 days of the Closing Date, such certificates to
be issued by the appropriate officer of the jurisdictions (other
than the jurisdiction of organization of such Loan Party) in which
its failure to be duly qualified or licensed would constitute a
Material Adverse Effect, which certificates shall indicate that
such Loan Party is in good standing in such
jurisdictions;
(i) Agent shall have
received a certificate of insurance, together with the endorsements
thereto, as are required by Section 5.6 of the
Agreement, the form and substance of which shall be satisfactory to
Agent;
(j) Agent shall have
received an opinion of the Loan Parties’ counsel in form and
substance satisfactory to Agent;
(k) Borrowers shall
have the Required Availability after giving effect to the initial
extensions of credit under the Agreement and the payment of all
fees and expenses required to be paid by Borrowers on the Closing
Date under the Agreement or the other Loan Documents;
(l) Agent shall have
completed its business, legal, and collateral due diligence,
including (i) a collateral audit and review of
Borrowers’ and their Subsidiaries’ books and records
and verification of Borrowers’ representations and warranties
to Lender Group, (ii) an inspection of each of the locations
where Borrowers’ and their Subsidiaries’ Inventory or
Equipment is located, and (iii) a review of Borrowers’
and their Subsidiaries’ material agreements, in each case,
the results of which shall be satisfactory to Agent;
(m) Agent shall have
completed (i) Patriot Act searches, OFAC/PEP searches and
customary individual background checks for each Loan Party, and
(ii) OFAC/PEP searches and customary individual background
searches for each Loan Party’s senior management and key
principals, the results of which shall be satisfactory to Agent and
each Lender;
(n) Agent shall have
received an appraisal of the Net Recovery Percentage applicable to
Borrowers’ and their Subsidiaries’ Inventory and an
appraisal of Borrowers’ and their Subsidiaries’
Equipment, the results of which shall be satisfactory to
Agent;
(o) Agent shall have
received a set of Projections of Borrowers for the 3-year period
following the Closing Date (on a year-by-year basis, and for the
1-year period following the Closing Date, on a month-by-month
basis), in form and substance (including as to scope and underlying
assumptions) satisfactory to Agent;
(p) Borrowers shall
have paid all Lender Group Expenses incurred in connection with the
transactions evidenced by the Agreement and the other Loan
Documents;
(q) Agent shall have
received evidence in form satisfactory to it that the
Lone Star Acquisition shall have been consummated on or prior
to the Closing Date in accordance with the Lone Star
Acquisition Documents and all applicable requirements of law, and
no terms or conditions of the Lone Star Acquisition Documents
(other than any immaterial terms or conditions) shall have been
waived without the consent of Agent;
(r) the Lone Star
Purchase Agreement (including schedules, exhibits, and annexes
thereto) and all other all documentation associated with the
Lone Star Acquisition shall be in form and substance
satisfactory to Agent;
(s) Agent shall have
received a solvency certificate, in form and substance satisfactory
to it, certifying as to the solvency of the Loan Parties taken as a
whole after giving effect to the Lone Star
Acquisition;
(t) each Borrower and
each of its Subsidiaries shall have received all governmental and
third party approvals (including shareholder approvals,
Xxxx–Xxxxx–Xxxxxx clearance and other consents)
necessary or, in the reasonable opinion of Agent, advisable in
connection with the Agreement or the transactions contemplated by
the Loan Documents, which shall all be in full force and effect,
and all applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority which
would restrain, prevent, or otherwise impose adverse conditions on
the Credit Agreement or the transactions contemplated by the Loan
Documents; and
(u) all other documents
and legal matters in connection with the transactions contemplated
by the Agreement shall have been delivered, executed, or recorded
and shall be in form and substance satisfactory to
Agent.
Schedule 3.1
SCHEDULE 5.1
Financial Statements, Reports, Certificates
Deliver
to Agent (and if so requested by Agent, with copies for each
Lender) each of the financial statements, reports, or other items
set forth below at the following times in form satisfactory to
Agent:
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as soon
as available, but in any event within 30 days (45 days in the case
of a month that is the end of one of Borrowers’ fiscal
quarters) after the end of each month during each of
Borrowers’ fiscal years,
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(a) an unaudited
consolidated and consolidating (and combined and combining, as
applicable) balance sheet, income statement, statement of cash
flow, and statement of shareholder’s equity covering
Borrowers’ and their Subsidiaries’ operations during
such period and compared to the prior period and plan, together
with a corresponding discussion and analysis of results from
management,
(b) a Compliance
Certificate along with the underlying calculations, including the
calculations to arrive at EBITDA to the extent applicable,
and
(c) a statement of
beginning and ending balances and other activity during such period
with respect to all Permitted Intercompany Advances.
