EXECUTION VERSION CREDIT AGREEMENT Dated as of July 21, 2017 among ROADRUNNER TRANSPORTATION SYSTEMS, INC., as a Borrower and THE SUBSIDIARIES OF ROADRUNNER TRANSPORTATION SYSTEMS, INC. SIGNATORY HERETO AS SUBSIDIARY GUARANTORS, each as a Guarantor,...
EXECUTION VERSION
CREDIT AGREEMENT
Dated as of July 21, 2017
among
ROADRUNNER TRANSPORTATION SYSTEMS, INC.,
as a Borrower
and
THE SUBSIDIARIES OF ROADRUNNER TRANSPORTATION SYSTEMS, INC. SIGNATORY
HERETO AS SUBSIDIARY GUARANTORS,
each as a Guarantor,
and
CERTAIN FINANCIAL INSTITUTIONS,
as Lenders,
and
BMO XXXXXX BANK N.A.,
as Administrative Agent and Swing Line Lender,
and
BMO CAPITAL MARKETS, and
JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers and Joint Book Runners
AmericasActive:9267372.25
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ................................................................. 1
1.01 Defined Terms ............................................................................................................................. 1
1.02 Other Interpretive Provisions..................................................................................................... 51
1.03 Accounting Terms ..................................................................................................................... 51
1.04 Uniform Commercial Code ....................................................................................................... 52
1.05 Rounding ................................................................................................................................... 52
1.06 Times of Day ............................................................................................................................. 52
1.07 Letter of Credit Amounts ........................................................................................................... 52
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS ............................................... 53
2.01 Loan Commitments ................................................................................................................... 53
2.02 Borrowings, Conversions and Continuations of Loans ............................................................. 56
2.03 Letters of Credit ......................................................................................................................... 57
2.04 Swing Line Loans ...................................................................................................................... 64
2.05 Repayment of Loans .................................................................................................................. 66
2.06 Prepayments .............................................................................................................................. 67
2.07 Termination or Reduction of Commitments .............................................................................. 70
2.08 Interest ....................................................................................................................................... 71
2.09 Fees ............................................................................................................................................ 71
2.10 Computation of Interest and Fees .............................................................................................. 72
2.11 Evidence of Debt ....................................................................................................................... 73
2.12 Payments Generally; the Administrative Agent’s Clawback .................................................... 73
2.13 Sharing of Payments by Lenders ............................................................................................... 75
2.14 Settlement Among Lenders ....................................................................................................... 76
2.15 Nature and Extent of Each Borrower’s Liability ....................................................................... 76
2.16 Cash Collateral .......................................................................................................................... 79
2.17 Defaulting Lenders .................................................................................................................... 80
2.18 Increase in Revolving Credit Commitments.............................................................................. 82
2.19 Designation of Subsidiaries as Unrestricted Subsidiaries ......................................................... 84
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY ................................................ 84
3.01 Taxes.......................................................................................................................................... 84
3.02 Illegality ..................................................................................................................................... 88
3.03 Inability to Determine Rates ...................................................................................................... 88
3.04 Increased Costs; Reserves on LIBOR Loans ............................................................................. 88
3.05 Compensation for Losses........................................................................................................... 90
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3.06 Mitigation Obligations; Replacement of Lenders ...................................................................... 91
ARTICLE IV SECURITY AND ADMINISTRATION OF COLLATERAL ..................................... 91
4.01 Security ...................................................................................................................................... 91
4.02 Collateral Administration .......................................................................................................... 91
4.03 After Acquired Property; Further Assurances ........................................................................... 93
4.04 Cash Management ..................................................................................................................... 94
4.05 Information Regarding Certain Collateral ................................................................................. 95
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS ........................................ 96
5.01 Conditions of Initial Credit Extension ....................................................................................... 96
5.02 Conditions to all Credit Extensions ........................................................................................... 98
ARTICLE VI REPRESENTATIONS AND WARRANTIES ............................................................... 99
6.01 Existence, Qualification and Power ........................................................................................... 99
6.02 Authorization; No Contravention .............................................................................................. 99
6.03 Governmental Authorization; Other Consents ........................................................................ 100
6.04 Binding Effect ......................................................................................................................... 100
6.05 Financial Statements; No Material Adverse Effect ................................................................. 100
6.06 Litigation ................................................................................................................................. 100
6.07 No Default ............................................................................................................................... 101
6.08 Ownership of Property; Liens.................................................................................................. 101
6.09 Environmental Compliance ..................................................................................................... 101
6.10 Insurance .................................................................................................................................. 102
6.11 Taxes........................................................................................................................................ 102
6.12 ERISA Compliance ................................................................................................................. 102
6.13 Subsidiaries and Equity Interests ............................................................................................. 103
6.14 Margin Regulations; Investment Company Act ...................................................................... 103
6.15 Disclosure ................................................................................................................................ 103
6.16 Compliance with Laws ............................................................................................................ 104
6.17 Intellectual Property; Licenses, Etc ......................................................................................... 104
6.18 Labor Matters .......................................................................................................................... 104
6.19 Deposit Accounts, Securities Accounts and Commodity Accounts ........................................ 104
6.20 Accounts .................................................................................................................................. 105
6.21 Anti-Terrorism Laws and Foreign Asset Control Regulations ................................................ 106
6.22 Brokers .................................................................................................................................... 107
6.23 Customer and Trade Relations ................................................................................................ 107
6.24 Material Contracts ................................................................................................................... 107
6.25 Casualty ................................................................................................................................... 107
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6.26 Senior Indebtedness ................................................................................................................. 107
6.27 Relations with Vendors and Customers ................................................................................... 107
6.28 Aircraft Parts ........................................................................................................................... 108
6.29 Rolling Stock ........................................................................................................................... 108
6.30 Aircraft Matters. ...................................................................................................................... 108
6.31 No Agency Relationship .......................................................................................................... 109
ARTICLE VII AFFIRMATIVE COVENANTS .................................................................................. 109
7.01 Financial Statements ................................................................................................................ 110
7.02 Borrowing Base Certificate; Other Information ...................................................................... 110
7.03 Notices ..................................................................................................................................... 112
7.04 Payment of Obligations ........................................................................................................... 113
7.05 Preservation of Existence, Etc ................................................................................................. 113
7.06 Maintenance of Properties ....................................................................................................... 114
7.07 Maintenance of Insurance; Condemnation Proceeds ............................................................... 114
7.08 Compliance with Laws ............................................................................................................ 115
7.09 Books and Records .................................................................................................................. 115
7.10 Inspection Rights and Appraisals; Meetings with the Administrative Agent .......................... 115
7.11 Use of Proceeds ....................................................................................................................... 116
7.12 New Subsidiaries ..................................................................................................................... 116
7.13 Compliance with ERISA ......................................................................................................... 117
7.14 Further Assurances .................................................................................................................. 117
7.15 Licenses ................................................................................................................................... 118
7.16 Environmental Laws ................................................................................................................ 118
7.17 Leases, Mortgages and Third-Party Agreements ..................................................................... 118
7.18 Material Contracts ................................................................................................................... 119
7.19 Treasury Management and Other Services .............................................................................. 119
7.20 Freight Payables ...................................................................................................................... 119
7.21 Post-Closing Agreements ........................................................................................................ 119
ARTICLE VIII NEGATIVE COVENANTS ....................................................................................... 120
8.01 Indebtedness ............................................................................................................................ 120
8.02 Liens ........................................................................................................................................ 123
8.03 Investments .............................................................................................................................. 124
8.04 Fundamental Changes.............................................................................................................. 125
8.05 Dispositions ............................................................................................................................. 126
8.06 Restricted Payments ................................................................................................................ 127
8.07 Change in Nature of Business ................................................................................................. 127
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8.08 Transactions with Affiliates ..................................................................................................... 127
8.09 Burdensome Agreements ......................................................................................................... 128
8.10 Use of Proceeds ....................................................................................................................... 128
8.11 Prepayment of Indebtedness; Amendment to Material Agreements ....................................... 128
8.12 Financial Covenant .................................................................................................................. 129
8.13 Creation of New Subsidiaries .................................................................................................. 129
8.14 Securities of Subsidiaries......................................................................................................... 129
8.15 Sale and Leaseback .................................................................................................................. 129
8.16 Organization Documents; Fiscal Year ..................................................................................... 129
8.17 [Reserved] ................................................................................................................................ 129
8.18 Anti-Money Laundering and Terrorism Laws and Regulations .............................................. 129
8.19 Economic Sanctions Laws and Regulations ............................................................................ 130
8.20 No Agency Relationship .......................................................................................................... 130
8.21 Aircraft Operations .................................................................................................................. 130
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES ............................................................... 131
9.01 Events of Default ..................................................................................................................... 131
9.02 Remedies Upon Event of Default ............................................................................................ 133
9.03 Application of Funds ............................................................................................................... 133
ARTICLE X ADMINISTRATIVE AGENT ........................................................................................ 135
10.01 Appointment and Authority ..................................................................................................... 135
10.02 Rights as a Lender ................................................................................................................... 135
10.03 Exculpatory Provisions ............................................................................................................ 136
10.04 Reliance by the Administrative Agent ..................................................................................... 137
10.05 Delegation of Duties ................................................................................................................ 137
10.06 Resignation of the Administrative Agent ................................................................................ 137
10.07 Non-Reliance on the Administrative Agent and Other Lenders .............................................. 138
10.08 No Other Duties, Etc ............................................................................................................... 138
10.09 The Administrative Agent May File Proofs of Claim; Credit Bidding ................................... 138
10.10 Collateral Matters .................................................................................................................... 139
10.11 Other Collateral Matters .......................................................................................................... 140
10.12 Credit Product Arrangement Provisions .................................................................................. 140
ARTICLE XI MISCELLANEOUS ....................................................................................................... 141
11.01 Amendments, Etc .................................................................................................................... 141
11.02 Notices; Effectiveness; Electronic Communication ................................................................ 144
11.03 No Waiver; Cumulative Remedies .......................................................................................... 146
11.04 Expenses; Indemnity; Damage Waiver ................................................................................... 146
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11.05 Marshalling; Payments Set Aside ............................................................................................ 149
11.06 Successors and Assigns ........................................................................................................... 149
11.07 Treatment of Certain Information; Confidentiality ................................................................. 154
11.08 Right of Setoff ......................................................................................................................... 155
11.09 Interest Rate Limitation ........................................................................................................... 155
11.10 Counterparts; Integration; Effectiveness ................................................................................. 155
11.11 Survival.................................................................................................................................... 156
11.12 Severability .............................................................................................................................. 156
11.13 Replacement of Lenders .......................................................................................................... 156
11.14 Governing Law; Jurisdiction; Etc ............................................................................................ 157
11.15 Waiver of Jury Trial ................................................................................................................ 158
11.16 Electronic Execution of Assignments and Certain Other Documents ..................................... 158
11.17 USA PATRIOT Act Notice ..................................................................................................... 158
11.18 No Advisory or Fiduciary Responsibility ................................................................................ 159
11.19 Attachments ............................................................................................................................. 159
11.20 Acknowledgement and Consent to Bail-In of EEA Financial Institutions .............................. 159
ARTICLE XII CONTINUING GUARANTY ...................................................................................... 160
12.01 Guaranty .................................................................................................................................. 160
12.02 Rights of Lenders .................................................................................................................... 160
12.03 Certain Waivers ....................................................................................................................... 160
12.04 Obligations Independent .......................................................................................................... 161
12.05 Subrogation .............................................................................................................................. 161
12.06 Termination; Reinstatement .................................................................................................... 161
12.07 Subordination .......................................................................................................................... 161
12.08 Stay of Acceleration ................................................................................................................ 161
12.09 Condition of Borrowers ........................................................................................................... 161
12.10 Keepwell .................................................................................................................................. 162
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SCHEDULES
1.01 Existing Letters of Credit
1.02 Unrestricted Subsidiaries
1.03 Term Loan Equipment
1.04 Permitted Earn-Outs
1.05 Specified Disposition
2.01 Commitments and Applicable Percentages
4.05 Information Regarding Collateral
6.06 Litigation
6.08 Owned and Ground Lease Real Property
6.09 Environmental Matters
6.10 Insurance
6.12 Pension Plans
6.13 Subsidiaries and Equity Interests
6.18 Labor Matters
6.19 Deposit Accounts, Securities Accounts and Commodity Accounts
6.24 Material Contracts
6.28 Aircraft Parts Locations
6.29(a) Rolling Stock
6.29(b) Rolling Stock Locations
6.30(a) Aircraft
6.30(b) Aircraft Locations
7.21 Post-Closing Agreements
8.01 Existing Indebtedness
8.02 Existing Liens
8.03 Existing Investments
8.08 Transactions with Affiliates
11.02 Addresses for Notices
11.06 Disqualified Institutions
EXHIBITS
Form of
A-1 Revolving Credit Loan Note
A-2 Term Loan Note
A-3 CapX Loan Note
B Compliance Certificate
C Security Agreement
D Borrowing Base Certificate
E Assignment and Assumption Agreement
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CREDIT AGREEMENT
This Credit Agreement (this “Agreement”) is entered into as of July 21, 2017, among Roadrunner
Transportation Systems, Inc., a Delaware corporation (the “Company”), those additional Persons that are
joined as a party hereto by executing a joinder (the Company and such joined Persons each, a “Borrower”
and individually and collectively, jointly and severally, the “Borrowers”), each of the Subsidiaries of the
Company identified as “Subsidiary Guarantors” on the signature pages to this Agreement (together with
those additional entities that hereafter become parties hereto as “Subsidiary Guarantors” in accordance
with the terms hereof, individually, a “Subsidiary Guarantor” and collectively the “Subsidiary
Guarantors”), each of the Lenders form time to time party hereto (collectively, the “Lenders” and
individually, a “Lender”), and BMO Xxxxxx Bank N.A., as Administrative Agent, Swing Line Lender and a
Letter of Credit Issuer.
Preliminary Statements
A. The Borrowers have requested that Lenders, the Swing Line Lender and the Letter of Credit
Issuer provide certain credit facilities to the Borrowers to finance their mutual and collective business
enterprise.
B. Lenders are willing to provide the credit facilities on the terms and conditions set forth in
this Agreement.
In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:
“Acceptable Appraisal” means an appraisal conducted by an appraiser reasonably acceptable to the
Administrative Agent, with scope, procedures and results reasonably acceptable to the Administrative
Agent in its Permitted Discretion.
“Account” means “accounts” as defined in the UCC.
“Account Debtor” means any Person who is obligated under or on account of any Account.
“ACH” means automated clearing house transfers.
“Acquisition” means the acquisition of (a) a controlling equity or other ownership interest in
another Person, whether by purchase of such equity or other ownership interest or upon exercise of an
option or warrant for, or conversion of securities into, such equity or other ownership interest, or (b) assets
of another Person which constitute all or substantially all of the assets of such Person or of a line or lines
of business conducted by such Person.
“Additional Commitment Lender” has the meaning specified in Section 2.18(c).
“Adjusted Excess Availability” means Availability plus Qualified Unrestricted Cash.
“Adjustment Date” has the meaning specified in the definition of “Applicable Margin.”
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“Administrative Agent” means BMO Xxxxxx Bank N.A., in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 11.02, or such other address or account as the Administrative Agent may
from time to time notify to the Borrower Agent and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the
Administrative Agent.
“Advisory Fees” has the meaning specified in the definition of “Consolidated EBITDA”.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under common Control with the
Person specified.
“Agent Indemnitee” has the meaning specified in Section 11.04(c).
“Agent Indemnitee Liabilities” has the meaning specified in Section 11.04(c).
“Aggregate CapX Commitments” means, as at any date of determination thereof, the sum of all
CapX Commitments of all Lenders at such date.
“Aggregate Revolving Credit Commitments” means, as at any date of determination thereof, the
sum of all Revolving Credit Commitments of all Lenders at such date.
“Agreement” has the meaning specified in the introductory paragraph hereof.
“Air Carrier” means any Person that is an “air carrier” within the meaning of Section 40102 of Title
49 of the United States Code and holds a certificate under Section 44705 of Title 49 of the United States
Code.
“Aircraft” means aircraft, aircraft engines, and any and all Aircraft Parts which are from time to
time incorporated or installed in or attached to an aircraft or aircraft engine.
“Aircraft Mortgages” means the mortgages and/or security agreements that create or purport to
create a Lien on any Aircraft (including any aircraft engine) or Aircraft Parts in favor of the Administrative
Agent, in form for filing with the Federal Aviation Administration and registration with the International
Registry.
“Aircraft Operating Party” means USA Jet Airlines, Inc.
“Aircraft Parts” means all appliances, parts, systems, components, assemblies, rotables,
instruments, appurtenances, accessories, furnishings, seats and other equipment of whatever nature,
whether or not incorporated or installed in or attached to an aircraft or aircraft engine, including
“appliances” and “spare parts” as such terms are defined in Section 40102 of Title 49 of the United States
Code.
“Aircraft Parts Designated Location” means each location identified in Schedule 6.28 where
Aircraft Parts of a Borrower or its Subsidiaries are located.
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“Aircraft Permits” means all certificates, franchises, licenses, registrations, permits, rights,
designations, authorizations, exemptions, concessions and consents necessary for each Aircraft Operating
Party to operate its Aircraft and conduct its business and operations as an Air Carrier as conducted on the
Closing Date.
“Aircraft Regulations” means any law or regulation, official directive or recommendation,
mandatory requirement, or contractual undertaking, or airworthiness requirement or limitation, which
applies to the Aircraft Operating Party or its Aircraft, including any rules or regulations of the Federal
Aviation Administration.
“Aircraft Related Documents” means any Irrevocable De-Registration and Export Request
Authorization for each Aircraft subject to an Aircraft Mortgage, and such other documents under applicable
Federal Aviation Administration requirements of Law as are necessary to perfect the Liens created, or
purported to be created, with respect to the Aircraft.
“Allocable Amount” has the meaning specified in Section 2.15(c)(ii).
“ALTA Survey” means a survey satisfactory to the Administrative Agent in its Permitted Discretion
prepared in accordance with the standards adopted by the American Land Title Association and the
American Congress on Surveying and Mapping in 1997, known as the “Minimum Standard Detail
Requirements of Land Title Surveys” and sufficient form to satisfy the requirements of any applicable title
insurance company to provide extended coverage over survey defects and shall also show the location of
all easements, utilities, and covenants of record, dimensions of all improvements, encroachments from any
adjoining property, and certify as to the location of any flood plain area affecting the subject Real Property.
“Annual Financial Statements” means the draft version 9 Consolidated balance sheet of the
Company and its Subsidiaries as of December 31, 2016, and the related Consolidated statement of
operations, stockholders’ investment and cash flows for the fiscal year of the Company and its Subsidiaries
then ended, including the notes thereto.
“Anti-Corruption Laws” shall have the meaning specified in Section 6.21.
“Anti-Money Laundering Laws” shall have the meaning specified in Section 8.18.
“Applicable CapX Percentage” means with respect to any CapX Lender at any time, such CapX
Lender’s Applicable Percentage in respect of the CapX Facility at such time.
“Applicable Margin” means with respect to any Type of Loan, the percentages per annum set forth
below, as based upon the Average Availability for the immediately preceding fiscal quarter:
Level
Average Availability
LIBOR Loans Base Rate Loans
LIBOR FILO
Loans
Base Rate FILO
Loans
I > $60,000,000 1.50% 0.50% 2.50% 1.50%
II
≤ $60,000,000 but >
$30,000,000 1.75% 0.75% 2.75%
1.75%
III ≤ $30,000,000 2.00% 1.00% 3.00% 2.00%
From the Closing Date until the first day of each fiscal quarter, commencing with January 1, 2018
(the “Adjustment Date”) margins shall be determined as if Level II were applicable. Thereafter, any increase
or decrease in the Applicable Margin resulting from a change in Average Availability shall become effective
as of each Adjustment Date based upon Average Availability for the immediately preceding fiscal quarter.
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If any Borrowing Base Certificate (including any required financial information in support thereof) of the
Borrowers is not received by Administrative Agent by the date required pursuant to Section 7.02(a), then
the Applicable Margin shall be determined as if the Average Availability for the immediately preceding
fiscal quarter is at Level III until such time as such Borrowing Base Certificate and supporting information
are received.
“Applicable Percentage” means (a) in respect of the Revolving Credit Facility, with respect to any
Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the
Revolving Credit Facility, represented by the amount of the Revolving Credit Commitment of such
Revolving Credit Lender at such time; provided that if the Aggregate Revolving Credit Commitments have
been terminated at such time, then the Applicable Percentage of each Revolving Credit Lender shall be the
Applicable Percentage of such Revolving Credit Lender immediately prior to such termination and after
giving effect to any subsequent assignments, (b) in respect of the Term Loan Facility, with respect to any
Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Loan Facility
represented by (i) on or prior to the Closing Date, such Term Lender’s Term Loan Commitment at such
time and (ii) thereafter, the Outstanding Amount of such Term Lender’s Term Loans at such time, and (c)
in respect of the CapX Facility, with respect to any CapX Lender at any time, the percentage (carried out to
the ninth decimal place) of the CapX Facility represented by (i) the undrawn amount of such CapX Lender’s
CapX Commitment at such time plus (ii) the Outstanding Amount of such CapX Lender’s CapX Loans at
such time. The initial Applicable Percentage of each Lender with respect to each Facility is set forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender becomes a party hereto, as applicable.
“Applicable Revolving Credit Percentage” means with respect to any Revolving Credit Lender at
any time, such Revolving Credit Lender’s Applicable Percentage in respect of the Revolving Credit Facility
at such time.
“Appraised Value” means, with respect to Eligible Equipment, the fair market value of such Eligible
Equipment as set forth in the most recent Acceptable Appraisal.
“Appropriate Lender” means, at any time, (a) with respect to any Facility, a Lender that has a
Commitment with respect to such Facility or holds a Loan under such Facility at such time, (b) with respect
to the Letter of Credit Sublimit, (i) the Letter of Credit Issuer and (ii) if any Letters of Credit have been
issued, the Revolving Credit Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line
Lender and (ii) if any Swing Line Loans are outstanding, the Revolving Credit Lenders.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arrangers” means BMO Capital and JPMorgan Chase Bank, N.A..
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and
an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and
accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form approved
by the Administrative Agent.
“Assumed Indebtedness” means Indebtedness of a Person which is (a) in existence at the time such
Person becomes a Subsidiary or (b) assumed in connection with an Investment in or Acquisition of such
Person, and which, in each case, (i) has not been incurred or created in connection with, or in anticipation
or contemplation of, such Person becoming a Subsidiary, (ii) only such Person (or its Subsidiaries so
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acquired) are obligors with respect to such Indebtedness, (iii) such Indebtedness is not a revolving loan
facility; and (iv) such Indebtedness is not secured by any Liens on Accounts or Aircraft Parts.
“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any Person,
the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date
in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease, and
(c) in respect of any sale and leaseback transaction, the present value (discounted at the implied interest rate
in such transaction compounded annually) of the total obligations of the lessee for rental payments during
the remaining term of the lease included in such sale and leaseback transaction (including any period for
which such lease has been extended or may, at the option of the lessor, be extended).
“Auditor” has the meaning specified in Section 7.01(a).
“Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
“Availability” means (a) the Maximum Borrowing Amount minus (b) Total Revolving Credit
Outstandings.
In calculating Availability at any time and for any purpose under this Agreement, the Borrower
Agent, on behalf of the Borrowers, shall certify to the Administrative Agent that all accounts payable and
Taxes are being paid on a timely basis consistent with past practices (absent which the Administrative Agent
may establish a Reserve therefor).
“Availability Period” means (a) in respect of the Revolving Credit Facility, the period from the
Closing Date to the Revolving Credit Termination Date and (b) in respect of the CapX Facility, the period
from the Closing Date to the earliest of (i) the date that is four (4) years after the Closing Date, (ii) the
Maturity Date and (iii) the date on which the CapX Loans under this Agreement have been declared or have
automatically become due and payable (whether by acceleration or otherwise).
“Availability Reserves” means, without duplication of any other Reserves or items that are
otherwise addressed or excluded through eligibility criteria, such reserves as the Administrative Agent from
time to time determines in its Permitted Discretion as being appropriate (a) to reflect the impediments to
the Administrative Agent’s ability to realize upon the Collateral consisting of Eligible Accounts or Eligible
Aircraft Parts, (b) to reflect sums that any Loan Party could reasonably be expected to be required to pay
under any Section of this Agreement or any other Loan Document (including taxes, assessments, insurance
premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed
to pay in a timely manner consistent with past practice, (c) to reflect amounts for which claims are
reasonably expected to be asserted against the Collateral, the Administrative Agent or the Lenders or (d) to
reflect criteria, events, conditions, contingencies or risks which adversely affect any component of the
Borrowing Base, or the assets, business, financial performance or financial condition of any Loan Party.
Without limiting the generality of the foregoing, Availability Reserves may include (but are not limited to)
reserves based on (but without duplication of other reserves or adjustments): (i) Rent and Charge Reserves;
(ii) customs duties, and other costs to release Aircraft Parts which is being imported into the United States;
(iii) outstanding Taxes and other governmental charges, including, without limitation, ad valorem, real
estate, personal property, sales, and other Taxes which could reasonably be expected to have priority over
the interests of the Administrative Agent in the Collateral; (iv) salaries, wages and benefits due to
employees of any Loan Party (including amounts for employee wage claims for earned wages, vacation
pay, health care reimbursements and other amounts due under Wisconsin wage lien law, Wis. Stat 109.01,
et seq., or any similar state or local law); (v) any liabilities that are or could reasonably be expected to
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become secured by Liens on the Collateral (including Permitted Liens) which could reasonably be expected
to have priority over the Liens or interests of the Administrative Agent in the Collateral; (vi) Credit Product
Reserves; (vii) reserves with respect to the salability of Eligible Aircraft Parts or which reflect such other
factors as affect the market value of the Eligible Aircraft Parts, including obsolescence, seasonality, shrink
(i.e., lost, misplaced, stolen, or is otherwise unaccounted for), vendor chargebacks, imbalance, change in
Aircraft Parts character, composition or mix, markdowns and out of date and/or expired Aircraft Parts;
(viii) [reserved]; (ix) brokers fees; (x) the Dilution Reserve; and (xi) reserves in the amount of all unpaid
annual tag and title fees in respect of Rolling Stock constituting Collateral.
“Average Availability” means for any period, the average daily amount of Availability during such
period.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable
EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55
of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the
implementing law for such EEA Member Country from time to time which is described in the EU Bail-In
Legislation Schedule.
“Bankruptcy Code” means Title 11 of the United States Code.
“Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the rate of
interest announced by BMO from time to time as its prime rate for such day (with any change in such rate
announced by BMO taking effect at the opening of business on the day specified in the public
announcement of such change); (b) the Federal Funds Rate for such day, plus 0.50%; or (c) the LIBOR Rate
for a one month Interest Period plus 1.00%. In no event shall Base Rate be less than 0%.
“Base Rate CapX Loan” means a segment of a CapX Loan that bears interest based on the Base
Rate.
“Base Rate Loan” means a Base Rate Revolving Credit Loan, a Base Rate Term Loan, or a Base
Rate CapX Loan.
“Base Rate Revolving Credit Loan” means a Revolving Credit Loan that bears interest based on
the Base Rate.
“Base Rate Term Loan” means a segment of a Term Loan that bears interest based on the Base
Rate.
“Blocked Person” shall have the meaning specified in Section 6.21.
“BMO” means BMO Xxxxxx Bank N.A.
“BMO Capital” means BMO Capital Markets.
“Board of Directors” means, with respect to any Person, (a) in the case of any corporation, the
board of directors of such Person or any committee thereof duly authorized to act on behalf of such board,
(b) in the case of any limited liability company, the board of managers or board of directors or sole member
or manager of such Person or any Person or any committee thereof duly authorized to act on behalf of such
7
board, (c) in the case of any partnership, the Board of Directors of a general partner of such Person and (d)
in any other case, the functional equivalent of the foregoing.
“Borrower Agent” has the meaning specified in Section 2.15(g).
“Borrowers” has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning specified in Section 7.02.
“Borrowing” means any of (a) a Revolving Credit Borrowing, (b) a Term Borrowing (c) a Swing
Line Borrowing, or (d) a CapX Borrowing, as the context may require.
“Borrowing Base” means, at any time of calculation, an amount equal to:
(a) the Value of Eligible Credit Enhanced Accounts (less all cash received but not yet applied
in respect of such Eligible Credit Enhanced Accounts) multiplied by 90%; plus
(b) the Value of Eligible Accounts other than Eligible Credit Enhanced Accounts (less all cash
received but not yet applied in respect of such Eligible Accounts) multiplied by 85%; plus
(c) the lesser of (i) the Value of Eligible Unbilled Accounts multiplied by 85% and (ii)
$30,000,000; plus
(d) the lesser of (i) the Value of Eligible Foreign Accounts (less all cash received but not yet
applied in respect of such Eligible Accounts) multiplied by 85% and (ii) $5,000,000; plus
(e) the least of (i) the NOLV of Eligible Aircraft Parts multiplied by 85%, (ii) the Cost of
Eligible Aircraft Parts multiplied by 85%, and, (iii) $10,000,000; plus
(f) the FILO Amount; minus
(g) the amount of all Availability Reserves.
The term “Borrowing Base” and the calculation thereof shall not include any assets or property
acquired in an Acquisition or otherwise outside the Ordinary Course of Business unless (i) if so required by
the Administrative Agent in its Permitted Discretion, the Administrative Agent has conducted Field Exams
and appraisals reasonably required by it (with results reasonably satisfactory to the Administrative Agent)
and (ii) the Person owning such assets or property shall be a (directly or indirectly) wholly-owned Domestic
Subsidiary of the Company and have become a Loan Party; provided that Accounts acquired in connection
with any Permitted Acquisition may be included in the Borrowing Base prior to a Field Exam so long as
(x) a Field Exam is completed within 60 days of such Permitted Acquisition and (y) the aggregate amount
of such Accounts attributable to the Borrowing Base prior to such Field Exam (after giving effect to the
applicable advance rate) shall not exceed 10% of the sum of clauses (a)-(e) hereof).
“Borrowing Base Certificate” means a certificate, in the form of Exhibit D hereto and otherwise
satisfactory to Administrative Agent, by which Loan Parties certify calculation of the Borrowing Base.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the state of Illinois, and, if such
day relates to any interest rate settings as to a LIBOR Loan, any fundings, disbursements, settlements and
8
payments in respect of any such LIBOR Loan, or any other dealings to be carried out pursuant to this
Agreement in respect of any such LIBOR Loan, means any such day that is also a London Banking Day.
“Capital Leases” means all leases that have been or should be, in accordance with GAAP, recorded
as capitalized leases.
“CapX Borrowing” means a borrowing consisting of simultaneous CapX Loans of the same Type
and, in the case of LIBOR Loans, having the same Interest Period, made by each of the CapX Lenders
pursuant to Section 2.01(c).
“CapX Commitment” means $35,000,000; provided that the maximum amount of Aircraft financed
with CapX Loans shall not exceed $5,000,000 in the aggregate.
“CapX Commitment Termination Date” means the earliest to occur of (a) July 21, 2021; (b) the
date on which the CapX Commitment is fully drawn upon; (c) the date on which the CapX Commitment is
terminated pursuant to Section 9.02; or (d) the Facility Termination Date.
“CapX Credit Exposure” means, as to any Lender at any time, the aggregate principal amount at
such time of its outstanding CapX Loans.
“CapX Equipment” means Rolling Stock and Aircraft.
“CapX Facility” means the facility described in Section 2.01(c), providing for CapX Loans to the
Borrowers by the CapX Lenders.
“CapX Lender” means each Lender that has a CapX Commitment, or following termination of the
CapX Commitment, has CapX Credit Exposure.
“CapX Loan” means a Base Rate Loan or a LIBOR Loan made to the Borrowers pursuant to Section
2.01(c).
“CapX Loan Note” means a promissory note made by the Borrowers in favor of a CapX Lender
evidencing CapX Loans made by such CapX Lender, substantially in the form of Exhibit A-3.
“CapX Unused Facility Amount” means the daily amount of the Aggregate CapX Commitments.
“CapX Unused Fee” has the meaning specified in Section 2.09(b).
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, (a)
for the benefit of one or more of the Letter of Credit Issuer or the Revolving Credit Lenders, as collateral
for Letter of Credit Obligations or obligations of the Revolving Credit Lenders to fund participations in
respect of Letter of Credit Obligations, cash or deposit account balances or, if the Administrative Agent and
the Letter of Credit Issuer shall agree in their sole discretion, other credit support, in each case pursuant to
documentation in form and substance reasonably satisfactory to the Administrative Agent and the Letter of
Credit Issuer or (b) for the benefit of the Administrative Agent, as collateral for Protective Advances or
Swing Line Loans that have not been refunded by the Revolving Credit Lenders, cash or deposit account
balances or, if the Administrative Agent shall agree in its sole discretion, other credit support, in each case
pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent, or
(c) for the benefit of the Secured Parties during the continuance of an Event of Default or in connection
with the Payment in Full, as collateral for any Obligations that are due or may become due, cash or deposit
account balances or, if the Administrative Agent shall agree in its sole discretion, other credit support, in
9
each case pursuant to documentation in form and substance satisfactory to the Administrative Agent. “Cash
Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash
collateral and other credit support.
“Cash Equivalents” means any of the following types of property, to the extent owned by the
Company or any of its Subsidiaries free and clear of all Liens (other than Liens created under the Security
Instruments):
(a) cash, denominated in Dollars or Canadian dollars;
(b) marketable direct obligations of the government of the United States or any agency or
instrumentality thereof, or obligations the timely payment of principal and interest on which are fully and
unconditionally guaranteed by the government of the United States or any state or municipality thereof, in
each case (other than in the case of the United States government or any agency thereof) so long as such
obligation has an investment grade rating by S&P or Xxxxx’x;
(c) commercial paper rated at least P-2 (or the then equivalent grade) by Xxxxx’x or A-2 (or
the then equivalent grade) by S&P, or carrying an equivalent rating by a nationally recognized rating agency
if at any time neither Xxxxx’x nor S&P shall be rating such obligations;
(d) insured certificates of deposit or bankers’ acceptances of, or time deposits with any Lender
or with any commercial bank that (i) is a member of the Federal Reserve System, (ii) issues (or the parent
of which issues) commercial paper rated as described in the first portion of clause (c) above, (iii) is
organized under the laws of the United States or of any state thereof and (iv) has combined capital and
surplus of at least $250,000,000;
(e) readily marketable general obligations of any corporation organized under the laws of any
state of the United States of America, payable in the United States of America, expressed to mature not
later than twelve months following the date of issuance thereof and rated A or better by S&P or A3 or better
by Xxxxx’x; and
(f) readily marketable shares of investment companies or money market funds that, in each
case, invest solely in the foregoing Investments described in clauses (a) through (e) above.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act
of 1980.
“CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.
“CFC” has the meaning specified in the definition of “Excluded Subsidiary”.
“CFCHC” has the meaning specified in the definition of “Excluded Subsidiary”.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following:
(a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation, implementation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether
or not having the force of law) by any Governmental Authority; provided that notwithstanding anything
herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all
requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests,
10
rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee
on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”,
regardless of the date enacted, adopted or issued.
“Change of Control” means an event or series of events after the date of this Agreement by which:
(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 the Company 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-4 and 13d-6 under the Exchange Act, except that a person
or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the
right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of 35% or more of the Voting Stock of the Company on a fully-
diluted basis (and taking into account all such Voting Stock that such person or group has the right to
acquire pursuant to any option right); or
(b) during any period of 24 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Company cease to be composed of individuals (i) who
were members of that board or equivalent governing body on the first day of such period, (ii) whose election
or nomination to that board or equivalent governing body was approved by individuals referred to in clause
(i) above constituting at the time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing
body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body;
(c) the Company shall fail to own and control, beneficially and of record (directly or
indirectly), 100% of the issued and outstanding Equity Interests of each of any other Loan Party, except
where such failure is the result of a transaction permitted under the Loan Documents; or
(d) any “change of control” or similar event under the Permitted Term Debt.
“Closing Date” means the first date all the conditions precedent in Section 5.01 are satisfied or
waived in accordance with Section 11.01 (or, in the case of Section 5.01(b), waived by the Person entitled
to receive the applicable payment), which date is July 21, 2017.
“Code” means the Internal Revenue Code of 1986.
“Collateral” means, collectively, certain property of the Loan Parties or any other Person in which
the Administrative Agent or any Secured Party is granted a Lien under any Security Instrument as security
for all or any portion of the Obligations or any other obligation arising under any Loan Document.
“Commitment” means a Term Loan Commitment, a Revolving Credit Commitment, or a CapX
Commitment, as the context may require.
“Commitment Increase” has the meaning specified in Section 2.18(a).
“Committed Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one
Type to the other, or (c) a continuation of LIBOR Loans, in each case, described in Section 2.02.
11
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as
amended from time to time, and any successor statute.
“Company” has the meaning specified in the introductory paragraph hereto.
“Compliance Certificate” means a certificate substantially in the form of Exhibit B.
“Concentration Account” has the meaning specified in Section 4.04(b).
“Conforming Credit Product Obligations” means Credit Product Obligations (a) established
pursuant to a Credit Product Notice delivered at a time no Event of Default shall be continuing and (b) up
to a maximum amount (or, in the case of Credit Product Obligations arising under Swap Contracts, the
Swap Termination Value thereunder) specified in such Credit Product Notice (whether delivered to establish
or increase the amount thereof) to the extent that no Overadvance would exist if a Credit Product Reserve
were established therefore on the date of such Credit Product Notice.
“Consolidated” means the consolidation, in accordance with GAAP, of the financial condition or
operating results of such Person and its Subsidiaries.
“Consolidated Capital Expenditures” means, with respect to the Company and its Restricted
Subsidiaries on a Consolidated basis, for any period the sum of (without duplication) all expenditures
(whether paid in cash or accrued as liabilities) by the Company or any Restricted Subsidiary during such
period for items that would be classified as “property, plant or equipment” or comparable items on the
Consolidated balance sheet of the Company and its Restricted Subsidiaries, including without limitation all
transactional costs incurred in connection with such expenditures provided the same have been capitalized;
provided that Consolidated Capital Expenditures shall exclude any capital expenditures (a) financed with
Indebtedness permitted hereunder other than Loans, (b) made with (i) Net Cash Proceeds from any
Disposition described in Section 8.05(b) or (ii) proceeds of insurance arising from any casualty or other
insured damage or from condemnation or similar awards with respect to any property or asset, in each case,
to the extent such proceeds are reinvested within 180 days of receipt thereof, or (c) constituting any portion
of the purchase price of a Permitted Acquisition which is accounted for as a capital expenditure.
“Consolidated EBITDA” means, for any period, Consolidated Net Income for such period plus,
without duplication and to the extent deducted in determining such Consolidated Net Income for such
period (other than with respect to clause (i) below), (A) the sum of (a) income tax expense, (b) interest
expense, amortization or write-off of debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness (including the Facilities and any Indebtedness held by any of the
holders of the Company’s redeemable preferred stock (the “Investors”) and/or their Affiliates), (c)
depreciation and amortization expense, (d) non-cash charges, losses, expenses, accruals and provisions
(including but not limited to stock-based compensation and any such non-cash items resulting from the sale
of assets not in the Ordinary Course of Business); provided that (x) any such non-cash charge, loss, expense,
accrual and provision shall be excluded to the extent that it represents an accrual or reserve for cash
expenses in any future period, (y) with respect to any stock-based compensation, any such compensation
in respect of which stock is made available by means of stock buybacks by the Company or any of its
Restricted Subsidiaries shall be excluded, and (z) no such non-cash charge, loss or expense relating to a
write-down, write off or reserve with respect to accounts receivable and inventory shall be taken under this
clause (d) to the extent such charge, loss or expense under this clause (d)(z), when added to the expenses
and losses added back in the calculation of Consolidated EBITDA under clause (f) below, exceeds
$1,000,000 for any such charge, loss or expense and $5,000,000 in the aggregate for all such charges, losses
and expenses, (e) amortization of intangibles (including, but not limited to, impairment of goodwill or
intangibles), (f) any non-recurring expenses or losses; provided that (x) unless the consent of the
12
Administrative Agent is obtained, the amount of any such non-recurring expense or loss, when added to the
charges, losses and expenses added back in the calculation of Consolidated EBITDA under clause (d)(z)
above, in any four (4) fiscal quarter period shall not exceed $1,000,000 for any such expense or loss and
$5,000,000 in the aggregate for all such expenses and losses and (y) the Company must deliver to the
Administrative Agent a certificate of an officer setting forth information and calculations supporting in
reasonable detail the non-recurring nature of such expenses and losses, (g) any fees and expenses incurred
during such period in connection with any investment, permitted divestiture, issuance of indebtedness or
capital stock, or amendment or modification of any debt instrument, in each case, to the extent not
prohibited by the Facilities, including (x) any such transactions undertaken but not completed and any
transactions consummated prior to the Closing Date and (y) any financial advisory fees, accounting fees,
legal fees and other similar advisory and consulting fees, in each case, paid in cash during such period
(collectively, “Advisory Fees”), (h) any fees and expenses incurred in connection with the transactions
contemplated by the Facilities and/or the Company’s Investment Agreement with the Investors, including
Advisory Fees, and (i) the amount of “run-rate” cost savings, operating expense reductions, operating
improvements and synergies that are reasonably identifiable, factually supportable and projected by the
Company in good faith to be realized as a result thereof (calculated on a Pro Forma Basis as though such
cost savings, operating expense reductions, operating improvements and synergies had been realized on the
first day of the relevant period), net of the amount of actual benefits realized in respect thereof; provided
that (w) actions in respect of such cost-savings, operating expense reductions, operating improvements and
synergies shall have been taken and such cost savings, operating expense reductions, operating
improvements and synergies are expected to be realized within 12 months of the Closing Date, (x) no cost
savings, operating expense reductions, operating improvements or synergies shall be added pursuant to this
clause (i) to the extent duplicative of any expenses or charges otherwise added to (or excluded from)
Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period, and (y) the
Company must deliver to the Administrative Agent (i) a certificate of an authorized officer setting forth
such estimated cost-savings, operating expense reductions, operating improvements and synergies and
(ii) information and calculations supporting in reasonable detail such estimated cost savings, operating
expense reductions, operating improvements and synergies, and (z) with respect to any four-quarter period,
the aggregate amount added back in the calculation of Consolidated EBITDA for such period pursuant to
this clause (i) shall not exceed 20% of Consolidated EBITDA (calculated prior to giving effect to any add-
backs pursuant to this clause (i)), and (B) minus, (a) to the extent included in determining such Consolidated
Net Income for such period, the sum of (x) any non-recurring income or gains, and (y) any other non-cash
income or gains (other than normal accruals in the Ordinary Course of Business for non-cash income or
gain that represents an accrual for cash income or gain in a future period) and (b) any cash payments made
during such period in respect of items described in clause (d) above subsequent to the fiscal quarter in which
the relevant non-cash expenses or losses were reflected as a charge in the statement of Consolidated Net
Income, all as determined on a Consolidated basis. For the purposes of calculating Consolidated EBITDA
for any period, (i) if at any time during the relevant period the Company shall have made any Material
Disposition, the Consolidated EBITDA for such period shall be reduced by an amount equal to the
Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material
Disposition for such period or increased by an amount equal to the Consolidated EBITDA (if negative)
attributable thereto for such period as if such Material Disposition occurred on the first day of such period,
and (ii) if during the relevant period the Company shall have made a Material Acquisition, Consolidated
EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Material
Acquisition occurred on the first day of such period; provided that any pro forma adjustments in connection
with any such Material Acquisition that increases Consolidated EBITDA as a result of cost-savings,
operating expense reductions, operating improvements and synergies shall be subject to the limitations set
forth in the definition of Consolidated EBITDA.
13
“Consolidated Fixed Charge Coverage Ratio” means the ratio, determined on a Consolidated basis
for the Company and its Restricted Subsidiaries for the applicable Measurement Period, of (a) Consolidated
EBITDA, minus Consolidated Capital Expenditures, to (b) Consolidated Fixed Charges.
“Consolidated Fixed Charges” means, for any period, for the Company and its Restricted
Subsidiaries on a Consolidated basis, the sum of, without duplication, (a) Consolidated Interest Charges
paid or required to be paid in cash during such period, (b) all principal repayments made or required to be
made of Consolidated Funded Indebtedness during such period; provided that (i) the following shall be
excluded from Consolidated Funded Indebtedness for purposes of determining Consolidated Fixed
Charges: (A) any such payments to the extent constituting a refinancing of such Consolidated Funded
Indebtedness through the incurrence of additional Indebtedness otherwise expressly permitted under
Section 8.01, (B) repayments of Revolving Credit Loans, and (C) principal and interest payments in respect
of that certain credit facility under the Sixth Amended and Restated Credit Agreement dated as of September
24, 2015 (as amended) among the Company, U.S. Bank National Association, as administrative agent, and
the lenders party thereto, which such credit facility was paid in full and terminated prior to the Closing Date
and (ii) principal and interest repayments in respect of this Agreement shall be annualized for any
Measurement Period ending on or before July 31, 2018 (e.g., for the Measurement Period ending on July
31, 2017, multiplying such payments for the one month period then ending by 12, and for the Measurement
Period ending on August 31, 2017, multiplying such payments for the two month period then ending by 6),
(c) all Restricted Payments made in cash during such period (excluding the redemption of shares of (x)
Existing Series E Preferred Stock with proceeds from a Specified Disposition and/or Permitted Term Debt
and/or (y) Existing Series F Preferred Stock on the Closing Date), and (d) the aggregate amount of federal,
state, local and foreign income taxes paid in cash, in each case, of or by the Company and its Restricted
Subsidiaries for the most recently completed Measurement Period.
“Consolidated Funded Indebtedness” means, as of any date of determination, for the Company and
its Restricted Subsidiaries on a Consolidated basis, the sum of (a) the outstanding principal amount of all
obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all
obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all
purchase money Indebtedness, (c) all direct obligations arising under standby and commercial letters of
credit (excluding the undrawn amount thereof), bankers’ acceptances, bank guaranties (excluding the
amounts available thereunder as to which demand for payment has not yet been made), surety bonds
(excluding the amounts available thereunder as to which demand for payment has not yet been made) and
similar instruments, (d) all obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the Ordinary Course of Business), (e) Attributable Indebtedness in
respect of Capital Leases and Synthetic Lease Obligations, (f) without duplication, all Guarantees with
respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other
than the Company or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through
(f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which the Company or a Restricted Subsidiary is a general partner or joint venturer,
to the extent such Indebtedness is recourse to the Company or such Restricted Subsidiary.
“Consolidated Interest Charges” means, with respect to the Company and its Subsidiaries for any
period ending on the date of computation thereof, the gross interest expense of the Company and its
Restricted Subsidiaries, including without limitation (a) the current amortized portion of all fees (including
fees payable in respect of any Swap Contract in the nature of an interest rate hedge and all fees payable in
respect of any Letter of Credit) payable in connection with the incurrence of Indebtedness to the extent
included in gross interest expense and (b) the portion of any payments made in connection with Capital
Leases allocable to interest expense, all determined on a Consolidated basis; provided, however, that
Consolidated Interest Charges shall include the amount of payments in respect of Synthetic Lease
Obligations that are in the nature of interest.
14
“Consolidated Net Income” means, with respect to the Company and its Restricted Subsidiaries for
any period, the aggregate of all amounts that, in accordance with GAAP, would be included as net income
(or net loss) of the Company and its Restricted Subsidiaries for such period, excluding (a) any gains and/or
losses from dispositions of assets outside of the Ordinary Course of Business of the Company and its
Restricted Subsidiaries and related tax effects in accordance with GAAP, (b) any extraordinary gains and/or
any extraordinary losses, (c) any gains and/or losses from discontinued operations, (d) the income (or loss)
of any Person which is not a Restricted Subsidiary of the Company, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any Restricted Subsidiary thereof in cash
by such Person during such period and the payment of dividends or similar distributions by that Person is
not at the time of such payment or distribution prohibited by operation of the terms of its charter or of any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that
Person and (e) the income (or loss) of any Person accrued prior to the date it becomes a Restricted
Subsidiary of the Company or is merged into or consolidated with any Restricted Subsidiaries of the
Company or that Person’s assets are acquired by any of the Restricted Subsidiaries of the Company.
“Consolidated Total Assets” means, as of any date of determination, the total assets of the Company
and the Restricted Subsidiaries on a consolidated basis in accordance with GAAP, as shown on the most
recent balance sheet of the Company delivered pursuant to Section 7.01 or, for the period prior to the time
any such statements are so delivered pursuant to Section 7.01, the pro forma financial statements otherwise
previously delivered to the Administrative Agent.
“Contingent Obligation” of a Person means any agreement, undertaking or arrangement by which
such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the
payment of or otherwise becomes or is contingently liable upon the obligation or liability of any other
Person, agrees to maintain the net worth, working capital or other financial condition of any other Person
or otherwise assures any creditor of such other Person against loss, including, without limitation, any
comfort letter, operating agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such
Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it
or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction
of the management or policies of a Person, whether through the ability to exercise voting power, by contract
or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. Without limiting the
generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other
Person possesses, directly or indirectly, power to vote 10% or more of the securities having ordinary voting
power for the election of directors, managing general partners or the equivalent.
“Control Agreement” means, with respect to any Deposit Account, Securities Account or
Commodity Account, an agreement, in form and substance reasonably satisfactory to the Administrative
Agent, among the Administrative Agent, the financial institution or other Person at which such account is
maintained and the Loan Party maintaining such account, effective to grant “control” (as defined under the
applicable UCC) over such account to the Administrative Agent.
“Controlled Account Bank” means each bank with whom Deposit Accounts of any of the Loan
Parties are maintained and with whom a Control Agreement has been, or is required to be, executed in
accordance with the terms hereof.
15
“Controlled Deposit Account” means each Deposit Account (including all funds on deposit therein)
that is the subject of an effective Control Agreement and that is maintained by any Loan Party with a
financial institution reasonably approved by the Administrative Agent.
“Controlled Entity” means, with respect to any Person, (a) its Subsidiaries and Affiliates, (b) its
officers, directors, employees and agents and (c) the officers, directors, employees and agents of such
Subsidiaries and Affiliates.
“Core Business” means any material line of business conducted by the Company and its
Subsidiaries as of the Closing Date and any business directly related thereto.
“Cost” means (a) with respect to Aircraft Parts, the lower of (i) cost (as reflected in the general
ledger of such Person) and (ii) market value, in each case, determined in accordance with GAAP calculated
on a first-in, first-out basis and in accordance with the Loan Parties’ accounting practices as in effect on the
Closing Date and (b) with respect to Equipment, an amount equal to the total consideration paid for such
Equipment, less delivery and installation charges and other soft costs determined by the Administrative
Agent in its Permitted Discretion.
“Credit Exposure” means, as to any Lender at any time, the aggregate amount of such Lender’s
Revolving Credit Exposure, Term Credit Exposure and CapX Credit Exposure at such time.
“Credit Extension” means each of the following: (a) a Borrowing and (b) a Letter of Credit
Extension.
“Credit Product Arrangements” means, collectively, (a) Swap Contracts between a Loan Party or
Subsidiary of a Loan Party and any Lender or Affiliate of a Lender and (b) Treasury Management and Other
Services.
“Credit Product Indemnitee” has the meaning assigned to such term in Section 10.12(a).
“Credit Product Notice” means the written notice from a Credit Product Provider and the Borrower
Agent to the Administrative Agent relating to Credit Product Arrangements in such form as may be
acceptable to the Administrative Agent.
“Credit Product Obligations” means Indebtedness and other obligations of any Loan Party or
Subsidiary of a Loan Party (a) arising under Credit Product Arrangements, (b) owing to any Credit Product
Provider and (c) only if owing to a Credit Product Provider other than BMO or its Affiliates, as to which a
Credit Product Notice has been delivered to the Administrative Agent in which the Borrower Agent has
expressly requested that such obligations be treated as Credit Product Obligations for purposes hereof;
provided, however, Credit Product Obligations shall not include Excluded Swap Obligations.
“Credit Product Provider” means (a) BMO or any of its Affiliates and (b) any other Lender or an
Affiliate of a Lender that is a provider under a Credit Product Arrangement, so long as such provider and
the Borrower Agent deliver a Credit Product Notice to the Administrative Agent by the later of the Closing
Date or, if not outstanding on the Closing Date, 10 days (or such later date as may be agreed to by the
Administrative Agent) following the entering into of the applicable Credit Product Arrangement,
(i) describing the Credit Product Arrangement and setting forth the maximum amount of Credit Product
Obligations thereunder to be secured by the Collateral (and, if all or any portion of such Credit Product
Obligations arise under Swap Contracts, the Swap Termination Value of such Credit Product Obligations)
and the methodology to be used in calculating such amount and (ii) agreeing to be bound by Section 10.12.
