Contract
Exhibit 10.63
THE FOLLOWING INFORMATION IS SUPPLIED SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES. THE LOAN UNDER THIS AGREEMENT ARE TREATED AS HAVING BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) WITHIN THE MEANING OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AND THIS LEGEND IS REQUIRED BY SECTION 1275(c) OF THE CODE. INFORMATION INCLUDING THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE AND THE YIELD TO MATURITY WILL BE PROVIDED IN WRITING TO A LENDER PROMPTLY UPON REQUEST TO THE BORROWER AT 0000 XXXXXX XXXXXX, XXXXX 000 XXXXXXXXXX, XX 00000 [***].
dated as of December 15, 2023
among
XRL 1 LLC,
as Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
BLUE OWL CAPITAL CORPORATION
TABLE OF CONTENTS
Page
Appendices
Appendix ATerm Loan Commitments
Exhibits
Exhibit AForm of Assignment and Acceptance
Exhibit BFunding Notice
Exhibit CNotice of Prepayment
Exhibit DForm of Payment Date Distribution Report
Exhibit EForms of Tax Certificates
Exhibit FForm of Officer’s Certificates
Exhibit GForm of Blocked Account Control Agreement
Exhibit HForm of Springing Account Control Agreement
Schedules
Schedule 1.01(a)Account Banks
Schedule 1.01(b)Warrants
Schedule 1.01(c)Material Contracts
This LOAN AGREEMENT (this “Agreement”) dated as of December 15, 2023, is entered into by and among XRL 1 LLC, a Delaware limited liability company (“Borrower”), the Lenders from time to time party hereto, and BLUE OWL CAPITAL CORPORATION (“Blue Owl”), as administrative agent for the Lenders (in such capacity, “Administrative Agent”).
RECITALS
WHEREAS, the Lenders have agreed to extend certain senior secured credit facilities to Borrower, in an aggregate principal amount not to exceed $140,000,000, consisting of (a) an initial term loan in an aggregate principal amount equal to $130,000,000 and (b) a delayed draw term loan in an aggregate principal amount of $10,000,000, in each case, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
“Account Bank” means Silicon Valley Bank, a division of First-Citizens Bank & Trust Company (“Initial Account Bank”), any institution listed on Schedule 1.01(a) hereto and such other bank or financial institution requested by Xxxxxxxx and approved by the Administrative Agent.
“Accreted Principal” has the meaning set forth in Section 3.01(c).
“Act” means the Securities Act of 1933, as amended.
“Administrative Agent” shall have the meaning set forth in the preamble hereto.
“Administrative Fee Escrow Amount” means the sum of (i) $[***] (the “Initial Administrative Fee Escrow Amount”), plus (ii) such additional amounts as deposited into the Reserve Account after the Closing Date designated, in writing to the Administrative Agent, as additional Administrative Fee Escrow Amounts.
“Affiliate” means any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with another Person. Any reference to an Affiliate of Blue Owl (or its Affiliates) shall include any Person that is controlled or managed by Blue Owl, or where Blue Owl has a direct or indirect majority economic interest therein.
“Affitech Assignment Agreement” means that certain Assignment Agreement, made as of October 6, 2021, by and among Affitech Research AS, Company, X. Xxxxxxxx-Xx Xxxxx Ltd, and Xxxxxxx-Xx Xxxxx Inc., as amended from time to time (but subject to the terms of this Agreement with respect to the amendment thereof) and to the extent sold and assigned to Borrower on the Closing Date pursuant to the Sale Agreement.
“Aggregate Accrual” has the meaning set forth in Section 3.02(a)(v).
“Agreement” has the meaning set forth in the preamble hereto.
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“Amortization Payments” means the principal payments of the Term Loan due under Section 4.05(a) hereof.
“Applicable Law” means, with respect to any Person, all laws, rules, regulations and orders of Governmental Authorities applicable to such Person or any of its properties or assets.
“Assigned Commercial Payment Reports” means the reports to be delivered by Roche to Borrower (as successor to Company) pursuant to Section 3.7 of the Affitech Assignment Agreement.
“Assignee” means any other Person to which a Lender has assigned or is assigning its rights and obligations hereunder, whether in whole or in part.
“Assignment and Acceptance” means a written instrument of assignment in the form set forth in Exhibit A hereto, executed by and between the parties to an assignment under Section 12.01 hereof.
“Bankruptcy Law” means Title 11 of the United States Code entitled “Bankruptcy” and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions (domestic or foreign) from time to time in effect and affecting the rights of creditors generally.
“Bill of Sale” means the Bill of Sale and Assumption Agreement, dated as of the Closing Date, delivered by Company to Borrower under the Sale Agreement with respect to the Transferred Assets.
“Blue Owl” shall have the meaning set forth in the preamble hereto.
“Blue Owl Lenders” means Lenders that are Blue Owl, its Affiliates or any Person that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by Blue Owl or its Affiliates.
“Blocked Account Control Agreement” means any agreement entered into by the Account Bank, Borrower and the Administrative Agent, in form and substance reasonably satisfactory to Administrative Agent (it being understood that the form attached hereto as Exhibit G is satisfactory to the Administrative Agent), pursuant to which, among other things, Administrative Agent shall have sole dominion and control over the Reserve Account identified therein (within the meaning of Section 9-104 of the UCC).
“Borrower” shall have the meaning set forth in the preamble hereto.
“Borrower’s Organizational Documents” means the certificate of formation and operating agreement (or similar documents) of Borrower or the functional equivalent of the foregoing.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by Applicable Law to remain closed.
“Capital Stock” of any Person means any and all shares, interests, memberships, ownership interest units, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, and including, if such Person is a partnership, partnership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of property of, such partnership, and including, if such Person is a limited liability company, membership interests and any
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other interest or participation that confers on a Person the right to receive an interest in the profits and losses of, or distributions of property of, such limited liability company, in each case whether outstanding on the date hereof or issued after the date hereof, but excluding any Indebtedness convertible into or exchangeable for such equity.
“Change of Control” means:
(a)any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than thirty-five percent (35%) of the equity interests of Parent entitled to vote for members of its board of directors of Parent on a fully diluted basis (and taking into account all such securities that such person or group has the right to acquire by conversion or exercise of other securities or option rights, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition);
(b)consummation of any transaction or series of related transactions that results in the sale, disposition or other transfer of all or substantially all of the assets of Parent and its Subsidiaries on a consolidated basis to a Person that is not a Subsidiary of Parent;
(c)Parent shall cease to beneficially own and control 100% on a fully diluted basis of the economic and voting interest in the Capital Stock of Company; or
(d)Company shall cease to beneficially own and control 100% on a fully diluted basis of the economic and voting interest in the Capital Stock of Borrower, free and clear of all Liens other than the Lien granted to Administrative Agent.
“Closing Date” means December 15, 2023.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means all of Borrower’s right, title and interest in, to and under, the following property, whether now owned or hereafter acquired and wherever located:
(a)the Transferred Assets, the Sale Agreement, and the Bill of Sale;
(b)the Operating Account, the Collection Account and the Reserve Account and all money and other property deposited or maintained in the Operating Account, Collection Account and the Reserve Account;
(c)all accounts, chattel paper, deposit accounts (and all money and other property deposited or maintained therein), documents, equipment, fixtures, general intangibles, goods, instruments (including intercompany promissory notes), inventory, investment property, letter-of-credit rights, letters of credit, commercial tort claims, money, and supporting obligations;
(d)all rights (contractual and otherwise and whether constituting accounts, contract rights, financial assets, cash, investment property or general intangibles) arising under, connected with or in any way related to the assets described in the foregoing clauses (a), (b), or (c) (including, without limitation, (i) the right to receive the Assigned Commercial Payment Reports, (ii) the right to audit as described in Section 3.10 of the Affitech Assignment Agreement, and (iii) the right to make claims against a Covered Agreement Counterparty for breach of a Covered Agreement);
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(e)all accessions, substitutions and replacements for, and all rents, profits and products of, any assets described in the foregoing clauses (a), (b), (c), or (d);
(f)all proceeds of any assets described in the foregoing clauses (a), (b), (c), (d), or (e); and
(g)all books and records related to any assets described in the foregoing clauses (a), (b), (c), (d), (e), or (f).
Notwithstanding anything to the contrary herein or in the Loan Documents, Collateral shall not include the Excluded Assets.
“Collateral Documents” means the Security Agreement, the Pledge Agreement, each Control Agreement and all other instruments, documents and agreements delivered by any Loan Party pursuant to this Agreement or any of the other Loan Documents in order to grant to Administrative Agent a Lien on any Collateral, in each case, as such Collateral Documents may be amended or otherwise modified from time to time.
“Collection Account” means that certain deposit account ending in [***] established and maintained by Borrower at the Initial Account Bank, subject to a Springing Account Control Agreement, solely for the purpose of receiving remittance of Commercial Payments of Borrower pursuant to the Covered Agreements and disbursement thereof as provided herein, and any other Collection Account entered into in accordance with Section 4.04.