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as soon
as available, but in any event within 90 days after the end of each
of Borrowers’ fiscal years,
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(d) consolidated and
consolidating (and combined and combining, as applicable) financial
statements of Borrowers and their Subsidiaries for each such fiscal
year, audited by independent certified public accountants
reasonably acceptable to Agent and certified, without any
qualifications (including any (i) “going concern”
or like qualification or exception, (ii) qualification or
exception as to the scope of such audit, or
(iii) qualification which relates to the treatment or
classification of any item and which, as a condition to the removal
of such qualification, would require an adjustment to such item,
the effect of which would be to cause any noncompliance with the
provisions of Section 7 of the Agreement), by such accountants
to have been prepared in accordance with GAAP (such audited
financial statements to include a balance sheet, income statement,
statement of cash flow, and statement of shareholder’s
equity, and, if prepared, such accountants’ letter to
management), and
(e) a Compliance
Certificate along with the underlying calculations, including the
calculations to arrive at EBITDA to the extent
applicable.
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as soon
as available, but in any event within 30 days prior to the start of
each of Borrowers’ fiscal years,
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(f) copies of
Borrowers’ Projections, in form and substance (including as
to scope and underlying assumptions) satisfactory to Agent, in its
Permitted Discretion, for the forthcoming 3 years, year by year,
and for the forthcoming fiscal year, month-by-month, certified by
the chief financial officer of Administrative Borrower as being
such officer’s good faith estimate of the financial
performance of Borrowers during the period covered
thereby.
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if and
when filed by GFC or any Borrower,
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(g) Form 10-Q quarterly
reports, Form 10-K annual reports, and Form 8-K current
reports,
(h) any other filings
made by GFC (in respect of a Borrower) or a Borrower with the SEC,
and
(i) any other
information that is provided by GFC (in respect of any Borrower) or
a Borrower to its shareholders generally.
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promptly,
but in any event within 5 days after any Borrower has knowledge of
any event or condition that constitutes a Default or an Event of
Default,
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(j) notice of such
event or condition and a statement of the curative action that
Borrowers propose to take with respect thereto.
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promptly
after the commencement thereof, but in any event within 5 days
after the service of process with respect thereto on any Borrower
or any of its Subsidiaries,
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(k) notice of all
actions, suits, or proceedings brought by or against any Borrower
or any of its Subsidiaries before any Governmental Authority which
reasonably could be expected to result in a Material Adverse
Effect.
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not
less than 5 Business Days (10 Business Days in the case
of any optional prepayment of the Last-Out Term Loan under
Section 2.4(d)(ii)) prior to (i) any proposed Affiliate
Distribution under Section 6.7(e), 6.7(f), 6.7(g), 6.7(h),
6.7(i), 6.7(j), or 6.7(k), any payment under Section 6.10(e),
(ii) any repayment under Section 6.6(a)(i) of Permitted
Intercompany Advances owing to GFN, or (iii) any optional
prepayment of the Last-Out Term Loan under
Section 2.4(d)(ii),
|
(l) notice of such
proposed Affiliate Distribution, repayment, or prepayment and
certificate of an appropriate officer of Pac-Van certifying
compliance with the conditions for funding such Affiliate
Distribution, such repayment, or such prepayment and attaching
pro forma computations of
Excess Availability, EBITDA, and the Fixed Charge Coverage Ratio,
as applicable, before and after giving effect to such proposed
Affiliate Distribution, such proposed repayment, or such proposed
prepayment.
|
|
upon
the request of Agent,
|
(m) to the extent not
otherwise disclosed to Agent in accordance with Section 6.10,
information reasonably requested relating to (i) transactions
between Pac-Van, Lone Star, or any of their respective
Subsidiaries, on the one hand, and Southern Frac, on the other
hand (including, without limitation, any such transaction involving
the acquisition by Pac-Van or Lone Star of Inventory or
Equipment from Southern Frac), and (ii) transactions
between Pac-Van and Lone Star involving (including, without
limitation, any such transaction involving the sale or other
transfer of Inventory or Equipment from one such Borrower to the
other).