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“Credit Product Reserve” means (a) reserves which shall be established by the Administrative
Agent in an amount equal to not less than the last reported Swap Termination Value (as given in accordance
with the definition of Credit Product Obligation) of the then outstanding Priority Swap Obligations for the
account of the Loan Parties or their Affiliates, and (b) reserves established by the Administrative Agent
from time to time in its Permitted Discretion to reflect the reasonably anticipated liabilities in respect of the
then outstanding Credit Product Obligations.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, 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 from time to time in effect and affecting the rights of creditors generally.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving
of any notice, the passage of time, or both, would unless cured or waived be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Margin
with respect to Base Rate Loans plus (c) 2% per annum; provided, however, that (i) with respect to a LIBOR
Loan, until the end of the Interest Period during which the Default Rate is first applicable, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to
such LIBOR Loan plus 2% per annum, and thereafter as set forth in the portion of this sentence preceding
this proviso, and (ii) with respect to Letter of Credit Fees, the Default Rate shall equal the Letter of Credit
Fee, then in effect plus 2% per annum, in each case to the fullest extent permitted by applicable Laws.
“Defaulting Lender” means, subject to Section 2.17(b), any Lender that (a) has failed to (i) fund all
or any portion of its Loans within two Business Days of the date such Loans were required to be funded
hereunder unless such Lender notifies the Administrative Agent and the Borrower Agent in writing that
such failure is the result of such Lender’s good faith determination that one or more conditions precedent
to funding (each of which conditions precedent, together with any applicable default, shall be specifically
identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Letter of Credit
Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder
(including, in the case of any Revolving Credit Lender, in respect of its participations in Letters of Credit
or Swing Line Loans) within two Business Days of the date when due, (b) has notified any Borrower, the
Administrative Agent, the Letter of Credit Issuer or the Swing Line Lender in writing that it does not intend
to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such
writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such
position is based on such Lender’s good faith determination that a condition precedent to funding (which
condition precedent, together with any applicable default, shall be specifically identified in such writing or
public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by
the Administrative Agent or the Borrower Agent, to confirm in writing to the Administrative Agent and the
Borrower Agent that it will comply with its prospective funding obligations hereunder (provided that such
Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written
confirmation by the Administrative Agent and the Borrower Agent), or (d) has, or has a direct or indirect
parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had
appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of
creditors or similar Person charged with reorganization or liquidation of its business or assets, including the
Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a
capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting
Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct
or indirect parent company thereof by a Governmental Authority so long as such ownership interest does
not result in or provide such Lender with immunity from the jurisdiction of courts within the United States
or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such
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Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with
such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under
any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and
such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) upon delivery of written
notice of such determination by the Administrative Agent to the Borrower Agent, the Letter of Credit Issuer,
the Swing Line Lender and each other Lender.
“Dilution Percent” means the percent, determined for the most recent Measurement Period, equal
to (a) bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos and other
dilutive items with respect to Accounts, divided by (b) gross sales.
“Dilution Reserve” means, at any date of determination, (a) the percentage amount by which the
Dilution Percent exceeds five percent (5%) times (b) the amount of Eligible Accounts of the Loan Parties.
“Direct Foreign Subsidiary” means a Subsidiary, other than a Domestic Subsidiary that is not a
CFCHC, a majority of whose Voting Equity Interests are owned by the Borrowers or a Domestic
Subsidiary.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including
any sale and leaseback transaction and any casualty or condemnation) of any property (including any Equity
Interest), or part thereof, by any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Equity Interest” means any Equity Interest that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon the happening of any event,
(a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option
of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the Maturity Date, (b)
is convertible into or exchangeable for debt securities (unless only occurring at the sole option of the issuer
thereof), (c) (i) contains any repurchase obligation that may come into effect prior to, or (ii) provides the
holders thereof with any rights to receive any cash upon the occurrence of a change of control (other than
Existing Series E Preferred Stock and any other “Preferred Stock” under the Investment Agreement existing
on the Closing Date) or sale of assets prior to, in each case, the date that is 91 days after the Maturity Date;
provided, however, that (i) with respect to any Equity Interests issued to any employee or to any plan for
the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such
Equity Interest shall not constitute Disqualified Equity Interests solely because it may be required to be
repurchased by the Company or one of its Subsidiaries in order to satisfy applicable statutory or regulatory
obligations or as a result of such employee’s termination, resignation, death or disability and (ii) any class
of Equity Interest of such Person that by its terms authorizes such Person to satisfy its obligations thereunder
by delivery of an Equity Interest that is not a Disqualified Equity Interest, such Equity Interests shall not
be deemed to be Disqualified Equity Interests and (iii) only the portion of such Equity Interests which so
matures or is so mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option
of the holder thereof prior to such date shall be deemed to be Disqualified Equity Interests.
“Disqualified Institution” means, on any date, (a) any Person set forth on Schedule 11.06 and (b) so
long as no Event of Default has occurred and is continuing, any other Person that is a bona fide competitor
of the Company or any of its Subsidiaries, which Person has been designated by the Company as a
“Disqualified Institution” by written notice to the Administrative Agent and the Lenders (by the
Administrative Agent posting such notice to the Lenders) from time to time that is reasonably acceptable
to the Administrative Agent; provided, irrespective of the occurrence or continuance of an Event of Default,
“Disqualified Institutions” shall exclude any Person that the Company has designated as no longer being a
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“Disqualified Institution” by written notice delivered to the Administrative Agent and the Lenders from
time to time.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political
subdivision of the United States (but excluding any territory or possession thereof).
“Dominion Trigger Period” means the period (a) commencing on the day that (i) an Event of
Default occurs and is continuing or (ii) Adjusted Excess Availability is less than the greater of (x) ten
percent (10.0%) of the Maximum Borrowing Amount at such time and (y) $17,500,000 for a period of five
(5) consecutive Business Days and (b) continuing until the date that during the previous thirty (30)
consecutive days, (i) no Event of Default has existed and (ii) Adjusted Excess Availability has been equal
to or greater than the greater of (x) ten percent (10%) of the Maximum Borrowing Amount at such time and
(y) $ 17,500,000.
“DQ List” has the meaning specified in Section 11.06(d).
“EEA Financial Institution” means (a) any credit institution or investment firm established in any
EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity
established in an EEA Member Country which is a parent of an institution described in clause (a) of this
definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of
an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with
its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland,
Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted
with public administrative authority of any EEA Member Country (including any delegee) having
responsibility for the resolution of any EEA Financial Institution.
“Eligible Accounts” means Accounts due to a Loan Party that are determined by the Administrative
Agent, in its Permitted Discretion, to be Eligible Accounts. Except as otherwise agreed by the
Administrative Agent, none of the following shall be deemed to be Eligible Accounts:
(a) Accounts that are (i) not fully earned by performance (or otherwise represent a progress
billing or pre-billing) or (ii) not evidenced by an invoice which has been delivered to the applicable Account
Debtor;
(b) Accounts that have been outstanding for more than ninety (90) days from the invoice date
or more than sixty (60) days past the original due date whichever comes first;
(c) Accounts due from any Account Debtor, fifty percent (50%) of whose Accounts are
otherwise ineligible under clause (b) above;
(d) Accounts with respect to which (i) the representations and warranties set forth in the Loan
Documents with respect thereto are not true and correct in all material respects, (ii) a Loan Party does not
have good, valid and marketable title thereto, free and clear of any Lien (other than Permitted Liens
described in clauses (a), (c) and (n) of Section 8.02), (iii) are not subject to a perfected first priority Lien in
favor of the Administrative Agent, or (iv) the applicable Account Debtor has not been instructed to (or does
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not in fact) remit payment to a Deposit Account of a Loan Party subject to a Control Agreement; it being
understood that, during the period until September 15, 2017, the failure to satisfy this clause (d)(iii) or
(d)(iv) shall not otherwise deem the applicable Accounts to be ineligible;
(e) Accounts which are disputed or with respect to which a claim, counterclaim, offset or
chargeback has been asserted, but only to the extent of such dispute, counterclaim, offset or chargeback;
(f) Accounts which (i) do not arise out of a sale of goods or rendition of services in the
Ordinary Course of Business, (ii) do not arise upon credit terms usual to the business of the Loan Parties
or (iii) are not payable in Dollars or Canadian dollars;
(g) Accounts (i) upon which a Loan Party’s right to receive payment is not absolute or is
contingent upon the fulfillment of any condition whatsoever, including cash on delivery and cash in advance
transactions or (ii) as to which a Loan Party is not able to bring suit or otherwise enforce its remedies against
the related Account Debtor through judicial process;
(h) Accounts which are owed by (i) any other Loan Party or (ii) any Affiliate which is not a
Loan Party;
(i) Accounts for which all material consents, approvals or authorizations of, or registrations
or declarations with any Governmental Authority required to be obtained, effected or given in connection
with the performance of such Account by the Account Debtor or in connection with the enforcement of
such Account by the Administrative Agent have not been duly obtained, effected or given or are not in full
force and effect;
(j) Accounts due from an Account Debtor which is the subject of any bankruptcy, insolvency
or similar proceeding under any Debtor Relief Laws, has had a trustee or receiver appointed for all or a
substantial part of its property, has made an assignment for the benefit of creditors or has suspended its
business;
(k) Accounts due from any Governmental Authority, except to the extent that the subject
Account Debtor is the federal government of the United States of America and has complied with the
Federal Assignment of Claims Act of 1940 and any similar state legislation;
(l) Accounts (i) owing from any Account Debtor that is also a supplier to or creditor of a Loan
Party unless such Person has waived any right of setoff in a manner reasonably acceptable to the
Administrative Agent in its Permitted Discretion but only to the extent of the aggregate amount of such
Loan Party’s liability to such Account Debtor, (ii) to the extent representing any manufacturer’s or
supplier’s allowances, credits, discounts, incentive plans or similar arrangements entitling such Loan Party
to discounts on future purchase therefrom, (iii) to the extent constituting amounts owed with respect to
loans or advances, or (iv) to the extent relating to payment of interest, fees or late charges;
(m) Accounts arising out of sales on a xxxx-and-hold, guaranteed sale, sale-or-return, sale on
approval or consignment basis or subject to any right of return, setoff or charge back, but only to the extent
of such right of return, setoff or charge back;
(n) Accounts arising out of sales to an Account Debtor which either (i) does not maintain its
chief executive office in the United States or Canada or (ii) is not organized under the laws of the United
States or Canada or any state or province thereof;
(o) Accounts that are evidenced by a judgment, Instrument or Chattel Paper;
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(p) Accounts due from an Account Debtor and its Affiliates, the aggregate of which Accounts
due from such Account Debtor represents more than twenty-five percent (25%) of all then outstanding
Accounts owed to the Loan Parties, but only to the extent of such excess;
(q) Accounts that remain open after the applicable Account Debtor has made a partial payment
in respect of the applicable invoice (whether or not the applicable Account Debtor has provided an
explanation for such partial payment), but only with respect to such Account;
(r) Accounts for which the applicable Account Debtor tendered a check or other item of
payment in full or partial satisfaction and such check or other item of payment has been returned by the
financial institution on which it is drawn; or
(s) Accounts for which payment has been received by the applicable Loan Party but such
payment has not been applied to the applicable Account.
“Eligible Aircraft” means Aircraft owned by a Loan Party that is determined by the Administrative
Agent, in its Permitted Discretion, to be Eligible Aircraft. Except as otherwise agreed by the Administrative
Agent, the following Aircraft shall not be included in Eligible Aircraft:
(a) Aircraft (i) the ownership of which is not registered in the United States, (ii) as to which a
Loan Party does not have good, valid, and marketable title or (iii) as to which such Loan Party is not the
registered owner;
(b) Aircraft as to which a Loan Party does not have, at all times, actual and exclusive
possession thereof, other than at such times during which the Aircraft is in the possession of a licensed
maintenance provider for customary maintenance and repairs in the Ordinary Course of Business;
(c) Aircraft that (i) are not subject to a valid and perfected first-priority Lien in favor of the
Administrative Agent pursuant to an Aircraft Mortgage (ii) are not subject to Aircraft Related Documents,
or (iii) are subject to any Lien (other than Permitted Liens described in clauses (a), (c), (d), (m) and (n) of
Section 8.02); it being understood that, during the period until September 15, 2017, the failure to satisfy
this clause (c)(i) shall not otherwise deem the applicable Aircraft to be ineligible;
(d) Aircraft with respect to which the representations and warranties set forth in the Loan
Documents with respect thereto are not true and correct in all material respects; or
(e) Aircraft that are not used or held for use in the Ordinary Course of Business exclusively
for the transportation of goods for hire.
“Eligible Aircraft Parts” means Aircraft Parts of a Loan Party (excluding Aircraft Parts constituting
part of an Aircraft) that are determined by the Administrative Agent, in its Permitted Discretion, to be
Eligible Aircraft Parts. Except as otherwise agreed by the Administrative Agent, the following items of
Aircraft Parts shall not be included in Eligible Aircraft Parts:
(a) Aircraft Parts that are not solely owned by a Loan Party or a Loan Party does not have good
and valid title thereto;
(b) Aircraft Parts constituting part of an Aircraft;
(c) Aircraft Parts with respect to which the representations and warranties set forth in the Loan
Documents with respect thereto are not true and correct in all material respects;
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(d) Aircraft Parts that are leased by or are on consignment to a Loan Party;
(e) Aircraft Parts that are not located in the United States of America (excluding territories or
possessions of the United States);
(f) Aircraft Parts that are not at a location that is owned by a Loan Party, provided, however,
that such Aircraft Parts that are located on leased premises or in the possession of a warehouseman, bailee,
processor, repairman, mechanic or similar other Person in the Ordinary Course of Business shall not be
excluded from Eligible Aircraft Parts under this clause (f) so long as the lessor or such Person possessing
such Aircraft Parts have delivered a Lien Waiver to the Administrative Agent or, if elected by the
Administrative Agent, an appropriate Rent and Charges Reserve has been established; it being understood
that, during the 90 day period immediately following the Closing Date, such location or warehouse need
not be subject to a Lien Waiver, and the lack thereof shall not otherwise deem the applicable Aircraft Parts
to be ineligible;
(g) Aircraft Parts held at any location (owned or a third-party location) with an aggregate Cost
of Aircraft Parts at such location of less than $100,000, notwithstanding receipt of a Lien Waiver;
(h) Aircraft Parts that are in transit; provided that any Aircraft Parts in transit between any
location maintained by or on behalf of an Air Carrier and any Aircraft Parts Designated Location shall not
be excluded pursuant to this clause (f) solely because such Aircraft Parts are in transit in the Ordinary
Course of Business;
(i) Aircraft Parts that are comprised of goods which (i) are damaged, defective, “seconds” or
otherwise unmerchantable, (ii) have been returned or are to be returned to the vendor or (iii) are
discontinued products, obsolete or slow moving;
(j) Aircraft Parts consisting of work-in-process (unless work-in-progress approved by the
Administrative Agent in its Permitted Discretion);
(k) Aircraft Parts consisting of promotional, marketing, packaging and shipping materials or
supplies used or consumed in the Loan Parties’ business and other similar non-merchandise categories;
(l) Aircraft Parts that are not in compliance with all standards imposed by any Governmental
Authority having regulatory authority over such Aircraft Parts, its use or sale;
(m) Aircraft Parts that are subject to any warehouse receipt, xxxx of lading or negotiable
Document that has not been issued to or in the name of the Administrative Agent;
(n) Aircraft Parts consisting of or containing Hazardous Materials;
(o) Aircraft Parts that (i) are not subject to a perfected first priority Lien in favor of the
Administrative Agent, or (ii) are subject to any Lien (other than Permitted Liens described in clauses (a),
(c), (d), (m) and (n) of Section 8.02); it being understood that, during the period until September 15, 2017,
the failure to satisfy this clause (o)(i) shall not otherwise deem the applicable Aircraft Parts to be ineligible;
(p) Aircraft Parts that are not insured in compliance with the provisions of this Agreement and
the other Loan Documents;
(q) Aircraft Parts not on a perpetual schedule or equivalent Company prepared schedule;
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(r) Aircraft Parts that consists of xxxx and hold goods or goods that have been sold but not yet
delivered; or
(s) Aircraft Parts that are subject to any License or other arrangement that restricts such Loan
Party’s or the Administrative Agent’s right to dispose of such Aircraft Parts, unless (i) Administrative
Agent has received an appropriate Lien Waiver; and (ii) such Loan Parties have not received notice of a
dispute in respect of any such License or other arrangement.
“Eligible Assignee” means (a) a Lender or any of its Affiliates; (b) an Approved Fund; and (c) any
other Person (other than a natural person) approved by (i) the Administrative Agent, the Letter of Credit
Issuer and the Swing Line Lender (each such approval not to be unreasonably withheld or delayed), and (ii)
unless an Event of Default has occurred and is continuing, the Borrower Agent (such approval not to be
unreasonably withheld or delayed); provided that, notwithstanding the foregoing, “Eligible Assignee” shall
not include a Loan Party or any of the Loan Parties’ Affiliates or any Disqualified Institution.
“Eligible Credit Enhanced Accounts” means, as of any date of determination thereof, without
duplication of other Eligible Accounts, Accounts due to a Loan Party that constitute Eligible Accounts, and
as to which either:
(a) such Accounts are fully backed by an irrevocable letter of credit on terms, and issued by a
financial institution, acceptable to the Administrative Agent in its Permitted Discretion and such irrevocable
letter of credit is in the possession of the Administrative Agent;
(b) such Accounts are supported by credit insurance acceptable to the Administrative Agent in
its Permitted Discretion, naming the Administrative Agent as an additional insured and loss payee
(calculated net of the amount of any premiums, deductibles, co-insurance, fees or similar costs of and
amounts relating to such credit insurance payable by any Loan Party); and/or
(c) the applicable Account Debtor maintains an investment grade rating from either S&P or
Xxxxx’x.
“Eligible Equipment” means Eligible Rolling Stock and Eligible Aircraft.
“Eligible Foreign Accounts” means, as of any date of determination thereof, without duplication of
other Eligible Accounts, Accounts due to a Loan Party that do not qualify as Eligible Accounts solely
because of their failure to comply with clause (n) of the definition of Eligible Accounts, but as to which the
Account Debtor maintains its chief executive office in, and is organized under the laws of, Australia,
Austria, Belgium, Denmark, Finland, France, Germany, Hong Kong, Ireland, Japan, the Netherlands, New
Zealand, Norway, Portugal, Puerto Rico, Sweden, Switzerland, or the United Kingdom.
“Eligible Rolling Stock” means Rolling Stock owned by a Loan Party that is determined by the
Administrative Agent, in its Permitted Discretion, to be Eligible Rolling Stock. Except as otherwise agreed
by the Administrative Agent, the following items of Rolling Stock shall not be included in Eligible Rolling
Stock:
(a) Rolling Stock as to which a Loan Party does not have good, valid, and marketable title;
(b) Rolling Stock as to which a Loan Party does not have actual and exclusive possession
thereof (either directly or, in the Ordinary Course of Business, through a bailee, processor, or agent of such
Loan Party);
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(c) with respect to such item of Rolling Stock, such item of Rolling Stock is not subject to a
valid certificate of title issued in the name of a Loan Party which, lists the Administrative Agent (or the
Vehicle Title Service Provider) as the first and sole lienholder; it being understood that, during the period
until September 15, 2017, the failure to satisfy this clause (c) shall not otherwise deem the applicable
Rolling Stock to be ineligible;
(d) Rolling Stock with respect to which the representations and warranties set forth in the Loan
Documents are not true and correct in all material respects; or
(e) Rolling Stock that is not used or held for use in the Ordinary Course of Business for the
transportation of goods.
“Eligible Unbilled Accounts” means, as of any date of determination thereof, without duplication
of other Eligible Accounts, Accounts due to a Loan Party that do not qualify as Eligible Accounts solely
because of their failure to comply with clause (a)(ii) of the definition of Eligible Accounts, but as to which:
(a) the goods have been shipped and/or the services have been completed, but the Account
Debtor has not been billed; and
(b) the Account has been unbilled from the date of shipment or performance, as applicable, for
not more than 30 days.
“Environmental Laws” means any and all federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses,
agreements or governmental restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to hazardous substances or wastes,
air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities), of a Loan Party or any of its
Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other
ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or
acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such
Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other
ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition
from such Person of such shares (or such other interests), and all of the other ownership or profit interests
in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and
whether or not such shares, warrants, options, rights or other interests are outstanding on any date of
determination.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common
control with any Loan Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m)
and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
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“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal
of any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a
plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(3) of ERISA or
a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the
institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a
plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or
Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other
than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or
any ERISA Affiliate.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the
Loan Market Association (or any successor thereto), as in effect from time to time.
“Eurocurrency liabilities” has the meaning specified in Section 3.04(e).
“Event of Default” has the meaning specified in Section 9.01.
“Exchange Act” means the Securities Exchange Act of 1934 and the regulations promulgated
thereunder.
“Excluded Deposit Account” (a) Deposit Accounts the balance of which consists exclusively of
withheld income taxes and federal, state or local employment taxes, (b) all Deposit Accounts constituting
(and the balance of which consists solely of funds set aside in connection with) payroll accounts, trust or
escrow accounts, or accounts dedicated to the payment of accrued employee benefits, medical, dental and
employee benefits claims to employees of any Loan Party, (c) zero balance disbursement accounts and
(d) other Deposit Accounts maintained in the Ordinary Course of Business containing cash amounts that
do not exceed at any time $50,000 for any such account and $250,000 in the aggregate for all such accounts
under this clause (d).
“Excluded Equity Interests” shall mean (a) any of the outstanding Voting Equity Interests of any
CFC or CFCHC that is a Direct Foreign Subsidiary of a Loan Party in excess of 65% of all the Voting
Equity Interests of such CFC or CFCHC, (b) any Voting Equity Interests of any CFC or CHCHC that is not
a Direct Foreign Subsidiary of a Loan Party, (c) the Equity Interests of a Subsidiary that is not a wholly-
owned Subsidiary the pledge of which would violate a contractual obligation to the owners of the other
Equity Interests of such Subsidiary (other than any such owners that are the Company or Affiliates of the
Company) that is binding on or relating to such Equity Interests, or the applicable organizational documents,
joint venture agreement or shareholders’ agreement of such Subsidiary, and (d) Equity Interests of any
Immaterial Subsidiary or Unrestricted Subsidiaries.
“Excluded Real Property” means (a) any fee-owned Real Property of a Credit Party with a Fair
Market Value of less than $2,500,000 individually, (b) any Real Property that is not pledged to secure the
Permitted Term Debt, and (c) any Real Property with respect to which, in the reasonable judgment of the
Administrative Agent the cost (including as a result of adverse tax consequences) of providing a Mortgage
shall be excessive in view of the benefits to be obtained by the Lenders.
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“Excluded Subsidiary” means (a) each Subsidiary that is not a wholly-owned Subsidiary (for so
long as such Subsidiary remains a non-wholly-owned Subsidiary), (b) each Immaterial Subsidiary, (c) (i)
any Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of the Code (a
“CFC”), (ii) any Subsidiary that owns no material assets other than the Capital Stock or indebtedness of
one or more CFCs and/or one or more CFCHCs (a “CFCHC”) and (iii) any direct or indirect Subsidiary of
any CFC or CFCHC and (d) any Unrestricted Subsidiary; provided, however that, notwithstanding the
foregoing, no Borrower shall be an Excluded Subsidiary.
“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and
to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party
of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the
Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission
(or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any
reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the
regulations thereunder at the time the Guarantee of such Loan Party or the grant of such Lien becomes
effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement
governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that
is attributable to swaps for which such Guarantee or Lien is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or
required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by
net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as
a result of such Recipient being organized under the laws of, or having its principal office or, in the case of
any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision
thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes
imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in
a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such
interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower Agent
under Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that,
pursuant to Section 3.01(a)(ii) or (c), amounts with respect to such Taxes were payable either to such
Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately
before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with
Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“Existing Letters of Credit” means the letters of credit identified on Schedule 1.01 hereto.
“Existing Series E Preferred Stock” means the “Series E Preferred Stock” as defined in the
Investment Agreement.
“Existing Series F Preferred Stock” means the “Series F Preferred Stock” as defined in the
Investment Agreement.
“Extraordinary Expenses” means all costs, expenses, liabilities or advances that Administrative
Agent incurs or makes during a Default or an Event of Default, or during the pendency of an proceeding of
any Loan Party under any Debtor Relief Laws, including those relating to (a) any audit, inspection,
repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale,
collection, or other preservation of or realization upon any Collateral; (b) any action, arbitration or other
proceeding (whether instituted by or against Administrative Agent, any Lender, any Loan Party, any
representative of creditors of a Loan Party or any other Person) in any way relating to any Collateral
(including the validity, perfection, priority or avoidability of Administrative Agent’s Liens with respect to
any Collateral), Loan Documents, Letters of Credit or Obligations, including any lender liability or other
26
claims; (c) the exercise, protection or enforcement of any rights or remedies of Administrative Agent in, or
the monitoring of, any proceeding applicable to any Loan Party under any Debtor Relief Laws;
(d) settlement or satisfaction of any taxes, charges or Liens with respect to any Collateral; (e) any
enforcement action; (f) negotiation and documentation of any modification, waiver, workout, restructuring
or forbearance with respect to any Loan Documents or Obligations; and (g) Protective Advances. Such
costs, expenses and advances include transfer fees, Other Taxes, storage fees, insurance costs, permit fees,
utility reservation and standby fees, legal fees, appraisal fees, brokers’ fees and commissions, auctioneers’
fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees
of any Loan Party or independent contractors in liquidating any Collateral, and travel expenses.
“Facilities” means the Term Loan Facility, the CapX Facility and the Revolving Credit Facility,
and “Facility” means any of them.
“Facility Termination Date” means the date as of which Payment in Full has occurred.
“Fair Market Value” means, with respect to any asset or any group of assets, as of any date of
determination, the value of the consideration obtainable in a sale of such assets at such date of determination
assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly
manner over a reasonable period of time giving regard to the nature and characteristics of such asset.
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards
Board.
“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) and any current or future regulations or official interpretations thereof and any agreements entered
into pursuant to Section 1471(b)(1) of the Code.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the
rates on overnight federal funds transactions with members of the Federal Reserve System arranged by
federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a
whole multiple of 1/100 of 1%) charged to BMO on such day on such transactions as determined by the
Administrative Agent.
“Fee Letter” means the letter agreement, dated June 9, 2017 among the Company, the
Administrative Agent and BMO Capital.
“Field Exam” means any visit and inspection of the properties, assets and records of any Loan Party
during the term of this Agreement, which shall include access to such properties, assets and records
(including maintenance records of any Rolling Stock, Aircraft, or Aircraft Parts) sufficient to permit the
Administrative Agent or its representatives to examine, audit and make extracts from any Loan Party’s
books and records, make examinations and audits of any Loan Party’s other financial matters and Collateral
as Administrative Agent deems appropriate in its Permitted Discretion, and discussions with its officers,
employees, agents, advisors and independent accountants regarding such Loan Party’s business, financial
condition, assets, prospects and results of operations.
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“FILO Amount” shall mean the lesser of (a) 5.0% (reduced by 0.417% on the end of each fiscal
quarter, commencing September 30, 2017) of Eligible Accounts (other than Eligible Credit Enhanced
Accounts) and Eligible Unbilled Accounts and (b) $20,000,000 (reduced by $1,666,666.67 on the end of
each fiscal quarter, commencing September 30, 2017); provided that the FILO Amount shall be zero on
and after July 21, 2020.
“FILO Loan” means a Revolving Credit Loan that is borrowed and deemed outstanding as a “FILO
Loan” pursuant to Section 2.01(a).
“FIRREA” means The Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
“Fixed Charge Trigger Period” means the period (a) commencing on the day when Adjusted Excess
Availability is less than the greater of (i) $17,500,000 and (ii) 10.0% of the Maximum Borrowing Amount
and (b) continuing until the day Adjusted Excess Availability exceeds the greater of (i) $17,500,000 and
(ii) 10.0% of the Maximum Borrowing Amount for thirty (30) consecutive days.
“FLSA” means the Fair Labor Standards Act of 1938.
“Foreign Activities Laws” has the meaning specified in Section 7.11.
“Foreign Lender” means (a) if the applicable Borrower is a U.S. Person, a Lender that is not a U.S.
Person, and (b) if the applicable Borrower is not a U.S. Person, a Lender that is resident or organized under
the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Freight Carrier” shall mean a motor transport, rail or other carrier that provides transportation of
property under contracts with shippers and receivers and/or brokers of general commodities.
“Freight Carrier Document” shall mean any agreement, instrument or other document pursuant to
which a Freight Carrier agrees to provide transportation of property on behalf of any other Person.
“Freight Payable” shall mean any and all freight or other charges payable to a Freight Carrier in
respect of transportation services provided by such Freight Carrier pursuant to a Freight Carrier Document
or otherwise.
“Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Credit
Lender, (a) with respect to the Letter of Credit Issuer, such Defaulting Lender’s Applicable Percentage of
the outstanding Letter of Credit Obligations other than Letter of Credit Obligations as to which such
Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders or
Cash Collateralized in accordance with the terms hereof, (b) with respect to the Swing Line Lender, such
Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which
such Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders
and (c) with respect to the Administrative Agent, such Defaulting Lender’s Applicable Percentage of
Protective Advances other than Protective Advances as to which such Defaulting Lender’s participation
obligation has been reallocated to other Revolving Credit Lenders.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the
ordinary course of its activities.
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“GAAP” means generally accepted accounting principles as in effect from time to time in the
United States, consistently applied.
“Governmental Authority” means the government of the United States or any other nation, or of
any political subdivision thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government (including any supra-
national bodies such as the European Union or the European Central Bank).
“Governmental Official” means any officer or employee of a Governmental Authority, or of a
public national or international organization, or any person acting in an official capacity for or on behalf of
any such Governmental Authority, or for or on behalf of any such public national or international
organization.
“Guarantee” means, as to any Person, any (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 (or any right, contingent or otherwise, of any holder of such
Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount
equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect
of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee”
as a verb has a corresponding meaning.
“Guarantor” means each Person who executes or becomes a party to this Agreement as a guarantor
pursuant to Article XII or otherwise executes and delivers a guaranty agreement acceptable to the
Administrative Agent guaranteeing any of the Obligations.
“Guarantor Payment” has the meaning specified in Section 2.15(c).
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous
or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Honor Date” has the meaning specified in Section 2.03(c)(i).
“Immaterial Subsidiary” means any Restricted Subsidiary the gross revenue or total assets of which
accounts for not more than (i) 2.5% of the Consolidated gross revenues (after intercompany eliminations)
of the Company and the Restricted Subsidiaries and (ii) 2.5% of Consolidated Total Assets (after
intercompany eliminations), in each case, as of the last day of the most recently completed fiscal quarter as
29
reflected on the financial statements for such quarter. If the Restricted Subsidiaries that constitute
Immaterial Subsidiaries pursuant to the previous sentence account for, in the aggregate, more than (i) 5%
of such consolidated gross revenues (after intercompany eliminations) or (ii) 5% of Consolidated Total
Assets (after intercompany eliminations), each as described in the previous sentence, then the term
“Immaterial Subsidiary” shall exclude each such Restricted Subsidiary (starting with the Restricted
Subsidiary that accounts for the most consolidated gross revenues or Consolidated Total Assets and then in
descending order) necessary to limit the Immaterial Subsidiaries as a group to the lesser of 5% of the
consolidated gross revenues and 5% of Consolidated Total Assets, each as described in the previous
sentence.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar instruments or upon which interest
is customarily paid;
(b) all direct or Contingent Obligations of such Person arising under or in respect of letters of
credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and other
financial products and services (including treasury management and commercial credit card, merchant card
and purchase or procurement card services);
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the Ordinary Course of Business) and any accrued and unpaid
obligations with respect to the Permitted Earn-Out Payments or similar payments under other Acquisition
documents;
(e) indebtedness secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) obligations under Capital Leases and Synthetic Lease Obligations of such Person;
(g) all obligations of such Person with respect to the redemption, repayment or other
repurchase or payment in respect of any Disqualified Equity Interest; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited liability
company) in which such Person is a general partner or a joint venturer, to the extent such Indebtedness is
recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be
deemed to be the Swap Termination Value thereof as of such date. The amount of any Capital Lease or
Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness
in respect thereof as of such date.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to
any payment made by or on account of any obligation of any Loan Party under any Loan Document and
(b) to the extent not otherwise described in clause (a), Other Taxes.
30
“Indemnitees” has the meaning specified in Section 11.04(b).
“Information” has the meaning specified in Section 11.07.
“Insolvency Event” means, with respect to any Person:
(a) the commencement of: (i) a voluntary case by such Person under the Bankruptcy Code or
(ii) the seeking of relief by such Person under other Debtor Relief Laws;
(b) the commencement of an involuntary case or proceeding against such Person under the
Bankruptcy Code or other Debtor Relief Laws and the petition or other filing is not controverted or
dismissed within sixty (60) days after commencement of the case or proceeding;
(c) a custodian (as defined in the Bankruptcy Code or equal term under any other Debtor Relief
Law, including a receiver, interim receiver, receiver manager, trustee or monitor) is appointed for, or takes
charge of, all or substantially all of the property of such Person;
(d) such Person commences (including by way of applying for or consenting to the
appointment of, or the taking charge by, a rehabilitator, receiver, interim receiver, custodian, trustee,
monitor, conservator or liquidator (or any equal term under any other Debtor Relief Laws) (collectively, a
“conservator”) of such Person or all or any substantial portion of its property) any other proceeding under
any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, liquidation,
rehabilitation, conservatorship or similar law of any jurisdiction whether now or hereafter in effect relating
to such Person;
(e) such Person is adjudicated by a court of competent jurisdiction to be insolvent or bankrupt;
(f) any order of relief or other order approving any such case or proceeding referred to in
clauses (a) or (b) above is entered;
(g) such Person suffers any appointment of any conservator or the like for it or any substantial
part of its property that continues undischarged or unstayed for a period of sixty (60) days; or
(h) such Person makes a compromise, arrangement or assignment for the benefit of creditors
or generally does not pay its debts as such debts become due.
“Intellectual Property” means all past, present and future: trade secrets, know-how and other
proprietary information; trademarks, uniform resource locations (URLs), internet domain names, service
marks, sound marks, trade dress, trade names, business names, designs, logos, slogans (and all translations,
adaptations, derivations and combinations of the foregoing) indicia and other source and/or business
identifiers, and the goodwill of the business relating thereto and all registrations or applications for
registrations which have heretofore been or may hereafter be issued thereon throughout the world;
copyrights (including copyrights for computer programs) and copyright registrations or applications for
registrations which have heretofore been or may hereafter be issued throughout the world and all tangible
property embodying the copyrights, unpatented inventions (whether or not patentable); patent applications
and patents; industrial design applications and registered industrial designs; license agreements related to
any of the foregoing and income therefrom; books, records, writings, computer tapes or disks, flow
diagrams, specification sheets, computer software, source codes, object codes, executable code, data,
databases and other physical manifestations, embodiments or incorporations of any of the foregoing; the
right to xxx for all past, present and future infringements of any of the foregoing; all other intellectual
property; and all common law and other rights throughout the world in and to all of the foregoing.
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“Intercreditor Agreement” means any intercreditor agreement with a holder of Indebtedness
permitted hereby that is required to be (or otherwise may be) subject to an “Intercreditor Agreement”,
such agreement to contain terms and provisions reasonably acceptable to the Administrative Agent,
and shall include (a) any intercreditor agreement entered into with the holders of any Permitted Term Debt
and (b) any intercreditor and/or subordination agreement entered into with any holder of Subordinated
Indebtedness.
“Interest Payment Date” means, (a) as to any LIBOR Loan, (i) the last day of each Interest Period
applicable to such LIBOR Loan; provided that if any Interest Period for a LIBOR Loan is greater than three
months, the respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates (ii) any date that such Loan is prepaid or converted, in whole or in part, and
(iii) the Maturity Date; and (b) as to any Base Rate Loan (including a Swing Line Loan), (i) the first day of
each month with respect to interest accrued through the last day of the immediately preceding month, (ii)
any date that such Loan is prepaid or converted, in whole or in part, and (iii) the Maturity Date; provided,
further, that interest accruing at the Default Rate shall be payable from time to time upon demand of the
Administrative Agent.
“Interest Period” means, as to each LIBOR Loan, the period commencing on the date such LIBOR
Loan is disbursed or converted to or continued as a LIBOR Loan and ending, in each case, on the date one,
two, three or six months thereafter, as selected by the Borrower Agent in its Committed Loan Notice;
provided that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
“International Registry” means the international registry established in accordance with the Cape
Town Convention.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person
(including through the purchase of an option, warrant or convertible or similar type of security), (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of
any other debt or equity participation or interest in, another Person, including any partnership or joint
venture interest in such other Person and any arrangement pursuant to which the investor Guarantees
Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute a business unit. For purposes of compliance with
Section 8.03, the amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment, less all returns of principal or equity
thereon (and without adjustment by reason of the financial condition of such other Person) and shall, if
made by the transfer or exchange of property other than cash, be deemed to have been made in an original
principal or capital amount equal to the Fair Market Value of such property at the time of such transfer or
exchange.
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“Investment Agreement” means that certain Investment Agreement dated as of May 1, 2017 by and
among the Company, Xxxxxxx Associates, L.P., a Delaware limited partnership, and Brockdale Investments
LP, a Delaware limited partnership.
“IP Rights” rights of any Person to use any Intellectual Property.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or such later version thereof as may be
in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application,
and any other document, agreement and instrument entered into by the Letter of Credit Issuer and any
Borrower (or any Subsidiary) or in favor the Letter of Credit Issuer and relating to any such Letter of Credit.
“Joinder” means a joinder agreement substantially in the form of Exhibit F to this Agreement.
“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules,
regulations, ordinances, codes and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
“Lender” has the meaning specified in the introductory paragraph hereto and, as the context
requires, includes the Letter of Credit Issuer and the Swing Line Lender.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such
in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time
to time notify the Borrower Agent and the Administrative Agent.
“Letter of Credit” means any standby or documentary letter of credit issued by a Letter of Credit
Issuer for the account of a Borrower (or any other Domestic Subsidiary thereof as to which all “know your
customer” or other similar requirements have been satisfied), or any indemnity, guarantee, exposure
transmittal memorandum or similar form of credit support issued by the Administrative Agent or a Letter
of Credit Issuer for the benefit of a Borrower (or any other Domestic Subsidiary thereof as to which all
“know your customer” or other similar requirements have been satisfied), and shall include the Existing
Letters of Credit.
“Letter of Credit Advance” means each Revolving Credit Lender’s funding of its participation in
any Letter of Credit Borrowing in accordance with its Applicable Revolving Credit Percentage. All Letter
of Credit Advances shall be denominated in Dollars.
“Letter of Credit Application” means an application and agreement for the issuance or amendment
of a Letter of Credit in the form from time to time in use by the Letter of Credit Issuer.
“Letter of Credit Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit
Borrowing.
“Letter of Credit Expiration Date” means, for any Letter of Credit, the day that is the earlier of (i)
one year from the date of issuance of such Letter of Credit and (ii) thirty days prior to the Maturity Date
(or, if such day is not a Business Day, the preceding Business Day); provided, however, that annually
33
renewable Letters of Credit may only be issued if the final expiry date is no later than thirty days prior to the
Maturity Date.
“Letter of Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or
extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“Letter of Credit Fees” means, collectively or individually as the context may indicate, the fees
with respect to Letters of Credit described in Section 2.09(b).
“Letter of Credit Issuer” means each of BMO, in its capacity as an issuer of the Existing Letters of
Credit and of any Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. At
any time there is more than one Letter of Credit Issuer, all singular references to the Letter of Credit Issuer
shall mean any Letter of Credit Issuer, either Letter of Credit Issuer, each Letter of Credit Issuer, the Letter
of Credit Issuer that has issued the applicable Letter of Credit, or both Letter of Credit Issuers, as the context
may require.
“Letter of Credit Obligations” means, as at any date of determination, (a) the aggregate undrawn
amount of all outstanding Letters of Credit, plus (b) the aggregate of all Unreimbursed Amounts, including
all Letter of Credit Borrowings, plus (c) the aggregate amount of all accrued and unpaid Letter of Credit
Fees. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with Section 1.07. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.
“Letter of Credit Sublimit” means an amount equal to the lesser of (a) $30,000,000 and (b) the
Aggregate Revolving Credit Commitments. The Letter of Credit Sublimit is part of, and not in addition to,
the Aggregate Revolving Credit Commitments.
“LIBOR Loan” means a Loan that bears interest a rate based on clause (a) of the definition of
“LIBOR Rate.”
“LIBOR Rate” means:
(a) for any Interest Period with respect to a LIBOR Loan, the rate per annum equal to (but in
no event less than zero) (i) the ICE Benchmark Administration (or the successor thereto if the ICE
Benchmark Administration is no longer making the LIBOR Rate available) LIBOR Rate (“ICE LIBOR”),
as published by Reuters (or such other commercially available source providing quotations of ICE LIBOR
as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time,
two London Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or, (ii) if
such rate is not available at such time for any reason, the rate per annum determined by the Administrative
Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the LIBOR Loan being made, continued or converted and with a
term equivalent to such Interest Period would be offered by such other authoritative source (as is selected
by the Administrative Agent in its sole reasonable discretion) to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m. (London time) two (2) London Banking Days
prior to the commencement of such Interest Period; and
(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum
equal to (but which shall never be less than zero) (i) ICE LIBOR, at approximately 11:00 a.m., London
34
time determined two London Banking Days prior to such date for Dollar deposits being delivered in the
London interbank market for a term of one month commencing that day or (ii) if such published rate is not
available at such time for any reason, the rate per annum determined by the Administrative Agent to be the
rate at which deposits in Dollars for delivery on the date of determination in same day funds in the
approximate amount of the Base Rate Loan being made or maintained and with a term equal to one month
would be offered by such other authoritative source (as is selected by the Administrative Agent in its sole
reasonable discretion) to major banks in the London interbank eurodollar market at their request at the date
and time of determination.
“License” means any license or agreement under which a Loan Party is granted IP Rights in
connection with any manufacture, marketing, distribution or disposition of Collateral, any use of assets or
property or any other conduct of its business.
“Licensor” means any Person from whom a Loan Party obtains IP Rights.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest, or any preference, priority or other
security agreement or preferential arrangement in the nature of a security interest of any kind or nature
whatsoever (including any conditional sale or other title retention agreement, any easement, right of way
or other encumbrance on title to Real Property, and any financing lease having substantially the same
economic effect as any of the foregoing).
“Lien Waiver” means an agreement, in form and substance reasonably satisfactory to the
Administrative Agent, by which (a) for any material Collateral located on leased premises or owned
premises subject to a mortgage, the lessor or mortgagee, as applicable, agrees to, among other things, waive
or subordinate any Lien it may have on the Collateral and permit the Administrative Agent to enter upon
the premises and remove the Collateral or to use the premises to store or dispose of the Collateral; (b) for
any Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder, such
Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any Documents in its
possession relating to the Collateral as agent for the Administrative Agent, and agrees to deliver the
Collateral to the Administrative Agent upon request; (c) for any Collateral held by a repairman, mechanic
or bailee, such Person acknowledges the Administrative Agent’s Lien, waives or subordinates any Lien it
may have on the Collateral, and agrees to deliver the Collateral to Administrative Agent upon request; and
(d) for any material Collateral subject to a Licensor’s IP Rights, the Licensor grants to the Administrative
Agent the right, vis-à-vis such Licensor, to enforce the Administrative Agent’s Liens with respect to such
material Collateral, including the right to dispose of it with the benefit of the Intellectual Property, whether
or not a default exists under any applicable License.
“Loan” means an extension of credit under Article II in the form of a Revolving Credit Loan, a
Term Loan, a CapX Loan, a Protective Advance or a Swing Line Loan.
“Loan Account” has the meaning assigned to such term in Section 2.11(a).
“Loan Documents” means this Agreement, each Note, each Security Instrument, each Committed
Loan Notice, Swing Line Loan Notice, the Vehicle Title Custodial Agreement, each Issuer Document, each
Borrowing Base Certificate, each Compliance Certificate, any Intercreditor Agreement, the Fee Letter, any
agreement creating or perfecting rights in Cash Collateral securing any Obligation hereunder and all other
instruments and documents heretofore or hereafter executed or delivered to or in favor of any Lender or the
Administrative Agent in connection with the Loans made and transactions contemplated by this Agreement,
but excluding, for the avoidance of doubt, Credit Product Arrangements.
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“Loan Obligations” means all Obligations other than amounts (including fees) owing by any Loan
Party pursuant to any Credit Product Arrangements.
“Loan Parties” means the Borrowers and each Guarantor.
“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and
between banks in the London interbank eurodollar market.
“Material Acquisition” means any Acquisition or series of related Acquisitions that involves the
payment of gross consideration by the Company in excess of $15,000,000.
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect on,
the operations, business, assets, properties, liabilities (actual or contingent), or financial condition of either
(i) the Borrowers, taken as a whole or (ii) the Company and its Restricted Subsidiaries, taken as a whole;
(b) a material impairment of the ability of the Loan Parties to perform their obligations under the Loan
Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability of
this Agreement or the other Loan Documents or on the ability of the Administrative Agent to collect any
Obligation or realize upon any material portion of the Collateral.
“Material Contract” means any agreement or arrangement to which a Loan Party or Restricted
Subsidiary is party (other than the Loan Documents) (a) that is deemed to be a material contract under the
Securities Act of 1933; (b) for which breach, termination, nonperformance or failure to renew could
reasonably be expected to have a Material Adverse Effect; or (c) that relates to Subordinated Debt or the
Permitted Term Debt, or to Indebtedness in an aggregate amount of $10,000,000 or more.
“Material Disposition” means any Disposition or series of related Dispositions that involves gross
proceeds to the Company in excess of $15,000,000.
“Material License” has the meaning assigned to such term in Section 7.15.
“Material Third-Party Agreement” has the meaning assigned to such term in Section 7.17(a).
“Maturity Date” means July 21, 2022.
“Maximum Borrowing Amount” means the lesser of (A) the Aggregate Revolving Credit
Commitments and (B) the Borrowing Base.
“Measurement Period” means, at any date of determination, the most recently completed trailing
twelve month period of the Company and its Restricted Subsidiaries for which financial statements have or
should have been delivered in accordance with Section 7.01(a) or 7.01(b).
“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting
of cash or Deposit Account balances provided to reduce or eliminate Fronting Exposure during the existence
of a Defaulting Lender, an amount equal to 105% of the Fronting Exposure of the Letter of Credit Issuer
with respect to Letters of Credit issued and outstanding at such time plus 105% of the Fronting Exposure
of the Administrative Agent with respect to Protective Advances outstanding at such time, (b) with respect
to Cash Collateral consisting of cash or Deposit Account balances provided in accordance with the
provisions of Section 2.16(a)(i) or 2.16(a)(ii), an amount equal to 105% of the Outstanding Amount of all
Letter of Credit Obligations, and (c) otherwise, an amount reasonably determined by the Administrative
Agent and the Letter of Credit Issuer.
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“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto.
“Mortgage Related Documents” means, with respect to any Real Property subject to a Mortgage,
and at the request of the Administrative Agent, the following, in form and substance reasonably satisfactory
to the Administrative Agent and received by the Lenders for review at least 15 days prior to the effective
date of the Mortgage: (a) an ALTA mortgagee title policy (or binder therefor) covering the Administrative
Agent’s interest under the Mortgage, by an insurer acceptable to the Administrative Agent, which must be
fully paid on such effective date; (b) such assignments of leases, estoppel letters, attornment agreements,
consents, waivers and releases as the Administrative Agent may reasonably require with respect to other
Persons having an interest in the Real Property; (c) an ALTA Survey by a licensed surveyor reasonably
acceptable to the Administrative Agent; (d) a life-of-loan flood hazard determination and, if the Real
Property is located in a flood plain, an acknowledged notice to borrower and flood insurance in an amount,
with endorsements and by an insurer acceptable to the Lenders; (e) a current appraisal of the Real Property,
prepared by an appraiser reasonably acceptable to the Administrative Agent; (f) an environmental
assessment, prepared by environmental engineers reasonably acceptable to the Administrative Agent, and
accompanied by such reports, certificates, studies or data as the Administrative Agent may reasonably
require; and (g) an environmental indemnity agreement and such other documents, instruments or
agreements as the Administrative Agent may reasonably require with respect to any environmental risks
regarding the Real Property.
“Mortgaged Property” means Real Property, other than Excluded Real Property, required from time
to time to be subject to a Mortgage pursuant to the terms of this Agreement.
“Mortgages” means the mortgages, leasehold mortgages, deeds of trust, leasehold deeds of trust
or deeds to secure debt executed by a Loan Party from time to time after the Closing Date as may
be required under this Agreement, in favor of the Administrative Agent, for the benefit of the Loan
Parties, by which such Loan Party has granted to the Administrative Agent, as security for the
Obligations, a Lien upon the Mortgaged Property described therein, together with all mortgages, deeds
of trust and comparable documents now or at any time hereafter securing the whole or any part of the
Obligations.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(4)
of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or
during the preceding five plan years, has made or been obligated to make contributions.
“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including
any Loan Party or any ERISA Affiliate) at least two of whom are not under common control, as such a plan
is described in Section 4064 of ERISA.
“Net Cash Proceeds” means, with respect to the Disposition of any asset of any Loan Party or any
Restricted Subsidiary, the excess, if any, of (i) the sum of the cash and cash equivalents received in
connection with such Disposition (including any cash received by way of deferred payment pursuant to, or
by monetization of, a note receivable, indemnification or other escrow, or otherwise, but only as and when
so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by such asset
and that is required to be repaid in connection with the Disposition thereof (other than Indebtedness under
the Loan Documents and Indebtedness owing to the Company or any Restricted Subsidiary), (B) the
reasonable out-of-pocket expenses incurred by such Loan Party or any Subsidiary in connection with such
Disposition, including any brokerage commissions, underwriting fees and discount, legal fees, investment
banking fees, accountant fees, finder’s fees and other similar fees and commissions, (C) taxes paid or
reasonably estimated to be payable by the Loan Party or any Restricted Subsidiary in connection with the
relevant Disposition, (D) the amount of any reasonable reserve required to be established in accordance
37
with GAAP against liabilities (other than taxes deducted pursuant to clause (C) above) to the extent such
reserves are (x) associated with the assets that are the object of such Disposition and (y) retained by such
Loan Party or applicable Restricted Subsidiary, and (E) the amount of any reasonable reserve for purchase
price adjustments and retained fixed liabilities reasonably expected to be payable by such Loan Party or
applicable Restricted Subsidiary in connection therewith to the extent such reserves are (1) associated with
the assets that are the object of such Disposition and (2) retained by such Loan Party or applicable Restricted
Subsidiary; provided that the amount of any subsequent reduction of any reserve provided for in clause (D)
or (E) above (other than in connection with a payment in respect of such liability) shall (X) be deemed to
be Net Cash Proceeds of such Disposition occurring on the date of such reduction, and (Y) if required,
immediately be applied to the prepayment of Loans in accordance with Section 2.06(c).
“New CapX Equipment” means newly manufactured CapX Equipment acquired by a Loan Party.
“NOLV” means with respect to the Loan Parties’ Aircraft Parts or Equipment, the net orderly
liquidation value of such Aircraft Parts or Equipment (a percentage of the Cost of such Aircraft Parts or
Equipment) that might be realized at an orderly, negotiated sale held within a reasonable period of time, net
of all liquidation expenses and net of reserves, as determined from time to time by reference to the most
recent Acceptable Appraisal; provided, however, that the NOLV shall be deemed to be 60.0% of the cost
thereof (as reflected in the Loan Parties’ general ledger) with respect to (a) acquired Aircraft Parts until such
time such Aircraft Parts are subject to an Acceptable Appraisal and (b) Disposed Aircraft Parts that is
deducted from the Borrowing Base.
“Non-Consenting Lender” has the meaning assigned to such term in Section 11.01.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such
time.
“Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).
“Note” means each or all of the Revolving Credit Loan Notes, the CapX Notes, and/or the Term
Loan Notes, as applicable.
“NPL” means the National Priorities List pursuant to CERCLA, as updated from time to time.
“Obligations” means (a) all amounts owing by any Loan Party to the Administrative Agent, any
Lender or any other Secured Party pursuant to this Agreement or any other Loan Document or otherwise
with respect to any Loan or Letter of Credit, including all Letter of Credit Obligations, and including all
principal, interest (including any interest accruing after the filing of any petition in bankruptcy or the
commencement of any proceeding under any Debtor Relief Law relating to any Loan Party, or would accrue
but for such filing or commencement, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding), reimbursement obligations, indemnification and reimbursement payments,
fees, costs and expenses (including all fees, costs and expenses of counsel to the Administrative Agent)
incurred in connection with this Agreement or any other Loan Document, whether direct or indirect,
absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder,
together with all renewals, extensions, modifications or refinancings thereof and (b) Credit Product
Obligations; provided, that Obligations of a Loan Party shall not include its Excluded Swap Obligations.