“Commercial Payments” means all payments (together with the right to receive such payments) in respect of the Transferred Assets (including in each case payments constituting royalties, settlement payments, judgments (net of any reasonable and documented out-of-pocket expenses incurred in connection with the litigation that gave rise to such judgments), securities, consideration or any other remuneration of any kind payable or received in respect of, or in substitution or compensation for, or otherwise in lieu of, such payments under the Covered Agreements and all “accounts” and “payment intangibles” (as such terms are defined in the UCC) in respect of the Transferred Assets evidencing or giving rise to any of the foregoing). For the avoidance of doubt, Commercial Payments includes all amounts due to Borrower under Sections 6.1(b)(i) and 6.1(b)(iii) of the Commercial Payment Purchase Agreement, Sections 2.1 and 3.10 of the Affitech Assignment Agreement, and Sections 4.01(j)(iii), 4.01(j)(v) and 4.03(b) of the Sale Agreement.
“Commercial Payment Interest” means the right to receive Commercial Payments.
“Commercial Payment Purchase Agreement” means that certain Commercial Payment Purchase Agreement, dated as of October 6, 2021, between Affitech Research AS, as Seller and Company, as Purchaser, as amended from time to time (but subject to the terms of this Agreement and the Sale Agreement with respect to the amendment thereof).
“Company” means XOMA (US) LLC, a Delaware limited liability company, provided that at the election of the Company and with the consent of the Administrative Agent (not to be unreasonably withheld), the Company may be replaced by an Affiliate of the Company pursuant to joinder, assignment and/or other documentation (including legal opinions) with respect to the Loan Documents, reasonably requested by, and reasonably acceptable to, the Administrative Agent.
“Confidential Information” means any and all non-public, proprietary or confidential information provided by either Party to the other (including, without limitation, any notices or other
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information provided pursuant to Section 8.08), either directly or indirectly, whether in graphic, written, electronic, tangible, intangible or oral form, and marked or identified at the time of disclosure as confidential, or which by its context would reasonably be deemed to be confidential, including without limitation information relating to a Party’s revenues, net sales, costs, technology, products and services, and any business, financial or customer information relating to a Party. Confidential Information shall not include any information that a Party can demonstrate was: (i) known to the general public at the time of its disclosure to such Party or its Affiliates, or thereafter became generally known to the general public, other than as a result of actions or omissions of the receiving Party, its Affiliates, or anyone to whom the receiving Party or its Affiliates disclosed such portion; (ii) known by the receiving Party or its Affiliates prior to the date of disclosure by the disclosing Party; (iii) disclosed to the receiving Party or its Affiliates on an non-confidential basis from a source unrelated to the disclosing Party and not known by the receiving Party or its Affiliates (after due inquiry) to be under a duty of confidentiality to the disclosing Party; or (iv) independently developed by the receiving Party or its Affiliates by personnel that did not use the Confidential Information of the disclosing Party in connection with such development. For clarity, this Agreement shall supersede the Confidentiality Agreement and the Confidentiality Agreement shall cease to be of any force and effect following the execution of this Agreement; provided, however, that all information falling within the definition of “Confidential Information” set forth in the Confidentiality Agreement shall also be deemed Confidential Information disclosed pursuant to this Agreement, and the use and disclosure of such Confidential Information following the date of this Agreement shall be subject to the provisions of Section 13.17.
“Confidentiality Agreement” means that certain Confidentiality Agreement, dated as of February 7, 2023, by and between Owl Rock Capital Advisors LLC and Parent.
“Contract” means any agreement, contract, lease, commitment, license and other arrangement that is legally binding.
“Control Agreement” means a Blocked Account Control Agreement or a Springing Account Control Agreement, in form and substance reasonably satisfactory to Administrative Agent, it being understood that the form attached hereto as Exhibit G and Exhibit H are satisfactory to the Administrative Agent.
“Controlled Affiliate” with respect to any Person means any other Person directly or indirectly controlling, controlled by or under common control with, such Person. For the purposes of this Agreement, “control” (including, with correlative meaning, the terms “controlling” and “controlled”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Covered Agreement Counterparty” means, with respect to any Covered Agreement, the party or parties thereto other than Borrower or any of its Affiliates.
“Covered Agreements” means, collectively, the Commercial Payment Purchase Agreement and the Affitech Assignment Agreement.
“Credit Date” means the date of a Credit Extension.
“Credit Extension” means the making of a Term Loan.
“Default” means any condition or event which constitutes an Event of Default or which, with the giving of notice or the lapse of time or both (in each case to the extent described in the relevant
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sub-clauses of the definition of “Event of Default”) would, unless cured or waived, become an Event of Default.
“Default Rate” means, for any period for which an amount is overdue, a rate per annum equal for each day in such period to the lesser of (i) [***] plus the rate of interest otherwise applicable to the Term Loan as provided in Section 4.01 and the definition of “Fixed Interest” and (ii) the maximum rate of interest permitted under Applicable Law.
“Deficiency Amount” has the meaning set forth in Section 3.01(c).
“Delayed Draw Commitment Period” means the time period commencing on Closing Date through and including the Delayed Draw Commitment Termination Date.
“Delayed Draw Commitment Termination Date” means March 27, 2026.
“Delayed Draw Funding Milestone” means the Lenders shall have received, as of any Interest Payment Date occurring on or prior to March 15, 2026, together with all principal and interest paid to the Lenders using the proceeds of Commercial Payments on the immediately preceding Interest Payment Date, payments of principal and interest paid from the proceeds of Commercial Payments [***].
“Delayed Draw Term Loan Commitment” means the commitment of a Lender to make or otherwise fund the Delayed Draw Term Loan. The amount of each Lender’s Delayed Draw Term Loan Commitment, if any, is set forth on Appendix A or in the applicable Assignment and Acceptance, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Delayed Draw Term Loan Commitments as of the Closing Date is $10,000,000.
“Delayed Draw Term Loans” means the Term Loans funded after the Closing Date pursuant to Section 2.01(a)(ii).
“Disqualified Capital Stock” of any Person means any class of Capital Stock of such Person that, by its terms, or by the terms of any related agreement or of any security into which it is convertible, puttable or exchangeable, is, or upon the happening of any event (other than an event that would constitute a Change of Control) or the passage of time would be, required to be redeemed by such Person, whether or not at the option of the holder thereof, or matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, in whole or in part, on or prior to the date which is ninety one (91) days after the Scheduled Maturity Date; provided, however, that any class of Capital Stock of such Person that, by its terms, authorizes such Person to satisfy in full its obligations with respect to the payment of dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of Capital Stock that is not Disqualified Capital Stock, and that is not convertible, puttable or exchangeable for Disqualified Capital Stock or Indebtedness, will not be deemed to be Disqualified Capital Stock.
“Dollars” or “$” means lawful money of the United States of America.
“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.
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“Erroneous Payment” has the meaning specified in Section 12.11(a).
“Erroneous Payment Subrogation Rights” has the meaning specified in Section 12.11(d).
“Event of Default” means the occurrence of one or more of the following:
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“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the regulations promulgated thereunder.
“Excluded Assets” means those assets described in clause (d) of Purchased Commercial Payments (as defined in the Commercial Payment Purchase Agreement).
“Excluded Taxes” means any of the following Taxes imposed on or with respect to or required to be withheld or deducted from a payment to any Lender, (i) any Taxes imposed on (or measured by) net income (however denominated), branch profits Taxes, or any franchise or similar Taxes imposed in lieu thereof, imposed by any Governmental Authority, in each case (x) as a result of such Lender being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (y) that are Other Connection Taxes, (ii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in the Term Loan or commitment pursuant to a law in effect on the date on which (x) such Lender acquires such interest in such commitment or (y) such Lender designates a new lending office, except in each case to the extent that amounts with respect to such Taxes were payable pursuant to Section 5.01 or Section 5.04 either to such Lender’s assignor immediately before such Lender acquired such applicable interest in the Term Loan or commitment (as applicable) or to such Lender immediately before it changed its lending office, as applicable, (iii) any Tax that is attributable to such Lender’s failure to comply with Section 5.01(b) and (iv) any Tax withheld pursuant to FATCA.
“Expense Reserve Amount” means $[***].