(n) any other
information reasonably requested relating to the financial
condition of Borrowers or their Subsidiaries.
|
Schedule 5.1
SCHEDULE 5.2
Collateral Reporting
Provide
Agent (and if so requested by Agent, with copies for each Lender)
with each of the documents set forth below at the following times
in form satisfactory to Agent:
|
Monthly
(no later than the 10th day of each month) or, during an Enhanced
Reporting Period, weekly (no later than the 2nd Business Day of
each week for the prior week)
|
(a) an executed
Borrowing Base Certificate, which must contain separate
calculations of the Borrowing Base, each Borrowing
Base (Individual), and the Last-Out Term Loan Collateral
Base,
(b) a detailed aging,
by total and segregated by Borrower, of Borrowers’ Accounts,
together with a reconciliation and supporting documentation for any
reconciling items noted (delivered electronically in an acceptable
format, if Borrowers have implemented electronic
reporting),
(c) a detailed
calculation of those Accounts that are not eligible for the
Borrowing Base, segregated by Borrower, if Borrowers have not
implemented electronic reporting,
(d) a detailed
Inventory system/perpetual report together with a reconciliation to
Borrowers’ general ledger accounts (delivered electronically
in an acceptable format, if Borrowers have implemented electronic
reporting), segregated by Borrower,
(e) a detailed
calculation of Inventory and Equipment categories that are not
eligible for the Borrowing Base or the Last-Out Term Loan
Collateral Base, as applicable, segregated by Borrower, if
Borrowers have not implemented electronic reporting,
(f) a summary aging, by
vendor and segregated by Borrower, of Borrowers’ and their
Subsidiaries’ accounts payable and any book overdraft
(delivered electronically in an acceptable format, if Borrowers
have implemented electronic reporting) and an aging, by vendor, of
any held checks,
(g) a detailed report
regarding Borrowers’ and their Subsidiaries’ cash and
Cash Equivalents, including an indication of which amounts
constitute Qualified Cash,
(h) a monthly Account
roll-forward, in a format acceptable to Agent in its discretion and
segregated by Borrower, tied to the beginning and ending account
receivable balances of Borrowers’ general
ledger,
(i) notice of all
claims, offsets, or disputes asserted by Account Debtors with
respect to Borrowers’ and their Subsidiaries’ Accounts,
segregated by Borrower, and
(j) copies
of invoices together with corresponding shipping and delivery
documents, and credit memos together with corresponding supporting
documentation, with respect to invoices and credit memos in excess
of an amount determined in the sole discretion of Agent, from time
to time.
|
|
Monthly
(no later than the 15th Business Day of each month)
|
(k) a
report in form and substance reasonably satisfactory to Agent
setting forth in reasonable detail as of the last day of the
immediately preceding month for each Certificated Unit as to which
the items required by Section 5.16 have not been completed (or
were completed during such month): (i) the date on which the
applicable Loan Party applied to the appropriate Governmental
Authority for the Agent’s Lien to be noted on the applicable
Certificate of Title and the Lien of any other Person (other than
the Trust) to be removed therefrom; (ii) the status of such
application; (iii) if applicable, the date on which such
notation of the Agent’s Lien was made; (iv) if
applicable, the date on which the Lien in favor of any Person
(other than Agent or the Trust) was removed from such Certificate
of Title; and (v) such other information as Agent reasonably
requests in order to confirm that Agent has a perfected
first-priority Lien in such Certificated Unit.
|
|
Monthly
(no later than the 30th day of each month)
|
(l) a
reconciliation of Accounts, trade accounts payable, and Inventory
of Borrowers’ general ledger accounts to Borrowers’
monthly financial statements including any book reserves related to
each category.
|
|
Quarterly
|
(m) a report regarding
Borrowers’ and their Subsidiaries’ accrued, but unpaid,
ad valorem taxes, and
(n) a
Perfection Certificate or a supplement(s) to the Perfection
Certificate(s).
|
|
Annually
|
(o) a
detailed list of Borrowers’ and their Subsidiaries’
customers, with address and contact information.
|
|
Upon
request by Agent
|
(p) copies of purchase
orders and invoices for Inventory and Equipment acquired by any
Borrower or any of its Subsidiaries, and
(q) such
other reports as to the Collateral or the financial condition of
Borrowers and their Subsidiaries, as Agent may reasonably
request.
|
EXHIBIT
E
Document
Checklist
(See
attached.)