“OFAC” has the meaning specified in Section 7.11.
“OFAC Listed Person” shall have the meaning specified in Section 6.21.
38
“OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for
administering and enforcing. A list of OFAC Sanctions Programs may be found at
xxxx://xxx.xxxxxxxx.xxx/xxxxxxxx-xxxxxx/xxxxxxxxx/Xxxxxxxx/Xxxxx/Xxxxxxxx.xxxx.
“Ordinary Course of Business” means the ordinary course of business of the Company and its
Subsidiaries, consistent in all material respects with past practices and undertaken in good faith.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-
U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation
or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or
other form of business entity, the partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect thereto filed in connection with
its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation
or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“OSHA” means the Occupational Safety and Hazard Act of 1970.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a
present or former connection between such Recipient and the jurisdiction imposing such Tax (other than
connections arising from such Recipient having executed, delivered, become a party to, performed its
obligations under, received payments under, received or perfected a security interest under, engaged in any
other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan
or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing
or similar Taxes that arise from any payment made under, from the execution, delivery, performance,
enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with
respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with
respect to an assignment (other than an assignment made pursuant to Section 11.13).
“Outstanding Amount” means (a) with respect to CapX Loans, Term Loans, Revolving Credit
Loans, Protective Advances and Swing Line Loans on any date, the aggregate outstanding principal amount
thereof after giving effect to any Borrowings and any prepayments or repayments of Cap X Loans, Term
Loans, Revolving Credit Loans, Protective Advances or Swing Line Loans occurring on such date; and (b)
with respect to any Letter of Credit Obligations on any date, (i) the aggregate outstanding amount of such
Letter of Credit Obligations on such date after giving effect to any Letter of Credit Extension occurring on
such date plus and any other changes in the aggregate amount of the Letter of Credit Obligations as of such
date, including as a result of any reimbursements by the Borrowers of Unreimbursed Amounts and all Letter
of Credit Borrowings on such date.
“Overadvance” has the meaning given to such term in Section 2.01(d)(i)(A).
“Overadvance Loan” means a Base Rate Revolving Credit Loan made when an Overadvance exists
or is caused by the funding thereof.
“Overnight Rate” means, for any day and from time to time as in effect, the greater of (a) the Federal
Funds Rate and (b) an overnight rate determined by the Administrative Agent, the Letter of Credit Issuer,
or the Swing Line Lender, as the case may be, in accordance with banking industry rules on interbank
compensation.
39
“Participant” has the meaning assigned to such term in clause (d) of Section 11.06.
“Participant Register” has the meaning assigned to such term in clause (d) of Section 11.06.
“Patent Security Agreement” means any patent security agreement pursuant to which a Loan Party
assigns to Administrative Agent, for the benefit of the Secured Parties, such Person’s interests in its patents,
as security for the Obligations.
“PATRIOT Act” means United States Public Law 107-56, Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of
2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to
time in effect.
“Payment Conditions” means, with respect to any Specified Transaction, the satisfaction of the
following conditions:
(a) as of the date of any such Specified Transaction and immediately after giving effect thereto,
no Event of Default has occurred and is continuing;
(b) Adjusted Excess Availability immediately before and after giving Pro Forma Effect to such
Specified Transaction, and on an average basis during the thirty (30) consecutive day period ending on and
including the date of such Specified Transaction, shall be not less than, the greater of (A) 12.5 % of the
Maximum Borrowing Amount and (B) $20,000,000;
(c) the Consolidated Fixed Charge Coverage Ratio as of the end of the most recently ended
twelve month period prior to the making of such Specified Transaction, calculated on a Pro Forma Basis,
shall be equal to or greater than 1.00 to 1.00; provided that, the Consolidated Fixed Charge Coverage Ratio
test described in this clause (c) shall not apply if the Adjusted Excess Availability (calculated in order to
give Pro Forma Effect to such Specified Transaction) during the thirty (30) consecutive day period ending
on and including the date of such Specified Transaction is not less than the greater of (A) 17.5% of the
Maximum Borrowing Amount and (B) $28,000,000; and
(d) the Administrative Agent shall have received a certificate of a Responsible Officer of the
Borrower Agent certifying as to compliance with the preceding clauses and demonstrating (in reasonable
detail) the calculations required thereby.
“Payment in Full” means (a) the indefeasible payment in full in cash of all Obligations, together
with all accrued and unpaid interest and fees thereon, other than Letter of Credit Obligations that have been
fully Cash Collateralized in an amount equal to 105% of the amount thereof or as to which other
arrangements with respect thereto reasonably satisfactory to the Administrative Agent and the Letter of
Credit Issuer shall have been made, (b) the Commitments shall have terminated or expired, (c) the
obligations and liabilities of each Loan Party and its Affiliates under all Credit Product Arrangements shall
have been fully, finally and irrevocably paid and satisfied in full and the Credit Product Arrangements shall
have expired or been terminated, or other arrangements satisfactory to the applicable Credit Product
Providers shall have been made with respect thereto, and (d) all claims of the Loan Parties against any
Secured Party arising on or before the payment date in connection with the Loan Documents or any Credit
Product Arrangements, as applicable, shall have been released on terms reasonably acceptable to the
Administrative Agent or the applicable Credit Product Providers; provided that notwithstanding full
payment or Cash Collateralization of the Obligations as provided herein, the Administrative Agent shall not
be required to terminate its Liens in any Collateral unless, with respect to any damages the Administrative
Agent may incur as a result of the dishonor or return of Payment Items applied to Obligations,
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Administrative Agent receives (i) a written agreement, executed by Borrowers and any Person whose
advances are used in whole or in part to satisfy the Obligations, indemnifying Agent and Lenders from any
such damages; or (ii) such Cash Collateral as the Administrative Agent, in its reasonable discretion, deems
necessary to protect against any such damages.
“Payment Item” means each check, draft or other item of payment payable to a Borrower, including
those constituting proceeds of any Collateral.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Act” means the Pension Protection Act of 2006.
“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required
contributions (including any installment payment thereof) to Pension Plans and Multiemployer Plans and
set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of
the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412,
430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or
a Multiemployer Plan) that is maintained or is contributed to by any Loan Party and any ERISA Affiliate
and is either covered by Title IV of ERISA or is subject to the minimum funding standards under
Section 412 of the Code.
“Permitted Acquisition” means any Acquisition by a Loan Party so long as:
(a) the Person to be (or whose assets are to be) acquired does not oppose such Acquisition and
the line or lines of business of the Person to be acquired constitute Core Businesses;
(b) no Default or Event of Default shall have occurred and be continuing either immediately
prior to or immediately after giving effect to such Acquisition;
(c) the Payment Conditions are satisfied; and
(d) The Borrower Agent shall have furnished the Administrative Agent with ten (10) days’
prior written notice of such intended Acquisition and shall have furnished the Administrative Agent with a
current draft of the applicable acquisition documents (and final copies thereof as and when executed), and
to the extent available, appropriate financial statements of the Person which is the subject of such
Acquisition, pro forma projected financial statements for the twelve (12) month period following such
Acquisition after giving effect to such Acquisition (including balance sheets, cash flows and income
statements by month for the acquired Person, individually, and on a Consolidated basis with all Loan
Parties), and, to the extent available, such other information as the Administrative Agent may reasonably
request.
“Permitted Acquisitions CapX Equipment” means CapX Equipment acquired by a Loan Party in
connection with a Permitted Acquisition.
“Permitted Discretion” means a determination made in good faith and in the exercise of reasonable
(from the perspective of a secured asset-based lender) business judgment.
41
“Permitted Earn-Out Payments” means: (x) earn-out payments existing on the Closing Date and set
forth on Schedule 1.04, and (y) earn-out payments incurred after the Closing Date in connection with a
Permitted Acquisition or other Investment permitted by this Agreement.
“Permitted Liens” has the meaning specified in Section 8.02.
“Permitted Term Debt” means the Indebtedness of the Company evidenced by the Permitted Term
Debt Documents and satisfying the Permitted Term Debt Requirements.
“Permitted Term Debt Credit Agreement” means any credit agreement or similar loan document or
indenture among the Company, the guarantors signatory thereto, and the applicable term lender, note
purchaser or similar creditor, or trustee for the benefit of such creditors or noteholders, satisfying the
Permitted Term Debt Requirements, as amended, supplemented, restated or otherwise modified from time
to time in accordance with this Agreement and any applicable Intercreditor Agreement.
“Permitted Term Debt Documents” means the Permitted Term Debt Credit Agreement and all
material security agreements, guaranties, mortgages and other material related loan documents entered into
in connection therewith.
“Permitted Term Debt Requirements” means, with respect to any Permitted Term Debt, the
satisfaction of the following conditions with respect to such Indebtedness: (a) the aggregate outstanding
principal amount of such Indebtedness shall not exceed $90,000,000 plus accrued interest, dividends and
premiums, and reasonable fees and expenses incurred in connection with the refinancing of the Existing
Series E Preferred Stock at any time, (b) such Indebtedness shall not mature prior to the date that is 91 days
after the Maturity Date in effect at the time of the issuance of such Indebtedness, except upon the occurrence
of a change of control or similar event (including asset sales), in each case so long as the provisions relating
to change of control or similar events (including asset sales) included in the governing instrument of such
Indebtedness provide that the provisions of this Agreement must be satisfied prior to the satisfaction of such
provisions of such Indebtedness, (c) such Indebtedness is not Guaranteed by any Subsidiary of the Company
other than the Loan Parties, (d) such Indebtedness, if secured, is secured only by a first-priority Lien on
Real Property or a second-priority Lien on the other Collateral (or both), (e) the Permitted Term Debt
Documents include amortization provisions that are (i) customary for deals of such size and nature and (ii)
reasonably acceptable to the Administrative Agent, (f) the terms of the Permitted Term Debt Documents
are not materially more restrictive than the terms of this Agreement; (g) such Indebtedness shall be subject
to an Intercreditor Agreement reasonably satisfactory to the Administrative Agent, addressing (without
limitation) access, disposition, lien priority, and other customary terms, and (h) the Payment Conditions are
satisfied, after taking such Indebtedness into account.
“Person” means any natural person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including
a Pension Plan), maintained for employees of any Loan Party or any ERISA Affiliate or any such Plan to
which any Loan Party or any ERISA Affiliate is required to contribute on behalf of any of its employees.
“Plan of Reorganization” has the meaning specified in Section 11.06(i)(c).
“Platform” has the meaning specified in Section 7.02.
“Priority Swap Obligations” means Credit Product Obligations under Swap Contracts (a) owing to
BMO or its Affiliates (so long as BMO (in its discretion) shall have established a Credit Product Reserve
42
with respect thereto) or (b) owing to any other Credit Product Provider and expressly identified as “Priority
Swap Obligations” in a Credit Product Notice from the Borrower Agent and such Credit Product Provider
to the Administrative Agent (which at all times shall be subject to a Credit Product Reserve).
“Pro Forma Adjustment” means, for the purposes of calculating Consolidated EBITDA for any
Measurement Period, if at any time during such Measurement Period the Company, any Borrower or any
of its Restricted Subsidiaries shall have made a Material Acquisition or Material Disposition, Consolidated
EBITDA for such Measurement Period shall be calculated after giving pro forma effect thereto as if any
such Material Acquisition or Material Disposition occurred on the first day of such Measurement Period,
including (a) with respect to an any Material Acquisition, inclusion of (i) the actual historical results of
operation of such acquired Person or line of business during such Measurement Period and (ii) pro forma
adjustments arising out of events which are directly attributable to such Material Acquisition, are factually
supportable, and are expected to have a continuing impact, in each case, that are either mutually and
reasonably agreed upon by the Borrowers and the Administrative Agent, or else determined on a basis
consistent with Article 11 of Regulation S-X promulgated under the Securities Act and as interpreted by the
staff of the SEC) and (b) with respect to any Material Disposition, exclusion of the actual historical results
of operations of the disposed of Person or line of business or assets during such Measurement Period.
“Pro Forma Basis,” “Pro Forma Compliance” and “Pro Forma Effect” means, with respect to
compliance with any test, financial ratio or covenant hereunder required by the terms of this Agreement to
be made on a pro forma basis, that (a) to the extent applicable, the Pro Forma Adjustment shall have been
made and, without duplication, (b) all Specified Pro Forma Transactions that have been made during the
applicable period of measurement or subsequent to such period and prior to or simultaneously with the
event for which the calculation is made (the period beginning on the first day of such fiscal quarter and
continuing until the date of the consummation of such event, the “Reference Period”) shall be deemed to
have occurred as of the first day of the applicable Reference Period; provided that (i) income statement
items (whether positive or negative) attributable to the property or Person subject to such Specified Pro
Forma Transaction, (A) shall be excluded in the case of a Material Disposition, and (B) shall be included
in the case of a Material Acquisition, and (ii) all Indebtedness issued, incurred or assumed as a result of, or
to finance, any relevant transactions (other than Indebtedness under the Loan Documents) or permanently
repaid in connection with the relevant transaction during the Reference Period shall be deemed to have been
issued, incurred, assumed or permanently repaid at the beginning of such Reference Period (with interest
expense of such person attributable to any Indebtedness for which pro forma effect is being given as
provided in preceding clause (ii) that has a floating or formula rate, shall have an implied rate of interest
for the applicable Reference Period determined by utilizing the rate that is or would be in effect with respect
to such Indebtedness as at the relevant date of determination); provided, that, the foregoing pro forma
adjustments may be applied to any such test, financial ratio or covenant solely to the extent that such
adjustments are consistent with the definition of Consolidated EBITDA and the definition of Pro Forma
Adjustment.
“Properly Contested” means with respect to any obligation of a Loan Party, (a) the obligation is
subject to a bona fide dispute regarding amount or such Loan Party’s liability to pay; (b) the obligation is
being properly contested in good faith by appropriate proceedings promptly instituted and diligently
pursued; (c) appropriate reserves have been established in accordance with GAAP, if required; (d) non-
payment could not reasonably be expected to have a Material Adverse Effect, nor result in forfeiture or sale
of any material Collateral; (e) no Lien is imposed on assets of a Loan Party, unless bonded and stayed to
the satisfaction of the Administrative Agent; and (f) if the obligation results from entry of a judgment or
other order, such judgment or order is stayed pending appeal or other judicial review.
“Protective Advance” has the meaning specified in Section 2.01(d)(ii)(A).
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“Public Lender” has the meaning specified in Section 7.02.
“Purchase Price”: with respect to an item of Eligible Equipment to be purchased with the proceeds
of a CapX Loan, an amount equal to the total consideration paid for such acquisition, exclusive of delivery
and installation charges and other soft costs determined by Administrative Agent in its Permitted Discretion.
“Qualified ECP” means any Loan Party with total assets exceeding $10,000,000, or that constitutes
an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to
qualify as an “eligible contract participant” under Section 1a(18)(A)(v)(II) of the Commodity Exchange
Act.
“Qualified Unrestricted Cash” means unrestricted cash held in Deposit Accounts or Securities
Accounts of a Loan Party maintained with the Administrative Agent or its Affiliates and subject to a Control
Agreement.
“Ratable Share” has the meaning specified in Section 2.01(d)(ii)(C).
“Real Property” means all land, together with the buildings, structures, parking areas, and other
improvements thereon, now or hereafter owned by any Person, including all easements, rights-of-way, and
similar rights appurtenant thereto and all leases, tenancies, and occupancies thereof.
“Recipient” means the Administrative Agent, any Lender, any Issuing Bank or any other recipient
of any payment to be made by or on account of any Obligation of a Borrower hereunder.
“Refinancing Conditions” means the following conditions for Refinancing Indebtedness: (a) it is
in an aggregate principal amount that does not exceed the principal amount of the Indebtedness being
extended, renewed or refinanced plus accrued interest and reasonable fees and expenses incurred in
connection with such refinancing, refunding, renewal or extension; (b) the interest rate applicable to any
such refinancing, refunding, renewing or extending Indebtedness does not exceed the otherwise market rate
of interest for such Indebtedness; (c) it has a final maturity no sooner than and a weighted average life no
less than the Indebtedness being extended, renewed or refinanced; (d) it is subordinated to the Obligations
at least to the same extent as the Indebtedness being extended, renewed or refinanced; (e) no additional
Liens, if any, are granted with respect to such Refinancing Indebtedness; (f) no additional Person is
obligated, primarily or contingently, on such Refinancing Indebtedness; and (g) such Refinancing
Indebtedness shall be on terms, taken as a whole (other than interest rates, rate floors, fees and optional
repayment or redemption terms) not materially more restrictive to the Loan Parties, as determined by the
Company in good faith, than the Indebtedness being extended, renewed or refinanced.
“Refinancing Indebtedness” means the Indebtedness that is the result of an extension, renewal or
refinancing of Indebtedness permitted under Xxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x) and (q) as to which
the Refinancing Conditions are satisfied.
“Register” has the meaning specified in Section 11.06(c).
“Registered Public Accounting Firm” has the meaning specified in the Securities Laws and shall
be independent of the Company as prescribed in the Securities Laws.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of
such Person and of such Person’s Affiliates.
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“Rent and Charges Reserve” means the aggregate of (a) all past due rent and other amounts owing
by a Loan Party to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder,
broker or other Person who possesses any Collateral or could reasonably be expected to assert a Lien on
any Collateral; and (b) a reserve at least equal to three months’ rent and other charges that could be payable
to any such Person, unless it has executed a Lien Waiver.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than
events for which the 30 day notice period has been waived.
“Reporting Trigger Period” means the period (a) commencing on the day (1) an Event of Default
shall have occurred and is continuing or (ii) Adjusted Excess Availability is less than the greater of
(A) $17,500,000 and (B) 10.0% of the Maximum Borrowing Amount for five (5) consecutive Business
Days and (b) continuing until the day (i) no Event of Default exists and (ii) Adjusted Excess Availability
has been equal to or greater than the greater of (A) $17,500,000 and (B) 10.0% of the of the Maximum
Borrowing Amount for 30 consecutive days.
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation
of Loans, a Committed Loan Notice, (b) with respect to a Letter of Credit Extension, a Letter of Credit
Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Lenders” means, as of any date of determination, at least two non-Affiliate Lenders
holding more than 50% of the Total Credit Exposure of all Lenders. The Total Credit Exposure of any
Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Required Supermajority Lenders” means, as of any date of determination, at least three non-
Affiliate Lenders holding at least sixty-six and two-thirds percent (66⅔%) of the Total Credit Exposure of
all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining
Required Supermajority Lenders at any time.
“Reserve” means any reserve constituting all or any portion of the Availability Reserve. Upon
establishment or increase in the Reserves, the Administrative Agent agrees to make itself available to
discuss the Reserve or increase, and Borrowers may take such action as may be required so that the event,
condition, circumstance, or fact that is the basis for such reserve or increase no longer exists, in a manner
and to the extent reasonably satisfactory to the Administrative Agent in the exercise of its Permitted
Discretion. In no event shall such opportunity limit the right of Agent to establish or change such Reserve,
unless the Administrative Agent shall have determined, in its Permitted Discretion, that the event, condition,
other circumstance, or fact that was the basis for such Reserve or such change no longer exists or has
otherwise been adequately addressed by Borrowers.
“Responsible Officer” means, with respect to each Loan Party, the chief executive officer,
president, chief financial officer, treasurer, controller or assistant treasurer or any vice president of such
Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party
shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have
acted on behalf of such Loan Party.
“Restricted Payment” means (i) any dividend or other distribution (whether in cash, securities or
other property) with respect to any capital stock or other Equity Interest of the Company or any Restricted
Subsidiary, (ii) any payment (whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination
of any such capital stock or other Equity Interest, or on account of any return of capital to the Company’s
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or any Restricted Subsidiary’s stockholders, partners or members (or the equivalent Person thereof), (iii)
any distribution, advance or repayment of Indebtedness to or for the account of a holder of Equity Interests
of the Company or its Affiliates, or (iv) any payment of a Permitted Earn-Out Payment.
“Restricted Subsidiary” means any Subsidiary other than an Unrestricted Subsidiary.
“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit
Loans of the same Type and, in the case of LIBOR Loans, having the same Interest Period, made by each
of the Revolving Credit Lenders pursuant to Section 2.01(a).
“Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to (a)
make Revolving Credit Loans to the Borrowers pursuant to Section 2.01(a), (b) purchase participations in
Letter of Credit Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Credit
Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.
“Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal amount
at such time of its outstanding Revolving Credit Loans and such Lender’s participation in Letter of Credit
Obligations, Swing Line Loans and Protective Advances at such time.
“Revolving Credit Facility” means the facility described in Sections 2.01(a), 2.03 and 2.04
providing for Revolving Credit Loans, Letters of Credit and Swing Line Loans to or for the benefit of the
Borrowers by the Revolving Credit Lenders, Letter of Credit Issuer and Swing Line Lender, as the case
may be, in the maximum aggregate principal amount at any time outstanding of $200,000,000, as adjusted
from time to time pursuant to the terms of this Agreement.
“Revolving Credit Lender” means each Lender that has a Revolving Credit Commitment or,
following termination of the Revolving Credit Commitments, has any Revolving Credit Exposure.
“Revolving Credit Loan” has the meaning specified in Section 2.01(a).
“Revolving Credit Loan Note” means a promissory note made by the Borrowers in favor of a
Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit Lender,
substantially in the form of Exhibit A-1.
“Revolving Credit Termination Date” means the earliest of (a) the Maturity Date, (b) the date of
termination of the Aggregate Revolving Credit Commitments pursuant to Section 2.07(a), and (c) the date
of termination of the commitment of each Lender to make Loans and of the obligation of the Letter of
Credit Issuer to make Letter of Credit Extensions pursuant to Section 9.02.
“Rolling Stock” means any Equipment that (a) consists of trucks, tractors, trailers and/or other
vehicles subject to certificates of title and (b) is owned by any Loan Party.
“Royalties” means all royalties, fees, expense reimbursement and other amounts payable by a Loan
Party under a License.
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The XxXxxx-Xxxx
Companies, Inc. and any successor thereto.
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“Same Day Funds” means immediately available funds.
“Xxxxxxxx-Xxxxx” means the Xxxxxxxx-Xxxxx Act of 2002.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
“Secured Party” means (a) each Lender, (b) each Credit Product Provider, (c) the Administrative
Agent, (d) the Letter of Credit Issuer, (e) the Arrangers and (f) the successors and assigns of each of the
foregoing.
“Secured Party Expenses” has the meaning specified in Section 11.04(a).
“Securities Laws” means the Securities Act of 1933, the Exchange Act, Xxxxxxxx-Xxxxx and the
applicable accounting and auditing principles, rules, standards and practices promulgated, approved or
incorporated by the SEC or the Public Company Accounting Oversight Board, as each of the foregoing may
be amended and in effect on any applicable date hereunder.
“Security Agreement” means the Pledge and Security Agreement and Irrevocable Proxy dated as
of the date hereof by the Loan Parties and the Administrative Agent for the benefit of the Secured Parties,
substantially in the form of Exhibit C.
“Security Instruments” means, collectively or individually as the context may indicate, the Security
Agreement, the Control Agreements, the Aircraft Mortgages, the Aircraft Related Documents, the
Mortgages, the Mortgage Related Documents, the Copyright Security Agreement, the Trademark Security
Agreement, each Lien Waiver and all other agreements (including securities account control agreements),
instruments and other documents, whether now existing or hereafter in effect, pursuant to which any Loan
Party or other Person shall grant or convey to the Administrative Agent or the Lenders a Lien in property
as security for all or any portion of the Obligations.
“Settlement Date” has the meaning provided in Section 2.14.
“Solvent” means, as to any Person, such Person (a) owns property or assets whose fair salable value
is greater than the amount required to pay all of its debts (including contingent, subordinated, unmatured
and unliquidated liabilities); (b) owns property or assets whose present fair salable value (as defined below)
is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities) of such Person as they become absolute and matured; (c) is able to pay all of its debts as they
mature; (d) has capital that is not unreasonably small for its business and is sufficient to carry on its business
and transactions and all business and transactions in which it is about to engage; (e) is not “insolvent” within
the meaning of Section 101(32) of the Bankruptcy Code; and (f) has not incurred (by way of assumption or
otherwise) any obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any
conveyance in connection therewith, with actual intent to hinder, delay or defraud either present or future
creditors of such Person or any of its Affiliates. “Fair salable value” means the amount that could be
obtained for assets within a reasonable time, either through collection or through sale under ordinary selling
conditions by a capable and diligent seller to an interested buyer who is willing (but under no compulsion)
to purchase. For purposes hereof, the amount of all contingent liabilities at any time shall be computed as
the amount that, in light of all the facts and circumstances existing at the time, can reasonably be expected
to become an actual or matured liability.
“Specified Debt Payment” means any prepayment of Indebtedness made pursuant to Section
8.11(a)(v).
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“Specified Disposition” means a sale of a “division” of the Loan Parties, including the sale of all
of the capital stock or substantially all of the assets of the Loan Parties identified on Schedule 1.05.
“Specified Event of Default” means at any time an Event of Default under Section 9.01(a), 9.01(b)
(solely with respect to a breach of Section 8.12), or Section 9.01(f).
“Specified Events” means those events specified to the Lenders prior to the Closing Date.
“Specified Investment” means any Investment made pursuant to Section 8.03(l).
“Specified Loan Party” means a Loan Party that is not then an “eligible contract participant” under
the Commodity Exchange Act (determined prior to giving effect to Section 2.15(c)).
“Specified Pro Forma Transaction” means, with respect to any period, any Investment, Disposition,
incurrence or repayment of Indebtedness, Restricted Payment, subsidiary designation or other event that by
the terms of the Loan Documents expressly requires “Pro Forma Compliance” with a test or covenant
hereunder or requires such test or covenant to be calculated on a “Pro Forma Basis.”
“Specified Restricted Payment” means any Restricted Payment pursuant to Section 8.06(e) or (f).
“Specified Transaction” means each Specified Disposition, Specified Debt Payment, Specified
Investment, Specified Restricted Payment and Permitted Acquisition.
“Subordinated Debt” means (i) Indebtedness which is expressly subordinated in right of payment
to the prior Payment in Full and which is in form and on terms reasonably satisfactory to, and approved in
writing by, the Administrative Agent, and (ii) Permitted Earn-Out Payments.
“Subordination Provisions” means any provision relating to debt or lien subordination applicable
to or contained in any documents evidencing any Subordinated Debt or any Permitted Term Debt, including
as set forth in the Intercreditor Agreement or other applicable intercreditor agreements.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company
or other business entity (but not a representative office of such Person) of which a majority of the shares of
securities or other interests having ordinary voting power for the election of directors or other governing
body (other than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the
Company.
“Subsidiary Guarantor” means any Subsidiary of the Company that is a Guarantor.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index transactions, interest rate options, forward
foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options to enter into any of the
foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b)
any and all transactions of any kind, and the related confirmations, which are subject to the terms and
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conditions of, or governed by, any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master
agreement, together with any related schedules; provided, that no stock option, phantom stock, restricted
stock or similar plan or agreement providing for payments on account of services provided by current or
former directors or employees of any Loan Party shall be a “Swap Contract.”
“Swap Obligation” means, with respect to any Loan Party, any obligation to perform under any
agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the
Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into
account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any
date on or after the date such Swap Contracts have been closed out and termination value(s) determined in
accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause
(a), the amount(s) determined as the xxxx-to-market value(s) for such Swap Contracts, as determined based
upon one or more mid-market or other readily available quotations provided by any recognized dealer in
such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
“Swing Line” means the revolving credit facility made available by the Swing Line Lender
pursuant to Section 2.04.
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.
“Swing Line Lender” means BMO in its capacity as provider of Swing Line Loans, or any successor
swing line lender hereunder.
“Swing Line Loan” has the meaning specified in Section 2.04(a).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b).
“Swing Line Sublimit” means an amount equal to the lesser of (a) $20,000,000 and (b) the
Aggregate Revolving Credit Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Revolving Credit Commitments.
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called
synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property
creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard
to accounting treatment).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type
and, in the case of LIBOR Loans, having the same Interest Period, made by each of the Term Lenders
pursuant to Section 2.02.
“Term Credit Exposure” means, as to any Lender at any time, the aggregate principal amount at
such time of its outstanding Term Loans.
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“Term Lender” means each Lender that has a Term Loan Commitment or, following termination of
the Term Loan Commitments, has Term Credit Exposure.
“Term Loan” means a Base Rate Loan or a LIBOR Loan made to the Borrowers pursuant to Section
2.01(b).
“Term Loan Commitment” means, as to each Term Lender, its obligation to make Term Loans to
the Borrowers pursuant to Section 2.01(b) in an aggregate principal amount at any one time outstanding not
to exceed the amount set forth opposite such Term Lender’s name on Schedule 2.01 or in the Assignment
and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount
may be adjusted from time to time in accordance with this Agreement. The aggregate Term Loan
Commitment for all Term Lenders shall not exceed the lesser of (i) 85% of the NOLV of Eligible Equipment
existing on the Closing Date; provided, that the maximum NOLV of Eligible Aircraft included in the
calculation described in this clause (i) shall not exceed $10,000,000 in the aggregate, and (ii) $65,000,000.
“Term Loan Equipment” means Rolling Stock and Aircraft existing on the Closing Date, identified
on Schedule 1.03 and which were included in the underwriting for purposes of for determining the Term
Loan Commitment.
“Term Loan Facility” means the facility described in Section 2.01(b), providing for Term Loans to
the Borrowers.
“Term Loan Note” means a promissory note made by the Borrowers in favor of a Term Lender
evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit A-2.
“Term Loan Outstandings” means, with respect to any Term Lender at any time, the sum of the
Outstanding Amount of such Term Lender’s Term Loans at such time.
“Threshold Amount” means $10,000,000.
“Total Credit Exposure” means, as to any Lender at any time, the unused outstanding Commitments
of such Lender and the Credit Exposure of such Lender at such time.
“Total Revolving Credit Outstandings” means, without duplication, the aggregate Outstanding
Amount of all Revolving Credit Loans, Protective Advances, Swing Line Loans and Letter of Credit
Obligations.
“Trade and Replacement Plan” means any plan or program providing for the trade or replacement
of Rolling Stock.
“Trade Date” has the meaning specified in Section 11.06(i)(a).
“Trademark Security Agreement” means any trademark security agreement pursuant to which any
Loan Party assigns to the Administrative Agent, for the benefit of the Secured Parties, such Person’s interest
in its trademarks as security for the Obligations.
“Transaction” means, individually or collectively as the context may indicate, (a) entering into the
Permitted Term Debt and (b) the entering by the Loan Parties of the Loan Documents to which they are a
party and the funding of the Revolving Credit Facility.
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“Treasury Management and Other Services” means (a) all arrangements for the delivery of treasury
and cash management services, (b) all commercial credit card, purchase card, p-card and merchant card
services; and (c) all other banking products or services, including trade and supply chain finance services,
other than Letters of Credit, in each case, to or for the benefit of any Loan Party or an Affiliate of any Loan
Party which are entered into or maintained with a Lender or an Affiliate of a Lender and which are not
prohibited by the express terms of the Loan Documents.
“Type” means, with respect to a Loan, its character as a Base Rate Loan or a LIBOR Loan.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of Illinois;
provided that if, with respect to any financing statement or by reason of any mandatory provisions of law,
the perfection or the effect of perfection or non-perfection of the security interests granted to the
Administrative Agent pursuant to any applicable Loan Document is governed by the Uniform Commercial
Code as in effect in a jurisdiction of the United States other than Illinois, the term “UCC” shall also include
the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the
provisions of this Agreement, each Loan Document and any financing statement relating to such perfection
or effect of perfection or non-perfection.
“United States” and “U.S.” mean the United States of America.
“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).
“Unrestricted Subsidiary” means any Subsidiary of the Company that has been designated as an
Unrestricted Subsidiary in accordance with Section 6.13. Each Unrestricted Subsidiary as of the Closing
Date is listed on Schedule 1.02 hereto.
“Unused Facility Amount” means the daily amount by which (a) the Aggregate Revolving Credit
Commitments exceeds (b) the sum of (i) Outstanding Amount of all Revolving Credit Loans other than
Swing Line Loans and (ii) the Outstanding Amount of all Letter of Credit Obligations, subject to adjustment
as provided in Section 2.17. For the avoidance of doubt, the Outstanding Amount of Swing Line Loans
shall not be considered usage for purposes of determining the Unused Facility Amount.
“Unused Fee” has the meaning specified in Section 2.09(a).
“Unused Fee Rate” means a per annum rate equal to 0.25%.
“U.S. Economic Sanctions” shall have the meaning specified in Section 6.21.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30)
of the Code.
“Value” means, for an Eligible Account, the face amount of such Eligible Account, net of any
returns, rebates, discounts (calculated on the shortest terms), credits, allowances or Taxes (including sales,
excise or other taxes) that have been or could reasonably be expected to be claimed by the Account Debtor
or any other Person.
“Vehicle Title Custodial Agreement” means the Collateral Agency Agreement dated as of the
Closing Date among the Loan Parties, the Vehicle Title Service Provider and the Administrative Agent, in
form and substance satisfactory to the Administrative Agent.
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“Vehicle Title Service Provider” means Corporation Service Company, or any successor provider
appointed by the Administrative Agent.
“Voting Stock” means in relation to a Person, shares of Equity Interests entitled to vote generally
in the election of directors to the board of directors or equivalent governing body of such Person.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the
write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In
Legislation for the applicable EEA Member Country, which write-down and conversion powers are
described in the EU Bail-In Legislation Schedule.
1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be
followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to
any agreement, instrument or other document (including any Organization Document) shall be construed
as referring to such agreement, instrument or other document as from time to time amended, supplemented
or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set
forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words
of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in
its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law
and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation
as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall
be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and
the word “through” means “to and including.”
(c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(d) A reference to Loan Parties’ “knowledge” or similar concept means actual knowledge of a
Responsible Officer, or knowledge that a Responsible Officer would have obtained if he or she had engaged
in good faith and diligent performance of his or her duties.
1.03 Accounting Terms.
(a) Generally. All accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with,
GAAP applied on a consistent basis, as in effect on the Closing Date, except (i) with respect to any reports
or financial information required to be delivered pursuant to Section 7.01, which shall be prepared in
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accordance with GAAP as in effect and applicable to that accounting period in respect of which reference
to GAAP is being made and (ii) as otherwise specifically prescribed herein. Notwithstanding the foregoing,
for purposes of determining compliance with any covenant (including the computation of any financial
covenant) contained herein, Indebtedness of each Borrower and its Subsidiaries shall be deemed to be
carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB
ASC 470-20 on financial liabilities shall be disregarded.
(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either the Borrower Agent or the
Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower Agent shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of
such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended,
(i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change
therein and (ii) the Borrower Agent shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made before and after giving effect
to such change in GAAP.
(c) Consolidation of Variable Interest Entities. Except as expressly provided otherwise herein,
all references herein to Consolidated financial statements of the Company and its Subsidiaries or to the
determination of any amount for the Company and its Subsidiaries on a Consolidated basis or any similar
reference shall, in each case, be deemed to include each variable interest entity that the Company is required
to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined
herein.
(d) Calculations. In computing financial ratios and other financial calculations of the
Company and its Subsidiaries required to be submitted pursuant to this Agreement, all Indebtedness of the
Company and its Subsidiaries shall be calculated at par value irrespective if the Company has elected the
fair value option pursuant to FASB Interpretation No. 159 – The Fair Value Option for Financial Assets
and Financial Liabilities—Including an amendment of FASB Statement No. 115 (February 2007).
1.04 Uniform Commercial Code. As used herein, the following terms are defined in
accordance with the UCC in effect in the State of Illinois from time to time: “Chattel Paper,” “Commodity
Account,” “Commodity Contracts,” “Deposit Account,” “Documents,” “Equipment”, “General
Intangibles,” “Instrument,” “Inventory,” “Record,” and “Securities Account.”
1.05 Rounding. Any financial ratios required to be maintained by the Borrowers pursuant to
this Agreement shall be calculated by dividing the appropriate component by the other component, carrying
the result to one place more than the number of places by which such ratio is expressed herein and rounding
the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.06 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Central time (daylight or standard, as applicable).
1.07 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of
Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the stated amount thereof, the
amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit
after giving effect to all such increases, whether or not such maximum stated amount is in effect at such
time.
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ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Loan Commitments.
(a) Revolving Credit Commitments. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a “Revolving Credit Loan”) to the Borrowers from
time to time during the Availability Period for the Revolving Credit Facility, in an aggregate amount not to
exceed at any time outstanding the lesser of (i) the amount of such Lender’s Revolving Credit Commitment,
or (ii) such Lender’s Applicable Revolving Credit Percentage of the Borrowing Base; provided, however,
that after giving effect to any Revolving Credit Borrowing, (A) the Total Revolving Credit Outstandings
shall not exceed Maximum Borrowing Amount, and (B) the Revolving Credit Exposure of each Lender
shall not exceed such Lender’s Revolving Credit Commitment. All Revolving Credit Loans outstanding
from time to time up to the FILO Amount shall be deemed to be outstanding FILO Loans for all purposes
under this Agreement.
Within such limits and subject to the other terms and conditions hereof, the Borrowers may borrow under
this Section 2.01(a), prepay under Section 2.06(a), and reborrow under this Section 2.01(a). The
Administrative Agent shall have the right, at any time and from time to time on and after the Closing Date
in its Permitted Discretion to establish, modify or eliminate Reserves.
(b) Term Loan Commitments. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make a single loan to the Borrowers on the Closing Date in an amount equal to
such Lender’s Term Loan Commitment. The advance of the Term Loan shall be made simultaneously by
the Lenders in accordance with their respective Applicable Percentages of the Term Loan Facility.
Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed. Term Loans
may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
(c) CapX Loan Commitment. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make CapX Loans to the Borrowers in an aggregate amount up to the CapX Commitment
from time to time during the Availability Period for the CapX Facility; provided that:
(i) Each CapX Loan shall be in an amount at least equal to $3,500,000 (or, if less, the
remaining amount of the CapX Commitment);
(ii) The Company shall have delivered to Administrative Agent a schedule identifying
the CapX Equipment (such identification to be in form and substance reasonably satisfactory to
Administrative Agent, and such schedule to be promptly updated by Borrowers to reflect the deletion
of any Equipment as a result of any Disposition or ineligibility) to be financed with such CapX Loan;
(iii) With respect to (A) any New CapX Equipment, the Company shall have delivered
to Administrative Agent a copy of the invoice for such New CapX Equipment and a calculation of
the Cost thereof and (B) any Permitted Acquisition CapX Equipment, the Administrative Agent
shall have completed an Acceptable Appraisal;
(iv) such CapX Equipment shall be acquired by a Borrower contemporaneously with
the proceeds of such CapX Loan or shall have been acquired by a Borrower within the 180 day
period immediately prior to the making of such CapX Loan;
(v) such CapX Equipment, once acquired by a Borrower, shall constitute Eligible
Equipment; and
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(vi) each CapX Loan shall not exceed (A) with respect to New CapX Equipment, 85%
of the Cost of such New CapX Equipment to be financed by such CapX Loan and (B) with respect
to Permitted Acquisition CapX Equipment, the lesser of (x) 85% of the NOLV of such used CapX
Equipment to be financed by such CapX Loan and (y) 85% of the Cost of such Permitted Acquisition
CapX Equipment to be financed by such CapX Loan.
It is understood and agreed that the Company will deliver to the Administrative Agent the information
required above, together with such additional information regarding the CapeEx Equipment that the
Administrative Agent reasonably requests, and such information shall be provided at least 10 days (or such
shorter period, as the Administrative Agent shall agree) prior to the making of any CapX Loan. Upon the
making of a CapX Loan, a portion of the CapX Commitment shall expire upon funding in an amount equal
to the funded CapX Loan. No more than ten (10) CapX Loans shall be made during the term of this
Agreement.
(d) Overadvances and Protective Advances.
(i) Overadvances.
(A) If at any time the aggregate principal balance of all Revolving Credit
Loans exceeds the Borrowing Base (including as a result of a scheduled reduction in the
FILO Amount) (an “Overadvance”), the excess amount shall be payable by the Borrowers
on demand by the Administrative Agent. All Overadvance Loans shall constitute
Obligations secured by the Collateral and shall be entitled to all benefits of the Loan
Documents.
(B) The Administrative Agent may, in its sole discretion (but shall have
absolutely no obligation to), require Lenders to honor requests for Overadvance Loans and
to forbear from requiring the applicable Borrower(s) to cure an Overadvance as long as (a)
such Overadvance does not continue for more than 30 consecutive days and (b) the
aggregate amount of the Overadvances existing at any time, together with the Protective
Advances outstanding at any time, do not exceed ten percent (10.0%) of the Aggregate
Revolving Credit Commitments then in effect. Overadvance Loans may be required even
if the conditions set forth in Section 5.02 have not been satisfied. In no event shall
Overadvance Loans be required that would cause the Total Revolving Credit Outstandings
to exceed the Aggregate Revolving Credit Commitments, or that would require the
Revolving Credit Exposure of a Revolving Credit Lender to exceed its Revolving Credit
Commitment. Required Lenders may at any time revoke the Administrative Agent’s
authority to make further Overadvance Loans to any or all Borrowers by written notice to
the Administrative Agent. Any funding of an Overadvance Loan or sufferance of an
Overadvance shall not constitute a waiver by the Administrative Agent or Lenders of the
Event of Default caused thereby. In no event shall any Borrower or other Loan Party be
deemed a beneficiary of this Section 2.01(d) nor authorized to enforce any of its terms.
(ii) Protective Advances.
(A) The Administrative Agent shall be authorized by each Borrower and the
Lenders from time to time in the Administrative Agent’s sole discretion (but shall have
absolutely no obligation to), to make Base Rate Revolving Credit Loans to the Borrowers
on behalf of the Lenders (any of such Loans are herein referred to as “Protective
Advances”) which the Administrative Agent deems necessary or desirable to (a) preserve
or protect Collateral or any portion thereof or (b) to enhance the likelihood of, or maximize
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the amount of, repayment of the Revolving Credit Loans and other Revolving Credit
Exposure; provided that no Protective Advance shall cause the aggregate amount of the
Total Revolving Credit Outstandings at such time to exceed the Aggregate Revolving
Credit Commitments then in effect, or cause the Revolving Credit Exposure of a Revolving
Credit Lender to exceed its Revolving Credit Commitment. All Protective Advances made
by the Administrative Agent constitute Obligations, secured by the Collateral and shall be
treated for all purposes as Base Rate Loans.
(B) The aggregate amount of Protective Advances outstanding at any time
shall not exceed ten percent (10.0% percent) of the Aggregate Revolving Credit
Commitments then in effect, and such Protective Advances, together with the aggregate
amount of Overadvances existing at any time, shall not exceed ten percent (10.0%) of the
Aggregate Revolving Credit Commitments then in effect. Protective Advances may be
made even if the conditions set forth in Section 5.02 have not been satisfied. Each Lender
shall participate in each Protective Advance on a ratable basis. Required Lenders may at
any time revoke the Administrative Agent’s authority to make further Protective Advances
to any or all Borrowers by written notice to the Administrative Agent. Absent such
revocation, the Administrative Agent’s determination that funding of a Protective Advance
is appropriate shall be conclusive. At any time that there is sufficient Availability and the
conditions precedent set forth in Section 5.02 have been satisfied, the Administrative Agent
may request the Lenders to make a Revolving Credit Loan to repay a Protective Advance.
At any other time, the Administrative Agent may require the Lenders to fund their risk
participations described in Section 2.01(d)(ii)(C).
(C) Upon the making of a Protective Advance by the Administrative Agent
(whether before or after the occurrence of a Default or Event of Default), each Lender shall
be deemed, without further action by any party hereto, to have unconditionally and
irrevocably purchased from the Administrative Agent without recourse or warranty, an
undivided interest and participation in such Protective Advance equal to the proportion of
the Revolving Credit Exposure of such Lender to the Revolving Credit Exposure of all
Lenders (its “Ratable Share”) of such Protective Advance. Each Lender shall transfer (a
“Transfer”) the amount of such Lender’s purchased interest and participation promptly
when requested to the Administrative Agent, to such account of the Administrative Agent
as the Administrative Agent may designate, but in any case not later than 3:00 p.m. on the
Business Day notified (if notice is provided by the Administrative Agent prior to 12:00
noon and otherwise on the immediately following Business Day (the “Transfer Date”)).
Transfers may occur during the existence of a Default or Event of Default and whether or
not the applicable conditions precedent set forth in Section 5.02 have then been satisfied.
Such amounts transferred to the Administrative Agent shall be applied against the amount
of the applicable Protective Advance and shall constitute Revolving Credit Loans of such
Lenders, respectively. If any such amount is not transferred to the Administrative Agent
by any Lender on such Transfer Date, the Administrative Agent shall be entitled to recover
such amount on demand from such Lender together with interest thereon for each day from
the date such payment was due until the date such amount is paid to the Administrative
Agent, at the Overnight Rate for three (3) Business Days and thereafter at the Base Rate.
From and after the date, if any, on which any Lender is required to fund, and funds, its
interest and participation in any Protective Advance purchased hereunder, the
Administrative Agent shall promptly distribute to such Lender, such Lender’s Ratable
Share of all payments of principal and interest and all proceeds of Collateral received by
the Administrative Agent in respect of such Protective Advance.
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2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type to the other, and each
continuation of LIBOR Loans shall be made upon the Borrower Agent’s irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 12:00 noon (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of LIBOR Loans or of any conversion of LIBOR Loans to
Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans. Each telephonic
notice by the Borrower Agent pursuant to this Section 2.02(a) must be promptly confirmed in writing by a
Responsible Officer of the Borrower Agent. Each Borrowing of, conversion to or continuation of LIBOR
Loans shall be in a principal amount of $500,000 or a whole multiple of $50,000 in excess thereof. Except
as provided in Sections 2.02(f), 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. During a
Dominion Trigger Period, there shall be no minimum borrowing amounts for Base Rate Loans. Each such
notice (whether telephonic or written) shall specify (i) whether the Borrowers are requesting a Term Loan
Borrowing, CapX Borrowing or a Revolving Credit Borrowing, (ii) the principal amount of Loans to be
borrowed, converted or continued, (iii) the Type of Loans to be borrowed or to which existing Loans are to
be converted, (iv) the requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day) and (v) if applicable, the duration of the Interest Period with respect thereto.
If the Borrowers fail to specify a Type of Loan or if the Borrowers fail to give a timely notice requesting a
conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans.
Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable LIBOR Loans. If the Borrowers request a Borrowing of,
conversion to, or continuation of LIBOR Loans in any such Committed Loan Notice, but fail to specify an
Interest Period, they will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice for a Facility, the Administrative Agent
shall promptly notify each Appropriate Lender of the amount of its Applicable Percentage under such
Facility of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the
Borrowers, the Administrative Agent shall notify each Appropriate Lender of the details of any automatic
conversion to Base Rate Loans described in the preceding subsection. In the case of a Term Loan
Borrowing, CapX Borrowing, or Revolving Credit Borrowing, each Appropriate Lender shall make the
amount of its Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable
Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02 (and, if
such Borrowing is the initial Credit Extension, Section 5.01), the Administrative Agent shall make all funds
so received available to the Borrowers in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrowers on the books of BMO with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable
to) the Administrative Agent by the Borrower; provided, however, that if, on the date a Committed Loan
Notice with respect to a Revolving Credit Borrowing is given by the Borrower, there are Letter of Credit
Borrowings outstanding, then the proceeds of such Revolving Credit Borrowing, first, shall be applied to
the payment in full of any such Letter of Credit Borrowings, and second, shall be made available to the
Borrowers as provided above.
(c) Except as otherwise provided herein, a LIBOR Loan may be continued or converted only
on the last day of an Interest Period for such LIBOR Loan. During the existence of a Default, no Loans
may be requested as, converted to or continued as LIBOR Loans without the consent of the Required
Lenders.
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(d) The Administrative Agent shall promptly notify the Borrower Agent and the Lenders of
the interest rate applicable to any Interest Period for LIBOR Loans upon determination of such interest rate
and, at the request of the Borrower Agent, deliver to the Borrower Agent a statement showing the quotations
used by the Administrative Agent in determining such rate. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify the Borrower Agent and the Lenders of any change in
BMO’s prime rate used in determining the Base Rate promptly following the public announcement of such
change.
(e) After giving effect to all conversions of Loans from one Type to the other, and all
continuations of Loans as the same Type, there shall not be more than eight (8) LIBOR Rate Interest Periods
in effect in respect of the Facilities.
(f) Borrowers and each Lender hereby irrevocably authorize the Administrative Agent, in the
Administrative Agent’s sole discretion, to advance to Borrowers, and/or to pay and charge to Borrowers’
Loan Account hereunder, all sums necessary to pay (i) any interest accrued on the Obligations when due
and to pay all fees, costs and expenses and other Obligations at any time owed by any Loan Party to the
Administrative Agent or any Lender hereunder and (ii) any service charge or expenses due pursuant to
Section 11.04 when due. The Administrative Agent shall advise the Borrower Agent of any such advance
or charge promptly after the making thereof. Such action on the part of the Administrative Agent shall not
constitute a waiver of the Administrative Agent’s rights and the Borrowers’ obligations under this
Agreement. Any amount which is added to the principal balance of the Loan Account as provided in this
Section 2.02(f) shall constitute Revolving Credit Loans (notwithstanding the failure of the Borrowers to
satisfy any of the conditions to Credit Extensions in Section 5.02) and Obligations hereunder and shall bear
interest at the interest rate then and thereafter applicable to Base Rate Loans.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the Letter of Credit Issuer
agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section
2.03, (1) from time to time on any Business Day during the period from the Closing Date until the
earlier to occur of the Letter of Credit Expiration Date or the termination of the Availability Period,
to issue Letters of Credit at the request of the Borrower Agent for the account of a Borrower (or any
other Domestic Subsidiary thereof as to which all “know your customer” or other similar
requirements have been satisfied) so long as such Borrower is a joint and several co-applicant;
references to a “Borrower” in this Section 2.03 shall be deemed to include reference to such other
Loan Party and any applicable Domestic Subsidiary, as the case may be, and to amend Letters of
Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under
the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters
of Credit issued for the account of a Borrower and any drawings thereunder; provided that the Letter
of Credit Issuer shall not be obligated to make any Letter of Credit Extension with respect to any
Letter of Credit, and no Revolving Credit Lender shall be obligated to participate in any Letter of
Credit, if as of the date of such Letter of Credit Extension, (A) the Total Revolving Credit
Outstandings would exceed the Maximum Borrowing Amount, (B) the Revolving Credit Exposure
of any Revolving Credit Lender would exceed such Revolving Credit Lender’s Revolving Credit
Commitment, or (C) the Outstanding Amount of all Letter of Credit Obligations would exceed the
Letter of Credit Sublimit. Each request by the Borrower Agent for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by the Borrower Agent that the Letter of
Credit Extension so requested complies with the conditions set forth in the proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’
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ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may,
during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired
or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to
have been issued pursuant hereto, and from and after the Closing Date shall be subject to and
governed by the terms and conditions hereof and all fees in respect thereof pursuant to Sections
2.03(h) and 2.09(b) shall be payable (in substitution for any fees set forth in the applicable letter of
credit reimbursement agreements or applications relating to the Existing Letters of Credit, except to
the extent that such fees are also payable pursuant to Section 2.03(h) and 2.09(b)) as if the Existing
Letters of Credit had been issued on the Closing Date. Notwithstanding the foregoing, (x) the
Borrowers shall not be required to pay any additional issuance fees with respect to the issuance of
the Existing Letters of Credit solely as a result of such letters of credit being converted to a Letter
of Credit hereunder, it being understood that the fronting, participation and other fees set forth in
Section 2.03(h) and 2.09(b) shall otherwise apply to the Existing Letters of Credit and (y) no Existing
Letter of Credit may be extended or renewed.
(ii) The Letter of Credit Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of
Credit would occur (i) as to standby Letters of Credit, more than twelve months after the
date of issuance or last renewal, and (ii) as to commercial Letters of Credit, later than the
earlier of (1) 270 days after the date of issuance thereof and (2) 60 days before the Letter
of Credit Expiration Date, unless in each case the Required Lenders have approved such
expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless Cash Collateralized or all the Lenders have
approved such expiry date;
(iii) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of
Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such
Letter of Credit or any Law applicable to the Letter of Credit Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit
Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer
is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose
upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and in each case which the Letter of Credit Issuer in good
xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of
the Letter of Credit Issuer;
(C) such Letter of Credit is in an initial amount less than $10,000;
(D) any Lender is at that time a Defaulting Lender, unless the Letter of Credit
Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory
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to the Letter of Credit Issuer (in its sole discretion) with the Borrowers or such Lender to
eliminate the Letter of Credit Issuer’s actual or potential Fronting Exposure (after giving
effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the
Letter of Credit then proposed to be issued or that Letter of Credit and all other Letter of
Credit Obligations as to which the Letter of Credit Issuer has actual or potential Fronting
Exposure, as it may elect in its sole discretion.