“Expenses” means any and all reasonable and documented out-of-pocket fees, costs and expenses of Borrower, including (i) the reasonable fees, costs, expenses and indemnities of the Servicer (provided, that, with respect to the Servicer, such expenses shall be limited to the Servicing Fee and reasonable out-of-pocket costs and expenses), (ii) reasonable and customary directors and officers liability insurance for any managers and officers of Borrower, (iii) the fees and out-of-pocket expenses of the Independent Manager and of counsel to the Independent Manager due pursuant to the Independent Manager Engagement Letter, (iv) the fees, expenses and charges of any Account Bank in connection with the Reserve Account, Operating Account or Collection Account, (v) the fees and out-of-pocket expenses of Borrower incurred after the Closing Date in connection with the transactions contemplated by the Transaction Documents, and (vi) any expenses incurred in connection with the exercise of audit rights at the direction of Administrative Agent pursuant to Section 8.03(d) of this Agreement or otherwise by the Borrower.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above) and any fiscal or regulatory legislation, or official administrative rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“Fee Letter” means, collectively, (i) that certain Fee Letter, dated as of the Closing Date, between Xxxxxx, Borrower and Administrative Agent and (ii) that certain Arranger Fee Letter, dated as of the Closing Date, between Borrower and ORCA I LLC.
“Financial Statements” means as of the Closing Date, (a) the audited financial statements of Parent and its Subsidiaries, for the fiscal years ended December 31, 2021 and December 31, 2022, consisting of balance sheets and the related consolidated statements of income, stockholders’ equity and cash flows for such fiscal year, and (b) the financial statements of Parent and its Subsidiaries for the fiscal
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quarter ended September 30, 2023, consisting of balance sheets and the related consolidated statements of income, stockholders’ equity and cash flows for such fiscal quarter.
“Fixed Interest” means interest with respect to the Term Loan, accruing with respect to the outstanding principal balance thereof at a rate per annum equal to 9.875%.
“Foreign Lender” means any Lender which is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“Funding Notice” means a written notice substantially in the form of Exhibit B.
“GAAP” means the generally accepted accounting principles in the United States of America in effect from time to time; provided, that in the event such principles change after the Closing Date in a manner which affects compliance with this Agreement by Borrower (including without limitation in the determination of Commercial Payments), such change shall be ignored for the purpose of determining such compliance.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, government.
“Guarantee” means, as to any Person: (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part); or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person.
“Included Commercial Payments” means, with respect to each Semi-Annual Period, commencing with the Semi-Annual Period ending December 31, 2023, the Commercial Payments received in respect of such Semi-Annual Period.
“Indebtedness” with respect to any Person means (i) all indebtedness pursuant to an agreement or instrument involving or evidencing money borrowed, the advance of credit, a conditional sale or a transfer with recourse or with an obligation to repurchase (but excluding trade credit and accounts payable in the ordinary course of business), (ii) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments (iii) all capitalized lease obligations, (iv) all obligations with respect to Disqualified Capital Stock, (v) all indebtedness of a third party secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on assets owned or acquired by such Person, whether or not the indebtedness secured thereby has been assumed (but only to the extent of such Lien), (vi) net amounts owing pursuant to an interest rate protection agreement, foreign currency exchange agreement or other hedging arrangement, (vii) all reimbursement obligations under letters of credit issued for the account of such Person, and (viii) all Guarantees with respect to Indebtedness
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of the types specified in clauses (i) through (vii) above of another Person. For the avoidance of doubt, the Indebtedness of any Person shall include the Indebtedness of any other entity to the extent such Person is directly liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages, penalties, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened by any Person whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and whether or not such Indemnitee is required by Applicable Law to be involved therein, and any fees or expenses actually incurred by Indemnitees in enforcing the indemnity provided herein), whether direct, indirect or consequential, whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations), on common law or equitable cause or on contract or otherwise, imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby (including any enforcement of any of the Loan Documents (including any sale of, collection from, or other realization upon any of the Collateral)).
“Indemnified Taxes” means all (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower under any Loan Documents and (ii) to the extent not otherwise described in (i), Other Taxes.
“Indemnitee” means each Lender and its Affiliates and their respective officers, partners, directors, trustees, employees, agents and controlling Persons.
“Independent Manager” has the meaning given the Limited Liability Company Agreement.
“Independent Manager Engagement Letter” means that certain engagement letter, by and between CT Corporation Staffing, Inc., a Delaware corporation and Borrower, as in effect on the date hereof.
“Initial Funding Date” means the Closing Date.
“Initial Term Loan” means the Term Loan funded on the Initial Funding Date pursuant to Section 2.01(a)(i).
“Initial Term Loan Commitment” means the commitment of a Lender to make or otherwise fund the Initial Term Loan and “Initial Term Loan Commitments” means such commitments of all such Lenders in the aggregate. The amount of each Lender’s Initial Term Loan Commitment, if any, is set forth on Appendix A or in the applicable Assignment and Acceptance, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Initial Term Loan Commitments as of the Closing Date is $130,000,000.
“Insolvency Event” means the occurrence of any of the following with respect to any Transaction Party:
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(ii)such Transaction Party shall (A) voluntarily commence any proceeding or file any petition seeking relief under any Bankruptcy Law now or hereafter in effect, (B) apply for the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official itself or for a substantial part of its property, (C) fail to contest in a timely and appropriate manner any proceeding or the filing of any petition described in clause (i) of this definition, (D) file an answer admitting the material allegations of a petition filed against it in any proceeding described in clause (i) of this definition, (E) make a general assignment for the benefit of creditors or (F) wind up or liquidate (except as permitted under this Agreement);
(iii)such Transaction Party shall take any action in furtherance of or for the purpose of effecting, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i) or (ii) of this definition; or
(iv)such Transaction Party shall become unable, admit in writing its inability, or fail generally, to pay its debts as they become due.
“Interest Payment Date” means, for each applicable Semi-Annual Period, each of March 31 and September 30, or if any such day is not a Business Day, on the next succeeding Business Day, beginning on March 31, 2024.
“Interest Reserve Amount” means $[***].
“Knowledge” means, with respect to any Transaction Party, the actual knowledge, after due inquiry, of the Chief Executive Officer, Chief Financial Officer, Chief Investment Officer, General Counsel or President of any such Transaction Party, or to the extent such officer does not exist, the actual knowledge of another person with similar responsibility, regardless of title, of any Transaction Party, respectively, relating to a particular matter; provided, however, that a person charged with responsibility for the aspect of the business relevant or related to the matter at issue shall be deemed to have knowledge of a particular matter if, in the prudent exercise of his or her duties and responsibilities in the ordinary course of business, such person should have known of such matter.
“Law” means any federal, state, local or foreign law, including common law, and any regulation, rule, requirement, policy, judgment, order, writ, decree, ruling, award, approval, authorization, consent, license, waiver, variance, guideline or permit of, or any agreement with, any Governmental Authority.
“Lender” means each lender listed on the signature pages hereto as a Lender, and any other Person that becomes a party hereto pursuant to an Assignment and Acceptance other than any Person that ceases to be a party hereto pursuant to any Assignment and Acceptance.
“Lender Expenses” means (a) all reasonable and documented out-of-pocket costs and expenses of preparation, negotiation, execution and administration of the Loan Documents and any consents, amendments, waivers or other modifications thereto incurred by the Administrative Agent and/or the Lenders; (b) all the reasonable and documented fees, expenses and disbursements of counsel (limited to one (1) counsel for each relevant jurisdiction (as determined by the Administrative Agent), other then in the case of conflicts) to the Administrative Agent and the Lenders in connection with the negotiation,
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preparation, execution and administration of the Loan Documents and any consents, amendments, waivers or other modifications thereto and any other documents or matters requested by Borrower; (c) all the actual out-of-pocket costs and reasonable expenses of creating and perfecting Liens in favor of the Administrative Agent including filing and recording fees, out-of-pocket expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums and reasonable and documented fees, expenses and disbursements of counsel to the Administrative Agent; and (d) after the occurrence of an Event of Default, all costs and expenses, including reasonable and documented attorneys’ fees and costs of settlement, incurred by the Administrative Agent and/or the Lenders in enforcing any Obligations of or in collecting any payments due from Borrower hereunder or under the other Loan Documents by reason of such Event of Default (including in connection with the sale of, collection from, or other realization upon any of the Collateral or in connection with any refinancing or restructuring of the Obligations in the nature of a “work out” or pursuant to any insolvency or bankruptcy cases or proceedings).
“Lender Register” has the meaning set forth in Section 13.01(e).
“Lien” means any mortgage or deed of trust, pledge, hypothecation, lien, charge, attachment, set-off, encumbrance or other security interest in the nature thereof (including any conditional sale agreement, equipment trust agreement or other title retention agreement, a lease with substantially the same economic effect as any such agreement or a transfer or other restriction) or other encumbrance, right or claim of any nature whatsoever.
“Limited Liability Company Agreement” means the Amended and Restated Limited Liability Company Agreement of Borrower, dated as of the Closing Date.
“Loan Documents” means this Agreement, each Fee Letter, the Security Agreement, the Pledge Agreement, the Sale Agreement, the Bill of Sale, each Control Agreement, each Payment Date Distribution Report, and all other documents (excluding, for the avoidance of doubt, any Warrant and any document, certificate or writing delivered in connection therewith) delivered in connection therewith.