CLOSING CHECKLIST
for
AMENDMENT NO. 6
to
AMENDED AND RESTATED CREDIT AGREEMENT
by and
among
PAC-VAN, INC.,
LONE STAR TANK RENTAL INC.,
GFN REALTY COMPANY, LLC,
SOUTHERN FRAC, LLC,
and
THE AFFILIATES THAT ARE SIGNATORIES HERETO,
as
Borrowers
THE LENDERS THAT ARE SIGNATORIES THERETO
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as
Agent
Scheduled
Closing Date: March 24, 2017
List of abbreviations (signatories and responsible
parties)
Admin
Borrower Pac-Van, as Administrative Borrower
Agent Xxxxx
Fargo
Borrowers Pac-Van, Inc.
(“Pac-Van”);
Lone Star Tank Rentals Inc. (“Lone Star”); GFN Realty
Company, LLC (“GFNRC”); and
Southern
Frac, LLC (“Southern
Frac”)
BC Xxxxxxxxxxx
Xxxxxx, GFC general counsel, as counsel to Loan Parties; local
counsel to Loan Parties (as applicable)
GACP GACP I, L.P.
[Great American Capital Partners]
GFC General
Finance Corporation
GFN GFN North
America Corp.
Guarantors PV Acquisition Corp.
(“PV Acquisition”); and
GFN Manufacturing Corporation (“GFN Mfg”)
Lenders Xxxxx
Fargo, as a lender; East West Bank, as a lender
(“EWB”); CIT
Bank, N.A., f/ka/ OneWest Bank N.A., successor in interest to
OneWEst Bank, FSB, as a lender (“CIT”); The Private Bank and Trust
Company, as a lender (“PrivateBank”); KeyBank, National
Association, as a lender (“KeyBank”); Bank
Hapaolim B.M., as a lender (“BHI”); GACP, as a
lender
Loan
Parties Borrowers and Guarantors
MW McGuireWoods
LLP, counsel to Agent
Xxxxx
Fargo Xxxxx Fargo Bank, National Association
List of abbreviations (status)
D(_/_) = Draft
(date)
E/D = Executed
and delivered
TBD = To
be delivered
TBP = To
be prepared and distributed for review
n/a = Not
applicable
All defined terms used but not defined in this closing memorandum
are as defined in the Amendment No. 6 to Amended and Restated
Credit Agreement identified in item 01 below.
Xxxxx
Fargo | Pac-Van (A&R)?Closing Checklist
|
Tab Document
|
Resp. Party
|
Signatories
|
Comments/Status
|
|
Loan Documents and related deliverables
|
|||
|
MW
|
☒ Borrowers
☒ Agent
☒ Lender
(Xxxxx Fargo)
☒ Lender
(EWB)
☒ Lender
(CIT)
☒ Lender
(PrivateBank)
☒ Lender
(KeyBank)
☒ Lender
(BHI)
☒ Lender
(GACP)
|
E/D
|
|
|
-01. Schedules
and Exhibits:
|
|
|
|
|
--01. Schedule PC-1—Post-Closing
Matters
|
MW;
Agent
|
n/a
|
Attached to
item 01
|
|
--02. Exhibit A—Replacement
Schedule C-1 to Credit Agreement
|
MW;
Agent
|
n/a
|
Attached to
item 01
|
|
--03. Exhibit B—Replacement
Schedules to Credit Agreement
|
BC;
Borrowers
|
n/a
|
|
|
--04. Exhibit C—Exhibit
IC-1 to Credit Agreement (Intercreditor Provisions)
|
MW
|
n/a
|
E/D
|
|
--05. Exhibit D—As-Amended
Credit Agreement [87448138]
|
MW
|
n/a
|
Final form; attached
to item 01
|
|
--06. Exhibit E—Document
Checklist [87527400]
|
MW
|
n/a
|
This
document
|
|
--07. Exhibit [...***...]—[...***...]