(iv) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of
Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form
under the terms hereof.
(v) The Letter of Credit Issuer shall be under no obligation to amend any Letter of
Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter
of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.
(vi) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with
respect to any Letters of Credit issued by it and the documents associated therewith, and the Letter
of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative
Agent in Article X with respect to any acts taken or omissions suffered by the Letter of Credit Issuer
in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article
X included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the Letter of Credit Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower Agent delivered to the Letter of Credit Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the Borrower Agent and, if applicable, of the applicable
Borrower. Such Letter of Credit Application must be received by the Letter of Credit Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and
time as the Administrative Agent and the Letter of Credit Issuer may agree in a particular instance
in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.
In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the Letter of Credit Issuer: (A) the proposed issuance
date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C)
the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to
be presented by such beneficiary in case of any drawing or presentation thereunder; (F) the full text
of any certificate to be presented by such beneficiary in case of any drawing or presentation
thereunder; and (G) such other matters as the Letter of Credit Issuer may require. In the case of a
request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the Letter of Credit Issuer (A) the Letter of Credit to
be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters as the Letter of Credit Issuer may
require. Additionally, the Borrower Agent shall furnish to the Letter of Credit Issuer and the
Administrative Agent such other documents and information pertaining to such requested Letter of
Credit issuance or amendment, including any Issuer Documents, as the Letter of Credit Issuer or the
Administrative Agent may require.
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(ii) Promptly after receipt of any Letter of Credit Application, the Letter of Credit
Issuer will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the applicable
Borrower and, if not, the Letter of Credit Issuer will provide the Administrative Agent with a copy
thereof. Unless the Letter of Credit Issuer has received written notice from any Revolving Credit
Lender, the Administrative Agent or any Borrower, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one or more applicable
conditions contained in Article V shall not then be satisfied, then, subject to the terms and conditions
hereof, the Letter of Credit Issuer shall, on the requested date, issue a Letter of Credit for the account
of the Company or the Company and the applicable Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with the Letter of Credit Issuer’s usual
and customary business practices. Immediately upon the issuance of each Letter of Credit, each
Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Letter of Credit Issuer a risk participation in such Letter of Credit in an amount
equal to the product of such Revolving Credit Lender’s Applicable Percentage times the amount of
such Letter of Credit.
(iii) If the Borrower Agent so requests in any applicable Letter of Credit Application,
the Letter of Credit Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit
other than a commercial Letter of Credit that has automatic extension provisions (each, an “Auto-
Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit
the Letter of Credit Issuer to prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-
month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed
by the Letter of Credit Issuer, the Borrower Agent shall not be required to make a specific request
to the Letter of Credit Issuer for any such extension. Once an Auto-Extension Letter of Credit has
been issued, the Revolving Credit Lenders shall be deemed to have authorized (but may not require)
the Letter of Credit Issuer to permit the extension of such Letter of Credit at any time to an expiry
date not later than the Letter of Credit Expiration Date; provided, however, that the Letter of Credit
Issuer shall not permit any such extension if (A) the Letter of Credit Issuer has determined that it
would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in
its revised form (as extended) under the terms hereof (by reason of the provisions clause (ii) or (iii)
of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the Non-Extension Notice Date (1)
from the Administrative Agent that the Required Lenders have elected not to permit such extension
or (2) from the Administrative Agent, any Revolving Credit Lender or the Borrower Agent that one
or more of the applicable conditions specified in Section 5.02 is not then satisfied, and in each such
case directing the Letter of Credit Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the Letter of Credit
Issuer will also deliver to the Borrower Agent and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing
or presentation of documents under such Letter of Credit, the Letter of Credit Issuer shall notify the
Borrower Agent and the Administrative Agent thereof. Not later than 1:00 p.m. on the date of any
payment by the Letter of Credit Issuer under a Letter of Credit (each such date, an “Honor Date”),
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the Borrowers shall reimburse the Letter of Credit Issuer through the Administrative Agent in
Dollars and in an amount equal to the amount of such drawing. If the Borrowers fail to reimburse
the Letter of Credit Issuer by such time, the Administrative Agent shall promptly notify each
Revolving Credit Lender of the Honor Date, the amount of the unreimbursed drawing or payment
(the “Unreimbursed Amount”), and the amount of such Revolving Credit Lender’s Applicable
Percentage thereof. In such event, the Borrower Agent shall be deemed to have requested a
Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.03 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Aggregate Revolving Credit Commitments and the conditions set forth in Section 5.02
(other than the delivery of a Committed Loan Notice). Any notice given by the Letter of Credit
Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Credit Lender shall upon any notice pursuant to Section 2.03(c)(i)
make funds available (and the Administrative Agent may apply Cash Collateral provided for this
purpose) to the Administrative Agent for the account of the Letter of Credit Issuer, in Dollars, at the
Administrative Agent’s Office for Dollar denominated payments an amount equal to its Applicable
Percentage of the Unreimbursed Amount not later than 3:00 p.m. on the Business Day specified in
such notice by the Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Revolving Credit Lender that so makes funds available shall be deemed to have
made a Base Rate Revolving Credit Loan to the Borrower Agent in such amount. The
Administrative Agent shall remit the funds so received to the Letter of Credit Issuer in Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 5.02
cannot be satisfied or for any other reason, the Borrowers shall be deemed to have incurred from the
Letter of Credit Issuer a Letter of Credit Borrowing in the amount of the Unreimbursed Amount that
is not so refinanced, which Letter of Credit Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the Default Rate. In such event, each Revolving Credit
Lender’s payment to the Administrative Agent for the account of the Letter of Credit Issuer pursuant
to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such Letter of Credit
Borrowing and shall constitute a Letter of Credit Advance from such Revolving Credit Lender in
satisfaction of its participation obligation under this Section 2.03.
(iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or Letter of
Credit Advance pursuant to this Section 2.03(c) to reimburse the Letter of Credit Issuer for any
amount drawn under any Letter of Credit, interest in respect of such Revolving Credit Lender’s
Applicable Percentage of such amount shall be solely for the account of the Letter of Credit Issuer.
(v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or
Letter of Credit Advances to reimburse the Letter of Credit Issuer for amounts drawn under Letters
of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or
other right which such Revolving Credit Lender may have against the Letter of Credit Issuer, any
Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not similar to any of the
foregoing. No such making of a Letter of Credit Advance shall relieve or otherwise impair the
obligation of the Borrowers to reimburse the Letter of Credit Issuer for the amount of any payment
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made by the Letter of Credit Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Revolving Credit Lender fails to make available to the Administrative Agent
for the account of the Letter of Credit Issuer any amount required to be paid by such Revolving
Credit Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in
Section 2.03(c)(ii), then, without limiting the other provisions of this Agreement, the Letter of Credit
Issuer shall be entitled to recover from such Revolving Credit Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the period from the date
such payment is required to the date on which such payment is immediately available to the Letter
of Credit Issuer at a rate per annum equal to the applicable Overnight Rate for three (3) Business
Days and thereafter at the Base Rate, plus any administrative, processing or similar fees customarily
charged by the Letter of Credit Issuer in connection with the foregoing. A certificate of the Letter
of Credit Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations. At any time after the Letter of Credit Issuer has made a
payment under any Letter of Credit and has received from any Revolving Credit Lender such Revolving
Credit Lender’s Letter of Credit Advance in respect of such payment in accordance with Section 2.03(c), if
the Administrative Agent receives for the account of the Letter of Credit Issuer any payment in respect of
the related Unreimbursed Amount or interest thereon (whether directly from the Borrowers or otherwise,
including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Revolving Credit Lender its Applicable Revolving Credit Percentage thereof
in Dollars (appropriately adjusted, in the case of interest payments, to reflect the period of time during
which such Revolving Credit Lender’s Letter of Credit Advance was outstanding) and in the same funds as
those received by the Administrative Agent.
(e) Obligations Absolute. The obligation of the Borrowers to reimburse the Letter of Credit
Issuer for each drawing under each Letter of Credit, and to repay each Letter of Credit Borrowing shall be
joint and several and absolute, unconditional and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or other right that any
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting),
the Letter of Credit Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document or endorsement presented under
or in connection with such Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay
in the transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the Letter of Credit Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the terms of such Letter of
Credit, or any payment made by the Letter of Credit Issuer under such Letter of Credit to any Person
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purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any proceeding under any Debtor
Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense available
to, or a discharge of, any Borrower or any Subsidiary.
(f) Role of Letter of Credit Issuer. Each Revolving Credit Lender and the Borrowers agree
that, in paying any drawing under a Letter of Credit, the Letter of Credit Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document
or the authority of the Person executing or delivering any such document. None of the Letter of Credit
Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant
or assignee of the Letter of Credit Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Revolving Credit Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision); or
(iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to
any Letter of Credit or Issuer Document. Each Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of Credit. The Letter of Credit Issuer
may accept documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the Letter of Credit Issuer shall
not be responsible for the validity or sufficiency of any instrument endorsing, transferring or assigning or
purporting to endorse, transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. Any action taken
or omitted to be taken by the Letter of Credit Issuer under or in connection with any Letter of Credit issued
by it shall not create for the Letter of Credit Issuer any resulting liability to Borrowers, any other Loan
Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross
negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-
appealable decision) on the part of the Letter of Credit Issuer.
(g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the Letter of Credit
Issuer and the Borrower Agent, when a Letter of Credit is issued (including any such agreement applicable
to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii)
the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit.
(h) Fronting Fee and Documentary and Processing Charges Payable to Letter of Credit Issuer.
The Borrowers shall pay directly to the Letter of Credit Issuer for its own account a fronting fee with respect
to each Letter of Credit, at a rate equal to one-eighth of one percent (0.125%), computed on the amount of
such Letter of Credit (a “Fronting Fee”), and payable upon the issuance or renewal (automatic or otherwise)
thereof or upon any amendment increasing the amount thereof. In addition, the Borrowers shall pay directly
to the Letter of Credit Issuer for its own account, in Dollars, the customary and reasonable issuance,
presentation, amendment and other processing fees, and other standard and reasonable costs and charges,
of the Letter of Credit Issuer relating to letters of credit issued by it as from time to time in effect. Such
reasonable customary fees and standard costs and charges are due and payable on demand and are
nonrefundable.
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(i) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and
the terms of any Issuer Document, the terms hereof shall control.
(j) Letters of Credit Issued for Restricted Subsidiaries. Notwithstanding that a Letter of Credit
issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Restricted
Subsidiary, the Company or any other Borrower, each Borrower shall be obligated to reimburse the Letter
of Credit Issuer hereunder for any and all drawings under such Letter of Credit. Each Borrower hereby
acknowledges that the issuance of Letters of Credit for the account of Restricted Subsidiaries, the Company
or any other Borrower inures to the benefit of such Borrower, and that such Borrower’s business derives
substantial benefits from the businesses of such Restricted Subsidiaries, the Company or other Borrower.
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line
Lender may, but shall not be obligated to make loans in reliance upon the agreements of the other Lenders
set forth in this Section 2.04 in Dollars (each such loan, a “Swing Line Loan”) to the Borrowers from time
to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any
time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line
Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Credit
Loans and Letter of Credit Obligations of the Revolving Credit Lender acting as Swing Line Lender, may
exceed the amount of such Revolving Credit Lender’s Revolving Credit Commitment; provided, however,
that after giving effect to any Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not exceed
the Maximum Borrowing Amount, and (ii) the Revolving Credit Exposure of any Revolving Credit Lender
shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment, and provided, further, that
the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line
Loan. Within the foregoing limits and subject to the discretion of the Swing Line Lender to make Swing
Line Loans, and subject to the other terms and conditions hereof, the Borrowers may borrow under this
Section 2.04, prepay under Section 2.06(a)(ii), and reborrow under this Section 2.04. Each Swing Line
Loan shall be a Base Rate Revolving Credit Loan. Immediately upon the making of a Swing Line Loan,
each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to
the product of such Revolving Credit Lender’s Applicable Percentage times the amount of such Swing Line
Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower
Agent’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given
by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 12:00 noon on the requested borrowing date, and shall specify (i) the amount to be borrowed,
which shall be a minimum of $500,000 and integral multiples of $100,000 in excess thereof, and (ii) the
requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the Borrower Agent. Promptly
after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender
will (i) deliver notice to the Borrower Agent and the Administrative Agent as to whether it will or will not
make such Swing Line Loan available to the Borrowers and, if agreeing to make such Swing Line Loan,
(ii) confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has
also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender
has received notice (by telephone or in writing) from the Administrative Agent (including at the request of
any Revolving Credit Lender) prior to 1:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth
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in the proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions
specified in Article V is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line
Lender may, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice,
make the amount of its Swing Line Loan available to the Borrower Agent at its office by crediting the
account of the Borrower Agent on the books of the Swing Line Lender in Same Day Funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute discretion, but no less
frequently than weekly, may request, on behalf of the Borrowers (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each Revolving Credit Lender
make a Base Rate Revolving Credit Loan in an amount equal to such Revolving Credit Lender’s
Applicable Revolving Credit Percentage of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to be a Committed Loan
Notice for purposes hereof) and in accordance with the requirements of Section 2.02 without regard
to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but
subject to the unutilized portion of the Aggregate Revolving Credit Commitments and the conditions
set forth in Section 5.02. The Swing Line Lender shall furnish the Borrower Agent with a copy of
the applicable Committed Loan Notice promptly after delivering such notice to the Administrative
Agent. Each Revolving Credit Lender shall make an amount equal to its Applicable Percentage of
the amount specified in such Committed Loan Notice available to the Administrative Agent in Same
Day Funds (and the Administrative Agent may apply Cash Collateral available with respect to the
applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agent’s
Office not later than 2:00 p.m. on the day specified in such Committed Loan Notice, whereupon,
subject to Section 2.04(c)(ii), each Revolving Credit Lender that so makes funds available shall be
deemed to have made a Base Rate Revolving Credit Loan to the Borrowers in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Revolving Credit
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the
Swing Line Lender that each of the Revolving Credit Lenders fund its risk participation in the
relevant Swing Line Loan and each Revolving Credit Lender’s payment to the Administrative Agent
for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in
respect of such participation.
(iii) If any Revolving Credit Lender fails to make available to the Administrative Agent
for the account of the Swing Line Lender any amount required to be paid by such Revolving Credit
Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Revolving Credit Lender
(acting through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is immediately
available to the Swing Line Lender at a rate per annum equal to the applicable Overnight Rate for
three (3) Business Days and thereafter at the Base Rate, plus any administrative processing or similar
fees customarily charged by the Swing Line Lender in connection with the foregoing. A certificate
of the Swing Line Lender submitted to any Revolving Credit Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest
error.
(iv) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
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absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Credit Lender may have
against the Swing Line Lender, the Borrowers or any other Person for any reason whatsoever, (B)
the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether
or not similar to any of the foregoing; provided, however, that each Revolving Credit Lender’s
obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the
conditions set forth in Section 5.02. No such funding of risk participations shall relieve or otherwise
impair the obligation of the Borrowers to repay Swing Line Loans, together with interest as provided
herein.
(v) All refinancings and fundings under this Section 2.04(c) shall be in addition to and
without duplication of the settlement procedures and obligations under Section 2.14.
(d) Repayment of Participations. At any time after any Revolving Credit Lender has purchased
and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on
account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Credit Lender
its Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving Credit Lender’s risk participation was funded) in
the same funds as those received by the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible
for invoicing the Borrowers for interest on the Swing Line Loans. Until each Revolving Credit Lender
funds its Base Rate Revolving Credit Loan or risk participation pursuant to this Section 2.04 to refinance
such Revolving Credit Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrowers shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
2.05 Repayment of Loans.
(a) Term Loan. The Borrowers unconditionally promise to pay to the Administrative Agent
for the account of each Term Lender the principal amount of the Term Loans on the last day of each fiscal
quarter, in consecutive quarterly installments based on a 5.5-year amortization schedule (i.e. each
installment shall be 1/22nd of the original principal amount of the Term Loan), commencing on March 31,
2018. The outstanding unpaid principal balance and all accrued and unpaid interest on the Term Loan shall
be due and payable on the earlier of (i) the Maturity Date, and (ii) the date of the acceleration of the Term
Loan in accordance with the terms hereof.
(b) CapX Loan. In the event any CapX Loans are made, the principal of each CapX Loan shall
be repaid on the last day of each fiscal quarter in consecutive quarterly installments based on a six-year
amortization schedule (i.e. each installment shall be 1/24th of the original principal amount of such CapX
Loan), commencing on the last day of the first full fiscal quarter immediately following the making of such
CapX Loan. The outstanding unpaid principal balance and all accrued and unpaid interest on the CapX
Loan shall be due and payable on the earlier of (i) the Maturity Date, and (ii) the date of the acceleration of
the CapX Loan in accordance with the terms hereof.
(c) Revolving Credit Loans. The Borrowers shall repay to the Administrative Agent for the
account of each the Revolving Credit Lenders on the Maturity Date the aggregate principal amount of and
all accrued and unpaid interest on all Revolving Credit Loans outstanding on such date.
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(d) Swing Line Loans. The Borrowers shall repay each Swing Line Loan on the earlier to
occur of (i) each refinancing date arising under Section 2.04(c) and (ii) the Maturity Date.
(e) Protective Advances. The Borrowers shall repay all Protective Advances on the earlier to
occur of (i) demand by the Administrative Agent and (ii) the Maturity Date.
(f) Other Obligations. Obligations other than principal and interest on the Loans, including
Letter of Credit Obligations and Extraordinary Expenses, shall be paid by Borrowers as specifically
provided herein and in any other applicable Loan Documents or, if no payment date is specified, on demand.
2.06 Prepayments.
(a) Optional.
(i) The Borrowers may, upon notice to the Administrative Agent from the Borrower
Agent, at any time or from time to time voluntarily prepay Term Loans, Revolving Credit Loans or
CapX Loans in whole or in part without premium or penalty; provided that except with respect to
prepayments in accordance with Section 4.04(c), (A) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (1) three Business Days prior to any date of
prepayment of LIBOR Loans and (2) on the date of prepayment of Base Rate Loans; (B) any
prepayment of LIBOR Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the
entire principal amount thereof then outstanding. During a Dominion Trigger Period, there shall be
no minimum repayment amount for Base Rate Loans. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid and, if LIBOR Loans are to be
prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each
Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such
prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility). If
such notice is given by the Borrower Agent, the Borrowers shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a LIBOR Loan shall be accompanied by all accrued interest on the amount prepaid,
together with any additional amounts required pursuant to Section 3.05. Subject to Section 2.17(b),
each prepayment of the outstanding Term Loans or CapX Loans pursuant to this Section 2.06(a)
shall be applied to the principal repayment installments thereof pro rata to all remaining scheduled
principal payments. Subject to Section 2.17, such prepayments shall be paid to the Lenders in
accordance with their respective Applicable Percentages in respect of each of the relevant Facilities.
Any payment of the Revolving Credit Loans shall be applied first to the Revolving Credit Loans
that are not FILO Loans until repaid in full, and then to FILO Loans.
(ii) The Borrowers may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent) from the Borrower Agent, at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided that (A) such
notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00
p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If
such notice is given by the Borrower Agent, the Borrowers shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified therein.
(b) Mandatory.
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(i) Asset Dispositions and Insurance Events. Subject to Section 2.06(d):
(A) Term Loan Equipment. If a Disposition or insurance event occurs with
respect to any Term Loan Equipment, the Borrowers shall prepay an aggregate principal
amount of Loans equal to 100% of such Net Cash Proceeds immediately upon (or, if the
realization by such Person of Net Cash Proceeds for any such Disposition or insurance
event is less than $1,000,000, at the month end immediately following) receipt thereof by
such Person, first, to the principal repayment installments of the Term Loans, pro rata to
all remaining scheduled principal payments and, second, to the Revolving Credit Facility
in the manner set forth in clause (c)(ii) below.
(B) CapX Equipment. If a Disposition or insurance event occurs with respect
to any CapX Equipment, the Borrowers shall prepay an aggregate principal amount of
Loans equal to 100% of such Net Cash Proceeds immediately upon (or, if the realization
by such Person of Net Cash Proceeds for any such Disposition or insurance event is less
than $1,000,000, at the month end immediately following) receipt thereof by such Person,
first, to the principal repayment installments of the CapX Loan to which such CapX
Equipment relates, pro rata to all remaining scheduled principal payments and, second, to
the Revolving Credit Facility in the manner set forth in clause (c)(ii) below.
(C) Other Property. If a Disposition or insurance event occurs with respect to
any property (other than Term Loan Equipment and CapX Equipment) of any Loan Party
or any of its Restricted Subsidiaries (other than any Disposition of property permitted by
Section 8.05(a), Section 8.05(l) or Section 8.05(m)) which results in the realization by such
Person of Net Cash Proceeds in excess of $1,000,000 for any such Disposition and
insurance events or $1,000,000 in the aggregate for all such Dispositions and insurance
events in any fiscal year, the Borrowers shall prepay an aggregate principal amount of
Loans (and Cash Collateralize Letter of Credit Obligations, if applicable) equal to 100% of
such excess Net Cash Proceeds immediately upon receipt thereof by such Person, (x) if
such property constitutes Accounts or Aircraft Parts, first, to the Revolving Credit Facility
in the manner set forth in clause (c)(ii) below and, second, ratably to the Term Loans and
the CapX Loans, pro rata to all remaining scheduled principal payments or (y) in the case
of any other property, first, ratably to the principal repayment installments of the Term
Loans and the CapX Loans, pro rata to all remaining scheduled principal payments and,
second, to the Revolving Credit Facility in the manner set forth in clause (c)(ii) below.
(D) Specified Dispositions. Notwithstanding anything herein to the contrary, in
connection with any Specified Disposition (except as set forth in Sections 2.06(b)(i)(A)
and (B) above to the extent such Term Loan Equipment or CapX Equipment disposition
constitutes a Specified Disposition), the Company may elect to not repay the Obligations
with the applicable Net Cash Proceeds as described in this Section 2.06(b) and instead
utilize such Net Cash Proceeds to redeem any outstanding Existing Series E Preferred
Stock to the extent permitted by Section 8.06(f).
(ii) Overadvances.
(A) Revolving Credit Loans. If for any reason the Total Revolving Credit
Outstandings at any time exceed the Borrowing Base at such time (including as a result of
a scheduled reduction in the FILO Amount), the Borrowers shall upon demand prepay
Revolving Credit Loans, Swing Line Loans and Letter of Credit Borrowings and/or Cash
Collateralize the Letter of Credit Obligations in an aggregate amount equal to such excess;
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provided, however, that the Borrowers shall not be required to Cash Collateralize the Letter
of Credit Obligations pursuant to this Section 2.06(b)(ii)(A) unless, after the prepayment
of the Revolving Credit Loans and Swing Line Loans, the Total Revolving Credit
Outstandings exceed the Aggregate Revolving Credit Commitments at such time.
(B) Term Loans. If any Term Loan Equipment at any time ceases to constitute
Eligible Equipment, Borrowers shall, on the sooner of the Administrative Agent’s demand
or the first Business Day after Borrowers have knowledge thereof, prepay Term Loans in
an amount equal to (x) the amount of such Term Loan that is attributable to such Term
Loan Equipment less (y) the amount of any amortization paid in respect of such Term Loan
that is attributable to such Term Loan Equipment, in each case as reasonably determined
by the Administrative Agent.
(C) CapX Loans. If any CapEx Equipment at any time ceases to constitute
Eligible Equipment, Borrowers shall, on the sooner of the Administrative Agent’s demand
or the first Business Day after Borrowers have knowledge thereof, prepay CapEx Loans in
an amount equal to (x) the amount of such CapEx Loan that is attributable to such CapEx
Equipment less (y) the amount of any amortization paid in respect of such CapEx Loan
that is attributable to such CapEx Equipment, in each case as reasonably determined by the
Administrative Agent.
(c) Application of Mandatory Prepayments. Subject to Section 9.03:
(i) Generally. Subject to Section 2.17, prepayments shall be paid to the Lenders in
accordance with their respective Applicable Percentage in respect of the relevant Facilities.
Notwithstanding the foregoing, any prepayment hereunder arising from a Disposition of assets of
the type then included in the Borrowing Base shall be applied to repay Revolving Credit Facility in
accordance with clause (ii) below.
(ii) Revolving Credit Loans. Except as otherwise provided in Section 2.17,
prepayments of the Revolving Credit Facility made pursuant to Section 2.06(b), first, shall be
applied ratably to the Letter of Credit Borrowings and the Swing Line Loans, second, shall be
applied ratably to the outstanding Revolving Credit Loans, third, shall be used to Cash Collateralize
the remaining Letter of Credit Obligations in the Minimum Collateral Amount and, fourth, the
amount remaining, if any, after the prepayment in full of all outstanding Obligations (other than
Credit Product Obligations) and the Cash Collateralization of the remaining Letter of Credit
Obligations in the Minimum Collateral Amount may be retained by the Borrowers for use in the
ordinary course of Borrowers’ business. Upon the drawing of any Letter of Credit that has been
Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action
by or notice to or from the Borrowers or any other Loan Party or any Defaulting Lender that has
provided Cash Collateral) to reimburse the Letter of Credit Issuer or the Revolving Credit Lenders,
as applicable. Any amount applied to the Revolving Credit Loans shall be applied first to the
Revolving Credit Loans that are not FILO Loans until repaid in full, and then to FILO Loans.
(d) Reinvestment. Notwithstanding the foregoing, (A) with respect to any Net Cash Proceeds
less than $10,000,000 realized in connection with a Disposition or insurance event described in
Section 2.06(b)(i)(C), at the election of the Borrowers (as notified by the Borrower Agent to the
Administrative Agent on or prior to the date of such Disposition or insurance event or receipt of proceeds)
and so long as no Default shall have occurred and be continuing, such Loan Party or such Restricted
Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets within 180 days
after the receipt of such Net Cash Proceeds (the consummation of such reinvestment to be certified by the
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Borrowers in writing to the Lender within such period); provided, however, that any Net Cash Proceeds not
so reinvested in excess of $250,000 in any fiscal year shall be immediately applied to the prepayment of
the Loans as set forth in Section 2.06(c) and (B) with respect to Net Cash Proceeds equal to or greater than
$10,000,000 realized in connection with a Disposition or insurance event described in Section 2.06(b)(i), if
the Borrowers have requested that Administrative Agent agree to permit Borrowers or the applicable
Restricted Subsidiary to repair or replace the Collateral subject to such Disposition, such amounts shall be
held as Cash Collateral and provisionally applied to reduce the outstanding principal balance of the
Revolving Credit Loans (but shall not create Availability) until the earlier of Administrative Agent’s
decision with respect thereto or the expiration of 180 days from such request. If Administrative Agent,
after consultation with the Borrowers agrees in its reasonable discretion to permit such repair or
replacement, such amount shall, unless an Event of Default is in existence, be remitted to Borrowers for
use in replacing or repairing the Collateral so Disposed of or subject to an insurance event at such time and
in such amounts as the Administrative Agent may determine in its reasonable credit judgment. If
Administrative Agent declines to permit such repair or replacement in its reasonable discretion within such
180 day period, such amount shall be applied to the Loans in the manner otherwise specified in
Section 2.06(c). Notwithstanding anything herein to the contrary, the Net Cash Proceeds of Dispositions
of Term Loan Equipment or CapX Equipment shall not be eligible for the reinvestment provisions set forth
in this Section 2.06(d).
2.07 Termination or Reduction of Commitments.
(a) Revolving Credit Commitment. The Borrowers may, upon notice to the Administrative
Agent from the Borrower Agent, terminate the Aggregate Revolving Credit Commitments, the Letter of
Credit Sublimit or the Swing Line Sublimit, or from time to time permanently reduce the Aggregate
Revolving Credit Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit; provided that (i)
any such notice shall be received by the Administrative Agent not later than 11:00 a.m. three (3) Business
Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate
amount of $25,000,000 or any whole multiple of $5,000,000 in excess thereof, (iii) no such partial reduction
shall result in the Aggregate Revolving Credit Commitments being less than $75,000,000, (iv) the
Borrowers shall not terminate or reduce (A) the Aggregate Revolving Credit Commitments if, after giving
effect thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings
would exceed the Aggregate Revolving Credit Commitments, (B) the Letter of Credit Sublimit if, after
giving effect thereto, the Outstanding Amount of Letter of Credit Obligations not fully Cash Collateralized
hereunder would exceed the Letter of Credit Sublimit, or (C) the Swing Line Sublimit if, after giving effect
thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would
exceed the Swing Line Sublimit and (v) if, after giving effect to any reduction or termination of the
Aggregate Revolving Credit Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit
exceeds the amount of the Aggregate Revolving Credit Commitments, such Sublimit shall be automatically
reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of any
such notice of termination or reduction of the Aggregate Revolving Credit Commitments, the Letter of
Credit Sublimit or the Swing Line Sublimit. Any reduction of the Aggregate Revolving Credit
Commitments shall be applied to the Revolving Credit Commitment of each Revolving Credit Lender
according to its Applicable Revolving Credit Percentage. All fees accrued until the effective date of any
termination of the Aggregate Revolving Credit Commitments shall be paid on the effective date of such
termination.
(b) Term Loan Commitment. The aggregate Term Loan Commitments shall be automatically
and permanently reduced to zero on the date of the Term Borrowing.
(c) CapX Commitment. The CapX Commitment shall terminate on the CapX Commitment
Termination Date, unless sooner terminated in accordance with this Agreement. Upon at least three (3)
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Business Days’ prior written notice to Administrative Agent (unless in connection with Payment in Full of
all Obligations), Borrower Agent may, at its option, terminate the CapX Commitment. Any notice of
termination given by Borrower Agent shall be irrevocable; provided that a notice of termination of the
CapX Commitments delivered by Borrowers may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be revoked by Borrower Agent (by
notice to Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
On the Maturity Date, Borrowers shall make Payment in Full of all Obligations.
Borrower Agent may permanently reduce the CapX Commitments, on a pro rata basis for each Lender,
upon at least 10 days prior written notice to Administrative Agent, which notice shall specify the amount
of the reduction and shall be irrevocable once given. Each reduction shall be in an aggregate amount of
$5,000,000 or any whole multiple of $1,000,000 in excess thereof.
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each LIBOR Loan shall bear interest
on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the LIBOR
Rate for such Interest Period plus the Applicable Margin; (ii) each Base Rate Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Margin; (iii) each Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Margin and (iv) each other Obligation (including, to the extent not prohibited by
applicable Law, interest not paid when due) shall bear interest on the unpaid amount thereof at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(b) (i) If any amount payable by the Borrowers under any Loan Document is not paid
when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or
otherwise, then such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any other Event of Default exists, then the Administrative Agent may, and upon
the request of the Required Lenders shall, require (and notify the Borrowers thereof) that all
outstanding Loan Obligations shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate.
(iii) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and
payable in accordance with the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 Fees.
(a) Revolving Credit Facility Unused Fee. The Borrowers shall pay to the Administrative
Agent for the account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage, a fee (the “Revolving Credit Facility Unused Fee”) equal to the Unused Fee Rate times the
Unused Facility Amount. The Revolving Credit Facility Unused Fee shall accrue at all times during the
Availability Period for the Revolving Credit Facility, including at any time during which one or more of
the conditions in Article V is not met, and shall be due and payable quarterly in arrears on the first Business
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Day after each calendar quarter, commencing with the first such date to occur after the Closing Date, and
on the last day of the Availability Period for the Revolving Credit Facility.
(b) CapX Facility Unused Fee. The Borrowers shall pay to the Administrative Agent for the
account of each CapX Lender in accordance with its Applicable CapX Percentage, a fee (the “CapX Unused
Fee”) equal to the Unused Fee Rate times the CapX Unused Facility Amount. The CapX Unused Fee shall
accrue at all times during the Availability Period for the CapX Facility, including at any time during which
one or more of the conditions in Article V is not met, and shall be due and payable quarterly in arrears on
the first Business Day after each calendar quarter, commencing with the first such date to occur after the
Closing Date, and on the last day of the Availability Period of the CapX Facility.
(c) Letter of Credit Fees. Subject to the provisions of the last sentence of this clause (b), the
Borrowers shall pay to the Administrative Agent for the account of each Revolving Credit Lender in
accordance with its Applicable Percentage, in Dollars, a Letter of Credit fee (“Letter of Credit Fee”) for
each Letter of Credit equal to the Applicable Margin for LIBOR Loans that are not FILO Loans times the
daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect under such Letter of Credit); provided, however, any Letter of Credit Fees otherwise
payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such
Defaulting Lender has not provided Cash Collateral satisfactory to the Letter of Credit Issuer shall be
payable, to the maximum extent permitted by applicable Law, to the other Revolving Credit Lenders in
accordance with the upward adjustments in their respective Applicable Percentages allocable to such Letter
of Credit pursuant to Section 2.17(a)(iv), with the balance of such fee, if any, payable to the Letter of Credit
Issuer for its own account. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07.
The Letter of Credit Fee shall accrue at all times during the Availability Period, including at any time during
which one or more of the conditions in Article V is not met, and shall be due and payable quarterly in
arrears on the first Business Day after each calendar quarter, commencing with the first such date to occur
after the Closing Date, and on the last day of the Availability Period. If there is any change in the Applicable
Margin for LIBOR Loans that are not FILO Loans during any quarter, the daily maximum amount of each
Letter of Credit shall be computed and multiplied by the Applicable Margin for LIBOR Loans that are not
FILO Loans separately for each period during such quarter that such Applicable Margin was in effect. At
all times that the Default Rate shall be applicable to any Loans pursuant to Section 2.08(b), the Letter of
Credit Fees payable under this clause (b) shall accrue and be payable at the Default Rate.
(d) Fee Letter. The Borrowers agree to pay to the Administrative Agent, for its own account,
the fees payable in the amounts and at the times set forth in the Fee Letter.
(e) Generally. All fees payable hereunder shall be paid on the dates due, in immediately
available funds, to (i) the Administrative Agent for distribution, in the case of commitment fees and
participation fees, to the Revolving Credit Lenders, and otherwise, to the Lenders entitled thereto or (ii) the
Letter of Credit Issuer, in the case of fees payable to it. Fees paid shall not be refundable under any
circumstances.
2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans
(including Base Rate Loans determined by reference to the LIBOR Rate) and the Unused Fee shall be made
on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day
year). Interest shall accrue on each Loan or other Loan Obligation not paid when due for the day on which
the Loan is made or such Loan Obligation is due and unpaid, and shall not accrue on a Loan, or any portion
thereof, or such Loan Obligation for the day on which the Loan, or such portion thereof, or Loan Obligation
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is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section
2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or
fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
2.11 Evidence of Debt.
(a) Loan Account. The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by the Administrative Agent (the “Loan Account”) in the Ordinary
Course of Business. In addition, each Lender may record in such Lender’s internal records, an appropriate
notation evidencing the date and amount of each Loan from such Lender, each payment and prepayment of
principal of any such Loan, and each payment of interest, fees and other amounts due in connection with
the Loan Obligations due to such Lender. The accounts or records maintained by the Administrative Agent
and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by
the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error
in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay
any amount owing with respect to the Loan Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the Administrative Agent in respect
of such matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrowers
shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence
such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note
and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.
(b) Account Records. In addition to the accounts and records referred to in (a) above, each
Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or
records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing
Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error.
2.12 Payments Generally; the Administrative Agent’s Clawback.
(a) General. All payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided
herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars
and in immediately available funds not later than 1:00 p.m. on the date specified herein. Subject to Section
2.14, Section 9.03, and payments made during a Dominion Trigger Period from the Concentration Account,
the Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect of
the relevant Facility (or other applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after
1:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue. If any payment to be made by the Borrowers shall come due on a day other than
a Business Day, payment shall be made on the next following Business Day, and such extension of time
shall be reflected on computing interest or fees, as the case may be.
(b) Presumptions by Administrative Agent.
(i) Funding by Lenders. Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing of LIBOR Loans (or, in the case of any
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Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender
will not make available to the Administrative Agent such Lender’s share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender
has made such share available in accordance with and at the time required by Section 2.02) and may,
in reliance upon such assumption, make available to the Borrowers a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrowers severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in immediately available
funds with interest thereon, for each day from and including the date such amount is made available
to the Borrowers to but excluding the date of payment to the Administrative Agent, at (A) in the
case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made
by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrowers and such Lender
shall pay such interest to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrowers the amount of such interest paid by the
Borrowers for such period. If such Lender pays its share of the applicable Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such
Borrowing. Any payment by the Borrowers shall be without prejudice to any claim the Borrowers
may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Payments by Borrower. Unless the Administrative Agent shall have received
notice from the Borrower Agent prior to the time at which any payment is due to the Administrative
Agent for the account of the Lenders or the Letter of Credit Issuer hereunder that the Borrowers will
not make such payment, the Administrative Agent may assume that the Borrowers have made such
payment on such date in accordance herewith and may, in reliance upon such assumption, distribute
to the Appropriate Lenders or the Letter of Credit Issuer, as the case may be, the amount due. In
such event, if the Borrowers have not in fact made such payment, then each of the Appropriate
Lenders or the Letter of Credit Issuer, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or the Letter
of Credit Issuer, in immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or any Borrower with respect to any amount owing
under this subsection (b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions
of this Article II, and such funds are not made available to the Borrowers by the Administrative Agent
because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived
in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Term
Loans, CapX Loans, and Revolving Credit Loans, to fund participations in Letters of Credit and Swing
Line Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any
Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c)
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on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so
on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to
purchase its participation or to make its payment under Section 11.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds
for any Loan in any particular place or manner or to constitute a representation by any Lender that it has
obtained or will obtain the funds for any Loan in any particular place or manner.
(f) Insufficient Funds. If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, Letter of Credit Borrowings, interest and fees
then due hereunder, such funds shall be applied as provided in Section 2.06(c).
2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of (a) the Loan Obligations due and payable to
such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Loan Obligations due and payable to such Lender at
such time to (ii) the aggregate amount of the Loan Obligations due and payable to all Lenders hereunder
and under the other Loan Documents at such time) of payments on account of the Loan Obligations due
and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the
Lenders at such time or (b) the Loan Obligations owing (but not due and payable) to such Lender hereunder
and under the other Loan Documents at such time in excess of its ratable share (according to the proportion
of (i) the amount of such Loan Obligations owing (but not due and payable) to such Lender at such time to
(ii) the aggregate amount of the Loan Obligations owing (but not due and payable) to all Lenders hereunder
and under the other Loan Documents at such time) of payments on account of the Loan Obligations owing
(but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time
obtained by all of the Lenders at such time, then, in each case under clauses (a) and (b) above, the Lender
receiving such greater proportion shall (A) notify the Administrative Agent of such fact, and (B) purchase
(for cash at face value) participations in the Loans and subparticipations in Letter of Credit Obligations and
Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount
of Loan Obligations then due and payable to the Lenders or owing (but not due and payable) to the Lenders,
as the case may be, provided that:
(i) if any such participations or subparticipations are purchased and all or any portion
of the payment giving rise thereto is recovered, such participations or subparticipations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (A) any payment
made by or on behalf of any Loan Party pursuant to and in accordance with the express terms of this
Agreement (including the application of funds arising from the existence of a Defaulting Lender),
(B) the application of Cash Collateral provided for in Section 2.16, or (C) any payment obtained by
a Lender as consideration for the assignment of or sale of a participation in any of its Loans or
subparticipations in Letter of Credit Obligations or Swing Line Loans to any assignee or participant,
other than an assignment to any Loan Party or any Affiliate thereof (as to which the provisions of
this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable
Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against
such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of such Loan Party in the amount of such participation.
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2.14 Settlement Among Lenders.
(a) The amount of each Revolving Credit Lender’s Applicable Revolving Credit Percentage
of outstanding Revolving Credit Loans shall be computed weekly (or more frequently in the Administrative
Agent’s discretion) and such amount shall be adjusted upward or downward based on all Revolving Credit
Loans and repayments of Revolving Credit Loans received by the Administrative Agent as of 3:00 p.m. on
the first Business Day (such date, the “Settlement Date”) following the end of the period specified by the
Administrative Agent.
(b) The Administrative Agent shall deliver to each of the Revolving Credit Lenders promptly
after a Settlement Date a summary statement of the amount of outstanding Revolving Credit Loans for the
period and the amount of repayments received for the period. As reflected on the summary statement, (i)
the Administrative Agent shall transfer to each Revolving Credit Lender its Applicable Percentage of
repayments, and (ii) each Revolving Credit Lender shall transfer to the Administrative Agent (as provided
below) or the Administrative Agent shall transfer to each Revolving Credit Lender, such amounts as are
necessary to insure that, after giving effect to all such transfers, the Revolving Credit Exposure of each
Revolving Credit Lender shall be equal to such Revolving Credit Lender’s Applicable Percentage of the
Total Revolving Credit Outstandings as of such Settlement Date. If the summary statement requires
transfers to be made to the Administrative Agent by the Revolving Credit Lenders and is received prior to
1:00 p.m. on a Business Day, such transfers shall be made in immediately available funds no later than 3:00
p.m. that day; and, if received after 1:00 p.m., then no later than 3:00 p.m. on the next Business Day. The
obligation of each Revolving Credit Lender to transfer such funds is irrevocable, unconditional and without
recourse to or warranty by the Administrative Agent. If and to the extent any Revolving Credit Lender
shall not have so made its transfer to the Administrative Agent, such Lender agrees to pay to the
Administrative Agent, forthwith on demand such amount, together with interest thereon, for each day from
such date until the date such amount is paid to the Administrative Agent, equal to the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation plus any reasonable administrative, processing, or similar fees customarily
charged by the Administrative Agent in connection with the foregoing.
2.15 Nature and Extent of Each Borrower’s Liability.
(a) Joint and Several Liability. Each Borrower agrees that it is jointly and severally liable for
all Obligations, except Excluded Swap Obligations, and all agreements under the Loan Documents. Each
Borrower agrees that its guaranty obligations hereunder constitute a continuing guaranty of payment and
not of collection, that such obligations shall not be discharged until the Facility Termination Date, and that
such obligations are absolute and unconditional, irrespective of (i) the genuineness, validity, regularity,
enforceability, subordination or any future modification of, or change in, any Obligations or Loan
Document, or any other document, instrument or agreement to which any Borrower is or may become a
party or be bound; (ii) the absence of any action to enforce this Agreement (including this Section) or any
other Loan Document, or any waiver, consent or indulgence of any kind by the Administrative Agent or
any Lender with respect thereto; (iii) the existence, value or condition of, or failure to perfect a Lien or to
preserve rights against, any security or guaranty for the Obligations or any action, or the absence of any
action, by the Administrative Agent or any Lender in respect thereof (including the release of any security
or guaranty); (iv) the insolvency of any Borrower; (v) any election by the Administrative Agent or any
Lender in proceeding under Debtor Relief Laws for the application of Section 1111(b)(2) of the Bankruptcy
Code; (vi) any borrowing or grant of a Lien by any other Borrower, as debtor-in-possession under Section
364 of the Bankruptcy Code or otherwise; (vii) the disallowance of any claims of the Administrative Agent
or any Lender against any Borrower for the repayment of any Obligations under Section 502 of the
Bankruptcy Code or otherwise; or (viii) any other action or circumstances that might otherwise constitute
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a legal or equitable discharge or defense of a surety or guarantor, except full payment in cash or Cash
Collateralization of all Obligations on the Facility Termination Date.
(b) Waivers.
(i) Each Borrower expressly waives all rights that it may have now or in the future
under any statute, at common law, in equity or otherwise, to compel the Administrative Agent or
Lenders to marshal assets or to proceed against any Borrower, other Person or security for the
payment or performance of any Obligations before, or as a condition to, proceeding against such
Borrower. Each Borrower waives all defenses available to a surety, guarantor or accommodation
co-obligor other than full payment of all Obligations. It is agreed among each Borrower, the
Administrative Agent and Lenders that the provisions of this Section 2.15 are of the essence of the
transaction contemplated by the Loan Documents and that, but for such provisions, the
Administrative Agent and Lenders would decline to make Loans and issue Letters of Credit. Each
Borrower acknowledges that its guaranty pursuant to this Section is necessary to the conduct and
promotion of its business, and can be expected to benefit such business.
(ii) The Administrative Agent and Lenders may, following and during the continuance
of an Event of Default, in their discretion, pursue such rights and remedies as they deem appropriate,
including realization upon Collateral by judicial foreclosure or non-judicial sale or enforcement,
without affecting any rights and remedies under this Section 2.15. If, in taking any action in
connection with the exercise of any rights or remedies, the Administrative Agent or any Lender shall
forfeit any other rights or remedies, including the right to enter a deficiency judgment against any
Borrower or other Person, whether because of any applicable Laws pertaining to “election of
remedies” or otherwise, each Borrower consents to such action and waives any claim of forfeiture
of such rights or remedies based upon it, even if the action may result in loss of any rights of
subrogation that such Borrower might otherwise have had. Any election of remedies that results in
denial or impairment of the right of the Administrative Agent or any Lender to seek a deficiency
judgment against any Borrower shall not impair any other Borrower’s obligation to pay the full
amount of the Obligations. Each Borrower waives all rights and defenses arising out of an election
of remedies, such as nonjudicial foreclosure with respect to any security for the Obligations, even
though that election of remedies destroys such Borrower’s rights of subrogation against any other
Person. The Administrative Agent may bid all or a portion of the Obligations at any foreclosure or
trustee’s sale or at any private sale, and the amount of such bid need not be paid by the
Administrative Agent but shall be credited against the Obligations. The amount of the successful
bid at any such sale, whether the Administrative Agent or any other Person is the successful bidder,
shall be conclusively deemed to be the fair market value of the Collateral, and the difference between
such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be
the amount of the Obligations guaranteed under this Section 2.15, notwithstanding that any present
or future law or court decision may have the effect of reducing the amount of any deficiency claim
to which the Administrative Agent or any Lender might otherwise be entitled but for such bidding
at any such sale.
(c) Extent of Liability; Contribution.
(i) Notwithstanding anything herein to the contrary, each Borrower’s liability under
this Section 2.15 shall be limited to the greater of (i) all amounts for which such Borrower is
primarily liable, as described below, and (ii) such Borrower’s Allocable Amount.
(ii) If any Borrower makes a payment under this Section 2.15 of any Obligations (other
than amounts for which such Borrower is primarily liable) (a “Guarantor Payment”) that, taking into
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account all other Guarantor Payments previously or concurrently made by any other Borrower,
exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the
aggregate Obligations satisfied by such Guarantor Payments in the same proportion that such
Borrower’s Allocable Amount bore to the total Allocable Amounts of all Borrowers, then such
Borrower shall be entitled to receive contribution and indemnification payments from, and to be
reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their
respective Allocable Amounts in effect immediately prior to such Guarantor Payment. The
“Allocable Amount” for any Borrower shall be the maximum amount that could then be recovered
from such Borrower under this Section 2.15 without rendering such payment voidable under Section
548 of the Bankruptcy Code or under any applicable state fraudulent transfer or conveyance act, or
similar statute or common law.
(iii) Each Loan Party that is a Qualified ECP when its guaranty of or grant of Lien as
security for a Swap Obligation becomes effective hereby jointly and severally, absolutely,
unconditionally and irrevocably undertakes to provide such funds or other support to each Specified
Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party
from time to time to honor all of its obligations under the Loan Documents in respect of such Swap
Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby
incurred without rendering such Qualified ECP’s obligations and undertakings under this
Section 2.15 voidable under any applicable fraudulent transfer or conveyance act). The obligations
and undertakings of each Qualified ECP under this Section shall remain in full force and effect until
Payment in Full. Each Loan Party intends this Section to constitute, and this Section shall be deemed
to constitute, a guarantee of the obligations of, and a “keepwell, support or other agreement” for the
benefit of, each Loan Party for all purposes of the Commodity Exchange Act.
(d) Direct Liability; Separate Borrowing Availability. Nothing contained in this Section 2.15
shall limit the liability of any Borrower to pay Loans made directly or indirectly to that Borrower (including
Loans advanced to any other Borrower and then re-loaned or otherwise transferred to, or for the benefit of,
such Borrower), Letter of Credit Obligations relating to Letters of Credit issued to support such Borrower’s
business, and all accrued interest, fees, expenses and other related Obligations with respect thereto, for
which such Borrower shall be primarily liable for all purposes hereunder. The Administrative Agent and
Lenders shall have the right, at any time in their discretion, to condition Revolving Credit Loans and Letters
of Credit upon a separate calculation of borrowing availability consistent with the Borrowing Base for each
Borrower and to restrict the disbursement and use of such Revolving Credit Loans and Letters of Credit to
such Borrower.
(e) Joint Enterprise. Each Borrower has requested that the Administrative Agent and Lenders
make this credit facility available to Borrowers on a combined basis, in order to finance Borrowers’ business
most efficiently and economically. The Borrowers’ business is a mutual and collective enterprise, and the
successful operation of each Borrower is dependent upon the successful performance of the integrated
group. The Borrowers believe that consolidation of their credit facility will enhance the borrowing power
of each Borrower and ease administration of the Revolving Credit Facility, Term Loan Facility, and CapX
Facility, all to their mutual advantage. The Borrowers acknowledge that the Administrative Agent’s and
Lenders’ willingness to extend credit and to administer the Collateral on a combined basis hereunder is
done solely as an accommodation to Borrowers and at Borrowers’ request.
(f) Subordination. Each Loan Party hereby subordinates any claims, including any rights at
law or in equity to payment, subrogation, reimbursement, exoneration, contribution, indemnification or set
off, that it may have at any time against any other Loan Party, howsoever arising, to the full payment in
cash or Cash Collateralization of all Obligations on the Facility Termination Date.
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(g) Borrower Agent.
(i) Each Loan Party hereby irrevocably appoints and designates (or, if not a party
hereto, by execution and delivery of a guaranty agreement acceptable to Administrative Agent or
otherwise becoming a Guarantor hereunder shall be deemed to have irrevocably appointed and
designated) the Company (“Borrower Agent”) as its representative and agent and attorney-in-fact
for all purposes under the Loan Documents, including, as applicable, requests for Credit Extensions,
designation of interest rates, delivery or receipt of communications, preparation and delivery of
Borrowing Base and financial reports, receipt and payment of Obligations, requests for waivers,
amendments or other accommodations, actions under the Loan Documents (including in respect of
compliance with covenants), and all other dealings with the Administrative Agent, the Letter of
Credit Issuers, Swing Line Lender or any Lender.
(ii) Any notice, election, representation, warranty, agreement or undertaking by or on
behalf of any Loan Party by the Borrower Agent shall be deemed for all purposes to have been made
by such Loan Party and shall be binding upon and enforceable against such Loan Party to the same
extent as if made directly by such Loan Party.
(iii) The Borrower Agent hereby accepts the appointment by each Loan Party
hereunder to act as its agent and attorney-in-fact.
(iv) The Administrative Agent and Lenders shall be entitled to rely upon, and shall be
fully protected in relying upon, any notice or communication (including any Request for Credit
Extension) delivered by Borrower Agent on behalf of any Borrower or other Loan Party. The
Administrative Agent and Lenders may give any notice to or communication with a Loan Party
hereunder to the Borrower Agent on behalf of such Loan Party. Each of the Administrative Agent,
the Letter of Credit Issuers and the Lenders shall have the right, in its discretion, to deal exclusively
with Borrower Agent for any or all purposes under the Loan Documents. Each Loan Party agrees
(or, if not a party hereto, by execution and delivery of a guaranty agreement acceptable to
Administrative Agent or otherwise becoming a Guarantor hereunder shall be deemed to have agreed)
that any notice, election, communication, representation, agreement or undertaking made on its
behalf by Borrower Agent shall be binding upon and enforceable against it.
2.16 Cash Collateral.
(a) Certain Credit Support Events. If (i) the Letter of Credit Issuer has honored any full or
partial drawing request under any Letter of Credit upon presentation and such drawing has resulted in a
Letter of Credit Borrowing, (ii) as of the Letter of Credit Expiration Date, any Letter of Credit Obligation
for any reason remains outstanding, (iii) any Protective Advance shall not have been funded by the Lenders
upon demand by the Administrative Agent, (iv) the Borrowers shall be required to provide Cash Collateral
pursuant to Section 9.02 or (v) there shall exist a Defaulting Lender, the Borrowers shall immediately (in
the case of clause (iv) above) or within one Business Day (in all other cases) following any request by the
Administrative Agent or the Letter of Credit Issuer, provide Cash Collateral in an amount not less than the
Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (v)
above, after giving effect to Section 2.17(a)(iv) and any Cash Collateral provided by the Defaulting Lender).