“Loan Party” means each of Borrower and Company.
“Material Adverse Effect” means (a) an Insolvency Event, (b) a material adverse change in the business, operations, properties, results of operations or financial condition of Borrower, taken as a whole; (c) a material adverse effect on the validity or enforceability of the Loan Documents taken as a whole or any material provision hereof or thereof; (d) a material adverse effect on the ability of any Loan Party to consummate the transactions contemplated by the Loan Documents, or on the ability of any Loan Party to perform its obligations under the Loan Documents to which it is a party; (e) a material adverse effect on the rights or remedies of Administrative Agent or the Lenders under any of the Loan Documents, taken as a whole; or (f) an adverse effect in any material respect on any of the timing, amount or duration of (i) the Commercial Payments or the Commercial Payment Interest or (ii) the right of Administrative Agent to receive payments based on the Commercial Payments or the Commercial Payment Interest.
“Material Contract” means, collectively, any Contract to which Borrower or Company, as the case may be in the context in which used, is a party or any of the respective assets or properties of Borrower or Company are bound or committed (other than the Transaction Documents) and solely in the case of Company, for which any breach, violation, nonperformance or early cancellation could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Material Contracts as of the date hereof are identified on Schedule 1.01(c).
“Material Contract Counterparty” means a counterparty to any Material Contract.
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“Maturity Date” means the earlier of (i) the Scheduled Maturity Date and (ii) the date of satisfaction in full of the Term Loan.
“Maximum Accrual” has the meaning set forth in Section 3.02(a)(v).
“Maximum Lawful Rate” means the highest rate of interest permissible under Applicable Law.
“Notice and Instruction Letters” has the meaning set forth in the Sale Agreement.
“Notice of Prepayment” means a written notice of prepayment, in the form of Exhibit C hereto or such other form as approved by the Administrative Agent.
“Notices” means, collectively, notices, consents, approvals, reports, designations, requests, waivers, elections and other communications.
“Obligations” means, without duplication, the Term Loan, Fixed Interest and all present and future Indebtedness, taxes, liabilities, obligations, covenants, duties, and debts, owing by Borrower to Lender, arising under or pursuant to the Loan Documents, including all principal, interest, premium, charges, expenses, fees, Erroneous Payment Subrogation Rights and any other sums chargeable to Borrower hereunder and under the other Loan Documents (and including any interest, fees and other charges that would accrue but for the filing of a bankruptcy action with respect to Borrower, whether or not such claim is allowed in such bankruptcy action).
“Operating Account” means that certain deposit account ending in [***] established and maintained by Borrower at the Initial Account Bank, subject to a Springing Account Control Agreement, solely for the purpose of holding the Expense Reserve Amount, holding the proceeds of capital contributions from the Company and making disbursements of the same and any successor Operating Account entered into in accordance with Section 4.03.
“Organizational Document” means, with respect to any Person, (i) in the case of any corporation, the certificate of incorporation and by-laws (or similar documents) of such Person, (ii) in the case of any limited liability company, the certificate of formation and operating agreement (or similar documents) of such Person, (iii) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar documents) of such Person, (iv) in the case of any general partnership, the partnership agreement (or similar document) of such Person, and (v) in any other case, the functional equivalent of the foregoing. For the avoidance of doubt, the Organization Documents of Borrower include the (i) Limited Liability Company Agreement and (ii) the Management Agreement executed in connection therewith.
“Other Connection Taxes” means, with respect to any Lender, Taxes imposed as a result of a present or former connection between such Lender and the jurisdiction imposing such Tax (other than connections arising from such Xxxxxx having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in the Term Loan, commitment or Loan Document).
“Other Taxes” has the meaning set forth in Section 5.03.
“Parent” means XOMA Corporation, a Delaware corporation and its successors reasonably consented to by the Administrative Agent.
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“Participant Register” has the meaning set forth in Section 13.01(e).
“Party” and “Parties” means Administrative Agent, the Lenders and Borrower, individually and collectively.
“Patriot Act” means the USA Patriot Act, Public Law No. 107-56.
“Payment Account” means such account of Administrative Agent maintained at such banking institution as Administrative Agent may specify in its discretion from time to time in writing to Borrower at least five (5) Business Day prior to any Interest Payment Date or other date on which payments are to be made to pursuant to the Loan Documents.
“Payment Date Distribution Report” means any Payment Date Distribution Report, in the form of Exhibit D hereto.
“Payment in Full” means the payment in full in good funds of the Term Loan and other Obligations (other than contingent indemnification obligations for which no claims have been made).
“Payments” means due and owing payments of Amortization Payments and Fixed Interest (each under Section 4.05 hereof), including, in each case any default, additional interest or prepayment premium charged hereunder.
“Permitted Liens” means:
“Person” means any natural person, firm, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or any other legal entity, including public bodies, whether acting in an individual, fiduciary or other capacity.
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“Plan Assets” means assets of any (i) Employee Benefit Plan subject to the fiduciary responsibility provisions of Title I of ERISA, (ii) plan (as defined in Section 4975(e)(1) of the Code) subject to Section 4975 of the Code or (iii) entity whose underlying assets include assets of any such employee benefit plan or plan by reason of the investment by an employee benefit plan or plan in such entity.
“Pledge Agreement” means the Pledge and Security Agreement, dated as of the Closing Date, between Company and Administrative Agent pursuant to which the Capital Stock of Borrower is pledged to Administrative Agent, as supplemented by any amendments or supplements thereto.
“Principal Amount” means, as to each Term Loan, as of any date of determination, and without duplication, the amount equal to the sum of: (i) the original amount of such Term Loan, plus, (ii) any Accreted Principal accrued as of such date, minus, (iii) any payment in respect of principal as provided for in Section 3.01, 3.02 or 4.05.
“Pro Rata Share” means, with respect to:
(a)(i) a Lender’s obligation to make the Initial Term Loan, the percentage obtained by dividing (A) such Lender’s Initial Term Loan Commitment by (B) the Total Initial Term Loan Commitment and (ii) a Lender’s obligation to make a Delayed Draw Term Loan, the percentage obtained by dividing (A) such Lender’s Delayed Draw Term Loan Commitment by (B) the aggregate amount of the Lenders’ Delayed Draw Term Loan Commitments;
(b)a Lender’s right to receive payments of interest, fees and principal with respect to a Term Loan, the percentage obtained by dividing (i) the aggregate unpaid principal amount of such Lender’s portion of the Term Loan, by (ii) the aggregate unpaid principal amount of the Term Loan; and
(c)all other matters, the percentage obtained by dividing (i) the sum of such Xxxxxx’s Delayed Draw Term Loan Commitment and the unpaid principal amount of such Xxxxxx’s portion of the Term Loan, by (ii) the sum of the Total Delayed Draw Term Loan Commitment and the aggregate unpaid principal amount of the Term Loan.
“Proceeding” means an action or proceeding brought against a Party as a defendant, for purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby.
“Purpose” has the meaning set forth in Section 12.17(a).
“Register” means a record of ownership in which Borrower registers by book entry the interests (including any rights to receive payment hereunder) of each Lender in the Term Loan and any assignment of any such interest, obligation or right.
“Regulatory Change” means (i) the adoption after the date hereof (or with respect to any Lender that becomes a Lender after the date hereof, after the date such Lender becomes a Lender) of any applicable law, rule or regulation or any change therein after the date hereof, or (ii) any change after the date hereof in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, either generally or as effected through compliance with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency.
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“Representative” means, with respect to any Person, directors, officers, employees, agents, co-investors, advisors, potential investors, underwriters, rating agencies, permitted assignees, sources of financing and trustees of such Person.
“Required Lenders” means (i) at any time (other than when the Blue Owl Lenders constitute the Required Lenders pursuant to clause (ii) below) when there are three (3) or fewer Lenders, all Lenders and (ii) at all other times, Lenders whose Pro Rata Share (calculated in accordance with clause (c) of the definition thereof) aggregate at least 50.1%.
“Reserve Account” means that certain deposit account ending in [***] established and maintained by Borrower at the Initial Account Bank, subject to a Blocked Account Control Agreement, solely for the purpose of holding the Interest Reserve Amount and the Administrative Fee Escrow Amount, and/or any successor Reserve Account entered into in accordance with Section 4.03.
“Roche” has the meaning given in the Affitech Assignment Agreement (together with any successors or permitted assigns of Roche pursuant to the Affitech Assignment Agreement).
“Roche APA” has the meaning set forth in the Affitech Assignment Agreement.
“Sale” means the sale, transfer, assignment, contribution and conveyance of the Transferred Assets pursuant to the Sale Agreement.
“Sale Agreement” means the Sale, Contribution and Servicing Agreement, dated as of the Closing Date, between Parent, Company and Borrower.
“Scheduled Maturity Date” means December 15, 2038.
“SEC” means the United States Securities and Exchange Commission.