Acquisition LOI; [...***...] Acquisition Proposal
|
BC
|
n/a
|
E/D;
attached to item 01
|
|
|
|
|
|
|
--01. Schedule A-2—Authorized
Persons
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--02. Schedule D-1—Designated
Account
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--03. Schedule P-1—Permitted
Investments
|
BC:
Borrowers
|
n/a
|
E/D
|
|
--04. Schedule P-2—Permitted
Liens
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--05. Schedule 4.1(b)—Capitalization
of Borrowers
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--06. Schedule 4.1(c)—Capitalization
of Borrowers’ Subsidiaries
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--07. Schedule 4.1(d)—Subscriptions,
Options, Warrants, Calls
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--08. Schedule 4.6(b)—Litigation
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--09. Schedule 4.10—Employee
Benefits
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--10. Schedule 4.11—Environmental
Matters
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--11. Schedule 4.14—Permitted
Indebtedness
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--12. Schedule 4.24—Location
of Inventory
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--13. Schedule 4.27—Location
of Equipment
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--14. Schedule 5.6—Insurance
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--15. Schedule 5.14—Chief
Executive Offices
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--16. Schedule 5.16(f)—Certain
Certificated Units
|
BC;
Borrowers
|
n/a
|
E/D
|
|
--17. Schedule 6.5—Nature
of Business
|
BC;
Borrowers
|
n/a
|
E/D
|
|
02. Guarantor
Acknowledgment
|
MW
|
☒ Guarantors
|
E/D;
attached to item 01
|
|
03. Promissory
Notes:
|
|
|
|
|
-01. EWB
($40,000,000) [88217269]
|
MW
|
☒ Borrowers
|
E/D
|
|
-02. CIT
($35,000,000) [88217282]
|
MW
|
☒ Borrowers
|
E/D
|
|
-03. PrivateBank
($25,000,000) [00000000]
|
MW
|
☒ Borrowers
|
E/D
|
|
-04. KeyBank
($20,000,000) [00000000]
|
MW
|
☒ Borrowers
|
E/D
|
|
-05. BHI
($15,000,000) [88217291]
|
MW
|
☒ Borrowers
|
E/D
|
|
-06. GACP
($20,000,000) [88217323]
|
MW
|
☒ Borrowers
|
E/D
|
|
04. Fee
Letter [87677994]
|
MW
|
☒ Borrowers
☒ Agent
|
E/D
|
|
05. Pledge
Agreement (GFN equity in GFNRC) [87966322]
|
MW
|
☒ GFN
☒ GFNRC
|
E/D
|
|
MW
|
☒ Borrowers
☒ Agent
☒ Lender
(Xxxxx Fargo)
☒ Lender
(EWB)
☒ Lender
(CIT)
☒ Lender
(PrivateBank)
☒ Lender
(KeyBank)
☒ Lender
(BHI)
☒ Lender
(GACP)
|
E/D
|
|
|
-01. Exhibit A-1—U.S.
Guaranty and Security Agreement
|
MW
|
n/a
|
Attached to item
06
|
|
-02. Exhibit A-2—Amendment
No. 5
|
MW
|
n/a
|
Attached to item
06
|
|
-03. Exhibit B—Canadian
Guaranty and Security Agreement
|
MW
|
n/a
|
Attached to item
06
|
|
-04. Exhibit C—Pledge
Agreement (GFN equity in Pac-Van)
|
MW
|
n/a
|
Attached to item
06
|
|
-05. Exhibit D—Pledge
Agreement (GFN equity in Lone Star)
|
MW
|
n/a
|
Attached to item
06
|
|
-06. Exhibit E—Intercompany
Note; Endorsement
|
MW
|
n/a
|
Attached to item
06
|
|
-07. Exhibit F-1—Intercompany
Subordination Agreement
|
MW
|
n/a
|
Attached to item
06
|
|
-08. Exhibit F-2—Amendment
No. 1 to Intercompany Subordination Agreement
|
MW
|
n/a
|
Attached to item
06
|
|
-09. Exhibit F-3—Omnibus
Joinder, Release, Amendment, and Reaffirmation Agreement