(b) Grant of Security Interest. The Borrowers, and to the extent provided by any Defaulting
Lender, such Defaulting Lender, hereby grant to (and subjects to the control of) the Administrative Agent,
for the benefit of the Administrative Agent, the Letter of Credit Issuer and the Lenders, and agree to
maintain, a first priority security interest in all such cash, Deposit Accounts and all balances therein, and
all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as
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security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.16(c). If at
any time the Administrative Agent reasonably determines that Cash Collateral is less than the Minimum
Collateral Amount or otherwise deficient for any reason, the Borrowers will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount
sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds
subject to deposit) shall be maintained in one or more blocked, non-interest bearing Deposit Accounts at
BMO.
(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash
Collateral provided in respect of Letters of Credit, Swing Line Loans or Protective Advances shall be held
and applied to the specific Letter of Credit Obligations, Swing Line Loans or Protective Advances
(including any the Defaulting Lender’s obligation to fund participations in respect thereof) for which the
Cash Collateral was so provided (including, as to Cash Collateral provided by a Defaulting Lender, any
interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided,
prior to any other application of such property as may be provided for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting
Exposure or to secure other obligations shall be released promptly following (i) the elimination of the
applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of
Defaulting Lender status of the applicable Revolving Credit Lender (or, as appropriate, its assignee
following compliance with Section 11.06(b)(vi)) or (ii) the determination by the Administrative Agent and
the Letter of Credit Issuer that there exists excess Cash Collateral.
2.17 Defaulting Lenders.
(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if
any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting
Lender, to the extent permitted by applicable Law:
(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as
set forth in the definition of “Required Lenders”, “Required Supermajority Lenders” and Section
11.01.
(ii) Reallocation of Payments. Any payment of principal, interest, fees or other
amounts received by the Administrative Agent for the account of such Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to Article IX or otherwise) or received by the
Administrative Agent from a Defaulting Lender pursuant to Section 11.08 shall be applied at such
time or times as may be determined by the Administrative Agent as follows: first, to the payment of
any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, if
such Defaulting Lender is a Revolving Credit Lender, to the payment on a pro rata basis of any
amounts owing by that Defaulting Lender to the Letter of Credit Issuer or Swing Line Lender
hereunder; third, if such Defaulting Lender is a Revolving Credit Lender, to Cash Collateralize the
Letter of Credit Issuer’s and the Administrative Agent’s Fronting Exposure with respect to such
Defaulting Lender in accordance with Section 2.16; fourth, as the Borrower Agent may request (so
long as no Default or Event of Default exists) to the funding of any Loan in respect of which that
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined
by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower
Agent, to be held in a Deposit Account and released in order to (x) satisfy such Defaulting Lender’s
potential future funding obligations with respect to Loans under this Agreement and (y) if such
Defaulting Lender is a Revolving Credit Lender, Cash Collateralize the Letter of Credit Issuer’s and
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the Administrative Agent’s future Fronting Exposure with respect to such Defaulting Lender with
respect to future Letters of Credit and Protective Advances; sixth, in the case of a Defaulting Lender
under any Facility, to the payment of any obligations owing to the other Lenders under such Facility
(in the case of the Revolving Credit Facility, including the Letter of Credit Issuer or Swing Line
Lender) as a result of any judgment of a court of competent jurisdiction obtained by any Lender
under such Facility (in the case of the Revolving Credit Facility, including the Letter of Credit Issuer
or Swing Line Lender) against such Defaulting Lender as a result of such Defaulting Lender’s breach
of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to
the payment of any amounts owing to the Borrowers as a result of any judgment of a court of
competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting
Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such
payment is a payment of the principal amount of any Loans or Letter of Credit Borrowings in respect
of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans were
made or the related Letters of Credit were issued at a time when the conditions set forth in Section
5.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter
of Credit Obligations owed to, all Non-Defaulting Lenders under the applicable Facility on a pro
rata basis (and ratably among all applicable Facilities computed in accordance with the Defaulting
Lenders’ respective funding deficiencies) prior to being applied to the payment of any Loans of, or
Letter of Credit Obligations owed to, such Defaulting Lender under the applicable Facility until such
time as all Loans and funded and unfunded participations in Letter of Credit Obligations, Swing
Line Loans and Protective Advances are held by the Lenders pro rata in accordance with the
Commitments hereunder without giving effect to Section 2.17(a)(iv). Any payments, prepayments
or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts
owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(a)(ii) shall be
deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents
hereto.
(iii) Certain Fees. No Defaulting Lender shall be entitled to receive any Revolving
Credit Facility Unused Fee or CapX Unused Fee payable pursuant to Section 2.09(a) or Section
2.09(b), respectively, for any period during which that Lender is a Defaulting Lender (and the
Borrowers shall not be required to pay any such fee that otherwise would have been required to have
been paid to that Defaulting Lender). Each Defaulting Lender which is a Revolving Credit Lender
shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a
Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of
Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.16. With respect
to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to this clause
(iii), the Borrowers shall (A) pay to each Non-Defaulting Lender which is a Revolving Credit Lender
that portion of any such fee otherwise payable to such Defaulting Lender with respect to such
Defaulting Lender’s participation in Letter of Credit Obligations that has been reallocated to such
Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Letter of Credit Issuer the
amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such
Letter of Credit Issuer’s Fronting Exposure to such Defaulting Lender, and (z) not be required to
pay the remaining amount of any such fee.
(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. All or any
part of such Defaulting Lender’s participation in Letter of Credit Obligations, Swing Line Loans
and Protective Advances shall be reallocated among the Non-Defaulting Lenders which are
Revolving Credit Lenders in accordance with their respective Applicable Percentages (calculated
without regard to such Defaulting Lender’s Revolving Credit Commitment) but only to the extent
that (x) the conditions set forth in Section 5.02 are satisfied at the time of such reallocation (and,
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unless the Borrower Agent shall have otherwise notified the Administrative Agent at such time, the
Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at
such time), and (y) such reallocation does not cause the aggregate Revolving Credit Exposure of any
Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Credit Commitment.
Subject to Section 11.20, no reallocation hereunder shall constitute a waiver or release of any claim
of any party hereunder against a Defaulting Lender arising from that Lender having become a
Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-
Defaulting Lender’s increased exposure following such reallocation.
(b) Defaulting Lender Cure. If the Borrower Agent, the Administrative Agent and, in the case
that a Defaulting Lender is a Revolving Credit Lender, the Swing Line Lender and the Letter of Credit
Issuer, agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so
notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that
Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Credit Loans of
the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to
cause the Revolving Credit Loans and funded and unfunded participations in Letters of Credit, Swing Line
Loans and Protective Advances to be held on a pro rata basis by the Lenders in accordance with their
Applicable Percentages (without giving effect to Section 2.17(a)(iv)), whereupon such Lender will cease to
be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and
provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change
hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender’s having been a Defaulting Lender.
2.18 Increase in Revolving Credit Commitments.
(a) Request for Increase. Provided no Default or Event of Default has occurred and is
continuing, upon notice to and with the written consent of the Administrative Agent (which shall promptly
notify the applicable Revolving Credit Lenders), the Borrower Agent may from time to time request an
increase in the Aggregate Revolving Credit Commitments by an amount (for all such requests) not
exceeding $100,000,000 (each such increase, a “Commitment Increase”); provided that (i) any such request
for an increase shall be in a minimum amount of $25,000,000 in the aggregate or, if less, the entire
unutilized amount of the maximum amount of all such requests set forth above and (ii) no more than three
(3) such requests shall be made during the term of this Agreement. At the time of sending such notice, the
Borrower Agent (in consultation with the Administrative Agent) shall specify the time period within which
each applicable Revolving Credit Lender is requested to respond (which shall in no event be less than ten
(10) Business Days from the date of delivery of such notice to the applicable Revolving Credit Lenders).
(b) Revolving Credit Lender Elections to Increase. Each Revolving Credit Lender shall notify
the Administrative Agent within such time period whether or not it agrees to commit to a portion of the
requested increase of the Revolving Credit Facility and, if so, whether by an amount equal to, greater than,
or less than its Applicable Percentage. Any Revolving Credit Lender not responding within such time
period shall be deemed to have declined to commit to any portion of the requested increase.
(c) Notification by Administrative Agent; Additional Revolving Credit Lenders. The
Administrative Agent shall notify the Borrower Agent of the Revolving Credit Lenders’ responses to each
request made hereunder. To achieve the full amount of a requested increase and subject to the approval of
the Administrative Agent (which approval shall not be unreasonably withheld), the Borrower Agent may
also invite additional Eligible Assignees to become Revolving Credit Lenders pursuant to a joinder
agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (each
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such Eligible Assignee issuing a commitment, executing and delivering such joinder agreement and
becoming a Revolving Credit Lender, an “Additional Commitment Lender”), provided, however, that
without the consent of the Administrative Agent, at no time shall the Commitment of any Additional
Commitment Lender be less than $5,000,000.
(d) Effective Date and Allocations. If the Aggregate Revolving Credit Commitments are
increased in accordance with this Section 2.18, the Administrative Agent and the Borrower Agent shall
determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The
Administrative Agent shall promptly notify the Borrower Agent and the Revolving Credit Lenders of the
final allocation of such increase and the Increase Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition precedent to such increase, (i) the
Borrower Agent shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the
Increase Effective Date signed by a Responsible Officer of such Loan Party (A) certifying and attaching
the resolutions adopted by such Loan Party approving or consenting to such increase, and (B) certifying
that, before and after giving effect to such increase, the representations and warranties contained in Article
VI and in the other Loan Documents, or which are contained in any document furnished at any time under
or in connection herewith or therewith, are true and correct in all material respects (or in all respects if
qualified by materiality) on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true and correct
in all material respects (or in all respects if qualified by materiality) as of such earlier date, and except that
for purposes of this Section 2.18, the representations and warranties contained in subsections (a) and (b) of
Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 7.01, (ii) the Borrowers, the Administrative Agent, and any Additional
Commitment Lender shall have executed and delivered a joinder agreement in form and substance
reasonably satisfactory to the Administrative Agent and its counsel; (iii) the Borrowers shall have paid such
fees and other compensation to the Revolving Credit Lenders increasing their Revolving Credit
Commitments and to the Additional Commitment Lenders as the Borrowers and such Lenders and
Additional Commitment Lenders shall agree; (iv) the Borrowers shall have paid such arrangement fees, if
any, to the Administrative Agent as the Borrowers and the Administrative Agent may agree; (v) other than
the fees and compensation referred to in clauses (iii) and (iv) above, the Commitment Increase shall be on
the same terms and pursuant to the same documentation applicable to the existing Revolving Credit
Commitments, (vi) the Borrowers shall deliver to the Administrative Agent (A) an opinion or opinions, in
form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Loan Parties
reasonably satisfactory to the Administrative Agent and dated such date and (B) a certification from the
Borrower Agent, or other evidence reasonably satisfactory to the Administrative Agent, that such increase
is permitted under the documents governing the Permitted Term Debt and any other material Indebtedness
of the Borrowers; (viii) the Borrowers, the Lenders increasing their Commitments and each Additional
Commitment Lender shall have delivered such other instruments, documents and agreements as the
Administrative Agent may reasonably have requested; and (ix) no Default or Event of Default exists or
shall result therefrom. The Revolving Credit Loans outstanding on the Increase Effective Date shall be
reallocated and adjusted between and among the applicable Lenders, and the Borrowers shall pay any
additional amounts required pursuant to Section 3.05 resulting therefrom, to the extent necessary to keep
the outstanding applicable Revolving Credit Loans ratable among the applicable Lenders with any revised
Applicable Percentages, as applicable, arising from any nonratable increase in the applicable Revolving
Credit Loans under this Section 2.18.
(f) Conflicting Provisions. This Section 2.18 shall supersede any provisions in Section 2.13
or 11.01 to the contrary.
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2.19 Designation of Subsidiaries as Unrestricted Subsidiaries. The Borrower Agent may, at
any time after the Effective Date upon written notice to the Administrative Agent, designate any Restricted
Subsidiary (other than a Borrower) as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a
Restricted Subsidiary; provided, that (i) immediately before and after such designation and on a Pro Forma
Basis as of the end of the most recent Measurement Period, no Default or Event of Default shall have
occurred and be continuing, (ii) each Subsidiary to be designated as an Unrestricted Subsidiary (and its
Subsidiaries) has not at the time of such designation, and does not thereafter, create, incur, issue, assume,
guarantee or otherwise become liable with respect to any Indebtedness pursuant to which the lender
thereunder or any other party thereto has recourse to any Loan Party or other Restricted Subsidiary or to
any assets of any Loan Party or other Restricted Subsidiary, (iii) no Loan Party shall have any liability for
any Indebtedness or other obligations of any Unrestricted Subsidiary except to the extent permitted as to
any unaffiliated Person under the Loan Documents, (iv) in the case of a designation of a Restricted
Subsidiary as an Unrestricted Subsidiary, (A) the Payment Conditions would be satisfied on a Pro Forma
Basis after giving effect to such designation, and (B) after giving thereto, Unrestricted Subsidiaries may
not, in the aggregate, represent more than ten percent 10% of the total assets or total revenue of the
Company and its Subsidiaries on a consolidated basis (after intercompany eliminations), (v) no Subsidiary
that owns Intellectual Property that is material to the business of the other Loan Parties, taken as a whole,
may be designated an Unrestricted Subsidiary, and no such Intellectual Property may be transferred to any
Unrestricted Subsidiary following its designation as such, and (vi) no Restricted Subsidiary may be
designated as an Unrestricted Subsidiary if it was previously designated an Unrestricted Subsidiary, or if it
is a Restricted Subsidiary for purposes of the Permitted Term Debt. The designation of any Subsidiary as
an Unrestricted Subsidiary after the date hereof shall constitute an Investment by the Company therein at
the date of designation in an amount equal to the Fair Market Value of the Company or its Subsidiaries’ (as
applicable) investment therein. Any notice delivered pursuant to this Section 2.19(a) shall include a
certificate of a Responsible Officer of the Borrower Agent certifying as to compliance with the preceding
clauses and demonstrating (in reasonable detail) the calculations required thereby.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any and all payments by or on account of any obligation of the Loan Parties
hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be
made free and clear of and without reduction or withholding for any Taxes. If, however, applicable
Laws require the Loan Parties or the Administrative Agent to withhold or deduct any Tax, such Tax
shall be withheld or deducted in accordance with such Laws as determined by the Borrower Agent
or the Administrative Agent, as the case may be, upon the basis of the information and
documentation to be delivered pursuant to subsection (e) below.
(ii) If any Loan Party or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make
such deductions as are determined by the Administrative Agent to be required based upon the
information and documentation it has received pursuant to subsection (e) below, (B) the
Administrative Agent shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or
deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by the Loan
Parties shall be increased as necessary so that after any required withholding or the making of all
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required deductions (including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Letter of Credit Issuer, as the case may be, receives an amount
equal to the sum it would have received had no such withholding or deduction been made.
(b) Payment of Other Taxes by the Borrowers. Without limiting the provisions of subsection
(a) above, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable Law.
(c) Tax Indemnification by the Borrowers.
(i) Without limiting the provisions of subsection (a) or (b) above, each Loan Party
shall, and does hereby, indemnify the Administrative Agent, each Lender and the Letter of Credit
Issuer, and shall make payment in respect thereof within ten (10) days after demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section) withheld or
deducted by the Loan Parties or the Administrative Agent or paid by the Administrative Agent, such
Lender or the Letter of Credit Issuer, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. Each
Loan Party shall also, and does hereby, indemnify the Administrative Agent, and shall make
payment in respect thereof within 10 days after demand therefor, for any amount which a Lender or
the Letter of Credit Issuer for any reason fails to pay indefeasibly to the Administrative Agent as
required by clause (ii) of this subsection. A certificate as to the amount of any such payment or
liability delivered to the Borrower Agent by a Lender or the Letter of Credit Issuer (with a copy to
the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender
or the Letter of Credit Issuer, shall be conclusive absent manifest error.
(ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and the
Letter of Credit Issuer shall, and does hereby, indemnify the Loan Parties and the Administrative
Agent, and shall make payment in respect thereof within 10 days after demand therefor, against any
and all Taxes and any and all related losses, claims, liabilities, penalties, interest and expenses
(including the fees, charges and disbursements of any counsel for the Borrowers or the
Administrative Agent) incurred by or asserted against the Loan Parties or the Administrative Agent
by any Governmental Authority as a result of the failure by such Lender or the Letter of Credit
Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency of,
any documentation required to be delivered by such Lender or the Letter of Credit Issuer, as the case
may be, to the Borrower Agent or the Administrative Agent pursuant to subsection (e). Each Lender
and the Letter of Credit Issuer hereby authorizes the Administrative Agent to set off and apply any
and all amounts at any time owing to such Lender or the Letter of Credit Issuer, as the case may be,
under this Agreement or any other Loan Document against any amount due to the Administrative
Agent under this clause (ii). The agreements in this clause (ii) shall survive the resignation and/or
replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a
Lender or the Letter of Credit Issuer and the occurrence of the Facility Termination Date.
(d) Evidence of Payments. Upon request by the Borrower Agent or the Administrative Agent,
as the case may be, after any payment of Taxes by the Loan Parties or by the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, the Borrower Agent shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to the Borrower Agent, as the case may be,
the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Laws to report such payment or other evidence of such payment
reasonably satisfactory to the Borrower Agent or the Administrative Agent, as the case may be.
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(e) Status of Lenders; Tax Documentation.
(i) Each Lender shall deliver to the Borrower Agent and to the Administrative Agent,
at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower
Agent or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other
reasonably requested information as will permit the Borrower Agent or the Administrative Agent,
as the case may be, to determine (A) whether or not payments made hereunder or under any other
Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or
deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of,
applicable Taxes in respect of all payments to be made to such Lender by the Loan Parties pursuant
to this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in
the applicable jurisdiction. Notwithstanding anything to the contrary in the preceding sentence, the
completion, execution and submission of such documentation (other than such documentation set
forth in paragraphs (e)(ii)(A), (ii)(B)(I) to (IV) and (ii)(C) of this Section) shall not be required if
in the Lender’s reasonable judgment such completion, execution or submission would subject such
Lender to any material unreimbursed cost or expense or would materially prejudice the legal or
commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, if a Borrower is resident for tax
purposes in the United States,
(A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to the Borrower Agent and the Administrative Agent
executed copies of Internal Revenue Service Form W-9 or such other documentation or
information prescribed by applicable Laws or reasonably requested by the Borrower Agent
or the Administrative Agent as will enable the Borrower Agent or the Administrative
Agent, as the case may be, to determine whether or not such Lender is subject to backup
withholding or information reporting requirements; and
(B) each Foreign Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of withholding tax with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower Agent and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on
or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the request of the Borrower Agent or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do so),
whichever of the following is applicable:
(I) executed copies of Internal Revenue Service Form W-8BEN-E
(or, if applicable W-8BEN) claiming eligibility for benefits of an income tax treaty
to which the United States is a party,
(II) executed copies of Internal Revenue Service Form W-8ECI,
(III) executed copies of Internal Revenue Service Form W-8IMY and
all required supporting documentation,
(IV) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate
to the effect that such Foreign Lender is not (A) a “bank” within the meaning of
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Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of any Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled
foreign corporation” described in Section 881(c)(3)(C) of the Code and (y)
executed copies of Internal Revenue Service Form W-BEN-E (or, if applicable W-
8BEN), or
(V) executed copies of any other form prescribed by applicable Laws
as a basis for claiming exemption from or a reduction in United States federal
withholding tax together with such supplementary documentation as may be
prescribed by applicable Laws to permit the Borrower Agent or the Administrative
Agent to determine the withholding or deduction required to be made; and
(C) if a payment made to a Lender under any Loan Document would be subject
to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply
with the applicable reporting requirements of FATCA (including those contained in
Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the
Borrower Agent and the Administrative Agent at the time or times prescribed by law and
at such time or times reasonably requested by any Borrower or the Administrative Agent
such documentation prescribed by applicable law (including as prescribed by Section
1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by
any Borrower or the Administrative Agent as may be necessary for the Borrowers and the
Administrative Agent to comply with their obligations under FATCA or to determine the
amount to deduct and withhold from such payment. Solely for purposes of this clause (C),
“FATCA” shall include any amendments made to FATCA after the date of this Agreement.
For purposes of this Section 3.01, “Laws” shall include FATCA
(iii) Each Lender shall promptly (A) notify the Borrower Agent and the Administrative
Agent of any change in circumstances which would modify or render invalid any claimed exemption
or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary (including the re-
designation of its Lending Office) to avoid any requirement of applicable Laws of any jurisdiction
that the Loan Parties or the Administrative Agent make any withholding or deduction for taxes from
amounts payable to such Lender.
(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the
Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or the Letter
of Credit Issuer, or have any obligation to pay to any Lender or the Letter of Credit Issuer, any refund of
Taxes withheld or deducted from funds paid for the account of such Lender or the Letter of Credit Issuer,
as the case may be. If the Administrative Agent, any Lender or the Letter of Credit Issuer determines, in
its sole discretion exercised in good faith, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid
additional amounts pursuant to this Section, it shall pay to such Loan Party an amount equal to such refund
(but only to the extent of indemnity payments made, or additional amounts paid, by any Loan Party under
this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses incurred by the Administrative Agent, such Lender or the Letter of Credit Issuer, as the case may
be, and without interest (other than any interest paid by the relevant Governmental Authority with respect
to such refund), provided that each Loan Party, upon the request of the Administrative Agent, such Lender
or the Letter of Credit Issuer, agrees to repay the amount paid over to any Loan Party (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent,
such Lender or the Letter of Credit Issuer in the event the Administrative Agent, such Lender or the Letter
of Credit Issuer is required to repay such refund to such Governmental Authority. This subsection shall not
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be construed to require the Administrative Agent, any Lender or the Letter of Credit Issuer to make available
its tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party or
any other Person.
3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to
make, maintain or fund Loans whose interest is determined by reference to the LIBOR Rate, or to determine
or charge interest rates based upon the LIBOR Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower Agent through the Administrative
Agent, (i) any obligation of such Lender to make or continue LIBOR Loans or to convert Base Rate Loans
to LIBOR Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or
maintaining Base Rate Loans the interest rate on which is determined by reference to the LIBOR Rate
component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary
to avoid such illegality, be determined by the Administrative Agent without reference to the LIBOR Rate
component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the
Borrower Agent that the circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, (x) the Loan Parties shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay or, if applicable, convert all LIBOR Loans of such Lender to Base Rate Loans (the interest
rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by
the Administrative Agent without reference to the LIBOR Rate component of the Base Rate), either on the
last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBOR
Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBOR
Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based
upon the LIBOR Rate, the Administrative Agent shall during the period of such suspension compute the
Base Rate applicable to such Lender without reference to the LIBOR component thereof until the
Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to
determine or charge interest rates based upon the LIBOR Rate. Upon any such prepayment or conversion,
the Loan Parties shall also pay accrued interest on the amount so prepaid or converted.
3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a LIBOR Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount
and Interest Period of such LIBOR Loan, (b) adequate and reasonable means do not exist for determining
the LIBOR Rate for any requested Interest Period with respect to a proposed LIBOR Loan or in connection
with an existing or proposed Base Rate Loan, or (c) the LIBOR Rate for any requested Interest Period with
respect to a proposed LIBOR Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Loan, the Administrative Agent will promptly so notify the Borrower Agent and each Lender.
Thereafter, (x) the obligation of the Lenders to make or maintain LIBOR Loans shall be suspended, and (y)
in the event of a determination described in the preceding sentence with respect to the LIBOR Rate
component of the Base Rate, the utilization of LIBOR component in determining the Base Rate shall be
suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders)
revokes such notice. Upon receipt of such notice, the Borrower Agent may revoke any pending request for
a Borrowing of, conversion to or continuation of LIBOR Loans or, failing that, will be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Costs; Reserves on LIBOR Loans.
(a) Increased Costs Generally. If any Change in Law shall:
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(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account of, or
credit extended or participated in by, any Lender (except any reserve requirement contemplated by
Section 3.04(e)) or the Letter of Credit Issuer;
(ii) subject any Lender or the Letter of Credit Issuer to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit, or any
LIBOR Loan made by it, or change the basis of taxation of payments to such Lender or the Letter
of Credit Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section
3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender
or the Letter of Credit Issuer); or
(iii) impose on any Lender or the Letter of Credit Issuer or the London interbank market
any other condition, cost or expense (except for Indemnified Taxes or Other Taxes covered by
Section 3.01) affecting this Agreement or LIBOR Loans made by such Lender or any Letter of Credit
or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining
any Loan the interest on which is determined by reference to the LIBOR Rate (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the Letter of Credit Issuer
issuing or maintaining any Letter of Credit (or of maintaining its obligation to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the Letter of Credit Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the
Letter of Credit Issuer, the Loan Parties will pay to such Lender or the Letter of Credit Issuer, as the case
may be, such additional amount or amounts as will compensate such Lender or the Letter of Credit Issuer,
as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the Letter of Credit Issuer determines that any
Change in Law affecting such Lender or the Letter of Credit Issuer or any Lending Office of such Lender
or such Lender’s or the Letter of Credit Issuer’s holding company, if any, regarding capital or liquidity
requirements has or would have the effect of reducing the rate of return on such Lender’s or the Letter of
Credit Issuer’s capital or on the capital of such Lender’s or the Letter of Credit Issuer’s holding company,
if any, as a consequence of this Agreement, the Revolving Credit Commitments of such Lender or the Loans
made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the
Letter of Credit Issuer, to a level below that which such Lender or the Letter of Credit Issuer or such
Lender’s or the Letter of Credit Issuer’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s or the Letter of Credit Issuer’s policies and the policies of such
Lender’s or the Letter of Credit Issuer’s holding company with respect to capital adequacy), then from time
to time pursuant to subsection (c) below the Loan Parties will pay to such Lender or the Letter of Credit
Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the Letter
of Credit Issuer or such Lender’s or the Letter of Credit Issuer’s holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the Letter of Credit Issuer
setting forth the amount or amounts necessary to compensate such Lender or the Letter of Credit Issuer or
its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered
to the Borrower Agent shall be conclusive absent manifest error. The Loan Parties shall pay such Lender
or the Letter of Credit Issuer, as the case may be, the amount shown as due on any such certificate within
10 Business Days after receipt thereof.
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(d) Delay in Requests. Failure or delay on the part of any Lender or the Letter of Credit Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver
of such Lender’s or the Letter of Credit Issuer’s right to demand such compensation, provided that the Loan
Parties shall not be required to compensate a Lender or the Letter of Credit Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions suffered more than nine months
prior to the date that such Lender or the Letter of Credit Issuer, as the case may be, notifies the Loan Parties
of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the Letter
of Credit Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the nine-month period referred to above shall be
extended to include the period of retroactive effect thereof).
(e) Reserves on LIBOR Loans. The Borrowers shall pay to each Lender, as long as such
Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the
unpaid principal amount of each LIBOR Loan equal to the actual costs of such reserves allocated to such
Loan by such Lender (as determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is payable on such Loan,
provided the Borrower Agent shall have received at least 10 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice 10 days
prior to the relevant Interest Payment Date, such additional interest shall be due and payable 10 days from
receipt of such notice.
(f) Uniform Policy. Notwithstanding any other provision of this Section 3.04 to the contrary,
no Lender shall be entitled to receive compensation pursuant to this Section 3.04 unless it shall be the
general policy or practice of such Lender to seek compensation from other similarly situated borrowers
with respect to its similarly affected loans under agreements with such borrowers having provisions similar
to this Section 3.04.
3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrowers shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);
(b) any failure by Borrowers (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the
amount notified by the Borrower Agent; or
(c) any assignment of a LIBOR Loan on a day other than the last day of the Interest Period
therefor as a result of a request by the Borrower Agent pursuant to Section 11.13;
including any loss or expense arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.
The Borrowers shall also pay any customary administrative fees charged by such Lender in connection with
the foregoing.
For purposes of calculating amounts payable by the Borrowers to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each LIBOR Loan made by it at the LIBOR Rate
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for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a
comparable amount and for a comparable period, whether or not such LIBOR Loan was in fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation under
Section 3.04, or the Borrowers are required to pay any additional amount to any Lender, the Letter of Credit
Issuer or any Governmental Authority for the account of any Lender or the Letter of Credit Issuer pursuant
to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender or the Letter of
Credit Issuer, as applicable, shall use reasonable efforts to designate a different Lending Office for funding
or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender or the Letter of Credit Issuer, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may
be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each
case, would not subject such Lender or the Letter of Credit Issuer, as the case may be, to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender or the Letter of Credit Issuer,
as the case may be. The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any
Lender or the Letter of Credit Issuer in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if
the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 3.01, the Borrowers may replace such Lender in accordance
with Section 11.13.
3.07 Survival. All of the Borrowers’ obligations under this Article III shall survive the
resignation of the Administrative Agent, the Letter of Credit Issuer and the Swing Line Lender, the
replacement of any Lender and the occurrence of the Facility Termination Date.
ARTICLE IV
SECURITY AND ADMINISTRATION OF COLLATERAL
4.01 Security.
(a) Generally. As security for the full and timely payment and performance of all Obligations,
Borrower Agent shall, and shall cause each other Borrower to, on or before the Closing Date, to the extent
required by the Security Agreement, do or cause to be done all things as reasonably determined by the
Administrative Agent and its counsel to grant to the Administrative Agent for the benefit of the Secured
Parties a duly perfected first priority security interest in all Collateral subject to no prior Lien or other
encumbrance or restriction on transfer, except as expressly permitted hereunder. Without limiting the
foregoing, on the Closing Date Borrower Agent shall deliver, and shall cause each other Borrower to
deliver, to the Administrative Agent, in form and substance reasonably acceptable to the Administrative
Agent, (a) the Security Agreement, which shall pledge to the Administrative Agent for the benefit of the
Secured Parties certain personal property of the Borrowers and the other Loan Parties more particularly
described therein, and (b) Uniform Commercial Code financing statements in form, substance and number
as requested by the Administrative Agent, reflecting the Lien in favor of the Secured Parties on the
Collateral, and shall take such further action and deliver or cause to be delivered such further documents as
required by the Security Instruments or otherwise as the Administrative Agent may reasonably request,
consistent with the requirements of the Security Agreement and this Agreement, to effect the transactions
contemplated by this Article IV.
4.02 Collateral Administration.
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(a) Administration of Accounts.
(i) Records and Schedules of Accounts. Each Borrower shall keep accurate and
complete records of its Accounts, including all payments and collections thereon, and shall submit
to the Administrative Agent sales, collection, reconciliation and other reports in form satisfactory to
the Administrative Agent, on such periodic basis as the Administrative Agent may request.
(ii) Taxes. If an Account of any Borrower includes a charge for any Taxes,
Administrative Agent is authorized, in its discretion, to pay the amount thereof to the proper taxing
authority for the account of such Borrower and to charge Borrowers therefor; provided, however,
that neither the Administrative Agent nor Lenders shall be liable for any Taxes that may be due from
Borrowers or with respect to any Collateral.
(iii) Account Verification. (A) Upon the occurrence and during the continuance of an
Event of Default or (B) in connection with any Field Exam and in cooperation and following
consultation with the Borrower Agent, the Administrative Agent shall have the right, in the name of
the Administrative Agent, any designee of the Administrative Agent or any Borrower, to verify the
validity, amount or any other matter relating to any Accounts of Borrowers by mail, telephone or
otherwise. Borrowers shall cooperate fully with the Administrative Agent in an effort to facilitate
and promptly conclude any such verification process.
(iv) Proceeds of Collateral. Borrowers shall request in writing and otherwise take all
necessary steps to ensure that all payments on Accounts or otherwise relating to Collateral are made
directly to a Controlled Deposit Account or the Concentration Account (or a lockbox relating to a
Controlled Deposit Account or the Concentration Account). If any Borrower or Subsidiary receives
cash or Payment Items with respect to any Collateral, it shall hold same in trust for the
Administrative Agent and promptly (not later than the next Business Day) deposit same into a
Controlled Deposit Account or the Concentration Account. The Administrative Agent retains the
right at all times after the occurrence and during the continuance of an Event of Default to notify
Account Debtors that a Borrower’s Accounts have been assigned to the Administrative Agent and
to collect such Borrower’s Accounts directly in its own name, or in the name of the Administrative
Agent’s agent, and to charge the collection costs and expenses, including reasonable attorneys’ fees,
to the Borrowers’ Loan Account.
(v) Extensions of Time for Payment. In addition, upon the occurrence and during the
continuance of an Event of Default, other than in the Ordinary Course of Business and in amounts
which are not material to such Borrower, each Borrower will not (i) grant any extension of the time
for payment of any Account, (ii) compromise or settle any Account for less than the full amount
thereof, (iii) release, wholly or partially, any Person liable for the payment of any Account, (iv)
allow any credit or discount whatsoever on any Account or (v) amend, supplement or modify any
Account in any manner that could adversely affect the value thereof.
(b) Administration of Aircraft Parts.
(i) Records and Reports of Aircraft Parts. Each Borrower shall keep accurate and
complete records of its Aircraft Parts, including costs and daily withdrawals and additions, and shall
submit to Agent inventory and reconciliation reports in form reasonably satisfactory to the
Administrative Agent, on such periodic basis as the Administrative Agent may reasonably request.
Each Borrower shall conduct a physical inventory at least once per calendar year (and on a more
frequent basis if requested by the Administrative Agent when an Event of Default exists) and
periodic cycle counts consistent with historical practices, and shall provide to the Administrative
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Agent a report based on each such inventory and count promptly upon completion thereof, together
with such supporting information as the Administrative Agent may reasonably request. The
Administrative Agent may participate in and observe each physical count.
The Administrative Agent, in its reasonable discretion, if any Event of Default is continuing, may cause
additional such inventories to be taken as the Administrative Agent determines (each, at the expense of the
Loan Parties).
(ii) Returns of Aircraft Parts. No Borrower shall return any Aircraft Parts to a supplier,
vendor or other Person, whether for cash, credit or otherwise, unless (a) such return is in the Ordinary
Course of Business; (b) no Default, Event of Default or Overadvance exists or would result
therefrom; (c) the Administrative Agent is promptly notified if the aggregate value of all Aircraft
Parts returned in any month exceeds $1,000,000; and (d) any payment received by a Borrower for a
return is promptly remitted to the Administrative Agent for application to the Obligations in
accordance with Section 2.06(c).
(iii) Acquisition, Sale and Maintenance. No Borrower shall acquire or accept any
Aircraft Parts on consignment or approval, and shall assure that all Aircraft Parts are acquired in
accordance with applicable Law. No Borrower shall sell any Aircraft Parts on consignment or
approval or any other basis under which the customer may return or require a Borrower to repurchase
such Aircraft Parts. The Borrowers shall use, store and maintain all Aircraft Parts with reasonable
care and caution, in accordance with applicable standards of any insurance and in conformity with
all applicable Laws, and shall make current rent payments (within applicable grace periods provided
for in leases) at all locations where any Collateral is located.
(c) Collateral at Locations Subject to a Material Third-Party Agreement. With respect to any
location of Collateral subject to a Material Third-Party Agreement entered into after the Closing Date, each
Loan Party shall use commercially reasonable efforts to provide the Administrative Agent with Lien
Waivers with respect to the premises subject to such Material Third-Party Agreements. Loan Parties
acknowledge that if such Lien Waivers are not delivered, then, except as otherwise expressly set forth
herein, at the election of the Administrative Agent, all or a portion of the Collateral at such locations may
be deemed ineligible for inclusion in the Borrowing Base and/or (without duplication) the Administrative
Agent may establish a Rent and Charges Reserve for such location.
4.03 After Acquired Property; Further Assurances.
(a) New Deposit Accounts and Securities Accounts. Concurrently with or prior to the opening
of any Deposit Account, Securities Account or Commodity Account by any Loan Party, other than any
Excluded Deposit Account, such Loan Party shall deliver to the Administrative Agent a Control Agreement
covering such Deposit Account, Securities Account or Commodity Account, duly executed by such Loan
Party, the Administrative Agent and the applicable Controlled Account Bank, securities intermediary or
financial institution at which such account is maintained.
(b) Future Leases. Without limiting the generality of the foregoing subsection (a), prior to
entering into any new lease of Real Property or renewing any existing lease of Real Property following the
Closing Date, each Borrower shall, and shall cause each Loan Party to, use its (and their) commercially
reasonable efforts to deliver to the Administrative Agent a Lien Waiver, in form and substance reasonably
satisfactory to the Administrative Agent, executed by the lessor of any Real Property, to the extent the value
of any Collateral (other than Rolling Stock or Aircraft) of the Borrowers held or to be held at such leased
property exceeds (or it is anticipated that the value of such Collateral will exceed at any point in time during
the term of such leasehold term) $100,000.
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(c) Acquired Real Property. If, after the Closing Date, any Loan Party acquires, owns or
holds an interest in any fee-owned Real Property not constituting Excluded Real Property, the Company
will promptly (and in any event within ten (10) days of the acquisition thereof (or such longer period as
the Administrative Agent may agree)) notify the Administrative Agent in writing of such event, identifying
the property or interests in question. Promptly upon the Administrative Agent’s request (but not in
contravention of any Intercreditor Agreement with any holders of Permitted Term Debt, unless otherwise
agreed to by such holders of Permitted Term Debt), each Loan Party with an interest in such fee-owned
Real Property shall deliver applicable Mortgages and Mortgage Related Documents for such fee owned
Real Property in favor of the Administrative Agent, which shall be in form and substance reasonably
acceptable to Administrative Agent.
(d) UCC Authorization. The Administrative Agent is hereby irrevocably authorized to execute
(if necessary) and file or cause to be filed, with or if permitted by applicable Law without the signature of
any Borrower appearing thereon, all UCC or PPSA financing statements reflecting any Borrower as
“debtor” and the Administrative Agent as “secured party”, and continuations thereof and amendments
thereto, as the Administrative Agent reasonably deems necessary or advisable to give effect to the
transactions contemplated hereby and by the other Loan Documents.
4.04 Cash Management.
(a) Controlled Deposit Accounts. Subject to the provisions of Section 7.21(a), the applicable
Loan Party shall enter into a Control Agreement with respect to each Deposit Account listed on part (a) of
Schedule 6.19, other than Excluded Deposit Accounts, which shall include all lockboxes and related
lockbox accounts used for the collection of Accounts. Each Loan Party agrees that all invoices rendered
and other requests made by any Loan Party for payment in respect of Accounts shall contain a written
statement directing payment in respect of such Accounts to be paid to a Controlled Deposit Account in its
name. The Borrower Agent shall cause bank statements and/or other reports from the Controlled Account
Banks to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all
amounts deposited in each Controlled Deposit Account to ensure the proper transfer of funds as set forth
above. All remittances received by any Loan Party on account of Accounts, together with the proceeds of
any other Collateral, shall be held as the Administrative Agent’s property, for its benefit and the benefit of
Lenders, by such Loan Party as trustee of an express trust for Administrative Agent’s benefit and such Loan
Party shall immediately deposit same in kind in a Controlled Deposit Account. The Administrative Agent
retains the right at all times after the occurrence and during the continuance of a Default or an Event of
Default to notify Account Debtors that a Loan Party’s Accounts have been assigned to the Administrative
Agent and to collect such Loan Party’s Accounts directly in its own name, or in the name of the
Administrative Agent’s agent, and to charge the collection costs and expenses, including reasonable
attorneys’ fees, to the Loan Account.
(b) Concentration Account. Each Control Agreement with respect to a Controlled Deposit
Account shall require that, during a Dominion Trigger Period and upon instruction of the Administrative
Agent (which Administrative Agent agrees not to issue such instruction except during a Dominion Trigger
Period), the Controlled Account Bank transfer all cash receipts and other collections by ACH or wire
transfer no less frequently than daily (and whether or not there are then any outstanding Obligations, and
for purposes of calculating interest, one Business Day will be added) to the concentration account
maintained by the Administrative Agent at BMO (the “Concentration Account”). The Concentration
Account shall at all times be under the sole dominion and control of the Administrative Agent. The Loan
Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the
Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times be collateral
security for all of the Obligations and (iii) the funds on deposit in the Concentration Account shall be
applied as provided in Section 4.04(c) below. In the event that, notwithstanding the provisions of this
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Section 4.04, any Loan Party receives or otherwise has dominion and control of any such proceeds or
collections described above, such proceeds and collections shall be held in trust by such Loan Party for the
Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in
any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited
into a Controlled Deposit Account, or during a Dominion Trigger Period, the Concentration Account, or
dealt with in such other fashion as such Loan Party may be reasonably instructed by the Administrative
Agent.
(c) Application of Funds in the Concentration Account. All funds received in the
Concentration Account in immediately available funds shall, subject to Section 9.03, be applied on a daily
basis first, to the Letter of Credit Borrowings and the Swing Line Loans, second, to the outstanding
Revolving Credit Loans and third, to any fees, expenses, costs or reimbursement obligations due and owing
to the Administrative Agent or the Lenders. All funds received in the Concentration Account that are not
immediately available funds (checks, drafts and similar forms of payment) shall be deemed applied by
Administrative Agent on account of the Obligations (subject to final payment of such items) in accordance
with the foregoing sentence on the first Business Day after receipt by Administrative Agent of such items
in Administrative Agent’s account located in Chicago, Illinois. If as the result of such application of funds
a credit balance exists in the Loan Account, such credit balance shall not accrue interest in favor of
Borrowers but shall, so long as no Default or Event of Default then exists, be disbursed to Borrowers or
otherwise at Borrower Agent’s direction, upon Borrower Agent’s request. Upon and during the continuance
of any Event of Default, the Administrative Agent may, at its option, offset such credit balance against any
of the Obligations or hold such credit balance as Collateral for the Obligations.
(d) Controlled Securities Accounts and Commodity Accounts. Subject to the provisions of
Section 7.21(b), the applicable Loan Party shall enter into a Control Agreement with respect to each
Securities Account and Commodity Account listed on part (b) of Schedule 6.19. At the request of the
Administrative Agent, the Borrower Agent shall cause account statements and/or other reports from the
applicable broker, financial institution or other financial intermediary to be delivered to the Administrative
Agent not less often than monthly, accurately setting forth all assets, including securities entitlements,
financial assets or other amounts, held in each Securities Account or Commodity Account.
4.05 Information Regarding Certain Collateral. Each Borrower represents, warrants and
covenants that Schedule 4.05 sets forth as of the Closing Date, (a) the exact legal name, jurisdiction of
formation, organizational identification number (if any), chief executive office and any trade name or other
trade style of each Loan Party and each of its Subsidiaries, (b) each Person that has effected any merger or
consolidation with a Loan Party or sold, contributed or transferred to a Loan Party any material property
constituting Collateral at any time since, in each case, during the five (5) year period immediately prior to
the Closing Date (excluding Persons making sales in the ordinary course of their businesses to a Loan Party
of property constituting Aircraft Parts in the hands of such seller), and (c) any prior legal name, jurisdiction
of formation, organizational identification number, trade name or other trade style or location of the chief
executive office of each Loan Party at any time during the five (5) year period immediately prior to the
Closing Date. The Company shall not change, and shall not permit any other Loan Party to change, its
name, jurisdiction of formation (whether by reincorporation, merger or otherwise), or the location of its
chief executive office, or use or permit any other Loan Party to use, any additional trade name or other trade
style, except upon giving not less than thirty (30) days’ prior written notice to the Administrative Agent
and taking or causing to be taken all such action at Borrowers’ or such other Loan Parties’ expense as may
be reasonably requested by the Administrative Agent, consistent with the terms of the Security Agreement
and this Agreement, to perfect or maintain the perfection and priority of the Lien of the Administrative
Agent in the Collateral.
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ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions of Initial Credit Extension. The obligation of each Lender and the Letter of
Credit Issuer to make any initial Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:
(a) The Administrative Agent’s receipt of the following items (except those items that are
expressly permitted to be delivered after the Closing Date pursuant to Section 7.21), each properly executed
by a Responsible Officer of the applicable Loan Party (as applicable), each dated as of the Closing Date
(or, in the case of certificates of Governmental Officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and each of the Security Instruments;
(ii) Notes executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates (including
specimen signatures), and/or other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may require evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is
validly existing, in good standing and qualified to engage in business in its jurisdiction of
organization and in any other jurisdiction in which the failure to be so qualified could reasonably be
expected to have a Material Adverse Effect, including certified copies of such Loan Party’s
Organization Documents, agreements among holders of Equity Interests, certificates of good
standing and qualification to engage in business in each applicable jurisdiction;
(v) a favorable opinion of Xxxxxxxxx Xxxxxxx, counsel to the Loan Parties, and
acceptable local counsel to the Loan Parties, each addressed to the Administrative Agent and each
Lender and their successors and assigns, as to the matters concerning the Loan Parties and the Loan
Documents as the Administrative Agent may reasonably request;
(vi) certificates of Responsible Officers of the Borrower Agent or the applicable Loan
Parties either (A) identifying all consents, licenses and approvals required in connection with the
execution, delivery and performance by each Borrower and the validity against each such Loan Party
of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals
shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no
such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower Agent certifying (A)
that the conditions specified in Sections 5.02(a) and 5.02(b) have been satisfied and (B) as to the
matters described in Section 5.01(d);
(viii) [reserved];
(ix) a certificate signed by the chief financial officer or the chief executive officer of
the Borrower Agent certifying that, after giving effect to the entering into of the Loan Documents
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and the consummation of all of the Transactions, (A) each Borrower is Solvent and (B) the Loan
Parties, taken as a whole, are Solvent;
(x) evidence that all insurance required to be maintained pursuant to the Loan
Documents has been obtained and is in effect;
(xi) an initial Borrowing Base Certificate;
(xii) initial notice of Borrowing in form and substance satisfactory to the Administrative
Agent;
(xiii) receipt and satisfactory review by Administrative Agent of Field Exam, appraisals
of Rolling Stock and Aircraft, and management background checks;
(xiv) satisfactory review by the Administrative Agent of draft SEC filings relating to
accounting restatements, including discussions with Xxxxx Xxxxxxxx regarding the same;
(xv) delivery of Uniform Commercial Code financing statements, suitable in form and
substance for filing in all places required by applicable law to perfect the Liens of the Administrative
Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a
security interest may be perfected by the filing of financing statements, and such other documents
and/or evidence of other actions as may be reasonably necessary under applicable law to perfect the
Liens of the Administrative Agent under such Security Instruments as a first priority Lien in and to
such other Collateral as the Administrative Agent may require;
(xvi) Uniform Commercial Code search results showing only those Liens as are
acceptable to the Administrative Agent and Lenders;
(xvii) evidence satisfactory to the Administrative Agent of (A) (i) the redemption and
cancellation of all shares of the Existing Series F Preferred Stock and (ii) confirmation that the
holders of the “Preferred Stock” under the Investment Agreement have consented to the
Transactions and have agreed that this Agreement constitutes the “New ABL Facility” under the
Investment Agreement, (B) the payment in full and cancellation of Indebtedness not permitted under
the Loan Documents and (C) release of any liens (other than Permitted Liens) on the assets of the
Company and its Subsidiaries;
(xviii) receipt of (i) draft audited financial statements for fiscal years 2013 through 2016,
draft unaudited quarterly financial statements (the first three quarters of each of fiscal years 2015
and 2016), in each case including an income statement, a balance sheet, and a cash flow statement,
and draft summary condensed unaudited quarterly financial statements for fiscal year 2014; (ii)
unaudited monthly financial statements (including an income statement and a balance sheet) for
fiscal years 2015, 2016 and the first five months of fiscal year 2017; (iii) projected financial
statements for the combined entity through fiscal year 2020; and (iv) a closing balance sheet adjusted
to give effect to the transactions contemplated hereby; all of the foregoing in form and substance
acceptable to the Lead Arranger;
(xix) Lead Arranger shall have received at least two (2) Business Days in advance of the
Closing Date, to the extent requested not less than ten (10) Business Days prior thereto, all
documentation and other information required by bank regulatory authorities under applicable
"know your customer" and Anti-Money Laundering rules and regulations, including without
limitation the USA PATRIOT Act;
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(xx) Except as disclosed in writing to the Administrative Agent prior to the Closing
Date, since December 31, 2016 with respect to the Company and its Subsidiaries, the business of
the Loan Parties has in all material respects been conducted in the Ordinary Course of Business
consistent with past practices, and there has not been any event, occurrence, condition, development
or state of circumstances or fact that, individually or in the aggregate with any other event(s),
occurrence(s), condition(s), development(s) or state(s) of circumstances or fact(s), has had or would
reasonably be expected to have a Material Adverse Effect;
(xxi) evidence satisfactory to the Administrative Agent of the consummation (in
compliance with all applicable laws and regulations, and with the receipt of all material shareholder
and third party consents and approvals relating thereto) of the Transactions;
(xxii) [Reserved];
(xxiii) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the Letter of Credit Issuer, the Swing Line Lender or the Required Lenders
may reasonably require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable
fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or
on the Closing Date, plus such additional amounts of such reasonable fees, charges and disbursements as
shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to
be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude
a final settling of accounts between the Borrowers and the Administrative Agent).
(d) The Administrative Agent shall be satisfied that after giving effect to (i) the initial Credit
Extension hereunder, (ii) consummation of the Transactions and payment of all fees and expenses in
connection therewith and (iii) any payables stretched beyond their customary payment practices, Adjusted
Excess Availability shall be at least $30,000,000.
Without limiting the generality of the provisions of Section 10.04, for purposes of determining
compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement
shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other
matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender
unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing
Date specifying its objection thereto.
5.02 Conditions to all Credit Extensions. The obligation of each Lender or Letter of Credit
Issuer to honor any Request for Credit Extension (other than one requesting only a conversion of Loans to
the other Type or a continuation of LIBOR Loans) or make the initial Credit Extension hereunder is subject
to the following conditions precedent:
(a) The representations and warranties of the Loan Parties contained in Article VI or any other
Loan Document, or which are contained in any document furnished at any time under or in connection
herewith or therewith, shall be true and correct in all material respects (or in all respects if qualified by
materiality) on and as of the date of such Credit Extension, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they shall be true and correct (or in all
respects if qualified by materiality) as of such earlier date, and except that for purposes of this Section
5.02(a), the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be
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deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 7.01.
(b) No Default shall have occurred and be continuing, or would result from such proposed
Credit Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the Letter of Credit Issuer or the Swing Line
Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d) After giving effect to each Credit Extension, Total Revolving Credit Outstandings do not
exceed the lesser of (i) the Total Revolving Credit Commitments and (ii) the Borrowing Base.
(e) With respect to an advance of CapX Loans, all conditions set forth in Section 2.01(c) are
satisfied.
Each Request for Credit Extension (other than one requesting only a conversion of Loans to the
other Type or a continuation of LIBOR Loans) submitted by the Borrower Agent shall be deemed to be a
representation and warranty that the conditions specified in Sections 5.02(a), 5.02(b), 5.02(d), and 5.02(e)
(in the case of a CapX Loan) have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Secured Parties to enter into this Agreement and to make Loans and to issue Letters
of Credit hereunder, each Loan Party represents and warrants to the Administrative Agent and the Lenders,
subject to the limitation set forth in Section 5.02(a), that:
6.01 Existence, Qualification and Power. Each Loan Party and each Restricted Subsidiary (a)
is a corporation, partnership or limited liability company duly organized or formed, validly existing and in
good standing under the Laws of the jurisdiction of its incorporation, organization or formation, (b) has all
requisite corporate or other organizational power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own or lease its assets and carry on its business as is now being
conducted and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a
party and to consummate the Transactions to which it is a party, and (c) is duly qualified and is licensed
and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or license; except in each case referred
to in clause (b)(i), or (c), to the extent that failure to do so could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Loan Party is a credit institution, investment
firm, or parent company of a credit institution or investment firm, in each case that is established in a
member state of the European Union, Iceland, Liechtenstein or Norway, and no Loan Party is a subsidiary
of any of the foregoing.
6.02 Authorization; No Contravention. The execution, delivery and performance by each
Loan Party of each Loan Document to which such Person is party, and the consummation of the
Transactions, have been duly authorized by all necessary corporate or other organizational action, and do
not and will not (a) contravene the terms of the Organization Documents of any such Person; (b) conflict
with or result in any breach or contravention of, or the creation of any Lien under (i) any Contractual
Obligation to which such Person is a party or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law.
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6.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other
Person is necessary or required in connection with (a) the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan Document or the consummation
of the Transactions, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Security
Instruments, (c) the perfection or maintenance of the Liens required to be created under the Security
Instruments (including the first priority nature thereof) or (d) the exercise by the Administrative Agent or
any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to
the Security Instruments, all of which have been duly obtained, taken, given or made and are in full force
and effect.