“Seller Event of Default” has the meaning set forth in the Sale Agreement.
“Security Agreement” means the Security Agreement, dated as of the Closing Date, between Administrative Agent and Borrower, securing the Obligations of Borrower hereunder and the other Loan Documents (other than the Warrant), as supplemented by any amendments or supplements thereto.
“Semi-Annual Interest Shortfall” has the meaning set forth in Section 4.05(a).
“Semi-Annual Period” means each six month period commencing on January 1 and July 1 of each year.
“Senior Officer” means any President, Vice President, Secretary, Treasurer, Chief Executive Officer, Chief Financial Officer, or Chief Investment Officer.
“Servicer” has the meaning set forth in the Sale Agreement.
“Servicing Fee” has the meaning set forth in the Sale Agreement.
“Set-off” means any right of set off, rescission, counterclaim, reduction, deduction or defense.
“Springing Account Control Agreement” means any agreement entered into by the Account Bank, Borrower and the Administrative Agent, in the form and substance reasonably satisfactory
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to Administrative Agent (it being understood that the form attached hereto as Exhibit H is satisfactory to the Administrative Agent), pursuant to which, among other things, Administrative Agent shall have control over the Collection Account and Operating Account identified therein (within the meaning of Section 9-104 of the UCC), which such form, for the avoidance of doubt, shall provide for “springing” or “shifting control”.
“Subsidiary” means, with respect to any Person, at any time, any entity of which more than fifty percent (50%) of the outstanding voting stock or other equity interest entitled ordinarily to vote in the election of the directors or other governing body (however designated) is at the time beneficially owned or controlled directly or indirectly by such Person, by one or more such entities or by such Person and one or more such entities.
“Surviving Person” means, with respect to any Person involved in or that makes any disposition, the Person formed by or surviving such disposition or the Person to which such disposition is made.
“Taxes” means all present and future taxes, levies, duties, imposts, deductions, charges, fees or withholdings (including backup withholdings), and all interest, penalties and additions to tax with respect thereto, that are imposed by any Governmental Authority.
“Term Loan” means, collectively, the Initial Term Loan and each Delayed Draw Term Loan (together with all Accreted Principal on any such Term Loan).
“Term Loan Commitments” means, collectively, the Initial Term Loan Commitments and the Delayed Draw Term Loan Commitments.
“Third Party” means any Person other than Borrower or its Affiliates.
“Total Delayed Draw Term Loan Commitment” means the sum of the amounts of the Lenders’ Delayed Draw Term Loan Commitments.
“Total Initial Term Loan Commitment” means the sum of the amounts of the Lenders’ Initial Term Loan Commitments.
“Transaction Documents” means the Loan Documents and the Organizational Documents.
“Transaction Parties” means, collectively, Parent, Company and Borrower.
“Transferred Assets” has the meaning set forth in the Sale Agreement.
“U.S.” means the United States of America.
“UCC” means the Uniform Commercial Code as in effect from time to time in New York; provided, that, if, with respect to any financing statement or by reason of any provisions of Applicable Law, the perfection or the effect of perfection or non-perfection of the security interest or any portion thereof granted pursuant to the Loan Documents is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New York, then “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of this Agreement and any financing statement relating to such perfection or effect of perfection or non-perfection.
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“Warrant” means, collectively, each Warrant to Purchase Stock set forth on Schedule 1.01(b).
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Borrower may make only one borrowing under the Initial Term Loan Commitment, which shall be on the Initial Funding Date, and may make only one borrowing under the Delayed Draw Term Loan Commitment. Any amount borrowed under this Section 2.01(a) and subsequently repaid or prepaid may not be reborrowed. Each Lender’s Initial Term Loan Commitment and Delayed Draw Term Loan Commitment shall terminate immediately and without further action on the Credit Date on which such Lender funds Initial Term Loans or Delayed Draw Term Loans, respectively, after giving effect to the funding of such Term Loans on such Credit Date.
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and the result of any of the foregoing shall be to reduce the rate of return on the capital of Lender as a consequence of its obligations hereunder or arising in connection herewith to a level below that which Xxxxxx could have achieved but for such introduction, change or compliance (taking into consideration the policies of Lender with respect to capital adequacy) by an amount deemed by Lender to be material, then from time to time, on the first Interest Payment Date occurring at least thirty (30) days after demand by Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a description of the computation of such demand), Borrower shall pay directly to Lender such additional amount or amounts as will compensate Lender for such reduction. Lender will take such actions reasonably requested by Xxxxxxxx, at the expense of Borrower, if such actions will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of Xxxxxx, be otherwise disadvantageous to it or inconsistent with its internal policies and procedures. In no event will Lender be expected or required to
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monitor the occurrence of any of the events or contingencies described in this Section 3.03(a). Notwithstanding the foregoing, in no event shall Borrower be required to compensate Lender pursuant to this Section 3.03 for any amounts under this Section 3.03 incurred more than one hundred and eighty (180) days prior to the date that Xxxxxx notifies Borrower of such amount and of Xxxxxx’s intention to claim compensation therefor.
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For purposes of this Agreement, any reference to the “Operating Account,” or the Springing Account Control Agreement entered into in connection therewith shall refer to such replacement Operating Account and Springing Account Control Agreement or Account Bank, as the context require.
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For purposes of this Agreement, any reference to the “Collection Account,” or the Springing Account Control Agreement entered into in connection therewith shall refer to such replacement Collection Account and Springing Account Control Agreement or Account Bank, as the context requires.
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If any amount payable by Xxxxxxxx to Administrative Agent hereunder is not paid (or accreted in accordance with Section 3.01(c)) when due (whether at stated maturity, by acceleration or otherwise), interest shall accrue on any such unpaid amounts, both before and after judgment during the period from and including the applicable due date, to but excluding the day the overdue amount is paid in full, at a rate per annum equal to the Default Rate. Interest accruing under this Section 4.06 shall be payable on demand of Administrative Agent acting at the direction of the Required Lenders.
For the avoidance of doubt, any Accreted Principal shall also accrue interest at the Default Rate in the event that Fixed Interest that is not paid in cash on the date due but that is added to the Principal Amount of the Term Loan as Accreted Principal in accordance with Section 3.01(c) shall accrue Fixed Interest from the date at which it is incorporated as Accreted Principal and shall thereafter accrue interest at the Default Rate in the event that the Principal Amount of the Term Loan generally bears interest at the Default Rate.
Borrower shall promptly reimburse Administrative Agent and each Lender on demand for all Lender Expenses.
Notwithstanding anything to the contrary contained herein, any payment stated to be due hereunder on a given day in a specified month shall be made or shall end (as the case may be), (i) if there is no such given day or corresponding day, on the last Business Day of such month or (ii) if such given day or corresponding day is not a Business Day, on the next succeeding Business Day.
Each payment by Borrower under this Agreement and the Fee Letter shall be made without setoff, deduction or counterclaim. Administrative Agent and each Lender shall have the right to set off any and all amounts owed by Borrower under this Agreement as provided in Section 10.03.
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Within thirty (30) days after the date of any payment of Taxes by Borrower pursuant to this Article V, Borrower shall furnish to Administrative Agent the original or a certified copy of a receipt evidencing payment thereof or other evidence reasonably satisfactory to Administrative Agent.
Borrower shall promptly pay any registration, transfer, stamp or documentary, recording or similar Taxes arising from any payment made under any Loan Document, or from the execution, delivery, performance, enforcement or registration of, the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes with respect to an assignment by a Lender that are Other Connection Taxes (all such non-excluded Taxes, “Other Taxes”), to the relevant Governmental Authority in accordance with Applicable Law.
If Administrative Agent or any Lender pays any Indemnified Taxes that Borrower is required to pay pursuant to this Article V, Borrower shall indemnify Administrative Agent or such Lender on demand in full (including any Indemnified Taxes imposed by any jurisdiction on amounts payable under this Section 5.04), whether or not such Taxes were correctly or legally asserted. A certificate of Administrative Agent or any affected Lender claiming any compensation under this Section 5.04, setting forth the amounts to be paid thereunder and delivered to Borrower, shall be conclusive, binding and final for all purposes, absent manifest error.
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For U.S. federal income and applicable state and local income tax purposes, the Parties agree to the following:
Each Party agrees not to take any position that is inconsistent with the intended tax treatment set forth in this Section 5.06 on any Tax return or in any audit or other administrative or judicial proceeding unless (i) each other Party has consented to such actions; or (ii) as a result of a material change in Applicable Law following the date of this Agreement, counsel for such Party has advised it in writing that taking such a position would, notwithstanding compliance with all applicable reporting requirements and disclosure obligations, subject such Party to penalties under the Code.