(2014)
|
MW
|
n/a
|
Attached to item
06 (without attachments)
|
|
-10. Exhibit F-4—Amendment
No. 2 to Intercompany Subordination Agreement
|
MW
|
n/a
|
Attached to item
06
|
|
-11. Exhibit F-5—Amendment
No. 3 to Intercompany Subordination Agreement
|
MW
|
n/a
|
Attached to item
06
|
|
-12. Exhibit G—[Reserved]
|
MW
|
n/a
|
n/a
|
|
-13. Exhibit H—Schedules
to U.S. Guaranty and Security Agreement
|
|
|
|
|
--01. Schedule 1—Commercial
Tort Claims
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--02. Schedule 2—Copyrights
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--03. Schedule 3—Intellectual
Property Licenses
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--04. Schedule 4—Patents
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--05. Schedule 5—Pledged
Companies
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--06. Schedule 6—Trademarks
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--07. Schedule 7—Name;
Chief Executive Office; Tax Identification Numbers and
Organizational Numbers
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--08. Schedule 8—Owned
Real Property
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--09. Schedule 9—Deposit
Accounts and Securities Accounts
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--10. Schedule 10—Controlled
Account Banks
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--11. Schedule 11—List
of Uniform Commercial Code Filing Jurisdictions
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--12. Schedule 12—Certificated
Units
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
-14. Exhibit I—Schedules
to Canadian Guaranty and Security Agreement
|
|
|
|
|
--01. Schedule 2—Copyrights
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--02. Schedule 3—Intellectual
Property Licenses
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--03. Schedule 4—Patents
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--04. Schedule 5—Pledged
Companies
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--05. Schedule 6—Trademarks
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--06. Schedule 7—Name;
Chief Executive Office; Tax Identification Numbers and
Organizational Numbers
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--07. Schedule 8—Owned
Real Property
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--08. Schedule 9—Deposit
Accounts and Securities Accounts
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--09. Schedule 10—Controlled
Account Banks
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--10. Schedule 11—List
of Uniform Commercial Code Filing Jurisdictions
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
--11. Schedule 12—Certificated
Units
|
BC;
Borrowers
|
n/a
|
E/D;
attached to item 06
|
|
-15. Exhibit J—Perfection
Certificates
|
|
|
|
|
--01. Pac-Van;
PV Acquisition
|
BC;
Borrowers
|
☒ Pac-Van
☒ PV
Acquisition
|
E/D;
attached to item 06
|
|
--02. Lone
Star
|
BC;
Borrowers
|
☒ Lone
Star
|
E/D;
attached to item 06
|
|
--03. GFNRC
|
BC;
Borrowers
|
☒ GFNRC
|
E/D;
attached to item 06
|
|
--04. Southern
Frac
|
BC;
Borrowers
|
☒ Southern
Frac
|
E/D;
attached to item 06
|
|
--05. GFN Mfg
|
BC;
Borrowers
|
☒ GFN
Mfg
|
E/D;
attached to item 06
|
|
07. Master