6.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid
and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in
accordance with its terms, except (a) as rights to indemnification hereunder may be limited by applicable
Law and (b) as the enforcement hereof may be limited by any applicable Debtor Relief Laws or by general
equitable principles.
6.05 Financial Statements; No Material Adverse Effect.
(a) The Annual Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly
present in all material respects the financial condition of the Company and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (iii) show all
material Indebtedness and other liabilities, direct or contingent, of the Company and its Subsidiaries as of
the date thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited Consolidated and consolidating balance sheet of the Company and its
Subsidiaries dated as of May 31, 2017, and the related Consolidated and consolidating statements of income
or operations, and cash flows for the five-month period then ended (i) were prepared in all material respects
in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present in all material respects the financial condition of the Company
and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby,
subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit
adjustments.
(c) Since the date of the Annual Financial Statements there has been no event or circumstance,
either individually or in the aggregate, that has had or could reasonably be expected to have a Material
Adverse Effect.
(d) Each Borrower is Solvent and the Loan Parties, on a Consolidated basis, are Solvent. No
transfer of property has been or will be made by any Loan Party and no obligation has been or will be
incurred by any Loan Party in connection with the transactions contemplated by this Agreement or the other
Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of any Loan
Party.
6.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of any Loan Party, threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against any Loan Party or any of its Subsidiaries or against any of their
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properties or revenues, that (a) purport to affect or pertain to this Agreement or any other Loan Document
(including the grant and perfection of any Lien under any Security Instrument) or any of the Transactions
or (b) except as specifically disclosed in Schedule 6.06, either individually or in the aggregate, if determined
adversely, could reasonably be expected to have a Material Adverse Effect. Since the Closing Date, there
has been no material adverse change in the status, or financial effect on any Loan Party or any Subsidiary
thereof, of the matters described on Schedule 6.06.
6.07 No Default. No Loan Party nor any Subsidiary is in default under or with respect to any
Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation
of the transactions contemplated by this Agreement or any other Loan Document.
6.08 Ownership of Property; Liens.
(a) Each Loan Party and each Restricted Subsidiary has good title to, or valid leasehold
interests in, all its real and personal property material to its business, if any (including the Mortgaged
Properties), free and clear of all Liens except for Permitted Liens and except for minor defects in title that
do not materially interfere with its ability to conduct its business as currently conducted or as proposed to
be conducted or to utilize such properties for their intended purposes.
(b) Schedule 6.08 sets forth the address (including street address, county and state) of all Real
Property that is owned or leased by the Loan Parties as of the Closing Date (and as updated in connection
with delivery of the Compliance Certificate under Section 7.02(c)). Each Loan Party and each of its
Subsidiaries has good, marketable and insurable fee simple title to the Real Property owned by such Loan
Party or such Subsidiary, free and clear of all Liens other than Permitted Liens. Each ground lease of the
Loan Parties is in full force and effect and the Loan Parties are not in default of any material terms thereof.
6.09 Environmental Compliance.
(a) Except as disclosed in Schedule 6.09, no Loan Party or any Subsidiary thereof (i) has failed
to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other
approval required under any Environmental Law with respect to the Loan Party or any Subsidiary’s
operations, (ii) has become subject to a pending claim with respect to any Environmental Liability or (iii)
has received written notice of any claim with respect to any Environmental Liability except, in each case,
as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Except as otherwise set forth in Schedule 6.09 or as would not individually or in the
aggregate reasonably be expected to result in a Material Adverse Effect, (i) none of the properties currently
owned or operated by any Loan Party or any Subsidiary thereof is listed or, to the knowledge of the Loan
Parties, proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or
is adjacent to any such property; (ii) there are no and, to the knowledge of the Loan Parties, never have
been any underground or above-ground storage tanks or any surface impoundments, septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any
property currently owned or operated by any Loan Party or any Subsidiary thereof; (iii) to the knowledge
of the Loan Parties, there is no asbestos or asbestos-containing material on any property currently owned
or operated by any Loan Party or Subsidiary thereof; and (iv) Hazardous Materials have not been released,
discharged or disposed of by any Loan Party or Subsidiary in violation of Environmental Laws or, to the
knowledge of the Loan Parties, by any other Person in violation of Environmental Laws on any property
currently owned or operated by any Loan Party or any Subsidiary thereof.
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(c) Except as otherwise set forth on Schedule 6.09 or as would not individually or in the
aggregate reasonably be expected to result in a Material Adverse Effect, no Loan Party or any Subsidiary
thereof is undertaking, and no Loan Party or any Subsidiary thereof has completed, either individually or
together with other potentially responsible parties, any investigation or assessment or remedial or response
action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site,
location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the
requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or
stored by any Loan Party or any Subsidiary at, or transported to or from by or on behalf of any Loan Party
or any Subsidiary, any property currently owned or operated by any Loan Party or any Subsidiary thereof
have, to the knowledge of the Loan Parties, been disposed of in a manner not reasonably expected to result
in material liability to any Loan Party or any Subsidiary thereof.
(d) Each Loan Party conducts in the Ordinary Course of Business a review of the effect of
existing Environmental Laws and claims alleging potential liability or responsibility for violation of any
Environmental Law on their respective businesses, operations and properties, and as a result thereof each
Loan Party has reasonably concluded that, except as set forth on Schedule 6.09, such Environmental Laws
and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
6.10 Insurance. Without limiting the insurance requirements of any Aircraft Mortgage, the
properties of the Loan Parties and their Subsidiaries are insured with financially sound and reputable
insurance companies which are not Affiliates of the Loan Parties, in such amounts, with such deductibles
and covering such risks (including, without limitation, workmen’s compensation, public liability, business
interruption, and property damage insurance) as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Loan Parties or the applicable Subsidiary
operates. Schedule 6.10 sets forth a description of all insurance maintained by or on behalf of the Loan
Parties as of the Closing Date. Each insurance policy listed on Schedule 6.10 is in full force and effect and
all premiums in respect thereof that are due and payable have been paid.
6.11 Taxes. Each Loan Party and its Subsidiaries have filed all federal, state and other material
tax returns and reports required to be filed, and have paid all federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or their properties, income
or assets (including, in each case, all taxes and charges in connection with the Aircraft owned or leased by
the Company and its Subsidiaries, its location and its operations, including those levied by airports and air
traffic control authorities) otherwise due and payable, except those which are being Properly Contested and
except where the failure to file such returns or reports could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. There is no proposed tax assessment against the Company
or any Subsidiary that would, if made, have a Material Adverse Effect. Neither the Company nor any
Subsidiary thereof is party to any tax sharing agreement.
6.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA,
the Code and other federal or state Laws. Each Plan that is intended to be a qualified plan under Section
401(a) of the Code has received a favorable determination letter from the Internal Revenue Service to the
effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto
has been determined by the Internal Revenue Service to be exempt from federal income tax under Section
501(a) of the Code, or an application for such a letter is currently being processed by the Internal Revenue
Service. To the best knowledge of each Loan Party, nothing has occurred that would prevent or cause the
loss of such tax-qualified status.
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(b) There are no pending or, to the knowledge of any Loan Party, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be
expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred, and no Loan Party nor any ERISA Affiliate is aware of
any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event
with respect to any Pension Plan; (ii) each Loan Party and each ERISA Affiliate has met all applicable
requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the
minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of
the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in
Section 430(d)(2) of the Code) is 60% or higher and no Loan Party nor any ERISA Affiliate knows of any
facts or circumstances that could reasonably be expected to cause the funding target attainment percentage
for any such plan to drop below 60% as of the most recent valuation date; (iv) no Loan Party nor any ERISA
Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no
premium payments which have become due that are unpaid; (v) no Loan Party nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no
Pension Plan has been terminated by the plan administrator thereof nor by the PBGC and no event or
circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute
proceedings under Title IV of ERISA to terminate any Pension Plan.
(d) No Loan Party nor any ERISA Affiliate maintains or contributes to, or has any unsatisfied
obligation to contribute to, or liability under, any active or terminated Pension Plan other than (A) on the
Closing Date, those listed on Schedule 6.12 hereto and (B) thereafter, Pension Plans not otherwise
prohibited by this Agreement.
6.13 Subsidiaries and Equity Interests. No Loan Party (a) has any Subsidiaries other than
those specifically disclosed in part (a) of Schedule 6.13 (which Schedule sets forth the legal name,
jurisdiction of incorporation or formation and outstanding Equity Interests of each such Subsidiary) or
created or acquired after the Closing Date in compliance with Section 7.12, and (b) owns any Equity
Interests in any other Person other than those specifically disclosed on Schedule 6.13, except, in each case,
Subsidiaries acquired or created and equity investments made on or after the Closing Date in compliance
with this Agreement and the other Loan Documents. All of the outstanding Equity Interests in such
Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by a Loan Party (or
a Subsidiary of a Loan Party) in the amounts specified on Schedule 6.13 free and clear of all Liens except
for those created under the Security Instruments. All of the outstanding Equity Interests in the Loan Parties
have been validly issued, and are fully paid and non-assessable and are owned in the amounts specified on
Schedule 6.13 free and clear of all Liens except for those created under the Security Instruments.
6.14 Margin Regulations; Investment Company Act. No Loan Party is engaged nor will
engage, principally or as one of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock. None of the Loan Parties, any Person Controlling any Loan Party,
nor any Subsidiary is or is required to be registered as an “investment company” under the Investment
Company Act of 1940.
6.15 Disclosure. Each Loan Party has disclosed or caused the Borrower Agent to disclose to
the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial
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statement, certificate (including the Borrowing Base Certificates) or other information furnished (whether
in writing or orally) by or on behalf of any Loan Party or any Subsidiary to the Administrative Agent or
any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement
or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by
other information so furnished) contains any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that, with respect to projected financial information, each Loan Party represents
only that such information was prepared in good faith based upon assumptions believed to be reasonable at
the time.
6.16 Compliance with Laws. Each Loan Party and each Subsidiary is in compliance in all
material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable
to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b)
the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
6.17 Intellectual Property; Licenses, Etc. Each Loan Party and its Subsidiaries own, or
possess the right to use, all of the Intellectual Property (including IP Rights) that are reasonably necessary
for the operation of their respective businesses, without known conflict with the IP Rights of any other
Person, except to the extent any failure so to own or possess the right to use could not reasonably be
expected to have a Material Adverse Effect. To the knowledge of each Loan Party, the operation by each
Loan Party and its Subsidiaries of their respective businesses does not infringe upon any IP Rights held by
any other Person.
6.18 Labor Matters. Except as would not reasonably be expected to result, individually or in
the aggregate, in a Material Adverse Effect or as set forth on Schedule 6.18, there are no strikes, lockouts,
slowdowns or other material labor disputes against any Loan Party or any Subsidiary thereof pending or,
to the knowledge of any Loan Party, threatened. The hours worked by and payments made to employees of
the Loan Parties comply in all material respects with the FLSA and any other applicable federal, state, local
or foreign Law dealing with such matters. No Loan Party or any of its Subsidiaries has incurred any liability
or obligation under the Worker Adjustment and Retraining Act or similar state Law. All payments due
from any Loan Party and its Subsidiaries, or for which any claim could reasonably be expected to be made
against any Loan Party, on account of wages and employee health and welfare insurance and other benefits,
have been paid or properly accrued in accordance with GAAP as a liability on the books of such Loan Party.
Except as set forth on Schedule 6.18, no Loan Party or any Subsidiary is a party to or bound by any
collective bargaining or similar agreement. There are no representation proceedings pending or, to any
Loan Party’s knowledge, threatened to be filed with the National Labor Relations Board, and no labor
organization or group of employees of any Loan Party or any Subsidiary has made a pending demand for
recognition. Except as would not reasonably be expected to result, individually or in the aggregate, in a
Material Adverse Effect or as set forth on Schedule 6.18, there are no material complaints, unfair labor
practice charges, grievances, arbitrations, unfair employment practices charges or any other claims or
complaints against any Loan Party or any Subsidiary pending or, to the knowledge of any Loan Party,
threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection
with, or otherwise relating to the employment or termination of employment of any employee of any Loan
Party or any of its Subsidiaries. The consummation of the transactions contemplated by the Loan
Documents will not give rise to any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which any Loan Party or any of its Subsidiaries is bound.
6.19 Deposit Accounts, Securities Accounts and Commodity Accounts.
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(a) Part (a) of Schedule 6.19 sets forth a list of all Deposit Accounts maintained by the Loan
Parties as of the Closing Date (and as updated in connection with delivery of the Compliance Certificate
under Section 7.02(c)), which Schedule includes, with respect to each Deposit Account (i) the name and
address of the depository; (ii) the account number(s) maintained with such depository; and (iii) a contact
person at such depository.
(b) Part (b) of Schedule 6.19 sets forth a list of all Securities Accounts and Commodity
Accounts maintained by the Loan Parties as of the Closing Date (and as updated in connection with delivery
of the Compliance Certificate under Section 7.02(c)), which Schedule includes (i) the name and address of
the securities intermediary or institution holding such account; (ii) the account number(s) maintained with
such securities intermediary or institution; and (iii) a contact person at such securities intermediary or
institution.
6.20 Accounts. The Administrative Agent may rely, in determining which Accounts are
Eligible Accounts, on all statements and representations made by the Loan Parties with respect thereto.
Each Borrower warrants, with respect to each Account at the time it is shown as an Eligible Account in a
Borrowing Base Certificate, that:
(a) it is genuine and in all respects what it purports to be, and is not evidenced by a judgment;
(b) it arises out of a completed, bona fide sale and delivery of goods or services in the Ordinary
Course of Business, and substantially in accordance with any purchase order, contract or other document
relating thereto;
(c) it is for a sum certain, maturing as stated in the invoice covering such sale, a copy of which
has been furnished or is available to the Administrative Agent on request;
(d) it is not subject to any offset, Lien (other than the Administrative Agent’s Lien), deduction,
defense, dispute, counterclaim or other adverse condition except as arising in the Ordinary Course of
Business and reflected in the Borrowing Base Certificate; and it is absolutely owing by the Account Debtor,
without contingency in any respect except as so reflected;
(e) no purchase order, agreement, document or applicable Law restricts assignment of the
Account to the Administrative Agent (regardless of whether, under the UCC, the restriction is ineffective),
and the applicable Borrower is the sole payee or remittance party shown on the invoice;
(f) no extension, compromise, settlement, modification, credit, deduction or return has been
authorized with respect to the Account, except discounts or allowances granted in the Ordinary Course of
Business for prompt payment that are reflected on the face of the invoice related thereto and in the reports
submitted to Administrative Agent hereunder; and
(g) to each Borrower’s knowledge, (i) there are no facts or circumstances that are reasonably
likely to impair the enforceability or collectability of such Account; (ii) the Account Debtor had the capacity
to contract when the Account arose, continues to meet the applicable Borrower’s customary credit
standards, is Solvent, is not contemplating or subject to any proceeding under any Debtor Relief Laws, and
has not failed, or suspended or ceased doing business; and (iii) there are no proceedings or actions
threatened or pending against any Account Debtor that could reasonably be expected to have a material
adverse effect on the Account Debtor’s financial condition.
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6.21 Anti-Terrorism Laws and Foreign Asset Control Regulations.
(a) No Loan Party nor any Controlled Entity is (i) a Person whose name appears on the list of
Specially Designated Nationals and Blocked Persons published by OFAC (an “OFAC Listed Person”),
(ii) an agent, department, or instrumentality of, or is otherwise beneficially owned by, controlled by or
acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any Person, entity,
organization, foreign country or regime that is subject to any OFAC Sanctions Program, or (iii) otherwise
blocked, subject to sanctions under or engaged in any activity in violation of other United States economic
sanctions, including but not limited to, the Trading with the Enemy Act, the International Emergency
Economic Powers Act, the US Comprehensive Iran Sanctions, Accountability, and Divestment Act and the
regulations and rules promulgated thereunder (“CISADA”), or any similar law or regulation with respect
to Iran or any other country, the Sudan Accountability and Divestment Act, any OFAC Sanctions Program,
or any economic sanctions regulations administered and enforced by the United States or any enabling
legislation or executive order relating to any of the foregoing (collectively, “U.S. Economic Sanctions”)
(each OFAC Listed Person and each other Person, entity, organization and government of a country
described in clauses (i), (ii) or (iii), a “Blocked Person”). No Loan Party nor any Controlled Entity has
been notified that its name appears or may in the future appear on a state list of Persons that engage in
investment or other commercial activities in Iran or any other country that is subject to U.S. Economic
Sanctions.
(b) No part of the proceeds from the Credit Extensions constitutes or will constitute funds
obtained on behalf of any Blocked Person or will otherwise be used by any Loan Party or any Controlled
Entity, directly or indirectly, (i) in connection with any investment in, or any transactions or dealings with,
any Blocked Person or (ii) otherwise in violation of U.S. Economic Sanctions.
(c) No Loan Party nor any Controlled Entity (i) has been found in violation of, charged with,
or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering
predicate crimes under any Anti-Money Laundering Law or any U.S. Economic Sanctions, (ii) to the
Company’s actual knowledge after making due inquiry, is under investigation by any Governmental
Authority for possible violation of Anti-Money Laundering Laws or any U.S. Economic Sanctions
violations, (iii) has been assessed civil penalties under any Anti-Money Laundering Laws or any U.S.
Economic Sanctions or (iv) has had any of its funds seized or forfeited in an action under any Anti-Money
Laundering Laws. The Company has established procedures and controls which it reasonably believes are
adequate (and otherwise comply with applicable law) to ensure that the Company and each Controlled
Entity is and will continue to be in compliance with all applicable current and future Anti-Money
Laundering Laws and U.S. Economic Sanctions.
(d) (i) No Loan Party nor any Controlled Entity (w) has been charged with, or convicted of
bribery or any other anti-corruption related activity under any applicable law or regulation in a U.S. or any
non-U.S. country or jurisdiction, including but not limited to, the U.S. Foreign Corrupt Practices Act and
the U.K. Xxxxxxx Xxx 0000 (collectively, “Anti-Corruption Laws”), (x) to the Company’s actual knowledge
after making due inquiry, is under investigation by any U.S. or non-U.S. Governmental Authority for
possible violation of Anti-Corruption Laws, (y) has been assessed civil or criminal penalties under any
Anti-Corruption Laws or (z) has been or is the target of sanctions imposed by the United Nations or the
European Union.
(ii) To the Company’s actual knowledge after making due inquiry, no Loan Party nor
any Controlled Entity has, within the last five years, directly or indirectly offered, promised, given,
paid or authorized the offer, promise, giving or payment of anything of value to a Governmental
Official or a commercial counterparty for the purposes of: (x) influencing any act, decision or failure
to act by such Governmental Official in his or her official capacity or such commercial counterparty,
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(y) inducing a Governmental Official to do or omit to do any act in violation of the Governmental
Official’s lawful duty, or (z) inducing a Governmental Official or a commercial counterparty to use
his or her influence with a government or instrumentality to affect any act or decision of such
government or entity; in each case in order to obtain, retain or direct business or to otherwise secure
an improper advantage.
(iii) No part of the proceeds of the Credit Extensions will be used, directly or indirectly,
for any improper payments, including bribes, to any Governmental Official or commercial
counterparty in order to obtain, retain or direct business or obtain any improper advantage. The
Company has established procedures and controls which it reasonably believes are adequate (and
otherwise comply with applicable law) to ensure that the Company and each Controlled Entity is
and will continue to be in compliance with all applicable current and future Anti-Corruption Laws.
6.22 Brokers. Except as disclosed in writing to the Administrative Agent prior to the Closing
Date, no broker or finder brought about the obtaining, making or closing of the Loans or transactions
contemplated by the Loan Documents, and no Loan Party or Affiliate thereof has any obligation to any
Person in respect of any finder’s or brokerage fees in connection therewith.
6.23 Customer and Trade Relations. There exists no actual or, to the knowledge of any Loan
Party, threatened, termination or cancellation of, or any modification or change in the business relationship
of any Loan Party with any customers or suppliers which are, individually or in the aggregate, material to
its operations, to the extent that such cancellation, modification or change would reasonably be expected to
result in a Material Adverse Effect.
6.24 Material Contracts. Schedule 6.24 sets forth all Material Contracts to which any Loan
Party is a party or is bound as of the Closing Date. The Loan Parties have delivered or made available true,
correct and complete copies of such Material Contracts to the Administrative Agent on or before the date
hereof.
6.25 Casualty. Neither the businesses nor the properties of any Loan Party or any of its
Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not
covered by insurance) that, either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
6.26 Senior Indebtedness. All Obligations including those to pay principal of and interest
(including post-petition interest, whether or not allowed as a claim under Debtor Relief Laws) on the Loans
and other Obligations, and fees and expenses in connection therewith, are entitled to the benefits of the
Subordination Provisions applicable to all Indebtedness. Each Loan Party acknowledges that the
Administrative Agent and each Lender is entering into this Agreement and each Lender is extending its
Commitments in reliance upon the Subordination Provisions.
6.27 Relations with Vendors and Customers. There exists no actual or, to the knowledge of
any Loan Party, threatened termination, limitation, or modification of any business relationship between
any Loan Party or Subsidiary and any customer or supplier, or any group of customers or suppliers, that
individually or in the aggregate could reasonably be expected to have a Material Adverse Effect. There
exists no condition or circumstance that could reasonably be expected to materially impair the ability of
any Loan Party or Subsidiary to conduct its business at any time hereafter in substantially the same manner
as conducted on the Closing Date.
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6.28 Aircraft Parts. Schedule 6.28 sets forth each location as of the Closing Date (and as
updated in connection with delivery of the Compliance Certificate under Section 7.02(c)) within the United
States in which Aircraft Parts with a value in excess of $100,000 is located (together with the name of each
owner of the property located at such address and, if not the applicable Loan Party, a summary description
of the relationship between the applicable Loan Party and such Person and the maximum approximate book
or market value of the Aircraft Parts held or to be held at such location).
6.29 Rolling Stock.
(a) Schedule 6.29(a) sets forth a complete and accurate list as of the Closing Date (and as
updated in connection with delivery of the Compliance Certificate under Section 7.02(c)) of all Rolling
Stock owned by any Loan Party. Each Compliance Certificate delivered under Section 7.02(c) shall also
indicate (i) Dispositions or insurance events with respect to any Term Loan Equipment during the relevant
period, and (ii) Dispositions or insurance events with respect to any CapX Equipment during the relevant
period. The Rolling Stock of each Loan Party (A) is in good operating condition and repair in all material
respects, and all necessary replacements of and repairs thereto shall be made so that the operating efficiency
thereof shall be maintained and preserved in all material respects, reasonable wear and tear and casualty
events excepted and (B) complies in all material respects with safety standards for over-the-road, for-hire
trucking which have been promulgated thereunder by the U.S. Department of Transportation, including, in
each case, comparable applicable laws and regulations under the laws of Canada or any province thereof.
(b) Schedule 6.29(b) sets forth a complete and accurate list as of the Closing Date (and as
updated in connection with delivery of the Compliance Certificate under Section 7.02(c)) of all locations
where Rolling Stock is warehoused, maintained, repaired or otherwise stored (other than when temporarily
located in a repair facility due to unexpected mechanical difficulties or minor routine maintenance) when
not in over-the-road use (or being loaded or unloaded) in the Ordinary Course of Business.
(c) No Borrower has entered into any Trade and Replacement Plan with respect to the Rolling
Stock, the terms of which have not been disclosed in writing to Administrative Agent prior to the Closing
Date.
6.30 Aircraft Matters.
(a) Schedule 6.30(a) sets forth a true and correct list as of the Closing Date (and as updated in
connection with delivery of the Compliance Certificate under Section 7.02(c)) of all Aircraft (including, for
the avoidance of doubt, all engines whether or not installed on an airframe) owned or by the Loan Parties
(setting forth the manufacturer, model, vintage, manufacturer’s serial number (“MSN”), jurisdiction of
registration, registration number, the owner or lessor thereof, the secured party (if any) and whether such
Aircraft is subject to an Aircraft Mortgage).
(b) Schedule 6.30(b) sets forth the location as of the Closing Date (and as updated in
connection with delivery of the Compliance Certificate under Section 7.01(c)) of (i) the primary aircraft
operations center for each Aircraft owned by the Loan Parties and (ii) Aircraft Parts Designated Locations.
(c) Each Aircraft Operating Party is an Air Carrier and is a citizen of the United States (as
defined in applicable Aircraft Regulations).
(d) The Loan Parties and the Aircraft comply in all material respects with applicable Aircraft
Regulations.
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(e) All Aircraft Permits are in full force and effect, and there are no proceedings pending, or
to the knowledge of the Company or any of its Subsidiaries, threatened which challenge the right of any
Aircraft Operating Party to operate under any Aircraft Permit applicable to it or its Aircraft.
(f) Each Loan Party will maintain each of its Aircraft in good operating condition and repair,
ordinary wear and tear excepted.
(g) Each Loan Party will operate each Aircraft owned by it or any Restricted Subsidiary solely
for the purpose of the carriage of cargo in the ordinary course of business, provided, no Loan Party or
Restricted Subsidiary may use or operate any Aircraft or suffer or permit any Aircraft to be used or operated:
(i) outside of the United States, Mexico or Canada;
(ii) in violation of any Aircraft Permits or Aircraft Regulations or in a manner that
could cause any Lender to be in violation of any applicable Aircraft Regulation;
(iii) for any purpose for which the Aircraft was not designed or which is illegal;
(iv) in any circumstances or place where the Aircraft is not covered by the insurances
required to be maintained hereunder or under any Security Instrument; or
(v) by any other person or entity (whether by lease, sublease or otherwise).
6.31 No Agency Relationship. No Borrower or Restricted Subsidiary:
(a) Segregates from its general funds monies collected for any Freight Carrier’s services or
otherwise permits any Freight Carrier to restrict the use of those funds.
(b) Seeks recourse by legal proceeding against any Freight Carrier to whom it has paid Freight
Payables in advance if the Account Debtor owing on the Account with respect to which those Freight
Payables relate is delinquent or fails to pay.
(c) Holds or is required to hold any portion of its Accounts constituting Freight Payables
collected from an Account Debtor in respect of a Freight Carrier’s services in trust for such Freight Carrier.
(d) Has any express fiduciary relationship or fiduciary duty to any Freight Carrier arising out
of or in connection with any Freight Carrier Document or the transactions contemplated thereby, or, other
than those disclosed to the Administrative Agent and excluded from Eligible Accounts by operation of such
definition, have any contractual agency or joint venture relationship with any Freight Carrier by virtue of
any Freight Carrier Document or any transaction contemplated therein.
(e) Expressly consents to or permit any Freight Carrier to at any time seek payment from, or
to have contractual recourse known to any senior officer of a Loan Party to, any Account Debtor for material
Freight Payables payable by any Loan Party to such Freight Carrier.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder or any Loan Obligation hereunder
shall remain unpaid or unsatisfied, each Loan Party shall, and shall cause each Restricted Subsidiary to, or
with respect to Sections 7.01, 7.02 and 7.03, the Borrower Agent shall:
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7.01 Financial Statements. Deliver to the Administrative Agent and each Lender:
(a) as soon as available, but in any event within 90 days after the end of each fiscal year of the
Company commencing with the year ending December 31, 2017 or, if earlier, 15 days after the date required
to be filed with the SEC (without giving effect to any extension permitted by the SEC), a Consolidated and
consolidating balance sheet of the Company and its Subsidiaries as at the end of such fiscal year, and the
related Consolidated and consolidating statements of income or operations, stockholders’ investment and
cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP, (i) such Consolidated statements
to be audited and accompanied by a report and opinion of a Registered Public Accounting Firm of nationally
recognized standing reasonably acceptable to the Administrative Agent (the “Auditor”), which report and
opinion shall be prepared in accordance with audit standards of the Public Company Accounting Oversight
Board and applicable Securities Laws and shall be unqualified (including any qualification or exception as
to the scope of such audit, but other than any “going concern” or like qualification or exception resulting
solely from an upcoming maturity date for the Loans occurring within one year from the time such opinion
is delivered), and (ii) such consolidating statements to be certified by the chief financial officer of the
Company to the effect that such statements are fairly stated in all material respects when considered in
relation to the Consolidated financial statements of the Company and its Subsidiaries;
(b) monthly, as soon as available, but in any event within 30 days after the end of each calendar
month, unaudited Consolidated and consolidating balance sheets of the Company as of the end of such
month and the related statements of income and cash flow for such month and for the portion of the fiscal
year then elapsed, on a Consolidated basis for the Company and Subsidiaries, setting forth in comparative
form corresponding figures for the preceding fiscal year and certified by the chief financial officer of
Borrower Agent as prepared in all material respects in accordance with GAAP and fairly presenting in all
material respects the financial condition, results of operations and cash flows for such month and period,
subject to normal year-end adjustments and the absence of footnotes; and
(c) as soon as available but not later than 60 days after the end of each fiscal year, annual
financial projections of the Company and its Subsidiaries on a Consolidated basis, in form reasonably
satisfactory to the Administrative Agent, consisting of (i) Consolidated balance sheets and statements of
income or operations and cash flows and (ii) monthly Availability for Borrowers for the immediately
following fiscal year.
As to any information contained in materials furnished pursuant to Section 7.02(d), the Loan Parties
shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing
shall not be in derogation of the obligation of the Loan Parties to furnish the information and materials
described in subsections (a) and (b) above at the times specified therein.
7.02 Borrowing Base Certificate; Other Information. Deliver to the Administrative Agent,
in form reasonably satisfactory to the Administrative Agent:
(a) on or before the 30th of each month from and after the date hereof, Borrower Agent shall
deliver to Administrative Agent, in form reasonably acceptable to the Administrative Agent, a Borrowing
Base Certificate as of the last day of the immediately preceding month, with such supporting materials as
the Administrative Agent shall reasonably request (including monthly reporting of rolling forward accounts
receivable data by reporting monthly sales, cash collections and credits and monthly reporting of gross
inventory, inventory ineligibles and accounts receivable ineligibles). If a Reporting Trigger Period exists,
Borrower Agent shall execute and deliver to Administrative Agent Borrowing Base Certificates on a
weekly basis (including weekly reporting of rolling forward accounts receivable data by reporting weekly
sales, cash collections and credits), within three (3) Business Days of the end of each week. All
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calculations of Availability in any Borrowing Base Certificate shall originally be made by Borrowers and
certified by a Responsible Officer, provided, that the Administrative Agent may from time to time review
and in its Permitted Discretion adjust any such calculation (a) to reflect its reasonable estimate of declines
in value of any Collateral, due to collections received in the Concentration Account or otherwise; (b) to
adjust advance rates to reflect changes in dilution, quality, mix and other factors affecting Collateral; and
(c) to the extent the calculation is not made in accordance with this Agreement or does not accurately reflect
the Availability Reserve;
(b) on or before the 30th day of each calendar month from and after the date hereof, Borrower
Agent shall deliver to the Administrative Agent, in the form reasonably acceptable to the Administrative
Agent, (i) reconciliations of all Borrowers’ Accounts as shown on the month-end Borrowing Base
Certificate for the immediately preceding month to Borrowers’ accounts receivable agings, to Borrowers’
general ledger and to Borrowers’ most recent financial statements, (ii) a detailed aged trial balance of all
Accounts as of the end of the preceding calendar month, specifying each Account’s Account Debtor name
and address, amount, invoice date and due date, showing any credit and other information as the
Administrative Agent may reasonably request. (iii) accounts payable agings, and (iv) Inventory status
reports, all with supporting materials as the Administrative Agent shall reasonably request;
(c) a Compliance Certificate executed by the chief executive officer, chief financial officer or
treasurer of Borrower Agent which (A) certifies compliance with Section 8.12, (B) provides a reasonably
detailed calculation of the Consolidated Fixed Charge Coverage Ratio and (C) provides updates, if any, to
Schedules 6.08, 6.19, 6.28, 6.29(a), 6.29(b), 6.30(a) and 6.30(b) to make the representations and warranties
with respect thereto true and correct as of the end of the applicable Measurement Period, delivered (i)
concurrently with delivery of financial statements under Sections 7.01(a) and 7.01(b), whether or not a
Fixed Charge Trigger Period then exists, (ii) on the first day of any Fixed Charge Trigger Period (certifying
compliance as of the last day of the Measurement Period most recently ended prior to the start of such Fixed
Charge Trigger Period) and (iii) as requested by Agent while a Default or Event of Default exists;
(d) promptly after the same are available, copies of each annual report, proxy or financial
statement sent to the stockholders of the Company, and copies of all annual, regular, periodic and special
reports and registration statements which the Company may file or be required to file with the SEC under
Section 13 or 15(d) of the Exchange Act, and not otherwise required to be delivered to the Administrative
Agent pursuant hereto;
(e) at the Administrative Agent’s reasonable request (but not more frequently than monthly
unless a Default or Event of Default has occurred and is continuing), a listing of each Borrower’s trade
payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form
reasonably satisfactory to the Administrative Agent;
(f) no later than October 31, 2017, restated Consolidated financial statements for the Company
for fiscal years 2013, 2014, and 2015 (audited) and the first three fiscal quarters of 2016 (unaudited), as
well as audited 2016 Consolidated financial statements; and
(g) promptly, such additional information regarding the business, financial or corporate affairs
of any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent may from time to time reasonably request, all in form and scope reasonably
acceptable to the Administrative Agent.
Documents required to be delivered pursuant to Section 7.01(a) or 7.01(b) or Section 7.02(d) (to
the extent any such documents are included in materials otherwise filed with the SEC) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the
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Borrower Agent posts such documents, or provides a link thereto on the Borrower Agent’s website on the
Internet at xxx.xxxx.xxx; or (ii) on which such documents are posted on the Borrower Agent’s behalf on
an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: the Borrower Agent shall notify (which may be by facsimile or electronic mail) the Administrative
Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrowers with any such request for delivery, and each
Lender shall be solely responsible for obtaining copies of such documents.
Each Loan Party hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will
make available to the Lenders and the Letter of Credit Issuer materials and/or information provided by or
on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders
(each, a “Public Lender”) may have personnel who do not wish to receive material non-public information
with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing, and
who may be engaged in investment and other market-related activities with respect to such Persons’
securities. Each Loan Party hereby agrees that, so long as any Borrower is the issuer of any outstanding
debt or equity securities that are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities, (w) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the
word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials
“PUBLIC”, each Loan Party shall be deemed to have authorized the Administrative Agent, the Arrangers,
the Letter of Credit Issuer and the Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to any Loan Party or its securities for purposes of United States federal
and state securities laws (provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked
“PUBLIC” are permitted to be made available through a portion of the Platform designated “Public
Investor”; and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Investor”. Notwithstanding the foregoing, the Borrowers shall be under no obligation
to xxxx any Borrower Materials “PUBLIC.”
7.03 Notices. Promptly notify (or, in the case of clause (m), provide) the Administrative Agent
and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual Obligation
of any Loan Party or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension
between any Loan Party or any Subsidiary and any Governmental Authority; (iii) the commencement of,
or any material development in, any litigation or proceeding affecting any Loan Party or any Subsidiary,
including pursuant to any applicable Environmental Laws; violation or asserted violation of any applicable
Law;
(c) of the occurrence of any ERISA Event;
(d) of the occurrence of a Change of Control;
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(e) of the creation or acquisition of any Subsidiary;
(f) of any material change in accounting policies or financial reporting practices by any Loan
Party or any Restricted Subsidiary;
(g) of any change in the Borrower Agent’s chief executive officer, president, chief financial
officer or treasurer;
(h) of the discharge by any Loan Party of its present Auditors or any withdrawal or resignation
by such Auditors;
(i) of any collective bargaining agreement or other labor contract to which a Loan Party
becomes a party, or the application for the certification of a collective bargaining agent;
(j) of the filing of any Lien for unpaid Taxes against any Loan Party in excess of $1,000,000;
(k) of any casualty or other insured damage to any material portion of the Collateral or the
commencement of any action or proceeding for the taking of any interest in a material portion of the
Collateral under power of eminent domain or by condemnation or similar proceeding or if any material
portion of the Collateral is damaged or destroyed;
(l) of Collateral in an aggregate face amount of $2,500,000 or more ceasing to be Eligible
Accounts, Eligible Aircraft Parts or Eligible Equipment;
(m) promptly after the furnishing thereof, copies of any material requests or notices received
by any Borrower or Subsidiary (other than in the ordinary course of business or to the extent duplicative of
notices provided hereunder) and copies of any material statement or report furnished to any lender or holder
of any “Preferred Stock” under the Investment Agreement, Permitted Term Debt or Subordinated Debt; and
(n) of any failure by any Loan Party to pay rent at any of such Loan Party’s locations where
the NOLV of Aircraft Parts at such location in excess of $100,000 if such failure continues for more than
fifteen (15) days following the day on which such rent first came due.
Each notice pursuant to this Section 7.03 shall be accompanied by a statement of a Responsible
Officer of the Borrower Agent setting forth details of the occurrence referred to therein and stating what
action the Borrowers have taken and propose to take with respect thereto. Each notice pursuant to Section
7.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.
7.04 Payment of Obligations. Pay and discharge as the same shall become due and payable,
all its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being Properly Contested; (b) all lawful claims
which, if unpaid, would by law become a Lien upon its property, except to the extent that any such Lien
would otherwise be permitted by Section 8.02; and (c) all Indebtedness having an aggregate principal
amount (including undrawn committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than $10,000,000, as and when due and
payable, but subject to any Subordination Provisions contained in any instrument or agreement evidencing
such Indebtedness.
7.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect
its legal existence and good standing under the Laws of the jurisdiction of its organization or formation
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except in a transaction permitted by Section 8.04 or 8.05; (b) 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; and (c) preserve or renew all of its registered Intellectual Property, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.
7.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its properties (other
than insignificant properties) and equipment necessary in the operation of its business in good working
order and condition, ordinary wear and tear excepted except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect; (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of
its facilities.
7.07 Maintenance of Insurance; Condemnation Proceeds.
(a) Maintain with (i) companies having an A.M. Best Rating of at least “A” or (ii) financially
sound and reputable insurance companies reasonably acceptable to the Administrative Agent and not
Affiliates of the Loan Parties, insurance with respect to its properties and business (including all-risk hull
insurance and liability insurance applicable to Aircraft) against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar business and operating in the same or similar
locations or as is required by applicable Law, of such types and in such amounts as are customarily carried
under similar circumstances by such other Persons and as are reasonably acceptable to the Administrative
Agent;
(b) Maintain flood insurance with respect to any Mortgaged Property located in any area
identified by FEMA (or any successor agency) as a Special Flood Zone with such providers, on such terms
and in such amounts as required pursuant to the Flood Disaster Protection Act and the National Flood
Insurance Act of 1968, and all applicable rules and regulations promulgated thereunder, or as otherwise
required by the Lenders.
(c) Cause all casualty policies, including fire and extended coverage policies, maintained with
respect to any Collateral to be endorsed or otherwise amended to include (i) a non-contributing mortgagee
clause (regarding improvements to Real Property) and lenders’ loss payable clause (regarding personal
property), in form and substance reasonably satisfactory to the Administrative Agent, which endorsements
or amendments shall provide that the insurer shall pay all proceeds otherwise payable to the Loan Parties
under the policies directly to the Administrative Agent, (ii) a provision to the effect that none of the Loan
Parties, Secured Parties or any other Person shall be a co-insurer and (iii) such other provisions as the
Administrative Agent may reasonably require from time to time to protect the interests of the Secured
Parties.
(d) Cause commercial general liability (and all-risk hull insurance and liability insurance
applicable to Aircraft) policies to be endorsed to name the Administrative Agent as an additional insured;
and cause business interruption policies (if any) to name the Administrative Agent as a loss payee and to
be endorsed or amended to include (i) a provision that, from and after the Closing Date, the insurer shall
pay all proceeds otherwise payable to the Loan Parties under the policies directly to the Administrative
Agent, (ii) a provision to the effect that none of the Loan Parties, the Administrative Agent or any other
party shall be a co-insurer and (iii) such other provisions as the Administrative Agent may reasonably
require from time to time to protect the interests of the Secured Parties.
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(e) Cause each such policy referred to in this Section 7.07 to also provide that it shall not be
canceled, modified or not renewed (i) by reason of nonpayment of premium except upon not less than thirty
(30) days’ prior written notice thereof by the insurer to the Administrative Agent (giving the Administrative
Agent the right to cure defaults in the payment of premiums) or (ii) for any other reason except upon not
less than thirty (30) days’ prior written notice thereof by the insurer to the Administrative Agent.
(f) Deliver to the Administrative Agent, prior to the cancellation, modification or non-renewal
of any such policy of insurance, a copy of a renewal or replacement policy or insurance certificate (or other
evidence of renewal of a policy previously delivered to the Administrative Agent, including an insurance
binder) together with evidence reasonably satisfactory to the Administrative Agent of payment of the
premium therefor.
(g) Permit any representatives that are designated by the Administrative Agent to inspect the
insurance policies maintained by or on behalf of the Loan Parties and to inspect books and records related
thereto and any properties covered thereby. The Loan Parties shall pay the reasonable fees and expenses of
any representatives retained by the Administrative Agent to conduct any such inspection.
(h) None of the Secured Parties, or their agents or employees shall be liable for any loss or
damage insured by the insurance policies required to be maintained under this Section 7.07. Each Loan
Party shall look solely to its insurance companies or any other parties other than the Secured Parties for the
recovery of such loss or damage and such insurance companies shall have no rights of subrogation against
any Secured Party or its agents or employees. If, however, the insurance policies do not provide waiver of
subrogation rights against such parties, as required above, then the Loan Parties hereby agree, to the extent
permitted by law, to waive their right of recovery, if any, against the Secured Parties and their agents and
employees. The designation of any form, type or amount of insurance coverage by any Secured Party under
this Section 7.07 shall in no event be deemed a representation, warranty or advice by such Secured Party
that such insurance is adequate for the purposes of the business of the Loan Parties or the protection of their
properties.
7.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
(including without limitation all applicable Environmental Laws, OSHA, safety standards for over-the-
road, for-hire trucking which have been promulgated thereunder by the U.S. Department of Transportation,
and Aircraft Regulations including, in each case, comparable applicable laws and regulations under the
laws of Canada or any province thereof) and all orders, writs, injunctions and decrees applicable to it or to
its business or property, except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being Properly Contested; or (b) the failure to comply therewith could not reasonably
be expected to have a Material Adverse Effect.
7.09 Books and Records. (a) Maintain proper books of record and account, in which full, true
and correct entries in all material respects in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of the Loan Parties or such Restricted
Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity
with all applicable requirements of any Governmental Authority having regulatory jurisdiction over any
Loan Party or such Restricted Subsidiary, as the case may be.
7.10 Inspection Rights and Appraisals; Meetings with the Administrative Agent.
(a) Subject to Section 7.10(b), permit the Administrative Agent or its designees or
representatives from time to time, subject to reasonable notice and normal business hours (except, in each
case, when a Default or Event of Default exists), to conduct Field Exams and/or appraisals of Aircraft Parts
and to examine its corporate, financial and operating records, and make copies thereof or abstracts
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therefrom, and to discuss its affairs, finances and accounts with its directors, officers and Auditors; provided
that representatives of the Borrower Agent shall be given the opportunity to participate in any discussions
with the Auditors. The Administrative Agent shall not have any duty to any Loan Party to share any results
of any Field Exam with any Loan Party. Appraisals shall be shared with the Borrower Agent upon request.
The Loan Parties acknowledge that all Field Exams, appraisals and reports are prepared by or for the
Administrative Agent and Lenders for their purposes, and Loan Parties shall not be entitled to rely upon
them.
(b) Reimburse the Administrative Agent for all reasonable and documented out-of-pocket
charges, costs and expenses of the Administrative Agent in connection with (i) up to one appraisal of parts
inventory and Field Exam during any twelve (12) month period during which no Reporting Trigger Period
has arisen (ii) up to one additional Field Exam in any twelve (12) month period during which Adjusted
Excess Availability is less than the greater of (i) $24,000,000 and (ii) 15.0% of the Maximum Borrowing
Amount for five (5) consecutive Business Days, and (ii) up to one additional appraisal of parts inventory in
any twelve (12) month period during which a Reporting Trigger Period has arisen; provided, however, that
if a Field Exam or appraisal is initiated during a Default or Event of Default,(x) all reasonable and
documented out-of-pocket charges, costs and expenses therefor shall be reimbursed by the Loan Parties
without regard to such limits and (y) there shall be no limitation on the number or frequency of such Field
Exams or appraisals of parts inventory. In addition, during the continuance of an Event of Default, in the
Administrative Agent’s discretion, the Administrative Agent may request appraisals of Aircraft and Rolling
Stock without limitation on the number or frequency of such appraisals, all of which shall be at the
Company’s expense.
(c) Without limiting the foregoing, participate and will cause their key management personnel
to participate in telephonic or other meetings with the Administrative Agent and Lenders periodically
during each year, which meetings shall be held at such times and such places as may be reasonably
requested by the Administrative Agent.
7.11 Use of Proceeds. Use the proceeds of the Credit Extensions (x) in the case of the
Revolving Credit Facility and Term Loan Facility (i) to redeem all outstanding shares of the Existing Series
F Preferred Stock, (ii) to pay fees and expenses in connection with the Transactions, and (iii) for working
capital, capital expenditures, Permitted Acquisitions, and other general corporate purposes not in
contravention of any Law or of any Loan Document, and (y) in the case of the CapX Facility, to finance
CapX Equipment. None of the proceeds of the Credit Extensions will be used, directly or indirectly, (a) to
finance or refinance dealings or transactions by or with any Person that is described or designated in the
Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control, United
States Department of the Treasury (“OFAC”) or is otherwise a Person officially sanctioned by the United
States of America pursuant to the OFAC Sanctions Program or (b) for any purpose that is otherwise in
violation of the Trading with the Enemy Act, the OFAC Sanctions Program, the PATRIOT Act or CISADA
(collectively, the “Foreign Activities Laws”).
7.12 New Subsidiaries. As soon as practicable but in any event within 30 Business Days
following the acquisition or creation of any Domestic Subsidiary (other than an Excluded Subsidiary), or
the time any existing Excluded Subsidiary ceases to be an Excluded Subsidiary, cause to be delivered to the
Administrative Agent each of the following, as applicable:
(a) a joinder agreement reasonably acceptable to the Administrative Agent duly executed by
such Domestic Subsidiary sufficient to cause such Subsidiary to become a Guarantor (or, with the consent
of the Administrative Agent, a Borrower hereunder), together with executed counterparts of each other
Loan Document reasonably requested by the Administrative Agent, including all Security Instruments and
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other documents reasonably requested to establish and preserve the Lien of the Administrative Agent in all
Collateral of such Domestic Subsidiary;
(b) (i) Uniform Commercial Code financing statements naming such Person as “Debtor” and
naming the Administrative Agent for the benefit of the Secured Parties as “Secured Party,” in form,
substance and number sufficient in the reasonable opinion of the Administrative Agent and its special
counsel to be filed in all Uniform Commercial Code filing offices and in all jurisdictions in which filing is
necessary to perfect in favor of the Administrative Agent for the benefit of the Secured Parties the Lien on
the Collateral conferred under such Security Instrument to the extent such Lien may be perfected by
Uniform Commercial Code filing, and (ii) pledge agreements, security agreements, control agreements, and
original collateral (including pledged Equity Interests (other than Excluded Equity Interests), Securities and
Instruments) and such other documents and agreements as may be reasonably required by the
Administrative Agent, all as necessary to establish and maintain a valid, perfected security interest in all
Collateral in which such Domestic Subsidiary has an interest consistent with the terms of the Loan
Documents;
(c) upon the reasonable request of the Administrative Agent, an opinion of counsel to each
such Domestic Subsidiary and addressed to the Administrative Agent and the Lenders, in form and
substance reasonably acceptable to the Administrative Agent, each of which opinions may be in form and
substance, including assumptions and qualifications contained therein, substantially similar to those
opinions of counsel delivered pursuant to Section 5.01(a);
(d) current copies of the Organization Documents of each such Domestic Subsidiary, together
with minutes of duly called and conducted meetings (or duly effected consent actions) of the Board of
Directors, partners, or appropriate committees thereof (and, if required by such Organization Documents
or applicable law, of the shareholders, members or partners) of such Person authorizing the actions and the
execution and delivery of documents described in this Section 7.12, all certified by a Responsible Officer
of such Domestic Subsidiary (and applicable Governmental Authority in the case of charter documents);
and
(e) with respect to any Subsidiary to become a Borrower hereunder, within five (5) Business
Days prior to becoming a Borrower, all “know-your-customer” and customer due diligence documentation
satisfactory to the Lenders to the extent such information is requested by the Administrative Agent or the
Lenders reasonably promptly after written notice to the Administrative Agent of the proposed joinder of a
Borrower.
7.13 Compliance with ERISA. Do, and cause each of its ERISA Affiliates to do, each of the
following: (a) maintain each Plan in compliance in all material respects with the applicable provisions of
ERISA, the Code and other applicable Laws; (b) cause each Plan which is qualified under Section 401(a)
of the Code to maintain such qualification; and (c) make all required contributions to any Plan subject to
the Pension Funding Rules. At no time shall the accumulated benefit obligations under any Plan subject to
Title IV of ERISA that is not a Multiemployer Plan exceed the Fair Market Value of the assets of such Plan
allocable to such benefits by more than $500,000. The Loan Parties and each of their respective
Subsidiaries shall not withdraw, and shall cause each ERISA Affiliate not to withdraw, in whole or in part,
from any Multiemployer Plan so as to give rise to withdrawal liability exceeding $500,000 in the aggregate.
At no time shall the actuarial present value of unfunded liabilities for post-employment health care benefits,
whether or not provided under a Plan, calculated in a manner consistent with Statement No. 106 of the
Financial Accounting Standards Board, exceed $500,000.
7.14 Further Assurances. At the Borrowers’ cost and expense, upon reasonable request of the
Administrative Agent, duly execute and deliver or cause to be duly executed and delivered, to the
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Administrative Agent such further information, instruments, documents, certificates, financing and
continuation statements, and do and cause to be done such further acts that may be reasonably necessary or
advisable in the reasonable opinion of the Administrative Agent to carry out more effectively the provisions
and purposes of this Agreement, the Security Instruments and the other Loan Document, including, to
create, continue or preserve the liens and security interests in Collateral (and the perfection and priority
thereof) of the Administrative Agent contemplated hereby and by the other Loan Documents and
specifically including all Collateral acquired by the Borrowers after the Closing Date.
7.15 Licenses. (a) Keep in full force and effect each License (i) the expiration or termination
of which could reasonably be expected to materially adversely affect the realizable value in the use or sale
of a material amount of Aircraft Parts or (ii) the expiration or termination of which could reasonably be
expected to have a Material Adverse Effect (each a “Material License”); (b) promptly notify the
Administrative Agent of (i) any material modification to any such Material License that could reasonably
be expected to be materially adverse to any Loan Party or the Administrative Agent or any Lender and (ii)
entering into any new Material License; (c) pay all Royalties (other than immaterial Royalties or Royalties
being Properly Contested) arising under such Material Licenses when due (subject to any cure or grace
period applicable thereto); and (d) notify the Administrative Agent of any material default or material
breach asserted in writing by any Person to have occurred under any such Material License.
7.16 Environmental Laws. (a) Conduct its operations and keep and maintain its Real Property
in material compliance with all Environmental Laws, other than any such non-compliance which would not
reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect; (b) obtain
and renew all environmental permits necessary for its operations and properties, other than any
environmental permits the failure of which to obtain would not reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect; and (c) implement any and all investigation,
remediation, removal and response actions that are required to comply with Environmental Laws pertaining
to the presence, generation, treatment, storage, use, disposal, transportation or release of any Hazardous
Materials on, at, in, under or about any of its Real Property other than any such non-compliance which
would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
7.17 Leases, Mortgages and Third-Party Agreements.
(a) Upon request, provide Administrative Agent with copies of all existing and future
agreements (including any mortgage, deed of trust or similar security document) entered into between a
Loan Party and any landlord, warehouseman, processor, shipper, bailee or other Person that owns, or has a
mortgage or similar lien on, any premises at which any Collateral (excluding Rolling Stock and Aircraft)
with an aggregate value of $250,000 or greater may be kept or that otherwise may possess any Collateral
(excluding Rolling Stock and Aircraft) with an aggregate value of $250,000 or greater (each a “Material
Third-Party Agreement”).