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If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Article V (including by the payment of additional amounts pursuant to this Article V), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Article V with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 5.07 (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 5.07, in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 5.07 the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 5.07 shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
The effectiveness of this Agreement, and the obligation of each Lender to make a Credit Extension on the Initial Funding Date, is subject to the satisfaction of the following conditions on or before the Closing Date:
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The obligation of each Lender to make the Initial Term Loan on the Initial Funding Date or any other Term Loan on any date following the Closing Date is subject to the satisfaction or waiver of the following conditions precedent:
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In order to induce Administrative Agent and Xxxxxxx to enter into this Agreement and to make each Credit Extension to be made thereby, Borrower represents and warrants to Administrative Agent and Lender, on the Closing Date and on each Credit Date, that the following statements are true and correct:
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All representations and warranties by Xxxxxxxx, whether with respect to Borrower, Company, any respective Affiliate or any asset or property, contained in this Agreement shall survive the execution, delivery and acceptance thereof by the Parties and the closing of the transactions described in this Agreement and continue in effect until payment of all amounts due to Lender under the Loan Documents.
Borrower covenants and agrees with Xxxxxx that, until Payment in Full:
Borrower shall at all times (a) preserve, renew and maintain in full force and effect its legal existence (except as otherwise permitted pursuant to Section 9.02(a) hereof) and good standing as a
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corporation under the Laws of the jurisdiction of its organization; (b) not change its name or its chief executive office as set forth herein without having given Lender the notice thereof required under Section 8.13; and (c) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
Borrower shall use the net proceeds of the Term Loan received by it to (i) acquire assets from Company pursuant to the Sale Agreement, (ii) pay the fees and Lender Expenses due pursuant to the Loan Documents and (iii) fund the Reserve Account.
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Borrower shall keep proper books, records and accounts in which entries in conformity with sound business practices and all requirements of Law applicable to it shall be made of all dealings and transactions in relation to its business, assets and activities and as shall permit the preparation of the consolidated financial statements of Borrower in accordance with GAAP.
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Borrower shall obtain, make and keep in full force and effect all authorizations from and registrations with Governmental Authorities that may be required for the validity or enforceability against Borrower of this Agreement and the other Loan Documents to which it is a party.
Borrower shall not take any action that causes its assets to be deemed to be Plan Assets at any time.
Borrower shall, promptly after an officer becomes aware thereof, give written Notice to Administrative Agent of:
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Borrower shall pay all material Taxes imposed on or in respect of Xxxxxxxx’s income or assets that are due and payable and before any Lien on any of its assets exists as a result of nonpayment except as provided in Section 9.03 hereof and except for Taxes contested in good faith by appropriate proceedings and for which adequate reserves are maintained in accordance with GAAP.
Notwithstanding any other provision of this Agreement or the other Loan Documents, if at any time the rate of interest payable by any Person under the Loan Documents exceeds the Maximum Lawful Rate, then, so long as the Maximum Lawful Rate would be exceeded, such rate of interest shall be equal to the Maximum Lawful Rate. If at any time thereafter the rate of interest so payable is less than the Maximum Lawful Rate, such Person shall continue to pay interest at the Maximum Lawful Rate until such time as the total interest received from such Person is equal to the total interest that would have been received had applicable law not limited the interest rate so payable. In no event shall the total interest received by Lender under this Agreement and the other Loan Documents exceed the amount which such Lender could lawfully have received, had the interest due been calculated from the Closing Date at the Maximum Lawful Rate. Without limiting the foregoing, Borrower will not at any time, to the extent that it may lawfully not do so, insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or other law that would prohibit or forgive Borrower from paying all or any portion of the principal of or premium, if any, or interest on the Term Loan as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Agreement; and, to the extent that it may lawfully do so, Borrower hereby expressly waives all benefit or advantage of any such law and expressly agrees that it will not hinder, delay or impede the execution of any power herein granted to Lender, but will suffer and permit the execution of every such power as though no such law had been enacted.
Borrower shall promptly, upon the reasonable request of Administrative Agent, at Borrower’s expense, (a) execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded, in an appropriate governmental office, any document or instrument supplemental to or confirmatory of the Loan Documents or otherwise deemed by Lender reasonably necessary or desirable for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except as permitted by the applicable Loan Document, or obtain any consents or waivers as may be necessary or appropriate in connection therewith; (b) deliver or cause to be delivered to Administrative Agent from time to time such other documentation, consents, authorizations, approvals and orders in form and substance reasonably satisfactory to Administrative Agent and Administrative Agent shall reasonably deem necessary to perfect or maintain the Liens on the Collateral pursuant to the Loan Documents; and (c) upon the exercise by Administrative Agent of any power, right, privilege or remedy pursuant to any Loan Document which requires any consent, approval, registration, qualification or authorization of any Governmental Authority execute and deliver all applications, certifications, instruments and other documents and papers that Lender
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may require. In addition, subject to Section 8.12(b), Borrower shall promptly, at its sole cost and expense, execute and deliver to Administrative Agent such further instruments and documents, and take such further action, as Administrative Agent may, at any time and from time to time, reasonably request in order to carry out the intent and purpose of this Agreement and the other Loan Documents to which it is a party and to establish and protect the rights, interests and remedies created, or intended to be created, in favor of Administrative Agent hereby and thereby.
Borrower shall not effect any change (i) in its legal name, (ii) in the location of its chief executive office, (iii) in its identity or organizational structure, or (iv) in its federal Taxpayer Identification Number or organizational identification number, if any (in each case, including by merging with or into any other entity, reorganizing, dissolving, liquidating, reorganizing or organizing in any other jurisdiction), until (A) it shall have given Administrative Agent not less than ten (10) days prior written notice (in the form of an certificate of a duly authorized officer of Borrower), or such lesser notice period agreed to by Administrative Agent, of its intention so to do, clearly describing such change and providing such other information in connection therewith as Administrative Agent may reasonably request and (B) it shall have taken all action reasonably satisfactory to Administrative Agent to maintain the perfection and priority of the security interest of Administrative Agent in the Collateral, if applicable (subject to the limitations set forth in Section 8.12(b)). Borrower shall not effect any change in its jurisdiction of organization. Xxxxxxxx agrees to provide promptly to Administrative Agent with certified Xxxxxxxx’s Organizational Documents reflecting any of the changes described in the preceding sentence. Xxxxxxxx also agrees to notify promptly Administrative Agent of any change in the location of any office in which it maintains books or records relating to Collateral owned by it or any office or facility at which any portion of Collateral is located (including the establishment of any such new office or facility).
With respect to any Collateral acquired after the Closing Date by Borrower that is not already subject to the Lien created by any of the Loan Documents or specifically excluded from the requirement to be subject to such Lien in the Loan Documents, Borrower shall promptly (and in any event within 30 days after the acquisition thereof) (i) execute and deliver to Administrative Agent such amendments or supplements to the relevant Loan Documents or such other documents as Administrative Agent shall deem necessary or advisable to grant for its benefit, a Lien on such property subject to no Liens other than Permitted Liens, and (ii) take all actions necessary to cause such Lien to be duly perfected in accordance with all applicable requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by Administrative Agent. Borrower shall otherwise take such actions and execute and/or deliver to Lender such documents as Administrative Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Security Agreement on such after-acquired Collateral.
Borrower covenants and agrees with Xxxxxx that, until Payment in Full:
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Borrower shall not create or suffer to exist any Lien on or with respect to any of its properties or assets, except for Permitted Liens.
Neither Borrower nor any of its Subsidiaries shall be or become an investment company subject to registration under the Investment Company Act of 1940.
Borrower shall not, directly or indirectly, incur or suffer to exist any Indebtedness except for:
Borrower shall not, directly or indirectly, enter into any transaction or series of related transactions or participate in any arrangement (including any purchase, sale, lease or exchange of assets or
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the rendering of any service) with any Controlled Affiliate other than the Transaction Documents or in the ordinary course of business of Borrower upon fair and reasonable terms no less favorable to Borrower than it would obtain in a comparable arm’s-length transaction with a non-Controlled Affiliate.
Borrower will not, directly or indirectly, make any dividends or other distributions to holders of its Capital Stock.
Xxxxxxxx acknowledges and agrees that damages may be difficult to establish and Administrative Agent and Xxxxxxx will have no adequate remedy at law if Borrower fails to enforce the obligations under Sections 4.01 and 4.03 of the Sale Agreement and Section 2.5 of the Affitech Assignment Agreement. In such event, Xxxxxxxx agrees that the other Parties shall have the right, in addition to any other rights it may have (whether at law or in equity), to seek specific performance of this Agreement, Sections 4.01 and 4.03 of the Sale Agreement, Section 2.5 of the Affitech Assignment Agreement and to pursue any other equitable remedies including an injunction, without being required to prove actual damages or post any bond. In furtherance of the foregoing, Borrower hereby designates, makes, constitutes and appoints Administrative Agent, and each of its designees or agents, as its true and lawful proxy and attorney-in-fact (coupled with an interest), irrevocably and with power of substitution, and with authority to take any and all appropriate action and to execute any and all documents and instruments that may be necessary to cause this Agreement, Sections 4.01 and 4.03 of the Sale Agreement, and/or Section 2.5 of the Affitech Assignment Agreement to be specifically performed by Borrower and each Covered Agreement Counterparty or to seek an injunction against any pending or proposed violation of this Agreement, Sections 4.01 and 4.03 of the Sale Agreement and/or Section 2.5 of the Affitech Assignment Agreement.