Assignment and Acceptance Agreement [88127495]
|
MW;
Agent
|
☒ Lender
(Xxxxx Fargo)
☒ HSBC
☒ Capital
One
☒ Lender
(EWB)
☒ Lender
(CIT)
☒ Lender
(PrivateBank)
☒ Lender
(KeyBank)
☒ Lender
(BHI)
☒ Agent
☒ Admin
Borrower
|
E/D
|
|
08. Disbursement
Letter (including funds flow) [87678889]
|
MW
|
☒ Admin
Borrower
|
E/D
|
|
Company certificates and other company deliverables
|
|||
|
09. Company
General Certificate—Pac-Van
|
BC;
Pac-Van
|
☒ Pac-Van
|
E/D
|
|
-01. Articles
of incorporation
|
|
|
E/D
|
|
-02. Bylaws
|
|
|
E/D
|
|
-03. Authorizing
resolutions
|
|
☒ Governing
body of Pac-Van
|
E/D
|
|
-04. Incumbency
|
|
☒ Certain
officers of Pac-Van
|
E/D
|
|
-05. Good-standing
certificates and foreign qualifications
|
|
|
See
item 16-01
|
|
10. Company
General Certificate—Lone Star
|
BC;
Lone Star
|
☒ Lone
Star
|
E/D
|
|
-01. Articles
of incorporation
|
|
|
E/D
|
|
-02. Bylaws
|
|
|
E/D
|
|
-03. Authorizing
resolutions
|
|
☒ Governing
body of Lone Star
|
E/D
|
|
-04. Incumbency
|
|
☒ Certain
officers of Lone Star
|
E/D
|
|
-05. Good-standing
certificates and foreign qualifications
|
|
|
See
item 16-02
|
|
11. Company
General Certificate—GFNRC
|
BC;
GFNRC
|
☒ GFNRC
|
E/D
|
|
-01. Certificate
of formation
|
|
|
E/D
|
|
-02. Operating
agreement
|
|
|
E/D
|
|
-03. Authorizing
resolutions
|
|
☒ Governing
body of GFNRC
|
E/D
|
|
-04. Incumbency
|
|
☒ Certain
officers of GFNRC
|
E/D
|
|
-05. Good-standing
certificates and foreign qualifications
|
|
|
See
item 16-03
|
|
12. Company
General Certificate—Southern Frac
|
BC; Southern
Frac
|
☒ Southern
Frac
|
E/D
|
|
-01. Articles
of organization
|
|
|
E/D
|
|
-02. Operating
agreement
|
|
|
E/D
|
|
-03. Authorizing
resolutions
|
|
☒ Governing
body of Southern Frac
☒ Members
of Southern Frac
|
E/D
|
|
-04. Incumbency
|
|
☒ Certain
officers of Manager of Southern Frac
|
E/D
|
|
-05. Good-standing
certificates and foreign qualifications
|
|
|
See
item 16-04
|
|
13. Company
General Certificate—PV Acquisition
|
BC;
PV Acquisition
|
☒ PV Acquisition
|
E/D
|
|
-01. Articles
of organization
|
|
|
E/D
|
|
-02. Bylaws
|
|
|
E/D
|
|
-03. Authorizing
resolutions
|
|
☒ Governing
body of PV Acquisition
|
E/D
|
|
-04. Incumbency
|
|
☒ Certain
officers of PV Acquisition
|
E/D
|
|
-05. Good-standing
certificates and foreign qualifications
|
|
|
See
item 16-05
|
|
14. Company
General Certificate—GFN Mfg
|
BC;
GFN Mfg
|
☒ GFN
Mfg
|
E/D
|
|
-01. Articles
of incorporation
|
|
|
E/D
|
|
-02. Bylaws
|
|
|
E/D
|
|
-03. Authorizing
resolutions
|
|
☒ Governing
body of GFN Mfg
|
E/D
|
|
-04. Incumbency
|
|
☒ Certain
officers of GFN Mfg
|
E/D
|
|
-05. Good-standing
certificates and foreign qualifications
|
|
|
See
item 16-06
|
|
15. Company
General Certificate—GFN
|
BC;
GFN
|
☒ GFN
|
E/D
|
|
-01. Articles
of incorporation
|
|
|
E/D
|
|
-02. Bylaws
|
|
|
E/D
|
|
-03. Authorizing
resolutions
|
|
☒ Governing
body of GFN
|
E/D
|
|
-04. Incumbency
|
|
☒ Certain
officers of GFN
|
E/D
|
|
-05. Good-standing
certificates and foreign qualifications
|
|
|
See
item 16-07
|
|
16. Good-standing
certificates and foreign qualifications
|
BC; Loan
Parties
|
n/a
|
|
|
|
|
|
|
|
--01. Indiana
[jurisdiction of organization]
|
|
|
E/D
|
|
--02. Alabama
|
|
|
E/D
|
|
--03. Alaska
|
|
|
E/D
|
|
--04. Arizona
|
|
|
E/D
|
|
--05. Arkansas