(b) Except as otherwise expressly permitted hereunder, (i) make all payments and otherwise
perform all obligations in respect of all leases and all mortgages, deeds of trust or similar security documents
constituting Material Third-Party Agreements and not allow such leases to lapse or be terminated (or any
rights to renew such leases to be forfeited or cancelled), (ii) notify the Administrative Agent of any default
by the applicable Loan Party or Restricted Subsidiary with respect to such leases or mortgages, deeds of
trust or similar security documents and (iii) promptly cure any such default by the applicable Loan Party or
Restricted Subsidiary. If any such default is not so cured, each Loan Party hereby authorizes the
Administrative Agent (as its non-fiduciary agent and on its behalf) to, if elected by the Administrative
Agent in its reasonable discretion, make such payments and/or take such other actions as the Administrative
Agent may elect in order to cure any such default (whether or not an Event of Default under this Agreement
exists at such time). Any payment made pursuant to this Section 7.17(b) shall be deemed a Protective
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Advance hereunder. Each Loan Party agrees that the Administrative Agent shall have no obligation to
exercise any right to cure hereunder, whether or not such right is exercised on any one or more occasions.
7.18 Material Contracts. Perform and observe all the payment terms and other material terms
and provisions of each Material Contract to be performed or observed by it, maintain each such Material
Contract in full force and effect, enforce each such Material Contract in accordance with its terms, take all
such action to such end as may be from time to time reasonably requested by the Administrative Agent and,
upon reasonable request of the Administrative Agent, make to each other party to each such Material
Contract such demands and requests for information and reports or for action as any Loan Party or any of
its Subsidiaries is entitled to make under such Material Contract, and cause each of its Subsidiaries to do
so, except, in any case, where the failure to do any of the foregoing, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
7.19 Treasury Management and Other Services. Subject to the provisions of Section 7.21(e)
and Section 7.21(f), each Loan Party (a) shall maintain its lockboxes and Deposit Accounts (other than
Excluded Deposit Accounts and disbursement account) exclusively with BMO, and shall utilize BMO for
other Treasury Management and Other Services (other than disbursement accounts), and (b) shall utilize
JPMorgan Chase Bank, N.A. for its primary disbursement accounts.
7.20 Freight Payables. Pay on or before the due date thereof all Freight Payables (other than
Freight Payables in an aggregate amount not to exceed $2,500,000 and not aged more than 60 days beyond
the date of receipt of the invoice, rate, and load confirmation, xxxx of lading or other proof of delivery in
respect of such Freight Payable by the applicable Freight Carrier Documents), except to the extent that (a)
the validity or amount thereof (or any other amount owed to the applicable Freight Carrier) is being Properly
Contested and (b) such Loan Party or Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP.
7.21 Post-Closing Agreements. Notwithstanding anything to the contrary herein or in any other
Loan Document (including, without limitation, in respect of the “eligibility” requirements of Eligible
Accounts, Eligible Aircraft, Eligible Aircraft Parts and Eligible Rolling Stock and the requirements of
Article IV, Section 5.01 and Section 7.19), execute and deliver the documents and complete the tasks set
forth below as soon as reasonably practicable, but in any event within the time limit specified below, or
such later date as the Administrative Agent agrees to in writing:
(a) No later than September 15, 2017, (i) execute and deliver a Control Agreement with respect
to each Deposit Account listed on part (a) of Schedule 6.19, other than Excluded Deposit Accounts,
which shall include all lockboxes and related lockbox accounts used for the collection of Accounts, or
(ii) close any such Deposit Account (other than any Excluded Deposit Account) that is not subject to a
Control Agreement; provided that no cash or Cash Equivalents shall constitute Qualified Unrestricted Cash
unless and until such cash is held in a Deposit Account or a Securities Account of a Loan Party maintained
with the Administrative Agent or its Affiliates and subject to a Control Agreement.
(b) No later than September 15, 2017, (i) execute and deliver a Control Agreement with respect
to each Securities Account and Commodity Account listed on part (b) of Schedule 6.19, or (ii) close any
such Securities Account or Commodity Account that is not subject to a Control Agreement.
(c) No later than September 15, 2017, deliver to the Administrative Agent (or the Vehicle Title
Service Provider) a valid certificate of title issued in the name of a Loan Party which, to the extent required
by the Laws of the applicable jurisdiction that issued the certificate of title in order to perfect a Lien on such
Rolling Stock, lists the Administrative Agent (or the Vehicle Title Service Provider) as the first and sole
lienholder with respect to each item of Rolling Stock constituting Term Loan Equipment; provided that
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prior to such time limit, the certificate of title for such item of Rolling Stock shall be issued in the name of
a Loan Party and evidence no Lien other than a Lien in favor of US Bank in connection with credit facilities
which have been paid in full and terminated and for which the Company has authority to re-title in the name
of the Administrative Agent.
(d) No later than September 15, 2017, execute and deliver Aircraft Mortgages granting a first
priority lien in favor of the Administrative Agent, together with each Aircraft Related Document, with
respect to each Aircraft constituting Term Loan Equipment.
(e) No later than October 31, 2017, comply with the obligations set forth in Section 7.19(a).
(f) No later than January 26, 2018, comply with the obligations set forth in Section 7.19(b).
(g) No later than September 15, 2017, with respect to that certain XxXxxxxxx Xxxxxxx model
model DC-9-83 (MD-83) aircraft bearing manufacturer’s serial number 53021 (described on the
International Registry Manufacturer’s List as XxXXXXXXX XXXXXXX model MD-80-83, serial number
53021) and United States Registration Number N948AS, either (x) provide evidence of deregistration
thereof in form and substance satisfactory to the Administrative Agent or (y) execute and deliver an Aircraft
Mortgage granting a first priority lien in favor of the Administrative Agent, together with each Aircraft
Related Document, with respect thereto.
(h) No later than September 15, 2017, provide evidence of filing of releases of the security
interests in copyrights identified in part (g) of Schedule 7.21, in form and substance satisfactory to the
Administrative Agent.
(i) No later than September 15, 2017, provide evidence of filing of releases of the security
interests in trademarks identified in part (h) of Schedule 7.21, in form and substance satisfactory to the
Administrative Agent.
(j) No later than August 31, 2017, provide a monthly Account roll-forward for each of March,
April, and May of 2017, tied to the beginning and ending accounts receivable balances of the Company’s
general ledger.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder or any Loan Obligation hereunder
shall remain unpaid or unsatisfied, no Loan Party shall, nor shall it permit any Restricted Subsidiary to,
directly or indirectly:
8.01 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness or issue any
Disqualified Equity Interest, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 8.01;
(c) Guarantees of any Loan Party in respect of Indebtedness otherwise permitted hereunder of
any other Loan Party; provided that any Guarantee of Indebtedness permitted hereunder that is subordinated
to the Obligations shall be subordinated to the Obligations on substantially the same terms as such
guaranteed Indebtedness;
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(d) obligations (contingent or otherwise) existing or arising under any Swap Contract,
provided that (i) such obligations are (or were) entered into by such Person in the Ordinary Course of
Business for the purpose of directly mitigating risks reasonably anticipated by such Person associated with
liabilities, commitments, investments, assets, cash flows of or property held by, or changes in the value of
securities issued by, such Person, and not for purposes of speculation or taking a “market view” and (ii)
such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation
to make payments on outstanding transactions to the defaulting party; provided further, however, that the
Swap Termination Value of all such Swap Contracts, together with the aggregate amount of all
Indebtedness permitted under Section 8.01(f) below at any one time outstanding, shall not exceed
$35,000,000;
(e) Indebtedness arising in the Ordinary Course of Business in connection with treasury
management and commercial credit card, merchant card and purchase or procurement card services
including Treasury Management and Other Services;
(f) Without duplication of Indebtedness permitted under Section 8.01(x) below, Indebtedness
in respect of Capital Leases, Synthetic Lease Obligations and purchase money obligations for Real Property
and fixed or capital assets within the limitations set forth in Section 8.02(i); provided, however, that the
aggregate amount of all such Indebtedness at any one time outstanding, together with the Swap Termination
Value of all Swap Contracts permitted under Section 8.01(d) above, shall not exceed $35,000,000;
(g) the endorsement of negotiable instruments for deposit or collection or similar transactions
in the Ordinary Course of Business;
(h) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letters of credit,
warehouse receipt or similar facilities entered into in the Ordinary Course of Business in respect of workers’
compensation and other casualty claims, health, disability or other employee benefits or property, casualty
or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations
regarding workers’ compensation and other casualty claims;
(i) Indebtedness incurred or arising in the Ordinary Course of Business and not in connection
with the borrowing of money in respect of (i) obligations to pay the deferred purchase price of goods or
services or progress payments in connection with such goods and services; provided that such obligations
are incurred in connection with open accounts extended by suppliers on customary trade terms; (ii)
performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and
similar instruments or obligations; and (iii) without duplication of Indebtedness permitted under Section
8.01(q) below, obligations to pay insurance premiums;
(j) Indebtedness representing deferred compensation to employees, consultants or
independent contractors incurred in the Ordinary Course of Business;
(k) surety bonds, deposits and similar obligations permitted under Section 8.02(e) or (f);
(l) unsecured Indebtedness of (i) any Loan Party owing to any other Loan Party, (ii) any Loan
Party owing to any Subsidiary that is not a Loan Party; provided that any such Indebtedness described in
this clause (ii) (x) bears interest (and provided for fees) at a rate (or amount) no greater than the then current
arm’s length market rate (or amount) for similar Indebtedness, (y) does not require the payment in cash of
principal (at maturity or otherwise) prior to ninety-one (91) days following the Maturity Date and (z) is
subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent, (iii) any
Subsidiary that is not a Loan Party owing to any other Subsidiary that is not a Loan Party and (iv) any
Subsidiary that is not a Loan Party owing to any Loan Party; provided that any such Indebtedness described
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in this clause (iv) which is owing to a Loan Party, shall (x) to the extent the aggregate principal amount
thereof is in excess of $1,000,000, be evidenced by promissory notes in form and substance satisfactory to
the Administrative Agent and pledged to the Administrative Agent on terms acceptable to it, (y) be
permitted under Section 8.03(c)(iv) or Section 8.03(g), and (z) not be forgiven or otherwise discharged for
any consideration other than payment in full in cash unless the Administrative Agent otherwise consents;
(m) Permitted Term Debt;
(n) Subordinated Debt;
(o) Indebtedness incurred in connection with any Permitted Earn-Out Payment;
(p) Contingent Obligations arising with respect to customary indemnification obligations in
favor of purchasers in connection with Dispositions permitted under Section 8.05(b);
(q) Without duplication of Indebtedness permitted under Section 8.01(i)(iii) above,
Indebtedness incurred in connection with the financing of insurance premiums in the Ordinary Course of
Business (“Financed Premiums”);
(r) Contingent Obligations arising under indemnity agreements to title insurers to cause such
title insurers to issue to the Administrative Agent and/or for the benefit of providers of Permitted Term
Debt title insurance policies;
(s) Contingent Obligations related to guaranty obligations of the Company or any of its
Subsidiaries with respect to operating leases of the Company’s Domestic Subsidiaries for terminal facilities
and other contract obligations (other than Indebtedness) of the Company’s Domestic Subsidiaries not
prohibited by this Agreement so long as the same remain Contingent Obligations;
(t) Contingent Obligations arising with respect to customary indemnification obligations in
favor of sellers in connection with Permitted Acquisitions;
(u) Indebtedness or Contingent Obligations related to co-borrower or guaranty obligations of
the Company or its Subsidiaries with respect to loans obtained by independent contractors of the Company
or its Subsidiaries for the purpose of such independent contractor acquiring trucks or trailers; provided that
the aggregate amount of all such Indebtedness or Contingent Obligations, together with the aggregate
amount of Investments permitted under Section 8.03(i), shall not exceed $15,000,000 at any one time
outstanding;
(v) Assumed Indebtedness; provided that the aggregate amount of such Assumed Indebtedness
does not exceed $7,500,000 in the aggregate at any time outstanding;
(w) Refinancing Indebtedness;
(x) Without duplication of Indebtedness permitted under Section 8.01(f) above, Attributable
Indebtedness; provide that the aggregate amount of such Attributable Indebtedness does not exceed
$10,000,000 at any time outstanding; and
(y) Other Indebtedness; provided that the aggregate amount of such other Indebtedness does
not exceed $7,500,000 in the aggregate at any time outstanding.
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8.02 Liens.Create, incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than the following (collectively, “Permitted
Liens”):
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof as described on Schedule 8.02 (setting forth, as of the
Closing Date, the lienholder thereof, the principal amount of the obligations secured thereby and the
property or assets of such Loan Party or such Restricted Subsidiary subject thereto) and any renewals or
extensions thereof, provided that (i) the Lien does not extend to any additional property, and (ii) the
obligations secured or benefited thereby constitutes Refinancing Indebtedness;
(c) Liens for taxes, assessments or other governmental charges, not yet due or which are being
Properly Contested, and which in all cases are junior to the Lien of the Administrative Agent;
(d) Liens of carriers, warehousemen, mechanics, materialmen, repairmen, landlords or other
like Liens imposed by Law or arising in the Ordinary Course of Business which are not overdue for a period
of more than 60 days or which are being Properly Contested;
(e) Liens, pledges or deposits in the Ordinary Course of Business in connection with (i)
insurance, workers compensation, unemployment insurance and social security legislation, (ii) contracts,
bids, government contracts, and surety, appeal, customs, performance and return-of-money bonds and (iii)
other similar obligations (exclusive of obligations in respect of the payment for borrowed money), whether
pursuant to contracts, statutory requirements, common law or consensual arrangements, other than any Lien
imposed by ERISA;
(f) Liens arising in the Ordinary Course of Business consisting of deposits to secure the
performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety
bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a
like nature, in each case, incurred in the Ordinary Course of Business;
(g) Liens with respect to minor defects in title and easements, rights-of-way, covenants,
consents, reservations, encroachments, variations and zoning and other similar restrictions, charges,
encumbrances or title defects affecting Real Property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person and do not materially detract
from the value of or materially impair the use by the Loan Parties in the Ordinary Course of Business of
the property subject to or to be subject to such encumbrance;
(h) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 9.01 or securing appeal or other surety bonds related to such judgments, and which in all
cases are junior to the Lien of the Administrative Agent;
(i) Liens securing Indebtedness permitted under Section 8.01(f); provided that (i) such Liens
do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the
Indebtedness secured thereby does not exceed the cost or Fair Market Value, whichever is lower, of the
property being acquired on the date of acquisition;
(j) Liens arising from precautionary Uniform Commercial Code financing statement filings
regarding leases entered into in the Ordinary Course of Business;
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(k) operating leases or subleases (other than leases or sublease of any Aircraft subject to an
Aircraft Mortgage) granted by the Loan Parties to any other Person in the Ordinary Course of Business;
(l) Liens (a) of a collection bank arising under Section 4-210 of the UCC or any comparable
or successor provision on items in the course of collection, (b) attaching to commodity trading accounts or
other commodity brokerage accounts incurred in the Ordinary Course of Business and (c) in favor of
banking institutions arising as a matter of law encumbering deposits (including the right of set-off) and
which are within the general parameters customary in the banking industry;
(m) Liens in favor of customs and revenue authorities imposed by Law to secure payment of
customs duties in connection with the importation of goods and arising in the Ordinary Course of Business
which are not overdue for a period of more than 60 days or which are being Properly Contested;
(n) Liens securing Permitted Term Debt permitted pursuant to Section 8.01(m);
(o) Liens on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto; and
(p) Liens not otherwise permitted by this Section so long as neither (i) the aggregate
outstanding principal amount of the obligations secured thereby, nor (ii) the aggregate Fair Market Value
(determined as of the date such Lien is incurred) exceeds (as to all Loan Parties) $2,500,000 at any time;
provided that such Lien shall not attach to any Accounts, Aircraft Parts, Rolling Stock or Aircraft.
8.03 Investments.Make or maintain any Investments, except:
(a) Investments held by the Loan Parties in the form of Cash Equivalents that are (i) subject to
the Administrative Agent’s Lien and control, pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent, or (ii) maintained in an Excluded Deposit Account;
(b) loans and advances to officers, directors and employees of the Loan Parties and Restricted
Subsidiaries made in the Ordinary Course of Business in an aggregate amount at any one time outstanding
not to exceed $5,000,000;
(c) (i) Investments in Subsidiaries outstanding on the date hereof, (ii) Investments in Loan
Parties, (iii) Investments by Restricted Subsidiaries that are not Loan Parties in other Restricted Subsidiaries
that are not Loan Parties, and (iv) so long as no Default or Event of Default has occurred and is continuing
or would result from such Investment, Investments by Loan Parties in Subsidiaries that are not Loan Parties
in an aggregate amount not to exceed $5,000,000;
(d) Investments consisting of extensions of credit in the nature of accounts receivable or notes
receivable arising from the grant of trade credit in the Ordinary Course of Business, and Investments
received in satisfaction or partial satisfaction thereof from financially troubled Account Debtors (including
in connection with any bankruptcy or reorganization) to the extent reasonably necessary in order to prevent
or limit loss;
(e) Guarantees permitted by Section 8.01;
(f) Investments existing as of the date hereof as described in Schedule 8.03 (setting forth, as
of the Closing Date, the amount, obligor or issuer and maturity, if any, thereof) and extensions or renewals
thereof, provided that no such extension or renewal shall be permitted if it would (i) increase the amount of
such Investment at the time of such extension or renewal or (ii) result in a Default hereunder;
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(g) Investments (including Acquisitions) acquired or arising in connection with a Permitted
Acquisition;
(h) Deposits made in the Ordinary Course of Business securing obligations or performance
under contracts, such as in connection with real estate or personal property leases;
(i) Loans made by the Company or its Subsidiaries to independent contractors of the Company
or its Subsidiaries for the purpose of such independent contractor acquiring trucks or trailers; provided that
the aggregate amount of all such Indebtedness or Contingent Obligations, together with the aggregate
amount of Indebtedness permitted under Section 8.01(u), shall not exceed $15,000,000 at any one time
outstanding;
(j) [reserved];
(k) promissory notes and other non-cash consideration received in connection with
Dispositions permitted by Section 8.05;
(l) other Investments (other than Acquisitions) so long as the Payment Conditions are satisfied
with respect thereto (a “Specified Investment”); and
(m) so long as no Default or Event of Default has occurred and is continuing or would result
from such Investment, additional Investments not otherwise expressly permitted by this Section,
Investments by any Loan Party in an aggregate amount (valued at Cost) not to exceed $2,500,000 during
the term of this Agreement.
8.04 Fundamental Changes.Merge, dissolve, liquidate, consolidate with or into another
Person, except that, so long as no Default or Event of Default exists or would result therefrom:
(a) any Subsidiary of the Company may merge or consolidate with or liquidate or dissolve into
a Loan Party; provided, that, (i) the Loan Party shall be the continuing or surviving Person, (ii) a Borrower
may not merge into the Company and (iii) in the case of any merger of a Borrower and a Subsidiary
Guarantor, such Borrower shall be the continuing or surviving Person;
(b) in connection with a Permitted Acquisition, any Subsidiary of a Loan Party may merge
with or into or consolidate with any other Person or permit any other Person to merge with or into or
consolidate with it; provided, that, (i) the Person surviving such merger shall be a wholly-owned Subsidiary
of a Loan Party and (ii) in the case of any such merger to which any Loan Party is a party, such Loan Party
is the surviving Person or the surviving Person becomes a Loan Party; provided, further that the Company
shall be the surviving Person in the case of any merger with the Company;
(c) any Subsidiary that is not a Loan Party may merge into any other Subsidiary that is not a
Loan Party; provided that, when any wholly-owned Subsidiary is merging with another Subsidiary that is
not wholly-owned, the wholly-owned Subsidiary shall be the continuing or surviving Person; and
(d) any Loan Party (other than the Company) may dissolve or liquidate if the Borrower Agent
determines in good faith that such liquidation or dissolution is in the best interest of the Loan Parties and is
not materially disadvantageous to the Administrative Agent or the Lenders; provided that such Loan Party
shall at or before the time of such dissolution or liquidation, transfer its assets to a Loan Party (or, if such
Loan Party was a Borrower, to a Borrower).
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8.05 Dispositions.Make any Disposition or enter into any agreement to make any Disposition,
except:
(a) Dispositions of Cash Equivalents, each in the Ordinary Course of Business;
(b) Dispositions (including Term Loan Equipment, CapX Equipment, and the capital securities
and other Equity Interests or other assets of Subsidiaries) for at least Fair Market Value (as determined by
the Board of Directors of the Company if the Fair Market Value is reasonably likely to be more than
$1,000,000) so long as (i) except in the case of a Specified Disposition, the net book value of all assets sold
or otherwise disposed of in any fiscal year by the Company and its Subsidiaries, in the aggregate, does not
constitute a substantial portion of the property of the Company and its Subsidiaries taken as a whole or
otherwise exceed 5% of the net book value of the consolidated assets of the Company and its Subsidiaries
as of the last day of the preceding fiscal year (ii) no Event of Default has occurred and is continuing at the
time of such Disposition, and (iii) all proceeds thereof are applied in accordance with Section 2.06(c); and
(c) Dispositions that constitute (i) an Investments permitted under Section 8.03, (ii) a Lien
permitted under Section 8.02, (iii) a merger, dissolution, consolidation or liquidation permitted under
Section 8.04(a), or (iv) a Restricted Payment permitted under Section 8.06;
(d) Dispositions that result from a casualty or condemnation in respect of such property or
assets and is not otherwise an Event of Default so long as all proceeds thereof are applied in accordance
with Section 2.06(c);
(e) the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other
Intellectual Property rights in the Ordinary Course of Business,
(f) (i) the lapse of immaterial registered patents, trademarks, copyrights and other Intellectual
Property to the extent maintaining such registered Intellectual Property is not economically desirable in the
conduct of its business or (ii) the abandonment of patents, trademarks, copyrights, or other intellectual
property rights in the Ordinary Course of Business so long as in each case under clauses (i) and (ii), such
lapse or abandonment is not materially adverse to the interests of the Secured Parties;
(g) the leasing or subleasing of assets (other than sale and leaseback transactions prohibited
under Section 8.15) in the Ordinary Course of Business;
(h) Dispositions that consist of the sale or discount in the Ordinary Course of Business of
overdue Accounts that are not Eligible Accounts in connection with the compromise, settlement or
collection thereof; provided that the Net Cash Proceeds from such Disposition shall be deposited in a
Controlled Deposit Account or Concentration Account;
(i) Dispositions among the Loan Parties or by any Subsidiary to a Loan Party;
(j) Dispositions by any Subsidiary which is not a Loan Party to another Subsidiary that is not
a Loan Party;
(k) Dispositions of surplus, outdated, obsolete or worn out property in the Ordinary Course of
Business;
(l) a Specified Disposition so long as the Payment Conditions are satisfied with respect
thereto; or
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(m) other Dispositions of assets other than Collateral of a type included in the Borrowing Base
so long as (i) no Event of Default has occurred and is continuing at the time of such Disposition and (ii) the
Fair Market Value of all such assets Disposed of, whether individually or in a series of related transactions,
does not exceed $5,000,000 in the aggregate in any fiscal year.
8.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may make Restricted Payments, directly or indirectly, to any Borrower;
(b) the Company and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity Interests of such Person;
(c) the Company, the Borrowers and each Restricted Subsidiary may purchase, redeem or
otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to
acquire any such shares in connection with customary employee or management agreements, plans or
arrangements, all in an aggregate amount not to exceed $1,000,000 during the term of this Agreement;
(d) the Borrower may acquire its common stock upon the exercise of stock options or the
vesting of restricted stock units if such common stock represents a portion of the exercise price of such
stock options or in connection with tax withholding obligations arising in connection with such exercise or
vesting of securities held by any current or former director, officer or employee of any Loan Party or
Subsidiary, all in an aggregate amount not to exceed $1,000,000 during any fiscal year;
(e) the Company shall be permitted to make (i) Permitted Earn-Out Payments described in
clause (x) of the definition thereof so long as no Specified Event of Default then exists or would exist as a
result thereof, and (ii) Permitted Earn-Out Payments described in clause (y) of the definition thereof if the
Payment Conditions are satisfied with respect thereto; and
(f) the Company shall be permitted to make any other Restricted Payment (whether in the form
of cash dividends (including, without limitation, dividends on any series of Preferred Stock as defined in
the Investment Agreement), distributions, purchases, redemptions (including, without limitation,
redemption of the Existing Series E Preferred Stock) or other acquisitions of or with respect to shares of its
common stock or other Equity Interests or otherwise) if the Payment Conditions are satisfied with respect
thereto.
8.07 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Borrowers and their Restricted Subsidiaries on the
date hereof or any business substantially related or incidental thereto.
8.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of
any Loan Party, whether or not in the Ordinary Course of Business, other than:
(a) transactions on fair and reasonable terms substantially as favorable to such Loan Party or
Restricted Subsidiary as would be obtainable by such Loan Party or such Restricted Subsidiary at the time
in a comparable arm’s length transaction with a Person other than an Affiliate;
(b) transactions between or among the Loan Parties;
(c) subject to the terms and conditions of Section 8.06(e), each of the Permitted Earn-Out
Payments;
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(d) transactions pursuant to agreements in existence or contemplated on the Closing Date as
set forth on Schedule 8.08 or any amendment thereto to the extent such an amendment is not adverse to the
Secured Parties in any material respect; and
(e) the Permitted Term Debt.
8.09 Burdensome Agreements.Enter into any Contractual Obligation (other than this
Agreement or any other Loan Document) that:
(a) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to
secure another obligation of such Person; or
(b) limits the ability (i) of any Subsidiary to make Restricted Payments to the Company or any
Borrower or to otherwise transfer property to the Company or any Borrower, (ii) of any Subsidiary to
Guarantee the Indebtedness of the Borrowers or become a direct Borrower hereunder, or (iii) of any
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person;
provided, however, that this clause (iii) shall not prohibit any negative pledge incurred or provided in favor
of any holder of Indebtedness permitted under Section 8.01(e) solely to the extent any such negative pledge
relates to the property financed by or the subject of such Indebtedness.
8.10 Use of Proceeds.Use the proceeds of any Credit Extension, whether directly or indirectly,
and whether immediately, incidentally or ultimately, in any manner that might cause the Credit Extension
or the application of such proceeds to violate Regulations T, U or X of the FRB, in each case as in effect on
the date or dates of such Credit Extension and such use of proceeds.
8.11 Prepayment of Indebtedness; Amendment to Material Agreements.
(a) Make or pay, directly or indirectly, any payment or other distribution (whether in cash,
securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment
or other distribution (whether in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any
Indebtedness, except:
(i) payments when due of regularly scheduled interest and principal payments
(including mandatory prepayments arising as a result of a change of control or sale of substantially
all assets), other than payments in respect of any Subordinated Debt prohibited by the Subordination
Provisions thereof;
(ii) payments made through the incurrence of Refinancing Indebtedness;
(iii) payments of secured Indebtedness that becomes due as a result of a voluntary sale
or transfer permitted hereunder of the property securing such Indebtedness;
(iv) payments made solely from and substantially contemporaneously with the
proceeds of the issuance of Equity Interests by the Company (other than Disqualified Equity
Interests); and
(v) optional payment, prepayments or redemptions in respect of any Indebtedness
(other than Subordinated Debt to the extent contrary to the Subordination Provisions applicable
thereto), as well as mandatory payments of preferred stock dividends to the extent the preferred
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stock constitutes Indebtedness; provided, that, as of the date of any such payment or prepayment
and after giving effect thereto, the Payment Conditions are satisfied (a “Specified Debt Payment”).
(b) Amend, modify or change in any manner any term or condition of any Indebtedness
permitted under Section 8.01(b), (d), (f), (g), (j), (l) or (n) outstanding on the Closing Date, in each case so
that the terms and conditions thereof are less favorable in any material respect to the Administrative Agent
and the Lenders than the terms of such Indebtedness as of the Closing Date.
8.12 Financial Covenant. Permit the Consolidated Fixed Charge Coverage Ratio, determined
on a Pro Forma Basis as of (i) the last day of the Measurement Period most recently ended before the
commencement of a Fixed Charge Coverage Trigger Period and (ii) the last day of each Measurement
Period thereafter ending during any Fixed Charge Coverage Trigger Period to be less than 1.00 to 1.00 for
such Measurement Period.
8.13 Creation of New Subsidiaries. Create or acquire any new Subsidiary after the Closing
Date other than Subsidiaries created or acquired in accordance with Section 7.12.
8.14 Securities of Subsidiaries. Permit any Restricted Subsidiary to issue any Equity Interests
(whether for value or otherwise) to any Person other than a Loan Party.
8.15 Sale and Leaseback. Enter into any agreement or arrangement with any other Person
providing for the leasing by any Loan Party or any Restricted Subsidiary of real or personal property which
has been or is to be sold or transferred by any Loan Party or any Restricted Subsidiary to such other Person
or to any other Person to whom funds have been or are to be advanced by such Person on the security of
such property or rental obligations of a Loan Party or any Restricted Subsidiary (a “Sale and Leaseback
Transaction”), unless (a) the Disposition of the property subject to such Sale and Leaseback Transaction is
permitted by Section 8.05, and the Fair Market Value of all property sold in any fiscal year is not in excess
of $10,000,000, (b) the applicable Loan Party would be entitled to incur Liens with respect to such
transaction pursuant to Section 8.02 and such Lien shall not attach to any property of the Company and its
Subsidiaries other than the property subject to such Sale and Leaseback Transaction, (c) the Indebtedness
in respect of such Sale and Leaseback Transaction is permitted under Section 8.01(x) (measured as the
Attributable Indebtedness with respect to such Sale and Leaseback Transaction), and the aggregate principal
amount of Attributable Indebtedness in respect of all Sale and Leaseback Transactions shall not exceed
$10,000,000, (d) the Net Cash Proceeds received by the applicable Loan Party in connection with such
transaction are at least equal to the Fair Market Value (as determined by the board of directors of the
Company or a member of the senior management of the Company) of such property and (e) not less than
80% of the purchase price for the property subject to such Sale and Leaseback Transaction shall be in the
form of cash or Cash Equivalents.
8.16 Organization Documents; Fiscal Year.(a) Amend, modify or otherwise change any of its
Organization Documents in any material respect, except in connection with a transaction permitted under
Section 8.04, but in any case not in any manner that could reasonably be expected to have a material adverse
effect on the interests of the Secured Parties, or (b) change its fiscal year.
8.17 [Reserved].
8.18 Anti-Money Laundering and Terrorism Laws and Regulations. Permit any other
Controlled Entity or any authorized agent of any Loan Party or any of its Subsidiaries, acting on behalf of
such Loan Party or any such Subsidiary, or any other Controlled Entity, to:
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(a) become (including by virtue of being owned or controlled by a Blocked Person), own or
control a Blocked Person or any Person that is the target of sanctions imposed by the United Nations or by
the European Union;
(b) directly or indirectly have any investment in or engage in any dealing or transaction
(including, without limitation, any investment, dealing or transaction involving the proceeds of the Credit
Extensions) with any Person if such investment, dealing or transaction (A) would cause any Secured Party
to be in violation of any law or regulation applicable to such Secured Party or (B) is prohibited by or subject
to sanctions under any U.S. Economic Sanctions;
(c) conduct, engage in or conspire to engage in any transaction that evades or avoids, or has
the purpose of evading or avoiding, or attempts to violate, or facilitate a violation of, any of the prohibitions
set forth in Executive Order No. 13224, the Currency and Foreign Regulations Reporting Act of 1970
(otherwise known as the Bank Secrecy Act), the PATRIOT Act, the Money Laundering Control Act or any
other United States anti-money laundering or anti-terrorism law or regulation (collectively, “Anti-Money
Laundering Laws”); or
(d) engage, or permit any of its Affiliates to engage, in any activity that could reasonably be
expected to subject such Person or any Secured Party to sanctions under CISADA or any similar law or
regulation with respect to Iran or any other country that is subject to U.S. Economic Sanctions.
8.19 Economic Sanctions Laws and Regulations. Permit any other Controlled Entity or any
authorized agent of such Loan Party or their respective Subsidiaries or any other Controlled Entity to
conduct, transact, engage in, or facilitate, any business or activity on behalf of such Loan Party or its
Subsidiaries in violation of the Foreign Activities Law.
8.20 No Agency Relationship. Permit any Restricted Subsidiary to
(a) Segregate from its general funds monies collected for any Freight Carrier’s services or
otherwise permit any Freight Carrier to restrict the use of those funds.
(b) Seek recourse by legal proceeding against any Freight Carrier to whom it has paid Freight
Payables in advance if the Account Debtor owing on the Account with respect to which those Freight
Payables relate is delinquent or fails to pay.
(c) Hold or be required to hold any portion of its Accounts constituting Freight Payables
collected from an Account Debtor in respect of a Freight Carrier’s services in trust for such Freight Carrier.
(d) Have any express fiduciary relationship or fiduciary duty to any Freight Carrier arising out
of or in connection with any Freight Carrier Document or the transactions contemplated thereby, or, other
than those disclosed to the Administrative Agent and excluded from Eligible Accounts by operation of such
definition, have any contractual agency or joint venture relationship with any Freight Carrier by virtue of
any Freight Carrier Document or any transaction contemplated therein.
(e) Expressly consent to or permit any Freight Carrier to at any time seek payment from, or to
have contractual recourse known to any senior officer of a Loan Party to, any Account Debtor for material
Freight Payables payable by any Loan Party to such Freight Carrier.
8.21 Aircraft Operations. (a) fail to maintain any Aircraft Permit applicable to it, (b) fail to
operate and maintain any Aircraft in all material respects in compliance with all Aircraft Regulations, or
(c) receive notice from any Governmental Authority of its intent to revoke or cancel any Aircraft Permit
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and such Governmental Authority does not agree in writing to withdraw such revocation or cancelation
within 20 Business Days of receipt of such notice.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default. Any of the following shall constitute an “Event of Default”:
(a) Non-Payment. Any Borrower fails to pay (i) when and as required to be paid herein, any
amount of principal of any Loan or any Letter of Credit Obligation, or (ii) within five days after the same
becomes due, any interest on any Loan or on any Letter of Credit Obligation, any commitment or other fee
due hereunder, or any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. Any Loan Party fails to perform or observe any term, covenant or
agreement contained (i) in any of Sections 4.04, 6.30(g), 7.03(a), 7.03(b), 7.05(a), 7.07, 7.10, 7.11, or 7.21
or Article VIII, or (ii) in any of Sections 7.01(a), 7.01(b), 7.02(a), 7.02(b) or 7.02(c), and such failure under
this clause (ii) continues for three (3) or more Business Days; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be
performed or observed and such failure continues for 30 days after receipt of notice of such default by a
Responsible Officer of the Borrower Agent from the Administrative Agent; or
(d) Representations and Warranties. Any representation, warranty, certification or statement
of fact made or deemed made by or on behalf of any Loan Party or its Subsidiaries herein, in any other
Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or
misleading when made or deemed made in any material respect (or in any respect if qualified by
materiality); or
(e) Cross-Default. (i) With respect to any Indebtedness or guarantee (other than Indebtedness
hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including
undrawn committed or available amounts and including amounts owing to all creditors under any combined
or syndicated credit arrangement) of more than the Threshold Amount any Loan Party or its Subsidiaries
(A) fails to make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise, and after passage of any grace period) in respect of any such
Indebtedness or guarantee, or (B) fails to observe or perform any other agreement or condition relating to
any such Indebtedness or guarantee or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, and such default continues for more than the grace or cure period,
if any, therein specified, the effect of which default or other event is to cause, or to permit the holder of
such Indebtedness or beneficiary of such guarantee (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under
any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any
event of default under such Swap Contract as to which any Loan Party or any Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap
Contract as to which any Loan Party or any Subsidiary is an Affected Party (as so defined) and, in either
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event, the Swap Termination Value owed by a Loan Party or any Subsidiary as a result thereof is greater
than Threshold Amount; or
(f) Insolvency Events. Any Insolvency Event shall occur with respect to any Loan Party; or
(g) Inability to Pay Debts. Any Loan Party becomes unable or admits in writing its inability
or fails generally to pay its debts as they become due; or
(h) Judgments. There is entered against any Loan Party (i) one or more final judgments or
orders for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent
not covered by insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-
monetary final judgments that have, or would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, such judgment or order (x) is not related to the
subject matter of the Specified Events and (y) remains unvacated and unpaid and either (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 30
consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan
which has resulted or could reasonably be expected to result in liability of any Loan Party under Title IV
of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the
Threshold Amount, or (ii) a Loan Party or any ERISA Affiliate fails to pay when due, after the expiration
of any applicable grace period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold
Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, or any Lien granted thereunder, at
any time after its execution and delivery and for any reason, other than as expressly permitted hereunder or
upon Payment in Full, ceases to be in full force and effect (except with respect to immaterial assets and
except as a result of the failure of the Administrative Agent (or its agent) to maintain possession of any
stock certificates, certificates of title, promissory notes or other instruments delivered to it under the
Security Agreement)); or any Borrower or any other Person contests in any manner the validity or
enforceability of any Loan Document or any Lien granted to the Administrative Agent pursuant to the
Security Instruments; or any Borrower denies that it has any or further liability or obligation under any
Loan Document, or purports to revoke, terminate or rescind any Loan Document; or any party to the
Intercreditor Agreement contests in any manner the validity or enforceability of the Intercreditor Agreement
or denies that it has any liability or obligation thereunder or purports to revoke, terminate or rescind the
Intercreditor Agreement; or
(k) Indictment. (i) Any Loan Party is (A) criminally indicted or convicted of a felony for fraud
or dishonesty in connection with the Loan Parties’ business or (B) charged by a Governmental Authority
under any law that would reasonably be expected to lead to forfeiture of any material portion of Collateral,
or (ii) any director or senior officer of any Loan Party is (A) criminally indicted or convicted of a felony
for fraud or dishonesty in connection with the Loan Parties’ business, unless such director or senior officer
promptly resigns or is removed or replaced or (B) charged by a Governmental Authority under any law that
would reasonably be expected to lead to forfeiture of any material portion of Collateral; or
(l) Specified Events. (i) Any Loan Party (or any director or senior officer thereof that are
required to be indemnified by any Loan Party) enters into final approved settlements of claims and conduct
(including, without limitation, settlements in any class action litigation or with any Governmental
Authority, and including settlements in respect of penalties and fines) underlying or relating to the Specified
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Events, (ii) there is entered against any Loan Party (or any director or senior officer thereof that are required
to be indemnified by any Loan Party) one or more final judgments or orders for the payment of money
(including, but not limited to, penalties and fines) in respect of the Specified Event, and such judgment or
order remains unvacated and unpaid and either (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of 30 consecutive days during which a stay
of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect, or (iii) any
Loan Party (or any director or senior officer thereof that are required to be indemnified by any Loan Party)
has incurred legal, accountant, auditor, or investigator fees, expenses, or costs relating to the Specified
Events, in an aggregate amount (for all such settlements, judgments, fees, expenses and costs referred to in
clauses (i), (ii) and (iii)) exceeding the Threshold Amount (to the extent not covered by insurance as to
which the insurer does not dispute coverage).
(m) Change of Control. There occurs any Change of Control.
9.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent, and at the direction of the Required Lenders shall, take any or all of the following
actions:
(a) declare the commitment of each Lender to make Loans and any obligation of the Letter of
Credit Issuer to make Letter of Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other Loan Obligations owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrowers;
(c) require that the Borrowers Cash Collateralize the Letter of Credit Obligations (in an amount
equal to the then Outstanding Amount thereof) or any other Loan Obligations that are contingent or not yet
due and payable in amount determined by the Administrative Agent in accordance with this Agreement;
and
(d) exercise on behalf of itself and the Lenders all rights and remedies available to it and the
Lenders under the Loan Documents or applicable Law;
provided, however, that upon the occurrence of an Event of Default under Section 9.01(f), the obligation
of each Lender to make Loans and any obligation of the Letter of Credit Issuer to make Letter of Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of
the Borrowers to Cash Collateralize the Letter of Credit Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any Lender;
No remedy herein is intended to be exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or any other provision of Law.
9.03 Application of Funds.
(a) Subject to Section 9.03(b) below, all payments made by Loan Parties in respect of the Loan
Obligations shall be applied (a) first, as specifically required in the Loan Documents; (b) second, to Loan
Obligations then due and owing; (b) third, to other Loan Obligations specified by Borrower Agent; and (c)
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fourth, as determined by the Administrative Agent in its discretion. Any amount applied to the Revolving
Credit Loans shall be applied first to the Revolving Credit Loans that are not FILO Loans until repaid in
full, and then to FILO Loans.
(b) Notwithstanding any provision to the contrary contained herein, after the exercise of
remedies provided for in Section 9.02 (or after the Loans have automatically become immediately due and
payable and the Letter of Credit Obligations have automatically been required to be Cash Collateralized as
set forth in the proviso to Section 9.02), any amounts received on account of the Obligations shall, subject
to the provisions of Sections 2.16 and 2.17, be applied by the Administrative Agent in the following order:
First, to all fees, indemnities, expenses and other amounts (including reasonable fees,
charges and disbursements of counsel to the Administrative Agent and amounts payable under Article IV)
due to the Administrative Agent in its capacity as such, until paid in full;
Second, to all Protective Advances and unreimbursed Overadvances payable to the
Administrative Agent until paid in full;
Third, to all amounts owing to the Swing Line Lender for outstanding Swing Line Loans
until paid in full;
Fourth, to that portion of the Loan Obligations constituting fees, indemnities and other
amounts (other than principal, interest, Letter of Credit Fees and other Obligations expressly described in
clauses Fifth through Eighth below) payable to the Lenders and the Letter of Credit Issuer (including
reasonable fees, charges and disbursements of counsel to the respective Lenders and the Letter of Credit
Issuer and amounts payable under Article III), ratably among them in proportion to the respective amounts
described in this clause Fourth payable to them until paid in full;
Fifth, to that portion of the Loan Obligations constituting accrued and unpaid Letter of
Credit Fees and interest on the Loans, Letter of Credit Borrowings and other Loan Obligations, ratably
among the Lenders and the Letter of Credit Issuer in proportion to the respective amounts described in this
clause Fifth payable to them until paid in full;
Sixth, to (i) that portion of the Obligations constituting unpaid principal of the Loans and
Letter of Credit Borrowings and to Cash Collateralize that portion of Letter of Credit Obligations
comprising the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash
Collateralized by the Borrowers and (ii) the payment of Priority Swap Obligations to the extent a Credit
Product Reserve has been established therefor, ratably among the Lenders, Letter of Credit Issuer and the
applicable Credit Product Providers in proportion to the respective amounts described in this clause Sixth
payable to them until paid in full;
Seventh, to payment of Conforming Credit Product Obligations (other than Priority Swap
Obligations to the extent paid under clause Sixth above) ratably to the Credit Product Providers in
proportion to the respective amounts described in this clause Seventh payable to them until paid in full;
Eighth, to all other Obligations (including Credit Product Obligations to the extent not paid
under clauses Sixth or Seventh above) that are due and payable to the Administrative Agent and the other
Secured Parties, or any of them, on such date, ratably based on the respective aggregate amounts of all such
Obligations owing to the Administrative Agent and the other Secured Parties on such date until paid in full;
and
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Last, the balance, if any, after Payment in Full, to the Borrowers or as otherwise required
by Law.
Any amount applied to the Revolving Credit Loans shall be applied first to the Revolving
Credit Loans that are not FILO Loans until repaid in full, and then to FILO Loans.
(c) Subject to Sections 2.03(c) and 2.17, amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Sixth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. Amounts distributed with respect to any Credit Product
Obligations shall be the lesser of (i) the maximum Credit Product Obligations last reported to the
Administrative Agent or (ii) the actual Credit Product Obligations as calculated by the methodology
reported to the Administrative Agent for determining the amount due. The Administrative Agent shall have
no obligation to calculate the amount to be distributed with respect to any Credit Product Obligations, and
may request a reasonably detailed calculation of such amount from the applicable Credit Product Provider.
The allocations set forth in this Section are solely to determine the rights and priorities of Administrative
Agent and Secured Parties as among themselves, and may be changed by agreement among them without
the consent of any Borrower. This Section is not for the benefit of or enforceable by any Loan Party.
(d) For purposes of Section 9.03(b), “paid in full” of a type of Obligation means payment in
cash or immediately available funds of all amounts owing on account of such type of Obligation, including
interest accrued after the commencement of any Insolvency Event, default interest, interest on interest, and
expense reimbursements, irrespective of whether any of the foregoing would be or is allowed or disallowed
in whole or in part in any proceeding under Debtor Relief Laws.
(e) Administrative Agent shall not be liable for any application of amounts made by it in good
faith under this Section 9.03, notwithstanding the fact that any such application is subsequently determined
to have been made in error.
ARTICLE X
ADMINISTRATIVE AGENT
10.01 Appointment and Authority. Each of the Lenders and the Letter of Credit Issuer hereby
irrevocably appoints BMO to act on its behalf as the Administrative Agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise
such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent, the Lenders and the Letter of Credit Issuer, and no Loan Party shall
have rights as a third party beneficiary of any of such provisions. The Administrative Agent alone shall be
authorized to determine whether any Accounts or Aircraft Parts constitute Eligible Accounts or Eligible
Aircraft Parts, or whether to impose or release any Reserve, or whether any conditions to funding any Loan
or to issuance of a Letter of Credit have been satisfied, which determinations and judgments, if exercised
in good faith, shall exonerate Administrative Agent from liability to any Lender or other Person for any
error in judgment or mistake except to the extent resulting from the gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and non-appealable decision) of the
Administrative Agent.
10.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as
though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person serving as the
Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept
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deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally
engage in any kind of business with the Loan Parties or any Subsidiary or other Affiliate thereof as if such
Person were not the Administrative Agent hereunder and without any duty to account therefor to the
Lenders.
10.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default
has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in
the other Loan Documents), provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable Law;
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan
Party or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative
Agent or any of its Affiliates in any capacity; and
(d) The Administrative Agent shall not be responsible or have any liability for, or have any
duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement
relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative
Agent shall not (i) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or
prospective Lender or Participant is a Disqualified Institution or (ii) have any liability with respect to or
arising out of any assignment or participation of Loans, or disclosure of confidential information, to
any Disqualified Institution.
The Administrative Agent shall not be liable to any other Secured Party for any action taken or not
taken by it under or in connection with the Loan Documents, except for direct (as opposed to consequential)
losses directly and solely caused by the Administrative Agent’s gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and non-appealable decision). The Administrative
Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in
Sections 11.01 and 9.02). The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Administrative Agent by the Borrower Agent,
a Lender or the Letter of Credit Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any
Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth
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in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered
to the Administrative Agent.
10.04 Reliance by the Administrative Agent. The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the making of a
Loan, or the issuance of a Letter of Credit that by its terms must be fulfilled to the satisfaction of a Lender
or the Letter of Credit Issuer, the Administrative Agent may presume that such condition is satisfactory to
such Lender or the Letter of Credit Issuer unless the Administrative Agent shall have received notice to the
contrary from such Lender or the Letter of Credit Issuer prior to the making of such Loan or the issuance
of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel
for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
10.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as well as activities as the
Administrative Agent.
10.06 Resignation of the Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders, the Letter of Credit Issuer and the Borrower Agent. Upon
receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrower Agent, to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the Letter of Credit Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower Agent
and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder and under the other Loan Documents (except that
in the case of any Collateral held by the Administrative Agent on behalf of the Lenders or the Letter of
Credit Issuer under any of the Loan Documents, the retiring Administrative Agent shall continue to hold
such Collateral until such time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent shall
instead be made by or to each Lender and the Letter of Credit Issuer directly, until such time as the Required
Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor’s appointment as the Administrative Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided
above in this Section). The fees payable by the Borrowers to a successor Administrative Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the Borrowers and such
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successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 11.04 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as the
Administrative Agent.
Any resignation by BMO as the Administrative Agent pursuant to this Section shall also constitute
its resignation as Letter of Credit Issuer and Swing Line Lender. Upon the acceptance of a successor’s
appointment as the Administrative Agent hereunder, (a) such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring Letter of Credit Issuer and Swing Line
Lender, (b) the retiring Letter of Credit Issuer and Swing Line Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Letter
of Credit Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to the retiring Letter of Credit Issuer to
effectively assume the obligations of the retiring Letter of Credit Issuer with respect to such Letters of
Credit.
10.07 Non-Reliance on the Administrative Agent and Other Lenders. Each Lender and the
Letter of Credit Issuer acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the Letter of Credit Issuer also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.
10.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
bookrunners, Arrangers, syndication agents or documentation agents listed on the cover page hereof shall
have any rights, powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender, the Swing Line
Lender, or the Letter of Credit Issuer hereunder.
10.09 The Administrative Agent May File Proofs of Claim; Credit Bidding. In case of the
pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or Letter of Credit
Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective
of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, Letter of Credit Obligations and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the
Lenders, the Letter of Credit Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the Letter of Credit Issuer and the
Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the
Letter of Credit Issuer and the Administrative Agent under Sections 2.03(h), 2.09 and 11.04) allowed in
such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Lender and the Letter of Credit Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the Letter of Credit Issuer, to pay to the Administrative
Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the Letter of Credit Issuer any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any
Lender or the Letter of Credit Issuer to authorize the Administrative Agent to vote in respect of the claim
of any Lender or the Letter of Credit Issuer in any such proceeding.
The Loan Parties and the Secured Parties hereby irrevocably authorize the Administrative Agent,
based upon the instruction of the Required Lenders, to (a) credit bid and in such manner purchase (either
directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof
conducted under the provisions of the Bankruptcy Code of the United States, including under Section 363
of the Bankruptcy Code of the United States or any similar Laws in any other jurisdictions to which a Loan
Party is subject, or (b) credit bid and in such manner purchase (either directly or through one or more
acquisition vehicles) all or any portion of the Collateral at any other sale or foreclosure conducted by (or
with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise)
in accordance with applicable Law. In connection with any such credit bid and purchase, the Obligations
owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with
Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing
or liquidation thereof would not unduly delay the ability of the Administrative Agent to credit bid and
purchase at such sale or other disposition of the Collateral and, if such claims cannot be estimated without
unduly delaying the ability of the Administrative Agent to credit bid, then such claims shall be disregarded,
not credit bid, and not entitled to any interest in the asset or assets purchased by means of such credit bid)
and the Secured Parties whose Obligations are credit bid shall be entitled to receive interests (ratably based
upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so
credit bid) in the asset or assets so purchased (or in the Equity Interests of the acquisition vehicle or vehicles
that are used to consummate such purchase). Upon request by the Administrative Agent or the Borrower
Agent at any time, the Secured Parties will confirm in writing the Administrative Agent’s authority to
release any such Liens on particular types or items of Collateral pursuant to this Section 10.09.
10.10 Collateral Matters. The Secured Parties irrevocably authorize the Administrative Agent,
at its option and in its discretion,
(a) to release any Lien on any Collateral (i) upon the occurrence of the Facility Termination
Date, (ii) that is Disposed or to be Disposed as part of or in connection with any Disposition permitted
hereunder or under any other Loan Document, or (iii) subject to Section 11.01, if approved, authorized or
ratified in writing by the Required Lenders;
(b) to release or subordinate any Lien (and any Indebtedness secured thereby) on any property
granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such
property (i) that is permitted by Section 8.02(i), so long as the Borrower Agent shall have delivered to the
Administrative Agent on or prior to the date of release or subordination, as the case may be, a certificate of
a Responsible Officer certifying that such Lien (and the Indebtedness secured thereby) is permitted by
Section 8.02(i) (and the Administrative Agent may rely conclusively on any such certificate, without further
inquiry), or (ii) if such release or subordination is required under the Intercreditor Agreement; and
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(c) to release any Subsidiary from its obligations under the Loan Documents, and release any
Lien granted by such Subsidiary thereunder, if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder, so long as the Borrower Agent shall have delivered to the Administrative
Agent on or prior to the date of release a certificate of a Responsible Officer certifying that such transaction
is permitted by this Agreement (and the Administrative Agent may rely conclusively on any such certificate,
without further inquiry).
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items
of property, or to release any Loan Party from its obligations under the Loan Documents pursuant to this
Section 10.10.
10.11 Other Collateral Matters.
(a) Care of Collateral. The Administrative Agent shall have no obligation to assure that any
Collateral exists or is owned by a Borrower, or is cared for, protected or insured, nor to assure that the
Administrative Agent’s Liens have been properly created, perfected or enforced, or are entitled to any
particular priority, nor to exercise any duty of care with respect to any Collateral.
(b) Lenders as Agent For Perfection by Possession or Control; Vehicles. The Administrative
Agent and Secured Parties appoint each Lender as agent (for the benefit of Secured Parties) for the purpose
of perfecting Liens in any Collateral held or controlled by such Lender, to the extent such Liens are
perfected by possession or control. If any Lender obtains possession or control of any Collateral, it shall
notify the Administrative Agent thereof and, promptly upon the Administrative Agent’s request, deliver
such Collateral to the Administrative Agent or otherwise deal with it in accordance with the Administrative
Agent’s instructions. In addition, each Lender hereby authorizes the Administrative Agent to enter into the
Vehicle Title Custodial Agreement and appoints the Vehicle Title Service Provider to act as the custodian
thereunder for the purpose of perfecting the security interests in and liens upon the Collateral consisting of
titled vehicles.