If, notwithstanding the foregoing and the prohibition contained in Section 2.5 of the Affitech Assignment Agreement, Borrower receives any Final Payment, Borrower hereby agrees to: (i) hold such amount in trust for the Lenders and (ii) deposit such amount in the Collection Account.
THE POWER OF ATTORNEY AND PROXY GRANTED IN THIS SECTION ARE COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL PAYMENT IN FULL. THIS POWER OF
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ATTORNEY IS CONFERRED ON THE ADMINISTRATIVE AGENT SOLELY, DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, TO PROTECT, PRESERVE AND REALIZE UPON ITS RIGHTS UNDER THIS AGREEMENT AND SHALL NOT IMPOSE ANY DUTY UPON THE ADMINISTRATIVE AGENT TO EXERCISE ANY SUCH POWERS.
If one or more of Events of Default occurs and is continuing, Administrative Agent shall be entitled to the remedies set forth in Section 10.02.
If any Event of Default shall occur and be continuing, Administrative Agent may, or at the direction of the Required Lenders shall, by Notice to Borrower, (a) exercise all rights and remedies available to Lender hereunder and under the other Loan Documents and applicable law (which exercise may be determined in its sole discretion and which such exercise shall not constitute an election of remedies), including enforcement of the security interests created thereby, (b) declare the Term Loan, all interest thereon and all other Obligations to be immediately due and payable, whereupon all such amounts shall become immediately due and payable, all without diligence, presentment, demand of payment, protest or further notice of any kind, which are expressly waived by Borrower and (c) declare the obligations of Lender hereunder to be terminated, whereupon such obligations shall terminate; provided, however, that if any event of any kind referred to in clause (i) of the definition of “Event of Default” herein occurs, the obligations of Lender hereunder shall immediately terminate, all amounts payable hereunder by Xxxxxxxx shall become immediately due and payable and Administrative Agent shall be entitled to exercise rights and remedies under the Loan Documents and applicable law without diligence, presentment, demand of payment, protest or notice of any kind (including any notice by Administrative Agent or the Required Lenders of a declaration requiring prepayment of the Term Loan under Section 3.02(a), should Administrative Agent or Required Lenders so elect), all of which are hereby expressly waived by Borrower. Each Notice delivered pursuant to this Section 10.02 shall be effective when sent.
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The rights provided for herein are cumulative and are not exclusive of any other rights, powers, privileges or remedies provided by Law.
If Administrative Agent or any Lender is entitled to indemnification under this Article XI with respect to any action or proceeding brought by a third party that is also brought against Xxxxxxxx, Borrower shall be entitled to assume the defense of any such action or proceeding with counsel reasonably satisfactory to Administrative Agent and/or such Lender. Upon assumption by Borrower of the defense of any such action or proceeding, Administrative Agent and/or Lender, as applicable, shall have the right to participate in such action or proceeding and to retain its own counsel but Borrower shall not be liable for any legal expenses of other counsel subsequently incurred by such Party in connection with the defense thereof unless (i) Borrower has otherwise agreed to pay such fees and expenses, (ii) Borrower shall have failed to employ counsel reasonably satisfactory to Administrative Agent and/or Lender, as applicable, in a timely manner or (iii) Administrative Agent and/or Lender, as applicable, shall have been advised by counsel that there are actual or potential conflicting interests between Borrower and Administrative Agent or Lender, as applicable, including situations in which there are one or more legal defenses available to Administrative Agent and/or Lender, as applicable, that are different from or additional to those available
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to Borrower; provided, however, that Borrower shall not, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for Administrative Agent and/or Lender, as applicable, except to the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such action or proceeding. Borrower shall not consent to the terms of any compromise or settlement of any action defended by Borrower in accordance with the foregoing without the prior written consent of Administrative Agent and/or Lender, as applicable, unless such compromise or settlement (x) includes an unconditional release of Administrative Agent and/or Lender, as applicable, from all liability arising out of such action and (y) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of Administrative Agent and/or Lender, as applicable. Borrower shall not be required to indemnify Administrative Agent or Lender for any amount paid or payable by Administrative Agent or Lender in the settlement of any action, proceeding or investigation without the written consent of Borrower, which consent shall not be unreasonably withheld, conditioned or delayed.
Each Lender irrevocably authorizes Administrative Agent to take such action on such Xxxxxx’s behalf and to exercise such powers, rights and remedies hereunder and under the other Loan Documents as are specifically delegated or granted to Administrative Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Administrative Agent shall have only those duties and responsibilities that are expressly specified herein and the other Loan Documents. Administrative Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees Administrative Agent shall not have, by reason hereof or any of the other Loan Documents, a fiduciary relationship in respect of any Lender; and nothing herein or any of the other Loan Documents, expressed or implied, is intended to or shall be so construed as to impose upon Administrative Agent any obligations in respect hereof or any of the other Loan Documents except as expressly set forth herein or therein.
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The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, Administrative Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Term Loans, Administrative Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as if it were not performing the duties and functions delegated to it hereunder, and the term “Lender” shall, unless the context clearly otherwise indicates, include Administrative Agent in its individual capacity. Administrative Agent and its Affiliates may accept deposits from, lend money to, own securities of, and generally engage in any kind of banking, trust, financial advisory or other business with Borrower or any of its Affiliates as if it were not performing the duties specified herein, and may accept fees and other consideration from Company for services in connection herewith and otherwise without having to account for the same to Lenders.
EACH LENDER, IN PROPORTION TO ITS PRO RATA SHARE, SEVERALLY AGREES TO INDEMNIFY ADMINISTRATIVE AGENT, ITS AFFILIATES AND ITS RESPECTIVE OFFICERS, PARTNERS, DIRECTORS, TRUSTEES, EMPLOYEES AND AGENTS OF ADMINISTRATIVE AGENT (EACH, AN “INDEMNITEE AGENT PARTY”), TO THE EXTENT THAT SUCH INDEMNITEE AGENT PARTY SHALL NOT HAVE BEEN REIMBURSED BY ANY LOAN PARTY, FOR AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES (INCLUDING COUNSEL FEES AND DISBURSEMENTS) OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST SUCH INDEMNITEE AGENT PARTY IN EXERCISING ITS POWERS, RIGHTS AND REMEDIES OR PERFORMING ITS DUTIES HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS OR
51
OTHERWISE IN ITS CAPACITY AS SUCH INDEMNITEE AGENT PARTY IN ANY WAY RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE AGENT PARTY; PROVIDED, NO LENDER SHALL BE LIABLE FOR ANY PORTION OF SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS RESULTING FROM SUCH INDEMNITEE AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL, NON-APPEALABLE ORDER. IF ANY INDEMNITY FURNISHED TO ANY INDEMNITEE AGENT PARTY FOR ANY PURPOSE SHALL, IN THE OPINION OF SUCH INDEMNITEE AGENT PARTY, BE INSUFFICIENT OR BECOME IMPAIRED, SUCH INDEMNITEE AGENT PARTY MAY CALL FOR ADDITIONAL INDEMNITY AND CEASE, OR NOT COMMENCE, TO DO THE ACTS INDEMNIFIED AGAINST UNTIL SUCH ADDITIONAL INDEMNITY IS FURNISHED; PROVIDED, IN NO EVENT SHALL THIS SENTENCE REQUIRE ANY LENDER TO INDEMNIFY ANY INDEMNITEE AGENT PARTY AGAINST ANY LIABILITY, OBLIGATION, LOSS, DAMAGE, PENALTY, ACTION, JUDGMENT, SUIT, COST, EXPENSE OR DISBURSEMENT IN EXCESS OF SUCH XXXXXX’S PRO RATA SHARE THEREOF; AND PROVIDED FURTHER, THIS SENTENCE SHALL NOT BE DEEMED TO REQUIRE ANY LENDER TO INDEMNIFY ANY INDEMNITEE AGENT PARTY AGAINST ANY LIABILITY, OBLIGATION, LOSS, DAMAGE, PENALTY, ACTION, JUDGMENT, SUIT, COST, EXPENSE OR DISBURSEMENT DESCRIBED IN THE PROVISO IN THE IMMEDIATELY PRECEDING SENTENCE.