|
|
|
E/D
|
|
--06. California
|
|
|
E/D
|
|
--07. Colorado
|
|
|
E/D
|
|
--08. Connecticut
|
|
|
E/D
|
|
--09. Delaware
|
|
|
E/D
|
|
--10. Florida
|
|
|
E/D
|
|
--11. Georgia
|
|
|
E/D
|
|
--12. Hawaii
|
|
|
E/D
|
|
--13. Illinois
|
|
|
E/D
|
|
--14. Iowa
|
|
|
E/D
|
|
--15. Kansas
|
|
|
E/D
|
|
--16. Kentucky
|
|
|
E/D
|
|
--17. Louisiana
|
|
|
E/D
|
|
--18. Maine
|
|
|
E/D
|
|
--19. Maryland
|
|
|
E/D
|
|
--20. Massachusetts
|
|
|
E/D
|
|
--21. Michigan
|
|
|
E/D
|
|
--22. Minnesota
|
|
|
E/D
|
|
--23. Mississippi
|
|
|
E/D
|
|
--24. Missouri
|
|
|
E/D
|
|
--25. Montana
|
|
|
E/D
|
|
--26. Nebraska
|
|
|
E/D
|
|
--27. Nevada
|
|
|
E/D
|
|
--28. New
Hampshire
|
|
|
E/D
|
|
--29. New
Jersey
|
|
|
E/D
|
|
--30. New
York
|
|
|
E/D
|
|
--31. New
Mexico
|
|
|
E/D
|
|
--32. North
Carolina
|
|
|
E/D
|
|
--33. North
Dakota
|
|
|
E/D
|
|
--34. Ohio
|
|
|
E/D
|
|
--35. Oklahoma
|
|
|
E/D
|
|
--36. Pennsylvania
|
|
|
E/D
|
|
--37. South
Carolina
|
|
|
E/D
|
|
--38. South
Dakota
|
|
|
E/D
|
|
--39. Texas
|
|
|
E/D
|
|
--40. Utah
|
|
|
E/D
|
|
--41. Virginia
|
|
|
E/D
|
|
--42. Washington
|
|
|
E/D
|
|
--43. Wet
Virginia
|
|
|
E/D
|
|
--44. Wisconsin
|
|
|
E/D
|
|
--45. Wyoming
|
|
|
E/D
|
|
|
|
|
|
|
--01. Delaware
[jurisdiction of organization]
|
|
|
X/X
|
|
--00. Xxxxxxxxx
|
|
|
X/X
|
|
--00. Xxx
Xxxxxx
|
|
|
E/D
|
|
--04. Texas
|
|
|
E/D
|
|
|
|
|
|
|
--01. Delaware
[jurisdiction of organization]
|
|
|
E/D
|
|
--02. Illinois
|
|
|
E/D
|
|
--03. Texas
|
|
|
E/D
|
|
|
|
|
|
|
--01. Texas
[jurisdiction of organization]
|
|
|
E/D
|
|
|
|
|
|
|
--01. Alberta
[jurisdiction of organization]
|
|
|
E/D
|
|
--02. British
Columbia
|
|
|
E/D
|
|
|
|
|
|
|
--01. Delaware
[jurisdiction of organization]
|
|
|
E/D
|
|
--02. Texas
|
|
|
E/D
|
|
|
|
|
|
|
--01. Delaware
[jurisdiction of organization]
|
|
|
E/D
|
|
17. Insurance:
|
|
|
|
|
-01. Certificate
of liability insurance
|
BC;
Borrowers
|
n/a
|
E/D
|
|
-02. Additional-insured
endorsement to each policy of liability insurance
|
BC;
Borrowers
|
n/a
|
Post-closing
|
|
-03. Evidence
of property and casualty insurance
|
BC;
Borrowers
|
n/a
|
E/D
|
|
-04. Lender’s
loss payee endorsements to each policy of property and casualty
insurance
|
BC;
Borrowers
|
n/a
|
Post-closing
|
|
18. Legal
opinions:
|
|
|
|
|
-01. Illinois
law (enforceability);
Indiana
law (formation, good standing,
authorization, execution, etc.; continued perfection of
lien); Delaware law (formation, good standing, authorization,
execution, etc.; continued perfection of lien); Texas law (formation, good standing, authorization,
execution, etc.; continued perfection of lien)
|
BC
|
☒ BC
|
D(3/22) [Xxxxxx &
Xxxxxxxxx]
|
|
-02. Delaware
law (formation, good standing,
authorization, execution, etc.; continued perfection of
lien)
|
BC
|
☒ BC
|
E/D
[Potter Xxxxxxxx]
|
|
Searches; UCC authorizations and filings; lien
releases
|
|||
|
19. UCC,
judgment, litigation, and tax lien search results
|
MW
|
n/a
|
Received
|
|
20. UCC
financing statements and similar filings:
|
|
|
|
|
-01. GFN—DE
(equity in GFNRC) [88210029]
|
MW
|
n/a
|
Final; to be filed at
closing
|
EXHIBIT
[...***...]
[...***...] Acquisition
LOI; [...***...] Acquisition Proposal
[Text
Omitted and Filed Separately pursuant to a Confidential Treatment
Request]