(c) Reports. The Administrative Agent shall promptly forward to each Lender, when
complete, copies of any Field Exam or appraisal report prepared by or for the Administrative Agent with
respect to any Borrower or Collateral (“Report”) and promptly provide Borrower Agent with a copy of each
such Report other than relating to a Field Exam. Each Lender agrees (a) that neither BMO nor the
Administrative Agent, makes any representation or warranty as to the accuracy or completeness of any
Report, and shall not be liable for any information contained in or omitted from any Report; (b) that the
Reports are not intended to be comprehensive audits or examinations, and that the Administrative Agent or
any other Person performing any audit or examination will inspect only specific information regarding
Obligations or the Collateral and will rely significantly upon Borrowers’ books and records as well as upon
representations of Borrowers’ officers and employees; and (c) subject to clauses (b) and (c) of the first
paragraph of Section 11.07, to keep all Reports confidential and strictly for such Lender’s internal use, and
not to distribute any Report (or the contents thereof) to any Person (except to such Lender’s Participants,
attorneys and accountants) or use any Report in any manner other than administration of the Loans and
other Obligations. Each Lender shall indemnify and hold harmless the Administrative Agent and any other
Person preparing a Report from any action such Lender may take as a result of or any conclusion it may
draw from any Report, as well as from any claims arising as a direct or indirect result of the Administrative
Agent furnishing a Report to such Lender.
10.12 Credit Product Arrangement Provisions.
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(a) No Credit Product Provider that is party to any Credit Product Arrangement permitted
hereunder that obtains the benefits of Section 9.03 or any Collateral by virtue of the provisions hereof or of
any Security Instrument shall have (i) any right to notice of any action, (ii) any right to consent to, direct or
object to any action or inaction hereunder or under any other Loan Document or otherwise in respect of the
Collateral (including the release or impairment of any Collateral), or (iii) any right to require or receive any
financial information or Borrowing Base Certificates or reports or similar certificates or information under
the Loan Documents, other than in its capacity as a Lender, if applicable, and, in such case, only to the
extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article X
to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other
satisfactory arrangements have been made with respect to, Credit Product Obligations unless the
Administrative Agent has received written notice of such Credit Product Obligations, together with such
supporting documentation as the Administrative Agent may reasonably request, from the applicable Credit
Product Provider. The Lenders irrevocably authorize the Administrative Agent to secure all Credit Product
Obligations with the Collateral to the same extent as other Obligations, all to the extent contemplated
hereunder as determined by the Administrative in it reasonable judgment.
(b) By delivery of a Credit Product Notice, each Credit Product Provider that is not a Lender
(a “Non-Lender Credit Product Provider”) shall be deemed to have joined this Agreement and be bound by
Section 9.03, this Article X and Section 11.04(c) as if it were a Lender hereunder holding a “Loan” in the
amount of its applicable Credit Product Obligations. No Non-Lender Credit Product Provider shall have
any right or claim against any Loan Party under the Loan Documents other than as a Secured Party under
the Security Instruments, nor shall any of them be a third party beneficiary of any provisions of this
Agreement by which the Loan Parties are bound other than provisions relating to the granting of the Lien
of the Administrative Agent on the Collateral and the application of proceeds thereof pursuant to Section
9.03.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc.
(a) No amendment or waiver of any provision of this Agreement or any other Loan Document,
and no consent to any departure by the Borrowers or any other Borrower therefrom, shall be effective unless
in writing signed by the Required Lenders and the Borrowers or the applicable Borrower, as the case may
be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(i) waive any condition set forth in Section 5.01(a) with respect to any funding under
the Revolving Credit Facility, Term Loan Facility, or CapX Facility without the written consent of
the Required Lenders;
(ii) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 9.02) without the written consent of such Lender;
(iii) postpone any date fixed by this Agreement or any other Loan Document for any
payment (but excluding the delay or waiver of any mandatory prepayment) of principal, interest,
fees or other amounts due to the Lenders (or any of them), including the Maturity Date, or any
scheduled reduction of the Commitments hereunder or under any other Loan Document, in each
case without the written consent of each Lender directly affected thereby;
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(iv) reduce the principal of, or the rate of interest specified herein on, any Loan or
Letter of Credit Borrowing, or reduce any fees or other amounts payable hereunder or under any
other Loan Document, without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the Required Lenders shall be necessary (A) to amend
the definition of “Default Rate” (so long as such amendment does not result in the Default Rate
being lower than the interest rate then applicable to Base Rate Loans or LIBOR Loans, as applicable)
or to waive any obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default
Rate or (B) to amend any financial covenant hereunder (or any defined term used therein);
(v) change Section 2.13 or Section 9.03 in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender directly affected
thereby;
(vi) change any provision of this Section or the definitions of “Required Lenders” or
“Required Supermajority Lenders” or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make
any determination or grant any consent hereunder, without the written consent of each Lender;
(vii) except as provided in Section 2.18, increase the Aggregate Revolving Credit
Commitments without the written Consent of each Revolving Credit Lender;
(viii) release any Borrower or any Guarantor that contributes assets to the Borrowing
Base from this Agreement or any Security Instrument to which it is a party without the written
consent of each Lender, except to the extent such Loan Party is the subject of a Disposition permitted
by Section 8.05 (in which case such release may be made by the Administrative Agent acting alone);
(ix) release all or a material part of the Collateral without the written consent of each
Lender except (A) with respect to Dispositions and releases of Collateral permitted or required
hereunder (including pursuant to Section 8.05) or under the Security Agreement or (B) to the extent
required pursuant to the terms of the Intercreditor Agreement (in which case such release may be
made by the Administrative Agent acting alone);
(x) subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any other Lien on such property without the written
consent of each Lender, except with respect to (A) subordination of such Liens to Liens permitted
pursuant to Section 8.02(i) and (B) subordination of such Liens to other Liens on Collateral (other
than Accounts and Aircraft Parts) with an aggregate book value not to exceed $25,000,000;
(xi) Notwithstanding anything in Section 7.02(a) to the contrary with respect to the
Lenders, without the prior written consent of the Required Supermajority Lenders, amend the
definition of “Borrowing Base” or any defined term used therein in a manner that would increase
availability; provided, that the foregoing shall not limit the discretion of the Administrative Agent
to change, establish or eliminate any Reserves or to determine eligibility of Accounts or Aircraft
Parts or other assets of the type available to be included in the Borrowing Bases in accordance with
such terms; or
(xii) without the prior written consent of each Lender, (i) impose any materially greater
restriction on the ability of any Lender to assign any of its rights or obligations hereunder, or (ii)
modify any advance rate used in this Agreement in a manner that would increase availability.
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(b) In addition to the foregoing, (i) no amendment, waiver or consent shall, unless in writing
and signed by the Letter of Credit Issuer in addition to the Lenders required above, affect the rights or duties
of the Letter of Credit Issuer under this Agreement or any Issuer Document relating to any Letter of Credit
issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the
Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line
Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by
the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; (iv) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only by the respective parties
thereto; (v) no amendment, waiver or consent which has the effect of enabling the Borrowers to satisfy any
condition to a Borrowing contained in Section 5.02 hereof which, but for such amendment, waiver or
consent would not be satisfied, shall be effective to require the Revolving Credit Lenders, the Swing Line
Lender or the Letter of Credit Issuer to make any additional Revolving Credit Loan or Swing Line Loan,
or to issue any additional or renew any existing Letter of Credit, unless and until the Required Lenders (or,
if applicable, all Revolving Credit Lenders) shall have approved such amendment, waiver or consent and
(vi) the Administrative Agent and the Borrowers shall be permitted to amend any provision of the Loan
Documents (and such amendment shall become effective without any further action or consent of any other
party to any Loan Document) if the Administrative Agent and the Borrower shall have jointly identified an
obvious error or any error or omission of a technical or immaterial nature in any such provision.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which
by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent
of the applicable Lenders other than Defaulting Lenders), except that (w) the Revolving Credit Commitment
or CapX Commitment of any Defaulting Lender may not be increased or extended without the consent of
such Lender, (x) any waiver, amendment or modification requiring the consent of all Lenders or each
affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders
shall require the consent of such Defaulting Lender, (y) no waiver, amendment, or modification shall
postpone any date fixed by this Agreement or any other Loan Document for any payment (but excluding
the delay or waiver of any mandatory prepayment) of principal, interest, fees or other amounts due to any
Defaulting Lender, including the Maturity Date, or any scheduled reduction of the Commitments hereunder
or under any other Loan Document, in each case without the written consent of each Defaulting Lender
directly affected thereby, and (z) no waiver, amendment, or modification shall reduce the principal of, or
the rate of interest specified herein on, any Loan or Letter of Credit Borrowing, or reduce any fees or other
amounts payable hereunder or under any other Loan Document, without the written consent of each
Defaulting Lender directly affected thereby.
(c) If any Lender does not consent (a “Non-Consenting Lender”) to a proposed amendment,
waiver, consent or release with respect to any Loan Document that requires the consent of each Lender and
that has been approved by the Required Lenders, the Borrower may replace such Non-Consenting Lender
in accordance with Section 11.13; provided that such amendment, waiver, consent or release can be effected
as a result of the assignment contemplated by such Section (together with all other such assignments
required by the Borrower to be made pursuant to this paragraph).
(d) Unless otherwise agreed by the Administrative Agent, no Loan Party will, directly or
indirectly, pay any remuneration or other thing of value, whether by way of additional interest, fee or
otherwise, to any Lender or its Affiliates as consideration for agreement by such Lender to any amendment,
waiver, consent or release with respect to any Loan Document, unless such remuneration or value is
concurrently paid, on the same terms, on a ratable basis to all Lenders providing their agreement.
Notwithstanding the terms of this Agreement or any amendment, waiver, consent or release with respect to
any Loan Document, Non-Consenting Lenders shall not be entitled to receive any fees or other
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compensation paid to the Lenders in connection with any amendment, waiver, consent or release approved
in accordance with the terms of this Agreement by the Required Lenders.
(e) IN NO EVENT SHALL THE REQUIRED LENDERS, WITHOUT THE PRIOR
WRITTEN CONSENT OF EACH LENDER, DIRECT THE ADMINISTRATIVE AGENT TO
ACCELERATE AND DEMAND PAYMENT OF THE LOANS HELD BY ONE LENDER WITHOUT
ACCELERATING AND DEMANDING PAYMENT OF ALL OTHER LOANS OR TO TERMINATE
THE COMMITMENTS OF ONE OR MORE LENDERS WITHOUT TERMINATING THE
COMMITMENTS OF ALL LENDERS. EACH LENDER AGREES THAT, EXCEPT AS OTHERWISE
PROVIDED IN ANY OF THE LOAN DOCUMENTS AND WITHOUT THE PRIOR WRITTEN
CONSENT OF THE REQUIRED LENDERS, IT WILL NOT TAKE ANY LEGAL ACTION OR
INSTITUTE ANY ACTION OR PROCEEDING AGAINST ANY LOAN PARTY WITH RESPECT TO
ANY OF THE OBLIGATIONS OR COLLATERAL, OR ACCELERATE OR OTHERWISE ENFORCE
ITS PORTION OF THE OBLIGATIONS. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, NO LENDER MAY EXERCISE ANY RIGHT THAT IT MIGHT OTHERWISE HAVE
UNDER APPLICABLE LAW TO CREDIT BID AT FORECLOSURE SALES, UNIFORM
COMMERCIAL CODE SALES OR OTHER SIMILAR SALES OR DISPOSITIONS OF ANY OF THE
COLLATERAL EXCEPT AS AUTHORIZED BY THE REQUIRED LENDERS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS SECTION OR
ELSEWHERE HEREIN, EACH LENDER SHALL BE AUTHORIZED TO TAKE SUCH ACTION TO
PRESERVE OR ENFORCE ITS RIGHTS AGAINST ANY LOAN PARTY WHERE A DEADLINE OR
LIMITATION PERIOD IS OTHERWISE APPLICABLE AND WOULD, ABSENT THE TAKING OF
SPECIFIED ACTION, BAR THE ENFORCEMENT OF OBLIGATIONS HELD BY SUCH LENDER
AGAINST SUCH LOAN PARTY, INCLUDING THE FILING OF PROOFS OF CLAIM IN ANY
INSOLVENCY PROCEEDING.
11.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other communications expressly
permitted to be given by telephone or in the case of notices otherwise expressly provided herein (and except
as provided in subsection (b) below), all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail
or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to a Loan Party, the Administrative Agent, the Letter of Credit Issuer or the
Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 11.02, as changed pursuant to subsection (d) below.
(ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire, as changed pursuant to
subsection (d) below (including, as appropriate, notices delivered solely to the Person designated by
a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may
contain material non-public information relating to the Borrowers).
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given
when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the recipient). Notices delivered through
electronic communications to the extent provided in subsection (b) below, shall be effective as provided in
such subsection (b).
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(b) Electronic Communications. Notices and other communications to the Lenders and the
Letter of Credit Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or the Letter of Credit Issuer pursuant
to Article II if such Lender or the Letter of Credit Issuer, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Article by electronic communication. The
Administrative Agent or the Borrowers may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent
to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the
intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is not sent during the
normal business hours of the recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient, and (ii) notices or communications posted
to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient
at its e-mail address as described in the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”
THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM,
AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM
FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN
CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to
any Borrower, any Lender, the Letter of Credit Issuer or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of a Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that
such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by
a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of
such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any
Borrower, any Lender, the Letter of Credit Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrowers, the Administrative Agent, the Letter of
Credit Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other communications hereunder by notice to
the Borrower Agent, the Administrative Agent, the Letter of Credit Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier
number and electronic mail address to which notices and other communications may be sent and (ii)
accurate wire instructions for such Lender.
(e) Reliance by Administrative Agent, Letter of Credit Issuer and Lenders. The
Administrative Agent, the Letter of Credit Issuer and the Lenders shall be entitled to rely and act upon any
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notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given
by or on behalf of the Borrowers even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The Borrowers shall
indemnify the Administrative Agent, the Letter of Credit Issuer, each Lender and the Related Parties of
each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of the Borrowers, except to the extent resulting from gross
negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-
appealable decision) of any such Person. All telephonic notices to and other telephonic communications
with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording.
11.03 No Waiver; Cumulative Remedies. No failure by any Lender, the Letter of Credit Issuer
or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to
enforce rights and remedies hereunder and under the other Loan Documents against the Borrowers or any
other Loan Party or any of them (including enforcement action with respect to any Collateral) shall be
vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be
instituted and maintained exclusively by, the Administrative Agent in accordance with Section 9.02 for the
benefit of all the Secured Parties; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit
(solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the
Letter of Credit Issuer from exercising the rights and remedies that inure to its benefit (solely in its capacity
as Letter of Credit Issuer) hereunder and under the other Loan Documents, (c) any Lender from exercising
setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.14), or (d) any Lender from
filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a
proceeding relative to any Borrower under any Debtor Relief Law but only to the extent the Administrative
Agent shall have failed to do so within a reasonable time after notice; and provided further, that if at any
time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents,
then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant
to Section 9.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso
and subject to Section 2.14, any Lender may, with the consent of the Required Lenders, enforce any rights
and remedies available to it and as authorized by the Required Lenders.
11.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrowers shall pay (i) all reasonable and documented out-of-
pocket expenses (including any Extraordinary Expenses) incurred by the Administrative Agent and its
Affiliates, (A) in connection with this Agreement and the other Loan Documents, including without
limitation the reasonable and documented fees, charges and disbursements of (1) counsel for the
Administrative Agent, (2) outside consultants for the Administrative Agent, (3) to the extent expressly
provided herein, appraisers, (4) to the extent expressly provided herein, Field Exams, and (5) environmental
site assessments required hereunder, (B) in connection with (1) the syndication of the credit facilities
provided for herein, (2) the preparation, negotiation, administration, management, execution and delivery
of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the
provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated),
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(3) the enforcement or protection of their rights in connection with this Agreement or the Loan Documents
or efforts to preserve, protect, collect, or enforce the Collateral, or (4) any workout, restructuring or
negotiations in respect of any Obligations, and (ii) with respect to the Letter of Credit Issuer, and its
Affiliates, all reasonable and documented out-of-pocket expenses incurred in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder; and (iii)
all reasonable out-of-pocket expenses incurred by the Secured Parties who are not the Administrative
Agent, the Arrangers, the Letter of Credit Issuer or any Affiliate of any of them, after the occurrence and
during the continuance of an Event of Default; provided that fees, disbursements and other charges of
counsel set forth in this clause (a) shall be limited to fees, disbursements and other charges of (i) one counsel
to the Administrative Agent and for the Lenders (taken together as a single group or client), (ii) if necessary,
one local counsel required in any relevant local jurisdiction (which may include a single counsel acting in
multiple jurisdictions) and applicable special regulatory counsel, (iii) additional counsel retained with the
Borrower Agent’s consent (such consent not to be unreasonably withheld or delayed) and (iv) if
representation of the Administrative Agent and/or all Lenders in such matter by a single counsel would be
inappropriate based on the advice of legal counsel due to the existence of an actual or potential conflict of
interest, where the Lender affected by such conflict informs the Borrower Agent of such conflict and
thereafter retains its own counsel, of another firm of counsel for such affected Lender and, if necessary, one
firm of local counsel in any relevant local jurisdiction (which may include a single special counsel acting
in multiple jurisdictions) for such affected Lender and one firm of special regulatory counsel for such
affected Lender (the foregoing, collectively being referred to as “Secured Party Expenses”).
(b) Indemnification by the Borrowers. Each Loan Party shall indemnify the Administrative
Agent (and any sub-agent thereof), each other Secured Party and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and hold harmless each Indemnitee from,
any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges
and disbursements of any counsel (limited to reasonable fees, disbursements and other charges of one
primary counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of local counsel in each
appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all
Indemnitees, taken as a whole, and one firm of special regulatory counsel for all Indemnitees, taken as a
whole (and, in the case of an actual or potential conflict of interest, where an Indemnitee affected by such
conflict informs the Borrower Agent of such conflict and thereafter retains its own counsel, of another firm
of counsel for such affected Indemnitee and, if necessary, one firm of local counsel in each appropriate
jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for such affected
Indemnitee and one firm of special regulatory counsel for such affected Indemnitee)) incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by the Borrowers or any other Loan
Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by
the parties hereto of their respective obligations hereunder or thereunder, the consummation of the
transactions contemplated hereby or thereby or, in the case of the Administrative Agent (and any sub-agent
thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents
(including in respect of any matters addressed in Section 4.01), (ii) any Loan or Letter of Credit or the use
or proposed use of the proceeds therefrom (including any refusal by the Letter of Credit Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in connection with such demand
do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by any Loan Party or any of its
Subsidiaries, or any Environmental Liability related in any way to any Loan Party or any of its Subsidiaries,
(iv) any claims of, or amounts paid by any Secured Party to, a Controlled Account Bank or other Person
which has entered into a control agreement with any Secured Party hereunder or (v) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the Borrowers or any other Loan
Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not,
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as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) Indemnification of Administrative Agent by Lenders. To the extent that (i) the Loan Parties
for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be
paid by it, or (ii) any liabilities, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever are be imposed on, incurred by, or asserted against, any
Agent, the Letter of Credit Issuer or a Related Party (an “Agent Indemnitee”) in any way relating to or
arising out of this Agreement or any other Loan Document or any action taken or omitted to be taken by
any Agent Indemnitee in connection therewith (collectively, “Agent Indemnitee Liabilities”), then each
Lender severally agrees to pay to the Administrative Agent for the benefit of such Agent Indemnitee, such
Lender’s Ratable Share (determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such Agent Indemnitee Liabilities, so long as the Agent Indemnitee Liabilities were
incurred by or asserted against the Administrative Agent (or any such sub-agent) or the Letter of Credit
Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or Letter of Credit Issuer in connection with such capacity.
The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).In
no event shall any Lender have any obligation hereunder to indemnify or hold harmless an Agent
Indemnitee with respect to any Agent Indemnitee Liabilities that are determined in a final, non-appealable
judgment by a court of competent jurisdiction to result from the gross negligence or willful misconduct of
such Agent Indemnitee. In the Administrative Agent’s discretion, it may reserve for any Agent Indemnitee
Liabilities of an Agent Indemnitee, and may satisfy any judgment, order or settlement relating thereto, from
proceeds of Collateral prior to making any distribution of Collateral proceeds to the Secured Parties. If the
Administrative Agent is sued by any creditor representative, debtor-in-possession or other Person for any
alleged preference or fraudulent transfer, then any monies paid by the Administrative Agent in settlement
or satisfaction of such proceeding, together with all interest, costs and expenses (including attorneys’ fees)
incurred in the defense of same, shall be promptly reimbursed to the Administrative Agent by each Lender
to the extent of its Ratable Share thereof.
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law,
each of the Loan Parties, the Administrative Agent and the Lenders shall not assert, and hereby waives, any
claim against any other party, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
Except to the extent resulting from its gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision), no Indemnitee referred to in subsection (b)
above shall be liable for any damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby.
(e) Payments. All amounts due under this Section shall be payable not later than ten Business
Days after written demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation of the Administrative
Agent, the Letter of Credit Issuer and the Swing Line Lender, the replacement of any Lender and the
occurrence of the Facility Termination Date.
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11.05 Marshalling; Payments Set Aside. None of the Administrative Agent or Lenders shall be
under any obligation to marshal any assets in favor of any Loan Party or against any Obligations. To the
extent that any payment by or on behalf of any Loan Party is made to a Secured Party, or a Secured Party
exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by such Secured Party in its discretion) to be repaid to a trustee, receiver or
any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to
the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or such setoff had not occurred,
and (b) each Lender and the Letter of Credit Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the applicable Overnight Rate, in the applicable currency of such recovery or
payment. The obligations of the Lenders and the Letter of Credit Issuer under clause (b) of the preceding
sentence shall survive the occurrence of the Facility Termination Date.
11.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby,
except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer
by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Secured Parties) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all
or a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment(s) and the Loans (including for purposes of this Section 11.06(b), participations in Letter of
Credit Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment
shall be subject to the following conditions:
(i) Minimum Amounts. Except in the case of (A) an assignment of the entire
remaining amount of the assigning Lender’s Commitment under any Facility and the Loans at the
time owing to it under such Facility or (B) an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund, the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the Administrative
Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall
not be less than $5,000,000, in the case of any assignment in respect of the Revolving Credit Facility,
unless each of the Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower Agent otherwise consents (each such consent not to be unreasonably
withheld or delayed); provided, however, that concurrent assignments to members of an Assignee
Group and concurrent assignments from members of an Assignee Group to a single Eligible
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Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement
with respect to the Loans or the Commitment assigned, except that this clause shall not apply to the
Swing Line Lender’s rights and obligations in respect of Swing Line Loans. No Lender shall assign
all or a portion of its rights and obligations among the Facilities other than on a -pro rata basis across
the Facilities (unless otherwise agreed to by the Administrative Agent).
(iii) Required Consents. No consent shall be required for any assignment during the
primary syndication or to an Eligible Assignee except to the extent required by subsection (b)(i)(B)
of this Section; provided that the Borrower Agent shall be deemed to have given the consent required
in the definition of “Eligible Assignee” to such assignment if Borrower Agent has not, on behalf of
all Borrowers, responded in writing within ten (10) Business Days of a request for consent.
(iv) Assignment and Assumption. The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in
its sole discretion, elect to waive such processing and recordation fee in the case of any assignment
and for the avoidance of doubt no such fee shall be payable in connection with any assignment by a
Lender to a Lender or an Affiliate or Approved Fund of a Lender. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made (A) to the
Borrowers or any of a Borrower’s Affiliates or Subsidiaries, (B) to any Defaulting Lender or any of
its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the
foregoing Persons described in this clause (B), or (C) to a natural person.
(vi) Certain Additional Payments. In connection with any assignment of rights and
obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and
until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall
make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon
distribution thereof as appropriate (which may be outright payment, purchases by the assignee of
participations or subparticipations, or other compensating actions, including funding, with the
consent of the Borrower Agent and the Administrative Agent, the applicable pro rata share of Loans
previously requested but not funded by the Defaulting Lender, to each of which the applicable
assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities
then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans
and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable
Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and
obligations of any Defaulting Lender hereunder shall become effective under applicable Law
without compliance with the provisions of this paragraph, then the assignee of such interest shall be
deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(vii) Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
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assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect
to facts and circumstances occurring prior to the effective date of such assignment). Upon request,
the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender
of a participation in such rights and obligations in accordance with Section 11.06(d).
(c) Register. The Administrative Agent, acting solely for this purpose as an agent of the
Borrowers (and such agency being solely for tax purposes) (in such capacity, subject to Section 11.17),
shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and Loan Obligations owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the
Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on the Register
information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender.
The Register shall be available for inspection by the Borrower Agent and any Lender at any reasonable
time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent
for a material or substantive change to the Loan Documents is pending, any Lender may request and receive
from the Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or notice to, any
Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a
Defaulting Lender or a Borrower or any of the Borrowers’ Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion
of its Revolving Credit Commitment and/or the Loans (including such Lender’s participations in Letter of
Credit Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the
Lenders and the Letter of Credit Issuer shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in the first proviso to Section 11.01 that affects such Participant.
Subject to subsection (e) of this Section, the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations therein, it being
understood that the documentation required under Section 3.01(e) shall be delivered to the participating
Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 11.08 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.13 and Section 11.08 as though it were a Lender.
If any Lender (or any assignee thereof) sells a participation, such Lender (or such assignee) shall,
acting solely for this purpose as an agent of the Borrowers, maintain a register on which it enters the name
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and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest
in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no
Lender (nor any assignee thereof) shall have any obligation to disclose all or any portion of the Participant
Register (including the identity of any Participant or any information relating to a Participant’s interest in
any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person
except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit
or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such
Lender (or such assignee) shall treat each Person whose name is recorded in the Participant Register as the
owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have
no responsibility for maintaining a Participant Register.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any
greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower Agent’s prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower Agent is
notified of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) [Reserved].
(h) Resignation as Letter of Credit Issuer and/or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time any Letter of Credit Issuer and/or
Swing Line Lender assigns all of its Revolving Credit Commitment, Revolving Credit Loans, Letter of
Credit Advances, Letter of Credit Extensions and Swing Line Loans pursuant to subsection (b) above, such
Person may, as applicable, (i) upon 30 days’ notice to the Borrower Agent and the Lenders, resign as Letter
of Credit Issuer and/or (ii) upon 30 days’ notice to the Borrower Agent, resign as Swing Line Lender. In
the event of any such resignation as Letter of Credit Issuer, or Swing Line Lender, the Borrower Agent
shall be entitled to appoint from among the Lenders willing to serve in such capacity a successor Letter of
Credit Issuer or Swing Line Lender hereunder, as the case may be; provided, however, that no failure by
the Borrower Agent to appoint any such successor shall affect the resignation of such Person as Letter of
Credit Issuer or Swing Line Lender, as the case may be. If any Person resigns as Letter of Credit Issuer,
such Person shall retain all the rights, powers, privileges and duties of the Letter of Credit Issuer hereunder
with respect to all Letters of Credit outstanding as of the effective date of its resignation as Letter of Credit
Issuer and all Letter of Credit Obligations with respect thereto (including the right to require the Lenders
to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).
If BMO resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations
in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor Letter
of Credit Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring Letter of Credit Issuer or Swing Line Lender, as
the case may be, and (b) the successor Letter of Credit Issuer shall issue letters of credit in substitution for
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the Letters of Credit, if any, outstanding at the time of such successor or make other arrangements
satisfactory to the retiring Letter of Credit Issuer to effectively assume the obligations of such Letter of
Credit Issuer with respect to such Letters of Credit.
(i) Disqualified Institutions.
(a) No assignment or, to the extent the DQ List has been posted on the Platform for all Lenders,
participation, shall be made to any Person that was a Disqualified Institution as of the date (the “Trade
Date”) on which the applicable Lender entered into a binding agreement to sell and assign or participate all
or a portion of its rights and obligations under this Agreement to such Person (unless the Borrower Agent
has consented to such assignment as otherwise contemplated by this Section 11.06, in which case such
Person will not be considered a Disqualified Institution for the purpose of such assignment). For the
avoidance of doubt, with respect to any assignee or participant that becomes a Disqualified Institution after
the applicable Trade Date (including as a result of the delivery of a notice pursuant to, and/or the expiration
of the notice period referred to in, the definition of “Disqualified Institution”), such assignee shall not
retroactively be considered a Disqualified Institution. Any assignment in violation of this clause (i)(a) shall
not be void, but the other provisions of this clause (i) shall apply.
(b) If any assignment is made to any Disqualified Institution without the Borrower Agent’s
prior consent in violation of clause (a) above, the Borrowers may, at their sole expense and effort, upon
notice to the applicable Disqualified Institution and the Administrative Agent, (A) terminate any Revolving
Commitment of such Disqualified Institution and repay all obligations of the Borrowers owing to such
Disqualified Institution in connection with such Revolving Commitment, (B) in the case of outstanding
Term Loans held by Disqualified Institutions, prepay such Term Loan by paying the lesser of (x) the
principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such Term
Loans, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts)
payable to it hereunder and under the other Loan Documents, (C) in the case of outstanding CapX Loans
held by Disqualified Institutions, prepay such CapX Loans by paying the lesser of (x) the principal amount
thereof and (y) the amount that such Disqualified Institution paid to acquire such CapX Loans, in each case
plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it
hereunder and under the other Loan Documents and/or (D) require such Disqualified Institution to assign
and delegate, without recourse (in accordance with and subject to the restrictions contained in this Section
11.06), all of its interest, rights and obligations under this Agreement and related Loan Documents to an
Eligible Assignee that shall assume such obligations at the lesser of (x) the principal amount thereof and
(y) the amount that such Disqualified Institution paid to acquire such interests, rights and obligations, in
each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable
to it hereunder and other the other Loan Documents; provided that (i) the Borrowers shall have paid to the
Administrative Agent the assignment fee (if any) specified in Section 11.06(b), (ii) such assignment does
not conflict with applicable Laws and (iii) in the case of clauses (B) and (C), the Borrowers shall not use
the proceeds from any Loans to prepay Term Loans or CapX Loans held by Disqualified Institutions.
(c) Notwithstanding anything to the contrary contained in this Agreement, Disqualified
Institutions (A) will not (x) have the right to receive information, reports or other materials provided to
Lenders by the Borrowers, the Administrative Agent or any other Lender, (y) attend or participate in
meetings attended by the Lenders and the Administrative Agent, or (z) access any electronic site established
for the Lenders or confidential communications from counsel to or financial advisors of the Administrative
Agent or the Lenders and (B) (x) for purposes of any consent to any amendment, waiver or modification
of, or any action under, and for the purpose of any direction to the Administrative Agent or any Lender to
undertake any action (or refrain from taking any action) under this Agreement or any other Loan Document,
each Disqualified Institution will be deemed to have consented in the same proportion as the Lenders that
are not Disqualified Institutions consented to such matter, and (y) for purposes of voting on any plan of
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reorganization or plan of liquidation pursuant to any Debtor Relief Laws (“Plan of Reorganization”), each
Disqualified Institution party hereto hereby agrees (1) not to vote on such Plan of Reorganization, (2) if
such Disqualified Institution does vote on such Plan of Reorganization notwithstanding the restriction in
the foregoing clause (1), such vote will be deemed not to be in good faith and shall be “designated” pursuant
to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and
such vote shall not be counted in determining whether the applicable class has accepted or rejected such
Plan of Reorganization in accordance with Section 1126(c) of the Bankruptcy Code (or any similar
provision in any other Debtor Relief Laws) and (3) not to contest any request by any party for a
determination by the Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating
the foregoing clause (2).
(d) The Administrative Agent shall have the right, and the Borrowers hereby expressly
authorize the Administrative Agent, to (A) post the list of Disqualified Institutions provided by the
Borrower (including without limitation those set forth on Schedule 11.06) and any updates thereto from
time to time (collectively, the “DQ List”) on the Platform, including that portion of the Platform that is
designated for “public side” Lenders or (B) provide the DQ List to each Lender requesting the same.
11.07 Treatment of Certain Information; Confidentiality. Each of the Secured Parties agrees
to maintain the confidentiality of the Information (as defined below), except that Information may be
disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, trustees, officers,
employees, agents, advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable Laws or regulations or by any subpoena or similar
legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder
or under any other Loan Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrowers and their obligations, (g) with the consent of the Borrower Agent in its reasonable discretion or
(h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Secured Parties or any of their respective Affiliates on a
nonconfidential basis from a source other than the Loan Parties.
For purposes of this Section, “Information” means all information received from any Loan Party
or any Subsidiary relating to a Loan Party or any Subsidiary or any of their respective businesses, other
than any such information that is available to any Secured Party on a nonconfidential basis prior to
disclosure by a Loan Party or any Subsidiary, provided that, in the case of information received from a
Loan Party or any Subsidiary after the date hereof, any information not marked “PUBLIC” at the time of
delivery will be deemed to be confidential; provided that any information marked “PUBLIC” may also be
marked “Confidential”. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has exercised
the same degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
Each of the Secured Parties acknowledges that (a) the Information may include material non-public
information concerning a Loan Party or a Subsidiary, as the case may be, (b) it has developed compliance
procedures regarding the use of material non-public information and (c) it will handle such material non-
public information in accordance with applicable Law, including federal and state securities Laws.
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Each of the Loan Parties hereby authorizes the Administrative Agent and each Arranger to publish
the name of any Loan Party and the amount of the credit facility provided hereunder in any “tombstone” or
comparable advertisement which the Administrative Agent or such Arranger elects to publish. The
Administrative Agent and each Arranger reserves the right to provide to industry trade organizations
information necessary and customary for inclusion in league table measurements.
11.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender,
the Letter of Credit Issuer and each of their respective Affiliates is hereby authorized at any time and from
time to time, only after obtaining the prior written consent of the Administrative Agent, to the fullest extent
permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at
any time owing by such Lender, the Letter of Credit Issuer or any such Affiliate to or for the credit or the
account of the Borrowers against any and all of the obligations of the Borrowers now or hereafter existing
under this Agreement or any other Loan Document to such Lender or the Letter of Credit Issuer, irrespective
of whether or not such Lender or the Letter of Credit Issuer shall have made any demand under this
Agreement or any other Loan Document and although such obligations of the Borrowers may be contingent
or unmatured or are owed to a branch or office of such Lender or the Letter of Credit Issuer different from
the branch or office holding such deposit or obligated on such indebtedness; provided that in the event that
any Defaulting Lender or any Affiliate thereof shall exercise any such right of setoff, (x) all amounts so set
off shall be paid over immediately to the Administrative Agent for further application in accordance with
the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender
or its Affiliate (as applicable) from its other funds and deemed held in trust for the benefit of the
Administrative Agent and the Lenders, and (y) the Defaulting Lender or its Affiliate shall provide promptly
to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such
Defaulting Lender or its Affiliates as to which such right of setoff was exercised. The rights of each Lender,
the Letter of Credit Issuer and their respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) that such Lender, the Letter of Credit Issuer or their
respective Affiliates may have. Each Lender and the Letter of Credit Issuer agrees to notify the Borrower
Agent and the Administrative Agent promptly after any such setoff and application, provided that the failure
to give such notice shall not affect the validity of such setoff and application.
11.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the
Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal,
refunded to the Borrowers. In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted
by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather
than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate,
and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the
Loan Obligations hereunder.
11.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Agreement and the
other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof
and supersede any and all previous agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.
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Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.
11.11 Survival. All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such representations and warranties have been
or will be relied upon by the Secured Parties, regardless of any investigation made by any Secured Party or
on their behalf and notwithstanding that any Secured Party may have had notice or knowledge of any
Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan
or any other Loan Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.
Further, the provisions of Sections 3.01, 3.04, 3.05 and 11.04 and Article X shall survive and remain
in full force and effect regardless of the repayment of the Obligations, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof. In
connection with the termination of this Agreement and the release and termination of the security interests
in the Collateral, the Administrative Agent may require such indemnities and collateral security as it shall
reasonably deem necessary or appropriate in its reasonable discretion to protect the Secured Parties against
(x) loss on account of credits previously applied to the Obligations that could reasonably be expected to
subsequently be reversed or revoked, and (y) any obligations that could reasonably be expected to thereafter
arise with respect to Credit Product Obligations.
11.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions
of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid
or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions
of this Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating
to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the
Administrative Agent, the Letter of Credit Issuer or the Swing Line Lender, as applicable, then such
provisions shall be deemed to be in effect only to the extent not so limited.
11.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04, if the
Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 3.01, if any Lender is a Defaulting Lender, or if any Lender fails
to approve any amendment, waiver or consent requiring all Lenders, all affected Lenders or Required
Supermajority Lenders that is requested by Borrower Agent pursuant to Section 11.01 that has received the
written approval of not less than the Required Lenders, then in each such case the Borrower Agent may, at
its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender
to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in,
and consents required by, Section 11.06), all of its interests, rights and obligations under this Agreement
and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment), provided that:
(a) the Borrower Agent shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b);
(b) such Lender shall have received the following, as applicable:
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(i) if such Lender is not a Defaulting Lender, both (A) payment of an amount equal
to the outstanding principal of its Loans and Letter of Credit Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Loan Documents
(including any amounts under Section 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower Agent (in the case of all other amounts) and
(B) evidence that the obligations and liabilities of each Loan Party or their Affiliates under all Credit
Product Arrangements shall have been fully, finally and irrevocably paid and satisfied in full and
the Credit Product Arrangements shall have expired or been terminated, or other arrangements
satisfactory to the counterparties shall have been made with respect thereto; or
(ii) if such Lender is a Defaulting Lender, payment of an amount equal to the
outstanding principal of its Loans and Letter of Credit Advances, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under the other Loan Documents (including
any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower Agent (in the case of all other amounts).
(c) in the case of any such assignment resulting from a claim for compensation under Section
3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction
in such compensation or payments thereafter;
(d) in the case of any such assignment resulting from the refusal of a Lender to approve a
requested amendment, waiver or consent, the Person to whom such assignment is being made has agreed
to approve such requested amendment, waiver or consent; and
(e) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment
and delegation cease to apply. Any replacement pursuant to this Section 11.13 shall not be deemed a waiver
of any rights that the Borrowers, the Administrative Agent or any other Lender shall have against the
replaced Lender.
11.14 Governing Law; Jurisdiction; Etc.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
(b) EACH PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF
THE STATE OF ILLINOIS SITTING IN XXXX COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE NORTHERN DISTRICT OF ILLINOIS, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES
HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN SUCH ILLINOIS STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
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AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT
THE ADMINISTRATIVE AGENT, ANY LENDER OR THE LETTER OF CREDIT ISSUER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWERS OR
THEIR PROPERTIES IN THE COURTS OF ANY COMPETENT JURISDICTION.
(c) EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT. EACH PARTY HERETO HEREBY WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT THAT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LEGAL ACTION OR PROCEEDING REFERRED TO IN THIS SECTION 11.14 ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
(d) EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN
THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
11.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
11.16 Electronic Execution of Assignments and Certain Other Documents. The words
“execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in any
amendment or other modification hereof (including waivers and consents) shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
11.17 USA PATRIOT Act Notice. Each Lender that is subject to the PATRIOT Act and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that
pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information
that identifies the Borrowers, which information includes the name and address of the Borrowers and other
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information that will allow such Lender or the Administrative Agent, as applicable, to identify the
Borrowers in accordance with the PATRIOT Act.
11.18 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each Loan Party acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this
Agreement provided by the Secured Parties are arm’s-length commercial transactions between each Loan
Party, on the one hand, and the Secured Parties, on the other hand, (B) each Loan Party has consulted its
own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each
Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents; (ii) (A) each Secured Party is and has
been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not
been, is not, and will not be acting as an advisor, agent or fiduciary for any Loan Party or any of its Affiliates
or any other Person and (B) no Secured Party has any obligation to any Loan Party or any of its Affiliates
with respect to the transactions contemplated hereby except those obligations expressly set forth herein and
in the other Loan Documents, (iii) the Secured Parties may be engaged in a broad range of transactions that
involve interests that differ from those of the Loan Parties and their Affiliates, and no Secured Party has
any obligation to disclose any of such interests to any Loan Party or its Affiliates and (iv) the Secured
Parties have not provided and will not provide any legal, accounting, regulatory or tax advice with respect
to any of the transactions contemplated hereby (including any amendment, waiver or other modification
hereof or of any other Loan Document) and each of the Loan Parties has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate. To the fullest extent permitted by law,
each Loan Party hereby waives and releases any claims that it may have against any Secured Party with
respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.
11.19 Attachments. The exhibits, schedules and annexes attached to this Agreement are
incorporated herein and shall be considered a part of this Agreement for the purposes stated herein; except,
that, in the event of any conflict between any of the provisions of such exhibits and the provisions of this
Agreement, the provisions of this Agreement shall prevail.
11.20 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement
or understanding among any such parties, each party hereto acknowledges that any liability of any EEA
Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be
subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents
to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution
Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an
EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments
of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that
may be issued to it or otherwise conferred on it, and that such shares or other instruments of
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ownership will be accepted by it in lieu of any rights with respect to any such liability under this
Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the
write-down and conversion powers of any EEA Resolution Authority.
ARTICLE XII
CONTINUING GUARANTY
12.01 Guaranty. Each Subsidiary Guarantor hereby absolutely and unconditionally guarantees,
as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment
when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise,
and at all times thereafter, of any and all of the Obligations (other than Excluded Swap Obligations),
whether for principal, interest, premiums, fees, indemnities, damages, costs, expenses or otherwise, of the
Borrowers to the Secured Parties, arising hereunder or under any other Loan Document (including all
renewals, extensions, amendments, refinancings and other modifications thereof and all costs, attorneys’
fees and expenses incurred by the Secured Parties in connection with the collection or enforcement thereof)
(the “Guarantied Obligations”). The Administrative Agent’s books and records showing the amount of the
Guarantied Obligations shall be admissible in evidence in any action or proceeding, and shall be binding
upon each Subsidiary Guarantor, and conclusive for the purpose of establishing the amount of the
Guarantied Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or
enforceability of the Guarantied Obligations or any instrument or agreement evidencing any Guarantied
Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any
collateral therefor, or by any fact or circumstance relating to the Guarantied Obligations which might
otherwise constitute a defense to the obligations of any Subsidiary Guarantor under this Guaranty, and each
Subsidiary Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any
way relating to any or all of the foregoing.
12.02 Rights of Lenders. Each Subsidiary Guarantor consents and agrees that the Secured
Parties may, at any time and from time to time, without notice or demand, and without affecting the
enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge,
accelerate or otherwise change the time for payment or the terms of the Guarantied Obligations or any part
thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any
security for the payment of this Guaranty or any Guarantied Obligations; (c) apply such security and direct
the order or manner of sale thereof as the Administrative Agent, the Letter of Credit Issuer and the Lenders
in their sole discretion may determine; and (d) release or substitute one or more of any endorsers or other
guarantors of any of the Guarantied Obligations. Without limiting the generality of the foregoing, each
Subsidiary Guarantor consents to the taking of, or failure to take, any action which might in any manner or
to any extent vary the risks of any Subsidiary Guarantor under this Guaranty or which, but for this provision,
might operate as a discharge of any Subsidiary Guarantor.
12.03 Certain Waivers. Each Subsidiary Guarantor waives (a) any defense arising by reason of
any disability or other defense of the Borrowers or any other guarantor, or the cessation from any cause
whatsoever (including any act or omission of any Secured Party) of the liability of the Borrowers; (b) any
defense based on any claim that any Subsidiary Guarantor’s obligations exceed or are more burdensome
than those of the Borrowers; (c) the benefit of any statute of limitations affecting any Subsidiary Guarantor’s
liability hereunder; (d) any right to proceed against the Borrowers, proceed against or exhaust any security
for the Guarantied Obligations, or pursue any other remedy in the power of any Secured Party whatsoever;
(e) any benefit of and any right to participate in any security now or hereafter held by any Secured Party;
and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived
from or afforded by applicable Law limiting the liability of or exonerating guarantors or sureties. Each
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Subsidiary Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for
payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of
dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guarantied
Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of
new or additional Guarantied Obligations.
12.04 Obligations Independent. The obligations of each Subsidiary Guarantor hereunder are
those of primary obligor, and not merely as surety, and are independent of the Guarantied Obligations and
the obligations of any other guarantor, and a separate action may be brought against each Subsidiary
Guarantor to enforce this Guaranty whether or not any Borrower or any other person or entity is joined as
a party.
12.05 Subrogation. No Subsidiary Guarantor shall exercise any right of subrogation,
contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this
Guaranty until the Facility Termination Date. If any amounts are paid to any Subsidiary Guarantor in
violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured
Parties and shall forthwith be paid to the Secured Parties to reduce the amount of the Obligations, whether
matured or unmatured.
12.06 Termination; Reinstatement. This Guaranty is a continuing and irrevocable guaranty of
all Guarantied Obligations now or hereafter existing and shall remain in full force and effect until the
Facility Termination Date. Notwithstanding the foregoing, this Guaranty shall continue in full force and
effect or be revived, as the case may be, if any payment by or on behalf of the Borrowers or any Subsidiary
Guarantor is made, or any of the Secured Parties exercises its right of setoff, in respect of the Guarantied
Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered
into by any of the Secured Parties in their discretion) to be repaid to a trustee, receiver or any other party,
in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had
not been made or such setoff had not occurred and whether or not the Secured Parties are in possession of
or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction.
The obligations of each Subsidiary Guarantor under this paragraph shall survive termination of this
Guaranty.
12.07 Subordination. Each Subsidiary Guarantor hereby subordinates the payment of all
obligations and indebtedness of the Borrowers owing to each Subsidiary Guarantor, whether now existing
or hereafter arising, including but not limited to any obligation of the Borrowers to any Subsidiary
Guarantor as subrogee of the Secured Parties or resulting from any Subsidiary Guarantor’s performance
under this Guaranty, to the Payment in Full. If the Secured Parties so request, any such obligation or
indebtedness of the Borrowers to any Subsidiary Guarantor shall be enforced and performance received by
any Subsidiary Guarantor as trustee for the Secured Parties and the proceeds thereof shall be paid over to
the Secured Parties on account of the Guarantied Obligations, but without reducing or affecting in any
manner the liability of any Subsidiary Guarantor under this Guaranty.
12.08 Stay of Acceleration. If acceleration of the time for payment of any of the Guarantied
Obligations is stayed, in connection with any case commenced by or against any Subsidiary Guarantor or
the Borrowers under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable
by each Subsidiary Guarantor immediately upon demand by the Secured Parties.
12.09 Condition of Borrowers. Each Subsidiary Guarantor acknowledges and agrees that it has
the sole responsibility for, and has adequate means of, obtaining from the Borrowers and any other
guarantor such information concerning the financial condition, business and operations of the Borrowers
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and any such other guarantor as each Subsidiary Guarantor requires, and that none of the Secured Parties
has any duty, and no Subsidiary Guarantor is relying on the Secured Parties at any time, to disclose to any
Subsidiary Guarantor any information relating to the business, operations or financial condition of the
Borrowers or any other guarantor (and each Subsidiary Guarantor waiving any duty on the part of the
Secured Parties to disclose such information and any defense relating to the failure to provide the same).
12.10 Keepwell. Each Guarantor that is a Qualified ECP hereby jointly and severally absolutely,
unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from
time to time by each other Loan Party to honor all of its obligations under this Guaranty in respect of Swap
Obligations (provided, however, that each Qualified ECP shall only be liable under this Section 12.10 for
the maximum amount of such liability that can be hereby incurred without rendering its obligations under
this Section 12.10, or otherwise under this Guaranty, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Guarantor that
is a Qualified ECP under this Section shall remain in full force and effect until the Guarantied Obligations
have been paid in full in cash. Each Guarantor that is a Qualified ECP intends that this Section 12.10
constitute, and this Section 12.10 shall be deemed to constitute, a “keepwell, support, or other agreement”
for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity
Exchange Act.
12.11 Real Estate Collateral. No real property shall be taken as Collateral unless Lenders
receive 45 days advance notice and each Lender confirms to the Administrative Agent that it has completed
all flood due diligence, received copies of all flood insurance documentation and confirmed flood insurance
compliance as required by the Flood Disaster Protection Act of 1973, as amended, or as otherwise
satisfactory to such Lender. At any time that any real property constitutes Collateral, no modification of a
Loan Document shall add, increase, renew or extend any loan, commitment or credit line hereunder until
the completion of flood due diligence, documentation and coverage as required by the Flood Disaster
Protection Act of 1973, as amended, or as otherwise satisfactory to all Lenders.
[Remainder of page is intentionally left blank; signature pages follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first above written.
BORROWER:
ROADRUNNER TRANSPORTATION SYSTEMS,
INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and Chief Financial
Officer
SUBSIDIARY GUARANTORS:
A&A EXPRESS, LLC
A&A LOGISTICS, LLC
ACTIVE AERO CHARTER, LLC
ACTIVE AERO GROUP, INC.
ACTIVE AERO MOTOR CARRIER, LLC
ACTIVE GLOBAL SOLUTIONS, LLC
ACTIVE PTM, LLC
XXXXXX CARRIERS, LLC
ALPHA FREIGHT SYSTEMS, LLC
ASCENT GLOBAL LOGISTICS HOLDINGS,
INC.
BEECH HILL ENTERPRISES, LLC
BIG ROCK TRANSPORTATION, LLC
CAPITAL TRANSPORTATION LOGISTICS,
LLC
CENTRAL CAL TRANSPORTATION, LLC
COMBI MARITIME CORPORATION
CONSOLIDATED TRANSPORTATION
WORLD, LLC
CTW TRANSPORT, LLC
D&E TRANSPORT, LLC
DIRECT CONNECTION TRANSPORTATION, LLC
XXXXXXX LOGISTICS, LLC
EXPEDITED FREIGHT SYSTEMS, LLC
GREAT NORTHERN TRANSPORTATION
SERVICES, LLC
GROUP TRANSPORTATION SERVICES, INC.
GWP LOGISTICS, LLC
INTERNATIONAL TRANSPORTATION
HOLDINGS, INC.
ISI LOGISTICS, LLC
ISI LOGISTICS SOUTH, LLC
XXXXXXX INTERNATIONAL, LLC
MESCA FREIGHT SERVICES, LLC
XXXXXX SOUTHERN, INC.
PRIME DISTRIBUTION SERVICES, INC.
RICH TRANSPORT, LLC
ROADRUNNER EQUIPMENT LEASING, LLC
ROADRUNNER INTERMODAL SERVICES, LLC
ROADRUNNER TEMPERATURE CONTROLLED,
LLC
ROADRUNNER TRANSPORTATION SERVICES,
INC.
ROADRUNNER TRUCKLOAD, LLC
ROADRUNNER TRUCKLOAD 2, LLC
ROADRUNNER TRUCKLOAD AGENT
INVESTMENT, INC.
ROADRUNNER TRUCKLOAD HOLDINGS, LLC
RRTC HOLDINGS, INC.
XXXXXXX TRUCKING, LLC
XXXXXXX TRANSPORTATION, LLC
STAGECOACH CARTAGE AND DISTRIBUTION,
LLC
THE MEADOWLARK GROUP, LLC
UNITRANS, INC.
UNITRANS INTERNATIONAL CORPORATION
USA JET AIRLINES, INC.
WANDO TRUCKING, LLC
WORLD TRANSPORT SERVICES, LLC
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
ADMINISTRATIVE AGENT:
BMO XXXXXX BANK N.A., as Administrative
Agent
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Managing Director
LENDERS:
BMO XXXXXX BANK N.A., as a Lender, Letter of
Credit Issuer and Swing Line Lender
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Managing Director
JPMORGAN CHASE BANK N.A., as a Lender
By: /s/ Xxxxxxxxx Xxx
Name: Xxxxxxxxx Xxx
Title: Authorized Officer
XXXXX FARGO BANK, NA, as a Lender
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
Schedule 11.02
Addresses for Notices
(A) If to Administrative Agent,
Swing Line Lender or Letter of
Credit Issuer:
BMO Xxxxxx Bank N.A.
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile No.: 000-000-0000
Email: Xxxxx.Xxxxxxx@xxx.xxx
With a copy to: Winston & Xxxxxx LLP
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: 000-000-0000
Email: xxxxxxx@xxxxxxx.xxx
(B) If to a Loan Party: Roadrunner Transportation Systems, Inc.,
as Borrower Agent
0000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx,
Chief Financial Officer
Facsimile No.: 000-000-0000
Email: xxxxxxx@xxxx.xxx
With a copy to: Xxxxxxxxx Traurig, LLP
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
Facsimile No.: 000-000-0000
Email: Xxxxxxxxxxx@xxxxx.xxx