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Administrative Agent and each Lender hereby appoints each other Lender as agent and bailee for the purpose of perfection the security interests in and liens upon the Collateral in assets which, in
53
accordance with Article 9 of the UCC, can be perfected only by possession or control (or where the security interest of a secured party with possession or control has priority over the security interest of another secured party) and Administrative Agent and each Lender hereby acknowledges that it holds possession of or otherwise controls any such Collateral for the benefit of the Lenders as secured party. Should any Lender obtain possession or control of any such Collateral, such Lender shall notify Administrative Agent thereof, and, promptly upon Administrative Agent’s request therefore shall deliver such Collateral to Administrative Agent or in accordance with Administrative Agent’s instructions. In addition, Administrative Agent shall also have the power and authority hereunder to appoint such other sub-agents as may be necessary or required under applicable state law or otherwise to perform its duties and enforce its rights with respect to the Collateral and under the Loan Documents. Each Loan Party by its execution and delivery of this Agreement hereby consents to the foregoing.
By becoming a party to this Agreement, each Lender:
In addition to the foregoing: (x) any Lender may from time to time request of Administrative Agent in writing that Administrative Agent provide to such Lender a copy of any report or document provided by Parent or its Subsidiaries to Administrative Agent that has not been contemporaneously provided by Parent or such Subsidiary to such Lender, and, upon receipt of such request, Administrative Agent promptly shall
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provide a copy of same to such Lender, (y) to the extent that Administrative Agent is entitled, under any provision of the Loan Documents, to request additional reports or information from Parent or its Subsidiaries, any Lender may, from time to time, reasonably request Administrative Agent to exercise such right as specified in such Xxxxxx’s notice to Administrative Agent, whereupon Administrative Agent promptly shall request the additional reports or information reasonably specified by such Lender, and, upon receipt thereof from Parent or such Subsidiary, Administrative Agent promptly shall provide a copy of same to such Lender, and (z) any time that Administrative Agent renders to Company a statement regarding the Loan Account, Administrative Agent shall send a copy of such statement to each Lender.
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For the avoidance of doubt, the failure to deliver a notice to Administrative Agent pursuant to this Section 12.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.11(a) or on whether or not an Erroneous Payment has been made.
Each party’s obligations, agreements and waivers under this Section 12.11 shall survive the resignation or replacement of Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
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(e)Administrative Agent, acting solely for this purpose as a non-fiduciary agent of Loan Parties, shall maintain at its office a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of each Lender, and the commitments of, and principal amount (and stated interest) of the Term Loan owing to, such Lender pursuant to the terms hereof (the “Lender Register”). The entries in such Lender Register shall be conclusive, absent manifest error, and Loan Parties, Administrative Agent and Xxxxxxx shall treat each Person whose name is recorded therein pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Such Lender Register shall be available for inspection by Loan Parties and any Lender, at any reasonable time upon reasonable prior notice to Administrative Agent. Each Lender that sells a participation shall, acting solely for this purpose as an agent of Loan Parties maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Obligations (each, a “Participant Register”). The entries in the Participant Registers shall be conclusive, absent manifest error. Each Participant Register shall be available for inspection by Loan Parties and Administrative Agent at any reasonable time upon reasonable prior notice to the applicable Lender; provided, that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person (including Loan Parties) except to the extent that such disclosure is
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necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
All Notices authorized or required to be given pursuant to this Agreement shall be given in writing and either personally delivered to the Party to whom it is given or delivered by an established delivery service by which receipts are given or mailed by registered or certified mail, postage prepaid, or sent by electronic mail with a copy sent on the following Business Day by one of the other methods of giving notice described herein, addressed to the Party at its address listed below:
XRL 1 LLC
0000 Xxxxxx Xxxxxx, Xxxxx 000
Emeryville, CA 94608
Attention:Legal Group
Email:[***]
With a copy (which shall not constitute notice) to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
New York, NY 10166-0193
Attention:Xxx Xxx Xxx
Email:XxXxx@xxxxxxxxxx.xxx
000 Xxxx Xxxxxx, 00xx Floor
New York, NY 10022
Email:[***]
with a copy (which shall not constitute notice) to:
Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, XX, Xxxxx 000
Washington, DC 20004-2400
Attention: Xxxxxxx Xxxxxxx
Email: xxxxxxxx@xxxxxx.xxx
Any Party may change its address for the receipt of Notices at any time by giving Notice thereof to the other Party. Except as otherwise provided herein, any Notice authorized or required to be given by this Agreement shall be effective when received.
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This Agreement, together with the Exhibits and Schedules hereto (which are incorporated herein by reference), and the other Loan Documents constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements (including the Confidentiality Agreement), understandings and negotiations, both written and oral, between the Parties with respect to the subject matter of this Agreement.
No Loan Document or provision thereof may be waived, amended or modified except, in the case of this Agreement, by an agreement or agreements in writing executed by Xxxxxxxx and Lender or, in the case of any other Loan Document, by an agreement or agreements in writing entered into by the parties thereto with the prior written consent of Lender.
No delay on the part of Lender in exercising any power or right hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any power or right hereunder preclude other or further exercise thereof or the exercise of any other power or right. Lender shall not be deemed to have waived any rights hereunder unless such waiver shall be in writing and signed by Xxxxxx.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall nevertheless be given full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree by a court of competent jurisdiction shall remain in full force and effect to the extent not held invalid or unenforceable.
Each determination or calculation by Xxxxxx hereunder shall, in the absence of manifest error, be conclusive and binding on the Parties.
Except as otherwise expressly provided in this Agreement or in any other Loan Documents, the payment and performance of the Obligations shall be fully recourse solely to Borrower and its respective properties and assets.
THIS AGREEMENT AND EACH NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING GENERAL OBLIGATIONS LAW SECTIONS 5-1401 AND 5-1402 BUT OTHERWISE WITHOUT GIVING EFFECT TO LAWS CONCERNING CONFLICT OF LAWS OR CHOICE OF FORUM THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
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Each Party irrevocably submits to the jurisdiction of the courts of the State of New York and of the United States sitting in the State of New York, and of the courts of its own corporate domicile with respect to any and all Proceedings. Each Party irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any Proceeding and any claim that any Proceeding has been brought in an inconvenient forum. Any process or summons for purposes of any Proceeding may be served on Borrower by mailing a copy thereof by registered mail, or a form of mail substantially equivalent thereto, addressed to it at its address as provided for Notices hereunder.
Each Party hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any action, proceeding, claim or counterclaim arising out of or relating to any Transaction Document or the transactions contemplated under any Transaction Document (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO ANY TRANSACTION DOCUMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY HERETO WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.12.
To the extent that Borrower has or hereafter may be entitled to claim or may acquire, for itself or any of its assets, any immunity from suit, jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, or otherwise) with respect to itself or any of its property, Borrower hereby irrevocably waives such immunity in respect of its obligations hereunder to the fullest extent permitted by law.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart of this Agreement.
Except for the Indemnitees referred to in Section 11.01, no Person other than a Party shall have any legal or equitable right, remedy or claim under or in respect of this Agreement.
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The obligations of Borrower contained in Sections 4.05, 4.06, Article V, Article XI and this Section 13.16 shall survive the repayment of the Term Loan and the termination of the other obligations of Borrower hereunder.
Lender hereby notifies Borrower that, consistent with the Patriot Act, regulations promulgated thereunder and under other Applicable Law, Lender’s procedures and customer due diligence standards may require it to obtain, verify and record information that identifies Borrower, including among other things name, address, information regarding Persons with authority or control over Borrower, and other information regarding Borrower, its operations and transactions with Lender. Xxxxxxxx agrees to provide such information and take such actions as are reasonably requested by Xxxxxx in order to assist Lender in maintaining compliance with its procedures, the Patriot Act and any other Applicable Laws.
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the day and year first above written.
| XRL 1 LLC | |
| as Borrower | |
| | |
| By: | |
| Name: | |
| Title: | |
| OR LENDING LLC | |
| as a Lender | |
| | |
| By: | |
| Name: | |
| Title: | |
| OR LENDING II LLC | |
| as a Lender | |
| | |
| By: | |
| Name: | |
| Title: | |
| OR LENDING III LLC | |
| as a Lender | |
| | |
| By: | |
| Name: | |
| Title: | |
| OR LENDING IC LLC | |
| as a Lender | |
| | |
| By: | |
| Name: | |
| Title: | |
| OR TECH LENDING LLC | |
| as a Lender | |
| | |
| By: | |
| Name: | |
| Title: | |
| OR TECH LENDING II LLC | |
| as a Lender | |
| | |
| By: | |
| Name: | |
| Title: | |
| OR TECH LENDING IC LLC | |
| as a Lender | |
| | |
| By: | |
| Name: | |
| Title: | |
APPENDIX A
TO LOAN AGREEMENT
Initial Term Loan Commitment
Lender | Initial Term Loan Commitment | Pro Rata Share |
[***] | | |
Total | $ 130,000,000.00 | 100% |
Delayed Draw Term Loan Commitments
Xxxxxx | Xxxxxxx Draw Term Loan Commitment | Pro Rata Share |
[***] | | |
Total | $ 10,000,000.00 | 100% |
Appendix A
